Cornell University Library 
 KF 9025.H55 
 
 Treatise on the law of executions / 
 
 3 1924 020 198 333 
 
 
SSt to/ 
 
 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020198333 
 
TREATISE 
 
 ON 
 
 THE LAW OF 
 
 .y 
 
 EXECUTIONS 
 
 HENRY M. ^ERMAN 
 
 COUNSELLOR AT LAW 
 
 Ik 
 
 
 NEW YORK 
 JAMES COCKCROFT & COMPANY 
 
 1876 
 
A /g:s^2 — 
 
 Entered, according to act of Congress, in the year 1875, 
 
 By Henry M. Herman, 
 
 Id the office of the Librarist ot Congress, at Washington. 
 
TO THE HONORABLE 
 
 SAMUEL F. MILLER, LL.D., 
 
 ASSOCIATK JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, 
 
 AND PRESIDING JUDGE OF THE EIGHTH FEDERAL 
 
 JUDICIAL CIRCUIT, 
 
 FIRST AMONG AMERICAN JUDGES AND JURISTS, 
 
 THIS WORK IS DEDICATED. 
 
 Ill TESTIMONY OF PROFOUND VENERATION 
 
 FOR THOSE 
 
 GREAT GIFTS AND EMINENT ACQUIREMENTS, 
 
 BY WHICH 
 
 HB ADORNS THE JUDICIAL BENCH. 
 
B-^^^ff 
 
PREFACE. 
 
 The necessity for and utility of a work on so 
 important a branch of the Law, as that relating to 
 final process, has often occurred to the Author in 
 his practice. The only reason that suggested itself 
 to his mind why a work of this kind had not been 
 published, was, that the means for the enforcement 
 of all final adjudications, were, in the United States 
 as in England, governed solely by local Statutes. 
 As each State had its own code and mode of pro- 
 cedure, so it had its own mode of enforcing final 
 process ; and such modes were so varied, so unlike, 
 that it would be almost an impossibility to harmon- 
 ize and systematize the adjudications. The Author, 
 having occasion to examine many cases relating to 
 this branch of the Law, was surprised at the simi- 
 larity and unanimity, of the decisions, and upon 
 further investigation he ascertained, that the diversity 
 in the Statute Laws of England and the various 
 
IV PREFACK. 
 
 American States, would be of slight difficulty, and 
 scarcely an impediment in the preparation of a work 
 of this kind. The principles relating to final process, 
 in their results, are the same the world over. It is 
 the general method of obtaining the fruits of a judg- 
 ment, while a judgment may be the end of the Law 
 the process by which the benefits of that judgment 
 are obtained, is its crowning glory. The . statutory 
 requirements of the various States regulating the 
 manner of enforcing a judgment, and regulating pro- 
 ceedings upon execution, are far from uniform : yet, 
 while a great diversity exists in the mode, the result is 
 the same, viz., satisfaction ; whether obtained by the 
 peculiar process in the nature of an extent used in all 
 but one of the New England States, or by elegit, as 
 in Virginia, or on an ordinary fieri facias in the 
 other States. By. whatever term the writ is known, 
 by whatever steps it is executed, the same result is 
 obtained. " It is the life, end and fruit of the law, and 
 is preferred to all other processes." Its importance 
 nd effect have been greatly enlarged by statutory 
 enactments, with a view to increase its efficiency. 
 Property once beyond the reach of an ordinary writ 
 has been subjected to its effect. Property once liable 
 has been by an important and humane elenient of 
 American Law, withdrawn from its sweeping grasp ; 
 and the unfortunate debtor, and those dependent 
 upon him, are, in a measure, protected by the Exemp- 
 
PREFACE. V 
 
 tion Laws. The importance of a work of this kind, 
 in showing what an Execution is, its form and 
 validity, when it may and when it may not be issued, 
 the kind and nature of the property exempt from 
 Execution, and that liable to be taken in satisfaction 
 of a judgment, how and when executed, the necessary 
 and legal steps for the protection of the creditor, the 
 unfortunate debtor and the officer executing it, the 
 sale and its effects, the return of the writ, and the 
 proceedings after the return, as affecting purchasers 
 and others, — has convinced him that on no other 
 branch of the Law would a treatise be of greater 
 utility to the bench and the bar than one on Execu- 
 tions. It is believed that the present work is the 
 first attempt to present a concise and systematic view 
 oi the law relating to ^na/ process. It has been the 
 aim of the Author to embody in this work all of the 
 English and American decisions upon the subject, and 
 such of the statutory provisions as are applicable. 
 The Author, in his endeavor to harmonize and sys- 
 tematize the adjudications of England and America 
 upon this subject, has been compelled to condense 
 the subject-matter to a greater extent than was origi- 
 nally intended. He has laid down no principle, ad- 
 vanced no theory unsupported by authority. While 
 his opinions are not always in harmony with the 
 principles enunciated, he - has studiously refrained 
 from giving them, believing that " Siare Decisis " is 
 
VI PREFACE. 
 
 the safest principle. He has cited some unreportect 
 cases, and many from legal periodicals not yet pub- 
 lished in the regular reports. He has endeavored to 
 make the citations correct, but that there will be 
 errors and omissions can not be doubted from an 
 examination of the number of cases cited. In pre- 
 senting this work to that generous profession for 
 whose use it has been prepared, the Author trusts 
 that the errors and omissions will not be regarded as 
 impairing its value ; while if his efforts In its prepara- 
 tion will ma,terially lessen the arduous labors of an 
 overworked bench and bar, he will feel amply re- 
 warded for the labor its' preparation has imposed 
 
 upon him. 
 
 H. M. H. 
 
CONTENTS. 
 
 PART FIRST. 
 
 CHAPTER I. 
 
 ORIGIN AND NATURE OF THE WRIT OF EXECUTION. 
 
 PAGS 
 
 Signification and Derivation of the Term Execution. — What an Exe- 
 cution is. — When originated. — How Judgments were executed, 
 and Debts satisfied, in Ancient Times. — History of, under Civil 
 Law ; Common Law. — Kinds of Execution. — Of the Fieri Facias. 
 
 — Capias ad Satisfaciendum. — Elegit, Origin of. — Levari Facias. 
 
 — Extent. — Statute Merchant. — Statute Staple. — Scire Facias. — 
 Habere Facias Seisinam. — Habere Facias Possessionem. — Se- 
 questration. — Property subject to, in England. — Statutory Enact- 
 ments making Real and Personal Property subject to Execution. — 
 History of, in America I 
 
 CHAPTER n. 
 
 FORM AND CONTENTS OF AN EXECUTION. 
 
 What it must contain. — Of the Caption. — Mandatory Part. — Teste. 
 
 — Directions for Return. — Indorsement. — When regular. — When 
 irregular. — When voidable. — When void. — Executions in Actions 
 of Replevin. — Amending Executions. — How amended. — When 
 allowed. — What Defects cured. — Who may amend. — Effect of 
 Amendment 41 
 
 CHAPTER HI. 
 
 THE ISSUE OF AN EXECUTION. 
 
 Upon what Adjudications allowed. — When it may issue. — Who may 
 issue. — To whom it may issue. — Who may catise its Issue. — 
 Where it may issue. — When it cannot issue. — When it cannot 
 
 V 
 
vi CONTENTS. 
 
 issue without Leave of Court; without Revival. — Practice after 
 Death of Plaintiff; of Defendant. — Irregular Issue j voidable. — 
 Void Executions. — Executions in Attachment Suits 57 
 
 CHAPTER IV. 
 
 PROPERTY EXEMPT FROM EXECUTION. 
 
 Personal Property. — Homestead. — Exemption, when allowed. — Who 
 entitled to. - Householders, Heads of Families, who are ; who are 
 not. — How claimed. — How waived. — Statutory Enactments re- 
 lating to the various States. — Personal Property exempt, Nature 
 and Kind of. — Goods and Chattels. — Horses. — Cattle, &c. — 
 Farming Implements. — Household Furniture. — Provisions, &c. 
 
 — Wearing Apparel. — What is and is not exempt. — Homestead 
 Exemption. — How created. — Who entitled to. — How lost — How 
 retained. — Who may and may not claim. — What may and may 
 not be a Homestead. — Homestead Laws of the various States. — 
 What claims are superior to Homestead Claims. — Whatnot. . . 86 
 
 CHAPTER V. 
 
 PROPERTY SUBJECT TO EXECUTION. 
 
 Personal Property. — What is Property. — General Rule of Property 
 liable. — Personal Property liable in Preference to Real Estate. — 
 What is Personal Property. — Personal Property liable. — Property 
 fraudulently conveyed. — Pawned, Pledged, or Mortgaged Property. 
 
 — When Mortgages are fraudulent as to Creditors. — When and 
 where not liable. — Choses in Action, what are, when not liable, 
 when and where liable. — Money, when it is and is not liable. — 
 Crops and Emblements. — Fixtures, what are, are not, when and 
 how taken. — Movable or Trade Fixtures. — Terms or Estates for 
 Years. — Personal Property not liable to Execution 140 
 
 CHAPTER VI. 
 
 REAL ESTATE, LAND, OR REAL PROPERTY SUBJECT TO 
 
 EXECUTION. 
 
 Real Property, what it consists of. — General Rule of Property liable. 
 
 — Lands held by Tenants in Common. — Life Estate of Husband. — 
 Estates in Reversion or Remainder. — • Rights of Entry and Posses- 
 sion. — Lands held in Trust. — Interest of a Cestui que Trust and 
 
CONTENTS. 
 
 vu 
 
 Cestui que Use. — Land fraudulently conveyed. — Lands of Intes- 
 tates, &c. — Equity of Redemption. — Equitable Interests. — Inter- 
 est of a Purchaser before Title vests in him. — What Rights and 
 Interests are not liable to Sale. — Where they are not liable. . . .178 
 
 PART SECOND. 
 
 CHAPTER VII. 
 
 OF THE EXECUTION OF THE WRIT. 
 
 Who is to execute. — Who may not execute it. — When an Officer 
 may be compelled to execute a Writ. — Within what Time it must 
 be executed. — When it cannot be executed. — Who to execute 
 after the Expiration of Officer's Term. — Right of Plaintiff to con- 
 trol the Execution. — When it protects and justifies the Officer. — 
 When it does not — When the Plaintiff is liable. — Of the Author- 
 ity of Officers, in the Execution of Process, to break into Dwelling- 
 houses. — Indorsing Time of Receipt upon Writ. — When they 
 may be set off. 200 
 
 CHAPTER VIII. 
 
 OF THE LEVY ON PERSONAL PROPERTY. 
 
 What a Levy is. — Duty of Officer in Regard to Levy. — Executions 
 against Principal and Surety ; several Defendants. — How a Levy 
 is made. — What constitutes a valid Levy. — What is Evidence of 
 a Levy. — Right of Debtor to designate Property to be taken. — 
 What is a sufficient Levy as against Debtors, Third Persons. — 
 When a Levy will be sustained. — What will avoid it. — What is an 
 Invalid Levy. — What Levies are void. — Setting aside Levies. — 
 Excessive Levies, what are, what are not. — One Levy only allowed. 
 — When an Additional Levy may be made. — Effect of a Levy ; 
 vests Property in Officer ; Custody of Law. — When it enures to 
 other Writs. — Effect of a Release after Levy. — Effect of a Levy 
 as a Satisfaction of the Judgment. — When it is, when not. — Of 
 the Care of Property after Levy 237 
 
Viii CONTENTS. 
 
 CHAPTER IX. 
 
 MATTERS ARISING FROM LEVIES ON PERSONAL 
 PROPERTY. 
 
 Conflict between State and National Courts. — Qui prior, &c. — When 
 and how the Priority of an Execution Lien may be lost. — Requi- 
 sites necessary to suspend it as against other Creditors. — By 
 neglecting to levy. — Leaving Property in Debtor's Possession. — 
 As to what Time Personal Property is bound. — Date to which an 
 Execution relates so as to avoid any Alienation' by the Debtor. — 
 After-acquired Property, how it may become bound. — Priority of 
 Levies over Bankruptcy Proceedings. — Trial of the Right of Prop- 
 erty 259 
 
 CHAPTER X. 
 
 OF THE LEVY ON REAL ESTATE. 
 
 Of the Levy on Land. — When it may be taken. — ; How made. — 
 What is a good Levy. — An invalid Levy. — Levies that are void. 
 
 — Effect of a Levy. — The Mode of Procedure in the New England 
 States, by Extent, &c. — Practice in Virginia by Elegit. — West 
 Virginia. — Practice in the other States. — Of the Appraisement, in 
 the New England and other States. — Qualifications, Selection of 
 Appraisers, and Validity of Appraisement. — Of the Notice of Sale, 
 and Advertisement. — Place of Sale 287 
 
 CHAPTER XI. 
 
 OF THE SALE. 
 
 What is a Sale. — By whom to be made. — Essentials of a Sale. 
 
 How made. — For what made. — Amount of Property to be sold. 
 
 — Bidding at a Sale. — Proceedings under several Writs. — Who 
 may purchase. — Who may not purchase. — Proceedings in Case 
 of a Sacrifice. — Postponement of Sale. — Re-sale, when • allowed. 
 
 — Sale after Return Day. — After Death of Party. — Rule of Caveat 
 Emptor, when applicable. — When Purchaser may obtain Relief. 
 
 — Sale of Personal Property. — Sale under a Writ of Venditioni 
 Exponas. — Time and Place of Sale. — How it must be sold. — 
 Of the Title that passes by Sale. — Fraudulent Sales. — Sale of 
 Crops. — Sale of Mortgaged Personal Property 31 j 
 
CONTENTS. ix 
 
 CHAPTER XII. 
 
 SALE OF REAL PROPERTY. 
 
 Principles governing Sales of Real Estate. — How to be made. — 
 Who may waive the Statutory Requirements. — How it should be 
 sold. — Sale in Parcels, when to be made. — Sales en Masse, when 
 voidable. — When they will be sustained. — Sale of Property con- 
 veyed prior to Issue of Execution. — Sale in Inverse Order. — 
 Sale of Equity of Redemption. — Effect of Sale. — Title which Pur- 
 chaser obtains, in the various States, by Sale of Equitable Interests, 
 &c. — Application of the Statute of Frauds to Sales on Execution. 
 
 — When they are taken out of the Statute. — Application of Estop- 
 pels to Sales. — How and when applied 343 
 
 CHAPTER XIII. 
 OF THE RETURN. 
 
 What a Return is. — Return Day. — Returns to Writs of Execution. 
 
 — When an Execution is returnable. — Who to make a Return. — 
 What a Return should state. — What is a sufficient Return. — In- 
 sufficient Returns. — How a Return should be construed. — Nulla 
 Bona, when a proper Return. — False Return. — Return as Evi- 
 dence of Proceedings. — Conclusiveness of Return. — When not 
 conclusive. — When it may be contradicted by the Officer. — When 
 and where it is Prima Facie Evidence. — Of the Date of the Return. 
 
 — Lost Return. — When a Return will be quashed. — Amendment 
 of Return. — When allowed. — When not. — Effect of Amend- 
 ment 372 
 
 PART THIRD. 
 
 CHAPTER XIV. 
 
 PROCEEDINGS AFTER RETURN. 
 
 Protection to Parties in Cases of Irregularity. — Setting aside Sales. 
 — How set aside. — Causes for setting aside Sales. — Inadequacy 
 of Price as a Cause for setting aside Sales. — When no Cause. — 
 Fraudulent Sales. — Effect of setting aside Sales. — When a Sale 
 
 b 
 
CONTENTS. 
 
 is void, and no Title passes to a Purchaser. — Sales void for Want 
 of Jurisdiction. — Various Causes rendering Sales void. — Sales 
 made in other Modes than prescribed by Statute. — Sales void for 
 Uncertainty of Description. — When Sales will be sustained. . . 405 
 
 CHAPTER XV. 
 
 OF THE CONFIRMATION OF SALES. — CERTIFICATE OF SALE, 
 AND REDEMPTION FROM SALE. 
 
 Confirmation of Sale. — How made. — When to be confirmed. — 
 When not. — Effect of Confirmation. — Of the Certificate of Sale. 
 — When to be made. — To whom to be made. — Efiect of not exe- 
 cuting Certificate. — Of the Assignment of the Certificate. — Re- 
 demption from Sale. — Who antitled to redeem. — What necessary 
 to effect Redemption. — Statutory Provisions relating to Redemp- 
 tion of Real Estate after Sale on Execution 432 
 
 CHAPTER XVI. 
 
 OF THE PROCEEDS OF THE SALE, AND SATISFACTION OF 
 THE EXECUTION. 
 
 Duty of Officer to pay. — To whom to be paid. — Who entitled to the 
 Proceeds. — Duty of Officer with Respect to the Purchase Money. 
 — When the Senior Writ is entitled to the Proceeds. — Application 
 in Case of a Dormant Judgment. — When the Proceeds will be 
 equally distributed. — Assignee's Right to Proceeds. — Surety's 
 Right to Proceeds. — Proceeds in Cases where Indehmity is fur- 
 nished. — What Claims are entitled to a prior Distribution of Pro- 
 ceeds. — Of the Distribution of the Surplus. — When its Applica- 
 tion will and will not be directed by the Court. — Satisfaction of 
 Executions. — What is. — What is not. — Entering and vacating 
 Satisfaction aaa 
 
 CHAPTER XVn. 
 
 OF THE DEED. 
 
 Duty of Officer to make Deed. — When to be made. — Power to 
 make, how derived. — Title vests when Deed is made. — Who to 
 execute the Deed. — Who after Expiration of Officer's Term. — 
 Death of Officer. — To whom a Deed is to be made. — Of the Re- 
 o'tals in the Deed. — Acknowledgment of the Deed. — Validity of 
 
CONTENTS. xi 
 
 the Deed. — When the Deed i.s irregular and void. — Void for Un- 
 certainty in Description. — Variance. — Construction of the Deed. 
 
 — Capacity in which Officer acts in executing the Deed. — Effect 
 of the Deed. — As to the Time to which the Deed relates. — Deed 
 
 as Evidence. — Impeaching Deed , 467 
 
 CHAPTER XVIII. 
 
 OF THE RIGHTS OF PURCHASERS, WITH AND WITHOUT 
 
 NOTICE. 
 
 Purchasers, how they submit to the Jurisdiction of the Court. — Who 
 are Purchasers in Good Faith, or Bona Fide Purchasers, and Pur- 
 chasers with or without Notice, or Innocent Purchasers. — Of No-- 
 tice, what is. — What is not. — Actual Notice. — Constructive Notice. 
 
 — Lis Pendens as Notice. — What is equivalent to Notice. — Occu- 
 pation or Possession as Notice. — Recording and Registration of 
 Instruments as Notice. — When not Notice. — Judgments as No- 
 tice, and Prior Claims. — Purchaser with Notice, how affected. — 
 Effect whe>c a Purchaser has no Notice. — Effect of Failure to 
 record a Deed, as to subsequent Purchaser at Execution Sales. — 
 Of the Right of Purchasers to Relief. — Rights of Purchasers. — Of 
 Irregularities in the Proceedings, and how they affect Purchasers. 
 
 — Of the Effect of the Return upon a Purchaser's Title, and a Fail- 
 ure to return the Writ. — Rule in Regard to Returns in the New 
 England States on Extent. — Of the Presumptions in Favor of the 
 Regularity of the Proceedings of an Officer. — Omnia prsesumuntur 
 rite et solenniter esse acta. — Where a Purchaser becomes a Trus- 
 tee. — What passes at a Sale of Land on Execution. — What con- 
 stitutes a Purchaser's Title. — Rights of Debtor after Sale. . . .485 
 
 CHAPTER XIX. 
 OF THE WRIT OF POSSESSION AND ASSISTANCE. 
 
 When awarded. — Who entitled to. — Of the Execution of the Writ. 
 
 — When it is executed. — Of the Writ of Assistance. — When it 
 will issue. — How executed. — Who entitled to. — Setting it 
 aside, &c • ■ 529 
 
 CHAPTER XX. 
 
 EXECUTION AGAINST INDIVIDUAL PARTNERS, PARTNER- 
 SHIPS, AND CORPORATIONS. 
 
 Property liable to be taken on an Execution against an Individual 
 Partner. — English Rule. — Rule now applicable. — Levy, how 
 
Xii CONTENTS. 
 
 made. — Effect of a Levy. — Sale, how made. — Effect of Sale. — 
 Rights of Purchaser. — Rights of Solvent Partners. — Executions 
 in Favor of Firm Creditors. — Where there is a Special Partner. 
 — Executions against Corporations, how executed. — What Prop- 
 erty liable. — What not liable. — Rights of Purchasers. — Sale of 
 Stock, Shares, Franchises, &c. — Execution against Municipal Cor- 
 porations, how executed. — Exemptions. — Against Counties. — 
 Mandamus, &c 53^ 
 
 CHAPTER XXI. 
 
 OF THE CAPIAS AD SATISFACIENDUM, OR EXECUTIONS 
 AGAINST THE PERSON OF THE DEBTOR. 
 
 General Principles relating, to. — Form of. — Upon what Adjudica- 
 tions it may issue. — How executed. — What is an arrest. — How 
 made. — Of the Effect of an Arrest. — Effect of a Discharge after 
 Arrest. — Satisfaction. — No Satisfaction. — Escape from Arrest, 
 what is. — What is not. — Return of a Ca. Sa. — Attachment, what 
 it is. — When it issues 567 
 
 CHAPTER XXn. 
 
 EXECUTION OF FINAL PROCESS FROM UNITED STATES 
 
 COURTS. 
 
 Rules governing the Execution of Final Process in United States 
 Courts. — Statutory Enactments. — Sales, how made. — Under what 
 Laws. — Where Executions run to. — Proceedings in Cases where 
 the Government is Plaintiff. — No Uniformity of Practice. — Rez- 
 son therefor. — Final Process in Admiralty Courts. — Effect of 
 Sales thereunder. — When an Execution from an Admiralty Court 
 may be levied on Land, &c. — Stay of Execution. — Supersedeas. 
 
 — Requisites necessary to obtain - . 
 
 CHAPTER XXin. 
 
 STAYING, SUPERSEDING, ENJOINING, AND QUASHING 
 EXECUTIONS. 
 
 When they may be stayed. — Causes for staying. — Stay of Execu- 
 tion in Justices' Courts. — What will be sufficient. — Supersedeas. 
 
 — What it is. — Requisites of. — When it will be granted. — How 
 granted. — Effect of. - Of the Effect of a Reversal or Setting 
 
CONTENTS. xiii 
 
 Aside of a Judgment by an Appellate Court. — As to Purchasers, 
 with and without Notice. — Of Staying Proceedings by Injunctioii. 
 
 — When and for what Causes Injunctions will be granted. — Eflect 
 of an Injunction. — When an Injunction will not be granted. — Of 
 the Effect of the Dissolution of the Injunction. — When an Execu- 
 tion will be quashed. — Causes for quashing. — When it will not be. 
 
 — Eifect of 'quashing an Execution t.UA 
 
 CHAPTER XXIV. 
 
 OF THE LIABILITIES ATTACHED TO THE EXECUTION OF 
 FINAL PROCESS. 
 
 Liability for Negligence and Want of Skill. — For neglecting to levy. 
 -^ For failing to levy on Personal Property first. — What is suflS- 
 cient to show Negligence. — Negligence in the Care of Property 
 after Seizure. — Neglecting to sell. — Selling Property not subject 
 to Levy. — Failure to return a Writ qf Execution. — For false Re- 
 turn. — For refusing or neglecting to apply the Proceeds to Plain- 
 lifF's Judgment. — When guilty of Trespass, and when a Trespasser 
 ab Initio. — Abuse of Authority. — When other Parties equally 
 liable. — When an Officer will not be held responsible for Irregular- 
 ities ^3 
 
TABLE OF CASES CITED. 
 
 Abat V. Whitman, 575 
 
 Abbe V. Ward 81, 422 
 
 Abbey v. Commercial Banlc, . 68 
 Abbott V. CrocHer, . . . 606, 609 
 
 V. Osgood, 575 
 
 V. Shepard, . . . 421, 422 
 V. Sturtevant, .... 356 
 
 V. Tucker, 569 
 
 Abby V. Dewey, 407 
 
 Abell, In re, 540 
 
 Abells V. Westervelt, 49, 53, 429, 522 
 Abercrombie v. Alderson, 89, 177 
 
 • 384 
 
 407 
 
 . . 601 
 258, 542 
 174, 17s 
 
 V. Chandler, 
 
 V. Conner, . 
 
 V. Hall, 329, 419, 420 
 
 Abney v. Kingsland, .... 340 
 
 Abraham v. Pugh, . 
 
 Acker v. Burrall, . 
 
 V. Campbell, , 
 
 V. Ledyard, . 
 
 V. White, . . 
 
 Ackley v. Chamberlain, 
 
 Acton V. Knowles, . 
 
 Ackworth v. Kemp, 
 
 Adair v. McDaniel, 
 
 V. Shaw, . . 
 
 Adams v. Buchanan, 
 
 V. Clifton, . 
 
 v^ Crumacher, 
 
 V. Cumisky, 
 
 ' ^'. Drake, . 
 
 . . 446 
 283, 284 
 , 93, 13s. 420 
 . 272 
 . 636 
 . 270 
 . 502 
 
 ■ 483 
 . 408 
 . 460 
 
 • 374 
 . 462 
 
 Adams v. Dyer, . 
 V. French, 
 V. Gorham, 
 V. Hackett, 
 V. Haskell, 
 V. Jenkins, . 
 V. Keeler, . 
 V. Kiser, . 349, 
 Kleckley, 
 Law, . . 
 Paige, . . 
 Quigley, . 
 Robinson, 
 Secor, 
 Smallwood, 
 Smith, 
 Smith, . 
 V. Tanner, . 
 V. Ward, . . 
 Adamson v. Cumming«, 
 Addington v. Etheridge, 
 Addison v. Crow, . . 
 Adler v. Sewell, . . . 
 iEtna Ins. Co. v. Miers, 
 Agricultural Bank v. Fallen, 
 Aikin v. Bruen, . . , 
 Ainsworth v. Dean, 
 
 V. Greenlie, 
 Aireton v. Davis, . , 
 Aitkenhead v. Blades, , 
 
 FAGB 
 . 264 
 
 . 172 
 
 • 542 
 144, 156 
 
 • 413 
 . 123 
 .462 
 
 350, 423, 424 
 ■ 314 
 
 395' 
 
 Albany City Bank v. Dorr, 212, 391 
 
 Albee v. Ward, . . 
 V. Webster, . 
 
 XV 
 
 593 
 S4I 
 116 
 
 399 
 
 418 
 
 620 
 
 161, 163 
 
 i', 401, 421 
 
 154 
 569 
 
 152 
 356, 423 
 371 
 364, 5" 
 352 
 352 
 306 
 
 zyi 
 
 629 
 
 629, 637 
 
 . 52,81 
 636, 640 
 
XVI 
 
 TABLE OF CASES CITED. 
 
 Albertson v. Goldsby, 
 Albright v. Tapscott, 
 Alden v. Clark, . . 
 
 V. Woods, 
 Alderson v. Bell, 
 Aldis V. Burdick, 
 Aldred v. Constable, 
 
 . . 272 
 . . 388 
 . . 76 
 • • 59 
 404, S^7 
 296, 304, 382 
 251, 315. 316, 
 336, 629, 638 
 . • 173,353 
 412, 417, 418 
 
 Aldrich V. Cooper, . 
 V. Maitland, 
 
 V. Parsons, 145 
 
 V. Wallace, 545 
 
 Alenbaugh v. Umbehauer, . . 344 
 
 Alexander V. Hoyt, 213 
 
 V. Merry, . . 400, 481 
 V. Miller, 49, 290, 317, 345 
 V. Pendleton, . . . 504 
 V. Polk, . 254, 256, 461 
 V. Tarns, .... 194 
 V. Springs, . . 24s, 251 
 
 Algar V. Murrell, 609 
 
 Alkord V. Lent 87 
 
 AUemong v. Allison, . . 450, 451 
 
 Allen V. Allen, 166 
 
 V. Anthony, 497 
 
 V. Berry, 186 
 
 V. Burbank, 354 
 
 V. Clarke, 352 
 
 V. Cole 310, 323 
 
 V. Cooke, .... 122, 136 
 V. Gault, .."■.... 480 
 
 V. Gordon, 146 
 
 V. Gray, 394 
 
 V. Greenlie, . 203, 218, 219 
 
 V. Grimble, 474 
 
 V. Harley, 138 
 
 In re 280 
 
 V. Johnson, ... 78, 214 
 V. McCalla, 233, 234, 235, 491 
 
 V. Martin, 390 
 
 V. Parrish, . . 189,514,526 
 V. Plummer, . . . 449, 451 
 V. Portland Stage Co., 50, 514 
 V. Riston, 391 
 
 Allen V. Rives, 7^ 
 
 V. Sales, . ... . . .471' 
 
 V. Sanders, . . . 192, 194 
 
 V. Smith, 85 
 
 V. Stephanes, . . 412, 417 
 
 V. Taft, 290 
 
 V. Thayer, 304 
 
 V. Trimble, 474 
 
 V. Wells, . 538, 540, 544, 549 
 Allen's Lessee v. Parish, . . . 303 
 
 Allender v. Riston, 391 
 
 Allentown Bank v. Beck, . . 339 
 
 Alley V. Bay 136 
 
 V. Carroll, . . 252, 275, 426 
 Allis V. Sabin, .... 412, 413 
 
 Allison V. Gregory, 192 
 
 V. King, 157 
 
 V. Taylor, 238 
 
 Allman v. Gann, 116 
 
 Allyn V. Burbank 354 
 
 Alston V. Clay, 159 
 
 V. Foster, 175 
 
 V. Mumford, . . 173, 353 
 
 Altm^n V. Johnson, 65 
 
 Alverson v. Jones, 614 
 
 Alvord V. Lent, 
 
 87 
 
 Alworth V. Kemp, 394 
 
 Amant v. Turnpike Co., . . . 552 
 
 Amelia, The, 590 
 
 Am. Ex. Bank v. Morris Canal 
 
 Co. 84, 203, 277 
 
 Am. Ins. Co. v. Oakley, . 347, 410, 
 
 412, 416, 419, 430 
 
 Ames V. Martin 116 
 
 V. Taylor, . . 
 
 
 . . 238 
 
 V. Wentworth, 
 
 
 280, 282 
 
 Annis v. Smith, . . 
 
 
 . . 586 
 
 Anderson v. Austin, 
 
 
 • • 349 
 
 V. Biddle, 
 
 
 . . 611 
 
 V. Brown, 
 
 
 . . 469 
 
 V. Clark, 484, 514, 515,522 
 
 V. Cunningham, . . 384 
 
 V. Foulk, 330, 407, 409, 41 S 
 
 V. HoUoman 
 
 , 
 
 . . .511 
 
TABLE OF CASES CITED. 
 
 xvn 
 
 Anderson v. Nicholas, 
 V. Roberts, . 
 V. Valentine, 
 
 Andress v. Broughton, 207, 626, 638 
 
 V. Crawford, 
 V. Roberts, 
 Andrew v. Flemming, 
 
 V. Scetton, . 
 Andrews v. Brooks, 
 V. Diggs, . 
 V. Holson, 
 V. Keep, . 
 V. Keith, . 
 V. Harris, 
 V. Murphy, . 
 V. Richardson, 
 
 78 
 186 
 
 339 
 
 • 39S 
 53, 26s 
 35. 142 
 
 • 434 
 
 • 340 
 . 282 
 
 • 407 
 623, 625, 628 
 538, 542, 546 
 
 . . . 217 
 
 ... 360 
 
 508, 509, 
 
 510, S'5 
 V. Sanderson, ... 59 
 
 V. Wall 590 
 
 V. Wilkes 451 
 
 Angell V. fiowler, 391 
 
 Angier v. Ash, 391 
 
 V. SchiefFelin, .... 495 
 Ankettell v. Torrey, .... 464 
 
 Annais's Appeal, 458 
 
 Annin v. Annin, 187 
 
 Anonymous Cases, . 52, 53, 55, 202, 
 
 207, 391, 620 
 
 Anshutz V. McClelland, . . . 359 
 
 Anthony v. Haney, . . 
 
 V. Rodgers, . 
 
 V. Shaw, . . 
 
 V. Wessell, 
 Antone v. Belknap, 
 Antweather v. Mathiot, 
 Applegate v. Mason, , 
 Applegarth v. Russell, 
 
 . . 168 
 
 ■ • 193 
 , . 150 
 468, 470, 481 
 . . 167 
 193, 195 
 173, 353 
 • • 535 
 
 Arberry v. Noland, 231, 262, 263, 449 
 
 Argenbright v. Campbell, 
 Arick V. Walsh, . . 
 Armistead v. Philpot, 
 Armont v. Cloud, . 
 Armour v. Cochrane, 
 Armes v. Taylor, . . 
 
 503 
 391 
 158 
 462 
 
 590 
 238 
 
 Arms V. Burt, 290 
 
 Armstrong v. Dubo's, . . . 219 
 V. Garrow, 210, 392, 395, 
 
 445,633 
 V. Grant, .... 207 
 
 V. Harvey 284 
 
 V. Jackson, 268, 484, 514 
 
 V. McClure, . . . 510 
 
 V. McCoy, .... 472 
 
 V. Pierson, . . . 438 
 
 V. Rickey Bros., 280, 393 
 
 V. Tuttle, . . . .152 
 
 V. Vrooraan, . 318, 325, 
 
 326, 368 
 
 Ames V. Westbrook, . . 280, 282 
 
 Arnet v. Cloud, .... 204, 205 
 
 Arnold v. Bell, 265 
 
 V. Commonwealth, 202, 627 
 
 V. Dismore, . . . .310 
 
 V. Fuller's Heirs, 61, 73, 77, 
 
 236, 240 
 
 V. Nye, 44, 55 
 
 V. Ridge, 564 
 
 V. Ruggle's, 561 
 
 V. Smith, 368 
 
 V. Steeves, 570 
 
 V. Weatherby, .... 54 
 
 Amot V. Beadle, 265 
 
 V. Cloud, .... 204, 205 
 Arnull V. Weatherby, .... 54 
 Arny v. Supervisors, ... . . 565 
 Arrendale v. Morgan, . . 330, 360 
 Arrington v. Sledge, . . 599, 603 
 Arthur v. Com., &c.. Bank, 550, 551 
 Artisans' Bank v. Treadwell, 234, 235 
 
 Ash v. Livingston, 500 
 
 v. Putnam, 175 
 
 Ashbee v. Cowell, 412 
 
 Asher v. Fredenstein, .... 500 
 
 Ashbey v. Abney, 483 
 
 Ashby V. Cornell, 412 
 
 V. Cunningham, . . . 494 
 
 V. Gill 230 
 
 Ashlee V. Bailey, 491 
 
XVlll 
 
 TABLE OF CASES CITED. 
 
 Ashley v. Abner, 483 
 
 Ashman v. Wilh'ams, .... 145 
 Ashurst V. Phillips, .... 597 
 Ashworth V. Uxbridge, . . . 449 
 Aspinwall v. L. & N. R. R. Co., 544 
 
 I Astor V. Wells 491 
 
 Atherton v. Fowler, .... 62 
 
 Atkins's Appeal 458 
 
 Atkins V. Bean, .... 197, 292 
 V. Kinnan, . . . 306, 344 
 
 V. Mooney, 450 
 
 V. Sawyer, 190 
 
 Atkinson v. Cooper, . . 445, 462 
 
 V. Cox 610 
 
 V. Farmer, .... 461 
 V. Catcher, . 50, 88, 1 14, 
 214, 630 
 V. Micheux, .... 214 
 V. Newton, ... 54, 55 
 
 V. Purdy 280 
 
 V. Railroad Co., 551, 552 
 
 V. Rhea, . . . 397, 400 
 
 V. Richardson, 67, 325, 386 
 
 Att'y Gen'l v. Corporation, &c., 496 
 
 V. Day 367 
 
 V. Grover, . . .491 
 
 V. Stephens, 493, 496, 503 
 
 V. Tyndall, . 173,353 
 
 Atwater v. Woodbridge, . . . 566 
 
 Atwood V. Impsen, 541 
 
 V. Meredith, 538, 540, 541, 
 
 545, 546 
 V. Pierson, . . . 245,251 
 
 Austin V. Davy, 601 
 
 V. Figuera 385 
 
 V. Goodale, . . . . .401 
 V. Sawyer, . . . 161, 341 
 
 V. Soule 310 
 
 V. Stanley, . . . 125, 139 
 
 V. Sevank, 112 
 
 V. Tilden, 330 
 
 V. Underwood . . . .138 
 
 Autry V. Waters 333 
 
 Avant V. Reed 330 
 
 Averett v. Thompst^n, . . 187, 214 
 Averill v. Loucks, . . . 457, 544 
 
 Avery v. Babcock, 597 
 
 V. Bowman, 49, 242, 243, 295, 
 296, 379, 398, 400, 520 
 
 V. Cheslyn, 170 
 
 V. Fallen, . . . 173, 353 
 
 V. Rose, 420 
 
 Awood V. Impsen, 541 
 
 Aycock V. Harrison, . 78, 328, 383 
 
 Ayres v. Ayden, 544 
 
 V. Baumgartner, . 412, 432 
 V. Campbell, .... 436 
 V. Duprey, 390, 403, 487, 488, 
 
 504, 505- 517 
 
 V. N. W. R. R. Co., . .156 
 
 Azcarati v. Fitzsimmons, . . 69 
 
 B. 
 
 Baasen v. Eilers, . . 
 
 Babb V. Clemsen, . . 
 
 V. Perley, . . . 
 
 Babcock v. Doe, . . 
 
 V. McCamant, 
 
 V. Perry, . . 
 
 Baben v. McClellan, . 
 
 Babo V. Grimke, . ■ . 
 
 Bach V. Goodrich, . . 
 
 Bachman v. Crawford, 
 
 Backhurst v. Clinkard, I 
 
 Backus V. Danforth, 
 
 Bacon v. Bassett, 
 
 V. Bevan, . 
 
 V. Cropsey, 
 
 V. Kimmel, 
 
 V. Red, . 
 Badlam v. Tucker, 
 Bagby v. Reeves, 
 Bagley v. Bailey, 
 
 V. Reeves, 
 
 V.Ward, . 
 Baham v. Langfield, 
 Bailey v. Bailey, 
 
 17^ 
 
 185 
 
 409 
 
 151 
 182 
 308, 309 
 80 
 
 349 
 SOI 
 
 175 
 
 >:-> 
 
 90 
 
 , 546, 549 
 
 237 
 
 398 
 
 385 
 
 625 
 
 • 369 
 . 69 
 
 54, 285 
 
 ■ 449 
 
 89, 192 
 
 • 449 
 293, 453 
 
 477 
 426 
 
 SI, 
 
TABLE OF CASES CITED. 
 
 Baily v. Bates, .... 222, 283 
 
 V. Burton 150, 151 
 
 V. Kimball, 575 
 
 V. Morgan, 320 
 
 V. Richardson, .... 497 
 V. Strohecker, .... 563 
 
 V. Tipton 636, 638 
 
 V. White 502 
 
 V. Wilson, 502 
 
 Bain v. Chrisman, 42 
 
 V. Lyle, 271 
 
 V. Moore, 276 
 
 V. Williams, 173 
 
 Bair v. Steinman, 92 
 
 Baird v. Baird 493 
 
 V. Kirtland, 38 
 
 V. Lent, 308 
 
 Baker's Appeal, 545 
 
 Baker v. Bliss, 495 
 
 V. Chester Gas Co. . . 346 
 
 V. Clepper 412 
 
 V. Cooper, 486 
 
 V. Copenbarger, . . .184 
 
 V. Curtis, 616 
 
 y. Davis, . . .56, 3°S> 399 
 
 V. Dobyns, 486 
 
 V. Duffie, . . . . . . 397 
 
 V. Johnson, 178 
 
 V. Kenworthy, . . 159, 634 
 V. McClellan, .... joi 
 V. McDuffie, . . . 394, 398 
 
 V. Miller 245 
 
 V. Read, 407 
 
 V. Smith, 54, 56 
 
 V. Tynte, 562 
 
 V. Webb, 187 
 
 Bakewell v. Ellsworth, . 153, 341 
 Baldwin v. Jenkins, . . . .190 
 V. Johnson, .... 502 
 V. Kimmel, .... 369 
 v.. Left witch, . . .501 
 V. Marshall, .... 499 
 
 V. Merrill, 450 
 
 V. Richardson, . . . 502 
 
 Baldwin v. Whiting, 180, 197, 292 
 V. Whittier, . . . .214 
 
 Balch V. Pattee 237 
 
 Bales V. Wingfield, . . 625, 629 
 Balgney v. Hamilton, .... 148 
 
 Ball V. Lively, 531 
 
 V. Loomis, 638 
 
 V. Pratt 22 r, 360 
 
 V. Ryers, 457 
 
 V. Shell, ... 51, 52, 69, 272 
 
 Ballam v. Price, . . . 575, 576 
 
 Ballance v. Forsythe, . . 427, 475 
 
 V. Loomis, .... 616 
 
 Ballantine v. Beal, 575 
 
 Ballard v. Anderson, . . ijo, 415 
 v. Hinckley, .... 356 
 
 V. Waller, 157 
 
 v. Whitlock, 207, 314, 603 
 
 Baltes V. Ripp, 155 
 
 Bamford v. Mellville, . . 306, 391 
 Bancroft v. Coulsen, .... 495 
 
 Bangor v. Warren, 196 
 
 Bangs V. Strong, 252 
 
 Bank v. Beale 575 
 
 V. Campbell, . . . 500, 631 
 
 V. Dundas, 352 
 
 V. Eastman, . . . 296, 391 
 
 V. Fordyce, 252 
 
 V. Gourdin, 500 
 
 V. Patten, 498 
 
 V. Patterson 456 
 
 V. PuUen, 387 
 
 V. Rogers, 255 
 
 V. Schultz 615 
 
 V. Taylor, 412 
 
 V. Tome 372 
 
 V. Wilkins, 538, 540, 545, 548 
 Banker v. Caldwell, . . . .145 
 Bank of America V. Pollock, . 148 
 Canton v. Columbus 
 
 Bank, 185 
 
 Cape Fear v. Stafford, 67 
 Chester v. Ratson, . .60 
 Commerce V. Union B'k, 507 
 
XX 
 
 TABLE OF CASES CITED. 
 
 Bank of Hamburg v. Howard, . 352 
 Kentucky v. Lacy, . . 53 
 Lansingburg v. Crary, 161, 
 165, 166, 248 
 Mississippi v. Catlett, . 68 
 Missouri v. Bates, . . 474 
 V. Wells, 249, 480 
 Monroe, In re, . 437, 438 
 Newbern v. Bullen, . 630 
 Newberry v. Baldwin, . 630 
 New Brunswick v. Has- 
 
 sitt, 412 
 
 Orange Co. v. Wakeman, 
 
 395> 45° 
 Rochester v. Emmerson, 62 
 Rome v.- Curtis, . 230, 630 
 Rutland v. Parsons, . 204 
 St. Mary's v. St. John, 551 
 Tennessee v. Beatty, 207, 
 
 314, 425 
 
 V. Horn, 93, 586 
 
 V. Turney, 256, 
 
 257 
 
 U. S. V. Bank, &c. . . 606 
 
 V. Dandridge, . 521 
 
 V. Davis, . . . 491 
 
 V. Halstead, 93, 585, 
 
 586 
 
 V. Planters' Bank, 563 
 
 V. Shultz, . . .615 
 
 V. Tyler, . 35, 482 
 
 V. White, . . . 526 
 
 Vergennes v. Warren, 439, 
 
 470, 471 
 Whitehall v. Rettes, 203 
 
 Bank, &c., V. Ault, 465 
 
 V. Bray, . . 327, 422 
 V. Union Bank, . . 507 
 
 Banks v. Ammon, 
 
 497 
 
 V. Bales 350 
 
 V. Evans, 234, 250, 255, 320, 
 
 424 
 
 Banning v. Armstrong, . . . 310 
 
 Bannister v. Higginson, 296, 304, 399 
 
 Bannon v. Rathbone, .... 69 
 Banta v. McClellan, .... 255 
 
 V. Snapp, 462 
 
 Bantleon v. Smith 359 
 
 Bantz V. Price 141 
 
 Barada v. Inhabitants, &c. . . 460 
 Barber v. Hartford Bank, , 540, 545 
 
 V. Lyon, 148 
 
 V. Reynolds, 255, 256, 489 
 
 V. Root 181, 183 
 
 Bard v. Dansdale 182 
 
 Barham v. Massey, .... 273 
 
 Barker v. Bell, 190 
 
 V. Binninger, 234, 235, 244, 
 
 398 
 V. Braham, . . . 213, 218 
 
 V. Dayton, 000 
 
 V. Goodair, 545 
 
 V. Grelier, 458 
 
 V. Miller, 245 
 
 V. Russell, ..... 569 
 V. St. Quintin, . . 64, 627 
 
 V. Stetson, 218 
 
 Barkley V. Screven, . . 484,514 
 Barley v. Tipton, . . . 636, 638 
 Barman v. Carhartt, .... 483 
 
 Barnaby's Case, 573 
 
 Barnard v. Fisher, . . . 305, 306 
 
 V. Kobbe, :>t, 
 
 V. Leigh, . 342, 349, 377 
 
 V. Russell, 293 
 
 V. Stevens, .... 209 
 
 V. Ward 623 
 
 Barnes's Appeal, 180 
 
 Barnes v. Barber, 214 
 
 V. Barnes, 518 
 
 V. Billington, 234, 235, 238, 
 272 
 
 V. Canning, 493 
 
 V. Gay 138 
 
 V. Haynes, . . , . . 264 
 
 V. Harris, 214 
 
 V. Keilinger, .... 435 
 V. McChristie, . . 490, 491 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Barnes v. Meads, . 
 V. Robinson, 
 V. Thompson, 
 V. Williams, 
 
 Barnett v. Fergus, . 
 
 Barney v. Leeds, 
 
 V. Littell, . 
 V. Meyers, . 
 V. Patterson, 
 
 90, 
 
 418 
 604 
 386 
 
 3S3 
 152 
 120 
 . . 498 
 3S2, 353 
 37, 327, 366, 
 367, 518, 606 
 
 V. Weeks, 392 
 
 Barnhart v. Greenshields, . . 491 
 
 Barr V. Doe 172 
 
 V. McGregor, 598 
 
 Barrack v. Newton, .... 577 
 
 Barrett v. Cole, 153 
 
 V. Copeland, 202, 390, 392, 
 396 
 
 V. Crane 215 
 
 V. Porter, . . 
 
 V. Pritchard, . 
 
 V. Thompson, . 
 
 V. White, . . 
 
 Barrie v. Dana, . . . 
 
 V. Lyle, . . . 
 
 Barrington v. Alexander, 
 
 Barrow v. Coles, . . 
 
 V. Robidaux, . 
 
 V. Turner, . . 
 
 V. West, . . 
 
 Bartlett v. Gale, . . . 
 
 V. Glassock, . 
 
 Harlow, 180, 197, 292, 360 
 
 , Judd, . . . 
 
 Pentland, . 
 
 Perkins, 
 
 Sawyer, . . 
 
 Williams, . 
 
 , Wood, . . 
 
 Bartholomew v. Hook, 
 
 V. West, 
 
 Barton v. Gill, . . . 
 
 V. Lockhart, 396, 464, 522 
 V. Rushton, 194 
 
 296, 306 
 
 • I7S 
 
 • 2SS 
 
 63s, 637 
 . 61 
 . 283 
 . 618 
 
 . 17s 
 
 . 610 
 . 148 
 
 • 589 
 
 457, 501 
 490, 49S 
 
 • 477 
 
 • SO 
 . 296 
 . 466 
 . 152 
 
 71, 524 
 . 288 
 . 126 
 
 • 383 
 
 Baskerville v. Brockett, . . . 275 
 Bassett V. Daniels, 252, 421, 601 
 
 V. Lockett, 330 
 
 V. Salter, 575 
 
 Bastard v. Trutch, 46 
 
 Barsten v. Gutch, 67 
 
 Batchelder v. Currier, .... 219 
 Batchelor v. Vyse, . 316, 629, 638 
 Bates V. Bank of Missouri, . . 476 
 
 V. Carter, 518 
 
 V. Guest, 245 
 
 V. James, 549 
 
 V. Lilly, .... 459, 460 
 
 V. Moore, 276 
 
 V. Norcross, 498 
 
 V. Ruddick 352 
 
 Batsdorf v. Focht, 252 
 
 Baugh V. Kirkpatrick, . . .153 
 Bauskett v. Holsonback, . . 19S 
 
 Baxter v. Dean, 136 
 
 Bay V. Gilleland, 407 
 
 Bayard's Appeal, 553 
 
 Bayard v. Hoffman, . . . .152 
 
 V. Lombard, . . 93, 586 
 
 Bayley v. Bates, .... 222, 387 
 
 V. French, . . . 253, 273 
 
 V. White, 273 
 
 Baynard v. Norris, 502 
 
 Baze V. Arper, 488 
 
 Beach v. Dennis, 82 
 
 V. Truman, 213 
 
 V. Vandenburg, . . . 206 
 
 V. Walker, 295 
 
 Beaden v. King, 407 
 
 Beal V. Diggs, 145 
 
 V. King, .... 44> 423 
 V. Osbourne, . . . 187, 233 
 
 Beale v. Bolton, 464 
 
 Bean v. Parker, .... 391, 396 
 
 V. Smith, .... 152, 263 
 
 Bear v. Pitzer, .... 341, 524 
 
 Beard v. Sinnot, 429 
 
 Beardsley V. Ontario Bank, 170,561 
 V. Smith, .... 566 
 
Tcxn 
 
 TABLE OF CASES CITED. 
 
 Bearfield v. Stevens, . . 474, 514 
 
 Bearly v. Cox 163, 167 
 
 Beasly v. Dunn, 51, 81,218, 423, 424 
 Beattie v. Robbins, .... 381 
 
 Beatty v. Perkins, 208 
 
 Beauchamp v. Chachere, . .174 
 
 Beauregard v. New Orleans, . 94, 
 
 S17, 520, 586, 589, 590 
 
 Bechtel's Appeal, 112 
 
 Beck V. Rebow, 169 
 
 Becker v. Becker, 73, 116, 122, 328 
 
 In re, 440, 517 
 
 V. Torrance, . . 263, 269 
 Beckerdite v. Arnold, .... 264 
 
 Beckford v. Wilts, 631 
 
 Bedell v. Loomis 412 
 
 Beebe v. Findley, 67 
 
 V. Steele, 636 
 
 Beecher v. Baldy, 93, 135, 137, 420 
 
 Befegle V. Wentz, 88 
 
 Beekman's Appeal, . . 417, 459 
 Beekman v. Bemis, .... 601 
 
 V. Bunn, 440 
 
 V. Lansing, 234, 235, 238, 
 
 258 
 
 Beeler v. Bullitt, 512, 514, 515, 627 
 
 Beers v. Bemis, 601 
 
 V. Botsford, 189 
 
 V. Dawson, . . . 152, 285 
 V. Houghton, . . 584, 586 
 
 V. Place, 297 
 
 Beesley v. Lawrence, . . 173, 353 
 
 Bedford v. Hunt, 263 
 
 Bevine v. Mower, 453 
 
 Bertensharf v. Mofett, . . .412 
 Belcher v. Brown, . ' . . . . 640 
 
 Belfast, The, 589 
 
 Bell V. Blaney, ....... 498 
 
 V. Chandler, 420 
 
 V.' Clarkj 306 
 
 V. Commonwealth, . . .189 
 
 V. Davis, 92 
 
 V. Dawson, .... 427, 475 
 V. Evans 499 
 
 R. 
 
 Co, 
 
 . 611 
 . 296 
 
 . 386 
 • 259 
 
 , 247, 260' 
 
 640 
 
 625 
 
 496. 
 327 
 
 , 74, 76 
 
 639- 
 202, 602, 637 
 125 
 
 71 
 
 Bell V. Greenwood, 
 V. Ham, . 
 V. King, . 
 V. L. & T. Co., . 
 V. Na. & S. R. 
 V. North, 
 V. Roberts, . 
 V. Twilight, . 
 Bellingall v. Duncan, 
 Bellinger v. Ford, 
 Bellows v. Allen, 
 Belshan v. Marshall, 
 Benedict v. Burnell, 
 
 V. Butterfield, 
 
 v. Gilman, 
 
 v. Heinberg, 
 
 Benjamin v. Armstrong, 
 
 V. Hathaway, 
 
 v. Smith, . 268, 272, 274 
 
 Bennett v. Calhoun, &c.. Ass., 501 
 
 V. Child, 88, 137, 181, 182, 
 
 435, 447 
 
 V. Gamble, 
 
 v. McFadden, 
 
 v. McGrade, . 
 
 v. Morehouse, 
 
 v. Taylor, . . 
 
 v. Union Bank, 
 
 v. Van Sickle, 
 
 v. Vincent, 
 Benningsfield v. Reed, • 
 Benson's Appeal, . . 
 Benson v. Berry, . . 
 
 V. Ela, . . . 
 
 v. Smith, 343, 344, 433, 482, 
 
 S19, 525 
 
 Bent V. Cobb, 367 
 
 Bentley v. Cummins, 76, 409, 420, 
 619, 62a 
 
 Benton v. Shreve, 412 
 
 V. Wood, . . . 349, 350 
 Benz V. Hines, .... 407, 434 
 Bergin v. Haywood, . . . .213 
 Bernal v. Glein, . 468, 474, 5261 
 
 31S 
 188 
 
 391 
 
 370, 403. 
 . . 614 
 256, 257 
 
 • 353 
 
 ■ 599^ 
 
 • 151 
 . 66 
 
 •383. 
 . S12 
 
 ■ 458- 
 245, 271 
 . . 548 
 
TABLE OF CASES CITED. 
 
 XXllJ 
 
 Bernard v. Hovious, .... 542 
 
 Bernstein, In re, 280 
 
 Berry v. Griffith, . 314, 336, 347, 
 
 379. 382 
 V. Kelly, .... 540, 548 
 V. Mutual Ins. Co., . . 498 
 
 V. Riley 403 
 
 V. Smith, 272 
 
 V. Spear, 399 
 
 Bershears v. Warner, .... 376 
 
 Berthon v. Kelly, 55 
 
 Besson v. Garrett, 388 
 
 Bessy v. Wyndham, .... 283 
 
 Best V. Lawson, 226 
 
 Bethel v. Sharp, . . 407, 414, 417 
 
 Bettis V. Taylor, 285 
 
 Bettison v. Budd, 383, 474, 483, 519 
 
 Bevan v. AUee, 541 
 
 V. Byrd, 341 
 
 V. Hayden, . . . .87,17; 
 
 V. Lewis, 545 
 
 Bevans v. Bolton, 149 
 
 V. State, 389 
 
 Beverly v. Beverly, . . . . 45, 62 
 
 V. Brooke 353 
 
 V. Burke, 483 
 
 Bevitt V. Crandall, . . . 116,117 
 
 Beynon v. Garratt, 388 
 
 Bias v. Vance, .... 421, 422 
 
 Bicker v. Terrell, 73 
 
 Bickerstaffv. Doub, . . 175, 214 
 Bicknell v. Wetherell, .... 53 
 
 Biddle v. Moore, 493 
 
 Bidwell v. Coleman, 289, 435, 496 
 
 Bigelow V. Cong. Society, . .197 
 
 V. Finch, . 172, 194, 197, 
 
 420, 606 
 
 V. Jones, . ... . . 296 
 
 V. Provost, 206 
 
 V. Stearns 218 
 
 V. Wilson, 192 
 
 Bigley v. Risher, . 315, 325, 336 
 Bilderback v. Moore, .... 603 
 Billings's Appeal, 4S7 
 
 533. 
 
 216 
 418 
 256 
 254 
 330 
 273 
 69 
 
 535 
 493 
 
 542, 
 546 
 
 Billings V. Russell, . 
 Billington v. Forbes, 
 Binford v. Alston, . 
 Bingaman v. Hyatt, 
 Bingham v. Maxey, 
 v. Young, . 
 Bird v. Stone, . . 
 Birdsall v. Phillips, . 
 V. Russell, . 
 Birdseye v. Ray, 247, 273, 490, 
 
 545: 
 
 Birdwell v. Cain, 453 
 
 Bisbee v. Hall, . . 172, 599, 603 
 
 Biscoe v. Royston, 199 
 
 v. Sandifur, . . . 252, 256 
 
 Bishop V. Best, 604 
 
 V. Bishop, 165 
 
 V. Gregory, 505 
 
 V. Spruance, .... 78 
 
 V. White, 223 
 
 &c., V. Paine, .... 493 
 
 Bissell V. Kipp, 53, 54 
 
 V. Mooney, 381 
 
 Biting's Appeal, 457 
 
 Bitting V. Vanderbergh, . . .113 
 
 Bittinger v. Baker, 524 
 
 Bivins v. State, 306 
 
 Bizzell v. Hardaway, .... 453 
 
 Bixley v. Meade, 414 
 
 Black V. Curran, 122 
 
 v. Nettles 243 
 
 V. Planters' Bank, ... 75 
 
 ' V. Steel 187 
 
 V. Wistar, 53 
 
 Blackburn v. Jackson, .... 256 
 V. Stupart, 463, 574, 575 
 Blackley v. Sheldon, .... 245 
 Blackman v. R. R. Co., . . . 345 
 Blackmer V. Phillips, . . . .195 
 Blackmore v. Baker, .... 486 
 
 Blad V. Barnfield, 589 
 
 Blades v. Arundel, .• 245, 246, 249 
 
 Blain v. Stewart 191 
 
 Blair v. Cantney, 159 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Blair v. Ward, 352 
 
 Blaisdell v. Steamboat, &c., . . 383 
 V. Stephens, .... 495 
 
 Blake v. Blanchard 49 
 
 V. Graham, 498 
 
 V. Hayward 32 
 
 V. Johnson, 637 
 
 Blakely v. Albert, 38 
 
 Blanchard v. Blanchard, . 526, 527 
 V. Brooks, .... 304 
 V. Dedham, . . . . 563 
 V. Meyers, .... 603 
 
 V. State 82 
 
 V. Taylor, .... 185 
 Blanchenay v. Burt, . 51, 8l, 213 
 
 Blanco v. Foote, 363 
 
 Bland v. Bamfield, 589 
 
 Blane v. Carter, 606 
 
 V. Stewart, 191 
 
 Blankenship v. Douglass, . .501 
 Blanks v. Rector, . . . . 53, 81 
 Blanton v. Morrow, .... 337 
 Blatch V. Artcher, . 389, 570, 571 
 
 Blauvelt v. Smith 535 
 
 Bledsoe v. Doe, 527 
 
 Bleecker v. Bond, . . . .73, 329 
 Blethen v. Towle, . . . 165, 169 
 
 Blevins v. Baker, 180 
 
 Blight V. Banks, . . 194, 488, 505 
 V. Tobin, .... 414, 418 
 
 Bliss V. Ball, 245 
 
 V. Clark, . 125, 136, 139, 420 
 
 V. Guslow, 241 
 
 Blivens v. Johnson, . . . .501 
 
 Blood V. Blood 498 
 
 V. Guslow, 241 
 
 V. Hayman 425 
 
 V. Hayward, joj 
 
 V. Light, . 289, 410, 428, 481, 
 
 S12, S13, 518 
 
 V. Sayre, 220 
 
 V. Wood, 296 
 
 Bloom V. Burdick, 343 
 
 V. Welsh, 161 
 
 Co., 
 
 23 
 
 Blossom V. R. R, 
 Blount V. Davis, . . 
 
 V. Mitchell, . 
 Bloxham v. Oldham, . 
 Blue V. Commonwealth, 
 Blumfield's Case, . . 
 Blumfield v. Usewick, . 
 Blummenthal v. Brainerd, 
 Boal's Lessee v. King, 
 Board, In re, . . . 
 
 V. Helm, . . 
 Boardman v. Keeler. 
 
 V. Reed's Lessee, 
 Boarman v. Catlett, 
 Boas V. Updegraff, . 
 Boaz V. Nail, . . . 
 V. Yate, . . . 
 Bobb V. Woodward, 
 Bobo V. Thompson, 
 Bogart V. Perry, . . 
 
 V. Schauber, 
 Boggs V. Hargrave, 
 
 323, 43a 
 
 . . 471 
 
 I, 234, 238 
 
 • 394 
 
 V. Thompson, 
 V. Vandyke, 
 V. Warner, 
 Boker v. Curtis, . 
 Bolgiano v. Cook, 
 Bolles V. Bowen, 
 Boiling V. Carter, 
 
 V. Strickland, 
 
 Bolton V. Lansdown, 
 
 Bond V. Bond, 
 
 V. Ward, 
 
 V. Wilder, 
 
 V. Willett, 
 
 • 391 
 
 • 464 
 
 • 464 
 
 • 492 
 
 . 202 
 
 • 319 
 . 221 
 
 • 147 
 
 ■ 475 
 . 192 
 
 ■ 633 
 67,84 
 
 202, 634 
 . . 186 
 231, 464 
 186, 194 
 . . 607 
 
 330, 338, 
 404, 517 
 
 S33, S3S 
 . . 223 
 491, 496 
 . . 616 
 330, 433 
 • • 390 
 
 • • 495 
 . . 141 
 . . 70 
 . . 306 
 
 • • 634 
 
 • • 637 
 •234,235,238,252, 
 
 257, 314, 337 
 Bondurant V. Owens, .... 195 
 
 Bonesteel v. Orvis, 241 
 
 Bonnell v. Dunn, . . 89, 91, 630 
 
 V. Neely, 601 
 
 V. Smith, 91 
 
 Bonner v. Ware, 501 
 
 Bonslough V. Bonslough, . . 60 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 Boody V. York, . . 428, 519, 525 
 
 Boomer v. Lane, 390 
 
 Boon V. Orr, 165 
 
 Boone v. Chiles, .... 263, 504 
 Booth V. Ableman, . . . 247, 260 
 
 V. Barnum, 495 
 
 V. Booth, 36 
 
 V. Estes, 429 
 
 In re, . . . 247, 260, 28 \ 
 
 V. Webster, 412 
 
 V. Williams, 69 
 
 Borason v. Wells, 418 
 
 Borden v. Borden 292 
 
 V. McKinne, .... 519 
 V. Smith, . 290, 292, 427 
 
 Border v. Benge, 273 
 
 IJorell V. Daifn, 487 
 
 Boren v. McGeehee, 81,204,205, 462 
 
 Borey v. Smith, 502 
 
 Boring v. Lemon, 87 
 
 Borland V. O'Niel, 112 
 
 V. Walker, 151 
 
 Borrell v. Dewart, . . . 509, 524 
 Borrowscale v. Tuttle, .... 493 
 Bosley v. Farquahar, . . 222, 384 
 
 Bossard v. White, 499 
 
 Bostwick V. Keizer 337 
 
 V. Winton, . . 330, 461 
 
 Boston, &c., R. R. v. Gilmore, . 561 
 
 V. Tileston, . 393 
 
 Boswell V. Buchanan, 488, 498, 493 
 
 V. Sharp, 517 
 
 V. Zigler, 463 
 
 Bosworth' V. Farenholtz, . 290, 427 
 Bott V. Burnell, . 296, 390, 394, 396 
 
 V. Cozine, 193 
 
 Bottoms V. Mithvin, .... 639 
 Bough ton V. Bank, &c., . 185, 232 
 V. Lord, 78, 79, 252, 331 
 V. Neilson. . . . .213 
 BouJdin v. Alexander, .... 618 
 Boa ware v. Craddock, . . . 636 
 
 Bouts V. Cole, 414 
 
 Bowdoin v. Jordan, . . 71, 76, 329 
 
 d 
 
 Bowden v. Schatzell, .... 159 
 
 Bowen v. Bell, . . 158, 483, 527 
 
 V. McCuUough, ... 72 
 
 V. Parkhurst, . . . .391 
 
 Bowers v. Arnoux, 436 
 
 V. Crary, 58 
 
 V. Higbee, ..... 196 
 
 Bowker v. Smith 298 
 
 Bowman v. Cornell, . . 623, 628, 
 630, 631 
 
 V. Fry 527 
 
 V. Herring, . . . .151 
 
 V. Mallory, .... 384 
 
 . V. Quackenboss, . . 90 
 
 V. Smiley, 88 
 
 V. Stark, 399 
 
 V. Tallman, . . . .621 
 Bowne v. Witt, . .90, 91, 106, 113 
 
 Bowrell v. Zeigler, 463 
 
 Bowyer's Appeal, 92 
 
 Bowzey V. Netobegin, . . . .115 
 
 Boyd V. Academic Society, 411, 412 
 
 V. Chesapeake, &c., Co., . 550 
 
 V. Ellis, . . . 346, 412, 414 
 
 V. Harris, 241 
 
 V. Jones, .... 403, 528 
 V. Longworth, .... 330 
 
 V. Murray, 390 
 
 V. Page 29s 
 
 V. Sales, 450 
 
 V. Shorrock, 163 
 
 V. Vandercamp, . . . 55, 491 
 
 V. Williams, 88 
 
 Boyce v. Smith, . . . . 154, 177 
 
 V. Waller, 183 
 
 Boydell v. McMichael, . 166, 168 
 
 Boyken v. Smith, 367 
 
 V. State, 62 
 
 Boykin v. Edwards, .... 89 
 
 Boyle V. Zacharie, 584 
 
 Boylston V. Carver, . . . 306,381 
 
 Boynton v. Grant, 389 
 
 V. Rees 504 
 
 V. Willard, . . . .391 
 
XXVJ 
 
 TABLE OF CASES CITED. 
 
 504, 505 
 368, 590 
 Ibo- 
 
 263, 264 
 320, 429, 513, 522 
 
 • • 491 
 . ■ 49 
 ■ • 59° 
 239. 294 
 
 • • 505 
 
 yii, 481 
 
 los, 
 
 Boynton v. Winslow, 
 
 Bozza V. Rowe, . 
 
 Brace v. Duchess of Marlbo 
 
 rough, . 
 
 V. Shaw, . 
 
 Bracken v. Miller, 
 
 V. Wood, 
 
 Brackett v. The Hercules, 
 
 V. McKenney, 
 
 V. Miller, . . 
 
 V. Ridlon, . . 
 
 V. Watkins, . 
 
 V. Winslow, . 
 
 Bradbury v. Smith, . . 
 
 Bradford v. Bradford, . 
 
 V. Linipus, . 
 
 Bradley v. Bailey, . . 
 
 V. Bassett, . . 
 
 V. Garnett, 
 
 V. Keese, . . 
 
 V. Kingsley, . 
 
 V. O'Donnell, . 
 
 V. Wyndham, . 
 Bradshaw v. Ellis, . . 
 Bradstreet v. Ins. Co., 
 
 Brady v. Ball 
 
 V. Davis, . ... 
 Bradyll v. Ball, . . . 
 Bragg V. State, . . . 
 Bragner v. Langmead, 
 Brainard v. Van Kuran, 
 Branch v. Morrison, 
 
 V. Riley, . . 
 Brand v. Mears, . . 
 Brandon v. Snows, . 
 Brandt v. Foster, . 
 Brandt's Appeal, 
 Branner v. Hardy, . 
 Brannon v. Brannon, 
 Brant v. Robinson, . 
 Branton v. Bush, . 
 Brasfield v. Whittaker, 
 
 119 
 . . 206 
 
 • . 542 
 
 • . 534 
 
 • • 346 
 . . 56 
 296, 305 
 
 • • 599 
 49, 429, 522 
 
 . . 318 
 
 364, 370 
 
 269, 272 
 
 . 161 
 
 • 589 
 . 28 
 
 .635 
 . 28 
 . 231 
 
 n, 275 
 
 • 137 
 . 170 
 
 • 244 
 . 80 
 
 402, 514 
 
 479 
 
 92 
 
 359. 366 
 
 Brashears v. Warner, 
 
 • 523 
 
 • '95 
 
 • 195 
 78, 79, 
 
 266, 332 
 • • 376 
 
 Bratton v. Garrison, . 
 Brandlacht, In re, . . 
 Bray v. Laird, . . . 
 V. Ragsdale, . . 
 Brazeal v. Smith, . . 
 Brearly v. Cox, ... 
 Breck v. Blanchard, . 
 Breese v. Bange, . . 
 Breidenthal v. McKenna, 
 Bremmell v. Gibson, . 
 Brem v. Johnson, . . 5 
 Brewer v. Granger, . . 
 
 V. Inhabitants, &c, 
 V. Wall, . . . 
 Brewster v. Bailey, . . 
 
 V. Hammett, . 
 
 V. Power, . . 
 
 V. Vail, . . 
 
 V. Van Ness, 
 
 Brice v. Brice, . . 
 Bricker v. Hughes, . 
 
 . V. Terrell, . 
 Bridenbecker v. Lowell, 
 Bridewell v. Moody, 
 Bridge V. Eggleston, 
 Bridgen v. Atkins, . 
 Bridges v. Caldwell, 
 Brier v. Woodbury, 
 Briggance v. Erwin, 
 Briggs V. Buckle, . 
 
 V. Gleason, . 
 
 V. Green, . . 
 
 V. Heason, . 
 
 V. Kaufman, . 
 
 V. McCullough, 
 
 V. Taylor, 
 
 V. Wardwell, 
 Brigham v. Bush, . 
 V. Weaver, 
 Briggs's Heirs v. Blue, 
 Bright V. Ross, . . 
 Brignon v. Holmes, 
 Briley v. Cherry, 
 
 163, 
 
 382 
 
 59^ 
 112 
 19& 
 226 
 167 
 637 
 [72, 433 
 
 52 
 
 151 
 
 423, 424 
 
 iiS 
 
 566 
 
 150 
 540 
 1 8s, 186 
 238, 521 
 208,444, 
 445,446 
 
 5°2, 503 
 . 161 
 
 • 73 
 
 • 453 
 54,55 
 
 . 186 
 . 412 
 
 . 620' 
 
 • 465 
 
 . 291 
 . 311 
 
 • 257 
 
 304, 395 
 637 
 352 
 88 
 
 257 
 82 
 90 
 149 
 289 
 450 
 
 304 
 487 
 
TABLE OF CASES CITED. 
 
 XX vn 
 
 Brink v. Decker 246 
 
 BrinkerhofF v. Marvin, . , . 546 
 Brinkley v. Mooney, .... 400 
 
 Brinley v. Mann, 252 
 
 Brisbane v. Adams, .... 317 
 
 Briscoe v. York, 439 
 
 Briston v. Payton, 72 
 
 Britton v. Fulton, 639 
 
 V. Handy, 412 
 
 Broadbent v. Barlow, .... 492 
 Broadnax v. Thomasson, . . 540 
 Brockway v. Wilber, .... 376 
 
 Broghill V. Lash, 422 
 
 Bronson v. Kinzie, . 308, 321, 584, 
 
 5B5, 586 
 
 Brownston v. Robinson, . . .176 
 
 Brooks V. Baldwin, 531 
 
 V. Hodson, 56 
 
 V. Powers, 152 
 
 V. Ratcliff, 470 
 
 V. Rooney, . 428, 474, 515, 
 
 518, 520, 526 
 
 V. Thompson, . . . .158 
 
 V. Winner, . 
 'Broom v. Hurst, 
 Brotherton v. Hatt, 
 Broughton v. Allen, 
 iBrown v. Allen, . . 
 V. Anderson, 
 V. Aplin, . . 
 Brown's Appeal, 
 iBrown v. Baker, 
 
 V. Barnes, . 
 V. Bates, . . 
 V. Betts, . . 
 V. Bingham, 
 V. Booker, . 
 V. Budd, . . 
 V. Burdett, . 
 V. Campbell, 
 V. Clarke, 
 V. Clifford, . 
 V. Compton, 
 ■V. Cook, . . 
 
 . . 152 
 403, 568 
 • • 49" 
 399. 401 
 243, 327 
 • S03 
 
 • 55 
 . 270 
 
 . 378 
 . 265 
 156, 197' 
 533, 535 
 . . 601 
 . . 286 
 
 499, 504 
 . . 183 
 . . 294 
 247, 259 
 . . 292 
 203, 218, 219 
 . . .465 
 
 Brown v. Coombs, 
 V. Davis, . 
 V. Dickson, 
 V. Donald, 
 V. Early, . 
 V. Feeter, 
 V. Frost, . 
 V. Gaffney, 
 V. Gale, . 
 V. Gilliland, 
 V. Gilmor, . 406, 
 V. Graves, 
 V. Gray, . 
 V. Hamlin, 
 V. Hammond, 
 V. Hebbard, 
 V. Henderson, 
 V. Higginbothaffl; 
 V. Hunt, ... 51 
 V. Hurt, . 
 V. Julian, 
 V. Keller, 
 V. Kendall, 
 V. Kidd, . 
 V. Lane, . 
 V. Lillie, . 
 V. Lynch, 
 V. McKay, 
 V. McMillan, 
 V. Maine Bank, 
 V. Mason, 
 V. Massey, 
 V. Parker, . . 44, 
 V. Pratt, . 
 V. Redwine, 
 V. Riggin, 
 V. Scott, . 
 V. Smith, 
 
 V. Snell, . . ■ 7.47, 
 V. Swan, . 
 V. Van Duzer, 
 V. Wallace, 
 V. Way, . 
 V. Webb, 
 
 606 
 
 390 
 292, 427 
 
 151 
 263 
 219 
 408, 419 
 
 497 
 181 
 270 
 
 433, 434 
 . 198 
 
 • 536 
 . 450 
 54,55 
 . 119 
 . 214 
 . 80 
 , 80, 285 
 403, 568 
 . . 83 
 . . 136 
 479, 576 
 
 • • 254 
 234 
 168 
 
 . . 318 
 320, 424 
 
 • • 378 
 . . 481 
 . . 213 
 . . 196 
 329,421 
 234, 238 
 
 323 
 252 
 
 70 
 290 
 187, 356 
 281 
 
 85 
 330 
 
 35, 142 
 
 167, 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 Brown v. Williams, .... 277 
 
 V. Wood, . 176, 214, 361 
 
 V. Worcester, .... »oj 
 
 V. Worcester Bank, . .190 
 
 Brownfield v. Wright, . . .371 
 
 Browning v. Handford, . 257, 258, 
 
 395, 449 
 
 Brownston v. Brownston, . . 191 
 
 V. Robinson, . . .176 
 
 Bruce v. Raney, 
 
 V. Vogel, . . 
 V. Westervelt, 
 Bruen's Appeal, . . 
 Bruere v. Britton, . 
 BrufFett v. G. W. R. R. 
 Brummell v. Hurst, 
 Brush V. Fowler, 
 
 V. Lee, . . 
 V. Seguin, 
 V. Ware, . . 
 Brussie v. GrifBth, . 
 Bryan v. Berry, . . 
 V. Bridge, 
 V. Bridges, 233, 
 V. Hubbs, 
 V. Knickerbacker, 
 V. Lashley, . 
 V. Strait, . . 
 Bryant v. Dana, . . 
 V. Fairfield, 
 V. Johnson, . 
 V. Kelton, . 
 V. Morrison, 
 V. Robinson, 
 V. Tucker, . 
 V. Whicher, 
 V. Williams, 
 Buchan v. Sumner, 
 Buchanan v. Atchison, 
 
 V. Tracy, 
 Buck V. Campbell, 
 Buck V. Colbath, 
 V. Fox, . . 
 V. Halloway, 
 
 • • 535 
 263, 264 
 . . 54 
 
 173. 353 
 . . 80 
 
 • • 551 
 403, 568 
 
 533, 535 
 
 64, 66, 179 
 
 . . 28s 
 
 493, 501 
 
 95, "5 
 
 • • 597 
 62, 397 
 
 234, 237, 241 
 602 
 186 
 542 
 234 
 327 
 609 
 
 521 
 
 152 
 
 355, 358 
 
 59, 
 
 • 193 
 
 • 297 
 
 • 339 
 
 • 507 
 . 500 
 
 • 239 
 ■ 471 
 
 • 630 
 247, 260, 629 
 
 • 320 
 
 • 5°3 
 
 Buck V. Hardy, . . 382, 399, 401 
 
 V. Sherman, 196 
 
 Buckenham v. Francis, 
 Buckeye v. SnowfFer, . 
 Buckholder v. Sigler, . 
 Buckingham v. G. A. Society, 
 
 V. Nelson, 
 
 v.. Reeve, 
 
 V. Smith, 
 Buckley v. Biddle, . 
 V. Hampton, 
 V. Snouffer, 
 V.Wells, . 
 Bucicmaster v. Drake, 
 Bucknell v. Union Bank, 
 Buckner v. Chambliss, 
 Buehler v. Rodgers, . 
 Buffandeau v. Edmonson, 
 Buffum V. Seaver, . 
 Buford V. Buford, . 
 V. Rosenfeld, 
 Buhl V. Kenyon, . . 
 Bull V. Clarke, . . 
 BuUard v. Green, . 
 BuUene v. Hiatt, 
 Bullis V. Borden, 
 Bullitt V. Winstons, 
 
 Bullock V. Goodsell, 
 BuUymore v. Cooper, 
 Bumpass v. Maynard, 
 
 V. Platner, 
 Bumson v. Grant, . 
 Bunker v. Gilmore, 
 
 V. Locke, . 
 
 V. Rand, 
 Bunting v. Ricks, . 
 Bunts V. Cole, . . 
 Burchard v. Reese, . 
 Burd V. Dansdall, . 
 Burdett v. Abbott, . 
 
 V. Chandler, 
 Burden v. McKinne, 
 Burdon v. Kennedy, 
 
 223 
 
 259 
 363 
 469 
 . . 138 
 
 • • 197 
 
 • • 503 
 ■ • 330 
 . . 384 
 247, 281 
 183, 197 
 
 633 
 
 • 634 
 
 • 317 
 
 • 331 
 
 • 32 
 . 262 
 . 192 
 
 • 493 
 . 172 
 
 • 376 
 . 412 
 
 • 139 
 
 . IJ2 
 
 234, 235, 
 
 258, 40a 
 . .631 
 184, 218 
 
 • 113 
 
 • 505 
 . 426 
 
 • 391 
 . 120 
 
 85, 346 
 
 • 495 
 
 • 417 
 234, 238, 250 
 
 . 182 
 . 224 
 
 ■ 73 
 . 192 
 . 193 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 Burford V. Rosenfield, . . .138 
 Bui^e V. Brown, . . . 266, 329 
 
 Burger v. Becket, 390 
 
 Burges V. Everett 117 
 
 Burgess v. Atkins, . . . 538, 541 
 
 V. Wheat, 502 
 
 Burnham v. Chaudey, .... 499 
 Burhans v. Vanzandt, .... 365 
 Burk V. Bank of Tennessee, . 468 
 
 V. Campbell, 630 
 
 V. Chrisman, 353 
 
 V. Howard, 601 
 
 Burkhalter v. Edwards, . . . 483 
 Burkle v. Luce, . . .79, 285, 286 
 
 Burnell V. Letson, 159 
 
 Burnett v. Handly, 286 
 
 Burnham v. Aiken, 307 
 
 V. Persons, . . 36, 298 
 Burmeister v. Dewey, .... 349 
 
 Burns V; Harris, 118 
 
 Burns, In re, 279 
 
 V. Jones, 136 
 
 V. Keas, 122 
 
 V. Ray 337 
 
 Burr V. Freethy, 221 
 
 V. Moody, 390 
 
 Burrall v. Acker, . 541, 542, 545 
 Burroughs v. Wright, 309, 338, 394 
 Burt V. Cassidy 503 
 
 V. Thompson, . 
 
 Burton v. Calloway, 
 
 V. Emerson, 
 
 V. Fulton, 
 V, Greene, 
 
 V. Lies, . 
 V. Smith, 
 V. Wilkinson, 
 V. Wolf, . 
 Bush V. Fowler, . 
 V. McKay, 
 V. Seguin, . 
 V. Williams, 
 Bushell V, Bushell, 
 
 204, 205 
 208, 636 
 308, 309, 
 484, 514 
 
 • • 639 
 
 • • 544 
 404, 517 
 184 299 
 . . 224 
 . . 310 
 S33, S3S 
 . . 501 
 . . 285 
 
 • • 195 
 497. 498 
 
 Bussey v. Hardin, . 418, 468, 480 
 Buston V. Peyton, ... 72, 407 
 
 Butcher v. Dew, 453 
 
 V. Stapely, .... 490 
 
 Butler V. Harries, . . 42,51,329, 
 
 409, 424 
 
 V. Maynard, 238, 272, 273 
 
 V. Paige, 163 
 
 V. State, 391 
 
 V. Stevens, . 490, 491, 496 
 
 V. Thornton, .... 490 
 
 Butterfield v. Walsh, 327, 329, 504, 
 
 512, 514, 526 
 
 Buttrick v. Holden, . . 490, 496 
 
 Butts v. Francis, . . . 394, 396 
 
 Button V. Cole, 213 
 
 Buxton V. Dearborn, . . . .124 
 
 Byhee v. Ashby, 424 
 
 Byer v. Etnire, 381 
 
 Byers v. Bancroft, . . . .' . 461 
 
 V. Byers, 135 
 
 V. Engel, .... 490, 501 
 V. Fowler, . 417, 517, 586 
 V. Wacicman, . . 497, 501 
 V. Wakeman, .... 000 
 
 Byrd v. Catlin, 93 
 
 Byre v. Mithoff, , 78 
 
 Byrne v. Anderson, .... 258 
 By rod's Appeal, 5°' 
 
 c. 
 
 Cabell V. Grubbs 239 
 
 Cable v. Cooper, 218 
 
 v. Martin, 425 
 
 Cabrera, In re, . . . . ■ .281 
 
 Cadmus v. Jackson, 75 
 
 Cadwell v. Carrington, . . . 502 
 
 Cady V. Irwin, 215 
 
 Cahoon v. Speed, ..... 220 
 
 Cain V. Jones, 498 
 
 Cairns v. Smith, . . . . 61, 77 
 
 Caldwell v. Arnold 636 
 
 V. Auger, . . . 541, 546 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Caldwell v. Eaton, 334 
 
 V. Fifield, 45, 236, 265, 463 
 V. Hedan, . . . 391, 394 
 
 In re, 602 
 
 V. Montgomery, . . 193 
 
 Calhoun v. Buck, 84 
 
 V. Knight, .... 88 
 
 V. McLendon, ... 91 
 
 California v. Moore, .... 179 
 
 Call V. Gray, 149 
 
 Callaway v. Carpenter, ... 93 
 
 Callen v. Meyrick, 280 
 
 V. Thompson, . . . .152 
 Callander v. Olcott, . . . .377 
 
 Calmes v. Ford, 451 
 
 Cambaugh v. Godfrey, . 412, 413 
 Camden v. Haskell, .... 531 
 
 V. Logan, 330 
 
 Cameron v. Irwin, . . . 419, 468 
 V. Logan 330 
 
 V. Reynolds, 202, 332, 335 
 
 Cameto v. Dupuy 124 
 
 Cammack v. Johnson, .... 541 
 
 Camp V. Bates, .... 307, 381 
 
 V. Chamberlain, 230, 235, 240, 
 
 248, 249, 250 
 
 V. Cox, 190 
 
 V. Laird, 253 
 
 V. Mosely, 214 
 
 V. Simon, ' 338 
 
 V. Smith, 296 
 
 V. Wood, 218 
 
 Campan v. Barnard, .... 241 
 
 V. Coates, 62 j 
 
 V. Godfrey, . . 412, 413 
 
 Campbell v, Adair, 126 
 
 V. Baker, 470 
 
 V. Breckinridge, . . 496 
 V. Cothran, . . 409, 414 
 V. Gardner, .... 000 
 V. Hasbrouck, . . .159 
 In re, . . 247, 260, 279, 
 280, 281 
 V. Johnson, . . 468, 480 
 
 Campbell v. Law 360 
 
 V. Leonard, 144, 154. ^5S 
 V. Luttrell, .... 626 
 V. Mclrwin, .... 606 
 V. Phelps, .... 202 
 
 V. Pope, 253 
 
 V. Rutger 453 
 
 V. Smith, 409 
 
 V. Spence, .... 253 
 V. Walker, .... 407 
 V. Webb, . . 214, 218 
 V. Webster, 305, 390, 392 
 V. Wickware, . . .371 
 V. Woolidge, . . . 360 
 Campfield v. Johnson, . . . 198 
 Canal Co. v- Bonham, . 551, 552 
 
 Canby v. Porter, 182 
 
 Canfield v. Ford, 178 
 
 Cannaday v. Nuttall, .... 332 
 Canterbury v. Commonwealth, 444, 
 
 446 
 
 Cantley v. Moody 521 
 
 Cape Fear Bank v. Williamson, 56 
 
 Capen v. Doty, . . . . 189, 191 
 
 V. Peckham, . . . ' . 163 
 
 Carkhiff V. Anderson, . . 193, 195 
 
 Carey v. Cincinnati, &c., R. R. 
 
 V. Folson, 
 
 V. Gregg, . . 
 
 V. Hewitt, 
 
 Carle v. Delesdernier, 
 
 Carlin v. Hudson, . 
 
 Carlisle v. Carlisle, . 
 
 V. Perkins, . 
 
 Carlos V. Ansley, . . 
 Carmichael v. Hawkins, 
 V. Strawn, 
 
 Carneghan v. Brewster, 
 Carnifaxv. Chapman, . 
 Carnrich v. Meyer, . . 
 Carnes y. Picket, . . 
 Carpenter v. Cameron, 
 
 148 
 
 • • 352 
 
 • • 452 
 . . 000 
 213, 640 
 . . 618 
 408, 423 
 
 327, 389. 
 391, 629 
 
 'SS. 177 
 
 • • 598 
 141, 143, 
 472, 476 
 
 263 
 283 
 
 31S 
 465 
 ii8o 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 Carpenter v. Devon, .... 252 
 
 V. Doe 527 
 
 V. Herrington, 106, 114 
 litre, . 141,144,315 
 V. King, . . 58, 252, 483 
 V. Koons, . . 352, 3S3, 
 
 3S4, Jii 
 V. ShafFner, . . . 526 
 V. Simmons, . 341, 342 
 V. Stillwell, 203, 204, 205, 
 206, 344, 419, 462, 468 
 V. Sutton, . . . .189 
 V. Van"Scotten, . 57, 64 
 V. Willett, .... 569 
 
 Carr V. Carr, 156 
 
 V. Commercial Bank, . . 390 
 
 V. Glasscock 514 
 
 V. Hunt 469 
 
 V. Wallace, 368 
 
 V. Weed 253 
 
 V. Youse, 203 
 
 Carratt V. Morley, . . . 216,217 
 
 Carrington v. Herrin, . 89, 91, 126 
 
 V. Herrington, . . 222 
 
 V. Roots, . . . .341 
 
 Carrith V. Grassie 114 
 
 Carroll v. Carroll, 75 
 
 V. Cone, . . 159, 160, 634 
 V. Fields, . . . 253, 464 
 V. Reddington, . . . 599 
 
 V. Rice, 148 
 
 v.Safford, 193 
 
 Carson v. Doe, 527 
 
 V. Law 317, 318 
 
 V. Smarty 481 
 
 V. Walker, 51 
 
 Carson's Sale 412 
 
 Carter v. Bank 494 
 
 V. Beals, 285 
 
 V. Carter 50j 
 
 V. Champion, . . . .'499 
 
 V. Clark 213 
 
 V. Denman, 479 
 
 V. Harris, . . . 203, 322 
 V. Ponter 198 
 
 Carter v. Read, 236, 240, 329, 420 
 V. Simpson, 339, 420, 526 
 V. Spencer, 79, 319, 470, 606 
 
 V. Walker, 480 
 
 Cartney V. Reed, 236, 240, 329, 420 
 Carty v. Fenstemaker, . . .150 
 Cary v. Bright, . 234, 235, 238, 240, 
 
 543, 548 
 . . 70 
 
 V. Clark, 
 
 V. Gregg, . 
 
 V. Hewett, . 
 
 V. Hotailing, 
 
 V. Tice, . . 
 
 Case V. Adams, . 
 
 V. Colston, 
 
 V. Dunmore, 
 
 V. Redfield, 
 
 V. Taylor, . 
 
 Casey v. Gregory, 
 
 Cash V. Tozer, . 
 
 Casher v. Patterson, 
 
 Caskey v. Haviland, 
 
 V. McMuUan, 
 Cass V. Littleton, . 
 Cassady v. Meacham, 
 Cassell V. Williams, 
 Casselman v. Packard, 
 Cassidy v. Stewart, 
 Cassily v. Rhodes, 
 Castleberry v. Weaver, 
 Castner v. Styer, 
 
 V. Symonds, 
 
 Castro V. lilies, . . 
 
 Catlett v. Alexander, 
 
 V. Gilbert, . 
 
 I5i> 
 
 262 
 153 
 
 • • 174 
 124, 125 
 
 • • 253 
 
 . . 521 
 
 . . 88 
 
 • • 390 
 
 • • 174 
 317, 345 
 324, 327 
 245, 270 
 
 377, 384 
 
 • 446 
 
 • 254 
 . 388 
 
 93, 283 
 . 124 
 
 • 577 
 61, 524 
 
 . SOI 
 
 • 391 
 236, 344 
 602, 607 
 . . 464 
 
 346, 350, 407 
 
 Catlin V. Merchants Bank, . . 369 
 V.Jackson, . . . 339,481 
 
 Cator V. Stokes 392 
 
 Cauble v. Hoke, 384 
 
 Caudle v. Dare, 465 
 
 Cauffman v. Sayre, 347 
 
 Cautzon V. Dorr, . . . . .192 
 
 Cave V. Cave, 169 
 
 Cavender v. Smith, . 142, 185, 412, 
 429, S'2, 514, 51S 
 
xxxu 
 
 TABLE OF CASES CITED. 
 
 Cavenaugh v. Jakeway, . . .517 
 
 Cawe V. Brigham, 396 
 
 Cawtell V. Stout, I47 
 
 Cawthorne v. Knight, . . S3, 4°° 
 V. McGraw, . ■ . . 234 
 Center v. Bank, .... 495, joo 
 V. Billinghurst, . 55, 72, 73 
 Chadbourne v. Mason, . . . 291 
 Chaffin V. Crutcher, .... 630 
 
 Chaliner v. Bradley 408 
 
 Challiss V. Wise, 433 
 
 Chalmers v. Moore, .... 387 
 
 Chamberlain v. Beller, , . .221 
 
 V. Choles, . . . 537 
 
 V. Doty, 296, 306, 307 
 
 V. Lyell, . . 88, 122 
 
 Chambers'v. Cochran, . . . 421 
 
 V. Coleman, . . .381 
 
 V. Hays, . 317, 345, 5^7 
 
 V. Kelly,. .... 519 
 
 V. Lewis, . . 240, 293, 
 
 339. 42s 
 
 V. Stone, . . 504, 505, 
 
 514, 621 
 
 V. Thomas, 203, 204, 322 
 
 Chamblee v. Tarbox, . . . .417 
 
 Champaign, &c., v. Smith, . .216 
 
 Champenois v. White, . 345, 386 
 
 Champlin v. Johnson, . . . . 1 50 
 
 V. Leighton, . . . 491 
 
 V. Rigby, .... 407 
 
 Chancey v. Needham, . . . 000 
 
 Chandler v. Burdett, .... 75 
 
 V. Furbush, .... 464 
 
 V. Phillips, .... 000 
 
 V. Sawtelle, 363, 441, 468 
 
 Chapin v. Allison, . 
 
 V. James, . 
 
 Chaplin v. Sawyer, . 
 
 Chapman v. Alcock, 
 
 V. Bowlby, 
 
 V. Dyett, . 
 
 V. Fuller, 
 
 V. Gray, . 
 
 SI 
 
 49 
 247, 260 
 . 122 
 S3, 154 
 • S07 
 . 638 
 . 83 
 172, 181, 183 
 
 Chapman v. Griffin, .... 304 
 
 V. Harrison, . . . 464 
 
 V. Harwood, 315, 336, 366, 
 
 368, 41 9> 433 
 
 V. Hunt, 154 
 
 V. Koops, 538, 539, 540, 
 
 543, S44, S4S 
 V. Thornburg, ... 26 
 V. West, . . . 352, 494 
 
 Chappell V. Cox, 618 
 
 V. Dunn, 489 
 
 V. Hunt, 290 
 
 Charles v. Cohen, 4S4 
 
 V. Lowenstein, ... 43 
 
 V. Marney 383 
 
 Charles, &c., Co. v. Warren Co., 32 
 Charless v. Lambertson, . 124, 125 
 
 Charlton V. Lay, 151 
 
 V. Low, 504 
 
 Charon v. Boswell, 278 
 
 Charter v. Peeter, 332 
 
 Chase v. Chase, 78 
 
 V. Fish 213, 640 
 
 V. Gilman, . . 53, 208, 219 
 V. Hathaway, .... 398 
 
 V. Hazleton, 391 
 
 V. Ingalls, 203 
 
 V. Merrimack Bank, 382, 566 
 
 V. Monroe, . 
 
 V. Moore, 
 
 V. Plymouth, 
 
 V. Woodbury, 
 Chasteen v. Phillips, 29 
 Chaudet v. De Jong, 
 Chaudron v. McGpe, 
 Chautauqua Bank v. White, 
 Chavenor v. Wood, 
 Cheasley v. Barnes, 
 Cheatham v. Brien, 
 Cheek v. Claiborne, 
 Cheesbrough v. Clarke, 
 V. Millard, 
 Cheeswright v. Franks, 
 
 34S, 632 
 
 • • 315 
 202, 626, 638 
 
 352 
 
 I, 293, 527 
 
 176 
 
 493 
 62 
 
 • • 359 
 213,215 
 . . 232 
 . . 620 
 305, 515 
 173, 353 
 . . 60 
 
 Chegaray v. Jenkins, 213, 215, 248 
 
TABLE OF CASES CITED. 
 
 xxxui 
 
 Chenault v. Walker, .... 445 
 
 Cheney v. Watkins, .... 498 
 V. Woodruff, , . . .510 
 
 Chenery V. Palmer, . . . .151 
 V. Stevens, .... 295 
 
 Cherry v. Newsom, .... 148 
 V. Woolard, 54, 56, 471, 476 
 
 Chesapeake Bank v. McClellan, 414, 
 
 427 
 
 Chesterman v. Gardner, . . . 503 
 
 Chicago V. Hasley, 196 
 
 V. R. I. R. R. Co., 207, 314 
 
 Chicago, &c., R. R. Co. v. Bull, 63 
 
 Chickering v. Failhes, . . . 225 
 V. Lovejoy, . . joo 
 
 Childs V. Ballou, 427 
 
 V. Barrows, . 381, 389, 401 
 
 V. Bernard, 420 
 
 V. Derrick, 192 
 
 V. Dilworth, . . 265, 267 
 
 V. Dwight 264 
 
 V. McChesney, 327, 368, 484, 
 
 S14, 52' 
 
 Childress v. Allen, . . 37, 468, 472 
 
 V. Hurst, . 319, 413, 432 
 
 Chiles V. Hay, 67 
 
 Chilton V. Cox, 463 
 
 Chipman v. Coates, .... 499 
 Chisholm v. Chittenden, . . . 254 
 Chittenden v. Rogers, 234, 238, 460 
 Choate v. Redding, . . . .119 
 Chophard v. Bayard, . . . .152 
 Choquette v. Barrada, . . .501 
 
 Choteau v. Jones, 499 
 
 Christian v. Dripps, . . . .163 
 
 V. Ellis, 545 
 
 Christie v. Hale', 615 
 
 V. Simpson, .... 367 
 Christmas v. Mitchell, . . . 501 
 Christopherson v. Burton, . .251 
 
 Christy v. Dyer, 124 
 
 In re, 280 
 
 V. Sherman, . . . .610 
 
 Church V. Clark, 445 
 
 e 
 
 Church V. Crawford, .... 569 
 V. Knox, 540, 542, 545, 546 
 
 V. Wood, 410 
 
 Churchill v. Churchill, 
 V. Grove, 
 V. Siggers, . 
 V. Warren, . 
 Cipperly v. Rhodes, 
 Circassian, The, . . . 
 City, &c., v. Buchanan, 
 City Bank v. Skelton, . 
 City Council v. Paige, 
 Citizens' Bank v. Knapp, 
 Claflin v. Rosenberg, . 
 Claggett v. Kilbourne, 
 Glamorgan v. Lane, 
 
 • V. O'Fallon, 
 Clapp V. Mott, . . . 
 Clark V. Austin, . . . 
 
 V. Bell 
 
 V. Bellman, . . 
 
 V. Binninger, 
 
 V. Boyrear, . . 
 
 V. Campbell, . . 
 
 V. Chamberlain, 
 
 V. Clarke, . . . 
 
 V. Clement, . . 
 
 V. Cov., &c., O., 
 
 V. Feagan, . . 
 
 v. Fowler, . . 
 
 v. Foxcroft, . . 
 
 V. Gary, . . . 
 
 v. Harker, . . 
 
 V. Hellen, . . 
 
 V. Holmes, . . 
 
 V. Hoomes, . . 
 
 In re, ... . 
 
 V. Ismael, . . 
 
 V. Lockwood, 380, 428, 483, 
 518, 526 
 
 V. Lyman, 545 
 
 V. May, .... 213, 218 
 
 V. Norton 214 
 
 V. Parkinson, . . 533, 535 
 
 . 213 
 
 ■ 487 
 . 219 
 . 276 
 . 126 
 
 247, 280 
 
 ■ 6s 
 . 281 
 
 • 490 
 71. 524 
 
 ■ 151 
 544, 545 
 
 498 
 
 517 
 629 
 191 
 605 
 
 384, 398 
 . 280 
 , 509 
 
 504, 50s 
 , 194 
 
 • 194 
 568, 575 
 
 .615 
 
 ■ 396 
 , 422 
 . S18 
 . 625 
 
 ■ 197 
 
 • 55 
 141, 218 
 
 . 617 
 . 280 
 . 112 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Clark V. Pinney, 604 
 
 V. Pratt, .... 207, 314 
 
 V. Rist 280, 282 
 
 V. Shannon, I37 
 
 V. Watson, . . . 320, 424 
 
 V. Windham, I4S 
 
 V. Withers, . 314, 335. 336 
 
 V. Wright, 528 
 
 Clarkson v. Read, 486 
 
 Clary v. Hill, 606 
 
 Clay V. Caperton, 214 
 
 Claybrooke v. Wade, . . . .596 
 
 Clayton v. State, 398 
 
 Cleer v. Veer, 55, 72 
 
 Cleghorne v. Desanges, . . . 600 
 
 Clemens v. Brown, 68 
 
 V. Rannels, . . 427, 475 
 
 Clement V. Berry 94,58.6 
 
 V. Garland, . . 246, 573 
 V. Kaighn, . . . 263, 269 
 
 V. Prout,- 621 
 
 V; Reid, 412 
 
 Clemsen v. Ham, 383 
 
 Clerk V. Clement, . . .45, 52, 62 
 
 V. Withers, 73 
 
 Cleveland v. Allen, 385 
 
 V. Rogers, .... 215 
 Clever v. Applegate, . . 246, 258 
 CHfton V. Hooper, . 578, 624, 625 
 
 CHmie v. Wood 163 
 
 Clive V. Green, 408 
 
 Clorson v. Morris, 223 
 
 Close V. Gillespie, 398 
 
 Cloud V. Eldorado, . 377, 380, 428, 
 
 474, 475, 518, 526 
 
 V. Smith, 45 
 
 Clough V. Moore, 391 
 
 Clowes V. Dickenson, . . 173, 352 
 
 Cluck V. Smith, 80 
 
 Cluggage V. Duncan, . . .53,516 
 Cluley V. Lockhart, . . . 246, 391 
 
 Clute V. Clute, 79 
 
 V. Potter, 612 
 
 Clymer v. Willis, 159 
 
 Coal River Co. v. Webb, 
 Coates V. Lashley, . 
 Cobb V. Cage, . . 
 Cobbold V. Chilver, . 
 Cobbs V. Coleman, . 
 Coburn v. Palmer, . 
 V. Pickering, 
 Cochran v. Roundtree, 
 Cocker v. Cole, . . 
 Cockerell v. Cholmley. 
 
 V. Smith, . 
 
 V. Wynn, . 
 Cockney v. Milne, . 
 Cockran v. Welbye, 
 Cocks V. Izard, . . 
 Codd V. Wooden, . 
 Coddington v. Bay, . 
 V. Lloyd, 
 Codman v. Freeman, 
 
 Cody v. Quinn, . 81, 
 
 Coe v. Johnson, . 
 V. McBrown, 
 V. R. R. Co., 
 V. Smith, . . 
 V. Wickham, 
 V. Wilson, . 
 
 Coffee V. Coffee, . 
 V. Sylvan, . 
 
 Coffin V. Corruth, 
 V. Ray, . 
 
 Cogburn v. Spence, 
 
 Cogel v. Mickrow, . 
 
 Cogswell V. Mason, 
 v. Warren. 
 
 55 
 
 . 30' 
 
 • 347 
 . 240 
 
 42, 50 
 89, 116 
 
 • 575 
 
 151 
 
 325, 339, 344 
 
 434 
 
 408 
 
 394 
 268, 483 
 
 277, 480, 498 
 253 
 317 
 609 
 487 
 638 
 636 
 
 202, 400, 401 
 190 
 190 
 561 
 . . 122 
 136, 142 
 
 • • 175 
 419, 590 
 
 49, 429, 522 
 . .412 
 . . 500 
 . . 214 
 . . 13S 
 296, 304 
 265, 365, 385 
 
 552, 
 
 Cohen v. Wagner, 409,412, 414, 434 
 Colburn v. Pomeroy, .... 290 
 
 V. Turapey 516 
 
 Colby V. Jackson, 635 
 
 Cole V. Gill, 124 
 
 v. Green, 112 
 
 V. Hindson, 637 
 
 'v. Porter, 521 
 
 Colegrave v. Dias Santos, . . 169 
 Colegrove v. Cox, 454 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 SOI, 
 
 340, 412 
 
 299, 500 
 
 . . 360 
 
 524 
 
 329 
 606 
 52, 82, 204 
 219 
 
 253 
 
 Coleman v. Bank, &c., 
 
 V. Cocke, 
 
 V. Hair, 
 
 V. Lewis, 
 
 V. McAnulty, 
 
 V. Trabue, 
 
 Collais V. McLeod, . 
 
 Collett V. Foster, . 
 
 V. Jones, . . 
 
 Collier V. Bank, &c., 
 
 V. Stanbrough, 156, 308, 309, 
 
 343. 423, 488 
 
 V. Vason, 310 
 
 V. Whipple, . 323, 347, 408 
 
 V. Windham, .... 82 
 Collingridge v. Paxton 
 Collingsworth v. Horn, 
 Collins V. Frazier, . 
 
 V. Gibson, . 
 
 V. Hood, . , 
 
 In re, . . . 
 
 V. McElroy, 
 
 V. Montgomery, 
 
 V. Myers, . 
 
 V. Pace, . . 
 
 V. Perkins, . 
 
 V. Robinson, 
 
 V. Shaffer, . 
 
 V. Waggoner, 
 Colton V. Camp, . . 
 Colvard v. Coxe, . . 
 Colvin V. Baker, . . 
 Colyer v. Finch, . . 
 
 V. Higgins, . 
 Commander-in-Chief, The, 
 Commerce, The, . 
 Com. Bank v. Coroner, 
 
 V. Helderbunn, 
 
 • IS9 
 
 50,81 
 
 614, 619 
 
 . 189 
 
 , 542 
 , 452 
 , 152 
 
 • 337 
 . 152 
 . 148 
 . 520 
 
 • 194 
 . 196 
 
 219, 63s 
 210, 244 
 
 194, 313 
 . . 197 
 , . 492 
 314, 331 
 
 • • 59° 
 
 • • 589 
 . • 4SI 
 
 • . 451 
 
 V. Western B'k, 252, 352 
 V. Wilkins, . 538, 540, 
 
 545, 548 
 
 &c., V. Waters, . . 1 54 
 
 Commissioners v. Carter, . . 344 
 
 V. Hart, . . .190 
 
 Commissioners v. Wan-za-pe- 
 
 che, .... 228 
 
 Commonwealth v. Alien, . . .156 
 V. Bametts, . . 446 
 V. Boyd, ... 92 
 V. Coutner, 623, 628 
 V. Co., . . .552 
 V. Dickinson, . 316' 
 V. Dougherty, . 87 
 V. Dunham,. . 639 
 V. Fisher. . . 42 
 V. Freedly, . 597 
 V. Fuqua, . .391 
 V. Hale, . . . 385 
 V. Henndon, . 336 
 V. Leiar, . . 60, 403 
 V. Lightfoot, 242, 626 
 V. Magee, . . 64 
 V. McCoy, . . 374 
 V. Merrigan, . 46 
 V. Miller, . . 252 
 V. Rhodes, . . 498 
 V. State Bank, . 429 
 V. Stratton, . . 626 
 V. Stremtrach, . 269, 
 272 
 V. Turnpike Co, 
 V. Watmoush, 
 
 Comstock V. Purple, 
 
 V. Rayford, 
 Conant v. Bicknell, . 
 V. Sparks, . 
 Conard v. Ins. Co., . 
 
 Conaway v. Odbert, 
 Conckling v. Parker. 
 Concord Bank v. Gregg, 
 Congdon v. Cooper, 
 Conger v. Converse, 
 Congregational Society 
 
 ing, 
 
 Conklin v. Foster, . 
 Conkrite v. Hart, . 
 
 000 
 
 222, 
 
 632 
 
 . . 412 
 
 . . 152 
 
 ■ ■ 159 
 . . 386 
 152, 293, 
 500, 586 
 . • 301 
 • • 396 
 . . 418 
 . . 202 
 
 . . 470 
 Flem- 
 
 176 
 614 
 76, 409, 420 
 
XXXVl 
 
 TABLE OF CASES CITED. 
 
 Conn V. Caldwell, 4S 
 
 V. McCoy, ...... 522 
 
 Connaughton v. Sands, . . 87, go 
 Connecticut v. Bradish, . . . S°4 
 Connell v. Walker, . . . 336, 629 
 Conner, In re, .,.',.. 45^ 
 
 V. Loudon, 61 
 
 V. Silver, 390 
 
 Connor V. Nichols, 125 
 
 V. Wilson, 504 
 
 Conrad v. Harrison, .... 352 
 
 V. McGee 423 
 
 Conroy v. Woods, 542 
 
 Converse v. DamariscottaBank, 54 
 
 Conv\ray v. Jett 270, 639 
 
 V. Nolte, 316, 32;, 347, 478 
 Cook V. Baine, . . 116,126,630 
 
 V. Birt, 224, 225 
 
 V. Champlain, &c., Co., . 166, 
 
 167, 171 
 
 V. Chicago, . . . 290, 436 
 
 V. Comm'rs 162 
 
 V. Cook, 523 
 
 V. Dillon, 190 
 
 V. Garza, .... 237, 493 
 
 V. Gibbs, 113 
 
 In re, 540 
 
 V. Jenkins, . . . 243, 414 
 
 V. Kell, 498 
 
 V. Kiink, 136 
 
 V. McChristian, . . 121, 137 
 
 V. Norton, coo 
 
 V. Palmer, . . 316, 629, 638 
 
 V. Toombs, 606 
 
 V. Travis, 496 
 
 V. Webb, 528 
 
 v. Whiting, 170 
 
 V. Williams, 322 
 
 V. Wood, . .268, 272, 314, 336 
 
 Cooke's Case 223 
 
 Cooley V. Brayton, . . . 516,518 
 
 V. Campbell, .... 50 
 
 Coolidge V. Melvin, . .' . . 609 
 
 V. Wells, . . . 124, 139 
 
 Coombs V. Beaumont, . - • .166 
 
 V. Jordan, . 141, I44i 161, 
 
 184, 315 
 
 . . 192 
 
 213, 248 
 
 . • 548 
 
 574, 575 
 
 ■ • 379 
 
 369, 478, 527 
 
 50, 67, 403, 
 
 423, 517 
 
 . 388 
 
 . 616 
 
 V. Warren, 
 
 Coon V. Congdon, . 
 
 Cooper's Appeal, . 
 
 Cooper V. Bigalow, . 
 
 V. Borrall, . 
 
 V. Galbraith, 
 
 V. Harter, . 
 
 V. Ingalls, 
 
 V. Newell, 
 
 V. Rowe, 
 
 V. Tyler, . . 
 Coos Bank v. Brooks, 
 Coover's Appeal, 
 Cope v. Romeyn, . 
 Copeland v. Copeland, 
 Copenheaver v. Hufiaker, 
 Copley V. Rose, . . 
 Copwood V. Morgan, 
 Corbett v. De CantiUon, 
 Corby v. Burns, . 
 Cord V. Husch, . . 
 V. Southwell, . 
 Corlies v. McLagan, 
 
 V. Standbridge, 
 Cornelius v. Buford, 
 
 Cornell v. Barnes, . 
 
 V. Cook, . . 
 
 V. Dakin, . 
 
 V. Doolittle, 
 Corning v. Burdick, 
 
 Cornish v. Bews, 
 Corp V. Griswold, . 
 Corriell v. Doolittle, 
 
 V. Ham, . 308, 
 Corse V. Stafford, . 
 Corson v. Hunt, . . 
 Corwin v. Benham, . 
 
 610, 612 
 . 360 
 
 • 548 
 
 • 171 
 64, 502 
 
 • 493 
 
 ■ 235 
 
 • 398 
 
 • 497 
 
 • 398 
 
 • 314 
 
 ■ 455 
 
 • 524 
 269,272,417 
 
 243. 256, 
 369, 424 
 . . 213 
 
 • • 394 
 . . 258 
 
 . . 521 
 
 78, 79. 254, 
 
 464, 522 
 
 ... 199 
 
 ... 64 
 
 309, 512, 513 
 
 . . .289 
 
 • • -336 
 
 94, 330, 420, 
 
 585, 586 
 
TABLE OF CASES CITED. 
 
 xxxvu 
 
 Coi win V. Merritt, . 
 
 
 • • 344 
 
 Corwith V. State Bank, 55, 488, 609 
 
 Coster V. Peters, . . . 
 
 . . 605 
 
 Costillo V. Thompson, 
 
 . . 514 
 
 Cotton V. Marsh, . . . 
 
 . . 150 
 
 V. Thompson, . . 
 
 221, 284 
 
 V. Watkins, 
 
 . . 150 
 
 Coughran v. Swift, . . . 
 
 . . 618 
 
 Countryman v. Boyer, 
 
 • • 463 
 
 County, &c., v. Adams, 
 
 . • 247 
 
 Courtoy v. Vincent, 
 
 . . 119 
 
 Couthway v. Berghaus, 
 
 . • 437 
 
 Cover V. Black, . . . 
 
 . . 500 
 
 Covin V. Hitchcock, . 
 
 • . 174 
 
 Covington Bridge Co. v. 
 
 Shep- 
 
 herd, . . 
 
 ■ • SS2 
 
 &c., Co. V. Wa 
 
 Iker, 461, 
 
 
 462 
 
 Cowan V. Anderson, . 
 
 . . 429 
 
 V. Lindsay, . • 
 
 • • 479 
 
 V. Main, . . . 
 
 . . 116 
 
 V. Stevens, . . 
 
 . . 412 
 
 V. Surnevalt, . 
 
 • • 534 
 
 V. Wheeler, 
 
 290, 391 
 
 Cowen v. Underwood, 
 
 • • 349 
 
 Cowden v. Brady, . . 
 
 . .271 
 
 Cowgi'll v. Cahoon, . . 
 
 . . . 415 
 
 Cowles V. Bacon, . . 
 
 465, 466 
 
 V. Hastings, . 
 
 381, 389 
 
 Cowperthwaite v. Owen, 
 
 . . . S5 
 
 Cox V. Crippen, . . . 
 
 . . . 598 
 
 V. Hodge, . 
 
 
 . . 264 
 
 y. Mayor, &c. 
 
 
 , . .616 
 
 V. McDougal, . 
 
 
 . . 271 
 
 V. Stafford, . 
 
 
 . 89,90 
 
 V. Wilder, . 
 
 
 . . . 126 
 
 Coxe V. Halstead, 
 
 
 . . ■ 347 
 
 V. Joiner, . 
 
 
 ■ 484, 527 
 
 V. Nelson, . 
 
 
 . . 606 
 
 Coy V. Lyons, 
 
 
 ■ • • S6S 
 
 Coyne v. Souther, 
 
 33 
 
 0, 362, 50s 
 
 Cozine v. Walters, 
 
 , 
 
 . . .390 
 
 Cozzens v. Hodges, . 
 
 . . . .-0 
 
 Crabb v. Jones, . 
 
 . 
 
 . . . 184 
 
 Craddbck v. Riddlesbarger, . . 160, 
 
 173, 524 
 
 Craft V. BuUard, 615 
 
 V. Elliottville, .... 344 
 v. Merrill, .... 209, 420, 
 
 425, 463 
 
 Cragg V. Taylor, 562 
 
 Craig V. Adair, 59 
 
 V. Fox, 73 
 
 V. Graves, 464 
 
 V. Johnson, 68 
 
 V. Vance, 472 
 
 Cramer v. Van Alstyne, ... 55 
 Crandall v. Blen, . 144, 155, 177 
 
 Crane v. Bingham, i6j 
 
 v. Dygert, . - 445, 446, 633 
 
 V. Freese, 159 
 
 v. French, 548 
 
 V. Hardy, . 67, 84, 345, S26 
 
 v. Marsh, 191 
 
 V. McCoy, 247 
 
 V. Waggoner, ... 90, 92 
 
 Crary v. Morgan, 575 
 
 Cravens v. Gordon, .... 508 
 
 Crawford v. Bank, &c., . 256, 257 
 
 V. Boyer, . . . 403, 517 
 
 v. Dalrymple, . . . 420 
 
 V. Lock wood, ... 91 
 
 Creagh v. Savage, 322 
 
 Creigh v. Shatto, . . . 359, 369 
 Creighton v. Paine, .... 534 
 Crenshaw v. Hardy, .... 604 
 
 Creps V. Baird, 330 
 
 Cresson v. Stout, 171, 250, 315, 316, 
 336, 337 
 
 Crews V. Pendleton 615 
 
 Crilly V. Sheriffs, 87 
 
 Crippen v. Morrison, . . . .163 
 Criswell v. Ragsdale, . . 70, 425 
 Crittenden v. Leitensdorfer, . 42 
 Crocker v. Frazier, . . 190, 191 
 
 v. Hunt, ■ 119 
 
 V. Maguire, .... 498 
 Crockett v. Latimer, . . 146, 214 
 
TABLE OF CASES CITED. 
 
 Crofton V. Orrasby, . . iffj, 503 
 
 Crogan v. Cooke, 155 
 
 Crook V. Douglass, . . 498, 511 
 
 V. Williams, . . . , ^o ) 
 
 Crocker v. Crocker, .... 541 
 
 Cropper v. Coburn,' .... 612 
 
 Crosby V. Bustard, 521 
 
 V. Elkader Lodge, 188, 191 
 
 V. Nav. Co 45 s 
 
 V. Wadsworth, . 161, 165 
 
 Cross V. Everts, 126 
 
 Crossen v. White 437 
 
 Crotwell V. Boozer, 536 
 
 Croudsdon v. Leonard, . 589, 590 
 
 Crow V. Hudson, 391 
 
 V. State, 307 
 
 V. Tinsley, . . . 353, 361 
 
 Crowden v. Brady, 271 
 
 Crowder v. Sims, 233 
 
 Crowell V. Meconkey, . . 303, 433 
 Crowley v. Wallace, . . 400, 481 
 
 Crozier v. Acer, 453 
 
 Crummen v. Bennet, . . . .126 
 
 Crutchfield v. Haynes, . 62, 204, 
 
 205, 462 
 
 V. Thronnan, . . 489 
 
 Crutzinger v. Catron, . . 468, 481 
 
 Cudworth V. Scott, . . . .150 
 
 Culbertson v. Milhollin, . 51, 214, 
 
 429, S20 
 
 CuUen V. Myrick, 280 
 
 Culling V. Tuffnal, . 168, 169, 171 
 CuUnick v. Swindelle, .... 163 
 Culpepper v. Ashton, .... 493 
 
 Culver V. Godfrey, 409 
 
 V. Hayden, 344 
 
 V. Pearl, 226 
 
 Cumberland Bank v. Ham, . 247, 
 
 258, 272 
 
 Cumberland, &c., Co. v. Jeffries, 62 
 
 Cummings' Appeal, . . 256, 408 
 
 Cummings v. Coe, . 363, 440, 468 
 
 V. Cummings, . . 352 
 
 V. Little, . . . .415 
 
 Cummings v. Long, 135, 138, 4201 
 
 Cummins, In re, 202: 
 
 V. McGill, . . 325> 337 
 
 V. Webb, . . . . 332 
 
 Cumpston v. Field, ..■•59' 
 
 Cunans v. Hart, . . 148, 490, 495 
 
 Cunant v. T. Co., 552 
 
 Cunningham v. Cassidy, . 316, 346,. 
 
 347 
 3So> SHr 
 
 S17 
 • • 434. 
 . . 610 
 176, 407 
 
 V. Felker, 
 
 V. Schley, 
 
 V. Taylor, 
 
 V. Wood, 
 
 Curd V. Lackland, . 414)514,515 
 
 V. Wunder, 150 
 
 Curran v. Colbert, 252 
 
 Curry v. Davis, 161 
 
 V. Pringle, 21& 
 
 Curtis V. Ballagh, . . . 411,416' 
 
 V. Blair, 491 
 
 V. Curtis, 607 
 
 V. Doe, 308. 
 
 V. Farrier, 505; 
 
 V. Hubbard, 223; 
 
 V. Kimball, 207 
 
 V. McLagan, .... 164 
 V. Millard, . 363, 440, 468 
 V. Morton, . . . 432, 433 
 
 V. Mundy, 495 
 
 V. O'Brien, 115 
 
 V. Patterson, . . 222, 387 
 
 V. Root, . . 185, 190, 255,. 
 
 256, 603; 
 
 V. Swearinger, .... 4S8 
 
 Cushing V. Arnold, . . 63, 281 
 
 V. Ayer, . . . 352,498. 
 
 V. Hurd, 191 
 
 V. Laird, 402 
 
 V. Thompson, . 355, 437- 
 Cushman v. Carpenter, 51, 423, 424 
 Cushwa V. Cushwa, . . 412, 413 
 
 Custer V. Detterer, 359, 
 
 Cutter V. Colvin 55^ 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Cutter V. Gray, 281 
 
 V. Wadsworth, . ji, 423, 424 
 
 Cutting V. Pike, 195 
 
 V. Rockwood, . . . 305 
 Cyrus V. Hicks, 613 
 
 D. 
 
 Dacosta v. Davis, . 
 Daggett V. Adams, . 
 Dailey v. Russell, . 
 Dails V. Lloyd, . . 
 Dains v. Prosser, . 
 Dale V. Birch, . . 
 Daley v. Perry, . . . 
 Dallam v. Bowman, 
 Dalton V. Whittier, 
 Dalzell V. Lynch, 
 Dame v. Dame, . . 
 Damon v. Bryant, .. 
 Dan V. Nichols, . . 
 Dana v. Nichols, 
 Dancy & Co. v. Hubbis, 
 Dandistic v. Knonenberger, 
 Dane v. Gilmore, . 
 Daniel v. Harley, . 
 
 V. Hayward, 
 
 V. Holland, . 
 
 V. HoUingshead. 
 
 V. Justices, . 
 
 V. McHenry, 
 
 V. Moadwell, 
 Daniels v. Davidson, 
 V. Ellison, . 
 V. McBain, 
 V. Myer, 
 V. Sorrells, 
 Danley v. Rector, . 
 Darby v. Russell, . 
 Dargan v. Richardson, 
 Darling v. Bowen, . 
 v. Hammer, 
 V. Rollins, . 
 Darlington v. New York, 
 
 • S74 
 
 • 403 
 . 000 
 
 • 507 
 88, 116 
 
 • 444 
 . 264 
 
 • 344 
 . 166 
 . 172 
 
 i45> 167 
 213, 218 
 
 • 333 
 
 34, 
 
 504 
 270 
 
 59 
 206 
 368 
 117 
 
 147 
 361 
 
 391 
 412 
 407, 418 
 
 • 497 
 35, 142 
 
 . 308 
 
 • 523 
 504, 505 
 
 330 
 515 
 176 
 21S 
 SOI 
 296, 297 
 187, 196 
 
 Darlington v. Speakman, . . 71 
 
 Dartmouth College v. Woodward, 550 
 
 Dater v. Troy, &c., . . 606, 609 
 
 Davenport v. Alston, . . . . 88 
 
 V. Insurance Co., . 564 
 
 v. Lacon, . . 185, 261 
 
 V. Tilton, .... 262 
 
 Davey v. Hollingsworth, ... 55 
 
 David V. Harris, 465 
 
 V. Lent 410, 420 
 
 Davidson V. Clayland, . . .157 
 
 V. Cowen, . . 56, 399, 
 
 401, 500 
 
 v. Dallas, . . 221, 222 
 
 V. Frew, 37 
 
 V. Gaston, .... 58 
 
 v. McMurtry, . 350, 423 
 
 V. Waldron, 231, 234, 235, 
 
 238, 239, 267, 272 
 
 Davie v. Long, Adm'x, . 409, 604 
 
 Daviess v. Pratt, 521 
 
 v. Scott, 60 
 
 Davis v. Abbott, 33^ 
 
 v. Allen, 91 
 
 V. Andrews, . . . 122, 125; 
 
 v. Baker, J27 
 
 v. Bryan, 630 
 
 V. Campbell, . .371, 393, 
 408, 41 1 
 
 V. Clark, 611 
 
 V. Clement, 389 
 
 V. Collier, 460 
 
 v. Commonwealth, . . 238 
 
 V. Dorr, 569 
 
 V. Ehrman, 453 
 
 V. Evans, 190 
 
 V. Helm, 72, 74 
 
 V. Henson 122 
 
 V. Hunt, 633 
 
 In re, 602 
 
 V. Isle La Motte, . . .381 
 
 V. Jenkins, v 
 
 V. Jones, . . 167, 168, 1 7r 
 V. Kelly, 125 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Davis V. McVickers, .... 471 
 
 V. Marlborough, . . . ca^ 
 
 V. Maynard, . 378, 428, 433, 
 
 519. 525, SSI 
 
 144, IS7 
 
 • • S90 
 
 220, 638 
 
 . . 328 
 
 113, 138 
 . . 521 
 88, 116 
 . . 469 
 . . 41 
 
 42, SI, 423, 
 424, 569 
 
 • IS9 
 
 V. Mitchell, . 
 V. New Brig, 
 V. New Kirk, 
 V. Oswalt, 
 V. Peabody, 
 V. Pratt, . 
 V. Prosser, 
 V. Pryor, . 
 V. Richmond, 
 V. Robinson, 
 
 V. Seymour, 
 V. Stewart, 
 V. Tarwater, 
 V. Turner, 
 V. White, . 
 V. Wood, . 
 V. Wormack, 
 V. Young, 
 Davlin v. Stone, 
 Davoe V. Fanning, 
 Dawkins v. Smith, 
 Dawley v. Ayers, 
 Dawson v. Goodwin, 
 V. Holcomb, 
 V. Moons, . 
 V. Prince, . 
 V. Shaver, 
 V. Shepherd, 
 V. Wood, 
 Day V. Austin, . 
 V. Dunham, 
 V. Graham, 
 V. Rice, . . 
 V. Roberts, . 
 V. Sharp, . 
 V. Valletta, . 
 Dayton v. Lynes, 
 Dazey v. Orr, 
 Deaderick v. Smith 
 
 • 434 
 . 602 
 . 152 
 
 • 538 
 
 • 117 
 
 • 483 
 329, 420 
 
 . 114 
 322, 418 
 . 522 
 
 . 122 
 ■ 371 
 
 • IS9 
 
 • 399 
 
 • 492 
 
 • 633 
 203, 452 
 
 • I7S 
 . 166 
 
 • 497 
 336, 349, 489 
 
 ... 72, 74 
 30s, 382, 389 
 SI, 63, 213, 329 
 .... 326 
 .... 208 
 .... 619 
 . . 408,419 
 
 Deal V. Bogue, . 220, 539, S44, S4S 
 
 V. Bolton, 254 
 
 V. Harris, 214 
 
 Dean v. AUaley, . 166, 168 
 
 , 171 
 
 V. Connolly, . 483, 514 
 
 ,515 
 
 V. Frazier, . 330, 331 
 
 ,508 
 
 V.King, . 52,112,631 
 
 ,639 
 
 V. Morris, . . 
 
 . 
 
 • 330 
 
 V. Phillips, . . 
 
 
 • 541 
 
 V. Pyncheon, 
 
 364, sio 
 
 V. Thacher, . . 
 
 
 .236 
 
 V. Whittaker, . 
 
 
 637 
 
 Dearborn v. Phillips, . 
 
 , 
 
 116 
 
 Dearing v. Thomas, . 
 
 88 
 
 126, 
 
 
 137 
 
 ,447 
 
 Dearman v. Dearman, 
 
 
 IS3 
 
 Dearmand v. Courtney, 
 
 
 290 
 
 Deaton v. Qaines, . . 
 
 355 
 
 ,361 
 
 Deaver v. Parker, . . 
 
 
 190 
 
 De Bow v. Titus, . . 
 
 
 161 
 
 De Brugs v. Ferrett, . 
 
 
 620 
 
 Decker v. Bryant, . . 
 
 
 214 
 
 De Figaniere v. Young, 
 
 
 226 
 
 De GrafFenried v. Mitche 
 
 1, • 
 
 224 
 
 Dego V. Van Valkenburg 
 
 b, 419 
 
 ,468 
 
 Degraw v. Clason, . . 
 
 
 186 
 
 De Haas v. Bunn, . . 
 
 
 187 
 
 De Haven's Appeal, . 
 
 
 473 
 
 De Haven v. Landell, 
 
 
 481 
 
 De Jarnette v. Allen, . 
 
 
 182 
 
 De le Garza v. Booth, 
 
 
 446 
 
 De Vendal v. Malone, . 
 
 
 SOI 
 
 Degs v. Boys, . . . 
 
 
 493 
 
 Delafield v. Anderson, 
 
 
 194 
 
 Delano v. Wilde, . . 
 
 
 609 
 
 Delaplaine v. Hitchcock, 
 
 
 379, 
 
 
 419 
 
 ,468 
 
 Delaware, &c., R. R. Co. v 
 
 Blair 
 
 ,509 
 
 Delevan v. Pratt, . . 
 
 
 137 
 
 Deleware v. Ensign, . 
 
 , 
 
 152 
 
 Dellinger v. Tweed, . 
 
 . 
 
 87 
 
 Deloach v. Myrick, 
 
 . 
 
 287 
 
 V. State Bank, 
 
 ■ 53 
 
 ,427 
 
 Delogny v. Smith, . . 
 
 395 
 
 , S20 
 
TABLE OF .CASES CITED. 
 
 xli 
 
 Delovis V. Bort, 589 
 
 De Montmorency v. Devereux, 408 
 Demarest v. Wyncoop, . 504, 505 
 Den V. Abingdon, . 300, 482, 525 
 
 V. Despraux, 483 
 
 V. Downman, 472 
 
 V. Farley, 483 
 
 V. Hay 156, 193 
 
 V. Hillman, . . .73, 184, 276 
 V. Hodges, .... 316, 336 
 
 V. Hunt, 3Si 142 
 
 V. Johnson, 531 
 
 ' V. Jones, 94 
 
 V. Laconey, . . . .53, 54, 55 
 V. McKnight, . 483, 502, 504 
 
 V. Morse 46 
 
 V. Mulford, 470 
 
 V. Rickman, . . . 361, 504 
 
 V. Steelman, 194 
 
 V. Twitty 316, 336 
 
 V. Winans, 478 
 
 V. Young, 200 
 
 Denham v. Holeman, . . . .515 
 
 Dennis v. Arnold, 509 
 
 V. McCagg, 322 
 
 V. McLead, . .51, 423, 424 
 
 Denny v. Hamilton, 356, 553, 562 
 
 V. White, . . . 115, 126 
 
 Dent V. Simonson, 532 
 
 V. Smith, ...... 285 
 
 Dentler's Appeal, . . . 446, 447 
 
 Denton v. Livingston, 155, 258, 392, 
 
 552, 561, 562, 633 
 
 V. Nanny, 456 
 
 V. Woods, . . . 269, 501 
 
 Denvrey v. Fox, 229 
 
 Deposit Bank v. Berry, . 268, 269, 
 
 270, 271 
 
 V. Glenn, . . . 630 
 
 V. Wickham, . .113 
 
 Derry Bank v. Webster, . 380, 400 
 
 Desha v. Baker, 261 
 
 Despatch Line v. Bellamy, . .163 
 Desplate v. St. Martin, . . . 369 
 
 Detrick v. State Bank, . 141, 142, 
 
 143, 288 
 
 Dettmarr v. Met., &c.. Bank, . 492 
 
 Dever v. Akin, 597 
 
 Devine's Appeal, 501 
 
 Devlin V. Ward, 417 
 
 Devoe v. Brandt, . . . 271, 504 
 
 V.Elliott,. . 208,209,219, 
 
 314, 336 
 
 V. Kemp, . , 
 Devol V. Scales, . , 
 Dewalt's Appeal, . 
 Dewey v. Latson, 
 
 V. Long, . , 
 
 v. White, , 
 Dewitt V. Harvey, . 
 
 V. Moulton, , 
 Dewolf v. Mallett, , 
 Dewring v. Durant, 
 Dexter v. Harris, , 
 Deyo V. Van Valkenburgh, 
 Dezell V. Odell, . . 
 Dibble v. Briggs, . 
 
 V. Norton, . 
 Dibrell v. Eastland, 
 Dice V. Penn, . . 
 Dick V. Cooper, . . 
 V. Lindsay, . 
 Dickeman v. Burgess, 
 
 Dickenson v. Calvert, . 
 
 V. (Tollins, . 
 
 V. Cook, 
 
 V. Gilleland, 
 
 V. Kinney, . 
 
 V. Lippitt, . 
 
 V. Palmer, . 
 
 V. Talbot, . 
 
 V. Thompson, 
 
 Dickey v. Lyon, . . . 
 
 Dickson v. Adams, . . 
 
 V. Chorn, . . 
 
 V. Peppers, . 
 
 V. Watkins, . 
 
 ■ I7S 
 . 612 
 . 501 
 •358 
 • 194 
 284, 458 
 504, 505 
 . . 498 
 401, 425 
 . 78 
 
 496 
 419 
 
 243 
 
 464 
 
 270 
 
 599, 604 
 
 • • SIS 
 148, 318, 630 
 
 318, 417 
 318, 409, 
 
 435, 477 
 
 • 4S3 
 268, 272 
 
 • 438 
 
 ■ 437 
 . 401 
 
 • 4S8 
 
 • 432 
 
 ■ 353 
 496, 497 
 
 . 66 
 
 . 136 
 
 • 383 
 . 214 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Diechman v. Northampton B'k, 461 
 Diefenderfer v. Fisher, . 89, 92, 93 
 
 Diehl V. Holben, 92 
 
 V. Page, 5°2 
 
 Dillenbach v. Jerome, .... 000 
 
 Diller v. Roberts 390 
 
 Dillers v. Dickinson, .... 452. 
 
 Dillingham v. Bolt, 149 
 
 Dillon V. Byrne, 138 
 
 V. Rash, 376 
 
 Dingledine v. Hershman, 455, 517 
 Dinkrave v. Sloan, . . . 229, 240 
 Disbrough v. Jones, .... 502 
 V. Outcalt, . . . .194 
 Distilled Spirits, The, .... 492 
 
 Ditch V. Edwards, 377 
 
 Ditto V. Geoghegan, .... 423 
 Diwey v. McLaughlin, . . . 155 
 
 Dixon V. Adams, 66 
 
 V. Doe, 503 
 
 V. State, ...... 306 
 
 V. Watkins, 214 
 
 Doane v. Doane, 125 
 
 V. Lisle, 62 
 
 Doark v. Brubaker, . . . .151 
 Dobson V. Murphy, .... 527 
 
 Dobson's Appeal, 92 
 
 Dockray v. Mason, 194 
 
 Dodd V. McCraw, 265 
 
 Dodge V. Casey, 68 
 
 V. Chandler, 521 
 
 V. Doane, 463 
 
 V. Farns worth, .... 390 
 V. Mack, . 73, 26s, 275, 329 
 
 V. Porter, 84 
 
 Doe V. Abingdon, 300 
 
 V. Butcher, 534 
 
 V. Collins, 488 
 
 V. Creed, 453 
 
 V. Crocker, 608 
 
 V. Cunningham, .... 332 
 
 V. Dutton 255 
 
 V. Evans, 186 
 
 V. Flake 264 
 
 V. Gildart, 51 
 
 Doe V. Hamilton, 409' 
 
 V. Heath, . . 328, 380, 474 
 
 V. IngersoU, . 143, 390, 393, 
 
 SOI, 598 
 
 V. Jones, 586' 
 
 V. Lane, ... 311, 386, 522 
 V. McKinney, . . . 327, 332 
 V. Natchez Ins. Co., . . 606 
 V. Prarratt, . . .86, 141, 173 
 
 V. Reed 502 
 
 V. Roe, 472, 532 
 
 V. Rue, ... S3. 54, 61, 47^ 
 V.Smith, .... 172,. 526 
 V. Snyder, .... 515, 521 
 
 V. Swiggart, 606 
 
 V. Wilson, SjI 
 
 V. Withewick, 530 
 
 Dokes V. Hassler, 387 
 
 Dolby V. MuUins, is8 
 
 Dollarhide v. Muscatine, . . . S2i 
 Dominick v. Eacker, . . 213, 217 
 Donahoe v. McNulty, . . 483, 484 
 
 V. Shed, 213 
 
 Donahue v. Gamble, .... IS7 
 Donaldson v. Bank, &c., . 291, 350 
 
 In re, 280 
 
 V. Kerr 319 
 
 v. McRoy, . . . .418 
 Doner v. Stauffer, . S4o,- S4S, S48 
 
 Donham v. Wild, 258 
 
 Donnan v. Kane, 258 
 
 Donovan v. Finn, 155 
 
 D|ooley v. Cotton, . ... . . S7o 
 
 V. Wolcott, 304, 
 
 390, 392 
 
 Doolin V. Ward, 317 
 
 Doolittle V. Bryan, 588 
 
 Dopp V. Albee, 126 
 
 Dorell V. Dewart, 524 
 
 Doremus v. Walker, .... 28s 
 Dorland v. Dorland, . . 60, 61, ']^ 
 
 Dormire v. Cogly, 79 
 
 Dorr, In re, 247, 260 
 
 Dorrance v. Commonwealth, . 623, 
 629. 64a 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 Dorsey v. Campbell, .... 487 
 
 V. Dorsey, 291 
 
 V. Kendall, . . . . ' . 512 
 
 V. McFarland 136 
 
 Dorsey's Lessee v. Dorsey, . . 291 
 
 Doty V. Gorham, . . . 145, 166 
 
 V. Turner, .... 202, 392 
 
 Dougherty v. Cox, . . . 191, 194 
 
 V. Hughes, . . .438 
 
 V. Linthicum,igo, 356, 407 
 
 V. Marsh, . . 246, 515 
 
 Doughty V. Moss, . 
 
 Douglass V. Baker, . 
 
 V. Maloy, . 
 
 V. Massie, 
 
 V. Owens, 
 
 V. State, . 
 
 V. Twombly, 
 
 V. Whiting, 
 
 V. Winslow, 
 
 Douglass's Appeal, 
 Dow V. Lewis, . . 
 
 V. Sayward, 
 Dowdal V. Hamm, . 
 Dowdell V. Neal, 
 Dowling V. Clark, . 
 Downer v. Back, . 
 v. Brackett, 
 V. Dana, . 
 V. Hazen, . 
 Downing v. Brown, 
 Dowsman v. Potter, 
 Doyle V. Af. Meth. Church, 
 
 V. Glenn, . 
 
 V. Teas, . 
 Drake v. Brown, 
 
 V. Collins, 
 
 V. Hale, . 
 
 V. Mooney, 
 
 V. Murphy, 
 
 . . 429 
 
 . . 625 
 
 306, 401 
 
 187, 329 
 
 . . 522 
 
 224, 635 
 
 256, 463 
 
 . . 231 
 
 538, 540, 
 
 S42, 548 
 
 459 
 
 477 
 
 538 
 
 578 
 
 143. 254, 515 
 
 117 
 
 393 
 
 153, 262 
 
 80 
 
 285 
 
 325 
 68 
 
 314 
 . 204, 205 
 
 • 493,495 
 . . .179 
 . . ..329 
 
 • • -515 
 
 • 337, 521 
 243, 294, 346 
 
 .Draper v. Bryan 474 
 
 V. Bryson, . 483, 504, 505, 
 
 S's, 527 
 
 Draper v. Draper, 369 
 
 Draine V. McGavock 159 
 
 V. Smelzer, . . . 407, 408 
 
 Drentzer V. Bell, 135 
 
 Dresser v. Ainsworth, . . 235, 239 
 
 V. Norwood, .... 492 
 Drewe V. Lamson, . . . 251,263 
 
 V. Lord Norbury, . . . 497 
 Drinkwater v. Drinkwater, . . 000 
 Driver V. Spence, . . . .' . 472 
 Drury V. Batchelder, . . . .125 
 Dryfus v. Dridges, . . . 311, 424 
 
 Drysdale v. Mace, 501 
 
 Drysdale's Appeal, . . . . .185 
 Dubberly v. Black's Adm'rs, . 464 
 Dubois V. Dubois, . . . 159, 634 
 
 V. Harcourt, 239, 247, 262 
 
 V. Kelly, . . 165, 167, 168 
 Duckett V. Dalrymple, . 268, 619 
 Dudley v. Cole, . . 320, 370, 424 
 
 . 280 
 
 • 317 
 ■ 171 
 
 • 637 
 .318 
 . 265 
 
 468, 472 
 
 62, 209 
 
 . 488 
 
 . 271 
 
 • 275 
 . 125 
 
 468, 472 
 
 In re,. . . . 
 V. Little, . . . 
 V. Ward, ■ . 
 
 Duffil V. Spottiswood, . 
 
 Duffy V. Rutherford, . 
 V. Townsend, 
 
 Dufour V. Camfrac, . . 
 
 Dugal V. Baben, . . . 
 
 Dugen V. Vattier, . . 
 V. Waring, . . 
 
 Duke of Norfolk's Case, 
 
 Dulanty v. Pyncheon, . 
 
 Dumfour v. Ducroys, . 
 
 Dunbar v. Starkey, . 189, 356, 361 
 V. Tredennick, . 408, 502 
 
 Duncan's Appeal, . 234, 235, 240 
 
 Duncan v. A. L. Ins. Co., . . 362 
 V. Darst, . . . 585, 586 
 V. Duncan, .... 527 
 V. Forsyth, . . . .417 
 
 V. Harris, 249 
 
 V. McCumber, . . . 265 
 V. Matney, . 236, 290, 310 
 V. Robertson 473 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 Duncan v. Sanders, . 
 V. Thomas, 
 Dunham v. Hanna, . 
 V. Murdock, 
 Duncklee v. Locke, 
 Dunlap V. Cooke, . 
 V. Edgerton, 
 Dunn V. Frazier, . . 
 V. Merriwether, 
 
 V. Nichols, 
 V. Painter, 
 V, Rogers. . 
 
 , 412 
 285 
 
 S4I 
 548 
 226 
 
 369- 479> 528 
 114 
 
 330, 33 1 > S°8 
 . • 484, 
 514, 527 
 • ■ 449 
 . . 186 
 
 356, 397, 
 
 398, 402 
 
 . 614 
 
 • 445 
 94, 207 
 
 • 159 
 
 V. Tozer, . . 
 V. Vannerson, 
 Dunnica v. Coy, . • 
 Dupong V. Watkins, 
 Duprey v. Fernaye, 
 Durant v. Cabbage. 
 V. Johnson, . 
 Durell V. Hally, . , 
 
 V. New Orleans 
 Durham v. Heaton, 49, 56, 403, 429, 
 484, 514, 522 
 Durrette v. Briggs, . . . 472, 475 
 Dutch V. Edwards, . 
 Dutcher v. Leake, . 
 Dutertre v. Driard, . 
 Dutton V. Morrison, 
 
 V. Tracey, . 
 
 Duval V. Bibb, . . 
 
 V. Rollins, . 
 
 V. Waters, . 
 
 Duvall V. Waggoner, 
 
 V. Waters, . 
 
 Dwinell v. Edwards, 
 
 V. Soper, . 
 
 Dwinnelles v. Boynton 
 
 Dygert v. Pletts, 
 
 Dynes v. Hoover, , 
 
 Dyson v. Sheely, 
 
 V. State, . 
 
 499 
 183 
 356 
 174 
 477 
 
 377 
 
 234, 271 
 539, 540, 
 541, 544 
 295, 394 
 . . 502 
 . . 112 
 382, 481 
 504, 505 
 382, 481 
 . . 92 
 
 307, 395 
 . . 640 
 
 • • 474 
 214, 218 
 . . 124 
 
 . . S2I 
 
 Eakin v. Boyd 383 
 
 V. Burger, . . 49, 429, 522 
 
 Eames v. Stevens, 569 
 
 Earl V. Camp, . 88, 213, 394, 526 
 
 V. Reeve, 248 
 
 V. Smith, 630 
 
 v. Wilsmore, 504 
 
 of Bristol V. Wilsmore, . 504 
 of Shrewsbury v. Trappes, 609 
 
 Earl's Appeal 272 
 
 Earle v. Earle, 125 
 
 V. Thomas, . . . 214, 403 
 Early v. Rodgers, . . . .59, 596 
 
 Easly V. Dye, 202 
 
 Easterday v. Joy, 516 
 
 East Grinstead's Case, Duke of, 491 
 
 Eastland v. Jordan, 145 
 
 Eastman v. Bennett, . . 392, 447 
 V. Curtis, . 377, 389, 428, 
 519, 520, 526 
 V. Schettler, .... 486 
 . . 48 
 . . 156 
 412, 414 
 . . 92 
 . . 272 
 
 • • 275 
 408, 619 
 . . 68 
 
 Eaton V. Campbell, . . 
 V. Whiting, . . 
 
 Eberhart v. Gilchrist, . 
 
 Eberhart's Appeal, . . 
 
 Eberle v. Mayer, . . 
 
 Eckhols V. Graham, . 
 
 Eckstein v. Calderwood, 
 
 Ector V. Ector, . . . 
 
 Eddie v. Davidson, . . . 540, 544 
 
 Eddy V. Baldwin, 186 
 
 V. Knapp, . . 305, 309, 344 
 Edgar v. Caldwell, . . . 546, 637 
 V. Clevenger, . . . .616 
 Edgecumbe v. Stranger, . . . 491 
 Edgerton v. Municipality, 160, 565 
 Edmunds v. Watson, .... 374 
 Edmundson v. Hooks, . . . 476 
 Edsall V. Hamburgh & Co., 317, 523 
 
 Edson V. Newell 149 
 
 Edwards v. Allen, 292 
 
TABLE OF CASES CITED. 
 
 xh 
 
 Edwards v. Banksmith, 
 V. Brinker, . 
 V. Fry, . . . 
 V. Harber, . 
 V. Ingraham, 
 V. Lewis, . . 
 V. Toomer, . 
 
 Eells V. Day 
 
 Egereny v. Buchanan, . 
 
 Eggart V. Barnstine, . 
 
 Eggleston v. Mundy, . 
 
 Ehrman v. Kramer, 
 
 • 493 
 . joo 
 
 . 125 
 
 ■ iSi 
 
 ■ 464 
 . 604 
 
 • 459 
 
 ■ 384 
 
 • 390 
 
 ■ 575 
 . ISO 
 
 ■ 339 
 Eighth Nat. Bank v. Fitch, 547, 548 
 
 Ela V. Shepherd, . . 
 
 V. Welch, .... 
 
 Elder v. Morrison, . . 
 
 Eldridge v. Chambers, 
 
 V. See Yup Co., 
 Elfe V. Gadsden, 
 Elias V. Farley, . . 
 V. Verdugo, . 
 Elkin V. People, . . 
 Ellen V. Ray, . . , 
 EUenger v. Moriarty, 
 Elliott V. Armstrong, 
 
 V. Cronk, . . 
 
 V. Doughty, . 
 
 V. EUery, . . 
 
 V. Flanagan, .- 
 
 • 438 
 . 482 
 
 ■ 471 
 
 ■ 423 
 
 • 6.34 
 . 381 
 . 64 
 . Ill 
 
 Knott, 76, 81, 82, 289, 429, 
 5*2, S16 
 
 . 381 
 . 608 
 213, 219 
 252, 268 
 
 • 542 
 
 • 325 
 
 • 23s 
 23, 124 
 
 V. Persal, . 
 V. Pearshall, 
 V. Whitmore, 
 Ellis V. Griffith, . 
 V. Smith, 
 V. Taylor, , 
 V. Ward, 
 V. White, , 
 Ellison V. Wilson; 
 Ells V. Tousley, . 
 Ellsworth V. Lockwood, 
 Elnure v. Harris, 
 Elson V. O'Dowd, 
 
 517, 606 
 
 365 
 112 
 
 72 
 497 
 635 
 J 94 
 122 
 
 303 
 186 
 
 349 
 194 
 614 
 
 Elston V. Robinson, . . 137, 139 
 
 Elton, In re 540 
 
 Eltzroth V. Webster, .... 88 
 
 Elwes V. Man, .... 166, 168, 
 
 169, 171 
 
 Elwood, In re, 359 
 
 Ely V. Hawley, 206 
 
 Ely's Lessee v. McGuire, . .189 
 
 Emanuel v. Cocke, 230 
 
 Emerick v. Gilman, .... 566 
 Emerson v. Littlefield, . 504, 505 
 
 V. Sansom 510 
 
 V. Smith, 93 
 
 V. Upton, 399 
 
 V. Towle, . 428, 520, 526 
 
 Emery v. Chesley, 570 
 
 Emley v. Dunn, . . 367, 377, 383, 
 
 403, 528 
 
 Emons v. Williams, .... 420 
 
 Empson v. Soden, . . . . 165 
 
 Endicott v. Perry, 367 
 
 England v. Clark, . 330, 331, 461 
 
 V. Lewis, 345 
 
 Englehart v. Dunbar, ... 54, 79 
 English V. Helmuth, .... 435 
 
 V. Smock, 614 
 
 Enloe V. Miles, 324 
 
 Ennis v. Walker, 366 
 
 Entrop V. Williams, .... 58 
 Epley V. Witherow, 368, 490, 491 
 
 Erb V. Erb 432, 524 
 
 Erie City Bank v. Compton, . 596 
 Erie R. R. v. Ackerson, 49, 57, 601 
 
 Erskine v. Staley, 262 
 
 Erwin v. Dundas, 42, 43, 72, 75, 264, 
 
 275. 329, 420 
 V. Lowry, .... 309, 342 
 
 Esnault v. Cooley, 309 
 
 Espey V. Lake, 492 
 
 Esselman V. Wells, 521 
 
 Estep V. Weems, . . . .37, 366 
 Esterbrook v. Hapgood, . . .391 
 
 Estes V. Booth, 606 
 
 V. Williams, . . . 202, 265 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 380, 
 
 Etheridge v. Edwards, 
 
 V. Smith, 
 Etter V. Smith, . . 
 Eubank v. Rail, . . 
 Evans v. Ashby, 
 
 V. Ashley, . 
 Barnes, 
 Davis, 
 , Jones, . 
 Lamar, 
 . Landon, 
 Lobaddie, 
 V. McGlasson, . 
 V. Matson, . . 
 V. Parker, 376, 
 V. Roberts, 160, 
 V. Rogers, . 
 V. Spurgeon, 
 V. Wilder, . 
 Evelyn v. Lewis, 
 Everhart's Appeal, 
 Evertsen v. Booth, . 
 Evertson v. Sawyer, 
 Everett v. Herritt, . 
 Every v. Edgerton, 
 Ewing V. Ainsworth, 
 v. Hatfield, . 
 _ V. Higby, . 
 V. St. Louis, 
 Eyrick v. Hetrick, . 
 
 214, 245, 
 272, 527 
 . . 186 
 
 • • 36s 
 . . 606 
 367, 420 
 
 309. 47S 
 24s, 264, 276 
 
 392, 521, 526 
 .... 498 
 
 ... 265 
 306, 308, 409 
 ... 588 
 ■ 499, 504 
 • • -394 
 
 393, S12, 5H 
 161, 165, 241 
 
 ■ 337 
 • '434 
 186, 189, 474 
 247, 259 
 . . 92 
 
 • • 173 
 172, 481 
 208, 636 
 
 • • 634 
 . . 266 
 141, 328 
 
 • • 470 
 . . 618 
 . . 198 
 
 Eager v. Campbell, 374 
 
 Fairbanks v. Stanley, .... 628 
 Fairfield v. Paine, . . . 399, 400 
 
 Fairlie v. Birch, 389 
 
 Faires v. Walker, . . . 166, 167 
 
 Fake v. Edgerton 570 
 
 Falkner v. Guild, 422 
 
 V. Leith, 184 
 
 Fall Creek v. Smith, .... 214 
 Fann v. Atkinson, 275 
 
 Farin v. Crawford, 280 
 
 Paris V. Banton 233 
 
 v. State 214 
 
 Farlee v. Lee, . . . . 144, 214 
 
 Farmer v. Rodgers, . . 596, 605 
 
 V. Simpson, . . 125, 138 
 
 ' V. Turner, 117 
 
 Farmers, &c.. Bank v. Beaston, 1 59 
 V. Clark, . 412 
 V. Commercial, 
 &c., . 189 
 V. Cowan, 155 
 V. Fordyce, 237 
 V. Franklin, 114 
 V. Kent, . 175 
 V. Kingsley, 
 
 252,253,255 
 
 V. Martin, 330 
 
 V. Massey, 265 
 
 V. Wallace, 359 
 
 Farmers' L. & T. Co. v. Hen- 
 
 drickson 170 
 
 Farmington v. Somersworth, . 400 
 
 Fafnham v. Hildreth 228 
 
 . . 501 
 147, 151 
 
 • -.369 
 . .615 
 . . 283 
 . . 164 
 
 • • 74 
 163, 170 
 
 428,474, S18 
 . 164 
 
 Farnsworth v. Child, . 
 V. Shepard, 
 Farnum v. Perry, . . 
 Farquaharson v. Pitcher, 
 Farr v. Newman, . . 
 Farrant v. Thompson, 
 Farrar v. Brooks, . . 
 v. Chaufetete, . 
 V. Hamilton, 
 v. Stackpole, 
 V. Wingate, 
 Farrell v. Hildreth, 
 V. Klump, . 
 V. Parlier, . , 
 Farrington v. Sinclair, 
 Farris v. State, . . 
 Fassett v. Talmadge, 
 Faught v. Byrne, 
 Faunce v. Sedgwick, 
 Faust v. Haas, . . 
 
 . 627 
 
 • 154 
 
 • 304 
 ■ 355 
 
 268, 272 
 . 214 
 
 • S7S 
 
 • SO 
 
 • 319 
 417, 523 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Favors v. Glass, 
 
 Fawcett v. Kinney, 
 
 Fearle, In re, .' . 
 
 Fehley v. Barr, . . 
 
 Feise v. Wray, . . 
 
 Fell V. Price, . . . 
 
 Fenelon v. Lonergan, 
 
 Fenno v. Coulter, . 
 
 Fenny v. Durant, . 
 
 Fenton v. Folger, . 
 
 Fenwick v. Fenwick, 
 V. Laycock, 
 V. Potts, . 
 
 Fergus v. Woodworth, 
 
 Ferguson v. Lee, . 
 
 V. Miles, . , 
 V. Smith, 
 V. Tutt, . 
 V. Williams, 
 Fernandez v. Bein, . 
 Field V. Arrowsmith 
 V. Howell, 
 V. Ireland, 
 V. Jones, . . 
 V. Lawson, 
 V. Milburn, . 
 V. Simco, . . 
 V. Smith, . . 
 ■ V. United States, 
 Fieldhouse v. Croft, 
 Fiero v. Betts, . . 
 Fifield V. Richardson, 
 Figg V. Snook, . 
 Filby V. Miller, . 
 Filkins v. Brockway, 
 Filley v. Phelps, 
 Finch V. Bishop, 
 V. Brooke, 
 V. Earle, &c. 
 V. Martin, 
 ■ V. Shaw, . 
 Findlay v. U. S. Bank, 
 Fine v. St. Louis, . . 
 
 . ii6 
 
 • 194 
 ■ 159 
 
 38, 480 
 . 263 
 . 481 
 
 • 429 
 290.. 332 
 
 . 300 
 
 • 548 
 
 • 391 
 17s, 237 
 . . 492 
 
 346, 412, 
 473, 606 
 
 150. 377, 425 
 484, S27 
 
 ■ • 439 
 397, 433, 448 
 . . 202 
 
 3S9, 366 
 
 • • 407 
 
 • • 36s 
 57°, S7I 
 174, 247 
 
 • • 155 
 
 23 
 
 I, 263, 26s 
 . . 152 
 392, 447 
 • • 394 
 . . 158 
 542, 546 
 83, 
 
 377 
 193 
 504 
 203 
 539, 540, 545 
 482, 525 
 . . 61 
 
 • • 275 
 . . 421 
 
 ■ • 49' 
 173. 353 
 346, 628 
 
 Finley v. King, .... 252, 255 
 V. McConnell, . . 121, 136 
 V. Railroad Co., 229, 231, 240 
 
 "v. Sly, 119 
 
 Finn v. Shatton, 206 
 
 Finney v. Commonwealth, . ..n 
 V. Pennsylvania, . . . 359 
 
 Finnin V. Maloy, 112 
 
 First V. Miller, . . 144, 159, 392 
 
 First Nat. Bank v. Jaggers, . .281 
 
 V. Redman, 263, 277 
 
 V. Rodgers, . 254 
 
 Fish V. Sawyer, 427 
 
 Fishback v. Lane, 125, 126, 135, 420 
 
 Fisher v. Baldwin 6og 
 
 V. Clyde 353 
 
 v. Gordon, 628 
 
 V. McGiri", 218 
 
 V. Seltzer, 319 
 
 Fisk V. Gray, 81 
 
 V. Herrick, . . 540, 541, 545 
 
 Fitch's Appeal, 457 
 
 Fitch V. McGie, 282 
 
 V. Pinkard, . . . 189, 290 
 V. Smith, .... 344, 391 
 V.Tyler, . . 289,295,304, 
 
 305, 521 
 
 Fitler v. Fossard, 221 
 
 V. Patton, 382 
 
 Fitts v. Johnson, . . . 210,211 
 
 Fitzgerald v. Garvin 397 
 
 v. Fauconbridge, . 491 
 Fitzgibbon v. Lake, .... 606 
 Fitzherbert v. Shaw, . . 166, 170 
 Fitzhugh v. Hellen, . . 183, 384 
 
 Fitzler v. Patton, 522 
 
 Flagg v. Mann, . . 490, 491, 496 
 Flanagan v. Tinen, .... 76 
 Fleece v. Goodrium, .... 60 
 
 Fletcher v. Bradley 376 
 
 v. Holmes, . . 309, 423 
 
 v. Mott, 69 
 
 v. Peck, 504 
 
 V. Pratt, 226 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Fletcher v. Stone, 3SS 
 
 Fleming v. Dayton, .... 82 
 V. Maddox, 403, 409, 528 
 
 Flick V. Trovell, 391 
 
 Flint V. Lewis 496 
 
 Flinto V. Woodin, 318 
 
 Floide V. Bertholde, .... 530 
 
 Flournoy v. Johnson, .... 186 
 
 V. Rubey, .... 630 
 
 Flower v. Livingston, . . . .158 
 
 V. Nuncaster, .... 144 
 
 Floyd V. Bethel, 530 
 
 V. Goodwin, 340 
 
 V. McKinney Si4 
 
 V. Mozier, 90 
 
 Flynn v. Williams, 360 
 
 Fogg V. Fogg, ... 88, 137, 447 
 
 Folan V. Folan, 597 
 
 Foley V. Knight, 152 
 
 Folger V. Kenner, 165 
 
 Folson V. Carli, . 125, 136, 289, 381, 
 390, 526 
 
 V. Chesley, 276 
 
 Fondrin v. Planters Bank, . . 631 
 
 Fontain v. Beers, 189 
 
 Foote V. Colvin, . 186, 189, 194 
 Forbes v. Hall, .... 290, 291 
 
 Ford *. Babcock 215 
 
 V. Cobb, 169 
 
 V. Geauga Co., .... 252 
 
 V. Johnson, 117 
 
 V. Philpot, 189 
 
 V. Rigby 611, 614 
 
 V. Skinner, 254 
 
 V. Teal 114 
 
 V. Treasurer, 214 
 
 Fore V. Manlove 157 
 
 Forelander v. Hicks 417 
 
 Foreman v. Hunt, . 314, 468, 480 
 V. Proctor, .... 266 
 Forkner V. Stewart, . . . .152 
 Forest v. Camp, . . . . 515, 528 
 V. Moorman, .... 491 
 Forster v. Hayman 327 
 
 Fortner v. Flannagan, 
 Forsyth v. Marbiiry, 
 Forward v. IVIarsh, . 
 Fosdick V. Barr, 
 V. Risk, 
 Foss V. Stewart, 
 Foster v. Cockburn, 
 V. Cookson, 
 V. Coronel, 
 V. Dryfus, 
 V. Gault, 
 V. Jackson, 
 V. Jones, . 
 V. Mabe, 
 V. McGregor, 
 V. Mellen, 
 V. Potter, 
 V. Smith, 
 V. Wallace, 
 V. Wood, 
 Foulger v. Taylor, 
 Foulk V. Colburn, 
 Fountain v. Anderson, 
 Fournier v. Currier, 
 Foust V. Ross, . . 
 Fowble V. Rayberg, 
 Fowke V. Woodward, 
 Fowler v. Burdett, . 
 V. Currie, . 
 V. Farnsworth; 
 V. Gilmore, . 
 V. Pearce, . 
 V. St. Joseph, 
 V. Stoneman, 
 V. Trebein, 
 Fox V. Hanbury, 
 V. Hatch, . 
 V. Hempfield R. R., 
 V. Hills, . , 
 V. Lamar, . 
 V. Mensch, . 
 V. Wood, 
 Frakes v. Brown, 
 France v. Sedgwick, 
 
 . .,208 
 . . 285 
 
 ■ • 5S 
 
 481, 503 
 
 361, 364, 370 
 
 . . 636 
 
 • • 338 
 
 • • 392 
 . . 62S 
 
 • • 395 
 . . 214 
 
 573, 574 
 . .516 
 
 146, 337 
 
 • • 153 
 355. 358 
 561, 563 
 . . 285 
 
 • • 147 
 . . 618 
 
 247, 259, 2Si 
 471, 476 
 
 80, 403 
 
 • 527 
 
 398, 399, 470 
 
 • .• 5°2 
 
 ■ 71, 72 
 
 • • 532 
 
 • • 533 
 . . 119 
 
 ■ • 470 
 . .615 
 414, 417 
 
 183, 187, 263 
 540, 544 
 
 • • 179 
 259, 561 
 
 • • 30s 
 
 ■ • 73 
 
 • • 330 
 . . 214 
 
 35, 361, 515 
 • • • 319 
 
TABLE OF CASES CITED. 
 
 xh 
 
 Frances v. Clarkson, .... 374 
 
 Francis v. Church, 41 1 
 
 V. Nash, . . . 141, 177 
 
 V. Norris, 311 
 
 Frank v. Brasket, 255 
 
 V. Harrington 160 
 
 V. San Francisco, . . 565 
 Franklin v. Blossom, . . 190,. 385 
 V. Coffee, . 124, 125, 126 
 Franklin Bank v. Batchelder, . 262 
 Franklyn V. Thomas, . . . .615 
 Frazier V. Barnum, . . . .113 
 V. Steward, . 310, 330, 425, 
 427> 517 
 • • 27s 
 
 Freckelton v. Kietsell, 
 Frederick v. Devol, 
 Freeburger's Appeal, . 
 Freeby v. Tupper, . . 
 Freedly v. Hamilton, . 
 Freeland v. Southworth, 
 Freeman v. Caldwell, . 
 
 V. Carhart, . 
 
 V. Elmendorf, 
 
 V. Hill, .' . 
 
 V. Howe, . 177, 
 
 V. Jordan, 
 
 V. McGraw, . 
 
 V. Mehane, . 
 
 V. Morse, 
 
 V. Paul, . . 
 
 V. Rawson, . 
 
 V. Rushton, . 
 
 V. Smith, . . 
 
 y. Thayer, . 
 Freeny v. Ware, . . 
 Frelinghuysen v. Colden, 
 Freliten v. Slayter, 
 Frellsen v. Anderson, 
 French v. Allen, . . 
 V. Eaton, . . i 
 V. Edwards, . 
 V. French, . . 
 V. Hall, . . . 
 V. Loyal Co., . 
 
 g 
 
 191 
 
 497; 
 
 247, 
 
 90, 
 
 169 
 269 
 
 364 
 500 
 . . 169 
 330, 461 
 
 397 
 618 
 488 
 260 
 437 
 356 
 488 
 
 339 
 399 
 152 
 
 574, m 
 576 
 
 293 
 621 
 
 534 
 492 
 240 
 265, 290 
 423, 424 
 347, 472 
 . 60, 66 
 
 • ■ 590 
 
 • • 495 
 
 French v. Lund, 365 
 
 V. Meehan, . . 86, 140, 173 
 
 V. Snyder, 233 
 
 V. Willett, . . . 214, 218 
 Fretwell v. Morrow, .... 470 
 Fretz V. Heller, . . ■ . . . . 332 
 
 Frey v. Leeper, 28 
 
 Friar v. Ray, 453 
 
 Friedlander V. Mahoney, . .119 
 
 Friedly v. Sheetz, 500 
 
 Frink v. Phelps, . . . 601, 604 
 Frisbee v. Langworthy, . . . 637 
 
 Frisch v. Miller 27 
 
 Frizzle v. Veatch, . . . 471, 477 
 Frost V. Beekman, . . . 498, 499 
 
 V. Dugal, 625 
 
 V. McLeod, 605 
 
 V. Mott, ... 92, 93, 630 
 
 V. Naylor, 112 
 
 V. Reynolds, 194 
 
 V. Shaw, . . .92, 112, 630 
 
 V. Willard, 277 
 
 Frow V. Downman, .... 285 
 
 Fry V. Branch Bank, &c., . . 464 
 
 V. Porter, ...... 490 
 
 Fryatt v. Sullivan, 169 
 
 Fryer v. Dennis, ... 72, 286 
 FuUam v. Stearns, . . . 163, 640 
 Fuller V. Abrahams, . . . .317 
 
 V. Acker, 155 
 
 V. Allen, 338 
 
 V. Bennett, . . . 491, 492 
 
 V. Field, 339 
 
 V. Holden, 392 
 
 V. Jocelyn, 27; 
 
 V. Loring, . 245, 253, 254 
 
 V. Sears, 151 
 
 V. Taylor, 167 
 
 FuUerton v. Mack 224 
 
 V. Shauffer, .... 509 
 FuUerton's Appeal, .... 403 
 
 Fulton V. Daniel, 326 
 
 V. Moore, . . . 367, 368 
 Fulton Bank v. N. Y., &c., Co., 491 
 
I 
 
 TABLE OF CASES CITED. 
 
 Funk V. McReynold's Adm'rs, 189 
 Furlong v. Edwards, .... 265 
 Furman v. Christie, . . 263, 449 
 V. Haskin, .... 574 
 FyflFe v. Beers, . . . . 123, 126 
 
 G. 
 
 Gage V. Barnes, . . 
 V. Dauchy, . 
 
 Gaines v. Clark, . . 
 
 Galatian v. Irwin, . 
 
 Galbraith v. Fisher, 
 
 Gale V. Ward, . . 
 
 Galen v. Brown, 
 
 Galena v. Amy, . . 
 
 Gall V. Lewis, . . 
 
 Galpin v. Abbott, . 
 V. Page, . . 
 
 Gait V. Dibrell, . . 
 V. Lewis, . . 
 
 Galusha v. Sinclear, 
 
 Gamble v. Dabney, 
 V. St. Louis, 
 V. Woods, . 
 
 Gano V. Slaughter, . 
 V. Thompson, 
 
 Gansevoort v. Gilleland, 
 
 Gantley v. Ewing, 179, 
 
 Garbett v. Veale, . . 
 
 Gardner v. Barnes, 
 
 V. Campbell, , 
 V. Cover, . , 
 V. Hbsmer, 
 V. Lisk, . . 
 V. McEwen, , 
 V. Morse, . . 
 V. Schermerhorn, 
 
 Gardiner v. Tubbs, 
 
 Garfield v. Hatmaker, 
 
 Garland v. Chambers, 
 
 Garlick v. Sangster, 
 
 Garner v. Cutler, 
 
 V. Willis, . 
 
 308; 
 
 . . 213 
 
 183, 197 
 209, 240 
 
 • • SOS 
 263, 3S9 
 
 171 
 
 iSS 
 
 56s 
 
 472 
 
 499 
 60s, 608 
 199, 499 
 
 • • S27 
 29s, 304 
 . . 198 
 . . 615 
 
 • • 329 
 
 . . so 
 
 IBs, 189 
 . . 401 
 '; 419, 433 
 544, S48 
 3S6 
 248 
 
 391 
 ', 378, 392 
 423 
 152 
 
 317 
 411 
 340 
 198 
 340 
 374 
 4S0 
 
 245, 380 
 
 Garrett v. Lynch, . 
 V. Moss, 
 V. Patchin, . 
 Garrett's Appeal, . 
 Garrettson v. Cole, 
 Garrow v. Carpenter, 
 V. Thompson. 
 Gart, In re, . . . 
 Garth v. Campbell, 
 
 V. Ward, . 
 Garther v. Martin, 
 Garvin v. Paul, . 
 Gaskell v. Marshall 
 Gaskill v. Aldrich, 
 V. Dudley, 
 V. Morris, 
 Gassaway v. Hale, 
 Gassett v. Sanborn, 
 Gaston v. Asplin, 
 V. White, 
 Gates V. Francis, 
 V. Gaines, 
 
 . . 606 
 
 349, 4i3 
 . . 117 
 . . 88 
 
 38, 361, 534 
 . . 619 
 185, 189 
 
 • • 540 
 204, 205 
 
 • • 493 
 237, 240 
 . . S42 
 
 • • 175 
 
 • • 337 
 . . s66 
 
 325, 326, 368 
 
 . .S16 
 
 . . ISO 
 
 . . 614 
 
 72, 426 
 
 • • 474 
 315. 340, 428, 
 
 474, S18 
 
 V. Madderly, . . . .156 
 
 Gaugh V. Henderson, . . 483, S22 
 
 Gault V. Hall 304 
 
 V. Woodbridge, 289, 291, 292 
 Gavitt V. Doub, . . 111,397,398 
 
 Gay V. Caldwell, 389 
 
 V. Edwards, 448 
 
 v. Middleton, S36 
 
 V. Smith, 606 
 
 Gaylor v. Hunt, 63 
 
 Gazelle, The 360 
 
 Gearhart v. Thorpe, .... 423 
 
 Gee v. Fane, 45 
 
 Gefton V. Powell, 520 
 
 Gelhaar v. Ross, 1 50 
 
 Geller v. Hoyt 173, 3S3 
 
 Gelston V. Hoyt, 590 
 
 V. Thompson, ... 82 
 
 Gentry v. Allison, 194 
 
 V. WagstafF, . 86, 141, 173 
 Geoghagan v. Ditto, 370, 423, 510 
 
TABLE OF CASES CITED. 
 
 li 
 
 George v. Williamson, . . .187 
 V. Wisdom, . . . .601 
 
 V. Wood 498 
 
 Garrard v, Gerrard, . . •• . 42 
 V. O'Reilly, .... 492 
 
 Gerrish v. Clough, 453 
 
 V. Mace, 356 
 
 Getzler v. Saroni, . . . 122, 187 
 
 Gibbs V. Cobb, 495 
 
 V. Mitchell, 327 
 
 V. Neely 425 
 
 V. •Thompson, . . . .512 
 Gibbons v. Brassier, . . . .411 
 
 Gibler v^. Trimble, 494 
 
 Gibson v. Bailey, 306 
 
 V. Gibbs, n6 
 
 V. Hughes, 232 
 
 V. Love, 151 
 
 V. Stevens, . 540, 545, 546 
 
 V. Winslow, 321, 428, 474, 
 
 S18, 519, 601 
 
 Gifford V. Gifford, 70 
 
 Gifft V. Anderson, 337 
 
 Gilbert v. Carter, 412 
 
 V. Merrill, 357 
 
 V. Moody, 247 
 
 Gilchrist v. Bank, &c., . . . 384 
 
 V. Comfort, .... 437 
 
 Gilcreest v. Magill, . . 533, S35 
 
 Giles V. Palmer, ... 38, 361 
 
 V. Pratt 55, S14 
 
 Gilkey v. Dickerson, 240, 264, 265, 
 276, 482 
 
 Gill V. Lyon, 352 
 
 V. McAteer, 490 
 
 V. Stevens 170 
 
 Gillett v. Edgar, . . . 369, 439 
 
 Gilliss V. Brown, 182 
 
 Gilman v. Contra Costa Co., . 565 
 v. Hamilton, .... 494 
 
 v. Stetson, 399 
 
 v. Thompson, 290, 304, 525 
 
 V. Williams, 87, i il, 248, 281 
 
 Gilmore v. Gale, 150 
 
 Gilmore v. Johnson, 
 v. Moore, . 
 v. Williams, 
 Gilmour v. N. A. Land Co., 
 Gilpin v. Howell, . 
 Gimble v. Ackley, . 
 Ginocho v. Figari, . 
 Girard Bank v. Phil. 1 
 Gist V. Mcjunkin, . 
 Gittens v. Lowry, . 
 Givan v. Doe, . . 
 Givens v. Campbell, 
 Gladney v. Deavers, 
 Glascow V. Smith, . 
 Glasier v. Eve, . . 
 Glass V. Ellison, 
 Glassner v. Wheaton, 
 Glassells v. Wilson, 
 Glasspoole v. Young, 
 Glenn v. Clapp, . 
 
 v. Gill, . 
 
 v. Maloney, 
 
 v. Peters, 
 
 V. Wotton, 
 Glidden v. Chase, 
 
 V. Philbrick, 290, 295, 
 400, 
 
 462 
 
 446 
 
 93 
 S4I 
 S6r 
 285 
 569 
 R., 45o> 454 
 452 
 361, 362 
 
 • 327 
 69, 610 
 
 • 93 
 
 • 469 
 . 526 
 . 156 
 
 • 153 
 ■ 403 
 . 636 
 . 412 
 
 247 
 427 
 172 
 
 434 
 
 295 
 
 305, 
 401 
 
 174, 
 290, 
 
 Glidewell v. Spaugh, .... 495 
 
 Globe, The, 589, J90 
 
 Glossop V. Pole 283 
 
 Glover v. Boswell, 350 
 
 V. Horton, 219 
 
 V. Whittenhall, . . . oj? 
 
 . . . 164 
 
 Goddard v. Bolster, 
 V. Gould, . 
 Godfrey v. Gibbons, 
 Godman v. Smith, . 
 Godwin v. Gregg, . 
 Goep V. Gartiser, . 
 
 i66, 
 
 168, 169 
 210, 244 
 112, 126 
 . . 180 
 • • 499 
 
 Goff V. O'Connor 501 
 
 Gofton V. Champion, . . . . 61 
 
 Going V. Farwell, 493 
 
 Goit V. Dickerman, . . 533, 535 
 Gold V. Bissell, 571 
 
Ill 
 
 TABLE OF CASES CITED. 
 
 197, 
 539. 
 
 Gold V. Johnson, 
 Goldman v. Clarke, 
 Goldsborough v. Greene, 
 Goldschmidt v. Hamlet, 
 Goldson V. Gardinier, 
 Goll V. Hinton, . . 
 Gonbeam v. N. O. & N. R. 
 Gooch V. Atkins, 183. 
 Good V. Combs, 408. 
 
 V- Fogg, . . 
 Goodair v. Burns, . 
 Goodall V. Rowell, . 
 Goode V. Mayson, . 
 Goodenow v. Duffield, 
 Goodman v. Smith, 
 
 V. Walker, 
 Goodnong v. Shepard, 
 Goodrich v. Jones, . 
 Goodright v. Gilbert, 
 Goodtitle v. Cummins, 
 Goodwin v. Floyd, . 
 V. Mix, 
 
 V. Richardson, 
 Goore v. McDaniel, 
 Gordon v. Armstrong, 
 
 V. Harper, . 
 
 V. Shields, . 
 
 V. Sims, 
 Gore V. Brazier, 34, 35 
 Gorham v. Blazo, . 
 
 V. Gale, 
 
 V. Hood, . 
 
 V. Wing, 187. 
 Goss V. Du Fresnoy, 
 Gossett V. Howard, 
 Gossom V. Donaldson 
 Gott V. Mitchell, , . 
 V. Powell, . . 
 V. Williams, . 
 Goubot V. De Crouy, 
 Gouchenor v. Cockre'U, 
 Goudy V. Hall, . . 
 Gould V. Woodward, 
 Goup V. Cartier, 
 
 123, 
 
 407, 
 ,36, 
 
 400, 
 198, 
 
 464 
 
 131 
 . . 603 
 . . 250 
 
 • • 493 
 
 • • 542 
 R-, 23s 
 46s, 466 
 546, 619 
 . . 87 
 
 • ■ 407 
 
 • • 356 
 
 ■ • 4SI 
 
 • • iSS 
 112, 126 
 
 ■ • S3 
 . . 615 
 164, 165 
 379. 433 
 379. S04 
 330, 430 
 . . 605 
 
 • • S4I 
 . . 261 
 
 • • 17s 
 144, 342 
 . . 116 
 409, 486 
 141, 296' 
 . . 296 
 . . 210 
 401, 402 
 468, 474 
 
 ■ • 544' 
 216, 217 
 605, 606 
 . . 214 
 605, 609 
 . . 276 
 
 • • 391 
 . . 126 
 517, 606 
 . . 498 
 497, 503 
 
 Goust V. Martin, 488 
 
 Governor v. Bancroft, . . . 398 
 
 V. Carter, . . 242, 639 
 
 ■ V. Gibson, .... 249 
 
 V. Lynch, . 173, 352, 353, 
 
 502, 503 
 
 V. Powell, . . 190, 242 
 
 V. Warren, . . . .174 
 
 Gowan v. Jones, ..... 432 
 
 Grace v. Mitchell, . . . 203, 219 
 
 Graff V. Castleman, .... 493 
 
 V. Kip, - . .453 
 
 V. Musser, 70 
 
 V. Smith 34 
 
 Graham v. Blakie, 326 
 
 V. Chander, . 82, 631, 639 
 V. Crockett, .... 90 
 V. Eagan, . . . 608, 609 
 In re, . . . . 113, 118 
 
 V. Lynn, 79 
 
 V.' Moore, 197 
 
 V. Price, 42 
 
 V. Roberts, .... 620 
 
 V. Wilson, . . . .146 
 
 Grand Gulf Bank v. Henderson, 45 1 
 
 Grandy v. McPherson, . . . 391 
 
 Grannis v. Smith, 151 
 
 Grant V. Bagge, 219 
 
 V. Cole, 491 
 
 V. Grant 569 
 
 V. Harris, 394 
 
 V. Lloyd, 317 
 
 V. McLaughlin, . 338, 589 
 V. Mechanics Bank, . . 562 
 
 V. Mills, 502 
 
 V. Williams, 175 
 
 Grapengether v. Ferjervary, . 410, 
 
 517 
 
 Graves v. Graves, 501 
 
 V. Hall, 49 
 
 V. Hayden, 521 
 
 V. Merwin, 142 
 
 Gray v. Brig Nardello, . . . 606 
 V. Cole, . 491 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Gray v Griswold 446 
 
 V. Hawes, 423 
 
 v.^ Holdship 146 
 
 V. McCance, 193 
 
 V. Tappan 361 
 
 Gray's Case, 318 
 
 Graydon v. Barlow, .... 266 
 
 V. Stone, 445 
 
 Greaton v. Pike, 93 
 
 Greerslade v. Dare, .... 490 
 
 Gregg V. Bostwick, . . 120, 125 
 
 V. Crawford, .... 639 
 
 V. Strange, . . . 395, 512 
 
 Gregory v. Cotterill, . . 202, 462 
 
 V. Ford, 81 
 
 V. Cover, 489 
 
 V. Perdue, .... 350 
 
 V. Shadwell, . . .73, 74, 
 
 328, 329 
 
 _ V. Starke, . . . 249, 464 
 
 V. Striker, 153 
 
 V. Tozier, 295 
 
 Green v. Allen, 273 
 
 V. Armstrong, 161, 165, 168 
 V. Burke, 235, 254, 255, 256 
 V. Cole, .... S3, 527 
 V. Glassbrooke, . 397, 400 
 
 V. Greene, 541 
 
 V. HaskeH, 610 
 
 V. Johnson 449 
 
 V. Lowell, 445 
 
 V. Marks, 
 
 V. Morse, . 
 V. Palmer, 
 V. Ramsay, 
 V. Ross, . 
 V. Shields, 
 V. Slay tor, 
 V. Van Buskirk, 
 V. Watrous 
 V. White, . 
 Greenleaf v. Sanborn, 
 Greenmyer v. Ins.' Co., 
 
 125, 126, 135, 
 136, 420 
 63s, 636 
 119, 158 
 
 353 
 546 
 
 597 
 
 493, 495 
 
 593 
 
 500 
 
 493 
 114 
 
 500 
 
 Greenup v. Brown, 
 
 . . so 
 
 V. Porter, 
 
 • • 439 
 
 V. Stoker, 35 
 
 3, 412, 413 
 
 Greenwood v. Bairstow, 
 
 • • 504 
 
 V. Maddox, 
 
 . . 122 
 
 V. Naylor, 
 
 . . 270 
 
 V. Spiller, . 
 
 • • 155 
 
 Gresham v. Thumb, . 
 
 • • 532 
 
 V. Walker, . 
 
 • • 92 
 
 Grew V. Breed, . 
 
 ^2 
 
 Gridley v. Watson, 
 
 . . 266 
 
 Gridley's Heirs v. Phillip 
 
 3, • -344 
 
 Grier v. Yontz, . . . 
 
 ■ . 326 
 
 
 . . AXl 
 
 V. Gannaway, . 
 
 233, 242 
 
 V. Isbell, . . . 
 
 623, 628 
 
 V. Richardson, . 
 
 • ■ 154 
 
 V. Spencer, . . 
 
 420, 606 
 
 V. Sutherland, 88, 
 
 90, 91, 106 
 
 V. Thompson, . 
 
 229, 315, 
 
 
 336, 343 
 
 Griffith V. Bogert, . . 
 
 473, 526 
 
 V. Fowler, . . 
 
 330, 590 
 
 V. Griffith, 491, 492, 49S, sos 
 V. Hadley, 346, 408, 409, 419 
 V. Huston, . . .' 179, 196 
 V. Judge, . . - . ■ . 416 
 
 V. Ketchum 395 
 
 V. Lyle 48 
 
 V. Lynch, 78 
 
 V. Trenthen, 113, 135, 138 
 
 Grignon's Lessee v. Astor, 480, 517, 
 520, 527, 589, 590, 606 
 
 Grimstone v. Carter, . . 502, 503 
 
 Grissell v. Peto, 
 
 Griswold v. Hill, 
 
 V. Sheldon, 
 V. Smith, . 
 V. S tough ton, 
 
 Gro V. Huntington Bank, 
 
 GrofT V. Jones,- . . 
 V. Ramsey, . 
 V. Robbins, . 
 
 Groom v.' iDixon, . 
 
 • 409 
 
 • 574 
 
 • 149 
 
 ■ 5C4 
 
 • 346 
 
 ■ 464 
 347,415 
 
 • 496 
 
 • 489 
 I4S, 264 
 
iiv 
 
 TABLE OF CASES CITED. 
 
 Gross V. Fowler, . 468, 474, 526 
 
 V. Pearsey, 486 
 
 Grosvenor v. Chesley, . 242, 295 
 V. Little, . . . .525 
 
 Grove v. Aldrich, 386 
 
 Grover v. Flye 189 
 
 V. Howard, . 290, 291, 295, 
 
 304, 305, 391, 525 
 
 Grubbs v. Ellison 135 
 
 V. Pickett, 533 
 
 Gruman v. Raymond, . . 216, 219 
 Grymes v. Boweren, . . 167, 168, 
 169, 170 
 V. Bryne, . . . 117, ii8 
 Guardians, &c., v. Lawrence, . 273 
 Gue V. Canal Co., . . . JS'; 55^ 
 
 Gureant v. Anderson 505 
 
 Guillory v. Deville, .... 87 
 
 Guibd V. Guiod 122 
 
 Guion V. Knapp, ..... 352 
 Guitteau v. Wisely, . . 605, 609 
 
 Gulick V. Ward, -^317 
 
 Gunn V. Barry, 122 
 
 V. Gudehus, 89 
 
 V. IJowell, . . 389, 393, 522 
 Gunnison v. Twichell, . . .121 
 Gunter v. LafTan, . . . 321, 546 
 
 Guptil V. McFee, 118 
 
 Gut V. Frazier, 413 
 
 Guthrie v. Gardner, . . . .186 
 
 V. Jones, . . . 169, 170 
 
 Gwin V. Latimer, ..72, 74, 329, 420 
 
 V. Lock, 439 
 
 Gyfford v. Woodgate, . . 389, 394 
 
 H. 
 
 Haberson v. Blurton, .... 544 
 Hackwith v. Dameron, . . . 503 
 
 Hadden v. Clark 515 
 
 V. Johnson, 366, 368, 468 
 
 Haddix v. Haddix, 322 
 
 Haden v. Walker, . . ._ . . 463 
 Hagaman v. Jackson, . . . . 1 96 
 
 Hagaman v. Johnson, . . . 367 
 
 Hagan v. Jacques, 19S 
 
 V. Lucas, 247, 259, 260, 261, 
 28s, 453 
 
 V. Ross, 593 
 
 Haggaitt V. Hunt, 418. 
 
 Haggerty v. Wilber, 208, 219, 223,, 
 
 224, 234, 238, 239, 571 
 
 Hagthorp v. Hook's Adm'rs, . 501 
 
 Hailey v. Curry, . 269, 479, 528: 
 
 Haines v. Beach, 480' 
 
 V. Lindsey, 469 
 
 Haldeman v. Brasfield, . . . 389 
 
 Hale V. Heaslip, . . . 137, 139 
 
 V. Miller, . . 269, 479, 527 
 
 Hale's Appeal, .... 267, 396 
 
 Haley V. Davis, 113 
 
 V. Williams, 466 
 
 Hall V. Ayer, .... 55, 385, 401 
 V. Crocker, . . ' . . . 382 
 
 V. Davis, 618 
 
 V. Harris, 276 
 
 V. Heffly, . . 184, 185, 371 
 
 V. Hough, 252 
 
 V. Hoxie, 281 
 
 V. Jones, .... 203, 3'66. 
 
 V. Moore, 52 
 
 V. Penny 105, 11 9. 
 
 V. Ray, . . ; . . 323, 629 
 
 V. Sampson, 150- 
 
 V. Schultz, 141 
 
 V. Smith, 501 
 
 V. Southworth, .... 636- 
 
 V. Sroufe 14.6- 
 
 V. Tomlinson, .... 242 
 
 V. Tuttle 248- 
 
 V. Urquhart, 411 
 
 V. Whiston, 240 
 
 Halleck v. Guye, 368 
 
 Hallenbeck v. Gamer, 533, 534, 535 
 
 Hallett V. Collins, 263, 
 
 V. Thompson, . . . .186 
 
 Hallowell v. Page, 391 
 
 Halsey v. Martin, 19c: 
 
TABLE OF CASES CITED. 
 
 Halsted V. ^ank, . . . 499, 505 
 
 V. Tyng, 439 
 
 Hamblen v. Hamblen, . 314, 521 
 Hamblin v. Worneke, 93, 135, 420 
 
 Hambright, In re, 280 
 
 Hamburg Manuf. Co. v. Edsall, 317, 
 
 523 
 Hamilton Vi Bredeman, . . . 575 
 V. Burch, .... 407 
 V. Decker, .... 215 
 V. Hamilton, . 265, 317 
 V. Henry, . . 598, 603 
 V. Lyman, ... 71, 76 
 V. Matlock, .... 491 
 V. Mitchell, .... 284 
 V. Moreland, . . . 483 
 V. Quimby, . . 411, 473 
 V. Reedy, 247, 259, 281 
 
 V. Royse, 
 V. Russell, . 
 V. Shrewsbury, 
 V. Subbaker, 
 V. Ward, . . 
 
 Hammatt v. Bassett, . . 
 V. Wyman, . 
 
 Hammer v. Freeze, 
 
 V. McCormick, 
 
 Hammond v. Eaton, . 
 V. Mather, 
 V. Myrick, 
 V. Nairn, 
 V. Scott, 
 
 Hamner v. GrifHth, 
 
 Hamper, In re, . . 
 
 Hampson v. Weir, . 
 
 Hampton v. Allison, 
 In re, . . 
 
 Hamsmith v. Espey, 
 
 Hanauer v. Cas^y, . 
 
 Hanby v. Tucker, . 
 
 Hancock v. Brinker, 
 V. Metz, . 
 V. Morgan, 
 V. Titus, . 
 
 • • 491 
 . . 151 
 
 423, SH 
 
 • • 473 
 158, 633 
 
 . 306 
 206, 420 
 . . 92 
 . . 54 
 
 398, 399 
 . . 60 
 246, 254, 464 
 . . 619 
 . .516 
 
 • • 255 
 544, 545 
 
 45» 613 
 . 203 
 . 210 
 
 • 330 
 . 451 
 ■ 424 
 
 • 194 
 
 • 407 
 126, 137 
 
 • • 177 
 
 Hand v. Grant, 318, 320, 325, 326, 
 
 367, 368, 382, 514 
 
 Handy v. Dobbin, . 144, 155, 158 
 
 V. Heard, 471 
 
 Hanford v. Artcher, . 
 Hankey v. Garratt, 
 Hankinson v. Barbour, 
 Hanly v. Carneal, . . 
 
 V. Mancius, . . 
 
 V. Morse, , 
 
 V. Sidelinger, 389, 398, 402 
 Hanna v. His Creditors, ... 35 
 Hannah v. Felt, . . . 262, 277 
 Hannegan v. Hannah, . 173, 353 
 Hannell v. Worsham, . . 457, 462 
 Han. & St. Joe R. R. v. Brown, 412, 
 414, 609 
 
 150, 152 
 
 • • 539 
 
 • ■ 495 
 . . sS 
 173, 353 
 
 503 
 
 Hanrahan v. O'Reilly, 
 
 Hanschidt v. Stafford, 
 
 Hansford v. Barbour, . 
 
 Hanks, In re, ... 
 V. Neal, . . . 
 
 Hanson v. Barnes, . . 
 V. Herrick, 
 
 Hanway v. Wallace, . 
 
 Hapgood V. Goddard, 
 
 Harbet's Case, . . . 
 
 Harbison v. Harrell, . 
 V. McCartney, 
 
 Hardesty v. Wilson, . 
 
 Hardin v. Cheek, . . 
 V. McCause, . 
 
 Harding v. Janes, . . 
 V. Spivey, . . 
 V. Stevenson, 
 V. Yarborough, 
 
 Hardy v. Broadd^s, 
 V. Donellan, 
 V. Gascoigne, 
 V. Heard, 
 V. Simpson, 
 V. Summers, 
 
 Hare v. Pearson, 
 
 Harget v. Blackshear, 
 
 . . r68 
 
 . . 605 
 
 . . 412 
 
 . . 522 
 
 • • 515 
 73, 521 
 
 . . 150- 
 
 • ■ 194 
 596, 620 
 
 352, 574 
 
 5°. 457 
 
 ■ 277 
 
 • 464 
 
 483, 527 
 
 329 
 
 273 
 
 264. 
 
 158 
 
 325 
 6n 
 
 543 
 387 
 I go 
 52S 
 
 503 
 161 
 214, 526 
 
 55, 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 Hargreaves v. Bothwell, 
 Hargrove v. De Lisle, 
 Harkins v. Clement, 
 
 V. Kingsland, 
 Harkness v. Sears, . 
 Harlan v. Harlan, . 
 Harman v. Abbe}', . 
 
 V. Childress, 
 
 V. James, . 
 Harmon v. Gould, . 
 
 V. Larned, . 
 
 Harney v. Morton, . 
 
 Harnickle v. Orndorf, 
 
 Harper v. Fox, . . 
 
 V. Harper, . 
 
 V. Hill, 
 
 • • 492 
 . . 500 
 . . 78 
 
 • • 245 
 163, 169 
 
 171, 524 
 
 . 152 
 
 • 383 
 
 ■ 194 
 
 ■ 214 
 
 • 477 
 
 • 535 
 . 412 
 . 242 
 
 ■ 239 
 
 76, 81, 409, 429, 
 484, 516 
 
 V. Miller, 399 
 
 V. New Brig, .... 590 
 
 V. Reno 499 
 
 V. Tapley, . . . 360, 499 
 
 V. Terry, 58 
 
 Harrell v. Martin, 85 
 
 Hai^rington v. Brown, .... 407 
 
 V. Reilly, ^ ... 329 
 
 V. Slade, .... 494 
 
 Harriman v. Cummings, . 296, 304 
 
 V. State, 306 
 
 Harris v. Alcock, . . 51, 54, 154 
 V. Carter's Adm'rs, 495, 503 
 
 : V. Dale, 114 
 
 V. Dennie, . . . 177, 247 
 
 V. Ellis 266 
 
 V. Flye, . . 
 V. Irwin, . . 
 V. Kirkpatrick, 
 V. Makepeace, 
 V. Murray, . 
 V. Parker, 
 V. West, . . 
 Harrison v. Agricultural Bank, 
 V. Britton, 
 V. Cachelin, 
 V. Choteau, 
 
 SOI 
 470 
 629 
 
 350 
 156, 431 
 322, 418 
 . . 52 
 55 
 
 • • 349 
 239. 310 
 
 • • 239 
 
 
 . • 434 
 
 
 ■ • 234 
 
 
 504, JOS 
 
 
 191, 5°5 
 
 
 . . 117 
 
 
 472, 476 
 
 
 . . 322 
 
 
 . .114 
 
 
 158, 159 
 
 
 308, 488 
 
 
 . . 284 
 
 Harrison v. Doe, 
 
 V. Harrison, 
 V. Harwood, , 
 V. Hollis, . 
 V. Kramer, 
 V. Martin, . 
 V. Maxwell, 
 V. McHenry, . 
 V. Mitchell, 
 V. Paynter, 
 V. Rapp, . 
 V. Singleton, 
 V. Sipp, 251, 262, 308, 320, 
 321, 424 
 V. Soles, . . 64, 316, 523 
 
 V. Sterry 539 
 
 V. Thompson, . . . 384 
 
 V. Wilson 275 
 
 V. Wood, 421 
 
 Harsh v. Morgan, 361 
 
 Harshey v. Blackman, . . 422, 507 
 Hart V. Adams, .... 398, 40"! 
 
 V. Blight, 412 
 
 V. Burnett, 196 
 
 V. Dubois, .... 208, 213 
 v. Farmers', &c., Bank, . 492 
 
 V. Felder, 504 
 
 V. Homiller, . . . .46, 501 
 V. Lindsay, . . .38, 361, 534 
 V. Rector, . 366, 427, 475, 476 
 V. Reeves, ...... 192 
 
 V. Ten Eyck, 277 
 
 V. Waterhouse, .... 466 
 Harteaux v. Eastman, .... 72 
 Hartford v. Jackson, . . . .156 
 
 Harth v. Gibbs, 330 
 
 Harthill, In re, 281 
 
 Harthouse V. Rikers 116 
 
 Hartley v. Stead 460 
 
 Hart'ieb v. McLean, .... 258 
 
 Hartman's Appeal, 454 
 
 Hartshorne v. Hartshorne, 355, 361 
 
 Hartwell v. Bissell, 160, 161, 247, 341 
 
 V. Fitts, igo 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 Hartwell v. Root, 
 
 Harvey v. Crickett, 
 V. Fisk, . 
 V. Harvey, 
 V. Seashpl, 
 V. Spaulding, 
 V. Wicksham, 
 
 Harwell v. Worsham, 
 
 Harwood v. Murphy, 
 v. Phillips, 
 
 Hasbrouck v. Bouton, 
 
 Haskell v. Manlove, 
 
 Haskins v. Everett, 
 
 Hassell v. Southern Bank. 
 
 • S2I 
 
 • 539 
 309. 330 
 
 . 170 
 . 612 
 
 • 437 
 
 ■ 429 
 204, 205 
 
 ■ 71 
 
 ■ 73 
 
 • 174 
 
 • 439 
 S.44, 548 
 '■ • 141, 
 
 384, 632 
 
 Hastings v. Burning, &c., Co., . 407 
 
 V. Cunningham, . . 57 
 
 V. Johnson, . . .52, 423 
 
 Has well V. Parsons, . . .92,113 
 
 Hatch V. Bartle, . . 
 
 V. Bigelow, . 
 
 V. Wagner, . 
 
 Hatcher v. T. W. W. R. R., 
 
 Hatfield v. Wallace, . 
 
 Hathaway v. Goodrich, 
 
 V. Hemingway, 
 
 S'S 
 495 
 527 
 551 
 196 
 
 389 
 396, 516 
 
 V. Howell, . . 240, 245 
 
 Haughey v. Albin, . . . 280, 282 
 
 Haughton v. Eustis, .... 262 
 
 , Uaughwout V. Murphy, . . . 493 
 
 Havely v. Lowry, . 234, 235, 238 
 
 Haven v. Adams, 493 
 
 Havens v. Healey, 186 
 
 V. Snow, 402 
 
 Hawille v. Smith, 426 
 
 Hawley v. Cramer, . . 64, 317, 368, 
 417, 468, 495. 520, 523 
 
 Hawkins v. Jones, 600 
 
 v. May, 185 
 
 V. Miller, . . . 331, 508 
 
 V. Pierce, 114 
 
 V. Vineyard, 438 
 
 Hawkins's Appeal, 280 
 
 Hawks V. Baldwin, 391 
 
 h 
 
 609, 615 
 189, 193 
 
 • • 135 
 254. 256 
 542, 546 
 
 156, 
 
 Hawkshaw v. Parkins, 
 
 Hawthorne v. Bronson, 
 
 V. Smith, . 
 
 Hayden v. Agent, &c., 
 
 v.Binney, . . 
 
 V. Dunlap, . 407, 408, 410, 
 
 473, 488, 512, 515, 518 
 
 V. Hayden, 506 
 
 V. Shed, . . 
 
 Hayes v. Rees, . . 
 
 V. Shattuck, . 
 
 v. Susby, . . 
 
 V. Ward, . . 
 
 Haygood v. Harris, . 
 
 Haynes v. Baker, . 
 
 v. Breaux, . 
 
 V. Courtney, 
 
 v. Small, . 
 
 V. Tunstall, 
 
 V. Wheat, . 
 
 Hays V. Bernard, . 
 
 V. Doane, . . 
 
 V. Heidelberg, 
 
 V. McGuire, . 
 
 Hays's Appeal, . . 
 
 Haywood v. Hildreth, 
 
 V. Sledge, 
 
 Hazard v. Burton, , 
 
 V. Hodges, . 
 
 V. Israel, 
 
 Hazleton, In re, . . 
 
 Head v. James, . . 
 
 Heald v. Bennett, . 
 
 Heapy v. Paris, . . 
 
 Heard v. Fairbanks, 
 
 Hearn v. Parker, 
 
 Heath v. Daggett, . 
 
 V. West, . . 
 
 V. Westervelt, 
 
 Heatley v. Furster, . 
 
 Heaton v. Findley, . 
 
 Hecker v. Jarrett, . 
 
 Heebner v. Chave, . 
 
 Heenan v. Evans, . 
 
 31 
 
 638 
 
 540 
 
 404, 517 
 
 . 388 
 
 73> 353 
 . 269 
 
 85* 192 
 
 ; 325 
 . 508 
 
 202, 392 
 628 
 
 390, 464 
 
 49 
 i6g 
 426 
 
 500 
 
 9: 413, 419 
 . 281 
 
 . 246 
 
 • 337 
 ■ 414 
 
 202, 633, 635 
 280 
 427, 475 
 
 • 464 
 55, 275 
 
 . 160 
 . 624 
 . 630 
 . 148 
 
 • 546 
 
 • 493 
 170, 171 
 214, 216 
 . . 69 
 386, 388 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 Heermance v. Vernoy, 
 Hefferlin v. Sinsindorfer, 
 
 Heffner v. Lewis, . 
 V. Reed, . . 
 Heilner v. Imbrie^ . 
 Heimberger v. Boyd, 
 Heinselt v. Smith, . 
 Heistner v. Fortner, 
 
 239= 
 
 Heitzman v. Divil, . 
 Heizer v. Fisher, 
 Helfrisch v. Weaver, 
 Helfrisch's Appeal, . 
 Helm V. Alexander, 
 V. Darby, . . 
 Helton V. Hanson, . 
 Hemmenway v. Cutler, 
 Henderson v. Brown, 
 
 V. Downing, 
 
 V. Evans, 
 
 V. Gandy, 
 
 V. Herod, 
 
 V. Morgan, 
 
 V. Morrell, 
 Hendricks v. Davis, 49, 309, 
 
 403, 429. 
 
 V. Lewis, . . 
 
 V. Robinson, . 
 
 V. Snediker, . 
 
 Hendrickson v. R. R. Ca, 
 
 SIS; 
 
 . . 168 
 
 . .308, 
 433, 488 
 
 . . 170 
 
 • • 391 
 
 • • S04 
 . . 189 
 
 • • 458 
 361, 498, 
 499, 504 
 
 . 272 
 
 459 
 360 
 
 459 
 291 
 197 
 
 433 
 292 
 216 
 
 507 
 
 394 
 82 
 
 432 
 149 
 618 
 326, 
 522 
 119 
 192 
 196 
 
 483, 
 527 
 
 Hendrickson's Appeal, . . . 497 
 Henley v. Branch Bank, &c., 476, 483 
 
 S04 
 
 484 
 192 
 
 S5 
 421 
 
 35° 
 193 
 634 
 392 
 306, 378 
 
 Hennequin v. Naylor, 
 Henry v. Ferguson, 
 V. Fullerton, 
 v. Henry, 
 V. Keyes, 
 V. Mitchell, . 
 V. Patterson, 
 V. Rich, . . 
 v. Stone, . . 
 V. Tilton, . . 
 
 Henry v. Ward, .... 
 Henshaw v. Wells, . . . 
 Hensley v. Baker, . . . 
 Hanson v. Edwards, . 92, 
 Hepburn v. Kerr, . . . 
 Herkimer Bank v. Brown, 
 Herlakenden's Case, . . 
 Hernandez v. Creditors, . 
 Herndon v. ilice, . . . 
 Herod v. Bartley, . . . 
 Herrick v. Graves, . 125, 
 
 Herries v. Jameson, 
 Herring v. Dowell, . 
 
 V. Happock, 
 
 V. PoUey, . 
 Herron v. Hughes, . 
 Herschfeldt v. George, 
 Hersey v. Turbett, . 
 Hervey v. Champion, 
 Hess V. Cole, . . . 
 Hester v. Keith, . . 
 Hetherington v. Hayden 
 Hetrick v. Campbell, 
 Hewes v. Wiswall, . 
 Hewett V. Loosmere, 
 Hewitt v. Templeton, 
 Hewson v. Dygert, . 
 
 Heydon v. Heydon, 
 
 336, 
 362, 
 
 Heydrick v. Eaton, . . 
 Heyman v. Babcock, . 
 Heywood v. Hildreth, . 
 Hezekiah, /« re,. . . 
 Hibbard v. Eastman, . 
 Hicks V. Moore, . . . 
 V. Perry, . . , 
 V. Ross, . . . 
 Hickman v. BoflSn, . . 
 
 V. Caldwell, . 
 
 V. Hickman, . 
 
 v. O'Neal, . 
 Hickox V. Coates, . 269. 
 
 . . 521 
 173- 353 
 330, 389 
 144, 630' 
 437, 588 
 . . 272 
 
 • • 145 
 
 • • 509 
 ■ • 7r 
 337, 546- 
 
 320, 424, 
 
 514, 606 
 
 45, 549 
 
 • 575 
 
 • 175 
 304, 381 
 
 . 238 
 
 91, 122 
 
 360, 494 
 
 262 
 
 398 
 226 
 561 
 
 147 
 
 • 496 
 . . 492 
 122, 136 
 
 339, 347, 
 420, 42? 
 
 539, 540. 
 541, 544 
 
 • • 295 
 344, 345 
 209, 481 
 
 'H7 
 612 
 
 71 
 403 
 402 
 521 
 269, 275 
 270 
 67 
 272, 273 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Hidden v. Saunders, .... 576 
 
 Hiern v. Mill 491 
 
 Higdon V. Conway 214 
 
 riiggins V. Higgins, . . . .123 
 . V. Kendrick, .... 203 
 
 V. Peltzer, 423 
 
 High V. Batte 504 
 
 V. Nelms, 528 
 
 Hight V. Steamboat, &c., . . . 590 
 High tower v. Handlin, ... 42 
 
 Hihn V. Peck, 472 
 
 Hildreth v. Sands, 186 
 
 V. Thompson, 74, 329, 420 
 
 Hill V. Baker, 305 
 
 V. Bateman, 213 
 
 V. Beebe 149 
 
 V. Da Lannay, 597 
 
 V. Fleming, 254 
 
 V. Grant, 390 
 
 V. Harris, . . 234, 238, 340 
 V. Haynes, . . . . 213, 245 
 
 V. Hill, 325 
 
 In re, 280 
 
 V. Johnson, 88, 92 
 
 V. Kendall, . 36, 428, 474, 518 
 
 V. Kling, 390 
 
 V. L. & M. R. R., . 159, 561 
 
 V. Loomis, 114 
 
 V. Middlesex, 389 
 
 V. Pratt, 209, 230 
 
 V. Sewald, 163 
 
 V. Smith, 191 
 
 V. Wait, . . . 213, 631, 639 
 
 V. Walker, 437 
 
 V. Wentworth, 163 
 
 V. Whitfield, . . . 412, 474 
 
 V. Worsley, 493 
 
 V. Wynn, 146 
 
 iHilton V. Harrison, 295 
 
 Hinckley v. Buchanan, . 391, 396 
 
 Hindle v. Bell, 176 
 
 Hine v. Dodd 491 
 
 Hinkle v. Blake " . .384 
 
 Jlinkley v. Bulkam, . . . '. 633 
 
 Hinman v. Borden, . . . 
 V. Leavenworth, 
 Hines v. Scott, . 472, 483, 
 Hinesley v. Hunn, 
 Hinson v. Hinson, 
 Hinton v. McNiel, 
 V. Mitchell, 
 Hiscock V. Kempe, 
 Hitchcock V. Covil, 
 
 V. Hotchkiss, 
 V. Roney, 
 Hitchman v. Walton 
 Hoag V. Warden, . 
 Hoard v. Wilcox, . 
 Hobart v. Frisbie, . 
 Hobbs V. Beavers, . 
 V. Bibb, . . 
 Hobein v. Murphy, . 
 Hobson V. Doe, . . 
 V. Kissam, . 
 V. Thellusson, 
 Hodges V. Biggs, 
 V. Laird, 
 V. Mitchell, 329, 
 Hodgkinson v. Walley, 
 Hodgson V. Butts, , 
 V. Dean, , 
 V. Farrell, 
 V. Gascoigne, 
 V. MMward, 
 Hodson V. Tibbetts, 
 Hoe's Case, . . . 
 Hoffman v. Danner, 371 
 V. Neuhas, 
 V. Strobecker. 
 Hoffman's Appeal, . 
 Hofter V. State, . . 
 Hogan V. Smith, . . 
 Hogg V. Wilkins, . 
 Hogshead v. Carruth. 
 Hogsett V. Ellis, . . 
 Hoit V. Holcomb, . 
 Hoitt V. Webb, . . 
 Hoke V. Henderson, 
 
 19s, 
 
 393; 
 
 ,386, 
 
 208, 376 
 
 19°. 545 
 514, 518 
 464 
 
 239> 433 
 532 
 365 
 68 
 
 175 
 183 
 403 
 163 
 380 
 
 255 
 189 
 318 
 152 
 
 515 
 308 
 285 
 265 
 220 
 402 
 517 
 59 
 499 
 498 
 416 
 
 530 
 214 
 422 
 33 
 39°i39i 
 136 
 318 
 360 
 602 
 194 
 
 417 
 464 
 527 
 417 
 125 
 528 
 
 399: 
 403; 
 
 341 
 
 421 
 
 253, 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 Holbrook v. Champlain, 
 Holden v. Pike, . . . 
 
 V. Pinney, . . 
 Holeman v. Holeman, . 
 HoUawell v. Eastwood, 
 V. Skinner, . 
 HoUiday v. Frisbie, 
 Hollingsworth v. Dickey, 
 Hollisterv. Giddings, . 
 HoUoway v. Johnston, 
 
 V. Richardson, 
 
 V. Washington, 
 
 Holman v. Collins, . 
 
 V. Holman, 
 Holmes v. Baldwin, 
 
 V. Barbin, . 
 
 V. Clifton, . 
 
 V. Mclndoe, 
 
 V. McMaster, 
 
 V. Mentz, . 
 
 V. Nuncaster, 
 
 . 256 
 
 • 352 
 . 125 
 
 37, 329 
 . 163 
 
 • 403 
 87, 564 
 
 . 522 
 
 • 50 
 . 378 
 . 480 
 . 602 
 
 Powell, . 
 
 Remsen, 
 
 Tremper, 
 
 V. Williams, 
 Holroyd v. Wyatt, . 
 Holt V. Robinson, . 
 Holton Vi Holton, . 
 Homan v. Liswell, . 
 Homesly v. Hogue, 
 Homestead Cases, . 
 Honnor v. Hanks, . 
 Honore v. Blakewell, 
 Hood V. Fahnstock, 
 V. Moore, . . 
 Hooker v. Hudson, . 
 
 V. Smith, 
 Hooks V. York, . . 
 Hopkins v. Burch, . 
 V. Carey, . 
 V. Chambers, 
 V. Deeraifenried, 
 
 308, 419, 423 
 
 75, 329 
 390, 520 
 
 . . 147 
 . . 388 
 
 43, 49, 332 
 468, 481 
 
 539, S44 
 144, 15s, 
 158, 213 
 
 • • 503 
 
 • • 589 
 145, 163, 168, 
 
 169, 170 
 
 • • S3 
 
 • • 544 
 392, 447 
 
 • • 543 
 
 • •. 376 
 293, 360 
 . . 122 
 
 75, 329, 421 
 
 • • SOI 
 491, 496 
 . . 46s 
 
 • ■ 357 
 219, 223 
 
 • • 159 
 397, 401, 627 
 
 • 194 
 
 • 293 
 
 • 527 
 
 Hopkins v. Forsythe, . . 338, 392 
 V. Haywood, .... 306 
 
 In re, 281 
 
 V. McLaren, .... 493 
 
 V. Smith, . . . 219, 220 
 
 V. Webb, . . . 437, 487 
 
 Hopping V. Burnham, 293, 380, 500, 
 
 514, 518, 526 
 
 Hoppock V. Concklin, .... 317 
 
 Horback v. Riley. 
 
 Horn V. Baker, . 
 
 V. Bird, . . 
 
 V. Denton, . 
 
 V. Horn, 
 
 V. Spivey, . 
 
 V. Tufts, . 
 
 Hornbeck v. Van Meter, 
 
 Homesly v. Hogue, . 
 
 Horsey v. Hough, . . 
 
 Horten v. Hinkle, . . 
 
 Horton v. Davis, . 361 
 
 V. Hendershott, 
 
 V. Horton, . 
 
 V. Myers, . 
 
 V. McCall, . 
 
 V. Smith, 
 
 Hosier v. Hall, . . 
 
 Hoskins v. Helm, . 
 
 V. Wilson, . 
 
 Hotchkiss V. Cutting, 
 
 V. Hunt, . 
 
 V. McVicar, 
 
 Houghton V. Bartholmew, 
 
 V. Wilson, 
 Houlden v. Smith, . 
 House V. House, 
 
 V. Showalter, 
 
 V. Walker, . 
 
 Houser v. Hampton, 
 
 Housekeeper's Appeal, 
 
 Houston V. Childers, . 
 
 V. Crutchfield, 
 
 V. Jordan, . . 
 
 364, 370 
 
 168, 169 
 
 52 
 
 371 
 
 463, 574, 575 
 43,83 
 
 . 125 
 
 . 152 
 . 360 
 . 4u 
 
 • 407 
 
 370, 422 
 
 . 215 
 
 ■ 319 
 
 . 508 
 . 265 
 
 • 177 
 
 ■ 497 
 69, 213 
 
 ■ 425 
 202, 434 
 
 390 
 
 245, 246 
 
 190 
 
 SI 
 
 • 575 
 . 220 
 . 164 
 
 • 524 
 . 412 
 
 202, 387, 
 
 390, 578 
 . . 460 
 
 • • 197 
 . . 462 
 
 193, 19s 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 Houston V. Perry, . 
 
 V. Sutton, 
 Hovey v. Bartlett, , 
 V. Blahchard, 
 How V. Welden, 
 Howard v. Clarke, 
 
 V. Daniels, 
 
 V. Howard, 
 
 In re, . . 
 
 V. Jones, 87, 118, 148,. 250 
 
 V. North, . 420, 471, 476, 
 
 S07, S14 
 
 V. Sheldon, .... 59 
 
 V. Turner, 
 
 V. Union Bank, 
 
 Howard Ins. Co. v. Halsey, 491, 493 
 
 150 
 
 . S2I 
 
 . 270 
 . 298 
 • 49' 
 ■ 487 
 203, 214, 219 
 . 382, 482 
 . 60, 66 
 366, 460 
 
 Howe,v. Bartlett, 
 V. Bishop, 
 
 V. Blandin, . 
 y. Butterfield, 
 
 In re, . . . , 
 V. Reed, . . , 
 V. Starkweather. 
 
 SS 
 
 V. Wayman, . 
 V. Whited, . 
 V. Wilder, 
 V. Willis, . . 
 Howell V. Ashmore, 
 V. Atkins, . 
 V. Baker, 
 V. Eldridge, 
 V. Hester, . 
 V. McCrary, 
 V. Schenck, 
 V. Selby, 
 V. Wolfort, . 
 Howerton v. Sprague, 
 Howery v. Helms, . 
 Howsth V. Mills, . 
 Howett V. Selby, 
 Howey v. Helms, . 
 Howland v. Needham, 
 V. Wells, . 
 
 . 296 
 182, 292, 370 
 
 • S3I 
 . 487 
 
 ■ 304 
 334, 433, 
 562, 563 
 
 • ■ IS3 
 
 • • 369 
 304, 364 
 . . 293 
 
 • • 504 
 270, 274 
 414, 489 
 
 • • 7i 
 . ■ 414 
 
 • 489 
 . 486 
 
 • 455 
 83, 3°7 
 
 . 252 
 
 . 418 
 240, 292 
 
 ■ 455 
 , 418 
 , 569 
 , 24s 
 
 Howland v. Willett, . . . .155 
 Howzer v. Dellingen, .... 568 
 
 Hoxie V. Carr 493, 495 
 
 Hoy V. Allen, 499 
 
 Hoyle V. P. & M. R. R. Co., . 162, 
 
 170, 553 
 
 Hoyt V. Gelston, 619 
 
 V. Howe, . . 
 V. Hudson, 
 V. Van Alstyne, 
 V.Webb, . . 
 Hubbard v. Barnes, 
 V. Curtis, . 
 V. Mack, . 
 V. Williams, 
 Hubbell V. Broadwell, 
 y. Canady, 
 V. Carpenter, 
 V. Fogarty, . 
 V. Vaughn, . 
 Huber v. Armstrong, . 
 Hubert v. McCoUum, . 
 
 122, 136 
 
 • • 253 
 "5, 339 
 . . 124 
 484, 514 
 ■ • 545 
 
 • • 571 
 . . 72 
 605, 609 
 . ■ 123 
 . . 252 
 
 • • 55 
 
 • • 499 
 
 • • 370 
 369, 479, 
 
 483, 528 
 290, 291, ' 
 
 427, 475 
 . 218 
 . 248 
 
 • 147 
 . 61 
 
 ■ 589 
 
 • 534 
 . 502 
 
 • 155 
 . 138 
 . 285 
 
 263, 449 
 
 37, 290, 292, 
 
 471, 476, 482, 521 
 
 Hughes V. Dice, . . . 472, 476 
 
 V. Edwards, . . . " . 498 
 
 V. Farrar, 88 
 
 V. Feeter, 439 
 
 V. Graves, 353 
 
 V. Streeter,3S9,42i,427,488 
 
 Huddleston v. Garrett, 
 
 V. Spear, 
 
 Hudler v. Golding, . 
 
 Hudnall v. Wilder, . 
 
 Hudson V. Dangerfield 
 V. Guestier, 
 V. Roe, . . 
 V. Warner, 
 
 Huey's Appeal, . . 
 
 Huff V. Burnell, 
 
 V. Cox, . . . 
 
 Huger V. Dawson, . 
 
 Huggins V. Ketchum, 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 39°. 
 
 Hughes V. U. S., . . 
 V. Watt, . . 
 V. Wilkinson, 
 
 Hughson V. Mandeville. 
 Hulett V. Soulard, . . 
 Huil V. Blake, . . . 
 Hull V. Camley, . . I 
 
 V. Noble, . . . 
 Huluph V. Beeson, . . 
 Hultz V. Hackley, . . 
 Humble v. Mitchell, . 
 Hume V. Gossett, . . 
 Humphries v. Browne, 3 
 V. Cobb, . 
 V. Lawson, 
 Humphrey v. Beeson, 
 
 V. Humphrey, 
 Hundley v. Webb, . . 
 Hunnewal v. Hobart, - 
 Hunt V. Bellew, 
 , V. Berryman, 
 
 V. Breeding, . 
 V. Bullock, 146, 
 V. Burdick, 
 V. Gist, . . 
 V. Gulick, . . 
 V. Hooper, 
 V. Kendrick, . 
 V. Koonz, . . 
 V. Loucks, 
 V. Stevens, 
 Hunter v. Foster, . 
 V. Hulings, 
 V. Hunter, . 
 V. Kennedy, 
 V. Martin, . 
 V. Miller, . 
 V. Stevenson, 
 V. Watson, . 
 Hunting v. Waller, 
 Huntington v. Bell, 
 v. Burt, 
 V. Cotton, 
 
 5°. 
 
 25 
 
 SS4, 
 
 • • S°3 
 472, 527 
 
 • 76, 81, 
 429, 516 
 
 • • 504 
 . . 189 
 
 • • S89 
 ', 151. 342 
 
 495, 497 
 . . 483 
 421, 497 
 . . 156 
 137, 447 
 ', 345, 597 
 . . 202 
 
 1, 398, 400 
 ■ • 472 
 179, 184 
 . . 151 
 
 • • 63s 
 . . 214 
 . . 601 
 249, 2S4 
 557, 561 
 
 569 
 475 
 184 
 , 271, 272 
 
 • 54 
 . 481 
 
 54, 429 
 
 • 159 
 
 • 151 
 . 421 
 
 85, 190 
 
 ■ 497 
 
 • 547 
 50, 471 
 
 . 420 
 
 . 500 
 
 434, 510 
 
 616 
 
 400, 401 
 
 190 
 
 Huntington v. Forkson, . 198, 438 
 
 V. Grantland, . .185 
 
 v. Smith, . . 156, 192 
 
 Huntress v. Tiney, . 381, 382, 391 
 
 Hurd V. Eaton, . 172, 352, 353, 354 
 
 V. Rettier, . . 
 
 V. West, . . 
 
 Hurlbut V. Mayo, . 
 
 Hurst V. Lithgow, . 
 
 V. Still, . . 
 
 V. Weathers, 
 
 Hushmaker v. Harris, 
 
 Hussey v. Thornton, 
 
 Husted V. Dakin, . 
 
 Hustick V. Allen, . 
 
 Hutchings v. Ebeler, 
 
 Hutchins v. Barnett, 
 
 V. Chapman, 
 
 V. Doe, . 
 
 • 495 
 
 • 153 
 
 • 391 
 . 172 
 
 • 590 
 81, 421 
 
 315, 336 
 
 • ■ 175 
 
 • • 344 
 379, 391 
 . . 361 
 . . 308 
 
 • • 487 
 S3, 320, 424, 
 
 608, 609 
 ... 156 
 . . .407 
 . 156 
 
 53, 213 
 . 630 
 
 V. Hanna, 
 V. Moses, 
 V. State Bank, 
 Hutchinson v. Brand, . 
 
 V. Campbell; 
 
 V. Carver Co., 428, 429, 
 
 474, 518 
 
 v. Cassidy, . . . 425 
 
 V. Chamberlain, 91, 116 
 
 V. Greenbush, . . 46J 
 
 ■ V. Horn, .... 481 
 
 V.Johnson, . 250,251, 
 
 263, 265, 449 
 
 V. Kelly, 
 
 V. Moses, 
 
 V. Tobin, 
 
 Hutchman's Appeal, 
 
 Hutsonpiller v. Stover, 
 Hutton V. Cooper, . . 
 V. Williams, . 
 Hyatt V. Spearman, 
 
 Hyatte v. Allison, 376 
 
 Hyde v. Barney, 29a 
 
 • • 473 
 . . 416 
 . . 418 
 
 330, 445, 
 446,447 
 . . 68 
 
 • • 279 
 367, 368 
 ■ ■ 137 
 
TABLE OF CASES CITED. 
 
 Ixiil 
 
 Jlyde V. Cooper 220 
 
 Hyman v. Bailey, 527 
 
 Hyskill V. Givin, . . . 394, 395 
 
 I. 
 
 Ill 
 
 &c., R. R. Co. V. McCul- 
 
 lough, 496 
 
 lUingsworth v. Miltenberger, . 325 
 
 Illsley V. Stubbs, 248 
 
 Immerson v. Duncan, . . . 198 
 
 Imray v. Magnay, . 251, 272, 336 
 
 Ind. R. R. Co. V. Bradley, 229, 307, 
 
 308, 309, 371 
 
 Ingalls V. Lord 'SS, I73 
 
 V. Morgan, . 172, 353, 491 
 Ingersoll v. Sawyer, 189, 355, 428, 
 520, 525 
 Ingleheart v. Armiger, . . . 590 
 Ingles V. Donaldson, .... 276 
 Ingliss V. Trustees, ... 1 184 
 Ingraham v. Phillips, 262, 490, 502 
 Ingram v. Belk, 51, 242, 401, 407, 
 416, S14, 518 
 . 306 
 ■ 494 
 
 Inhabitants, &c., v. Pope, 
 Inloe's Lessee v. Hawey, 
 Inman v. Griswold, . . 
 V. Mead, . . . 
 Inos V. Winspear, . . 
 Inskeep v. Lacony, 
 Insurance Co. v. Bell, 
 V. Force, 
 V. Halleck. 
 
 V. Ledyard. 
 V. Oakley, 
 Irons V. McQuewan, 
 Irvine v. Campbell, 
 Irwin V. JefFers, . . 
 V. McKee, 
 V. Nixon, . . 
 V. Pickett, . 
 V Shoemaker, 
 V. Sloan, . . 
 
 • 5i 
 
 ■ 304 
 . 221 
 . 418 
 
 ■ 352 
 
 • 390 
 52, 82, 
 
 203, 423 
 
 . 504 
 
 . 406 
 
 . 619 
 
 504, 505 
 
 604, 606 
 
 . . 464 
 
 . . 70 
 
 • • 327 
 
 . . 64 
 
 262, 263, 449 
 
 Jrv'in V Smitn, . 
 Isaacs V. Clarke, 
 
 V. Gearhart, 
 
 V. Judge, . 
 
 V. Swift, . . 
 Isam V. Hooks, . . 
 Isham V. Bennington, 
 
 V. Downer, . 
 
 V. Eggleston, 
 
 Ishmael v. Parker, . 
 
 Islay V. Stewart, 
 
 Isler V. Andrews, . 
 
 V. Moore, . . 
 
 Ispey V. Lake, . . 
 
 Ives, /» re, ... 
 
 V. Lucas, . . 
 
 V. Mills, . . 
 
 Iverson v. Loberg, . 
 
 Izod V. Addison, 
 
 498 
 322 
 
 423 
 620 
 
 4S3> S96 
 . 289 
 
 • 499 
 
 35, 142 
 
 . 625 
 
 193 
 541 
 325 
 Sii 
 609 
 263, 440 
 214,215 
 . . 126 
 589, 606 
 • • 396 
 
 361, 
 
 J. 
 
 Jackson v \nderson, . 53, 55, 198, 
 
 203, 209, 210, 322, 420 
 
 V. Andrews, .... 493 
 
 V. Bartlett, .81,433,483, 
 
 514, 518, 576 
 
 V. Bateman, 186, 189, 193 
 
 V. Benedict, .... 575 
 
 V. Bowling, .... 55 
 
 , V. Bush, . . . 369, 469 
 
 V. Cadwell, 514, 515, 609 
 
 V. Caldwell 368 
 
 V. Campbell, . . . . 487 
 V. Catlin, . . . 366, 367 
 V. Chamberlain, . . . 361, 
 
 497, S04 
 V. Clark, . . . . 478 
 
 V. Collins, 322 
 
 V. Craft 417 
 
 V. Delancey, . . 475, 514 
 
 V. Dubois, 500 
 
 V. Esty, 343 
 
 V. Givens, .... 490 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Tackson v. Hasbrouck. 
 V. Hawley, 
 V. Hobbon, 
 V. Houseil, 
 V. Jackson, 
 V. Jones, . 
 V. Ketcham, 
 V. Law, . . 
 V. Leek, 
 V. McElroy, 
 V. McGinnis, 
 V. Marsh, . 
 V. Middleton, 
 V. Morse, . 
 V. Newton, 
 V. Ohio R. R. 
 V. Paige, . 
 V. Parker, . 
 V. Post, 361, 
 V. Pratt, . 
 T. Randall, 
 V. Ransom, 
 V. Rathbone, 
 V. Roberts, 
 V. Rosevelt, 
 
 526, 531 
 
 bJ^, 53.-> 
 . . ^ti 
 140, 143 
 395, 522 
 471, 476 
 
 • ■ 49S 
 208, 450 
 . SOI 
 . 142 
 . 322 
 ■ 478 
 . 184 
 419, 468 
 
 • 346 
 
 • 398 
 . 502 
 
 151, 179 
 
 497, 500, 504 
 
 54,471 
 
 • 469 
 
 • 475 
 
 • 531 
 
 • 471 
 427, 433, 475, 
 
 Co. 
 
 483, 514 
 
 V. Ro\ye, 487 
 
 V. Schauber, . . . .601 
 V. Scott, . . . 193, 365 
 
 V. Shafer, 520 
 
 V. Sharp, . . . 491, 501 
 V. Spink, . 193, 473, 526 
 V. Stanhope, .... 614 
 V. Sternbergh, . 186, 380, 
 381, 428, 474, 518 
 V. Streeter, . . 471, 476, 
 
 518, 527 
 V. Summerville, . . . 488 
 
 V. Terry, 497 
 
 V. Town, . 361, 500, 504 
 V. Vanbergen, . . .531 
 V. Vanderheyden, 430, 484 
 V. Van Valkenburgh, . 491 
 V. Varick, 184 
 
 Jackson v. Walker, 54, 186, 193, 51^ 
 V. Warren, . . . .412- 
 V. Willard, . . 156, 190. 
 
 V. Williams 185. 
 
 V. Winslow, .... 491 
 V. Woodman, . . . 297 
 V. Young, . . . 516, 526- 
 
 Jacky V. Butler 539, 541 
 
 Jacobs V. Humphrey, . . . 327, 6291 
 V. Latour, . . . 154, 246. 
 V. McDonald, .... 628; 
 
 V. Tolman, 57o> 
 
 Jacques v. Nixon, 6oo. 
 
 V. Weeks, 490, 497, 503, 507 
 V. Wiltby, . S73, 574, 575 
 
 James v. Bennett, 270. 
 
 V. Gurley, . 83, 430, 445,. 
 
 448, 634 
 
 V. Hubbard, . 173, 352, 355 
 
 V. Jacques, 501 
 
 V. Litchfield, .... 497 
 V. Marcus, y6, 329, 409, 420 
 
 V. Morey, 498: 
 
 V. Plank Road Co., . .551 
 V. R. R. Co., 550, 562, 563 
 V. Stratton, . . . 542, 546 
 
 V. Taylor, 472 
 
 V. Thompson, . . 222, 230, 
 630, 636 
 
 V. Yates, 633 
 
 Jameson v. Barelli, 456 
 
 V. Head, . . . 192, 194 
 
 V. Porter, 150 
 
 Jamison v. Tudor, . 369, 479, 528 
 
 Janney v. Stephen, 453 
 
 January v. Bradford, . . . .192 
 Janvrier v. Vandever, .... 258 
 Jarboe v. Hall, 314, 397, 401, 411 
 Jarman v. Hooper, . . . 219, 636 
 Jarrett v. Gwathney, .... 635 
 V. Tomlinson, . . 184, 186 
 
 Jarvis v. Brooks, 548 
 
 V. Davis, 151 
 
 V, Hver, .... 538, 540 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 Jay V. Carthage, . 
 
 Jayne v. Dillon, . 
 
 Jeifersoii Co. v. Ferguson, 
 
 Jeffries v. Sheppard, 
 
 Jenkins v. Bodley, . 
 V. Hogg, . 
 V. Jarrett, . 
 V. Quincy, . 
 V. Myer, 
 
 Jenks V. Smith, . . 
 V. Ward, . . 
 
 Jenner v. JoIifFe, . . 
 
 Jenness v. Doe, . . 
 
 Jennings v. Carson, 
 V. Dennis, 
 V. Hardin, 
 V. Monks, 
 V. Stafford, 
 V. Wood, . 
 
 Jennison v. Gaston, 
 
 Jensen v. Woodbury, 
 
 Jentry v. Hunt, . . 
 
 Jervis v. Sydney, . 
 
 Jessup V. Bateman, 
 V. City Bank, 
 V. Gragg, . 
 
 Jewell V. Porter, 
 
 Jewett V. Guyer, 
 
 V. Hoagland, 
 V. McGowan, 
 V. Marshall, 
 V. Whitney, . 
 
 Jobe V. O'Brian, 
 
 Johns V. Rilardon, . 
 V. Trick, . . 
 
 Johnson v. Adair, . 
 V. Addleman 
 V. Babcock, 
 V. Baker, . 
 V Banlock, 
 V. Bartlett, 
 V. Bishop, 
 V. Carson, 
 V. Conn. Bank, 
 
 190, 239, 
 
 421, 
 
 397 
 236 
 522 
 445 
 503 
 368 
 
 145 
 156 
 
 352 
 164 
 290 
 258 
 588 
 338 
 449 
 19s 
 474 
 527 
 
 499 
 433 
 239 
 202 
 388 
 298 
 606 
 402 
 187 
 323, 324 
 68, 114 
 189 
 
 408 
 
 292 
 
 353 
 
 499 
 
 330 
 
 42, 43. 74 
 
 397, 470 
 
 93, 13s, 420 
 
 422, 423, 439 
 
 . . 481 
 
 . . 156 
 
 247, 259 
 
 . . 403 
 
 • . 541 
 
 Johnson v. Crawford, . . . .173 
 V. Crawley, . . 360, joi 
 V. Gushing, . . . .188 
 V. Davenport, . . .122 
 
 V. Day, " • 399 
 
 V. Donnell, . . 389, 402 
 V. Eldred, .... 609 
 V. Evans, 250, 541, 544, 549 
 V. Garrett, . 347, 504, 505 
 
 V. Glancy, 503 
 
 • 633 
 501, 630 
 
 27 
 
 346 
 
 , 83, 304, 305 
 . 418 
 . 608 
 . 225 
 
 76, 329 
 . 420 
 . 265 
 ■ 147 
 . 360 
 • 463 
 
 V. Gorham, 
 V. "Gwathney, . 
 V. Hill, . 
 V. Hovey, 
 V. Huntington, 
 v. Johnson, 
 V. Lamping, 
 V. Leigh, . 
 V. Lynch, . 
 V. Mcintosh, 
 V. McLean, 
 V. Morgan, 
 V. Paine, . 
 V. Ramsey, 
 V. Reese, 49, 309, 403, 429, 
 522, 623, 628 
 V. Roberts.on, . . . 606 
 V. Sedbury, .... 453 
 
 V. Shaw 415 
 
 V. Stagg, 498 
 
 V. Stevens, . . 355, 357 
 V. Stone, . . . 397, 636 
 V. Thwaett, .... 501 
 V. Tuttle, 173, 353, 462, 522 
 
 V. Wall, 209 
 
 V. White 175 
 
 v. Williams, .... 270 
 Johnstone v. La Motte, . . . 318 
 
 Jonan v. Dreaux, 147 
 
 Jones V. Atherton, . . . 250,251, 
 
 263, 449 
 
 V. Austin, . . . 290, 591 
 
 V. Bamford 491 
 
 V. Barr 463 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 Jones V. Bassett, 609 
 
 V. Boston Mill Co., . . 32 
 
 V. Buck, 290 
 
 V. Bullock, 252 
 
 " V. Burr 330, 331 
 
 V. Carter, 156 
 
 V. Caswell, 317 
 
 V. Clayton, 632 
 
 V. Cook, 55 
 
 V. Crawford, 186 
 
 V. Davis, . . 242, 262, 601 
 
 V. Dow, 353 
 
 V. Edmunds, 453 
 
 V. Flint, . 160, 161, 165, 341 
 
 V. Fulgham, 473 
 
 V. Grant, .... 326, 464 
 
 V. Hughes 214 
 
 V.Jones, . . .Ti, 159,460 
 V. Judkins, . . . 262, 263 
 V. Leach, .... 245, 259 
 
 V. Lewis, 316 
 
 V. Lusk, .... 143, 429 
 
 V. McNeil, 320 
 
 V. M. & A. R. R., . . . 601 
 V. Pemberton, .... 547 
 
 V. Perchard, .202 
 
 V. Planters' Bank, . 438, 515 
 
 V. Powles, 504 
 
 V. Putney, .... 472, 476 
 
 V. R. R. Co., 408 
 
 V. Smith, .... 492, 493, 
 
 496, 5°3 
 
 V. Spear, 80 
 
 V. Swift, 75 
 
 V. Thomas, . . . 190, 524 
 
 V. Thompson, . . 538, 540, 
 
 542, 546 
 
 V. Welch, 603 
 
 V. Williams, . 213, 240, 241 
 
 V. Wilson, 206 
 
 V. ZoUicoffer, 504 
 
 Joost V. Scott, 152 
 
 Jordan v. Avery, 92 
 
 V. Bradshaw, . . 474, 483 
 
 Jordan v. Gallup, . . . 623, 628 
 V. Hudson, . 193, 195, 500 
 
 V. Hyatt, 398 
 
 V. Lewis, 151 
 
 V. Mead 505 
 
 V. Petty, 68 
 
 V. Porterfield, .... 202 
 
 Joslyn V. Tracy, 466 
 
 Joy V. Sears, 152 
 
 Joyce V. Farquahar, .... 463 
 V. Joyce, .... 377, 385 
 
 Judd V. Langdon, 147 
 
 Judge V. Houston, 289 
 
 V. Wilkins, 413 
 
 Judson V. McLelland 42 
 
 Julian V. Beal, . . 189, 331, 508 
 Justice V. Carroll, 194 
 
 K 
 
 Kain v. Fisher, . . 
 Kane v. Mackin, 
 
 V. Preston, 
 Karnes v. Lloyd, 
 Kasson v. People, . 
 Kaster v. Williams, 
 Kauffelt's Appeal, . 
 Kauffman v. Walker, 
 Kean v. Newell, . . 
 Keary v. F. & M. Bank, 
 Keating v. Spink, . 
 Kedenburg v. Morgan, 
 Keeferv. Mason, . 
 Keeler v. King, . . 
 Keeling v. Heard, . 
 Keen v. Briggs, . . 
 
 V. Preston, 
 KeifFer v. Barney, 
 Keighler v. Savage, &c., 
 
 V. Ward, . 
 Keightley v. Birch, , 
 Keitcrease v. Levin, 
 Keith v. Commonwealth, 
 
 . . 89 
 . . 481 
 327, 422 
 . . 440 
 • .576 
 . . 125 
 268, 446 
 409. 434 
 337 
 586 
 281 
 569 
 621 
 596 
 422, 488 
 304, 402 
 
 ■ • 425 
 . . 123 
 610 
 
 31 
 323 
 
 Co., 
 
 . . 630 
 
TABLE OF CASES CITED. 
 
 Ixvii 
 
 Keith V. Johnson, . . . 223, 531 
 
 V. Wilson, . . . 331, 603 
 
 Kellam v. Janson, . . . 361, 362, 
 
 503, 504 
 Kellenburger v. Sturdevant, . . 306 
 Keller v. Blanchard, .... 469 
 
 V. Bucker, 112 
 
 V. Mitz 498 
 
 Kellogg V. Buckler, 68, 79, 314, 315 
 
 V. Gilbert, 576 
 
 V. Griffin, . . 51, 52, 69,- 
 
 268, 272 
 
 V. Manro, 229, 230, 625, 630 
 
 V. Woodhams, 482, 519, 525 
 
 V. Wood, 186 
 
 Kelly V. Abbott 437 
 
 V. Baker, 137 
 
 V. Bemis, 218 
 
 V. Brenzing, 542 
 
 V. Burnham, igo 
 
 V. Green, .... 322, 483 
 
 V. Hart, 340 
 
 V. James, 207 
 
 V. Morgan, 184 
 
 V. Solari, 507 
 
 V. Wiseman, 403 
 
 Kelly's Appeal 544 
 
 Kelsey v. Durkee, 167 
 
 Kemble v. Harris, 240 
 
 Kemper v. Bailey, 500 
 
 Kempland v. Macaulay, . 263, 264, 
 
 268, 271, 446 
 
 Kendall v. Clarke, 93, 135, 420, 427 
 
 V. White, 394 
 
 Kennedy v. Brent, 208 
 
 V. Duncklee,. . . . 422 
 V. Green, . . . 492, 495 
 V. HoUoway, ... 81 
 
 V. Smith, 631 
 
 Kenniston v. Little, .... 213 
 
 Kensington, In re, 540 
 
 Kennon v. Ficklin, 262 
 
 Kenyon V. Baker, 117 
 
 V. Clarke, 612 
 
 Kenyon v. Quinn, . 
 Kepner v. Burckhardt, 
 Kerchnal v. Wood, 
 Kerlin v. Heacock, 
 Kerns v. Graves, 
 Kerr v. Day, . . 
 In re, . . 
 V. Mount, . 
 V. Sharp, 
 V. Swope, . 
 Kershaw v. Mer. Bank, 
 V. Thompson, 
 Ketcham v. Fish, . 
 V. Johnson, 
 V. Watson, 
 Key, &c., V. Munsell, 
 Keys V. Grannis, 
 Keyes v. Hill, . . 
 V. Rines, . . 
 Keyser's Appeal, 
 Kibbey v. Jones, 
 Kicksey v. Bates, . 
 Kidd V. Lester, . . 
 Kidder v. Orcutt, . 
 Kilby V. Haggin, 
 Kilgo V. Castleberry, 
 Kilgore v. Beck, . . 
 V. Pedan, ,. 
 Killam v. Janson, . 
 Killman v. Holcomb, 
 Killpatrick v. Frost, 
 Kimball v. Couchman, 
 V. Davis, . 
 V. Jenkins, . 
 V. Morrison, 
 V. Munger, 
 V. Smith, . 
 Kimbrough v. Benton, 
 Kinchey v. Stryker, 
 King V. Bailey, .. . 
 V. Birch, . . 
 V. Breeden, 
 V. Bridges, 
 V. Cartee, . . 
 
 138, 
 
 315; 
 
 3S9. 479 
 . . 151 
 
 155, 193 
 214 
 69 
 
 503 
 280, 282 
 638 
 
 637 
 490, 498 
 
 • 354 
 
 • 534 
 
 • 456 
 92, 194 
 
 ■ 151 
 .615 
 . 215 
 . 122 
 
 60, 457 
 . 272 
 . 122 
 39i> 392 
 91 
 194 
 
 515 
 321 
 501, 616 
 :, 345, 478 
 503 
 614 
 214 
 176 
 623 
 266 
 ISO 
 268 
 190 
 
 330, 331 
 
 ■ 542- 
 
 • '54 
 42, 50 
 
 ■ 56 
 . 221 
 
 • 424 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 King V. Cushman, . 339, 408, 422, 
 
 42s, S03 
 V. Goodwin, . . . 420, 575 
 
 V. Green, 263 
 
 V. Gunnison, . . . 367, 368 
 
 V. Harrison, 54 
 
 V. Hill, 284 
 
 litre, 256 
 
 V. Keenan, 267 
 
 V. Manning, 177 
 
 V. Masterdoa, . . . .416 
 
 V. Moore, 116 
 
 V. Piatt, 315, 347, 348, 406, 408, 
 418, 418 
 
 V. Terry, 82 
 
 V. Thorp, . 
 V. Wilcomb, 
 V. Wolf, . 
 
 King's Appeal, . 
 
 Kingman v. Glover, 
 
 Kingsbury v. Buchanan, 
 V. Lane, 
 V. Pond, 
 
 Kingsdale v. Maren, . 
 
 Kingston Bank v. Eltinge, 
 
 Kinman v. Pope, 
 
 Kinnear v. Lee, . 
 
 Kinney v. Knoebel, 
 
 V. Showdy, 
 Kinter v. Jenks, . 225, 23 
 Kirby v. Potter, 
 
 Kirk V. Vonberg, 262, 264, 362, 481 
 
 Kirkpatrick v. Black, . 
 V. Crason, 
 V. Means, . 
 Kirksey v. Prior, 
 Kirtland v. Snow, 
 Kir wan v. Latour, 
 Kiser v. Ruddick, . 
 
 V. Sawyer, 
 Kissam \. Nelson, 
 Kissock V. Grant, 
 Kistler's Appeal, 
 
 412, 414 
 166, 169 
 
 • • 576 
 S4I, 547 
 . . 481 
 
 • • 39S 
 . . 528 
 . . 636 
 53°, 533 
 
 • • 5°7 
 
 • • 527 
 
 • • 434 
 347, 484, 
 
 514, 526 
 
 . . 318 
 I, 240, 424 
 S6i 
 
 . . 272 
 
 • • 193 
 . . 623 
 . . 151 
 165, 167, 169 
 
 347, 349 
 . . 189 
 . . 196 
 . . 606 
 340, 345 
 
 KitcheU v. Burgwin, 
 Kitchen v. Reinsky, 
 Kittredge v. Bellows, 
 V. Emerson, 
 V. Warren, 
 Kleissendorf V. Fore, 
 Kline v. Chase, . . 
 Kloepping v. Stelmacher, 
 Klopp V. Witmoyer, 
 Kluender v. Lynch, 
 Knapp V. Brown, 
 
 V. Smith, . . 
 Kneib v. Graves, 
 Knerr v. HofRnann, 
 Knettle v. Newcomb, 
 Knight V. Applegate, 
 v. Criddle, . 
 V. Fair, . . 
 V. Leak, . . 
 V. Vincent, . 
 Knouff V. Thompson, 
 Knowell, /« re, . . 
 Knowles v. Davis, . 
 Knowlton v. Bartlett, 
 v. Ray, . 
 Knower v. Barnard, 
 Knox V. Plummer, . 
 V. Shepler, 
 v. Summers, . 
 V. Thompson, 
 V. Webster, . 
 
 125, 126, 128 
 • 398,402 
 
 189, 399, 623 
 . 262 
 . 262 
 . 216 
 
 • 509 
 
 • 414 
 347, 437 
 183, 197 
 
 . 66 
 
 83, 197 
 
 • 42 
 544, 545 
 
 87, IIS 
 
 • 424 
 
 • 159 
 . igo 
 
 • 145 
 . 64 
 
 • 498 
 463, 574, 575 
 
 539. 
 
 220 
 
 634 
 
 391 
 
 268, 272 
 
 503 
 
 540 
 
 540, S45 
 
 .... 503 
 208, 231, 263, 
 265, 267 
 Koehler v. Ball, . 141, 432, 433, 434 
 
 Koger V. Donnell, 639 
 
 Koons V. HartmaUj .... 266 
 
 Kortright v. Cady, 189 
 
 Kreglo V. Fulk, 603 
 
 Kressin v. Mann, . 120,123,139 
 
 Krider v. Lafferty, 503 
 
 Kring v. Green, 263 
 
 Kruse v. StefFers, . . . ^ . 322 
 
 Kuhn v. Graves, 149 
 
 V. North 637 
 
 Kuntz V. Kinney, 87 
 
TABLE OF CASES CITED. 
 
 Ixix 
 
 Kurch V. Busch, 124 
 
 Kurtz's Appeal, 364 
 
 Kutter V. Buckhout, .... 305 
 
 V. Smith, 145 
 
 Kuykendall v. McDonald, . .152 
 Kyle V. Evans, 66 
 
 Lachlan v. Reynolds 409 
 
 Lackey v. Lubke, 422 
 
 V. Seibert, . 262, 277, 481 
 
 •Lacy V. Clements, 123 
 
 V. Lofton, 66 
 
 V. Wilson 505 
 
 Ladbrooke v. Cricket, . . . .154 
 
 Ladd V. Adams, 265 
 
 V. Blunt, 41, 253,254,428,464, 
 465, 466, 519, 525 
 
 V. Dudley 400 
 
 V. Thomas, 635 
 
 V. Wiggin, 391 
 
 Lady Arundel v. Phipps, . . . 609 
 
 Lafarge v. Herter, 252 
 
 Lafferty v. Byers, . . . 427, 475 
 V. Conn, . 239, 290, 291 
 
 Laflin v. Griffiths, 163 
 
 V. Willard, 630 
 
 Laight V. Pell 409, S09 
 
 Laing v. Waring, 33a 
 
 Lake v. Billers, 217 
 
 Lally V. Holland 497 
 
 Lamb v. Johnson, 155 
 
 V. Richardson, .... 355 
 
 V. Shay, . 126, 135, 136, 420 
 
 Lambert v. Paulding, 265, 278, 399, 
 
 430, 448, 449. SU 
 
 Lambeth v. Mayor, .... 624 
 
 Lambkin v. Crawford 326 
 
 Lampsett v. Whitney, .... 68 
 Lancaster Bank v. Myley, . . 548 
 
 V. Eve, 163 
 
 Land v. Abrahams, 71 
 
 Land v. Hopkins, 184 
 
 Landes v. Brant, 184, 403, 483, 502, 
 514, 526 
 V. Perkins, . . . 403, 483 
 Landreaux v. Foley, . . 427, 476 
 Landrum v. Hatcher, . . 484, 526 
 Lane v. Baker, . . 
 
 v. Beltzhoover, 
 
 v. Fox, . . 
 
 V. Jackson, 
 
 V. Pissant, . 
 v. Soulard, . 
 V. White, . 
 Lang V. Lee, . . 
 V. Waring, 
 Langdon v. Buel, 
 
 V. Langdon, 
 v. Potter, . 
 V. Summers, 
 v. Woodcock, 
 Langley v. Jones, . 
 V. Perry, . 
 v. Warner, . 
 Langsdale v. Mills, . 
 Langworthy v. Littell, 
 Lanier v. Branch Bank, 
 
 v. Stone, . 
 Lanman v. Sanders, 
 Lanning v. Dolph, . 
 Lansing v. Eddy, 
 V. Orcutt, 
 V. Quackenboss, 
 Lantz V. Worthington, 
 Laporte v. Todd, 
 Larcom v. Cheever, 
 Lamed v. Allen, . . 
 Laroche v. Wasbrough 
 Lash V. Gibson, . . 
 Lashey v. Phipps, . 
 Lashley v. Cassell, . 
 Lassell v. Powell, . 
 Lasselle v. Barnett, 
 v. Moore, . 
 Latham v. Simmons, 
 
 23 
 
 87 
 
 S5 
 
 308 
 
 334 
 
 61 
 
 420 
 
 408 
 
 152 
 
 330 
 
 iSS 
 
 78 
 
 296, 466 
 
 393 
 502 
 
 477 
 280 
 
 445 
 344 
 149 
 
 147 
 327 
 610 
 526 
 618 
 596 
 421 
 270, 323 
 360, 479 
 ; . 181 
 
 • • 425 
 ■ ■ 54 
 
 I, 262, 263 
 . . 121 
 
 • • 407 
 344, 370 
 . . 498 
 
 • 5°> 255 
 544, 546 
 
 &c, 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 Lathrop v. Arnold, . . . 214, 546 
 
 V. Blake, 163 
 
 V. Briggs, 575 
 
 V. Brown, 264 
 
 V. Middleton, .... 146 
 V. Soldiers' Associa- 
 tion, &c., .... 91 
 Latimer v. Batson. . 176, 258, 422 
 V. U. P. R. R., . . . 422 
 
 Latkow V. Earmer, 283 
 
 Latouche v. Lord Dussang, . . 497 
 Latrobe v. Herbert, . . 410, 434 
 
 Latte V. Smith, 214 
 
 Laucks's Appeal, . . . .88, 455 
 
 Laurens v. Senney, 487 
 
 Lavelle v. Rowley, 420 
 
 Lavillbeure V. Heirsof Frederick, 88 
 
 Law V. Ivesson, 298 
 
 V. Smith, . 255, 308, 371, 528 
 
 V. Thompson, 508 
 
 Lawes v. Coddington, .... 78 
 
 Law of Burial 140 
 
 Lawless v. Kinsey, 487 
 
 Lawrence v. Burnham, . . . 546 
 V. Edelen, . . 307, 442 
 
 In re, 253 
 
 V. Jenney, .... 422 
 
 v; Kemp, 169 
 
 V. Lawrence, , . . 140 
 
 V. Pond, 390 
 
 V. Speed,. 484,515,527 
 
 V. Tucker, .... 491 
 
 V. Young, .... 394 
 
 Lawson v. Jordan, . 207, 449, 453 
 
 V. Orear, 596 
 
 V. State, . . . 242, 623 
 
 Lawton v. Bruce, 121 
 
 V. Lawton, . . .166, 167, 
 169, 171 
 
 V. Main 392 
 
 V. Salmon, . . . 166, 169 
 Lay V. Neville, .... 337, 369 
 
 V. Watts, 346 
 
 Layton v. Steel, 265 
 
 I23< 
 
 Lazell V. Lazell, . 
 Lea V. Polk, . . 
 Leach v. Leach, . 
 
 V. Pine, 
 
 V. Thomas, 
 
 V. Williams, 
 Leadbetter v. Anderson, 
 Leader v. Homewood, . 
 Leander v. Danvers, . 
 Learned v. Vandenbergh, 
 Leathers v. Carr, . . , 
 Leavitt v. Smith, . 144, 327, 
 Le Breton v. Pierce, . . 
 Lechmere v. Thorowgood, 
 Ledbury v. Smith, 
 Ledyard v. Burkle, 
 
 V. Jones, 
 Lee V. Crassna, 
 
 126 
 . . . 50J 
 
 • 507, 509- 
 
 228, 233, 250 
 
 169. 
 
 270- 
 
 193- 
 
 27 
 
 393. 
 
 226 
 
 627 
 
 . 148 
 
 • 247 
 
 • 377 
 61,77 
 
 625, 631 
 
 82,8s 
 
 409,411,414. 
 
 425: 
 
 223, 572 
 
 29a 
 
 136- 
 
 350- 
 
 124, 139 
 
 82 
 
 V. Davis, . 
 
 V. Fellowes, 
 
 V. Gansell, 
 
 V. Hinman, 
 
 V. Kinsbury, 
 
 V. Mason, 
 
 V. Miller, . 
 
 V. Newkirk, 
 
 V. Risdon, 169 
 
 Leese v. Clark, 179, 
 
 Lefarge v. McNamara, . . . 329. 
 
 Lefevre v. Larraway, 407, 411, 412, 
 
 416, 419. 
 
 Leger v. Doyle, .... 468, 481 
 
 Legg V.Evans I54, I73. 
 
 Leggatt v. Wall, 502^ 
 
 Legro v. Lord, 152 
 
 Leighton, In re, 60, 149. 
 
 Leitch V. Wells, 493, 
 
 Leland v. Wilson, . 472, 475, 526- 
 Lemar V. Miles, .... 166, 171 
 Lemasters v. Johnson, . . . 602 
 
 Lembke's Case, 569^ 
 
 Lemit v. Mooring, . ; . . . 388- 
 Lemon v. Craddock, .... 470' 
 Lemond v. Short, 4495 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 Lenehan v. McCabe, . . 491, 492 
 Le Neve v. Le Neve, . . 491, 502 
 
 Lenoir V. Weeks, 119 
 
 Lenox v. Latrobe, . i86, igo, 430 
 Lenoy v. Duke, &c.. . . 173, 353 
 
 . Leonard V. Baker, 176 
 
 V. Bryant, . . 304, 305, 
 
 392> 404 
 V. Johnson, .... 459 
 V. Scarborough, . . .541 
 
 V. Taylor, 430 
 
 Lepage v. McNamara, . 329, 420 
 
 Lerned v. Wannemacher, . . 367 
 
 Leshey v. Gardiner, . . 432, 468, 
 
 480, 524 
 
 Leslie V. St. Louis, 615 
 
 Lessee v. Bryson, 407 
 
 V. Cor win, . . . 420, 585 
 
 V. Gibson 433 
 
 V. Lazarus 322 
 
 V. Long, . . .73, 427, 475 
 V. Osterhout, . . 306, 308 
 
 V. Parrish 303 
 
 V. Reed, 73 
 
 V. Smith, 475 
 
 V. Zercher, 420 
 
 Lesser V. Bisbee .617 
 
 Lester v. Whites, 185 
 
 Lester's Case, .... 327, 465 
 
 Letcher v. Morrison 75 
 
 Levi V. Converse, 621 
 
 V. Shockley, 234 
 
 V. Thompson, 185 
 
 Levick V. Walker, 115 
 
 Levy V. Abbott, 381 
 
 V. Hale, 388 
 
 V. Wallers, 271 
 
 Lewes v. Thompson, .... 469 
 
 Lewis v. Amor, 241 
 
 f. Avery, 49 
 
 V. Baird, 499 
 
 V. Blair, 391 
 
 V. Bond 497, SOI 
 
 V. Bradford, . 490, 495, 503 
 
 Lewis V. Brown, ...... 322 
 
 V. Buck, .... 177, 247 
 
 V. Cook, 479 
 
 V. Hall, 500 
 
 V. Lindley, 56 
 
 V. Meir, 495 
 
 V. Palmer, . . .213, 420, 
 
 638, 639 
 
 V. Phillips, . . 64, 66, 514 
 
 V. Richardson 465 
 
 V. Smith, 234, 23s, 238, 272, 
 
 273, 330, 482 
 
 Lex V. Patters, .562 
 
 L. & F. Ins. Co. V. Adams, . . 625, 
 
 627, 629 
 
 Libby v. Copp, . . 304, 382, 401 
 
 Lieby v. Wolf, 498 
 
 Liefer v. Thompson, . . . .421 
 
 Lies V. Le Diablar, 135 
 
 Lieshey v. Gardner, . . 432, 468, 
 
 480, 524 
 
 Lightner v. Mooney, . . 498, 503 
 
 v. Steinagel, . . . .159 
 
 Lillard v. Casey, 437 
 
 Lillington's Case, 44 
 
 Lillie V. Hoyt j 445 
 
 Lincoln V. Cross, . . . .61,218 
 
 Lindell v. Benton, 68 
 
 Lindley v. Kelly, 255 
 
 Lindsay V. Fuller, 114 
 
 V. King, 286 
 
 Line's Appeal, 88 
 
 Linford v. Linford, . . . 459, 541 
 Link V. Architectural Works, . 440 
 Linn v. Hamilton, . . 45, 241, 619 
 
 Linnendol v. Doe, 337 
 
 Linton y. Ford, . . 234, 235, 23S 
 Lintz v. Thompson, .... 205 
 
 Lion V. Wilcher, 159 
 
 Lipe V. Mitchell's Lessee, . .192 
 Lippincott v. Tanner, .... 80 
 Lisa V. Lindell, .... 428, 476 
 
 Lishey V. Clayton, 153 
 
 Lister v. Mundell, 279 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 Litchfield v. Cudworth, . i8i, 182, 
 298, 356 
 
 Littell V. Scranton, 563 
 
 Little V. Delaney, 626 
 
 V. Harvey, 453 
 
 V. Henning, 61 
 
 V. Luntz 412, 416 
 
 V. Newburyport Bank, . 574 
 V. Sennett, . 49, 429, 520, 522 
 V. Sleeper, 298 
 
 Littlefield v. Kimball, . 
 
 Livermore v. Boutelle, 
 
 Livingston v. Cleveland, 
 V. Lant, 
 v. Littell, 
 
 Lloyd v. Anglin, . 310, 
 V. Brewster, . 
 V. Connover, . 
 V. Durham, . 
 V. Lee, . . . 
 V. Malone, 
 V. Sandilands, 
 V. Wycoff, . . 
 
 Lobdell V. Sturtevant, 
 
 Lock V. Tilford, . . 
 
 Locke V. Coleman, . 
 V. Rowell, 
 
 Lockhart v. McElroy, 
 
 Lockridge v. Baldwin, 
 
 V. Bickerstaaf, 
 
 Lockwood V. Bigelow, . 
 
 v. Bull, . . 
 
 v. Nye, . . 
 
 v. Perry, 
 
 v. St. Louis, 
 
 V. Younglove, 
 Lofland v. Jefferson, 
 Loftip V. Hughes, . 
 Logan V. Dougherty. 
 V. Hillegas, . 
 V. Lucas, . . 
 Logsdon V. Spivey, 234, 258, 266, 278 
 Loman v. Clarke, 586 
 
 • 457 
 92, 189 
 
 • 376 
 
 • 435 
 . 152 
 
 311,395, 520 
 • 148, 174 
 . 360, SOI 
 ... 149 
 
 355, 361 
 418 
 224 
 234, 235, 246 
 382 
 352 
 
 320, 516 
 126 
 
 450, 462 
 327 
 78, 
 
 252, 617 
 289 
 
 245 
 
 14s, 184 
 
 . 285 
 
 .615 
 
 III, IIS 
 
 67, 209 
 
 236, 394 
 
 270 
 
 596 
 
 259. 281 
 
 Long V. Bennett, S^o 
 
 V. Dollarhide, .... 498 
 
 V. Morton, 501 
 
 V. Page, 193 
 
 Longdice v. Jones 445 
 
 Longworth v. Screven, . . . 500 . 
 
 Loomis V. Jackson, 478 
 
 V. Lane, 408 
 
 V. Riley, . . . 471, 476 
 
 V. Starrs 292 
 
 V. Wheeler, .... 214 
 
 Loomis's Appeal, 486 
 
 Lord V. Baldwin 543 
 
 V. Sill, 356 
 
 Dudley v. Lord Ward, . 167 
 
 Lorimer v. Lule, 604 
 
 Loring v. Illsley 542 
 
 V. Neville, 221 
 
 Losee v. Simpson, 498 
 
 Lothrop V. Abbott, ..... 390 
 
 V. Arnold, 636 
 
 V. Wightman, . . . S45 
 Loughlin v. Schuyler, .... 346 
 Louisville v. Commonwealth, . 564 
 
 Love V. Cherry, 523 
 
 v. Gates, 83, 240 
 
 V. Harper, 271 
 
 V. Jones, .... 364, 370 
 
 V. Williams 452 
 
 Lovejoy v. Bowers, S45 
 
 V. Murray S75 
 
 Lo veil V. Powell, SM 
 
 Lovett V. G. R. Church, . . . 60s 
 
 Lovick V. Crowder, 250, 251, 269, 272 
 
 Low V. Adams, 377, 380, 428, 474, 
 
 518, 519, 542, 549, 603 
 
 V. Marcow, 186 
 
 Lowe V. Stringham 122 
 
 Lowell V. Powell, . . . 483,514 
 
 Lownes v. Hunter, 598 
 
 Lowry v. Bryant, 604 
 
 V. Cady, ...... 394 
 
 V. Coulter, 234, 238, 239, 394 
 V. Jenkins, 530 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 Lowry V. McDermott, 
 V. McGhee, . 
 V. Medlin, . 
 V. Walker, . 
 
 Lowther v. Carleton, 
 
 Lubbock V. Vince, . 
 
 Lucas V. Cassaday, 
 V. Doe, . . 
 V. Lucas, . . 
 
 Ludden v. Kincaid, 
 
 Luddington v. Peck, 
 
 Ludlow V. Lansing, 
 
 Lukin V. Avid, . . 
 
 Lull V. Mathews, 
 
 Lummiss v. Kasson, 
 
 Lunt V. Hall, . . . 
 
 Lupin V. Marie, . . 
 
 Lusk V. Salter, . . 
 
 Lute V. Reilly, . . 
 
 Luther v. McMichael, 
 
 Lyde v. Russell, 
 
 Lyerby v. Wheeler, 
 
 Lyfford v. Dunn, 
 
 V. Thurston, 
 
 LyfFord's Case, . . 
 
 Lyman v. Beam, 
 
 v. Lyman, . 
 
 Lynch v. Baxter, 
 
 V. Commonwealth, 
 V. Gibson, , 
 V. Hanrahan 
 V. Pressly, , 
 
 Lyndon v. Gorham, 
 
 536 
 
 438 
 
 603 
 
 81 
 
 49' 
 69 
 254 
 409 
 S44 
 S14 
 208 
 32 
 
 151 
 360 
 252 
 
 389 
 
 174 
 
 430 
 
 139 
 
 310 
 
 169 
 
 526 
 
 296 
 
 . 290 
 
 • 163 
 
 . 402 
 
 41. 575 
 
 ■ 330 
 
 . 242 
 
 355, 361 
 
 263, 449 
 
 • • 254 
 
 538, 539> 540 
 
 34, 
 
 Lynn v. Sisk, . 242, 269, 428, 474, 
 518, 625 
 
 Lyon V. Hampton, . . . 254, 269 
 
 V. McGuire, 300 
 
 V. Sandford, 262 
 
 V. Stewart, 246 
 
 Lyon's Appeal,, 614 
 
 Lyster v. Brewer, 619 
 
 V. DoUand, . . 191, 192 
 
 Lyttle V. Cin., &c., Ins. Co., . 273 
 
 J 
 
 Lyttle V. Etherly 438 
 
 V. People. 59 
 
 M. 
 
 McAfoose's Appeal, . 
 McArthur v. Carrie, . 
 V. Pearce, . 
 McAteer v. McMuUen, 
 McAuley's Appeal, 
 McAusland v. Pundt, . 
 McBain v. McBain, 468, 
 McBee v. State, . . . 
 McBride v. Longworth, 
 McBrown v. Rives, 
 McBurnie v. Overstreet, 
 McCall v. Elliott, . . 
 V. Trevor, . . 
 V. Yard, . . . 
 McCance v. Taylor, 
 McCann v. Taylor, 
 
 V. White, . . 
 McCantz v. Rogers, . 
 McCartney v. Bostwick, 
 V. King, . 
 McCarty v. Emlen, . . 
 McCaskell v. Amarine, 
 McCauley v. Fulton, . 
 McChain v. McKeon, . 
 McClary V. Bixby, . 122, 
 McCleary v. Faber, 
 McClellan v. Marshall, 
 McClellan v. Sling;lufF, 23 
 McClelland v. Heron, . 
 V. Hubbard; 
 McClenahan v. Humes, 
 McClendon v. Kemp, . 
 McClintock v. Graham, 
 McCloud V. Hubbard, 
 McClung V. Bevine, 
 McCIure v. Ege, . . 
 
 v. Engleheart, 471 
 V. McClung, . . 
 
 • • 453 
 401, 402 
 
 • • 390 
 . . SOI 
 
 • • 123 
 . . 607 
 608, 609 
 
 • ■ 390 
 461, 606 
 
 • • 452 
 235, 238 
 
 • • 590 
 53, 262 
 
 • • 497 
 263, 359 
 
 • . 263 
 . . 360 
 . . 263 
 
 • • 194 
 . . 508 
 
 540, 542 
 . . 185 
 
 • ■ 545 
 . . 244 
 123, 125 
 
 303, 433 
 . . 616 
 263, 452 
 . . 360 
 
 • ■ 155 
 
 ■ • 293 
 511, 517 
 163, 245 
 
 • • 173 
 
 ■ ■ 455 
 . . 272 
 
 ,481,482 
 
 • • 473 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 iVlcClure V. McCormick, 
 V. Melendy, . 
 V. Thistle, 
 McCluskey v. McNeely, 
 McCobb V. Tyler, . . 
 McCoUum V. Hubbert, 
 McComb V. Dunch, , . 
 V. Ellett, . . 
 V. Rankey, . 
 McConneghy v. McCaw, 
 McConnell v. Bowdry, 
 V. Brown, . 
 V. Gibson, 
 McConnihe v. Sawyer, 
 McContley's Appeal, . 
 McCormack v. Melton, 
 V. Wilcox, 
 McCormick v. Alexander, 
 V. Digby, 
 V. Fitzmorrice, 
 V. Hawey, 
 V. McMurtri 
 V. Meason, 
 V. Miller, . 
 V. Wheeler, 
 
 McCormish v. Melton, 
 McCoy V. Odom, . . 
 V. Reed, . . . 
 McCracken v. Hall, 
 
 V. Hayward, 
 
 McCrary v. Chaffin, 
 McCready v. Brisbane, 
 McCreery v. Sutherland, 
 McCreevy v. Portion, . 
 McCrillis v. Sisson, .... 463 
 McCuUoch V. Hollingsworth, . 614 
 
 V. Cowper, . . . 503 
 
 McCuUough V. Dashiel, . . . 540 
 
 V. Somerville, . . 500 
 
 V. Tidwell, . 43, 421 
 
 McCuUum V. Hubbert, 53, 54, 418 
 
 V. Turpie 352 
 
 369, 5 14 
 187 
 500 
 93 
 263 
 53 
 539 
 463 
 
 534, 535 
 191 
 
 391 
 179, 196 
 
 322, 473 
 181 
 
 91 
 54 
 123 
 271 
 190 
 i, 615 
 363 
 481 
 
 43 
 250 
 
 403, 
 473, 491 
 54, 576 
 . . 284 
 . . 270 
 . . 167 
 . .308, 
 584, 586 
 381, 383 
 471, 479 
 611 
 
 138 
 
 '■, 483; 
 
 McCurdy v. Canning, 
 McDaniel v. Hughes, . 
 McDaniels v. Flower, . 
 McDermott v. Morrison, 
 
 86, 141, 173 
 
 • 589 
 
 ■ 495 
 . 192 
 . 198 
 . 461 
 
 ■ 369 
 
 • 633 
 
 • 515 
 
 McDevitt's, &c., Appeal, 
 McDonald v. Badger, . . 
 
 V. Bunn, . . 
 
 V. Cooke, . . 
 
 V. Crandall, 88, 122, 136, 
 
 137, 447 
 V. Flinn, 
 V. Foster, . 
 V. Gronefeld, 
 V. Leewright, 
 V. Lowry, . 
 V. Neilson, 
 
 V. Picket, . 
 
 V. Vandal, . 
 
 V. Wilkie, . 
 McDougal V. Dougherty, 
 McDowell V. Clark, . 
 
 V. Diefendorf, 
 
 V. Robinson, 
 McElhaney v. Flynn, . 
 McElhenney v. Wylie, 
 McElmurry v. Ardts, . 
 
 . 64, 66 
 . . ISO 
 266, 278 
 
 • ■ 390 
 . . 264 
 208, 211, 
 319, 323, 347 
 • 159 
 
 . 214 
 . 636 
 
 . 384 
 . 126 
 
 . 381 
 . 214 
 
 2I9> 63s 
 470, 471 
 
 McElrath v. Kurtzing, 370, 402, 638 
 McEl wee V. Sutton, . . 240,514 
 McEntire v. Durham, .... 526 
 McFadden v. Spencer, . . . 610 
 
 V. Worthington, 504, 527 
 McFarland v. Gwin, .... 588 
 
 V. Wilson, . . . 464 
 McFee v. Harris, . 32c, 393, 410, 
 
 473, 514, 515 
 
 McGaher v. Carr, 422 
 
 McGary v. Dunn, 476 
 
 McGee v. Anderson, . . . .112 
 
 •V. Cherry 173 
 
 V. Ellis, .... 330, 508 
 
 V. Harris, 420 
 
 V. Mellon, . . . 364, 370 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 McGee v. Smith, 361 
 
 McGehee v. Gindrat, .... 495 
 McGhee v. Ellis, . . . 350, 508 
 V. Way, . . . 138, 331 
 McGill V. Armour, ... 93, 586 
 McGinnis v. Lillard, . . 598, 603 
 McGlinchy v. Hall, .... 226 
 McGough V. Wellington, . 305, 390, 
 410, 637 
 McGowan v. Wilkins, . . . 535 
 McGown V. Sandford, . . . 614 
 McGregor v. Brown, .... 630 
 
 V. Hall 150 
 
 V. Matthis, . . .195 
 V. Williams, . . . 297 
 
 McGrew v. Hart, 285 
 
 V. McLannahan, . . 359 
 McGuinty v. Herrick, 213, 215, 218 
 
 McGuire v. Ely, 607 
 
 V. Faber, 195 
 
 V. Kouns, . . 472, 526 
 
 -McHenry v. Reilly, .... 138 
 
 V. Walkins, . . . 620 
 
 McHugh V. Pundt, 214 
 
 Mcllhenny v. Barbin, .... 430 
 Mcllvaine v. Smith, .... 198 
 Mclndoe v. Hazleton, . . .613 
 Mclntire v. Durham, . . . .515 
 V. Rowan, . . . . • 56 
 Mcintosh V. Chew, . . 254, 255 
 
 V. Walker 146 
 
 Mclntyre v. Ag. Bank, . . . 194 
 
 Mclver v. Ritter, 267 
 
 Mcjilton V. Jove, 606 
 
 -McKay v. CoUehan, .... 384 
 
 V. narrower, . . 84, 542 
 
 v; Smitherman, . . . 450 
 
 V. Williams, . . '. . 264 
 
 McKean v. Bisbee, . . 144, 188 
 
 McKee v. Limeburger, . 325, 326 
 
 V. Wilcox, 497 
 
 McKeen v. Gammon, . . 304, 305 
 McKenna v. Seechrist, . . . 453 
 McKenzie v. Murphy, . 89, 122 
 
 McKeown v. Craig, . . 
 McKiethan v. Terry, . . 
 
 V. Walker, 
 McKim V. Mason, , . . 
 
 Vi Voorhees, . . 
 McKinley v. Tucker, . . 
 McKinne v. Craig, . . . 
 McKinneys v. Lampleigh, 
 V. Scott, . . 
 McKissack v. Davis, . . 
 McKnight v. Gordon, . . 
 McLagan v. Brown, . . 
 McLain v. Upchurch, 
 McLanahan v. Wyant, 
 McLane v. Johnson, . . 
 
 V. Moore, . . . 
 
 McLaughlin v. Scott, . . 
 
 V. Shepard, . 
 
 V. Shields, 410, 
 
 McLean v. Cook, . . . 
 
 V. Paul, . . . 
 
 V. Rockey, . . 
 
 V. Upchurch, 
 
 V. Whiting, . . 
 McLean Co. Bank v. Flagg, 
 
 421, 475 
 262 
 198 
 163 
 281 
 
 631 
 623 
 
 160 
 
 369, 407 
 619 
 
 369. 478 
 606 
 276, 330, 482 
 359 
 293 
 521 
 
 349 
 503 
 420,421 
 214 
 289 
 172 
 330 
 574 
 316, 
 
 276, 
 
 McLellan v. Codman, 
 V. McLean, 
 v. Nelson, 
 McLenore v. Benbow, 
 McLeod V. McCall, 
 V. Pierce, . 
 v. Ward, . 
 McLin V. Williams, 
 Mc Louth V. Rathbone, 
 McLure v. Wheeler, . 
 McMahan v. Coldclaugh, 
 
 V. Hall, . . 
 
 McMahon v. Glasscock, 
 
 V. Green, . 
 
 v. Hall, . . 
 
 V. Thompson, 
 
 McManus v. Campbell, 
 
 McMechan v. GrifBng, 
 
 336, 347. 408, 488 
 . 522 
 . 276 
 
 ■ 306 
 . 285 
 . 322 
 3>6, 336 
 . 460 
 340, 426, 501 
 . 360 
 
 • 357 
 
 • 42 
 . 263 
 
 • 72 
 265, 6 56 
 
 • 446 
 
 • 449 
 123, 138 
 496, 498 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 McMechen v. Marman 
 
 ! • 
 
 193 
 
 ,487 
 
 McMichael v. Branch Bank, &c 
 
 , 78 
 
 V. Knapp, 
 
 
 56 
 
 V. McDermott, 
 
 327 
 
 ,425 
 
 McMillan v. Gable, . . 
 
 
 412 
 
 V. Parsons, 
 
 
 
 481 
 
 V. Richards, 
 
 
 160 
 
 481 
 
 McMiller v. Butler, 
 
 
 
 75 
 
 McMurray v. Shuck, 
 
 
 
 90 
 
 McNair v. Bateman, 
 
 
 
 263 
 
 V. Biddle, . 
 
 
 
 514 
 
 V. Lane, 
 
 
 
 6S 
 
 V. O'Fallon, 
 
 
 
 192 
 
 V. Ragland, 
 
 
 
 60 
 
 McNeely v. Hart, . 
 
 
 
 337 
 
 V. Rucker, 
 
 
 
 498 
 
 McNiel V. Bean, 
 
 
 
 455 
 
 V. Magee, . 
 
 
 
 498 
 
 V. Reichard, 
 
 
 
 634 
 
 McNutt V. Bland, . 
 
 
 
 584 
 
 V. Wilcox, 254, 
 
 256 
 
 462 
 
 McPherson v. CunlifF, 
 
 
 480 
 
 V. Foster, 
 
 
 427 
 
 v.- Hussey, . 
 
 
 472 
 
 V. Pemberton, 
 
 542 
 
 547 
 
 McPike V. Altman, . . 
 
 
 476 
 
 V. Penn, . . . 
 
 
 61 5 
 
 McRaven v. McGuire, 
 
 
 S02 
 
 McWhorter v. Beavers, . 
 
 
 330 
 
 V. Hulling, . 
 
 
 189 
 
 McWilliams v. Myers, 
 
 
 352 
 
 Mabin v. Kirby, .... 
 
 
 495 
 
 Mace V. Button, . . . 
 
 78 
 
 254 
 
 Mackie v. Cairns, . . . 
 
 
 151 
 
 V. Smith, . . . 
 
 
 54 
 
 V. Warren, . . . 
 
 
 576 
 
 Mackey v. Lubke, . . . 
 
 
 327 
 
 V. Martin, . . . 
 
 
 489 
 
 V. Trustees, . . 
 
 
 59 
 
 Mackreth v. Symmons, . 
 
 
 S02 
 
 Macon R. R. v. Parker, . 
 
 552 
 
 553 
 
 V. Shepherd, 
 
 
 503 
 
 Maddox v. Maddox, . . 
 
 
 491 
 
 V. Sullivan, . 
 
 . 
 
 
 515 
 
 Madigan v. McCarty, . 
 
 . . .168 
 
 Maeck y. Sinclear, . . 
 
 . . 290 
 
 Magaw V. Gkrrett, . . 
 
 . . . 362 
 
 Magee v. Carpenter, . 
 
 . . 150 
 
 Maginac v. Thompson, 
 
 . . .463 
 
 Magoun v. Ins. Co., . 
 
 • . 589 
 
 Maguire v. Marks, . . 
 
 • • 330 
 
 Mahan v. Scruggs, 
 
 . . 112 
 
 Mahone v. Perkinton, 
 
 • • 53 
 
 Mahoney v. Blake, . . 
 
 • • 383 
 
 V. Horan, 
 
 364, 370 
 
 Mahurin v. Brackett, . 
 
 . . 400 
 
 Maitland v. Backhouse, 
 
 . . 492 
 
 Major v. Bulkley, . . 
 
 • • 493 
 
 v. Deer, . . . 
 
 196, 368 
 
 Majoribanks v. Hovendei 
 
 , . .492 
 
 Malove v. Abbott, . . 
 
 . . 266 
 
 v. Samuel, . . 
 
 . . 402 
 
 Maloney v. L'Estrange, 
 
 . . 40S 
 
 Malcolm v. Spoor, . . 
 
 • -635 
 
 Mallett V. Hutchinson, 
 
 • • 598 
 
 Mallory v. Stodder, 
 
 . . 500 
 
 Man V. McDonald, 
 
 . . 425 
 
 V. Rogers, . . . 
 
 . . 125 
 
 Man's Appeal, . . . 
 
 361, 504 
 
 Manahan v. Sammon, . 
 
 - • 331 
 
 Mandlove v. Burton, . 
 
 • • 93 
 
 Mangles v. Dixon, . . 
 
 . . 492 
 
 Manguin v. Hamlet, . ■ 
 
 • • 273 
 
 Manley v. Hunt, . . 
 
 • • 195 
 
 V. Kissough, . 
 
 . . 152 
 
 Mankin v. Fletcher, . 
 
 . . 214 
 
 Manning v. Dove, . . 
 
 . . 3" 
 
 V. Monoghan, 
 
 . . ISO 
 
 Mansell v. Mansell, 
 
 . . 502 
 
 Mansfield v. Blackburn, 
 
 . . 166 
 
 V. Hoagland, 
 
 . .436 
 
 V.Jack, . . 
 
 • • 295 
 
 Manuel v. Bates, . . 
 
 • • 572 
 
 Manufacturers' Bank v. 
 
 Bank 
 
 of Pennsylvania, . 
 
 • • 497 
 
 Manorier v. Cook, . . 
 
 • • 514 
 
 Maples V. Mellon, . . . 
 
 169, 309 
 
 V. Nelfon, . . 
 
 • . 423 
 
TABLE OF CASES CITED. 
 
 Ixxvii 
 
 Mapp V. Thompson, 
 
 March v. Ludlum, . 
 
 Marcy v. Kinney, . 
 
 Mariner v. Coon, 51 
 
 Mark v. State, . . 
 
 Marie's Appeal, . . 
 
 Maries, In re, . . 
 
 MarMand V. Bowless. 
 V. Crump, 
 
 Marlcley v. Rand, . 
 
 Marlatt v. Warriclc, 
 
 Marmadulce v. Tennant, 
 
 Marr v. Nichols, 
 
 Marrigold v. Thorpe, 
 
 Marriot v. Shaw, 
 
 Marsh v. Alfred, 
 
 V. Austin, . 
 V. Haywood, 
 V. Lawrence, 
 
 . . 3" 
 408, 413 
 
 • • 243 
 I, 369, 483 
 92, III 
 . 630 
 . 280 
 
 • 91 
 
 • 479 
 . 636 
 
 439. 523 
 
 , 427 
 . 619 
 . 214 
 
 540, 541 
 . 112 
 . 156 
 
 466, 496 
 150, '54, iSS. 
 
 159,262,320,448 
 
 V. Luzenby, 90 
 
 V. Potter, 43 
 
 Marshall v. Beverly, .... 291 
 V. Cunningham, 265, 284 
 
 V. Davis, 248 
 
 Greenfield, . . . 475 
 
 Hosmer 634 
 
 McLean, 262, 264, 362 
 Minter, .... 618 
 Moore, .... 352 
 V. Morris, . . 229, 354 
 V. Ruddick, . . 160, 457 
 V. Simpson, .... 229 
 Marshalsea, Case of, 203, 218, 219 
 Marston v. Baldwin, . . . .175 
 V. Dewberry, . . .539 
 
 V. Roe, 167 
 
 Martin v. Ashcraft, .... 575 
 
 V. Barney, 391 
 
 V. Blight, 317 
 
 V. Branch Bank, &c., . 74 
 
 V. Carter, 254 
 
 V. CoUister, .... 429 
 V. Cotter 501 
 
 Martin v. Davis, 247 
 
 V. Dryden, . . . 262, 277 
 
 v. Goudy 204 
 
 V. Hagadine, , . . 349 
 
 V. Hughes, 122 
 
 V. Jewell, ... 82, 176 
 V. Lopland, .... 459 
 V. McCargo, . . 484, 527 
 V. Marshal, .... 219 
 V. Martin, 359, 360, 481, 503 
 
 V. Podger, 217 
 
 V. Ranlett, 317 
 
 V. Rice, 45 
 
 V. Sale, .... 498, 502 
 
 V. Watson, 245 
 
 Marvin V. Hawley, 159 
 
 V. Herrick, 61 
 
 Mary, The, 589, 590 
 
 Marysville v. Buchanan, . 599, 604 
 Mascraft v. Van Antwerp, . 320, 
 
 333, 440 
 
 Master v. Edwards, . . 574, 576 
 v. Stanley, 159 
 
 Mason v. Allen, 197 
 
 v. Anderson, .... 402 
 
 v. Faire 501 
 
 V. Osgood, 590 
 
 v. Payne, 382 
 
 V. Thomas, 421 
 
 V. Wart, 330 
 
 V. White, 289, 316, 336, 340, 
 427, 478 
 
 Massey v. Thompson, 369, 478, 497 
 V. Wescott, 497, 503, 505 
 
 Massie v. Greenhow, .... 490 
 V. Long, . . 
 V. Mcllvaine, 
 V. Wilson, . 
 
 Massingill v. Downs, 
 
 Master v. Cooper, . 
 
 Masters v. Stanley, 
 
 Matheny v. McDonald, . . . 322 
 
 Mather v. Chapman, .... 304 
 
 Mathews v. Clifton 471 
 
 . . .329 
 . 500, 502 
 
 352, 3S3> 613 
 . . .586 
 
 • 383,401 
 . .• . i?8 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 ISO, 
 
 Mathews v. Duryee, 
 V. Redwine, 
 V. Thompson, 
 V. Warne, 
 Mathewson v. Moore, 
 Matlack v. Deal, 
 Matlock V. James, . 
 V. Strange, 
 V. Straughn, 
 Matteson v. Baucus, 
 Mattocks V. Stearns, 
 Mattoon v. Elder, . 
 Maupin v. Evans, . 
 Maury v. Cooper, . 
 Maverack v. Salinas, 
 May V. Gentry, . . 
 V. Johnson, 
 V. May, . . . 
 V. Thomas, 
 
 V. Waters, . . 
 Maybury v. Jones, . 
 Mayer v. Chattahoochee 
 
 V. Clark, . . 
 
 V. Hinman, . 
 Mayham v. Coombs, 
 Mayhew v. Herrick, 
 Maynard v. Hoskins, 
 May6 v. Foley, . . 
 Mayor v. Deer, . . 
 
 &c., V. Shaw, 
 
 V. Williams, 
 Mays V. Rose, . . 
 Maywood v. Lubcock, 
 Maxey v. Loyal, 88, 1 1 
 Maxon v. Perrott, . 
 Maxwell v. King, . 
 V. McGee, 
 V. Reed, . 
 Mazyck v. Coil, . . 
 Mead v. Lord Orrey, 
 Meanor v. Hamilton, 
 Means v. Osgood, . 
 
 V. Vance, 
 
 • • 4S6 
 . . ii6 
 379. 476 
 269, 4S3 
 ■ 377 
 
 • 359 
 
 • S4I 
 . 284 
 
 • 149 
 iji, 154 
 182, 295 
 
 ■ 569) 596 
 . . 83 
 396, 521 
 . . 527 
 
 . • 145 
 . . 258 
 414, 418 
 347, 512, 
 513,516 
 203, 322 
 . . 142 
 
 Bank, 
 
 397 
 . 152 
 . SOI 
 . s°° 
 
 ■ 543 
 . 192 
 . S26 
 . 368 
 . 602 
 
 ■ 490 
 . 486 
 
 • 504 
 37,447 
 
 • 117 
 
 • 424 
 
 • 159 
 III, IIS 
 
 574, 575 
 . . S02 
 . . S16 
 
 • • 399 
 . . is8 
 
 Mechanics, &c.. Ass. v. Cou- 
 
 •nover, 153 
 
 Mechanics Bank v. Edwards, . 173 
 V. Merchants 
 
 Bank, 353, 562 
 V. N. Y. R. R., 
 
 156, s6i 
 
 V. Pitt, 409. 414 
 
 Mechanics, &c., v. Williams, 1 82, 
 
 299> 356 
 
 Medart v. Fasnacht, .... 609 
 
 Meech v. Loomis, 570 
 
 Meek v. Bunker, 613 
 
 Meeker v. Evans, . 336, 347, 349 
 
 V. Harris, 599 
 
 V. Williams 403 
 
 V. Wilson, 147 
 
 Meetz V. Padgett, 314 
 
 Meigs's Appeal, 163 
 
 Meir V. Zelle, 412 
 
 Meitzler's Appeal, 91 
 
 Mellen v. Boarman, 
 Melton V. Davidson, 
 Melville v. Brown, . 
 
 • • 330 
 
 . . 198 
 
 292, S4S, 
 
 S49, 637 
 . . 206 
 
 . . 183 
 336, 633 
 
 Mendenback v. Hopkins, 
 Mendenhall v. Randall, 
 Meng V. Houser, . . 
 
 Menjes v. Oyster, 424 
 
 Mense v. McLean, 490 
 
 Mentz V. Harmon, . 272, 274, 390 
 Mercer v. Doe, .... 521, 527 
 
 V. Tinsley, 150 
 
 Mercerau v. Prest, 412 
 
 Merchant v. Perez, . . 
 Merchants Bank v. Cook, 
 
 V. 
 
 Evans, . 
 Harrison. 
 
 Merchie v. Gaines, 
 Mercier v. Chace, . 
 Meredith v. Shewall, 
 Merrihew v. Taylor, 
 Merrill v. Burbank, 
 
 J 38 
 S66 
 
 615 
 425, 
 483 
 . . 6i 
 
 123, 137 
 
 • • 392 
 . . 70 
 
 • • 29s 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 Merrill V Housely 517 
 
 V. Runker, 540 
 
 Merritt v. Borden, 309 
 
 V. Mites 150 
 
 V. White, . . . 378, 381 
 
 Merry v. Bostvfrick, 192, 437, 440 
 
 V. Hallett, . . . 144, 172 
 
 Mers V. Bell, 311 
 
 Merserau v. Norton, 540, 542, 543 
 Merservy v. Barelli, .... 352 
 Mervine v. Vantier, .... 330 
 Merwin V. Smith, . 310,318,347, 
 
 425, 427 
 Messer v. Bailey, . . . 391, 394 
 
 Messick v. Russell, .... 68 
 Messingill v. Downs, .... 93 
 Messner v. Lewis, . . . 398, 399 
 Metcalf V. Gillett, 373, 428, 519, 526 
 V. Scholey, . . 154, 192 
 Methodist Church v. Jacques, . 502 
 Methery v. Walker, . . 124, 125 
 
 Metzel V. Waters, 630 
 
 Metzlen v. Shannon 414 
 
 Meux V. Maltby, 497 
 
 Mevey's Appeal, 316, 349, 629, 638 
 Meyer v. Campbell, .... 266 
 
 V. Claws, 125 
 
 V. Cochran, 518 
 
 V. Meyer, 117 
 
 V- Ring, 54, SS 
 
 V. Sanders, 407 
 
 V. Tully, 613 
 
 M. I. V. M. C. R. R. Co., . . 259 
 Michael v. Benner, .... 66 
 
 V. Shaw, 388 
 
 Michen v. Commonwealth, . . 391 
 
 Michie v. Planters' Bank, . . 268 
 
 Michond v. Girard, . . 322, 417, 
 
 418, 425 
 
 Mickles v. Hart, 211 
 
 V. Haskin, . . . 256, 361 
 
 V. Rochester Bank, . 321 
 
 V. Tousley, .... 88 
 
 Middlebrook v. Corwin, . . 165 
 
 Middleton Bank v. Jarvis, . . 562 
 Milburn v. Oilman, .... 214 
 
 V. State, 630 
 
 Mildmay v. Smith, 391 
 
 Miles V. Davis, .... 402, 610 
 
 V. Knott, 514 
 
 V.Wheeler, . . . 322,418 
 
 V. Wilson, 481 
 
 Mill V. Hill, 497 
 
 Miller v. Alexander, . . 236, 377, 
 487, 522 
 
 V. Ash ton, 255 
 
 V. Bagwell, 254 
 
 V. Baker, 169 
 
 V. Bradford, 499 
 
 V. Cherry, 407 
 
 V. Colvil 416 
 
 V. Commonwealth, . . 633 
 
 V. Cresson, 490 
 
 V. Crews, 284 
 
 v. Doane, 62 
 
 v. Duncan, 567 
 
 V. Dyer, 205 
 
 V. Earl, 240 
 
 V. Estelle, 500 
 
 V. Finley, 487 
 
 V. Finn, .... 330, 360 
 V. Fraley, . . . 412, 401 
 
 V. Girce, 214 
 
 V. Hull, . . . . . .408 
 
 V. Jamieson, 487 
 
 V. Lewis, 439 
 
 V. Milford, 603 
 
 v. Miller, . . 231, 244, 575 
 
 V. Moses, 396 
 
 V. Musselman, .... 359 
 
 V. Pancoast, 152 
 
 V. Parnell, . . . 59, 6' 77 
 V. Plumb, . . . 141,, 169 
 V. Shackleford, . . 399, 503 
 V. Sherry, . . . 136, 499 
 V. Streeter, . . . 157, 235 
 
 V. Sturm, 284 
 
 V. Wilson, . . j6o, 369, 383 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 Miller's Appeal, 92 
 
 Milliken v. Bailey 402 
 
 V. Graham, .... 490 
 
 V. Kendig, . . . . 3S9 
 
 Million V. Commonwealth, 262, 449 
 
 V. Riley, 35, 265, 481, 482 
 
 Mills V. Camp, .... 151,273 
 
 V. Eden, .... 173, 353 
 
 V. Estate of Grant, . .124 
 
 V. Goodsell, 322 
 
 V. Reddick, 167 
 
 V. Rogers, 416 
 
 V. Tukey, 470 
 
 V. Van Voorhies, . . . 456 
 
 V. Young 204, 206 
 
 Millspaugh v. Mitchell, . . . 273 
 
 Miner v. Bigelow, 221 
 
 V. Wallace, 193 
 
 Paul, 
 
 498 
 S6i 
 
 . ... 23s 
 512, 514, 51S 
 
 • • 23s, 238 
 . . 166, 167 
 
 • ■ 325.326 
 . ... 234 
 
 V. Willoughby, 
 Minnesota R. R. v. St. 
 Minor v. Herriford, 
 V. Natchez, 
 V. Smith, 
 Minshall v. Lloyd, , 
 Minter v. Dent, . . 
 Minturn v. Stryker, 
 Miss., &c., R. R. Co. V. Hark- 
 
 ness, 460 
 
 Mitchell V. Anderson, .... 268 
 
 V. Beal 151 
 
 V. Billingsly, . . . . IIJ 
 V. Brown, . . . 438, 620 
 V. Commonwealth, . . 258 
 V. Evans, ... 51, 429 
 
 V. 
 
 Harris, . 
 
 . 
 
 . 
 
 432 
 
 V. 
 
 Kirtland, 
 
 . 
 
 , 
 
 30i 
 
 V. 
 
 Lipe, 395, 
 
 428, 474, 
 
 519, 
 
 
 
 
 520 
 
 526 
 
 V. 
 
 Luntz, . 
 
 
 
 197 
 
 V. 
 
 Magnolia, 
 
 . 
 
 . 
 
 589 
 
 V. 
 
 Milhoau, 
 
 
 160 
 
 4';7 
 
 V. 
 
 Robinson, 
 
 
 
 19? 
 
 V. 
 
 Sevier, . 
 
 
 
 182 
 
 » St. Maxen's Lessee, 82 
 
 Mitchell V. Thorp, . 
 V. Vance, . 
 V. Winslow. 
 Mixier v. Sibler, 
 Moak V. Coates, 
 Mobile, &c., v. Moore, 
 
 V. Trotter, . 
 Mobley v. Lombat, 
 Mode's Appeal, . . 
 Modisett v. Johnson, 
 MofFatt V. Jaquins, . 
 
 V. McDonald, 
 Mogg V. Hodges, . 
 Mohawk Bank v. Atwater, 
 
 407, 
 
 607 
 
 286 
 500 
 412 
 516 
 
 S17 
 452 
 
 541 
 359 
 193 
 306 
 148 
 173 
 346, 
 353, 41 5 
 Mok. Hill Co. V. Woodbury, . 596 
 Molineaux v. Frilham, . . . 532 
 Mollison V. Eaton, . . . . 44, 49 
 Moloney v. Kernan, .... 487 
 Monahan v. City of Phil., . . 565 
 
 Moncrief v. Ward, 43 
 
 Monroe v. Tracy, 300 
 
 Montague v. Dent, 169 
 
 V. Gray, 172 
 
 V. Richardson, . .114 
 
 Monte Allegre, The, 330, 479, 590, 
 
 591, 629 
 
 Montgomery v. Barrow, 
 
 V. Brown, 
 
 V. Farley, 
 
 V. Hunt, 
 
 V. Merrick, 
 
 V. Middlemiss, 
 
 V. Tutt, 
 
 Montifrore v. Brown, 
 
 Montison v. Millen, 
 
 Moody V. Farr, . . 
 
 V. Harper, . 
 
 V. Mahurin, 
 
 V. Payne, 538, 539, 540, 542, 
 
 543, 547 
 
 Mooney v. Maas, 327 
 
 Moore v. Alleghany City, . . 216 
 V. Auditor, 499 
 
 324 
 397 
 516 
 187 
 430 
 536 
 
 138, 535, 536 
 496 
 
 157 
 194 
 256 
 445 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 Moore v. Bell, . . 
 V. Chambers, 
 V. Cunningham, 
 V. Curry, 
 V. Dawney, 
 V. Detchmandry, 
 V. Dunning, 
 V. Edwards, 
 V. Fitz, . . 
 V. Gammill, 
 V. Goore, 
 V. Hilton, . 
 V. Hitchcock, 
 V. Holt, . . 
 V. Kelly, . . 
 V. McClief, . 
 V. Richardson, 
 V. Rittenhouse, 
 V. Sample, . . 
 V. Schultze, . 
 V. Simpson, 
 V. Titman, . . 
 V. Towle, . . 
 V. Westervelt, . 
 V. Wittenberg, 
 
 Mooiland v. Cook, . . 
 V. Kimberlin, 
 V. Leigh, 
 V. RufBn, 
 
 Moorman v. Quick, 
 
 Moran v. Shaw, . . . 
 
 Morange v. Edwards, . 
 
 71, 604, 620 
 . 604 
 . 164 
 
 • SOS 
 . 202 
 
 ■ 47S 
 . 125 
 
 463, 466 
 
 236, 262 
 
 . 284 
 
 • 438 
 
 • 407 
 
 ■ 153 
 . 262 
 . 146 
 .631 
 . 291 
 . 252 
 
 S4I, S43 
 468, 480, 590 
 
 I93> 194 
 389, 393 
 . . 63 
 
 • • 257 
 177, 247 
 
 • • 495 
 . . 322 
 
 • ■ 374 
 
 • • 399 
 . . 160 
 . . 360 
 
 • ■ 387 
 
 V. Le Roy Du Cerevil, 493 
 . . 213 
 
 • • 403 
 
 • • 327 
 461, 633 
 
 • • 438 
 
 • • 475 
 
 • • 473 
 
 • • 475 
 502, 503 
 
 Moravia v. Sloper, . . 
 
 Mordecai v. Parker, . 
 
 V. Speight, . 
 
 More V. Barclay, . . 
 
 V. Gore, . . . 
 
 Moreau v. Detchmandry, 
 
 Morehead v. Pierce, . 
 
 Morelan v. Branham, . 
 
 V. Lemasters, 
 
 Moreland v. Bowling, . 
 
 Morford v. 'i'honias, . 
 
 i- 
 
 . . 409 
 390, 460 
 
 Morgan v. Arrington, 
 V. Arthurs, 
 V. Bouse, . 
 V. Hannah, 
 V. Mason, . 
 V. Morgan, 
 V. People, . 
 V. Ramsay, 
 V. Republic, 
 V. Spangler, 
 V. Stearns, . 
 
 • • 297 
 146, 164 
 188, 487 
 ■ • 470 
 
 • • 525 
 
 • • 5°3 
 210, 627 
 . . 209 
 . . 152 
 
 • • 239 
 88, 124, 125, 
 126, 137, 447 
 
 V. Thames Bank, . . 563 
 V. Watmough, 542, 543 
 V. Whitesides, . . .618 
 
 Morrell v. Burnell, 620 
 
 V. Cook, ... 55, 400 
 
 Morrey v. Dorser, 195 
 
 Morrill v. Fitzgerald, .... 401 
 
 Morris V. Allen, 425 
 
 V. Bradford, .... 424 
 
 V. Hyde, 146 
 
 V. Lake, 203 
 
 V. Mamesty, .... 160 
 
 V. Sargent, 126 
 
 V. Trustees, &c., . 389, 398 
 V. Ward, . . 135, 136, 420 
 V. Way,- .... 189, 198 
 
 Morrisey v. Hill, 264 
 
 V. Love, 292 
 
 Morrison v. Austin, .... 49 
 
 V. Beckwith, . . . 353 
 
 V. Blodget, 538, 539, 540, 
 
 542, 545, 548 
 
 V. Bruce, . . 350, 424, 
 
 43o> 517 
 
 . • 457 
 
 V. Case, . 
 v. Dent, . 
 V. Funk, . 
 V. March, 
 V. Semple, 
 V. Wright, 
 V. Wurtz, 
 Morrow v. Allison, . 
 
 602, 
 
 483 
 
 505 
 496 
 
 143 
 637 
 194 
 
 378 
 
Ixxxii 
 
 TABLE OF CASES CITED. 
 
 361 
 
 Morrow v. Brenniger, 
 V. Hart, 
 V. Weed, 
 Morrys v. Leake, 
 Morse v. Childs, 
 V. Dewey, 
 V. Doe, . 
 V. James, 
 V. Royal, . 
 V. Sleeper, 
 Morss V. O'Neal, 
 Mortland v. Hines, 
 Morton v. Granada Academies, 
 V. Talmadge, 
 V. Walker, . 
 V. Welbourn, 
 V. Williams, 
 Mosely v. Anderson, 
 V. Edwards, 
 V. Garnier, . 
 Moses V. McFarlane, 
 
 V. Thomas, 
 Moss V. Moore, . 
 V. Warner, 
 Moss's Appeal, . 
 Mott V. Clark, . 
 V. Estate, . 
 V. Palmer, . 
 , Mount V. Harris, 
 V. Potter, 
 Mountford v. Scott, 
 Mouiitney v. Andrews, 
 Mowbray v. Lawrence, 
 Mower v. Stickney, 
 Moyer v. Hinman, . . 
 Mueller v. Bates, . . 
 Muir V. Graig, . . . 
 
 V. Leitch, . 257, 267, 271, 544 
 Mulford V. Estudillo, 252, 253, 255 
 
 Mulks V. Allen, 409 
 
 Mullen V. Harding, . . 316, 345 
 MuUin V. Johnson, . . . 384, 401 
 
 V. MuUins, 326 
 
 MuUett V. Challis 626 
 
 . . 185 
 254, 256 
 517, 520 
 
 • • 54 
 482, 525 
 
 • 53,54 
 
 • • 309 
 216, 218 
 
 • • 407 
 . . 486 
 . . 308 
 
 • • 45 
 
 . . 32 
 
 256, 464 
 
 io, 36s, 508 
 
 • 499 
 91,93 
 
 • 403 
 252, 430, 607 
 
 • • 507 
 
 212, 229 
 
 234, 258 
 
 126 
 
 452 
 
 505 
 76 
 
 i45» 169, 178 
 194 
 
 352 
 491 
 254, 255 
 542 
 214 
 
 195 
 391, 393 
 
 . . S08 
 
 93; 
 
 Mulligan v. Newton, .^ ... 44 
 Mumford v. Armstrong, . 315, 336, 
 
 395, 450 
 
 Mun V. Carrington, 172 
 
 Munday v. Stubbs, . . . . ■ . 636 
 Mundell V. Hammond, . . .116 
 
 Mundine v. Pitts, , 504 
 
 Mundy v. Bryan, 409 
 
 V. Vawter, 497 
 
 Munk V. Cass 385 
 
 Munroe v. Luke 296 
 
 V. Redding, 296, 306, 381 
 
 V. Thomas, 
 Munson v. Harroun, 
 Murdock v. Gifford, 
 Murphy v. Cord, 
 
 V. Lewis, . 
 
 V. McCleary, 
 
 V. Wood, . 
 Murray v. Ballou, . 
 
 V. Binninger, 
 V. Buchanan, 
 V. Edmondson, 
 V. Emmons, 
 V. Finster, . 
 V. Gibson, . 
 V. Lyeburn, 
 V. Palmer, . 
 Murrell v. Johnston, 
 V. Roberts, 
 V. Smith, . 
 Muscatine v. Mississippi, 
 Muscott V. Woodworth, 
 Musselman v. Eshleman, 
 Mussey v. Cummings, 
 Muzzey v. Howard, 
 Myers v. Arney, 
 
 V. Cochran, . 
 V. Ford, . . 
 V. Manny, . 
 V. Prentzell, 
 V. Saunders, 
 Mysroll v. Violette, 
 
 176, 292, 551 
 
 259, 281 
 
 163, 171 . 
 
 . . 290 
 
 54, 620 
 
 • • 473 
 
 • • 599 
 492, 493, 
 
 498, S02 
 . 220 
 
 • 73 
 
 ■ 598 
 36, 185 
 
 . 502 
 . 262 
 
 • 493 
 
 • 407 
 
 • 159 
 84, 462 
 
 ■ 392 
 . 618 
 
 • 634 
 
 ■ 407 
 635, 637 
 
 376 
 154 
 489 
 
 135 
 509 
 284 
 179 
 240 
 
 90, 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 N. 
 
 Nabours v. Cocks 52 
 
 Naddin v. Baltic, 576 
 
 ^agle V. Macy, .... 404, 517 
 
 V. MuUison, 636 
 
 Naglee v. Pacific W. Co., . . 563 
 
 Nail V. Granger, 362 
 
 Nance v. Hooper, 364 
 
 Naples V. Minnier, 190 
 
 Nardin-v. Battie, 576 
 
 Nash V. Farrington, . . . .114 
 
 V. Nash 156 
 
 Nason v. Allen, 183 
 
 V. Grant, 297 
 
 Nat. Bank v. Sprague, . 149, 549 
 N. F. Ins. Co. V. Loomis, . . 368 
 Natchez V. Minor, . . . 471,514 
 
 Neal V. Beaumont, 631 
 
 V. Berryhill, 398 
 
 V. Caldwell, 630 
 
 V. Hagthorp 501 
 
 V. Price, 623 
 
 V. Stone, . . . . 417, 418 
 Neary v. Cahill, .... 542, 546 
 Needham v. Allison, . . . .170 
 Neelson.y. Bank, &c., . . . .621 
 
 Neely v. Tupper, 370 
 
 Neith V. Crofut, 213 
 
 V. Gaunt, . . 328, 329, 620 
 
 Neilson v. Neilson, . 141, 338, 349, 
 
 420, 512, 514, 515 
 
 Nelms V. Williams, ..... 445 
 
 Nelson v. Allen, 501 
 
 ' V. Bowen, 408 
 
 V. Brown, . . . 385, 401 
 V. Conner, . . . 174, 247 
 
 V. Cook, 374 
 
 V. Hughes, . . . 3S9, 369 
 V. Merriam, .... 635 
 V. Rockwell, .... 256 
 
 V. Sims, 490 
 
 Nesbitt V. Allen, 414 
 
 Nesbitt V. Dallam, 
 
 Ness V. Van Swearingen, 
 Neusbaum v. Keim, . . . 
 New E., &c., Co., V. Merriam, 
 Newell, In re, ... 
 V. Sibley, . . 
 Newhall v. Buckingham, 
 
 349. a5°. 
 408, 415 
 
 ■ • 369 
 . . 148 
 
 ,8 
 
 V. Provost, 
 
 Newnham v. Law, 
 
 New Hampshire Bank v. 
 num, 
 
 Newland v. Baker, . 
 V. Painter, 
 V. Pellett, . 
 
 Newlin v. Murray, . 
 
 Newman v. Bagley, 
 
 V. Chapman, 
 V. Farr, 
 V. Hazelrigg, 
 V. Hook, . 
 V. Meek, . 
 V. Willett, 
 
 Newson v. Newson, 51 
 
 Newstead v. Searles, 
 
 Newton v. Nunally, 
 V. Prather, . 
 V. State Bank, 
 
 483, SI 
 New Orleans v. Terrier, 
 Ins. Co. V. 
 
 ley, . 
 
 V. Pellerin, 
 
 Niantic BaAk v. Dennis, 
 
 Nichols V. Chapman, . 
 
 V. Deavey, . . 
 
 V. Dervey, . . 
 
 V. Dissler, . . 
 
 V. Disney, . . 
 
 V. Ke'tchum, . 
 
 V. McCall, . . 
 
 V. Mead, . . 
 
 V. Mercier, . . 
 
 138 
 
 • • 471 
 . . 265 
 
 • -538, 
 543. S45 
 
 • • 399 
 S4, SS, 72 
 Var- 
 
 212, 633 
 
 387, 634 
 . . 609 
 
 • • 44S 
 . . 461 
 
 • • 548 
 . . 502 
 
 • • 175 
 . . 466 
 
 337. 339 
 . . 318 
 
 • • SI 
 
 1, 423, 424 
 
 • • 491 
 
 449. 45" 
 . . 402 
 
 391. 412, 
 
 2, 513. 514 
 . . 63 
 
 Bag- 
 317. 345 
 
 • 32s 
 
 • 437 
 72, 421 
 
 • 524 
 
 • 524 
 
 • SIS 
 ■ 584 
 
 338 
 
 32I: 
 
 229, 327 
 
 154 
 
 • • 430 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 Nichols V. Michael, 
 V. Mumford, 
 V. Ridley, . 
 V. Thomas, 
 Nicholas v. Purcell, 
 Nicholson v. Burke, 
 Nickles V. Haskm, . 
 Nickerson v. Whittier, 
 Niel V. Hone, . . 
 Niel's Appeal, 
 Niolin V. Hammer, 
 Nixon V. Bynum, 
 V. Cobleigh, 
 V. Hamilton, 
 V. Harrell, 
 V. Marsh, 
 Noble V. Bosworth, 
 
 V. Cope's Adm'rs, 
 V. HoUiday, . 
 V. Holmes, i. 
 V. Whetstone, 
 Noe V. Commonwealth 
 V. Conyers, . . 
 V. Gibson, . . 
 Noel V. Scoby, . . 
 Nolan V. Seekright, 
 Noland v. Wickham, 
 Norman v. Bellman, 
 
 V. Manciette, 
 Norris v. Moulton, . 
 V. State, . . 
 Northern v. State, . 
 North Carolina Ins. Co. 
 North V. Shearn, 
 
 V. Swing, . . 
 
 North Wester & Co. v, 
 
 Norton v. Beaver, . 
 
 V. Boyd, . . 
 
 V. Quimby, . 
 
 V. Talmadge, 
 
 V. Williams, 
 
 Norvell v. Bragdon, 
 
 Nott V. McNiel, . . 
 
 Noyes v. True, . . 
 
 . . .504 
 539, 540, 544 
 368, 389, 527 
 213, 570 
 . . 122 
 . . 82 
 . . 362 
 . . 296 
 
 • • 407 
 
 • • 273 
 400, 464 
 . . 521 
 
 403, 473 
 . . 492 
 
 • • 599 
 . . 544 
 163, 16s 
 . . 460 
 . . 213 
 213, 215 
 . . 630 
 . . 69 
 . . 620 
 I77,,247 
 
 • • 598 
 
 • • 534 
 . . 116 
 
 89, 91, 126 
 
 • • 569 
 . . 125 
 . . 630 
 
 175, 341 
 Hicks, 199 
 . . 121 
 .69,613 
 Landes, 602 
 . .615 
 . . 280 
 .81, 517 
 
 • . 32 
 
 • • 504 
 . . 187 
 
 • • 147 
 407, 412 
 
 Nuckols V. Mahone, .... 620 
 
 Nun V. Matlock, 613 
 
 Nunnemacher v. Ingle, . . . 6'6 
 
 Nutt V. Wheeler, 517 
 
 Nutter V. Wilson, 519 
 
 Nye V. Drake, 292 
 
 N. Y. Life Ins. Co. v. Milnor, . 352 
 N. Y. & Co. V. Bailey, .... 364 
 V. Nat., &c., Co., . 491 
 N. Y. & N. H. R. R. V. Schuy- 
 ler, 561,563 
 
 o. 
 
 Oades v. Woodward, .... 275 
 
 Oakerv. Aiken, 513 
 
 Oakland R. R. Co. v. Keenan, . 535 
 
 Oakley v. Becker, 54 
 
 V. Trustees, . . . .615 
 Oberthier v. Stroud, 330, 361, 501 
 O'Brien v. Hilburn, .... 414 
 O'Connor v. Warner, .... 455 
 V. Youngplover, . . 429 
 Odiorne v. Mason, . . . 304, 500 
 O'Donnell v. Mullin, .... 637 
 
 Ogden V. Giddings, 136 
 
 V. Glidden, 352 
 
 V. Powell, 286 
 
 V. Walters, . 469, 472, 473 
 
 Ogle V. Coffee, . . 379, 383, 384 
 
 Ohio L. & T. Co. V. Goodin, . 434 
 
 L. & Ins. Co. V. Ledyard, 361, 
 
 SOI 
 
 &c., Co. V. Urbana, . . . 399 
 
 Oland's Case, 161 
 
 Olcott V. Robinson, 311, 344, 345 
 Oldham v. Scrivener, .... 277 
 
 Oliet V. Bissey, 216 
 
 Oliver v. Caton, 535 
 
 V. Croswell, 440 
 
 Jordan, The, 177, 247, 260 
 
 V. Piatt, .... 322, 501 
 
 Olmsted v. Hotalling, . . . .175 
 
 Olney v. Harvey, 565 
 
TABLE OF CASES CITED. 
 
 Ixxxv 
 
 66, 
 
 Olson V. Nelson, 
 Olympic Theatre, 
 Ombony v. Jones, 
 Onderdonk v. Emmons, 
 O'Neal V. Duncan 
 
 V. Lusk, . 
 
 V. Wilson, 
 Ontario Bank v. Lansing, 
 
 V. Root, 
 Orchard v. Williamson, 
 Ordinary v. Spann 
 Orme v. Roberts, 
 Oro Tino, &c., Co. v. CuUen, 
 O'Rourke v. O'Connor, 
 Orr V. McBryde, 
 
 V. Pickett, . . 
 Orrock v. Orrock, . 
 Orth V. Jennings, 193, 
 Orvings v. Meyers, . 
 Orvis V. Isle La Motte, 
 Osborne v. Cloud, 
 
 V. Humphrey, 
 V. Taylor, . 
 V. Tunis, . 
 V. Woodson, 
 Osgood V. Blackmore, 
 V. Brown, 
 V. Howard, 
 Ostrander v. Walter, 
 Otis V. Wood,. . 150, 
 Outcall V. Darling, . 
 Outcalt V. Disbrough, 
 Overton v. Hill, . . 
 V. Perkins, 
 
 V. Tozier, . 
 
 Oves V. Oglesby, . 
 Oviatt V. Brown, 
 
 V. Vyner, . . 
 Owens V. Barksdale, 
 
 V. Glover, . 
 
 V. Homan, . 
 
 V. Myers, . 
 
 67, 
 
 87 
 170 
 168 
 596 
 
 369 
 462 
 
 330 
 
 409, 421 
 
 186 
 
 • 145 
 
 • 2S4 
 . 488 
 . 612 
 . 266 
 . 158 
 . 614 
 
 60, 66 
 361, 500, 504 
 
 493 
 402 
 
 S6, 157, 173, 
 408, 619 
 . . .172 
 
 • • -493 
 . 186,483 
 
 • • -473 
 
 • 346, SIS 
 64, 66, 80, 478 
 
 ... 145 
 
 . . . 256 
 
 S3, IS4, 155 
 
 • • -154 
 ... 514 
 ... 159 
 
 • 327,332, 
 370, 423 
 
 • 303, 307 
 . . . 164' 
 . . .481 
 
 S6, 380, 519 
 • • 527 
 
 • 576 
 . . .492 
 
 491 
 
 Owens V. Patterson, 
 V. Ranstead, 
 V. Simpson, . 
 Owings V. Mason, . 
 V. Myers, . 
 O'Witchee Co. v. Hope, 
 Owners, &c., v. Mayor, 
 Owsley V. Smith, . . 
 Oystead v. Shed, . . 
 
 273 
 
 395 
 
 56 
 
 504 
 
 493 
 604 
 
 398 
 330 
 213 
 
 Oxley V. Mizzle, . . .69, 514, 607 
 
 P. 
 
 Packard v. Bird, .... 317, 523 
 
 V. Wood, 391 
 
 Packwood v. Elliott 146 
 
 Paddock, In re, 438 
 
 V. Palmer, .... 610 
 
 Padfield v. Brine, 159 
 
 Page V. Carpenter, 541 
 
 V. Coleman, . . . 1 . 620 
 
 V. Ewbank, 137 
 
 V. Goodman, 186 
 
 V. Rogers, . 194, 263, 440, 468 
 Paige V. Willett, .... 445, 446 
 
 Pailhes v. Thulen, 394 
 
 Pain v. Middlesex, 637 
 
 Paine v. Mason 149 
 
 v. Spratley, S3, 305, 3o8, 380 
 
 v. Webster, 241 
 
 Painter v. Liverpool, &c., . .217 
 Fallen v. Ag. Bank, .... 352 
 Palmer v. Clarke, . 390, 452, 458 
 
 v. Crosby, 82 
 
 v. Foote, 191 
 
 v. Forbes, . 146, 154, 554, 
 
 557, S6i 
 v. Palmer, 42, 51, 423, 424 
 
 V. Thayer, 394 
 
 Pamlee v. Atty. Gen., .... 502 
 
 Paquin v. Braley, 327 
 
 Pardee v. Lindley, 137 
 
 V. Robinson, 374, 630, 631 
 Pardon V. Pardon, . . . . 61, 77 
 
Ixxxvi 
 
 TABLE OF CASES CITED. 
 
 278, 
 
 502, 
 
 278, 
 
 S40, 
 
 Parham v. Thompson, 
 Parlin v. Churchill 
 Park V. Darling, . 
 V. Larkin, . 
 V. Mosse, . 
 Parker v. Anderson, 
 V. Booth, 
 V. David, 
 V. Dean, . 
 V. Dannie, 
 V. Frambes, 
 V. Grayson, 
 V. Hotchkiss, 
 V. Jackson, 
 V. Jones, . 
 V. Kane, . 
 V. King, . 
 V. Mosse, 
 V. Osgood, 
 Partlow, 
 Pierce, 
 Pistor, 539, 
 Pratt, . 
 Simonds, 
 Smith, . 
 Staniland 
 V. S torts, 
 V. Swan, . 
 V. Walrod, 
 V. Warren, 
 V. Waugh, 
 Parkerson v. Sessions, 
 
 V. Wightman, 
 
 Parkhurst v. Cory, . 
 
 Parkist v. Alexander, 
 
 Parkman v. Welsh, . 
 
 Parks V. Alexander, 
 
 V. Goodwin, . 
 
 V. Persons, . 
 
 Parmlee v. Henderson, 
 
 V. Hitchcock, 
 
 V. Hogan, . . 
 
 V. Leonard, . 
 
 V. Sloan, . , 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 160, 524 
 . . 464 
 
 • • 51S 
 . . 186 
 
 ', 530, S34 
 . . 607 
 
 • • 377 
 244, 245 
 252, 266 
 . . 148 
 . . 61 
 
 • . 383 
 . . 568 
 . . 502 
 . . 618 
 
 :, S20, 589 
 124 
 
 ', 53°, S34 
 
 • • 239 
 
 • • 330 
 499, 504 
 
 I, 543, 544 
 . . 409 
 . . 28s 
 208, 214 
 160, 341 
 
 ■ . 524 
 476, 482 
 213, 218 
 
 • • 399 
 . . 272 
 
 • • 450 
 93,135,420 
 
 411,412 
 . . 498 
 
 • • 353 
 387, 498 
 
 • • 597 
 ', 397, 408 
 
 • • 407 
 202, 213 
 . . 150 
 
 • • 635» 
 
 • • 505 
 
 270, 
 
 Parrish v. Harriman, .... 304 
 V. Saunders, .... 264 
 
 V. Turner, 482 
 
 V. Wilhelm, . . . .214 
 
 Parrott v. Kent, 2091 
 
 V. Mumford, . . 202, 635 
 V. Shaubhut, .... 499. 
 
 Parry's Appeal 258, 272 
 
 Parsons v. Bedford, . . 585, 586 
 
 V. Gill, 275 
 
 V. Hoyt, 49J 
 
 V. Livingston,. ... 90 
 
 V. Lloyd, . . . 219; 638 
 
 Passebon v. Prieur, .... 366 
 
 Patchin v. Pierce, 155 
 
 Pate V. Swan, 92 
 
 Patten v. McDowell, .... 499- 
 
 V. Stewart, . . . 310, 346- 
 
 Patterson v. Anderson, . . . 360 
 
 V. Birt, 394 
 
 V. Bodenhammer, . . 194 
 V. Carneal, . . 350, 423 
 v. Chandler, . . . 307^ 
 V. Fowler's Ex'rs, 263, 267 
 V. Parker, .... 383. 
 
 V. Perry, 542 
 
 v. Powell, .... 629/ 
 
 V. Ritter, 215 
 
 v. State, &c., 306, 397, 398 
 
 V. Westervelt, . 229, 230, 
 
 625, 630- 
 
 Patterson's Estate, . 193, 195, 500. 
 
 Pattison v. Josselyn, . . . .417 
 
 Patton v. Hammer, . . . 210, 229, 
 
 230, 466' 
 
 V. Hator, 272 
 
 v. Hollidaysburg, . . . 503, 
 
 .v. Man 381 
 
 v. SherifF, &c., . . 241, 271 
 
 Patty V. Mansfield, 285 
 
 v. Pease, 352 
 
 Paul v. Von Kirk 214 
 
 Pavy's Appeal, 272 
 
 Pawley v. Gains, 159* 
 
TABLE OF CASES CITED. 
 
 Ixxxvii 
 
 Faxon's Appeal, . . . 390, 521 
 
 Paxton V. Freeman, . 93, 135, 420 
 
 V. Stickel, . . . 202, 392 
 
 Payne v. Avery, 352 
 
 V. Bellingham, 323, 324, 379 
 V. Drewe, 247, 250, 259, 260, 
 27S> 320, 448 
 V. Farmers' Bank, 307, 521 
 V. Governor, .... 32 
 V. Graham, . . . 195, 615 
 
 V. Green, 215 
 
 V. Payne, 74 
 
 V. Pollard 426 
 
 Paysinger v. Shumpard, . . . 267 
 Peabody v. Fenton, .... 494 
 
 V. Minot 183 
 
 Peacock v. Day, 79 
 
 V. Purvis, 160 
 
 Peake v. Shasted, 606 
 
 Peale v. Phipps, . . . 247, 260 
 
 Pearce v. Pearce, 470 
 
 Pearson v. Bradley, . . . .311 
 
 V. Daniel, 495 
 
 V. Minturn, 138, 160, 457 
 
 Pease v. Claytor, 220 
 
 Peay v. Fleming, 256 
 
 Peck V. Barney 462 
 
 V. Cavell, .... 384, 521 
 
 V. Fisher, 548 
 
 V. Jenness, . 247, 260, 280 
 
 V. Mallams, 418 
 
 V. Robinson, . 263, 269, 276 
 V. TifiFany, *. 49, 54, 249, 250, 
 2S4, 256, 262, 425, 429, 
 448, 45°: 522 
 V. Wallace, . . . 307, 382 
 V. Webber, . . . . .261 
 
 Peeple v. Reading 490 
 
 Peeple's Case, 381 
 
 Peet v. Simpson, 229 
 
 Pelletran v. Smith, 178 
 
 Pemberton v. King, . .■ 166, 167 
 
 V. Searce, . . . . 44 
 
 Pendleton V. Button, 306, 428,5 19,526 
 
 Pendleton v. Fay, . . . 
 
 494, 495 
 
 PenhaHow v. Doane, . . 
 
 • • S9'> 
 
 V. Dwight, . . 
 
 . . 161 
 
 Penn v. Craig, . . . . 
 
 • • 34& 
 
 ■ V. De Klyne, . . 
 
 . . 72 
 
 V. Isherwood, . . 
 
 . . 67 
 
 V. Spencer, . . . 
 
 426, 510 
 
 Pennington v. Chandler, . 
 
 . . 36S 
 
 V. Clifton, 
 
 . . 50S 
 
 v.«Yell, . . 
 
 • • 197 
 
 Penniman v. HolHs, 
 
 . . 184 
 
 Pennoyer v. Brace, . . 
 
 • 4S> 82 
 
 Pensoneau v. Blakely, 
 
 322, 361 
 
 Pennsylvania v. Kirkpatri 
 
 ck, . 536 
 
 Pennsylvania R. R. Co. v. 
 
 Com- 
 
 monwealth, . . . . 
 
 596, S99 
 
 Pennybacker's Appeal, . 
 
 ■ • 458 
 
 Penobscot Co. v. Wilkins 
 
 . . 258 
 
 Penobscot, &c., Co. v. Jones, 364, 370 
 
 Fenton v. Browne, . . . 223, 224 
 v. Robart, . 166, 168, 169 
 
 People V. Albany, 24S 
 
 v. Allen, 380 
 
 V. Ames, . . . 345, 400 
 V. Auditors, . . 155, 160 
 V. Baker, . . . 438, 439 
 
 V. Barr, 67 
 
 V. Boring, 470- 
 
 V. Bradley, . . . 209, 329 
 
 V. Cameron 261 
 
 V. Chisholm, 252, 253, 255 
 
 V. Clay, 122 
 
 V. Clerk, &c., .... 58 
 
 V. Collier, 437 
 
 V. Cooper, . . . 213, 216 
 V.' Covell, . . . 437, 439 
 V. Dunning, . . 445, 634 
 
 V. Everest, 631 
 
 V. FraHch, 439 
 
 V. Gale, 71 
 
 V. Haskins, . 144, 172, 198 
 v. Hays 4B7 
 
 > V. Hopson, . 253, 254, 255, 
 
 256, 258, 340, 466 
 
Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 People V. Hubbard, .... 223 
 V. Judges, ... 55, 607 
 V. Lamborn, .... 53 
 
 V. Loucks, 597 
 
 V. Mayor, &c., . . .140 
 V. Montgomery, ... 54 
 
 V. Muzzy, 453 
 
 V. Nelson, 487 
 
 V. Onondaga, &c., . .61, 
 207, 463 
 
 V. Palmer, 229 
 
 V. Peck, 68 
 
 V. Plumsted, . . . .125 
 
 V. Ransom, 471 
 
 V. Reeder, . . . . ' . 258 
 
 V. Sheriff, 439 
 
 V. Ulster Co., .... 457 
 V. Warren, . 208, 213, 216 
 V. Westervelt, . . 144, 172 
 
 Pepin V. Dunham, 639 
 
 Pepper v. Commonwealth, . . 423 
 
 V. Copeland, . . 303, 308 
 
 PercefuU v. Commonwealth, . 214 
 
 Parens v. Johnson, 546 
 
 Perkins v. Bradley, .... 492 
 
 V- Bragg, 93 
 
 V. Bullinger, .... 69 
 V. Dibbil, . . . '471, 472 
 V. Mayfield, . . 176, 451 
 
 V. Proud, 323 
 
 V. Spalding, . . 51, 239 
 
 V. Swank, 162 
 
 V. Thompson, . . . 322 
 V. Thornburg, . 222, 283 
 V. Woolaston, . . . 600 
 Perley v. Foster, ..... 202 
 Perpetual Ins. Co. v. Good- 
 fellow, 562 
 
 Perrin v. Everett, 393 
 
 V. Reed 298 
 
 V. Serjeant, 138 
 
 Perry v. Adams, 550 
 
 V. Dover, 378 
 
 V. Hayward, . . . 190, 356 
 
 Perry v. Hensley, . 
 
 
 88 
 
 V. HoU, . . 
 
 
 • m 
 
 V. Kearney, . 
 
 
 610 
 
 V. Siter, . . 
 
 
 . 613 
 
 V. Whipple, . 
 
 
 49, 240 
 
 V. Williams, . 
 
 
 331 . 462 
 
 Peru Iron Co., In re, 
 
 437, 439, 481 
 
 Peshine v. Binns, . 
 
 
 . , 610 
 
 Peters v. Goodrich, 
 
 
 495/ 498 
 
 V. Henshaw, 
 
 
 . . 421 
 
 V. Ins. Co., . 
 
 
 • 589 
 
 V. League, . 
 
 
 6i8 
 
 Peterson's Estate, . 
 
 
 . . 500 
 
 Petit V. Johnson, 
 
 18. 
 
 , 193, '99, 
 327, 422 
 
 V. Shepherd, . 
 
 
 453, 615 
 
 Pettingill v. Moss, . 
 
 328, 483, 618 
 
 Phayre v. Pierce, . 
 
 
 . . 502 
 
 Phegley v. Tatum, . 
 
 
 589, 590 
 
 Phelan v. Clarke, . 
 
 
 . . 148 
 
 Phelan's Estate, In re 
 
 
 126 
 
 Phelps v. Ball, . . 
 
 
 ■ • 54 
 
 V. Butler, . 
 
 
 185, 189 
 
 V. Connover, 
 
 
 138, 323, 
 347, 349 
 
 V. Morrison, 
 
 
 . . 187 
 
 v. Parks, 
 
 
 • 391 
 
 v. Tappan, . 
 
 
 186 
 
 Phettiplace v. Sayles, 
 
 
 . . 151 
 
 Philbrick v. Goodwin, 
 
 
 . . 284 
 
 Philleo V. Smalley, 
 
 
 124, 125 
 
 Phillips V. Bank, &c.. 
 
 
 • • 495 
 
 V. Birch, '. 
 
 
 • 42, 50 
 
 V. Brazeal, 
 
 
 . . 619 
 
 V. Bridge, . 
 
 
 • ■ 541 
 
 V. Coffee, 49, 
 
 39: 
 
 !, 429, 471, 
 
 473, 484, 
 
 SM 
 
 \, 515, 518, 
 522, 526 
 
 V. Cook, . 
 
 S3S 
 
 i, 541, 542, 
 543, 544 
 
 V. Dana, . 
 
 
 327, 462 
 
 V. Davis, . 
 
 
 • • 193 
 
 V. Dawley, . 
 
 
 . . 487 
 
 V. Demoss, 
 
 
 ■ • 391 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 Phillips V. Edmondson, 
 V. Elwell, . 
 V. Harris, . 
 V. Higdon, 
 V. Hunter, . 
 V. Jamieson, 
 V. Johnson, 
 V. Lamar, . 
 V. Norris, . 
 V. Rogers, . 
 V. Ronald, . 
 V. SchifFer, 
 V. Tanner, . 
 V. Walker, 
 V. Williams, 
 Phippen v. Stickney, 
 Phoebe, The, . . . 
 Piatt V. Piatt, . . . 
 Picard v. Peters, 
 Pickens v. Marlow, . 
 Pickering v. Driggers, 
 Pickett V. Breckenbridge, 
 V. Harstock, 
 V. Pickett, . 
 Piel V. Brayer, 
 
 • 19s 
 
 • 390 
 ;, 283 
 
 • 399 
 
 ■ 589 
 
 ■ 470 
 
 ■ 330 
 
 ■ 446 
 . 191 
 . 188 
 
 • 527 
 436, 472 
 
 • 56 
 . 248 
 . 306 
 
 • 317 
 
 ■ 59° 
 
 • 429 
 ,327 
 
 ■ 2S4 
 . 411 
 
 • 295 
 . 421 
 . 1:28 
 
 .316, 346, 350, 425, 
 488, 523 
 
 V. Watson, 371 
 
 Pierce v. Alsop, 51 
 
 V. Benjamin, 322, 629, 637 
 
 V. Crane 42 
 
 V. Emery, 561 
 
 V. Jackson, . 538, 540, 541, 
 
 S4S> 548 
 V. Partridge, . . 210, 231, 
 
 55°, 623 
 
 V. Potter 191, 361 
 
 V. Roche, . . . 160, 238 
 V. Scott, . . 247, 259, 281 
 
 V. Shipman, 147 
 
 V. Strickland, 243, 296, 304, 
 305, 400 
 
 Pierson v. Gale, 213 
 
 V. Ives, 502 
 
 V. Robb 262 
 
 I 
 
 Pigg V. Sparrow, 254 
 
 Pigot V. Davis, .... 389, 527 
 
 Pike V. Armstead, 502 
 
 Pilkey v. Gleason, 402 
 
 Pillsbury v. Smith, 356 
 
 Pinches v. Harvey, 596 
 
 Pingree v. CoiiSn, 495 
 
 Pinkerton v. Tumlin, . . .92, 93 
 
 Piper v. Elwood, 465 
 
 v. Hilliard, . . . 342, 499 
 V.Johnson, . . . .93,126 
 V. Rearson, . . . 217, 220 
 
 Piser v. Stearns, 175 
 
 Pitcher v. King, .... 229, 242 
 
 Pitfield V. Gazzam, 605 
 
 Pitman's Appeal 92 
 
 Pitney v. Leonard, . . . 493, 495 
 Pittman v. Robideaux, . . . 540 
 
 Pitts V. BuUard, 195 
 
 V. Clark, . . 428, 519, 526 
 V. Hendrick, . 161, 183, 524 
 V. Magie, . 142, 179, 241, 624 
 Pitts., &c., R. R. V. Alleghany 
 
 Co.,. . . 563 
 
 V. Jones, . .451 
 
 Pittsfield V. Barnstead, . . . 608 
 
 Bank v. Howk, ... 88, 
 
 137, 447 
 
 Pixley V. Huggins, 615 
 
 Place V. Fagg, . . 163, 165, 166 
 V. Lang worthy, . . . .152 
 V. Sweetzer, . . . 541, 543 
 
 Plaisted v. Hoar, 268 
 
 Planters' Bank v. Black, . 253, 274 
 V. Fowkes, . . 535 
 V. Henderson, . 152 
 V. Mer. Bank, . 561 
 V. Spencer, 451, 462 
 V. Walker, 161, 391, 
 
 399. 524 
 V. Willis, . . .154 
 
 Plaster v. Burger, 318 
 
 Piatt V. Brown, 224 
 
 V. Codwell, 3S8 
 
xc 
 
 TABLE OF CASES CITED. 
 
 197, 61S 
 
 Piatt V. Oliver, 317 
 
 V. Phillips, 420 
 
 V. Sherry, . 222, 243, 283, 387 
 Playfair V. Musgrove, . . 251, 637 
 
 Plough V. Reeves, 58 
 
 V. Williams, .... 58 
 
 Plumb V. Flint 492 
 
 Plumer v. Plumer, 170 
 
 Plummer v. Webb, 589 
 
 Plymouth R. R. v. Caldwell, 188, 561 
 Plympton v. Farmers' Bank, . 511 
 
 Poaque V. Boyce, 152 
 
 Poche V. Theriot, 
 Polk V. Gallant, . 
 V. Sypher, . 
 Pollard V. Cocke, 
 V. Pollard, 
 V. Taylor, 
 V. Thomasson, 
 PoUey V. Lenox, . . 
 Pomeroy v. Bunting, 
 V. Crocker, 
 V. Kingsley, 
 V. Smith, . 
 V. Winship, 
 Pomfret v. Ricroft, . 
 Pond v. GrifBn, . . 
 V. Kimball, 
 v. Pond, . . 
 
 . 640 
 
 403- 483, 522 
 . 61 
 
 • 437 
 . 89 
 
 390. 39S 
 
 • 139 
 
 . 219 
 • 273 
 . IS4 
 . 190 
 
 ■ 479 
 
 . 265 
 
 . 118 
 
 197, 243, 381 
 
 V. PuUiam, . 289, 292, 427, 475 
 Pondar v. Mosely, . . . 606, 607 
 
 Pontius V. Nesbitt, 60 
 
 Pool V. Glover, 186 
 
 V. Reid, 145 
 
 v. Symonds, 334 
 
 Poole's Case, . . 161, 166, 167, 169 
 Poor V. Deaver, . . .62, 450, 462 
 
 Pope v. Andrews, 151 
 
 v. Boyd, 198 
 
 v. Bradley, 323 
 
 V. Cutler, . 264, 482, 519, 525 
 
 V. Garland 501 
 
 V. Haman, . . 177, 539, 544 
 Popleston V. Skinner, 245, 251, 330 
 
 Porter v. Boone, 253 
 
 V. Byrne, . . 291, 292, 433 
 
 V. Cocke, 268 
 
 V. Col^ 502 
 
 V. Goodman, . • • S3, SJ 
 V. Ingham, . . . 464, 575 
 
 V. King, 191 
 
 V. Mariner, . . . 469, 470 
 V. Miller, .... 399, 400 
 
 V. Millett 189 
 
 Portis V. Parker, 233, 234, 285, 602 
 
 Portland Bank V. Stacy, . . .152 
 
 V. Stubbs, . . 213 
 
 Post V. Leet, 419 
 
 Postern v. Ewbank, .... 353 
 V. Southern, . . 210, 211 
 Potshinskey v. Krempkan, . .137 
 Potter v. Cromwell, 163, 164, 169 
 V. McDowell, .... 497 
 Potts V. Commonwealth, . . . 336 
 
 V. Ward, 402 
 
 Poucher v. HoUey, 574 
 
 Pound v. PuUen, 289, 292, 427, 475 
 
 Powell V. Dillon, . . . 497, 503 
 
 V. Governor, . . . .177 
 
 V. Healy 495 
 
 V. Lippitt, . 
 V. Williams, 
 Power V. Van Buren, 
 Powlett V. Atty. Gen., 
 Prather v. Bobo, 
 
 V. Hill, 
 Pratt V. Hoag, 
 
 V. Jones, 
 
 V. Lawe, 
 
 V. Phillips, 
 
 V. Putnam, 
 
 V. Pratt, . 
 
 V. Scholefield, 
 
 V. Topeka Bank, 
 
 V. Western Stage Co., 
 
 V. Wheeler, 
 Prentiss v. Bliss, 
 V. Hinton 
 
 , 486 
 . 190 
 
 249, 268 
 . 502 
 ■ 117 
 
 346, 407 
 
 • 494 
 
 • 464 
 . 189 
 
 36s, 391 
 . 38r 
 
 289 
 
 190 
 
 138 
 
 601 
 
 398, 400 
 
 • ■ 159 
 
 ■ • 576 
 
TABLE OF CASES CITED. 
 
 XCl 
 
 Presbyterian Corp. v. Wallace, . 359 
 Cong. V. Colt, . .188 
 
 Prescott V. Evarts, 470 
 
 V. Pettee, . . 428, 520, 525 
 
 V. Prescott 125 
 
 V. Tarbell 187 
 
 V. Wells, 167 
 
 V. Wright, . 209, 240, 629 
 President, &c., v. Emerson, . . 164 
 Presley v. Rodgers, . . . .186 
 
 Presnell v. Ransom 481 
 
 Preston v. Fryer, 187 
 
 V. Harrison, .... 508 
 
 V. Leavitt, 84 
 
 V. Turbin, . . . 491, 494 
 Prettyjohn v. Bloxom, . . .65, 600 
 
 Prevost V. Gratz, 322 
 
 Prewett v. Marsh 445 
 
 V. Neal, 202 
 
 V. Standifer, .... 464 
 V. Walker, . . . 283, 630 
 
 Price V. Boyd, 331 
 
 V. Bradford, 453 
 
 V. Bray ton, 169 
 
 V. Cloud, .... 396, 522 
 
 V. Harwood 637 
 
 V. Holland, 214 
 
 V. Hunt 539, S44 
 
 V. McDonald, 493, 494, 502 
 
 V. Sanchez, 285 
 
 V. ShiiFs, .... 235, 274 
 
 V. Smith, 564 
 
 V. Stone, 257 
 
 V. Sykes, 361 
 
 V. Varney, 300 
 
 Pride v. Lunt 477 
 
 Priest V. Milnes, 59 
 
 Princeton Bank v. Crozer, . . 234, 
 236, 562 
 
 .Pringle V. Allen, 183 
 
 V. Isaac 268, 271 
 
 V. Lonsdale, .... 65 
 V. Sizer, 454 
 
 Prior V. Stone, . . 
 Pritchard v. Brown, 
 V. Toole, . 
 Pritchitt V. Sessions, 
 Proctor V. Newhall, 
 Propeller v. Fitzhugh, 
 Prosser v. Rice, . . 
 Proud V. Pullen, . . 
 Proudfit V. Picket, . 
 Prouty V. Swift, . . 
 Providence Gas Co. 
 
 ber 
 
 Pruitt V. Lowry, . . 
 
 Pryor, In re, . . . 
 
 V. Stone, . . 
 
 Pugh V. Bell, . . . 
 
 V. Calloway, . 
 
 125, 137 
 . 190 
 . 263 
 
 • 492 
 87, 296 
 
 • 496 
 
 • 490 
 . 289 
 
 • 59 
 
 • 569 
 
 Thur- 
 162, 
 
 125, 
 
 170 
 
 429 
 
 68 
 136 
 502 
 234, 236, 243, 
 258, 403 
 
 V. Griffith, 225 
 
 Pullen V. Agricultural Bank, . 352 
 
 V. Bell, 167 
 
 V. Haynes, 391 
 
 PuUiam v. Osborne, 247, 260, 261 
 
 Punderson v. Brown 190 
 
 Purcell V. McFarland, . . . 55, 56 
 
 Purl V. Duvall, 232 
 
 Purrington v. Loring, 202, 306, 378, 
 392, 428, 519, 525, 629, 637 
 
 Pursley V. Hays, 517 
 
 Puryear v. Taylor, 263 
 
 Putnam V. Dutch, 152 
 
 V- Hall 399 
 
 ■ V. Mann, 391 
 
 Pyles V. Pennock 164 
 
 Queen v. Victoria Park Co., . 550 
 Quick V. Staines, . . . 175, 369 
 Quigley V. Gorham, . . . .116 
 
 Quinn v. Wiswall, 333 
 
 Quincy, Ex parte, i6g 
 
XCll 
 
 TABLE OF CASES CITED. 
 
 R. 
 
 Radcliffe V. Wood, ii6 
 
 RaiFensberger v. Cullison, . . 194 
 Ragan v. Kennedy, .... 147 
 
 Raiford v. Wood 505 
 
 Railroad Co. v. Caldwell, . . 552 
 
 V. James, . . .170 
 
 V. Johnson, . . .185 
 
 V. St. Paul, . . . 434 
 
 Rained v. Dunning, .... 4S6 
 
 Rakeshaw v. Hamilton, . 361, 362 
 
 Rammell v. Watson, . 79, 214, 402 
 
 Ramsey v. Sims, 366 
 
 Ramsey's Appeal, . . . 173, 353 
 
 Randall v. Cook, 150 
 
 V. Elder 120 
 
 V. Elwell 561 
 
 V. Errington, .... 408 
 
 V. Farnham, . . 192, 439 
 
 V. Wyman, .... 304 
 
 Randolph V. Carlton, . . 381,514 
 
 V. Daly 387 
 
 V. Ringgold, . . . 464 
 
 V. Thomas 412 
 
 Co. V. Ralls, . 565, 566 
 Rangely v. Goodwin, .... 240 
 
 Rankin v. Harper, 186 
 
 V. Harwood, .... 276 
 V. Holloway, . . . .152 
 V. Scott, . 262, 263, 280, 362 
 
 Ranson v. Halcott, 242 
 
 V. Keyes, ... 574, 575 
 
 V. Miner, 155 
 
 V. Williams, . . . .421 
 
 V. Young, 460 
 
 Rapin v. Dealy, 401 
 
 Ratcliffe v. Burton, . 223, 224, 571 
 
 Rathbone v. Clark, 352 
 
 Rauth V. Heath, 67 
 
 Raun V. Reynolds, 311, 347, 350, 609 
 
 Rawley v. Hooker, 304 
 
 Rawlings v. Bailey, 432 
 
 Rawson v. Clark, 291 
 
 V. Lowell, 292 
 
 Ray V. Birdseye, . . . 265, 490 
 
 V. Harcourt, . 234, 238, 239, 
 
 258, 262 
 
 V. Stobbs, 597 
 
 Raymond, In re, ... 437, 453 
 
 V. Pauli, 346 
 
 V. Rogers, . . . .137 
 V. White, . . 169, 171 
 Raymond's Lessee v. Long- 
 worth, 427,47s 
 
 Rayne v. Baker, 488 
 
 Raynor v. Hall 498 
 
 Read v. Cole 499 
 
 V. Heasley, 472 
 
 V. Markle, S°, 213 
 
 Reamer's Appeal, 425 
 
 Reams v. McNeil, . . . .75, 202 
 Reardon v. Searcy's Heirs, . . 606 
 
 Rector v. Gale, 64 
 
 V. Hart, 382, 407 
 
 Reddick V. Adm'rs, 210 
 
 V. Smith, 159 
 
 Redfern v. Redfern 122 
 
 Redington v. Stuart, .... 542 
 
 Redus V. Hayden, 430 
 
 V. WofFord 277 
 
 Redwine v. Brown, 479 
 
 Reed v. Austin, . . 420, 488, 517 
 
 V. Bigelow, 191 
 
 V. Brooks, 412 
 
 V. Carter, 407 
 
 V. Diven, . 190, 350, 408, 442 
 V. Haviland, . . . 451, 453 
 V. Heasley, . . . 368, 379 
 V. Howard, . . . 538, 542 
 
 V. Jewett, 152 
 
 V. Kinnaman, .... 360 
 
 V. Pruyn, 206 
 
 V. Reed, 359 
 
 V. Sheppardson, . . 538, 542, 
 
 S47, 548 
 V. Umbarger, 99 
 
TABLE OF CASES CITED. 
 
 XCIU 
 
 Reed v. Williams, 68 
 
 Reed's Appeal, . . 330, 461, 491 
 
 Rees V. Earners, 207 
 
 Reese v. Burts, 42, 620 
 
 Reeves v. Burnha'm, .... 69 
 V. Reeves, . . . 390, 396 
 V. Sebern, . . . 154, 265 
 
 Reg. V. Clerk, &c 71 
 
 V. Victoria Park Co., . . 550 
 
 V. Webb, 158 
 
 Regor's Adm'rs v. Owings, . . 640 
 Reicliart v. McClure, . . 481, 482 
 
 Reid V. Fitch, 186 
 
 V. Largent 516 
 
 V. Ranney, 158 
 
 Reigart's Appeal, 458 
 
 Reindeer, The, 589 
 
 Reinheimer v. Hemmingway, . 545 
 
 Relfe V. Bibb, 352 
 
 Religious Society v. Hitchcock, 231, 
 
 262, 263 
 
 Remick v. Butterfield, .... 322 
 
 Remington v. Cady, .... 542 
 
 V. Henry, .... 491 
 
 V. Linthicum, 37, 327, 
 
 366, 367, 518, 526 
 
 Remnants in Court, . . 590, 591 
 
 Rendall v. Wilkinson, . . . .601 
 
 Renick v. Orser, 80 
 
 Rennett v. Lawrence, . . 237, 392 
 
 Reno V. Wilson 158,159 
 
 Renton v. Champlain, .... 544 
 Republic Ins. Co. v. Williams, . 584 
 
 Requa v. Rea, 486 
 
 Revalk v. Kramer, 123, 135, 136, 420 
 
 Reve V. Petit, 220 
 
 Revere v. Gannett, 197 
 
 Rew v. Barber, .... 268, 272 
 
 v. Wood, 308 
 
 Rex v. Berks, 376 
 
 V. Bird, . ...'.. 224 
 
 v. Carlisle, 460 
 
 V. Harris 529, 532 
 
 V. Int., &c., 168 
 
 Rex V. Kent, ....'... 385 
 v. Monchousen, .... 248 
 
 V. Monmouth, 398 
 
 V. Oliver, 247 
 
 v. Otley 168 
 
 V. Sheriff, . . 54, 55, 247, 377 
 V. St. Dunstan, . . . . i6g 
 V. Wade, .... 374, 576 
 
 V. Webb, 157 
 
 V. Wolf, 576 
 
 Reynaud v. O'Brien, .... 376 
 
 Reynolds v. Barford, . . . .381 
 
 V. Harris, 436, 535, 536, 
 
 605, 608, 609 
 
 . 608 
 
 V. Hosmer, 
 In re, . . 
 V. Lathrop, 
 V. Lowry, 
 V. Moore, 
 V. Nye, . 
 V. Pixley, 
 V. Bailee, . 
 V. Shirley, 
 V. Wilson, 
 Rhame v. McCoy, . 
 Rhea v. Hughes, 
 Rheel v. Hicks, . . 
 Rhoades v. Magonigal, 
 Rhodes v. Chappel, 
 
 V. McCormick, 
 
 V. Patterson, 
 
 V. Wood, . 
 
 Rhonemus v. Corwin, 
 
 Rhorer v. Gurill, .' . 
 
 Ribout V. Wheeler, . 
 
 Rice v. Adams, . . 
 
 V. Austin, . . 
 
 V. Barnard, 
 
 V. Cleghorn, . 
 
 V. Groif, . . . 
 
 V. Serjeant, 
 
 V. Smith, . . 
 
 V. Tower, . . 
 
 Rich V. Roberts, . . 
 
 • 533 
 
 • 36s 
 . 60 
 . 214 
 
 323, 414, 417 
 
 • 137 
 . 248 
 . i6g 
 
 310, 425, 427 
 . 236, 238 
 . . . ig6 
 ... 507 
 
 • 15s. 173 
 ... 598 
 ... 124 
 . . .636 
 
 • 245, 542 
 
 • 393,409 
 236, 381, 390 
 
 ... 80 
 
 • 164, 524 
 S39, 540, 541 
 
 ... 548 
 . . .322 
 ... 390 
 
 ■ 177, 273 
 . . .470 
 
 • 245, 251 
 • • 149 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 Richards v. Alden, . 
 
 V. Allen,' . , 
 V. Haines, 
 V. Holmes, 
 V. Morris Canal 
 Richardson v. Hartley, 
 V. Borden, 
 V. Buswell, 
 V. Duncan, 
 V. Inglesby, 
 V. Kimball, 
 V. McDougal, 
 V. State, . 
 V. Thornton, 
 V. Trundle, 
 Richie v. McCauley, . 
 Richmond v. Crudrup, 
 
 V. Marston, 304, 462, 508 
 
 Rickart v. Madeira, 
 Ricketts v. Unangst, 
 Ricks V. Blount, . . 
 Rider v. Alexander, 
 V. Chipman, . 
 V. Mason, . . 
 Ridge V. Prather, . 
 Riddle v. Bryan, 
 
 V. Bush, . . 
 
 V. Fellows, . 
 
 V. Proprietors, &c, 
 Rigney v. Small, 
 Riggs V. Cook, . 
 
 V. Dooley, 
 
 V. Johnson Co., 
 
 Riland V. Eckert, . 
 
 Riley v. Million, . . 
 
 Rindskopf V. Lyman, 
 
 Ring V. Gray, . . 
 
 Ringo V. Burns, . . 
 
 Ringold V. Bryan, . 
 V. Edwards, 
 V. Patterson, 
 V. Waggoner, 
 
 Riner v. Stacy, . . 
 
 Co., 
 
 369 
 
 320 
 
 89 
 
 323 
 
 270 
 
 210, 211 
 . . 162 
 
 . . 113 
 . . 116 
 
 317, 34S 
 
 • ■ 338 
 ■ ■ 331 
 427, 475 
 . . 4S1 
 
 • • 374 
 . . 117 
 . . 151 
 
 iSS. 
 
 156 
 
 42s 
 
 262, 263, 449 
 
 .42,424 
 
 . . so 
 
 • • 517 
 
 . . 69 
 
 360, 381 
 
 412, 515, 526 
 
 . . 566 
 
 • • 346 
 
 • . 517 
 484, 527 
 
 247, 260, 565, 
 582, 612 
 265, 403 
 
 • • 19s 
 
 ISO, 151 
 • , • 196 
 ■ . 322 
 
 • • 495 
 390, 450 
 . . 408 
 
 • • 495 
 
 • . 322 
 
 Risely v. Ryle, .... 
 
 Ritter v. Henshaw, . . . 
 
 V. Merseles, . . . 
 
 V. Scannell, . . . 
 
 Rivard v. Gardner, . . . 
 
 Rives V. Porter, .... 
 
 Rix V. Capitol Bank, . . 
 
 V. Johnson, .... 
 
 V. McHenry, . . . 
 
 Roanoke, The, .... 
 
 Robb V. Beaver, . . .86, 
 
 V. Halsey, .... 
 
 V. McBride, . 138, 
 
 Robbinett v. Pollard, . . 
 
 Robbins v. Buttler, . . . 
 
 V. Cooper, . . . 
 Robert tulton. The, 177, 
 Robert v. Adams, . . . 
 Roberts v. Boylan, . 362, 
 
 v. Church, . . . 
 
 v. Dauphin Bank, 
 
 V. Oldham, . . 
 
 V. Roberts, 
 
 v. Stanton, 
 
 V. Stowers, 
 
 V. Thomas, 
 
 V. Whiting, 
 
 V. Williams, . . 
 Robertson v. Dennison, . 
 Robinson v. A. & G. W. R, 
 
 V. Barrows, . , 
 V. Chesseldine, 
 V. Clark, . 
 V. Coker, 
 V. Garth, . 
 V. Harrison 
 V. Hoet, . 
 In re, . . 
 V. Myers, 
 V. Neuber, 
 V. Parker, 
 V. Perry, . 
 V. Robinson, 
 
 411, 
 
 181, 
 
 . . 219 
 
 330, 331 
 . .631 
 . . 520 
 
 • ■ 390 
 
 • • 235 
 . . 126 
 
 • • 304 
 122, 125 
 
 • • 596 
 141, 173 
 
 • ■ li 
 160. 457 
 . . 60 
 . • 322 
 
 ■ • 540 
 247, 260 
 
 •95. "6 
 503, 527 
 . . 84 
 . . 164 
 . . 271 
 419, 461 
 
 ■ ■ 495 
 
 • • 507 
 . . 283 
 182, 183 
 . . 190 
 
 • . 438 
 R., 241, 
 247, 249 
 
 • 213 
 
 • 5° 
 321, 322 
 
 .631 
 . 367 
 .631 
 . 640 
 247, 260 
 
 . 114 
 
 . 604 
 
 . 321 
 
 . 614 
 
 457, 481 
 
TABLE OF CASES CITED. 
 
 XCV 
 
 Robinson v. Schley, 
 V. Wall, . 
 V. Yonge, 
 
 Robinson's Appeal, 
 Case, . 
 
 Roche V. O'Brien, . 
 
 Rockhill V. Hanna, . 
 
 Rocksell V. Allen, . 
 
 Rodriquez v. HefFernan, 
 
 Roe V. Dawson, . . 
 V. Neal, . . . 
 V. Stewart . . 
 
 Roebuck v. Thornton, 
 
 Rogers v. Bonner, . 
 V. Brent, 
 V. Bullen, . 
 V. Garwood, 
 V. Darnaby, 
 V. Dickey, . 
 V. Druppel, . 
 V. Edmunds, 
 V. Hoskins, . 
 V. Huntington 
 V. Jennings, 
 V. Jones, . . 
 V. Kennay, . 
 V. Marshall, 
 V. McDiarmid, 
 V. Mulliner, 
 V. Nuttal, . 
 V. Parrish, . 
 V. Silas, . . 
 V. Smith, 
 V. Sumner, . 
 V. Waterman, 
 V. Woodbury, 
 
 Rollins V. Mooers, . 
 V. Rich, . . 
 V. Thompson, 
 
 Rolt V. Gravesend, . 
 
 Ronald v. Barkley, . 
 V. Bentley, . 
 Ronkendorf v. Taylor, 
 Rood V. Welch, . . 
 
 I4S, 
 
 285 
 
 318 
 
 72 
 
 458 
 90, 117, 119 
 
 ■ ■ 407 
 264, 574 
 
 330, 479 
 
 • • 540 
 
 • • 531 
 . . 284 
 
 • • 453 
 . • 236 
 
 • ■ 293 
 185 
 158 
 
 327, 422, 472 
 
 245 
 
 262, 264,- 362 
 
 293 
 
 449 
 
 490 
 
 Bank, . 562 
 
 395. 520 
 
 . . 492 
 
 • • 173 
 
 • • 475 
 210, 21 r 
 
 . .. 213 
 204, 205 
 
 533, 535 
 229 
 
 330 
 
 445 
 
 92 
 
 145 
 
 305, 379> 390 
 
 55. 305, 478 
 
 ■ 173,450 
 
 . . 42 
 
 •a8, 300 
 
 . . 630 
 
 427. 475 
 
 • • 149 
 
 Rooks V. Williams, ...... 71 
 
 Roop V. Rodgers, ..'... 549 
 V. Thompso'n, .... 304 
 
 Root V. Colton 306 
 
 V. French, 148 
 
 V. Wagner, 210 
 
 Roret V. Lewis, 219 
 
 Rose V. Be van, 154 
 
 V. Himely, 589 
 
 Rosenfield v. Palmer, .... 213 
 
 Ross V. Alexander, 266 
 
 V. Clark, 159 
 
 V. Clussman, 376 
 
 V. Duval, 586 
 
 V. Hannah, 112 
 
 V. Heintzen, 196 
 
 V. Huston, 491 
 
 V. Lister, 93 
 
 V. Luther, 55 
 
 V. McCartan, 240 
 
 • V. Mead, 349 
 
 V. Philbrick, dyj 
 
 V. Webber, . 268, 269, 273 
 
 Roth V. Duval, 202 
 
 V. Schloss, 79 
 
 V. Wells, . 234, 235, 277, 278 
 Rothschild v. Boelter, . . . . 113 
 Rothschilds v. Forbes, . . . 598 
 
 Rothwell V. Gettys, 438 
 
 Roundtree v. Weaver, . . 204, 205 
 
 Rowan v. Adams, 495 
 
 v. Lamb, ,521 
 
 V. Union Arms Co., . .4.95 
 
 Rowe v. Bowen, *283 
 
 v. Cockerell, . . . ' . . 284 
 
 v. Williams, 626 
 
 V.Wood -609 
 
 Rowell V. Kline, 491 
 
 Rowell's Case, 262 
 
 Rowland v. Goldsmith, . 446, 452 
 V. Thompson, . . . 610 
 
 Rowles V. Senior, 220 
 
 Rowley v. Howard, 377 
 
 V. Rice, 150 
 
SCVl 
 
 TABLE OF CASES CITED. 
 
 Rowley v. Webb, . . 
 Rucker v. Dooley, . . 
 
 V. Harrison, . 
 Ruckman v. Outwater, 
 Rudy V. Commonwealth, 
 Rue V. Decker, . . 
 Ruggles V. Siraonton, 
 Rumbajl v. Murray, 
 Rumsey v. Wyncoop, 
 Runk V. St. John, 
 Kunlett V. Bell, . 
 Runyon v. N. J. R. 
 Rupert V. Dantzler, 
 
 V. Merk, . 
 Rush V. Vaught, . 
 Ruskin v. Shields, 
 Russ V. Fay, . . 
 
 V. Gilman, . 296, 
 Russell V. Allen, . 
 
 V. Brooks, 
 
 V. Dudley, 
 
 V. Dyer, . 
 
 R., 
 
 • 347 
 
 • 475 
 
 • 399 
 . 170 
 
 59, 460 
 
 • 345 
 259, 281 
 
 • 365 
 
 • 70 
 98, 240 
 
 . 630 
 
 • 347 
 
 • 453 
 496, 502 
 
 . 119 
 
 • 79 
 
 • 54» 
 30s. 379. 401 
 
 • 438 
 289, 297, 298 
 
 i56 
 
 29s, 303, 344, 
 419, 487 
 V. East An. Co., . 247, 260 
 
 V. Fabyan, 189 
 
 V. Gibbs, 249, 250, 268, 272, 
 325. 338 
 
 V. Gray, . 
 V. Harris, , 
 V. Hook, 
 V. Houston, 
 V. Hugenin, 
 V. Lawton, 
 V. Lewis, 
 V. Men of Devon, 
 V. Patrie, . . . 
 V. Richards, 145, 169, 323 
 , V. Stinson, . 193, 194, 315, 
 
 317, 345 
 
 V. Wines, 152 
 
 Russell's Appeal, . . . 193, 195 
 Rust V. Pritchett, . 208, 231, 263 
 
 Ruston V. Hatfield 215 
 
 Rutgers v. Kingsland, .... 505 
 
 • 394 
 
 . S2I 
 
 • 305 
 ■ 403 
 . 620 
 
 276, 386 
 . 198 
 . 566 
 . 502 
 
 Rutherford v. Green, .... 48* 
 
 V. Raburn, . . . 527^ 
 
 Rutland v. Newnham, .... 69, 
 
 V. Page, 229, 
 
 V. Pippin, 596. 
 
 Rutledge's Adm'rs v. Town- 
 send, 4S3, 461 
 
 Ryall V. RoUe, . . 144, 166, 342- 
 
 Ryan v. Carr, 473, 
 
 V. Eads, 377 
 
 Ryerson v. Nicholson, . . . 346- 
 Ryland v. Callison, i86v 
 
 Sabin v. Austin, . . . 
 Sackuder v. McDonald, 
 Saco V. Hopkinton, 
 Saffell V. Wash, . . 
 Saiford v. Maxwell, 
 Sage V. Cartwright, 
 V. Sleutz, . . 
 Sagitary v. Hyde, . 
 Saire v. Wiltshire, . 
 Sale V. Sanders, . . 
 Salisbury v. Morse, 
 Sallee v. Walters, 89, 90, 
 Salmon v. Cutts, 
 Salter v. Cain, . . 
 
 V. Church, 
 Saltmarsh v. Tuthill, 
 Saltonstall v. Riley, 
 Sammis v. Alexander, 
 Sample v. Barr, . . 
 
 V. Coulson, . 
 Sampson v. Burton, 
 
 V. Somerset, 
 V. Williamson, 
 Samuel v. Commonwealth, 
 
 Y. Duke, . 245, 251 
 
 V. Salter, . . . 
 
 V. Shelton, . . . 
 
 V. Zacbary, . . . 
 Sanborn v. Baker, . . . 
 
 73. 
 
 17. 
 
 39°: 
 
 86, 
 
 26S; 
 
 435. 
 637^ 
 
 499" 
 248. 
 
 157 
 194 
 175- 
 353; 
 275- 
 181 
 493. 
 145. 
 408- 
 64 
 511 
 593. 
 472: 
 
 515 
 421 
 
 396- 
 28a 
 
 479- 
 135 
 203, 
 , 268. 
 141 
 473 
 72 
 392^ 
 
TABLE OF CASES CITED. 
 
 XCVli 
 
 Sanborn v. Chamberlain, 
 
 V. Kittridge, 
 Sanchez v. Carraga, 
 Sanders v. Ky. Ins. Co, 
 V. Norton, . 
 V. Pepoon, 
 V. Rains, . 
 V. Sanders, 
 V. Vance, . 
 V. Young, . 
 Sanderson v. Ballance. 
 V. Barlcer, 
 V. Rogers, 
 Sandford v. McLean, 
 V. Nichols, 
 V. State, 
 Sandon v. Jarvis, 
 Sands v. Hildreth, 
 
 V. Pfeifler, 
 San Francisco v. Pixley, 
 
 • 367 
 ■ 360 
 
 • 596 
 . 620 
 
 67, 333. S14 
 
 • 423 
 . 611 
 
 • 527 
 
 • S42 
 . 368 
 . 636 
 
 207, 314 
 . 366 
 
 216, 394 
 . 306 
 
 • 572 
 . 361 
 
 • 363 
 346, 350, 
 410, 414 
 
 Sanisbury v. Mathews, . . .159 
 Sargent v. Chubbuck, 138, 160, 457 
 V. Pierce, . . . 482, 525 
 Sarrahas v. Fenlon, . . . .124 
 Sarrisbury v. Mathews, . . . 161 
 Sartor v. Mcjunkin, . . ^5^ 290 
 
 Sasscer v. Walker, 256 
 
 Sauer v. Steinbauer, 315, 325, 336 
 Saunders v. Bridges, . . 452, 632 
 
 V. Depew 502 
 
 V. Fuller 164 
 
 V. Hamilton, . 283, 331 
 
 V. Pate, 330 
 
 V. Smith, .... 54 
 Saunderson v. Baker, .... 636 
 Sauvinet V. Landreax, . 359, 366 
 Savacol v. Boughton, 213, 215, 219 
 Savage v. Best, .... 280, 482 
 V. Forward, .... 403 
 Savings Bank v. Varnum, . . 212 
 Savings Institution v. Clium, . 327 
 S. & L. Society v. Thompson, . 474 
 Sawin v. Mt. Vernon Bank, . 596 
 
 Sawle V. Painter, 250, 263, ^72, 449 
 
 55, 56 
 
 • 499 
 
 400, 537 
 
 84 
 
 Sawyer v. Baker, 
 
 V. Crane, 
 
 V. Curtis, 
 
 V. Doane, 
 
 V. Gill, . 
 
 V. Twiss, 
 Saxton V. Williams, 
 Saylor v. Her'tzog, . . 
 Scammon v. Swartout, 
 Schaffer v. Cadwallader, 
 Schaller v. Wickersham, 
 Schale's Appeal, . . . 
 Scheetz v. Fitzwater, . 
 Schemerhorn v. Merrill, 
 
 39°! 
 
 v. Miller, 
 Schenck v. Connover, 
 Schluckett & Clyde's Appeal 
 Schmidt v. Gatewood, 
 Schnepf, /n re, . . 
 Schohee v. Dedman, 
 Schott v. Chancellor, 
 Schrader v. Wolfin, 
 Schriver v. Teller, 
 Schughan, /« re, 
 Schultz v. Elliott, 
 V. Moore, 
 Schutt V. Large, . 
 Schuylkills Co.'s Appeal. 
 Schwinger v. Hickok, . 
 Scofield V. B6ssenden, 
 Scott V. Allen, . 
 
 V. Bunce, . 
 
 V. Carr, 
 
 V. Freeland, 
 
 V. Gallagher, 
 
 V. Hill, . . 
 
 V. Jailer, . 
 
 V. Loraine, , 
 
 V. Onderdonk, 
 
 V. Purcell, 
 
 V. Richardson, 
 
 V. Scholey, 154, 192, 
 
 69, 
 
 281 
 167 
 150 
 502 
 421 
 565 
 263, 45 1 
 358 
 364 
 362, 
 440, 468 
 . . 182 
 
 533, 535 
 261 
 
 • • 359 
 280, 282 
 
 • 397 
 
 355- 
 
 69, 
 
 78, 
 
 340 
 
 150 
 
 352 
 
 357 
 
 • • 239 
 
 498, 499 
 
 498, SOI 
 
 449. 454 
 507 
 440 
 620 
 
 383 
 
 203 
 
 425 
 496 
 ,78 
 32 
 183 
 615 
 486 
 
 534 
 234 
 
 407, 
 
 61 
 
 231, 
 
xcvni 
 
 TABLE OF CASES CITED. 
 
 Scott V. Seller 392, 399 
 
 V. Smith, 160 
 
 V. Wilson, 325 
 
 Scott's Case, 281 
 
 Scriba v. Deanes, . 136, 250, 299 
 Scribner v. Lockwood, . 361, 504 
 Scripture v. Johnson, .... 190 
 Scroggins v. Dougal, .... 503 
 Scruggs V. Scruggs, . . 399, 401 
 
 Scrugham, In re, 355 
 
 V. Carter, 540, 541, 543, 
 545, 548 
 
 Scudder v. Van Araberg, 
 Scull V. Godbolt, . 
 Scully V. Kearns, . 
 Seale v. Doane, . . 
 Seaman v. Carter, . 
 V. Luce, 
 V. Riggins, 
 Sears v. Burnham, . 
 V. Hanks, . . 
 V. Low, . . 
 Seafon v. Hamilton, 
 V. Marshall, 
 Seatton v. Johnson, 
 Sedgwick v. Musick, 
 V. Place, . 
 Seechrist v. Baskin, 
 V. Twitty, 
 Seedon v. R. R. Co., 
 Seely v. Norris, . . 
 Segourney v. Ingrahate, 
 Seguin v. Maverick, 
 Seibert's Appeal, 
 Seiler V. Hertzog, . 
 Seitzenger v. Steinberger, 
 Selleck v. Brown, . 
 Sellenger v. Higgins, 
 Sellers v. Corwin, . 
 v.,Hays, ^ . 
 Semple v. Burd, 
 
 V. Keene, . 
 Serjeant, &c., v. George, 
 Sessions v. Peavy, . . 
 
 • 495 
 . 68 
 
 • 147 
 
 ■ 404 
 . 126 
 . 112 
 
 • 414 
 . 42 
 
 89,90 
 . 408 
 
 • 6s 
 . 90 
 . 402 
 
 279, 280 
 
 ■ 279 
 
 • 527 
 
 • 367 
 
 • 552 
 . 69 
 . 629 
 . 516 
 . 112 
 . 502 
 
 • 447 
 . 82 
 
 • 391 
 260, 262, 5 86 
 
 . 521 
 
 . 500 
 
 • 575 
 
 • 391 
 ■ 3" 
 
 Sevier v. Ross, . 284, 504, 505, 515 
 Sewall V. Lancaster Bank, . . 562 
 Sewell V. Williams, .... 528 
 Sexey v. Adkinson, .... 243 
 Sexton V. Marshall, .... 90 
 V. Monks, . . . 154, 177 
 
 V. Nevers, 507 
 
 V. Rhoames, . . . .311 
 Seymayne's Case, . 223, 224, 225, 
 
 531, 572 
 
 Seymaine v. Gresham, . . . 223 
 
 Seymour v. Morgan, .... 533 
 
 V. Turnpike Co., 551, 552 
 
 Shackelford v. Apperson, 59, 70, 80, 
 
 602, 604 
 
 V. Hunt, .... 606 
 
 Shadbolt v. Bronson, .... 82 
 
 Shaffer v. Bolander, 49, 429, 512, 
 
 513, 522, 526 
 
 v. Cadwallader, ... . 500 
 
 Shafner v. Gilmore, 263, 449, 450 
 
 Shamburgli v. Kennedy, . . . 474 
 
 Shannon v. Commonwealth, . 627 
 
 v. Howell, .... 281 
 
 V. Jones, 161 
 
 V. Marsellis, . . . 352 
 Sharp V. Long, : . . .417, 523 
 
 V. Lumley, 57 
 
 V. Specknagle, . . 574, 575 
 Shattuck V. Garden, . . 251, 386 
 
 Shaver v. White, 541 
 
 Shaw V. Davis, . 87,113,114,213 
 y. Dwight, . . . 610, 615 
 V. Maxwell, .,..-. 54 
 V. McDonald, . . . .546 
 v. Norfolk Co. R. R., .551 
 
 V. Poor, 498 
 
 V. Swift, ...... 425 
 
 Shaw's Appeal, 92 
 
 Sheaf V. Leighton, 45 ■ 
 
 V. Sheafe, 45 
 
 Sheafer v. Fisher, 294 
 
 Shearer V. Woodburn, . . .511 
 Sheff V. Shockley 238 
 
TABLE OF CASES CITED. 
 
 XCIX 
 
 Sheffield v. Key, 
 
 Sheldon v. Comstock, 
 V. Cox, . . 
 , V. Johnson, 
 V. Loomis, 
 V. Newton, 
 V. Payne, . 
 V. Soper, . 
 
 V. Stryker, 
 
 V. Van Buskirk, 
 
 V. Wright, 
 Shelley's Appeal, . 
 Shelly V. Lash, . . 
 Shelton v. Codman, 
 v. Hamilton, 
 V. Tiffin, 
 V. Westervelt, 
 Sheppard v. Adams, 
 
 V. Baileul, 
 
 V. Cassily, 
 
 V. Hill, . 
 
 V. Hoyt, . 
 
 V. Meloy, 
 
 V. Pratt, . 
 
 V. Rowe, 
 
 V. Simpson, 
 
 V. Turpin, 
 
 V. White, 
 Shergold v. Holloway, 
 Sheridan v. House, 
 Sheriff of Surrey v. Alderton, 
 Sherrill v. Sherford, . . . 
 
 • • 234 
 
 • ■ 399 
 . . 490 
 
 • • 495 
 •222, 283 
 . . 480 
 
 212, 39i> 392 
 316, 336, 337, 
 
 340, 347 
 . . . . 214 
 
 2i3> 215, 
 217, 570 
 
 • 472, 520 
 
 • 88, 455 
 . . . 462 
 . . . 172 
 
 76, 254, 329 
 
 • 422, S07 
 . 240 
 
 46, 
 
 • 352 
 
 • 453 
 . 126 
 
 • 383 
 
 • 446 
 53, 620 
 
 • 358 
 464, 526 
 
 . 480 
 . 152 
 
 24. 138 
 . 219 
 
 ■ 194 
 245 
 623 
 
 Sherman v. Boyce, 204, 206, 420, 450 
 
 V. Howell, 
 Sherry v. LoCkwood, 
 V. Schuyler, 
 
 Shewell v. Fell, . . 
 Shields v. Bates, 
 
 V. Hastings, 
 
 • • 245, 259 
 
 ■ • 349. 414 
 
 . . 209, 247, 
 
 248, 250 
 
 • ■ 392, 578 
 289, 291, 476 
 
 .... 304 
 
 V. Miller, 479 
 
 V. Miltenberger, . 410, 420 
 
 Shields v. Mitchell, 
 V. Powers, . 
 Shindler v. Blunt, . 
 Shiras v. Craig, . . 
 Shire v. Gough, . . 
 Shirley v. Phillips, . 
 Shirk V. Wilson, 
 Shively v. Jones, 
 Shoemaker v. Ballard, 
 V. Knorr, 
 Shoffner v. Fogleman, 
 Shores v. Scott River Co, 
 Shorey v. Hussey, 
 Shortall v. Hinkley, 
 Shorter v. Nims, 
 Shorts V. Cheadle, , 
 Shottenkirk v. Wheeler, 
 Shotwell V. Hamblin, 
 V. Murray, 
 Shove V. Dow, . . 
 Shover v. Funk, . . 
 Shrew v. Jones, . . 
 Shriver v. HarSaugh, 
 Shriver's Lessee v. Lynn, 
 Shropshire v. PuUen, 
 Shryock v. Jones, . 
 V. Wagner, 
 Shuey, /n re, . . . 
 Shuraaker v. Nichols, 
 Shumate v. Reavis, 
 Shute v. Harder, 
 Sias V. Badger, . . 
 Siblat v. Humphries, 
 Sibley v. Baker, . . 
 
 V. Hood, . . 
 
 V. Rider, . . 
 Sickler v. Overton, . 
 Sigourney v. Eaton, 
 V. Larned, 
 V. Mann, 
 Sill V. Rees, . . . 
 Silliman v. Wing, . 
 Sillowary v. Brown, 
 Silsbury v. McCoon, 
 
 391 > 
 
 194 
 607 
 
 376, 386 
 361 
 504 
 273 
 
 330, 480 
 409 
 
 410, 420 
 
 55 
 189 
 
 345 
 521 
 182 
 
 517 
 425 
 
 391 
 393 
 270 
 
 396, 481 
 378 
 136 
 221 
 
 422, 434 
 
 350. 423 
 210, 490 
 . . 500 
 263, 28 i 
 620 
 
 311 
 194 
 
 391 
 159 
 352 
 147 
 236 
 
 53 
 
 356 
 498 
 495, 501 
 520 
 
 437 
 122 
 148 
 
 192, 
 
TABLE OF CASES CITED. 
 
 Silvan v. Coffey, . . 
 Silver v. McNeil, . 
 Simcoke v. Frederick, 
 Simmerson v. Bank, 
 Simmonds v. Harris, 
 Simon v. Gourney, . 
 Simons v. Brown, . 
 v. Catlin, . 
 
 ■ 423 
 
 • 243 
 
 • 55 
 
 ■ 340 
 
 ■ 389 
 53> 54, 55 
 
 . . 498 
 366, 367, 368, 
 
 377, 380, 381, 488 
 V. Johnson, . . 136, 409 
 V. McKissock, . . . 483 
 
 v. Spaun, 68 
 
 V. Swift, 145 
 
 V. Vandegriff, . . 412, 420 
 
 V. White, 639 
 
 v. Wood, . . 51, 69, 213 
 
 Simons's Estate, . . . 364, 370 
 
 Simonton v. Barrell, .... 576 
 
 Simpson v. Hiatt, . 141, 527, 627 
 
 V. Hornbeck, . . .215 
 
 V. Niles, . . 94, 586, 588 
 
 V. Pettus, 367 
 
 V. Simpson,' . 49, 145, 514 
 
 Sims v. Anderson, 445 
 
 V. Campbell, 270 
 
 V. Randall, . . . 327, 422 
 
 V. Reed, 113 
 
 Singletary v. Carter, . . 203, 204 
 Sinnett V. Cradle, . . . 415,606 
 
 Siren, The, 589, 590 
 
 Siter V. McClannahan, . . . 498 
 Siter, James & Co'.'s Appeal, . 457 
 Si tier V. Walker, . . . 541, 543 
 Six Carpenters' Case, .... 635 
 
 Skeel V. Spraker, 352 
 
 Skelly V. Bacon, . . . 247, 260 
 Skidmore v. Bradford, . . . 241 
 Skinner v. Beatty, . 138, 535, 537 
 
 V. Jayne, 602 
 
 V. Maxwell, . . . .174 
 V, Skinner, .... 337 
 V. Stewart, .... 542 
 
 Skinner's Appeal, 175 
 
 Skipp V. Harwood, . 539, 541, 544, 
 S4S, 546 
 
 Skowhegan Bank v. Cutter, . 155 
 Slack V. Gay, 171 
 
 V. Loudon, 394 
 
 Slackford v. Austin, .... 202 
 Slade V. Inhabitants, &c., .' . 391 
 
 v. Van Vechten, . . 250, 
 
 273, 490 
 
 Slater's Appeal, 194 
 
 Slaughter v. Detiney, .... 93 
 
 V. Fisher, . 51, 423, 424 
 
 Slaymaker v. Gettysburg Bank, 156, 
 
 561 
 Slayton v. Chester, .... 391 
 
 Slee V. Bloom, 550 
 
 Sleeper v. Newbury Seminary, 296, 
 
 306, 433 
 
 Sleight V. Leavenworth, . . . 234 
 
 Slingerland v. Swart, . 
 Slingluff v. Eckel, . . 
 Sloan V. Stanley, . . 
 Slocumb V. Blackburn, 
 V. Catlin, . . 
 V. Seymour, . 
 Slowthomer v. Gordon, 
 Sluder v. Rogers, . . 
 Slusher v. Washington Co., 
 Small V. Ely, . . 
 
 V. Hogden, 
 
 V. Mickey, 
 
 • 445 
 
 • 317 
 . 142 
 
 271, 272 
 . 190 
 . 176 
 
 • 330 
 . 262 
 . 462 
 ■ 521 
 
 391, 471 
 377, 380, 428, 
 
 514, 519 
 
 Smallcomb v. Buckingham, . . 320 
 
 V. Cross, 263, 264, 446 
 
 Smallcorn v. Sheriffs, &c., 231, 263 
 
 Smart v. Hutton, 202 
 
 Smiley v. Bowman, .... 88 
 Smith V. Allen, .... 330, 481 
 
 V. Alston, 203 
 
 V. Arnold, 368 
 
 V. Baker, .... 540, 541 
 V. Benson, . . . 168, 292 
 V. Bradstreet, .... 261 
 
 V. Brockett, 122 
 
 V. Buck 371 
 
 V. Capron, 501 
 
 V. Carroll 165 
 
TABLE OF CASES CITED. 
 
 CI 
 
 Smith V. Cicotte, . 221, 222, 283 
 
 V. Clarke 318 
 
 V. Cockrell, . . . 309, 588 
 V. Colvin, 362, 440, 468, 481 
 V. Daniel, . 399, 400, 502 
 V. Deschaumes, . . .123 
 V. Dow, .... 355, 356 
 
 V. Duncan, 412 
 
 V. Ely, 308 
 
 V. Emerson, 389 
 
 V. Fore, .... 196, 332 
 
 V. Freeland, 413 
 
 V. Fritt 341 
 
 "V. Gates, 637 
 
 -V. Gibbs, 117 
 
 V. Gibson, 638 
 
 V. Gilraore, 231 
 
 V. Godbold, 462 
 
 V. Goss, 154 
 
 V. Gray, 194 
 
 v. Herman, 205 
 
 V. Hill, . 88, 192, 520, 527 
 
 v. Hinson 187 
 
 V. Hornback, .... 390 
 
 V. Houston, 403 
 
 ■V. Howard, 601 
 
 V. Hudson, 401 
 
 V.Hughes, . 231,241,244, 
 254, 256, 258 
 /« re, 280, 471, 473, 522, 540, 
 542, 544, 548, 602 
 V. Ingalls, . . . 184, 194 
 V. Jenks, .... 161, 164 
 V. Keene, ... 53, 54, 304 
 ■V. Kelly, . . . . 514, 606 
 V. Kennebec R. R. Co., . 155 
 
 V. Knapp, 569 
 
 v. Knight, 51, 360, 400, 402, 
 
 423, 424 
 
 V. Lambeth, 496 
 
 V. Leavitt, 402 
 
 V. Lind, 263 
 
 V. Low, .... 289, 495 
 "V. Lurch, ....... 500 
 
 Smith V. McCann 189 
 
 V. McCutcliin, . . 421, 422 
 V. McGowan, .... 403 
 V. McGregor, .... 285 
 V. Mclver, .... 247, 260 
 V. McMicken, . . . .174 
 
 V. Meech, 162 
 
 V. Miles, 208 
 
 V. Montgomery, . . . 329 
 
 V. Moore, 400 
 
 V.Morse, . . . 311,337 
 V. Moseman, . . 484, 527 
 V. Mundy, . . . 327, 422 
 
 V. Noe, 491 
 
 V. Omans, 135 
 
 V. Orser, 540 
 
 V. Osgood, 221 
 
 V. Page, 596 
 
 V. Painter, 501 
 
 V. Pierce, 350 
 
 V. Pope, 322 
 
 V. Pretty, . . . 533, 535 
 
 V. Prince, 498 
 
 V. Purvis, . . . . . 6t7 
 
 V. Randall, 142, 309, 311, 337, 
 
 349,410,437, 518 
 
 V. Rief, 459 
 
 V. Sasscer, . . . 153, 503 
 
 V. Shane, 215 
 
 V. Shaw, 638 
 
 V. Slade, 115 
 
 V. Smith, . . . . 151, 382 
 V. Spencer, ... 68, 331 
 V. Starkweather, . . . 298 
 
 V. State, 339 
 
 V. Stokes, . . . 541, 544 
 
 V. Surnam, 160 
 
 V. Thompson, . . 387, 388 
 
 V. Turnley, 118 
 
 V. Walker, 464 
 
 V. Warden, 368 
 
 V. White, .... 533, 537 
 
 V. Whiting, 474 
 
 Smith's Appeal; 274 
 
Cll 
 
 TABLE OF CASES CITED. 
 
 Smoot V. Rea, 495 
 
 Smyth V. Tankersly, .... 637 
 Snavely v. Wagner, 369, 479, 528 
 
 Snedeker v. Waring 163 
 
 Sneed V. McCoul, .... .'573 
 
 V. Reardon, . 471, 476, 606 
 
 Snelgrove v. Branch Bank, &c., 521 
 
 Snell V. Allen, ... 64, 6f>, 262 
 
 V. Kelly 202 
 
 Snipes v. SHeriiF, 270 
 
 Snodgrass's Appeal, . . 545, 548 
 
 Snow V. Hawpe, 489 
 
 Snowden v. Dale, 186 
 
 Snydacker v. Brasse, 203, 219, 223, 
 224, 572, 63s 
 
 ■ 273 
 . 292 
 
 • 274 
 
 • 352 
 
 • 438 
 . 290 
 
 58,69 
 
 • S15 
 
 • 493 
 . 136 
 
 • 459 
 . 466 
 
 Snyder v. Bean, . . 
 
 V. Castor, . 
 
 V. Kunkleman, 
 
 V. Stafford, . 
 
 V. Warren, . 
 Solomon v. Brazeal, 
 V. Maguire, 
 V. Peters, 
 Sorrell v. Carpenter, 
 Sossaman v. Powell, 
 Souder's Appeal, 
 Soule V. Buck, . . 
 Southard v. Pope, 320,424,437, 517 
 Southern Bank v. Ohio Ins. Co., 430 
 Southwell V. Harley, . . . .119 
 South Fork Canal Co. v. Gor- 
 don, . . 607 
 
 Southwest Bank V. Watkins, . 159 
 
 Soutter V. Porter, 292 
 
 Sowards v. Pritchett, 468, 480, 590 
 
 Sowers V. Vie, 172 
 
 Sowle V. Champion, 349, 412, 414 
 Sowles V. Harvey, . . . 429, 515 
 
 V. Pollard, . . . 317, 345 
 
 Spader v. Bruner, 112 
 
 Spafford v. Beach, . 407, 464, 514 
 
 Spang V. Commonwealth, . . 597 
 
 V. Schneider, .... 326 
 
 Spann v. Jones, 486 
 
 Sparrow v. Earl of Bristol, . . 172 
 
 Spaulding v. Crane, .... I25 
 
 Speer v. Semple, . . . 329, 409. 
 
 V. Sturdevant, . , . . .401 
 
 Speller v. Lee, 640 
 
 Spellman v. Curtenius, . 427, 475 
 
 Spence v. Rutledge, .... 54 
 
 Spencer v. Blaisdell, . . . .158 
 
 V. Brighton, . 45, 610, 630' 
 
 V. Champion, . 35, 36, 295 
 
 V. Cuyler, 376 
 
 V. Geissman, . . 123, 135 
 
 V. Long, 630. 
 
 V. Pierce, 366 
 
 V. Waterman, . . . 355 
 
 Spicer v. Myers, 229. 
 
 Spiller V. Nye, 237 
 
 Spinner v. Walsh, 501 
 
 Spofford V. Weston, 498^ 
 
 Spooner v. Frost, 55 
 
 Spoor V. Holland, . 235, 236, 394, 
 
 397, 398: 
 
 V. Phillips, 359, 437, 468, 509 
 
 Spragg V. Shriver, . . . 369, 516 
 
 Sprague v. Burchard, .... 216- 
 
 V. Stanley 172 
 
 Spratley v. Paine, 433, 
 
 Spring V. Sandford, . . . .501 
 
 Springer V. Brown, .... 514 
 
 V. Johnson, .... 142 
 
 V. Lewis, 117 
 
 Sprinkle v. Martin, . . . .198. 
 
 Spratt V. Reid, . 49, 308, 309, 329, 
 
 429, 522 
 
 Spruil V. Bateman, 385 
 
 Squier v. Mayer, 170- 
 
 Squiers v. Riggs, 534 
 
 St. Bartholomew's Church v. 
 
 Wood, 420' 
 
 St. Clair v. Shall, . 291, 536, 537 
 
 Stacy, In re, 383 
 
 Stafford v. Ballou, 495 
 
 V. Union Bank, ... 71 
 V. Williams, 330, 472, 513. 
 
TABLE OF CASES CITED. 
 
 cm 
 
 Stagg, In re, 453 
 
 Stahi V. Roost, 362 
 
 Stainford v. Fullerton, . . .180 
 
 Stall V. Leach, 348 
 
 Stambrough v. Yates, .... 161 
 
 Stamford Bank v. Ferris, . 551, 
 
 562, 563 
 
 Stamford, In re, 61 
 
 Stamp V. Irwin, 452 
 
 Stamper V. Hodson 451 
 
 Standi V. Branch, 187 
 
 Stanhope v. Dawson, .... 225 
 
 Stanley v. Nelson 371 
 
 V. Nutter, 462 
 
 Stanton v. Bannister, . . . .304 
 V. Hodges, . . 389, 394 
 
 Staples V. Bradley, 186 
 
 V. Staples, 159 
 
 Stapp V. Toler, 322 
 
 Stark V. Mitchell, 431 
 
 V. Ranney, 221 
 
 V. Starrs, 193 
 
 Starke v. Harrison, .... 360 
 
 Starr v. Heckert, 614 
 
 V. Leavitt, 545 
 
 Starry v. Johnson, 294 
 
 State V. Armfield, 223 
 
 V.Baker 408,413 
 
 V. Blundin, 276 
 
 V. Bonham, . 145, 166, 168 
 V. Borden, . . 78, 315, 327 
 
 V. Byrd, 408 
 
 V. Campbell, 84 
 
 V. Clerk of Bergen, . . 391 
 
 V. Crow, 214 
 
 V. Curtis, 203 
 
 V. Dilliard 145 
 
 V. Doan, 250 
 
 V. Dodge, 70 
 
 V. Elrod 215 
 
 V. Farmer, . . . 112, 230 
 V. Ferguson, . . . 208, 214 
 V. Ferrell, .... 377, 450 
 V. Gemill, .... 161, 232 
 
 State V. Giles, 535 
 
 V. Haggard 112 
 
 V. Hammatt, 332 
 
 V. Herod, 629 
 
 V. Hooker, 225 
 
 V. Hugg, 565 
 
 V. Johnson, 144, 235, 336, 377 
 V. Joyce, .... 235, 336 
 V. Judge, &c., . . . .617 
 
 V. Keeler, 289 
 
 V. Laval, 19a 
 
 V. Lawson, . 160, 190, 338, 
 
 383, 119 
 
 V. Lea 159 
 
 V. Leach , . 349 
 
 V. Lines, 634 
 
 V. L. &M. R. R. Co., . 551 
 
 V. Manly, 93 
 
 V. Mann, 444 
 
 V. McDonald, . . 218, 38 c 
 
 V. McNally, 213 
 
 V. Melogue, 88 
 
 V. Melton, . . . 373, 374 
 
 V. Meyers, 254 
 
 V. Michaels, . . 81, 329, 42a 
 V. Milwaukee, .... 565 
 V. Morgan, 81, 203, 214, 316 
 
 V. Moore, 230 
 
 V. Nelson, 257, 379, 623, 628 
 
 V. Page 203 
 
 V. Parchman, . . 207, 208, 
 
 314, 631 
 V. Pemberton, . . . .451 
 
 V. Pitts, 93 
 
 V. Piatt, 80 
 
 V. Pool, .... 329, 420^ 
 
 V. Poor, 236 
 
 V. Porter, ...;.. 623 
 
 V. Records, 371 
 
 V. Richardson, . . 575, 577 
 
 V. Rives, 550- 
 
 V. Rollins, . . . 208, 306 
 
 V. Romez, 112 
 
 V. Salyers, 420, 449, 518, 519 
 
CIV 
 
 TABLE OF CASES CITED. 
 
 State V. Sandlin, 222 
 
 V. Sharp, 640 
 
 V. Surgert 231 
 
 V. Taylor 159 
 
 V. Thackham, . . 224, 236 
 V. Tongue, . . . 327, 403 
 V. Weed, .... 216, 217 
 
 V. Wesbrook, 521 
 
 V. Wilkins, 61 
 
 V. Willis, 237 
 
 V. Wylie, 402 
 
 Bank v. Etter, ' . . 329, 420 
 In re, . . . 315, 633 
 V. Marsh, .... 619 
 
 V. Tutt 563 
 
 of California V. Moore, . 179 
 of Md. V. Md. Bank, . .550 
 Treasurer v. Holmes, . . 206 
 
 Staton V. Morris, 509 
 
 Stead V. Coruse, . . 343, 347, 415 
 V. Gascoigne, 316, 629, 638 
 
 Steadman v. Pulling 182 
 
 Steamboat, &c., v. Smith, . . 359 
 
 Stebbins, In re, 545 
 
 V. Miller, 356* 
 
 V. Walker, . . 359, 457 
 Steed V. Whittaker, .... 491 
 Steele V. Brown, . . . . 158,176 
 
 V. Hannah, 449 
 
 V. Lewis, 528 
 
 V. Steele, 290 
 
 V. Taylor, 501 
 
 Stein V. Chambliss, . . 327, 437, 
 
 S14, 526 
 
 Stelle V. Palmer 569 
 
 Stenson v. Snow, 388 
 
 Stephens v. Baird, 337, 347, 350, 403 
 V. Barrett, . . . .417 
 V. Boswell, .... 464 
 V. Browning, ... 42 
 V. Dennison, . . . 488 
 V. Lawson, . . 230, 635 
 V. McGruder, . 326, 419 
 V. Thayer, .... 277 
 
 Stephens v. White, . . . 
 
 ■ • S3 
 
 V. Wilkins, . . 
 
 . . 21S 
 
 V. Wilson, . . 
 
 . . 621 
 
 Stephenson v. Browning, 
 
 • • 465 
 
 V. Doe, . . 
 
 . . 424 
 
 V. Thompson, 
 
 473> 483 
 
 Sterling v. Vancleve, . . 
 
 • • 274 
 
 V. Welcome, . . 
 
 • • 247 
 
 Stern's Appeal, . . 210 
 
 231, 269 
 
 S terry v. Arden, .... 
 
 • • 49S 
 
 Stetson V. O'Sullivan, . . 
 
 • • 355 
 
 V. Packer, . . . 
 
 . . 216 
 
 ^Stevens v. Batchelder, 
 
 • .383 
 
 V. Becker, . . . 
 
 • . 388 
 
 V. Brown, . . . 
 
 . . 291 
 
 V. B.&N.Y.R.R 
 
 ,170,561 
 
 V. Choteau, . . 
 
 . . 203 
 
 V. Colby, . . . 
 
 • • 639 
 
 V. Cooper, . . . 
 
 173, 353 
 
 V. Goodenough, . 
 
 • ■ 495 
 
 In re 
 
 • • 93 
 
 V. King, .... 
 
 . . 360 
 
 V. Legrow, . . . 
 
 . . 192 
 
 V. Morse, . . . 
 
 462, 498 
 
 V. Robinson, . . 
 
 . .528 
 
 V. Rowe, . . . 
 
 . . 206 
 
 V. Stevens, . . . 
 
 137, 138 
 
 Stevenson v. Black, . . 
 
 . . 486 
 
 V. Castle, . . 
 
 • • 54 
 
 V. Marony, . . 
 
 125, 409 
 
 V. McLean, 
 
 203, 214 
 
 Stewart v. Allen, . . . 
 
 . . 190 
 
 V. Brand, . . . 
 
 . . 122 
 
 V. Brown, . . . 
 
 .87, 118 
 
 V. Croes, . . . 
 
 • • 474 
 
 V. Crosby, . . . 
 
 . . 189 
 
 V. Cunningham, . 
 
 • • 43 
 
 V. Doughty, . . 
 
 . . 161 
 
 V. English, . . . 
 
 • • 15s 
 
 V. Freeman, . . 
 
 481, 503 
 
 V. Garvin, . . • . 
 
 . .367 
 
 V. Gay, .... 
 
 ■ • 349 
 
 V. Hamilton, . . 
 
 • • 425 
 
 V. Houston, . . 
 
 425, 521 
 
TABLE OF CASES CITED. 
 
 CV 
 
 Stewart V. Jones, 551 
 
 V. Levy 569 
 
 V. Lombe, 168 
 
 V. Magness, .... 203 
 V. Marquis of Conyng- 
 
 ham, . . . 
 V. Marshall, . 
 V. McSweeny, 
 V. Nelson, . . 
 V. Nuckols, 
 V. Nunemaker, 
 V. Rutherford, 
 V. Severance, 
 
 . . SOI 
 
 • • 407 
 
 • • 497 
 • 407 
 
 . . 82 
 2S5, 258 
 . . 322 
 327, 407, SH, 
 517,518 
 
 V. Stevens 387 
 
 V. Stockton, 
 
 v. Stokes, . 
 v. Stringer, 
 v. Wells, . 
 Stewartson v. Watts, 
 Stief V. Hart, . . 140, 
 Stiles V. Brock, . . 
 V. Knapp, . . 
 Stillman v. Stillman, 
 Stillwell V. McDonald. 
 Stiner's Appeal, . 
 Stinson v. Meade, 
 Ross, . 
 Rouse, 
 Snow, 
 State, 
 Stith V. Jones, 
 Stockdale V. Hansard, 
 
 V. Young, 
 Stockett V. Taylor, . 
 Stockhard v. Pinckhard, 
 Stockton V. Bishopi 
 V. Ford, . 
 Stockton's Estate, . 
 Stockwell V. Byrne, 
 
 V. Campbell, 
 V. Walker, 
 Stoddard v. Tarbell, 
 Stolfes V. Cane, . . 
 n 
 
 V. 
 V. 
 
 V. 
 V. 
 
 143. 
 
 49, 393 
 404, 470 
 
 • 390 
 
 • 637 
 
 • 359 
 53, 337 
 
 75 
 390 
 353 
 SOI 
 
 434 
 486 
 472, 60s, 606 
 389 
 390 
 46 
 
 5" 
 384 
 412 
 
 495 
 421 
 601 
 264 
 509 
 303 
 i6s 
 
 599 
 
 202, 203, 21 s 
 
 ... 448 
 
 438, 
 
 Stone V. Bartlett, . 
 
 V. Darnell, 
 
 V. Ebberly, . 
 
 V. Gardner, . 
 
 V. Martin, . . 
 
 V. Payne, . . 
 
 V. Pointer, 
 
 V. Smoot, . . 
 
 V. Tucker, 
 
 V. Wilson, . . 
 Stoner v. Neff, . . 
 Stoney v. Shultz, 
 S torch V. Carr, . . 
 Storm V. Livingston, 
 
 V. Smith, . . 
 
 V. Woods, 
 Storrs V. Kelsey, 
 Story V. Lord Windson, 
 
 V. Kelly, . 
 Stout V. Cook, 
 
 V. Macy, . 
 Stover V. Boswell, 
 V. Dunn, . 
 V. F. & M. Bank, 
 V. Rice, . . 
 Stow V. Steel, . . 472, 
 Stoyell V. Cady, . . 
 Strachn v. Foss, . . 
 Strain v. Murphy, . 
 Straley's Appeal, 
 Stratford v. Twynan, 
 Stratton v. Jarvis, . 
 Strawbridge v. Clark, 
 V. Mann, 
 Strawn v. Strawn, . 
 Streeper v. Eckhart, 
 Streeter v. Frank, . 
 Stribling v. Prettyman, 
 Strickland v. Parker, 
 Stringer v. Stanlack, 
 Stroade v. Broadwell, 
 Strodes v. Craven, . 
 Strong V. Caton, 407, 409, 
 
 355, 356 
 123, 138 
 514 
 
 438 
 
 55 
 
 619 
 
 335 
 
 495 
 
 256, 2S7 
 
 400 
 
 .455 
 
 331, 332 
 
 535 
 
 338 
 
 330, 606 
 
 268, 272 
 
 . 491 
 
 • 487 
 
 ■ 393 
 . 291 
 
 58, 613 
 
 • 423 
 
 • 576 
 
 • 340 
 
 ■ 359 
 476*484, 514 
 
 209 
 122 
 481 
 447 
 321 
 589 
 326 
 68 
 90 
 
 147 
 219 
 
 436 
 164 
 
 202 
 
 576 
 
 153, 154 
 412, 414 
 
 290, 
 
 V. Daniel, 614 
 
CVl 
 
 TABLE OF CASES CITED. 
 
 Strong V. Patterson, . . 222, 283 
 
 V. Smith, 499 
 
 V. Taylor, . . . 150, 175 
 Stroud V. Casey, . . 488, 606, 608 
 
 V. Humble, 610 
 
 Strouse V. Becker, . . 92,93,112 
 V. Direman, .... 330 
 
 Struthers v. Lloyd, 80 
 
 Stuart V. Russum, . . . . . 397 
 
 V. Whittaker, . . . .215 
 
 Stubble V. Walpole, .... 250 
 
 Stuckey v. Crosswell, . . 369, 479, 
 
 483, 528 
 
 Stuckhart v. Ellis 50 
 
 Stump V. Gaby, 408 
 
 V. Henry, 480 
 
 Sturgis V. Bishop 251 
 
 V. Read, 599 
 
 V. Warren, 171 
 
 Stuyton V. Morris, 509 
 
 Stuyvesant v. Hall, . 352, 493, 498 
 
 Stymets v. Brooks, . . 72, 329, 420 
 
 Succession of Foulks, . . . .138 
 
 of Hillisberg, . . . 308 
 
 of Norton, ... 89 
 
 of Rousseau, . . . 352 
 
 Sudbury v. Jones, 167 
 
 Suggs V. Sapp, 175 
 
 V. Thrasher, 617 
 
 Sullivan v. Davis, . . . 468, 481 
 V. Hieskel, .... 280 
 V. Henderson, . . . 526 
 
 V. Jones, 2i8 
 
 Summers v. Caldwell, . . . .158 
 
 V. Moore, 290, 293, 329, 
 
 368, 514, 526 
 
 Sumner v. Crawford, .... 334 
 
 V. Lyon, 427 
 
 V. Palmer, . 369, 453, 471 
 
 V. Rhodes, 499 
 
 Sunbolf V. Alfred, 113 
 
 Superintendent v. Smith, ... 62 
 
 Supervisors v. Durant, . . . 565 
 
 U. S., . . . . 565 
 
 Surgi V. Colmer, . . 
 Surjet V. Byers, . . 
 V. Thomas, . 
 Susquehanna, &c., Co, 
 
 nery, 
 
 Sutcliffe V. Dorman, 
 Sutton V. Allison, 225, 
 V. Dillaye, . 
 V. Johnson, . 
 Suydam v. McCoon, 
 Swaggerty V. Smith, 
 Swain v. Mizner, 
 
 V. Morland, . 
 Swan V. Parker, . . 
 
 V. Saddlemire, 
 
 V. Stevens, 
 Swanston v. Sublette, 
 S wanton v. Crooker, 
 Swarthout v. Curtis, 
 Swartzell v. Martin, 
 
 Swazey v. Burke, 
 V. Hunt, . 
 Swearingen v. Pendleton, 
 Sweeney v. Craddocks, 
 v. Hawthorne, 
 V. King, . 
 Sweezey v. Chandler, 
 V. Lott, . . 
 Swift V. Agnes, . . 
 V. Cobb, . . 
 V. Dean, . . 
 V. Hartman, . 
 V. Kraemer, . 
 V. Thompson, 
 Swiggert v. Harber, 
 
 . . 420 
 
 • ■ 417 
 . . 272 
 Fin- 
 ago- 396 
 539, 545 
 391. 392, 447 
 
 • 49' 
 
 • 635 
 
 • S3 
 , 466 
 
 • 635 
 . 200 
 . 290 
 
 419, 468 
 ", 139 
 
 ■ 155 
 
 • 295 
 
 ■ 495 
 315= 323f 
 
 336, 478 
 
 418, 488 
 
 . 214 
 
 V. Kollock, . 
 Swink V. Snodgrass, . 
 V. Thompson, . 
 Surtzer v. Skiles, . . 
 Swires v. Brotherlien, . 
 Swope V. Ardery, 315, 336, 4c8,.4i4 
 I Sydenstriker v. Beard, ... 66 
 
 ■ 43 
 . 480 
 
 • 325 
 . 408 
 
 • 437 
 630, 631 
 
 . 528 
 
 36, 381 
 90, 292 
 . 271 
 . 138 
 163, 171 
 393, 403, 409r 
 473, 517 
 290, 436 
 . . 420 
 
 • • 471 
 
 • • 145 
 214, 412 
 
TABLE OF CASES CITED. 
 
 evil 
 
 Sydnor V. Roberts, . . . 308,514 
 
 Symonds v. Hall, 339 
 
 V. Harris, 380, 398, 402 
 
 Tabb V. Harris, . , 
 Tadlock v. Eckles, 
 Taffe V. Warnick, , 
 Tafts V. Manlove, , 
 Tailer v. Baker, . , 
 Taintor v. Williams. 
 Talbot V. Chamberlain, 
 
 V. Whipple, 
 Talmadge v. Burlingame, 
 
 V. Sill, 
 
 Talman v. Jackson, 
 
 Tarns V. Wardle, 
 
 Tankersly v. Anderson, 
 
 Tannahill v. Tuttle, 
 
 Tanner v. Billings, . 
 
 V. Florence, 
 
 V. Hague, . 
 
 V. Stine, 
 
 Tappan v. Blaisdell, 
 
 V. Harrison, 
 
 Tarbell v. Tarbell, . 
 
 Tarkington v. Guyther, 
 
 Tarlton v. Fisher, . 
 
 Tate V. Anderson, . 
 
 V. Greenlee, . 
 
 Tayler v. Duke, &c., 
 
 Tayloe v. Thompson, 
 
 Taylor v. Adams, . 
 
 V. Alexander, 
 
 V. Baker, 
 
 V. Bartlett, . 
 
 V. Boulware, 
 
 V. Branch Bank, 
 
 V. Carryl, 
 
 V. Cornelius, 
 
 V. Cozart, . 
 
 V. Daniel, . 
 
 V. Dean, 
 
 i8s 
 
 463: 
 
 540, 
 
 247i 
 
 265 
 136 
 163, 169 
 
 237 
 202 
 
 273 
 
 193, 606 
 
 . 163 
 
 . 252 
 
 . 263 
 
 • 349 
 . 60 
 
 • 424 
 SO, 154 
 
 . 114 
 . 501 
 
 574, 575 
 475 
 
 541, 548 
 
 277 
 456 
 465, 466 
 , 215 
 465, 466 
 . 368 
 
 ■ 395 
 526, 606 
 
 , 602 
 , 214 
 
 • 495 
 
 ■ 171 
 . 126 
 . 285 
 
 260, 280 
 . 189 
 . 291 
 . 270 
 
 • 356 
 
 Taylor v. Dundas, 62 
 
 V. Eckford, . . . 361, 421 
 V. Fields, 539, 540, 544, 545 
 V. Gaskins, 328 
 
 V. Gillian, . 
 
 173, 174, 247 
 
 V. Gilpin, 
 
 432,434, 510 
 
 V. Graham, . 
 
 • • 333, 350 
 
 V. Hancock, 
 
 .... 630 
 
 V. Hargous, 
 
 ■ • 121, 137 
 
 V. Horsey, 267 
 
 V. Jenkins, . 551, 562, 563 
 V. Jones, . 208, 636, 640 
 V. McKeown, . . . .214 
 
 Miller, . 
 
 Mills, . . 
 
 Mumford, 
 
 • • 329 
 
 • . 340 
 331, 332 
 
 • • 463 
 . . 256 
 
 • • 139 
 
 . . 294 
 
 495, SOI, 503 
 
 280, 281 
 
 163, 169 
 
 • 294 
 
 Newkirk, 
 
 Ramsey, . 
 
 Rhigne, . 
 
 Robinson, 
 
 Sibbert, . 
 
 Taylor, . 
 V. Townsend, 
 V. Van Dusen, 
 
 V. Waters, 573 
 
 Taylor's Appeal » 249 
 
 TeafF v. Hewitt 163 
 
 Teal V. Auty, 165 
 
 Telegraph Co. v. Eyser, . . . 592 
 Telfair v. Stead's Ex'rs, ... 34 
 Tempest V. Killner, . . . .156 
 Templeton v. Levee Comm'rs, . 604 
 
 Tenbroeck v. Sloo, 140 
 
 Tencher v. Hyatt, 438 
 
 Teneyck v. Simpson, .... 502 
 
 y. Walker, . . 428, 527 
 Tenney v. Hemenway, . . . 266 
 Tenycross v. Moore, .... 492 
 Terhune v. Barcalow, ... 71 
 
 Terrail v. Finney, 82 
 
 Terrill v. Anschauer, . . 393, 433 
 V. Thompson, .... 341 
 
 Terry v. Belcher, 152 
 
 Tertelling, In re, 123 
 
CVlll 
 
 TABLE OF CASES CITED. 
 
 Tevis V. Doe, . 185, 193, 308, 369 
 
 Thacher v. Bancroft, .... 85 
 
 V. Dinsmore, . 60, 149 
 
 V. Miller, 399 
 
 V. Powell, . . 140, 141, 
 343, 420 
 190 
 498 
 366 
 . . . 500 
 
 • 176, SSI 
 
 • 179, i8S 
 398, 400, 402 
 
 256 
 481 
 
 533, S3S 
 285 
 
 137 
 
 Bank, 
 
 Thayer v. Felt, . . 
 V. Kramer, . 
 Theard v. Prieur, . 
 Thelluson v. Smith, 
 Thomas v. Armstrong, 
 V. Bowman, 
 V. Browden, 
 V. Cleveland, 
 V. Crowfut, 
 V. Debaum, 
 V. De Graffenreid, 
 V. Dodge, . 
 V. Estes, . 
 V. Grand, &c. 
 V. Hite, . 
 V. Kennedy, 
 V. Le Barron, 
 V. Lusk, 
 V. McKay, 
 V. Marshall, 
 V. Platts, . 
 V. Sampson, 
 V. Soper, . 
 V. Tanner, 
 V. Thomas, 
 V. Walker, 
 Thomas's Appeal, . 
 Thomason v. Bishop, 
 Thomasson v. Kennedy, 
 
 V. Scales, 
 Thompson v. Adams, . 
 V. Barber, . 
 V. Bickford, 
 V. Blanchard, 
 V. Bondurant, 
 V. Bragg, . 
 V. Bristow, 
 V. Brown, . , 
 
 184, 
 
 285 
 499 
 417 
 497, 499 
 
 ■ 472 
 
 • 542 
 
 • 369 
 92, 194 
 
 • 464 
 . i8s 
 
 • 147 
 . 426 
 
 HS, 475 
 
 . 186 
 
 88,446 
 
 • 397 
 . 461 
 
 • 437 
 
 • 523 
 . 180 
 
 • S3 
 . 152 
 
 ■ 74 
 
 • 307 
 574, 575 
 
 32, IS9 
 
 Thompson v. Button, .... 248 
 
 V. Coleman, . . .221 
 
 V. Commissioners, 601, 
 
 602 
 
 Craignyle, . 161, 524 
 
 Ford, .... 240 
 
 Hodges, 350, 514, 606 
 
 Knight, . 
 Leinard, 
 Lewis, . 
 McCordil, 
 McNamara, 
 
 V. Munger, 
 
 V. Murray, 
 
 V. Oakes, . 
 
 V. Parker, . 
 
 V. Perkins, 
 
 V. Phillips, 
 
 V. Prettyman, 
 
 V. Ross, 
 
 V. SJmpson, 
 
 V. Tinnin, . 
 
 V. Tolmic, 
 
 449 
 
 173; 
 
 483: 
 
 V. Van Vechten, 
 V. Wheatley, . 
 Thorington v. Allen, . . 
 Thorn v. Ingraham, . . 
 Thorne v. San Francisco, 
 Thornhill v. Gilmer, . . 
 Thornton v. Boyd, . . . 
 
 V. Boyden, . . 
 
 V. Boynton, 
 
 V. Lane, 
 
 V. Miskimmon, 
 
 V. Pigg, . . , 
 
 421 
 483 
 543 
 451 
 410 
 
 330 
 
 352 
 
 304 
 
 190 
 
 14S 
 
 526 
 
 60 
 
 71 
 
 497 
 
 543 
 
 484, 517, 
 
 520, 589 
 
 • 149 
 
 • • 194 
 
 • • 327 
 468, 480 
 
 • • 438 
 . 192, 284 
 
 ■ 469,470 
 
 ■ 323,324 
 . . . 125 
 
 49, 387, 396 
 400, 477 
 •. . 191 
 
 V. Winter, . . . .392 
 V. Wood, . . 156, 355 
 
 Thorp V. Dunlap, 493 
 
 V. Fowler, . . . . 68, 77 
 V. McCuUum, .... 322 
 V. Ricks, . . 189, 355, 361 
 
 V. Wheeler 335 
 
 Thrasher v. Foster, .... 396 
 
TABLE OF CASES CITED. 
 
 CIX 
 
 Throckmorton v. Moon, 
 Thrower v. Vaughn, . 
 Thurley v. O'Connell, 
 Thurston v. Barnes, 37 
 
 V. Haddocks, 
 Tibbitts V. Jageman, 
 Tice V. Annin, . . 
 Tick V. Ersicke, . . 
 Tieman v. Wilsbn, . 
 Tiffany v. Glover, . 
 V. Johnson, . 
 
 • ■ 47S 
 489, 640 
 . . 368 
 
 I, 380, S16 
 . . 124 
 
 • • 337 
 . . 191 
 . . 490 
 346, 35° 
 
 • • 344 
 38s. 392. 410, 
 44S, 447, 633 
 
 V. St. John, .... 220 
 
 Tifft V. Barton, 341 
 
 Tilby V. Best 620 
 
 Tildar v. Sutton, 389 
 
 Tilford V. Burnham, . . 260, 262 
 
 Tilman v. Cowan, 498 
 
 V. Jackson, . 346, 347, 628 
 Tillinghast v. Champlain, . . 493 
 Tillotson V. Cheatham, . 203, 469 
 
 V. Doe, 516 
 
 V. Millard 125 
 
 V. Wolcott, . . 126, 138 
 Tilton V. Hunter, ..... 498 
 
 V. Love, 609 
 
 Tilton, The, 338 
 
 Tinkurn v. Purdy, 323 
 
 Tippets V. Walker 570 
 
 Tipton V. Grubbs, 430 
 
 Titcomb v. U. M. & F. Ins. Co., 334, 
 
 519, SSI, S62, 563 
 
 Titus V. Ginheimer, .... 165 
 
 v. Kimbro S^o 
 
 V. Maybee, . 146, i6s, SS4, 
 557, 561 
 
 Tobey v. Leonard, 634 
 
 Tobin V. Addison, . 
 Toby V. Read, . . 
 Tocock V. Honyman, 
 Todd V. Benedict, . 
 V. Dowd, . . 
 V. Hoagland, . 
 
 216, 221 
 . . 21S 
 • ■ 332 
 . . 498 
 433. 517 
 230, 234, 
 316, 323 
 
 V. Todd's Ex'rs, 
 Tolland v. Stainbridge, 
 Tomlinson v. Lovey, 
 V. Rowe, 
 V. Shynn, 
 v. Swinney. 
 Tompkins v. Fonda, 
 V. Powell, 
 V. Roberts, 
 Tongue v. Aikin, 
 
 V. Cathcart, 
 V. Morton, 
 Toof V. Bentley, 
 Toombs's Appeal, . 
 Toomer v. Perkey, . 
 Torry v. Minor, . . 
 Toulmin v. Austin, . 
 V. Sieere, . 
 Toulumne R. Co. v. Sedgwick, 
 
 S3, 
 
 Todd V. Pilhomer, . 319, 344, 467 
 
 43 
 490 
 
 387, 388 
 
 . 212 
 
 . 21S 
 
 20, 125 
 
 • 197 
 
 • 504 
 . 258 
 . 326 
 . 326 
 
 • 493 
 52,56 
 
 • 403 
 5S, 209 
 
 • igf 
 
 • 490 
 ■ 492. 
 
 311, 
 337 
 
 Tourville v. Pierson, 124, 12s, 139 
 Towanda Bank v. Ballard, . . 70 
 
 Tower v. Newton, 577 
 
 Tower's Appropriation, . . .190 
 Towmpkies v. Downman, . .631 
 Town V. Harris, . . . 377, 423 
 
 V. Pratt, 113 
 
 Towne v. Crowder, .... 387 
 Townsend v. Crowdy, .... 507 
 V. Greely, . . . .196 
 v. Henry, .... 454 
 V. Messon, . . . 527 
 V. Newell, . . . .154 
 V. Olin, . 202, 392, 395 
 V. Phillips, 222, 283, 387 
 V. Smith, . . 465, 466 
 V. Tallant, . . 432, 434 
 Towsley v. McDonald, . . . 422 
 
 Trabue v. Ingles, 535 
 
 Trail v. SnoufTer, 71 
 
 Trapnall v. Jordan, 263, 449, 460 
 
 V. Richardson, . . 244, 
 
 453, 586 
 
ex 
 
 TABLE OF CASES CITED. 
 
 Trapnall v. State Bank, 
 
 Trappes v. Harter, , 
 Trask v. Green, . . 
 Trawick v. Harris, , 
 Treadwell v. Brown. 
 V. Davis, 
 V. Herndon, 
 V. Roscoe. 
 Treasurers v. Bordeaux, 
 Treman v. Wilson, 
 Trenary v. Cheever, 
 Treon v. Emerick, 
 Trevelyan v. Charter, 
 Tribble v. Frames, 
 Trice v. Pratt, . 
 Trieber v. Boeher, 
 Trigg V. Harris, . 
 
 V. Lewis, . 
 
 V. McDonald. 
 
 V. Ross, . 
 Trimble v. Boothby, 
 Trimm v. Marsh, 
 Trimmer v. Bayne, 
 Tripe v. Marcy, . 
 Tripp V. Cook, . 
 Trott V. Gordon, 
 
 V. McGavock, 
 Trotter v. Dobbs, 
 V. Nelson, 
 
 39 
 
 41 
 
 • 156, 
 197, 199 
 . . 163 
 187, 198 
 . . 122 
 
 • • 543 
 
 • • 153 
 . . 620 
 
 • • 541 
 
 • • SS 
 
 • ■ 415 
 254, 257 
 365, 475 
 
 . 408 
 
 V. Parker, 
 Troup V. Haight, 
 V. Wood, 
 Troutman's Appeal, . 
 Trovillo V. Shingles, . 
 V. Tilford, . . 
 Trowbridge v. Cushman. 
 Trudear v. McVicar, . 
 True V. Congdon, . . 
 
 V. Morrill, . , 
 Truebner v. MoUer, 
 Trueman v. Berry, . 
 Truett V. Legg, . . 
 
 • 391 
 . 368 
 . 636 
 
 • 253 
 I. 392, 393 
 
 623, 624 
 
 i 423> 516 
 
 • • 494 
 189, 191 
 
 173, 353 
 . . 498 
 412, 414 
 395, 520 
 . . 310 
 
 • • 135 
 409, 470, 
 
 515, 522 
 400, 402 
 
 • • 499 
 253, 317 
 . . 464 
 . . 114 
 237, 238 
 548, 626 
 
 . . . 190 
 
 • 338, 370 
 120, 124, 125 
 
 • • -417 
 
 • 599. 603 
 ... 61 
 
 143 
 
 254. 273 
 • • 505 
 164, 524 
 
 ■ 637 
 
 Truitt V. Ludwig, . 
 Trull V. Bigelow, 
 
 V. Fuller, . . 
 
 V. Howland, . 
 
 Truslow V. Putnam, . . . .153 
 
 Trustee v. Langworthy, . . . 629 
 
 Trustees v. Schell, 136 
 
 V. Snell 473 
 
 Tryon V. Marasin, 114 
 
 Tudor V. Taylor, . . . 421, 509 
 
 Tuck V. Calvert, 455 
 
 Tucker v. Atkinson, . . . .158 
 
 V. Bond, . . . 273, 395 
 
 V. Bradley, . 208, 210, 231, 
 
 623, 625, 627 
 
 V. Drake, 137 
 
 V. Kenniston, . . . .135 
 
 Tufts V. Hayes 356 
 
 V. King, 495 
 
 V. Tufts, 453 
 
 Tuggle V. Smith, 203 
 
 Tullis V. Brawley, . 265, 289, 381, 
 
 389, 390, 526 
 
 TuUy V. Peachy, 154 
 
 Tumlinson v. Swinney, 
 Turner v. Adams, . 
 
 v. Billagram, 
 
 V. Collier, . 
 
 V. Felgate, . 
 
 v. Fendall, 158, 
 
 V. Gatewood, 
 
 V. Hill, . . 
 
 V. Keller, . 
 
 V. King, . . 
 
 V. Lawrence, 
 
 V. McCrea, 
 
 V. Walker, . 
 Turney v. Organ, . 
 
 V. Young, . 
 Turnstall v. Trappes, 
 Tutt V. Fulgham, . 
 Tuttle V. Buck, . . 
 
 V. Gates, . . 334, 338, 624 
 V. Howe, 139 
 
 . . 126 
 
 417, 523 
 . . 520 
 . . 640 
 213, 215 
 ;, 159,458,634 
 . 614 
 . 616 
 
 • 58 
 
 • 439 
 . 458 
 
 • 473 
 61,77 
 
 • 398 
 329, 420 
 491, 501 
 . • 464 
 
TABLE OF CASES CITED 
 
 Oil 
 
 Tuttjp V. Jackson, 
 
 V. Walton, 
 
 V. Wilson, 
 Tweedy v. Pickett, 
 Twinam v. Swart, 
 Twitchell V. Shaw, 
 Twoogood V. Franklin, 
 Twyne's Case, . 
 Tyler v. Decker, . 
 
 V. Hammond, 
 
 V. Smith, . 
 
 V. Ulmer, . 
 
 V.Webb, . 
 
 V. Wilkinson, 
 
 502, 503 
 
 562, 563 
 
 ■ 179 
 
 • 30s 
 91,92 
 
 .2i3 
 488, 608, 609 
 
 • 151 
 
 V.Willis, . , 
 Tyree v. Williams, . 
 Tyrell v. Rountree, . 
 
 u. 
 
 . sio 
 . 498 
 
 • 391 
 ■ 392 
 
 • 491 
 308, 309, 316, 
 
 349. 35°, 423 
 376, 387, 403 
 • • 192, 194 
 ■ • 277.430 
 
 Udord v. Dickinson, .... 389 
 
 Ulmer V. Hills, 152 
 
 Ulrich V. Dreyer, 449 
 
 Ulrich's Appeal, 138 
 
 Umbehauer v. AUenbaugh, . . 344 
 Underwood v. Jeans, .... 310 
 V. Lord Comtown, . 498 
 V. Russell, . . .378 
 Union Bank v. Barnes, . . .381 
 V. Jolly, . . .94, 586 
 V. McClurg, . . . 264 
 V. McWhorter, . 471 
 V. Menard, . . . 479 
 V. State, . . 156, 561 
 
 Upham V. Varney, 185 
 
 U. T. Co. V. R. R. Co., . 247, 260 
 
 United States v. Arredondo, . 589 
 
 V. Bank of Ark., 207, 
 
 314, 425 
 V. Conyngham, . 272 
 V. Conway, . . 332 
 V. Dashiel, . . 256 
 
 United States v. Drennen, 
 
 6S, 
 
 323. 
 
 
 V. Duncan, 
 
 429 
 
 521 
 
 331. 
 
 
 V. Hack, . 
 
 352 
 
 586 
 
 541 
 
 
 V. Keokuk, 
 
 , 
 
 612 
 
 
 V. Knight, . 
 V. Lo.wry, . 
 
 584, 586 
 .S36 
 
 
 V. Mechanics' 
 
 
 
 Bank, . 
 V. Morris, . 
 
 ■ 
 
 249 
 612 
 
 
 V. Morrison, 
 
 
 94. 
 
 299 
 V. Samperyac, . 
 V. Slade, . 428, 
 
 520 
 U. S. Bank v. Halsted, . . . 
 
 586 
 S" 
 519. 
 526 
 
 584 
 
 
 V. Longworth, 
 V. Voorhees, . 
 
 • 
 
 271 
 471 
 
 Urkett V. 
 Utica Ins 
 
 Corryell, . . . 
 . Co. V. Power. . 
 
 
 SOI 
 
 i;74 
 
 V. 
 
 Vail V. Craft 308 
 
 V. Lewis,. . 32, 208, 209, 219, 
 
 626, 638 
 
 Valentine v. Havenor, .... 499 
 
 V. Planters' Bank, . 192 
 
 Valle V. Fleming, 432 
 
 Vance v. McNairy, . . . 212, 290 
 
 V. Reardon, 483 
 
 V. Van Arsdale, . 242, 640 
 
 Vanice v. Berger, 504 
 
 Van Alen v. Russell, .... 543 
 Antwerp v. Newman, . .153 
 Brunt V. Schenck, , . . 635 
 V. Walkalee, . 151, 153 
 Buren V. Loper, . . . .116 
 Bussum V. Maloney, . . 429 
 Cleef V. Fleet, . . . 174,222, 
 
 ' 283,387 
 Cleves V. Groves, . . . 192 
 
CXll 
 
 TABLE OF CASES CITED. 
 
 Van Derpoel v. Van Allen, 163, 171 
 Deveere v. Gaston, . . . 292 
 Dever v. Baker, .... 330 
 
 Dike V. Roskam 539 
 
 Dike's Appeal, . . 459, 546 
 Dresor v. King, .... 630 
 Duesen v. Brower, . . ■ S5 
 Duyne v. Van Duyne, 316, 320, 
 347, 407, 412 
 
 Duzer v. Van Duzer, 
 Dyke v. Besser, . . 
 
 V. Herman, 
 Etten V. Currier, . . 
 Etterv..Hurst, . . 
 Hook V. Throgmorton, 
 Houten v. Reilly, . . 
 Kirk V.Wilde, . . 
 Loan V. Kline, . . . 
 Meter v. Conover, . 
 
 V. McFadden, 
 Ness V. Hyatt, . . 
 
 . 182 
 
 • 597 
 
 • 437 
 83, 197 
 
 . 218 
 
 • 535 
 . 187 
 . 520 
 
 247, 261 
 
 615 
 SOI 
 189, 192 
 V. Packard, 145, 166, 167 
 Nest V. Yeomans, . . . 457 
 
 Pelt V. Littler, 636 
 
 Reynegan v. Revalk, . . 136 
 Sickle V. Richardson, . .511 
 Sicklen v. Jacobs, . . . 106 
 Trees v. Hyatt, 407, 414, 417 
 Vechten v. Hull, .... 91 
 Waggoner v. Moses, . . 93, 
 212, 229 
 Wezel V. Van Wezel, . . 569 
 Winkle v. Udall, . . 247, 250 
 Wyck V. Pine, . . . 238, 239 
 V. Seward, .... 151 
 
 Vansant v. Davies, 498 
 
 Varick v. Briggs, . . . 504, 505 
 
 Varnum v. Abbott, 180 
 
 Vartie v. Underwood, .... 456 
 Vastine v. Fury, .... 397, 400 
 
 Vastine's Appeal, 455 
 
 Vattier v. Hinde, 504 
 
 V.' Lyttle 331 
 
 Vaugh V. Biggers, 520 
 
 Vaugh V. Ely, 363 
 
 V. Magill, 501 
 
 V. Myers 409 
 
 Vaughn V. Haldeman, . . 171, 524 
 
 Yeal V. Parkinson, 40I 
 
 Veeder v. Fonda, 407 
 
 Very v. Richardson, . . 189, 356 
 V. Watkins, 146, 174, 234, 258 
 
 Vick V. Keys, 1 52 
 
 Vierheller's Appeal, . . 193, 195 
 Vignolles v. Bowen, .... 501 
 Vigus V. Aldrich, . 573, 574, 575 
 Vilas V. Reynolds, 143, 317, 345, 349, 
 
 39i> 515 
 
 Villard v. Roberts 499 
 
 Villiers v. Ford 377 
 
 Vincent v. Evans, 521 
 
 Vinson v. Huddleston, . . . 261 
 Vinton v. Bradford, .... 202 
 Vogelsong V. Beltzhoover, . .112 
 Voght v. Ticknor, 53, 290, 291, 478 
 Vogler V. Montgomery, 87, 93, 126, 
 
 13s. 137, 614 
 
 Von Hoffman v. Quincy, . . . 565 
 
 Voorhees v. Bank of U. S., . . 433, 
 
 470, 604 
 
 V. Chaffers, .... 292 
 
 V. Gross, 256 
 
 V. McGuinness, 163, 171 
 Vorhis V. Freeman, . . 163, 164 
 Voss V. Johnson, . . . 343, 414 
 Vredenburg v. Morris, . 144, 172 
 Vreeland v. Brown, .... 262 
 Vulgamore v. Stoddart, . . .510 
 
 W. 
 
 Waddell v. Cook, 540, 542, 543, 546, 
 
 549, 637 
 V. Elmendorf, . . . 256 
 
 V. Judson, . 
 V. Williams, 
 Wade V. Green, . . 
 V. Johnston, . 
 
 • • 394 
 . • 471 
 . . 151 
 163, 171 
 
TABLE OF CASES CITED. 
 
 CXlll 
 
 Wade V. Jones 90 
 
 V. Merriam, 479 
 
 V. Saunders, . . . 323, 324 
 
 V. Watt, . . .75, 256, 329 
 
 Wademan v. Thorpe, .... 146 
 
 Wadleigh v. Janvrin, .... 168 
 
 Wadsworth v. Miller 400 
 
 V. Williams, . . . 304 
 Wack V. Stevenson, .... 471 
 Waghorne v. Langmoad, 72, 77, 275 
 
 Wager v. Andrews, 392 
 
 Wagner v. Cleveland R. R. Co., 170 
 
 V. Cohen, 434 
 
 V. Lessee of Dubois, 389, 514 
 Wagnon v. McCoy, . . .72, 75 
 
 Wait V. Day 186 
 
 V. Dolby 425, 509 
 
 In re, . .' 539 
 
 Wakefield v. Lithgow, .... 445 
 
 Walbridge v. Day, 330 
 
 Walchv. Call 118 
 
 Walden v. Davidson, .... 634 
 
 V. Gridley, . . . . ■ . 33° 
 
 Waldman v. Broder, .... 542 
 
 Waldo v. Gray, 88 
 
 V. Russell, . . . 361, 504 
 
 Waldron v. Lee, 509 
 
 Walke V. Moody 360 
 
 Walker v. Anderson, . . 208, 231 
 
 V. Ball, 437 
 
 v. Bradley, 256 
 
 V. Brown, 443 
 
 V. Butz, 495 
 
 V. Commonwealth, . . 252, 
 
 398, 399 
 V. Elston, . . . 504, 512 
 V. Fox, .... 223, 635 
 V. Gilbert, . 232, 503, 620 
 
 V. Greene, 497 
 
 V. Harris, 437 
 
 V.Hunt,. . . . 611,612 
 V. Hunter, . . ' . . . 640 
 V. Knight, . . . 423, 424 
 
 V. Lowell 218 
 
 o 
 
 Walker v. McDowell, .... 256 
 V. McKnight, . . .51, 445 
 V. Marshall, .... 83 
 
 V. Morris, 517 
 
 V. Sherman, 144, 163, 164, 
 165, 166, 167, 170, 171 
 V. Smallwood, . . . 493 
 V. Shotwell, . . 236, 245 
 V. Sohum, 346 
 
 Wallace v. Bartle, 360 
 
 V. Berger, 350 
 
 V. Collins, 117 
 
 V. Duffield, .... 148 
 V. Hale, ..... 432 
 
 In re 311, 613 
 
 V. Lawrence, .... 497 
 V. Patterson. . . . .'539 
 
 Waller v. Best, 265 
 
 V. Harris, 437 
 
 V. Tait, 191 
 
 Wallis V. Bourg, 376 
 
 V. Wilson, . . . 437, 439 
 
 Wallop V. Scarborough, . . . 619 
 
 Walls V. Langfard, 143 
 
 Wally V. McConnell, .... 219 
 
 Walmsley v. Hubbard, . . . 284 
 V. Milne, . . 162, 171 
 
 Walpole V. Ink, 271 
 
 Walsh V. Adams, 539, 540, 542, 545, 
 
 546, S49 
 
 V. Howe 447 
 
 Walters v. Beadles, 
 V. Cooper, . 
 V. Dennison, 
 V. Gernandt, 
 V. Monnell, 
 V. Palmer, . 
 V. People, . 
 V. Sykes, . 
 V. Tabor, . 
 V. Winner, . 
 
 Walton V. Brash ear, 
 
 V. Hargroves, , 
 
 Walwin \. Herbert, 
 
 126 
 
 SOI 
 
 67, 203, 295 
 
 417 
 
 501 
 
 398 
 [24, 126 
 ,79, 210 
 
 65 
 152 
 620 
 361 
 
 63 
 
CXIV 
 
 TABLE OF CASES CITED. 
 
 Walworth v. Readsboro', 210, 211 
 
 V. Stevenson, . . . 420 
 
 Wansborough v. Matin, . 168, 169 
 
 Wanzer v. Baker, 383 
 
 Warburton v. Guzman, . . . joi 
 
 Ward V. Burrows, 521 
 
 V. Chamberlain, . 93, 585, 
 586, 592 
 
 V. Cohen, 480 
 
 V. Dalton, . . . 255, 640 
 
 V. Davis 215 
 
 V. Hollins, 605 
 
 V. Kulm, .... 87, 123 
 V. Lowry, ...... 152 
 
 V. Sanders, 333 
 
 Ward's Case, 168 
 
 Warden v. Taintor, .... 329 
 
 Wardwell v. Wadsworth, . . 498 
 
 Ware v. Baker, .... 304, 344 
 
 V. Bradford, . . 37,483, SH 
 
 V. Lord Egmont, . 493, 496 
 
 Warfield v. Ross, 411 
 
 V. Woodward, . 468, 481 
 
 Warick v. Warick, 491 
 
 Waring v. Lobmis, 316, 336, 337, 340 
 
 V. Zounts, 546 
 
 WarmoU v. Young, 2JI, 448, 632 
 
 Warner V. Norton, 151 
 
 V. Paine 490 
 
 V. Shedd, . . . 213, 215 
 
 V. Stockwell, .... t^^J^ 
 
 Warnock v. Wightman, . . .501 
 
 Warren v. Childs, 190 
 
 V. Edgerton, 220, 232, 233 
 V. Foreman, . . . 352, 412 
 V. Icarian Community, 453 
 
 V. Ireland, 401 
 
 V. Leland, 160, 165, 323, 334 
 
 V. Scott, 502 
 
 V. State, 306 
 
 V. Sweet, 495 
 
 Warwick v. Bruce, . . . 341, 599 
 
 •V. Hunt, 34 
 
 Washburne v. Goodwin, • . .190 
 
 Washburne v. Sproat, 
 Washington v. Irving, 
 V. Kinnear, 
 v. Sanders, 
 V. Vinson, 
 Wassell V. Tunnah, 
 Waterbury v. Lockwood, 
 V. Westervelt. 
 Waterfall v. Pennistane, 
 Waterhouse v. Wait, . 
 
 Waterman v. Haskins, 
 v. Merrill, . 
 Waters v. Caton, . . 
 V. Duval, . 
 V. Stewart, 
 V. Taylor^ . 
 V. Thorn, . 
 Watkins v. Bean, . 
 V. Dorset, . 
 V. Gregory, 
 V. Logan, . 
 V. Wassell, 
 Watkinson v. Bennington, 
 
 Watling v. Howley, 
 Watmough v. Francis, 
 Watson V. Booth, . 
 
 V. Dodd, . 
 
 V. Fuller, . 
 
 V. Gabby, . 
 
 V. Halstead, 
 
 V. Hoel, . 
 
 V. Jones, . 
 
 V. Leroy, . 
 
 V. Maskell, 
 
 V. Reissig, 
 
 V. Sutherland, 
 
 V. Tindal, . 
 
 V. Todd, . 
 
 V. yVatson, 
 
 V. Williams, 
 V. Wilson, 
 
 166, 167 
 42, 42s 
 391 
 
 448 
 
 383 
 125 
 213 
 629 
 171, 524 
 209, 281, 
 381, 634 
 . . 264 
 386, 639 
 
 ■ 61, n 
 289, 384 
 190 
 
 544 
 408 
 184 
 
 15s 
 189 
 618 
 360, 500 
 
 623, 625 
 
 493 
 250 
 
 353 
 184 
 
 , 423, 424 
 
 • 257 
 46,78 
 
 ■ 379 
 
 • 259 
 . 263 
 
 72,79 
 192, 421 
 611, 614 
 . . 420 
 158, 202 
 182, 213, 
 215, 394 
 ■ 152 
 ■ ■ 494 
 
TABLE OF CASES CITED. 
 
 CXV 
 
 Watt V. Jones, . . 
 Watts V. Cleveland, 
 V. Jeffries, 
 V. Smith, . . 
 Waugh V. Binket, . 
 V. Brittain, . 
 Wayman v. Southard, 
 Waymire v. Stayley, . 
 Waysman v. UpdegrafF, 
 Weatherby v. Covington, 
 
 V. Sleeper, 
 Weaver v. Darby, . 
 V. R.'R. Co., 
 V. Toogood, 
 Weaver's Appeal, . 
 Webb V. Armstrong, 
 V. Batchelor, 
 V. Brandon, 
 V. Bumpass, 
 V. Camp, . 
 V. Lugar, . 
 V. Thompson, 
 V. Watson, 
 Webber v. Cox, . 
 V. Davis, 
 v. Gray, 
 V. Henry, 
 v. Hutchins. 
 
 V. Kennedy, 
 V. Mallet, . 
 V. Taylor, . 
 V. Webber, 
 Webster v. Blount, 
 
 V. Dennison, 
 V. Foster, . 
 V. Haworth, 
 V. Hill, . . 
 V. Maddox, 
 V. Peck, 
 V. Reid, 
 V. Smith, . 
 Webster's Case, 
 
 . 387 
 
 . 234 
 
 , 158 
 
 . 49 
 
 ■ 91 
 
 374, 383 
 
 58s, 586 
 
 . . 271 
 
 . . 81 
 
 236, 24s 
 
 162, 167 
 
 . . 146 
 
 • ■ 563 
 . . 462 
 . . 92 
 
 331, 332 
 . . 216 
 . . 87 
 
 • ■ 253 
 
 • • 465 
 
 • • 495 
 528, 630 
 
 • • 438 
 410, 518 
 
 • ■ 569 
 213, 216 
 
 269, 270, 636 
 42, 51, 54, 56, 
 82,211,399 
 
 329. 421 
 . . 180 
 . . 502 
 . . 521 
 
 397. 400, 
 402, 476 
 
 • • 345 
 355, 357 
 
 330, 399 
 295, 432 
 
 • 503 
 
 • 335 
 . 422 
 
 • 527 
 
 • 299 
 
 Weddall v. Jocar, 42 
 
 Weed V. Edmonds, .... 330 
 V. Pierce, . . . 263, 387 
 
 V. Stanley, 149 
 
 Weeks v. Mead, 147 
 
 Weelton v. Woodcock, . . .168 
 Weidler V. Farmers' Bank, 478, 501 
 
 Weir v. Clayton, 517 
 
 V. Hale, . . 268, 272, 274 
 Weirrick v. Ross, . . . 412, 414 
 Weidensaul v. Reynolds, . . 235 
 Weisiger v. Chisholm, . . .516 
 Welch V. Bell, . . 150, 153, 392 
 
 V. Butler, 423 
 
 V. Clark, 541 
 
 V. Jones, 602 
 
 V- Joy, . 374, 398, 428, 471, 
 521, 525 
 
 V. Sullivan, 333 
 
 Weld v. Bartlett, 229, 230, 625, 630 
 
 V. Green, 625 
 
 V. Peters, 147 
 
 Welddes v. Edsall, . . 465, 466 
 Wellington v. Gale, 344, 378, 428, 
 
 433, 519, 525 
 
 V. Sedgwick, . . 640 
 
 Wells V. Bannister, .... 168 
 
 V. Benningfield, . . . 392 
 
 V. Brandner 262 
 
 V. Cowherd's Heirs, 306, 344 
 
 V. Gryffing, 81 
 
 Welsh V. Horine, ... 88, 137 
 
 Weltner's Appeal, 446 
 
 Welton V. Tizzard, 499 
 
 Wendell v. Muggridge, . . . 391 
 
 V. Van Rensselaer, . 368 
 
 Wengert v. Zimmerman, . . . S34 
 
 Wesson v. Chamberlain, . . . 576 
 
 West V. Belches, 617 
 
 V. Cooper, . 350, 521, 628 
 
 V. Davis, 412 
 
 V. Nibbs 635 
 
 V. Nixon, 377 
 
 V. Shockley, 240 
 
CXVl 
 
 TABLE OF CASES CITED. 
 
 West V. Skipp, .... 272, 540 
 
 V. Ward, 123 
 
 West Branch Bank v. Armstrong, 
 360, 562, 563 
 V. Chester, 456 
 West River, Bank v. Gale, 123, 126 
 
 . . 161 
 . . 248 
 • • 563 
 SSh SS3 
 . 140 
 
 . 491 
 • 179 
 235, 240 
 . 636 
 
 Westbrook v. Eager, . . 
 Westenberger v. Wheaton, 
 Western v. B. R. & A. Co., 
 W. R. R. Co. V. Johnson, 
 Westervelt v. Gregg, . . 
 V. HofF, . . 
 V. People, . . 
 V. Pickney, 234, 
 Weston V. Dorr, . . . 
 Westover v. Davis, . . 
 Wetherell v. Boon, . . 
 V. Howells, 
 v. Spencer, 
 Weyer v. Thornburgh, 
 Weyland v. Tipton, . . 
 
 Whale v. Booth, 514 
 
 Whallen v. Codman, .... 91 
 
 Whalley v. Barnett, . . . .621 
 
 V. Newsom, .... 527 
 
 Wheatley v. Terry, .... 408 
 
 V. Tutt, . . . 330,433 
 
 Wheaton v. Sexton, 327, 329, 380, 
 
 381, 425, 428, 474, 483, 514, 
 
 SIS, 518, 526 
 
 • 414 
 
 • 495 
 . i6s 
 
 • 149 
 541, S43 
 
 • 483 
 
 Wheeler v. Cropsey, . 
 V. Hambright, 
 V. Kennedy, . 
 V. McFarland, 
 
 V. Miller, . 
 
 V. Smith, . 
 Wheelock v. Archer, 
 Whicher v. Long, . 
 Whigham's Appeal, 
 Whipple V. Farran, 
 
 V. Foote, 160, 
 
 V. Kent, . 
 Whitcomb v. Reid, 
 
 89, 
 
 "5 
 
 578 
 
 336, 349 
 
 ISO, 
 
 52, S46 
 
 . 187 
 
 • 457 
 . 220 
 91, 126 
 
 . 546 
 
 • 471 
 
 161, 272, 341 
 
 . 213, 216 
 
 . . . U7 
 
 White V. Bond, .... 190, 298 
 V. Chestnut's Lessee, . S2i 
 v. Clark, .... 58, 122 
 
 V. Conkrite, 515 
 
 V. Davis, 479 
 
 V. Denman, 500 
 
 V. Dorris, 197 
 
 V. Dougherty, .... 540 
 
 V. Floyd, 412 
 
 V. Graves, 464 
 
 V. Hampton, 32 
 
 V. Jones, . S3. 538, 542, 546 
 V. Kavanagh, . . . .186 
 
 V. Lovejoy, 79 
 
 V. Morris, 
 V. Trotter, . 
 V. Watts, . . 
 V. Whitney, . 
 V. Wilcox, 
 V. Willard, . 
 V. Wiltshire, 
 V. Woodward, 
 
 White's Appeal, 
 
 White Crow v. White Wing, 
 
 Whitehead v. Cummins, . 
 v. Jordan, . . 
 V. Keyes, . . 
 
 White River Bank v. Downes. 
 
 Whitesides v. Williams, . . 
 
 . . .217 
 322,411, 418 
 316, 346, 349 
 
 479 
 630. 
 
 374 
 22s 
 
 545 
 171 
 
 407, 433 
 82 
 
 495 
 395- 
 391 
 154 
 
 Whiting v. Barstow, 
 v. Beebee, . 
 V. Bradley, 
 
 166, 167, 169 
 
 • 55, 2S6, 494 
 
 • . 391.392, 
 
 394, 5i9> 
 . . . . s69' 
 . ... 477 
 . . . . 469 
 
 V. Dow, 
 
 V. Hadley, 
 
 V. Lawson, 
 
 V. Stark, S75 
 
 Whitman v. Tyler, . 304, 305, 306- 
 Whitmarsh v. Walker, . . .169- 
 Whitmore v. Parks, . . 330, 331 
 Whitney v. Armstrong, . . . 346- 
 
 V. Brunette, .... 281 
 
 V. Ladd, . . . S38, 542 
 
 V. Walsh, . . . . s89> 
 
TABLE OF CASES CITED. 
 
 CXVU 
 
 Whitney v. Whitney, . . 35, 142 
 
 Whitsett V. Slater 624 
 
 Whittaker v. Petway, .... 403 
 V. Sumner, . .190, 390, 
 
 396, SI 5 
 
 Whittick V. Kane, 504 
 
 Whittier v. Hemingway, . . . 206 
 
 V. Varney, . . 296, 304, 
 
 344, 399. 400 
 
 V. Vaughn, 380, 398, 400 
 
 V. Whittier, . . 539, 546 
 
 Whittingham v. Burgoyne, . .615 
 
 Whittington v. Wright, . . . 284 
 
 Whittlesby v. Starr, .... 385 
 
 Whitworth v. Lyons, . . . .126 
 
 Wickes V. Clark, 182 
 
 Wickey v. Eyster, 446 
 
 Wickham v. Miller, .... 83 
 
 WicklifF V. Bascora, . . 197, 316 
 
 V. Breckenridge, . . 493 
 
 V. Robinson, . . 322, 463 
 
 Wigg V. Wigg, 502 
 
 Wiggin V. Dorr, 263 
 
 Wiggins V. Chance, . 92, 93, 125, 
 13s, 407, 409- 420 
 
 V. Silverthorn, 
 Wilbraham v. Livesy, 
 
 V. Snow, 
 Wilbur V. Howe, 
 Wilcox V. Hawley, . 
 V. Hill, . . 
 V. May, . . 
 V. RadclifF, . 
 V. Smith, 
 Wilde V. Gibson, . 
 V. Waters, . 
 Wilder v. Bailey, . 
 V. Fonda, . 
 V. Keeler, . 
 Wildgpose V. Wayland, 
 Wildman, In re, ■ . 
 
 V. Wildman, 
 Wiles V. Maddox, . 
 Wiley V. Bridgman, 
 
 • • 417 
 497. SOI 
 24S; S44 
 317, 417 
 . . IIS 
 
 • • 491 
 
 • . 4S3 
 
 • . 387 
 213, 215 
 . . 492 
 162, 163 
 . . 44S 
 
 • • 274 
 . . 540 
 . . 490 
 . . 610 
 . .561 
 541, 546 
 184, 4S8 
 
 Wiley V. Roberts, . 
 V. Woodman, 
 Wilkerson v. Burr, 
 Wilkes V. Ferris, 
 Wilkie V. Hall, . . 
 Wilkinson v. Alley, 
 Wilkinson's Appeal, 
 Willard v. Longstreet, 
 
 V. Lull, . . 
 
 V. Norris, . 
 
 V. Whipple, 
 
 Willett V. Sparrow, . 
 
 Williams v. Allison, 
 V. Amroyd, 
 V. Armory, 184, 
 
 433, S19, 
 V. Babbitt, . 
 V. Benedict, . 
 V. Berger, 
 V. Bowdon, . 
 V. Brackett, . 
 
 V. Bradbury, 
 V. Bradley, 
 V. Brown, 
 V. Cable, . 
 V. Carr, . 
 V. Charles, 
 V. Cheesbrough; 
 V. Cummings, 
 V. Cutteris, . 
 V. Doe, . . 
 V. Downing, 
 V. FuUerton, 
 V. Gartrell, . 
 V. Gill, . . 
 V. Griffith, . 
 V. Hall, . . 
 V. Herndon, 
 V. Hogeboom, 
 V. Hollingsworth, 
 V. Houston, . 
 V. Ives, . . 
 
 • • 367 
 . . 617 
 
 360, 447 
 154, 156 
 . . 398 
 . . 117 
 . . 81 
 . . 308 
 482, 525 
 
 • • 359 
 81, 368, 
 
 484, S14 
 
 • • 379 
 
 • • 346 
 
 • • 589 
 379, 428, 
 
 S20, 52J 
 
 • • 638 
 93. S86 
 
 412, 418 
 
 . . 256 
 
 399, 428, 
 
 S18, 525 
 
 . 604 
 
 . 276 
 
 SI, 429 
 
 • 79 
 
 • 394 
 
 • 464 
 
 • 392 
 . 606 
 
 • S74 
 398 
 172 
 
 495 
 254 
 514 
 
 n^ 
 
 122, 137 
 
 . . 245 
 
 SI, 38S 
 
 488, SCO 
 
 • • 399 
 S9, 638 
 
 36, 
 
CXVIU 
 
 TABLE OF CASES CITED. 
 
 Williams v. Jones, . . 
 
 • 285,339 
 
 V. Lash, . . 
 
 . . . 438 
 
 V. Lawrence, 
 
 . . .540 
 
 V. Lowndes, 222, 225, 230, 
 
 276, 387, 39 
 
 I, 392, 625 
 
 V. McGrade, 
 
 • • 174 
 
 V. Marshall, . 
 
 ■ • 407 
 
 
 
 V. Millington, 
 
 • 318, 
 
 
 32s, 326 
 
 V. Mostyn, . 
 
 . . . 578 
 
 V. Murphy, . 
 
 . . 500 
 
 V. Newton, . 
 
 • ■ S79 
 
 V. Reed, . . 
 
 . . iAI 
 
 V. Reynolds, 
 
 142, 288 
 
 V. Roberts, . 
 
 . . 610 
 
 V. Rogers, 15 
 
 9. 398, 401 
 
 V. Sharper, . 
 
 . . 36 
 
 V. Shelly, . 
 
 . . 272 
 
 
 
 V. Spencer, . 
 
 . . 224 
 
 V. Starr, , • 
 
 . . n6 
 
 V. State, . . 
 
 . . ^77 
 
 V. Stewart, . 
 
 . . 602 
 
 V. Swetland, 
 
 . . 125 
 
 V. Tatnall, . 
 
 . . 492 
 
 V. Waring, . 
 
 ■ • • S3 
 
 V. Wetherel, 
 
 . . 123 
 
 V. Williams, . 
 
 123, 523 
 
 V. Woodruff, 
 
 408, 414 
 
 V. Young, . 
 
 . . 138 
 
 Williamson v. Bedford, 
 
 . .526 
 
 V. Berry, 315 
 
 , 336, 432, 
 
 433, 43 
 
 4, 468, 480 
 
 V. Branch Ba 
 
 ik, . 490 
 
 V. Brown, 
 
 490, 493 
 
 V.Clark, . 
 
 . . 176 
 
 V. Dale, . . 
 
 409, 414 
 
 V. James, . 
 
 . .276 
 
 V. Johnson, 
 
 . . 270 
 
 V. Logan, . 
 
 • • 35° 
 
 V. Ong, . . 
 
 . . 620 
 
 V. Perkins, 
 
 . . 289 
 
 V. Smoot, . 
 
 . .562 
 
 Willis V. Freeman, . . . 540, 546 
 V. Henderson, .... 546 
 
 V. Nelson 434 
 
 V. Pitkins, 159 
 
 V. Shepard, 458 
 
 V. Vallette, 491 
 
 V. Willis, 359 
 
 Willoms V. Ball, 158 
 
 Willoughby v. Willoughby, 263, 264 
 
 Willy V. Knight, 492 
 
 Wilmarth v. Burt, . . . 213, 640 
 
 Wilson V. Arnold, 422 
 
 V. Beard, 194 
 
 V. Broder, 230 
 
 V. Butler, 6l i 
 
 V. Campbell, 49, 429, 472, 
 476, 522 
 
 V. Carver, 192 
 
 V. Cheshire, . . . .151 
 V. Commissioners, . . 566 
 V. Conklin, .... 440 
 V. Corinne, 483, 539, 540, 541 
 
 V. Davol, 480 
 
 V. Ellis, 106 
 
 V. Gale 84 
 
 V. Gannon, . . . 393, 395 
 V. Gibbs, &c., . . . .545 
 
 V. Gray, 154 
 
 V. Greathouse, . 383, 400 
 
 V. Hart, 492 
 
 V. Hensley, .... 273 
 
 V. Hill, 495 
 
 V. Hurd, 390 
 
 litre, 172 , 
 
 V. Kingston, . 61, 77, 604 
 V. Kirtland, .... 72 
 V. McCullough, . . . 490 
 V. McElroy, .... 91 
 V. McGee, . 426, 484, 527 
 V. McVeagh, . , . .483 
 V. Miller, ; . . . . 496 
 V. Nance, . . . 429, 515 
 
 V. Norman 634 
 
 V. Percival 419 
 
TABLE OF CASES CITED. 
 
 CXIX 
 
 Wilson' V. Ray, . . 
 V. Reuter, . 
 V. Rockwell, 
 V. Troup, , 
 V. Tucker, . 
 V. Tummon, 
 V. Twitty, . 
 V. Watson, . 
 V. Weller, . 
 
 Wilson's Appeal, 
 
 Wilt V.Welsh, . . 
 
 Wilton Mfg. Co. V. Butler, 
 
 19, 
 
 Wimberly v. Hurst, 
 Winchell v. Edwards, 
 Winchester v. B. & R. R. Co, 
 V. Crandall, . 
 V. Paine, . . 
 V. Winchester, 
 Windham v. Wither, . . 
 Windle v. Ricardo, . . . 
 Windrum v. Parker, 61, "jj, 
 Winebrenner v. Johnson, 
 V. Weisiger, 
 Winegardner v. Hafer, 
 Wing V. Burgess, . , 
 V. Gray, . . , 
 Wingfield v. Crosby, . 
 Wingo V. Brown, . , 
 Winkle v. Higgins, . . 
 Winn V. Cory, . . , 
 V. Ingilby, 
 In re, . . . . 
 Winner v. Obear, . . 
 Winslow V. Allen, . . 
 V. Hathaway, 
 V. Loring, . . 
 
 • 399 
 42, 410 
 
 • 2S4 
 . 322 
 
 • 571 
 220 
 
 35° 
 141 
 248 
 449 
 63s 
 
 213, 
 
 324, 401 
 473 
 
 346 
 
 491 
 
 . 386 
 
 • 493 
 
 • S17 
 . 610 
 
 • 373 
 78, 574 
 
 . 81 
 
 . 152 
 
 247, 451 
 
 471 
 
 170 
 
 630 
 
 330 
 
 427, 47S 
 
 . .61S 
 
 16s, 166, 169, 174 
 
 280, 393 
 
 326, S08 
 
 ■ • 365 
 
 . . 83 
 
 32s, 378 
 
 V. Merchants' Ins. Co., 164 
 
 Winsted v. Ewing, . 
 
 V. Winsted, 
 Winston v. Affalter, 
 
 V. Ortley, . 
 Winter v. Girard, . 
 Winters v. Buford, . 
 
 35, 
 
 54°, 545 
 276, 482 
 . . 481 
 488, 609 
 ■ ■ 456 
 347, 349 
 
 Wintermute v. Hankinson, . , • 246 
 
 Wintle V. Chetwind, .... 384 
 
 V. Freeman, .... 386 
 
 Winton V. State 159 
 
 Wirt V. Hazen, 42 
 
 Wisconsin v. Titus, .... 352 
 
 Wise V. Darby, .... 269, 273 
 
 V. Shepherd, . . i . . 354 
 
 V. Withers, . . . 218, 220 
 
 Wiseman v. McNulty 422 
 
 V. Westland, . . . 498 
 Wisner V. Farnham, . . 124,125 
 
 Witherell v. Goss, 391 
 
 Withers v. Harris, ..... 534 
 
 Witherspoon v. Nickels, . . .168 
 
 V. Spring, . . 82, 463 
 
 Witter V. Hightower, .... 503 
 
 V. Richards, . . 540, 545 
 
 Wixom's Estate, 122 
 
 Woddrop V. Price 32 
 
 Woglam V. Cowperthwaite, . . 28 
 Wolcott V. Ely, . . 305, 399, 400 
 
 Wolf V. Door 626 
 
 V. Dowell, 192 
 
 V. Fleishacker, . . 535, 536 
 
 V. Heath, . 73, 328, 428, 474, 
 
 518, 526 
 
 V. Heathers 310 
 
 V. Payne, . . 410, 420, 423 
 
 V. Summers, 113 
 
 V. Van Meter, .... 324 
 
 Wolfe V. Wolfe, 80 
 
 Wolfenbarger V. Standifer, .89,115 
 
 Wood V. Bayley, . . . . 68, 70 
 
 V. Chapin, 361, 489, 503, 504, 
 
 512, 513, 514, 520, 526 
 
 V. Chicout, . . . 394, 440 
 
 V. Colvin, 289, 327, 368, 419, 
 
 468, 518 
 
 V. Colwell, 329 
 
 V. Cooke 401 
 
 V. Davis, .... 135, 640 
 V. Doane. . . 293, 390, 514 
 V. Dwight, 619. 
 
cxx 
 
 TABLE OF CASES CITED. 
 
 Wood V. Farmer, . . . 490, 502 
 
 v. Finnis, 202 
 
 V. Garey, .... 270, 272 
 V. Genet, .... 514, 606 
 V. Gilson, . . 154, 203, 206 
 
 V. Halsey, 483 
 
 V. Henry 569 
 
 V. Hewlett, . 145, 167, 168 
 
 In te, 600 
 
 V. Lake, .... 247, 260 
 
 V. Lane, 470 
 
 V. Lewis, 330 
 
 V. Mann, .... 486, 488 
 V. McGavock, . . 437, 439 
 
 V. Messerly, 324 
 
 V. Monell, 316, 347, 415, 518, 
 
 629, 638 
 
 V. Moorhouse, 328, 407, 504, 
 
 S14, 515, S18 
 
 V. Parker, 416 
 
 V. Robinson, 464 
 
 V. Scott, .... 192, 193 
 V. Torrey, ...... 253 
 
 V. Turner, 481 
 
 V. Turnpike Co., 176, 422, 551 
 
 V. Van Arsdale, 234, 235, 238, 
 
 250, 258, 272 
 
 V. Wood, .... 158, 159 
 
 Woodbridge v. Wright, ... 43 
 
 Woodbury v. Luddy, . . . .126 
 V. Parker, .... 322 
 
 Woodcock V. Bennett, . 52, 75, 82, 
 
 409, 423, 514, 606 
 ' V. Bowman, . 306, 344 
 
 Woodhara V. Baldock, . . . . 176 
 Woodliull V. Neafie, .... 325 
 Woodland v. Fuller, . . 202, 265 
 Woodman v. Badfish, . . . .184 
 V. Pease, , . . .170 
 V. Smith, .... 305 
 
 Woodrop V. Ward, 540 
 
 Woodruff V. Barrett, .... 214 
 V. Cbapin, .... 260 
 V. Cooke, .... 504 
 
 . . 488 
 
 397, 399 
 
 . 266 
 
 • 144 
 . 318 
 
 88, 91 
 
 • 195 
 . 126' 
 
 . I2J 
 
 . 501. 
 
 • 273 
 549 
 
 • 317 
 90, 417 
 
 • 491 
 499, 617 
 
 429 
 349 
 
 45, 
 
 Woodruff V. Hoard, . . 
 
 Woodward v. Harbin, . . 
 
 V. Hill, . . . 
 
 V. Hopkins, . 
 
 V. Miller, . . 
 
 V. Murray, 
 
 V. Solomon, . 
 
 V. Till, . . . 
 
 Woodworth v. Comstock, 
 
 V. Lowman, . 
 
 V. Woodworth, 
 
 Wooley V. Kelly, . 
 
 Wooten V. Hinkle, . 
 
 V. Wlieeler, 
 
 Worden v. Williams, 
 
 Worke v. Harper, . 
 
 V. Hunter, . 
 
 Worley v. Naylor, . 
 
 Worlmsley v. Worlmsley, 322, 418, 
 
 488, 502 
 
 Wornald v. Maitland, .... 490 
 
 Worrall's Appeal, . . . 
 
 Worsleyv. Ld. Scarborough, 
 
 Worthington v. Hollister,, 
 
 V. Hosmer, . 
 
 V. Hyles, 
 
 V. McRoberts, 
 
 Wortham v. Cherry, . . 
 
 Worthy v. Haines, . . . 
 
 Wortman v. Conyngham, 
 
 Wotton V. Wheeler, . . 
 
 Wray v. Ho-ya-pa-nuppy, 
 
 V. Miller, . 
 Wright V. Atkinson 
 V. Boone, 
 V. Cantzon, 
 V. Chestnut Hill, 
 
 Co., . . 
 V. Christy, . 
 V. Douglass, 
 
 Dunning, 
 Henderson, . 
 Hollingswoith, 
 
 452 
 
 491,493 
 
 60 
 
 462 
 
 475 
 
 330 
 
 469, 470 
 
 36s 
 629 
 190 
 521 
 
 303, 308, 405 
 352 
 
 . 422 
 
 319, 413 
 &c., 
 
 • • 359 
 . .615 
 
 186, 439, 
 481, 48S 
 
 • • 139 
 ■ • 199 
 . . 606 
 
TABLE OF CASES CITED. 
 
 cxxi 
 
 "Wright, ]nre, 280, 282 
 
 V. Mills 5 
 
 V. Nutt 173, 353 
 
 V. Oriville & Co., . . 438 
 
 V. Pond 475 
 
 V. Walbaum 74 
 
 V. Ward, 490 
 
 V. Watson, 43 
 
 V. Wood, 496 
 
 V. Wright, 61 
 
 V. Yetts, . . 316,349,350 
 'Wright's Appeal, . . . 325, 398 
 
 Case, 63 
 
 Wroe V. Harris, 203 
 
 Wyatt V. Stewart, 395 
 
 WycofF V. Wyllis, . . . 112,630 
 
 Wygant v. Smith 91 
 
 ■Wylie V. Birch, .... 388, 578 
 V. Hyde, . . 231, 262, 263 
 V. Standford, .... 464 
 
 V. White, ' . 176 
 
 V/yman v. Brigden, .... 296 
 
 V. Fox, 187 
 
 Wyndham v. Way, . . . 165, 169 
 
 "Wynn v. Ingilby, 165, 166, 169, 174 
 
 V. Wilson, 281 
 
 Y. 
 
 ■Yarborough v. Harper, . . . 636 
 ' V. State Bank, 448, 452 
 
 Yater v. Mullen 145 
 
 ■Yates, In re, 325 
 
 V. Ratledge, 446 
 
 V. St. John, . . . 213, 536 
 V. Van Rensselaer, 574, 575 
 V. Woodruff, .... 409 
 
 Yeatman v. Erwin, 510 
 
 Yeavely v. Yeavely, .... 493 
 Yeldell v. Stemmons, . . 150, 177 
 Yoder V. Standiford, . . . .417 
 
 ■Yongue v. Atkins, 326 
 
 V. Cathcart 326 
 
 V 
 
 York, &c., Co. V. Ass., &c., Co., 173 
 
 Yost V. Devault 136 
 
 V. Heffner 92 
 
 Youlrrtan v. Austin, .... 490 
 
 Young V. Burcher, 214 
 
 V. Davis, 619 
 
 V. Fryer 618 
 
 V. Hosmer 229, 
 
 230, 625 
 
 V. Judd, 382 
 
 V. Keighly, 544 
 
 V. Keogh 432 
 
 V. Lorraine, 606 
 
 V. McClure, 151 
 
 V. McGown, .... 290 
 
 V. Moore, 220 
 
 V. R. R. Co., . . 551,552 
 
 V. Read 253 
 
 V. Roebuck, 279 
 
 V. Shreve 191 
 
 V. Smith, 202, 323, 331, 332, 
 
 469, SIS 
 
 V. Snyder, 317 
 
 V. Stone, 449 
 
 V. Wise 214 
 
 V. Withers, 487 
 
 z. 
 
 Zabriskie v. Mead, 472 
 
 Zangton v. Horton, 500 
 
 Zantzinger v. Oed, 448 
 
 Zeal V. Auty, . 161 
 
 Ziegenhager v. Doe, .... 262 
 
 Ziegler v. Houts, 363 
 
 Ziegler's Appeal, . . . 358, 447 
 
 Zieter v. Bowman, 493 
 
 Zimmerman v. Bartchy, . . . 196 
 
 V. Mer. Nat. Bank, 391 
 
 Zion Ch. V. St. Peter's Ch., 390, 401 
 
 Zug V. Laughlin, . . 238, 273, 333 
 
 Zurcher V. Magee, 159 
 
 Zylstra v. Keith 424 
 
ON EXECUTIONS. 
 
 oi«io 
 
 CHAPTER I. 
 
 ORIGIN AND NATURE OF THE WRIT OF EXECUTION. 
 
 Signification and Derivation of the term Execution. — What 
 an Execution is. — Wh^n originated. — How yudgments 
 ■were executed., and Debts satisfied, in Ancient Times. — 
 History of, under Civil Law. — Common Law ; Kinds of 
 Execution. — Of the Fieri Facias; ■ Capias ad Satisfacien- 
 dum. — Elegit, Origin of. — Levari Facias. — Extent. — 
 Statute Merchant. — Statute Staple. — Scire Facias. — Ha- 
 bere Facias Seisinam. — Habere Facias Possessionem. — Se- 
 questration. — Property subject to, in England. — Statu- 
 tory Enactments making Real and Personal Property subject 
 to Execution. — History of, in America. 
 
 § I. The word execution is derived from the Latin executio, 
 from exequi or ex and sequi, to follow up. Execution is the final 
 process in an action. Executio est finis et fructus legis. It 
 gives the successful party the froits of his judgment. Exe- 
 cution signifieth in law the obtaining of actual possession of 
 anything acquired by judgment of law, or by a fine executory 
 levied, whether it be by the sheriff or by the entry of the 
 party, and is called the life of the law, and therefore is in all 
 cases to be favored. It is the writ which directs and author- 
 izes the officer to carry into effect such judgment. It is the 
 end in both the English senses of the word, being not only the 
 final proceeding in an action, but the object, also, for which 
 the action is prosecuted, putting the party into actual posses- 
 
 1 
 
2 ORIGIN AND NATURE OF [Chap. I. 
 
 sion of the lands, goods, or money to which he is entitled. 
 Execution, in a practical sense, is the formal method prescribed 
 by law whereby the party entitled to the benefit of a judgment, 
 or of an obligation equivalent to a judgment, may obtain that 
 benefit 
 
 § 2. The term execution is applied generally to any or all 
 the various means by which this object is attained, and these 
 means are certain writs issuing out of the. court in which the 
 judgment was given, or obligation recorded, under the author- 
 ity of which the different species of execution are enforced. 
 
 "Execution (in practice). The act or mode of putting the 
 sentence of the law in force, or of carrying into effect the judg- 
 ment or decree of a court." "And this final execution of the 
 law puts the party into specific possession of his right by the 
 intervention of ministerial officers, or else gives him ample 
 satisfaction, either by equivalent damages, or by the confine- 
 ment of his body who is guilty of the injury complained of." 
 
 It is a judicial writ otherwise termed final process, founded 
 on a judgment obtained in a civil court, and issued in behalf 
 of the party recovering such judgment, for the purpose of ob- 
 taining the satisfaction or the full benefit of it, and is termed " the 
 life of the law, the effect, fruit, and life of every suit." ^ 
 
 There are various kinds of judicial process, but the two 
 most usual in practice are fieri facias and capias ad satisfa- 
 ciendum. 
 
 Executions are either final or not final. Final execution is 
 one which authorizes the money due on a judgment to be made 
 out of the property of the defendant ; is termed final because, 
 when once executed, the object of the judgment has been ob- 
 tained. There is another kind which tends to an end, but is 
 not absolutely final ; as, for example, a capias ad satisfacien- 
 dum, by virtue of which the body of the defendant is taken, to 
 the intent that the plaintiff shall be satisfied of his debt, &c., 
 the imprisonment not being absolute, but until he shall satisfy 
 the same.^ 
 
 § 3. Execution, in civil actions, is the mode of obtaining the 
 
 ' 5 Coke, 89, 91. » 6 Co. 87. 
 
Chap. I.] THE WRIT OF EXECUTION. 3 
 
 debt, or damages, or other thing recovered by the judgment ; 
 and it is either for the plaintiff or defendant. For the plain- 
 tiff, upon a judgment in debt, the execution is for the debt and 
 damages, or in assumpsit, covenant case, replevin, or trespass, 
 for the damages and costs, to be levied in an action against an 
 executor or administrator of the goods of the testator or in- 
 testate in the hands of the defendant, if he have so much 
 thereof in his hands to be administered, and if not, then the 
 damages or costs to be levied de bonis propriis. 
 
 Upon a judgment in detinue, the execution is for the goods 
 or their value, with damages and costs. For the defendant 
 upon a judgment in replevin, the execution at common law is 
 for the return of the goods, to which damages are superadded 
 by the English statutes, or for the arrearages of rent, and costs ; 
 and in other actions upon judgment, of non pros., nonsuit, or 
 verdict, the execution is for costs only. 
 
 § 4. Writs of execution ^xe. judicial writs, issuing out of the 
 court where the record is upon which they are grounded. 
 
 An execution has been called " the life of the law," and the 
 object of all proceedings in an action is to obtain this writ 
 after final judgment has been entered by the court, by which 
 the plaintiff is adjudged entitled to a thing in the possession 
 8f the defendant, or to a sum of monej which is to be paid by 
 the defendant to the plaintiff. He is entitled to either sue out 
 an execution, or have one issued, in order to obtain the fruits 
 of his judgment, except where the plaintiff's right is suspended 
 by proceedings in the nature of an appeal, or by a stay of exe- 
 cution, cesset executio, or by his own agreement. Therefore an 
 execution has been termed the end and fruit of the law. 
 
 By execution is meant the act of carrying into effect the 
 final judgment of a court. The process, or writ, which author- 
 izes a ministerial officer to carry into effect such judgment, is 
 called an execution. It is the writ or process by which seizure 
 is made to satisfy by sale the judgment. 
 
 § 5. While at common law there were various kinds of exe- 
 cutions, there were none that touched the title to land so as to 
 pass it. 
 
4 ORIGIN AND NATURE OF [Chap. I. 
 
 It is a creature of modern legislation ; it is " the life of the 
 law" especially in the United States, the effectual instrument 
 whereby the finding and judgment of the court is consum- 
 mated, based upon an adjudication, follows a contest wherein 
 there was a plaintiff and a defendant, and only affects the 
 property of the losing party. 
 
 There cannot be an execution, levy, and sale, except they be 
 founded on judicial proceedings in which the party whose 
 property is sought to be taken was a party. ' 
 
 § 6. After the rendition of a final judgment of a court, after 
 the trial of an action, if the judgment is not suspended, super- 
 seded, or reversed, the next step, and one of the most impor- 
 tant, is the execution of the judgment, by putting the sentence 
 of the law in force, and obtaining the relief granted, or satis- 
 faction, which is generally the ultimate result of all litigation. 
 This, from the variety of forms and causes of action, is per- 
 formed in various ways, according to the nature of the action 
 upon which the execution is founded, and of the judgment 
 which is had and. recovered. 
 
 § 7. The writ of execution on judgments at law, or when is- 
 sued on decrees or orders to pay money, commands the officer 
 to make the money out of the property of the debtor ; and the 
 same rule is applicable in judgments and decrees for mortgage 
 foreclosures, statutory liens, vendors' liens, and such other 
 orders of sale as are merely designed to enforce the payment 
 of money. A sale of the debtor's property is the necessary 
 consequence of the writ, if the money is not paid, the main 
 object of the writ being the making of the money. By pay- 
 ment to the officer holding the execution, the debtor prevents 
 a sale of his property. The execution of final process, the 
 levy and sale of the property, is the consummation of the judg- 
 ment. The act of carrying into effect the final judgment of a 
 court, or other jurisdiction, is the execution of the judgment. 
 Upon judgment, the successful party is in general entitled to 
 execution, to put in force the sentence that the law has given. 
 For this purpose he sues out, or causes to be issued, a writ to 
 the sheriff, commanding him, according to the nature of the 
 
Chap. I.] THE WRIT OF EXECUTION- 5 
 
 case, either to give the plaintiff possession of the lands, or to 
 enforce the delivery of the chattels which were the subject of 
 the action, or to levy for the plaintiff the debt or damages and 
 costs recovered, or to levy for the defendant his costs, and 
 that either upon the body of the opposite party, his lands, or 
 goods, and, in some cases, his body, lands, and goods, the 
 extent and manner of the execution issued always depending 
 upon the nature of the judgment. Like the judgment, writs 
 of execution are supposed to be actually awarded by the judges 
 in court, but no such award is in general actually made.^ 
 The attorney, after final judgment, orders out of the proper 
 office a writ of execution in the form to which he would be en- 
 titled upon the judgment obtained and entered. 
 
 § 8. The maxims of the law applicable to executions are, — 
 
 Parum est latam esse sententiam nisi mandetur executioni. 
 It is not enough that sentence should be given. It is to little 
 purpose that judgment is given, unless it be committed to exe- 
 cution.^ 
 
 Executio est fructus et finis' legis. An execution is the end 
 and fruit of the law.^ 
 
 Executio juris non habet injuriam. The law will not, in its 
 executive capacity, work a wrong.* 
 
 Juris effectus in executione consistit. The effect of a law 
 consists in the execution.^ 
 
 Prosecutio legis est gravis vexatio : executio legis coronat 
 opus. The process of the law is a grievous vexation : the exe- 
 cution of the law crowns the work.^ 
 
 Boni judicis est judicium sine dilations mandari executioni. 
 It is the duty of a good judge to cause execution to issue on 
 a judgment without delay.'i' 
 
 Executio est executio juris secundunt judicium. An execu- 
 tion is the execution of the law according to the judgment.^ 
 
 Favorabiliores sunt executiones aliis processibus quibucunque. 
 Executions are preferred to all other processes whatever. 
 
 ' Wright V. Mills, 4 
 
 * Co. Litt. 289. 
 
 • Co. Litt. 289. 
 
 ;. & N. 488. 
 
 * 2 Inst. 482. 
 
 ' Co. Litt. 289. 
 
 » Co. Litt. 289. 
 
 ' Co. Litt. 289. 
 
 ' Coke, 3 Inst. 212. 
 
6 ORIGIN AND NATURE OF [Chap. I. 
 
 Ea quce in curid nostrd rite acta sunt debitce executioni de- 
 mandari debent. Everything done in our courts, according to 
 the forms of law, should be committed to execution for the 
 purpose of being carried into effect. 
 
 Vigilantibus, et non dormientibus, jura subserviunt. The 
 law protects the vigilant, not those guilty of laches.^ 
 
 Qui prior est tempore potior est jure. He who is prior in 
 point of time has the better right.^ , 
 
 Omnia prcesumuntur rite et solenniter esse acta. All things 
 are presumed to be rightfully done.^ 
 
 There are other maxims which are, in their application to 
 proceedings on execution, of great importance, and in their 
 proper order, as applied by the courts, will be treated of here- 
 after. The maxims here cited are those of general application. 
 
 An eminent writer cites this difference between an action 
 and an execution : " An action, in its proper sense, continues 
 until judgment be given, and after judgment, then process of 
 execution commences ; and therefore a release of all actions is 
 no bar of execution, for the execution begins when the action 
 ends. The foundation of an action is an original writ, and 
 is determined by the judgment. Writs of execution are called 
 judicial writs because they are grounded upon the judgment."^ 
 
 § 9. While society remained in its rudest and most simple 
 form, debt seems to have been considered as an obligation 
 mtrely personal. Men had made some progress towards refine- 
 ment before creditors acquired the right of seizing the property 
 of the debtors in order to recover payment. The expedients 
 for this purpose were all introduced originally in communities, 
 and we can trace their gradual progress. First, the simplest 
 and most obvious security was, that the person who sold any 
 commodity should receive a pledge from him who bought it, 
 which he restored upon making payment. Secondly, when a 
 pledge was given, and the debtor became refractory or in- 
 solvent, the creditor was allowed to seize his effects with a 
 strong hand, and by his private authority. 
 
 This rude practice, suitable only to the violence of that 
 
 ' Post, chap. ix. ' Post, chap. ix. ' Post, chap, xviii. * Co. IJtt. 28g. 
 
Chap. I.] THE WRIT OF EXECUTION. 7 
 
 which has been called a state of nature, was tolerated longer 
 than one can reasonably conceive to be possible in any society 
 ■where law and order were at all known. 
 
 The ordinance authorizing it was issued A. D. 1134, and 
 that which corrects the law, and prohibits creditors from seiz- 
 ing the effects of their debtors, unless by a warrant from a 
 magistrate, was not published till 1351. As soon as the inter- 
 position of a magistrate became requisite, regular provision 
 "was made for attaching or distraining the movable effects of a 
 debtor ; and if his movables were insufficient to discharge the 
 ■debt, his immovable property, or estate in land, was liable to 
 the same distress, and was sold for the benefit of the creditor. 
 As this regulation afforded the most complete security to the 
 creditor, it was considered so severe that humanity pointed 
 ■out several limitations in the execution of it. Creditors were 
 prohibited from seizing the wearing apparel of their debtors, 
 the beds, the door of their house, and their implements of hus- 
 bandry. Upon the same principle, when the power of dis- 
 training effects became more general, the horse and arms of a 
 gentleman could not be seized ; and as hunting was the favor- 
 ite amusement of martial nobles, the Emperor Ludovicus Fi- 
 nns prohibited the seizing of a hawk on account of any debt ; 
 but if the debtor had no other movables, even these privileged 
 articles might be seized. 
 
 § 10. In England ancient executions were of two kinds : one 
 issued from the king's court, being the superior court, the 
 other from the court of inferior lords. In the king's court the 
 money itself could be levied upon the party against whom the 
 judgment was rendered. In the lords' court they could only 
 levy distresses, a kind of penalty to enforce obedience to their 
 ■commands ; the question whether they were justly levied was 
 then considered in the king's court. The lords' court having 
 TIG power to order sale, there was no injustice in the matter. 
 An execution in the inferior courts was no more than levying 
 •a pain to make the party perform the sentence of the court ; 
 for they could not execute the sentence of that court by 
 changing the property, or delivering it over to the suitor, but 
 
8 ORIGIN AND NATURE OF [Chap. I. 
 
 by levying pains or distresses to make the party perform the 
 judgment of the court. 
 
 In the king's court they did not take the goods as a mere 
 penalty ; the execution was final : while in the lords' court, 
 when the party recovered judgment, he was subject to a writ 
 of false judgment, which was tried in the king's court. The 
 judgment in the king's court was, that the plaintiff recuperet 
 the money adjudged to him ; and the most direct way of levy- 
 ing the money was by bringing the money itself into court, 
 for the use of the parties. There was also this distinction be- 
 tween an execution in favor of the king and one in favor of a 
 subject : In the case of the subject, the execution reached only 
 the goods of the debtor ; while in the king's case, it reached , 
 the goods, chattels, lands, and body of the debtor, he being 
 considered a tenant or vassal who held his lands on condition 
 of feudal service to the king, and holding what he had from 
 the king, he was from thence to satisfy what he owed to the 
 king, it being considered as the public treasure ; for, by Mag- 
 na Charta, if the subject had anything, two executions issued 
 against the goods and chattels before a levy was made on the land. 
 
 § II. There were two writs of execution for the subject, the le- 
 vari facias and ^& fieri facias. The capias ad satisfaciendum 
 and elegit were the creatures of statute. At common law, exe- 
 cution was sometimes awarded by the words Habeas denarioSf 
 Facias denarios, Fieri facias denarios, and Levari facias dettarioSy 
 which were considered as having the same effect. Afterwards 
 the writs were distinguished into two several forms, viz., the 
 fieri facias and the levari facias, which were to be used in dif- 
 ferent cases. 'The levari was used in the inferior courts. They 
 could not issue 2i fieri, being unable to sell or change the prop- 
 erty ; and in order to make this writ available to suitors in the 
 inferior courts, another writ issued, de executione, by which the 
 goods were held until judgment was rendered — judici, on 
 which writ the sheriff had authority to sell the distresses he 
 had taken on the levari. Then the writ de fieri facias execu- 
 tione was granted, to compel the sheriff to make execution of 
 the goods in his hands. The judgment having given him the 
 
Chap. I.] THE WRIT OF EXECUTION. 9 
 
 right to levy, the writ gave him the power to sell what had 
 been levied upon. The same sort of writ at common law was 
 termed a si recognoscat, which, in the case of a recognizance 
 in the sheriff's court, should be levied of the goods and chat- 
 tels. There was still another process, by distringas, which 
 was used in connection with the levari. This writ issued as 
 the king's writ, but was peculiarly applicable to recognizances, 
 the form of the recognizance being that it should be levied " of 
 the goods and chattels, lands and tenements," into whoseever 
 hands they came. The word levari was used for the reason that 
 the word fieri would not reach the lands as well as the goods. 
 
 In cases of the king, not only the goods, chattels, lands, 
 and tenements were reached by execution, but also the body 
 of the debtor. The lands were bound in order to prevent 
 their alienation by the subject, which might have defeated the 
 king's execution. The writ of levari facias, however, became 
 obsolete upon the general use of the fieri facias, which was 
 chosen to distinguish the executioa as reaching only the goods 
 and chattels of the debtor, and not the profits of the land. In 
 ancient executions where the goods and chattels could only be 
 reached, the fieri facias was the writ used. The levari be- 
 came obsolete, except in the case of a si recognoscat. By 
 statute W. II., c. i8, which gave the elegit, this distinction is 
 adopted between the writs : The levari was used on recogni- 
 zances, and the fieri facias on other judgments. 
 
 § 12. This being the nature of the executions in ancient 
 times, we now reach the period in which judgments at com- 
 mon law were to be executed. At common law a man au- 
 thenticated his debt, and the party was authorized to sue out 
 his execution within a year and a day ; but if no execution was 
 issued within that time, the presumption was, that the judg- 
 ment or debt had been paid, and he was allowed to plead pay- 
 ment and a release of such recorded debt, for the reason that 
 all judgments were to produce the desired effect, that is, the 
 collection or payment of debt or damages within a given time, 
 which was the same period as allotted to non-claims, or, in 
 other words, a statute of limitations, which was a year and a 
 2 
 
10 ORIGIN AND NATURE OF [Chav. I. 
 
 day. Therefore the pledges that were put in for the principal, 
 adstandum recta, were amerciable, as well as the principal, dur- 
 ing the year and the day. These amercements were issued in 
 process during that time, by levari facias in the lords' courts, 
 and hy fieri facias in the king's courts. Still, if the party had 
 paid the money, and satisfied damages, the judgment stood in 
 full force, and the party could plead nothing on an execution 
 issued after such payment, for the reason that the judgment 
 and penalty did not appear to be satisfied. The party was 
 then put to his audita querela, in which the execution was dis- 
 charged ; but the judgment remained in full force and effect, 
 it being necessary to have a return on a regular execution, or 
 acknowledgment of satisfaction of the judgment upon the 
 record. But at common law neither the party nor his securi- 
 ties were held on any execution, or for any damages or penal- 
 ties not assessed within a year and a day ; so that if the party 
 failed to have an execution issued, or damages assessed by a 
 court, or levy made by the officer, there was end or limitation 
 to all proceedings by way of execution on the original recogni- 
 zance. The party had, in order to obtain the relief the judg- 
 ment gave him, to bring an action of debt on the judgment, or 
 debt for the damages or penalty, if it was assessed within the 
 year. 
 
 § 13. In England, at common law, the annual profits of the 
 land as they arose, and the goods and chattels of the debtor, 
 were only liable to execution ; neither his body nor his lands 
 were affected by recognizances, or judgment for debt and dam- 
 ages, except in cases hereinafter mentioned. The reason why 
 the common law subjected only the personal estate to the pay- 
 ment of debts was, it seems, that only a chattel was lent, and, 
 for that reason, only the chattels of the debtor were liable to 
 pay the debt ; and men trusted one another no further than 
 they had visible chattels to pay the debt. The lands were not 
 liable because they were obliged to answer the duties of the 
 feudal lord ; and a new tenant could not be forced upon him 
 without his consent to the alienation. The person was not 
 liable because that was obliged, by the tenure, to serve the 
 
Chap, I.J THE WRIT OF EXECUTION. 11 
 
 king in the wars, and the several lords at home, according to the 
 distinct nature of their tenure. While this law was well adapt- 
 ed for a nation bred to wars, who were to extend their fame and 
 power by arms, it was unjust and unsuitable for a mercantile 
 people, whose power and credit rise and fall in proportion to 
 the increase or decrease of trade. It became necessary, in 
 order to induce foreigners to trade with, and bring their mer- 
 chandise to it, that the greatest encouragement should be ex- 
 tended in the collection of their debts, &c. In order to effect 
 this, it became necessary to subject all the effects of the debt- 
 or, whether in lands, or chattels, or his person, to satisfy his 
 ■creditor, and also to prevent men from converting their chat- 
 tels into land, to defraud their creditors, and enjoy the profits 
 thereof, purchased with the means of other men. Towards the 
 reign of Edward I., when Magna Charta had given the tenants 
 a power of alienation without acquainting their lords, if they 
 left enough to answer the duties of their tenure, they began to 
 subject the land to answer mercantile debts ; and as they be- 
 came more and more a mercantile people, it was thought rea- 
 sonable that the person should be liable, that a close confine- 
 ment might oblige the debtor the sooner to satisfy his creditors, 
 and also make him the more wary how he contracted debts 
 without the prospect of a competent fund or provision to dis- 
 charge them. The king, however, might have execution of the 
 body, goods, and lands, with the restriction that the land was 
 not extendible while the chattels were sufficient, and the debtor 
 ready to answer the debt.^ And in the case of a private per- 
 son, in an action of debt against an heir upon an obligation 
 made by his ancestors, the land was liable to execution. The 
 ■common law allowed an action against an heir, and unless the 
 lands which descended to the heir were liable for the ances- 
 tor's debt, there would be no benefit from the action ; but 
 where a party and his heirs granted to another and his heirs 
 such a rent out of his lands, the heirs, being comprehended in 
 the contract, were bound to make good the grant as far as 
 they had assets by descent from the grantor. These, at com- 
 
 • Plow. 441. 3 Co. II. 
 
12 ORIGIN AND NATURE OF [CHAh. _ 
 
 mon law, were all the instances in which land was liable to 
 execution until the statute of Acton Burnell — ii Ed. I., and 
 the 1 3 Ed. I., de mercatoribus (which was for the security of 
 merchants and the encouragement of trade) — subjected, not 
 only the goods and persons, but the lands of the debtor into 
 whose hands soever they came after the statute acknowledged. 
 
 § 14. In the same year and reign, the elegit was given, 
 which gave the party recovering his election to have either a 
 fieri facias of the chattels of the debtor, or a writ on which 
 the sheriff delivered all the chattels of the debtor, saving only 
 his oxen and beasts of the plough, and the one half of his land 
 until the debt was levied upon a reasonable price or extent. 
 The 25 Ed. III., c. 17, gave the ca. sa. in debt, detinue, &c., in 
 the case of a common person. 
 
 § 15. By the common law a man could only have satisfac- 
 tion of goods, chattels, and the annual profits of lands by the 
 writ oi levari facias and fieri facias, but not the possession of 
 the lands themselves, which was one of the consequences of 
 the feudal principles, which prohibited the alienation, and, of 
 course, encumbering the fief with the debts of the owner. 
 When the restrictions with regard to the alienation of real 
 property were gradually removed, no greater rights accrued to 
 the creditors ; they could not take possession of the lands, but 
 only levy the growing profits thereof: so that if the defendant 
 conveyed away his lands, the plaintiff lost his remedy ; or, in 
 a familiar phrase, while the plaintiff beat the defendant in the 
 action, the defendant beat him on the execution. 
 
 § 16. The thirteenth year of the reign of Edward I. was dis- 
 tinguished by the great alterations made in the law by various 
 statutes, and in the improvement of the administration of jus- 
 tice. Among the most prominent laws enacted were the stat- 
 ute of Westminster, second, which gave an execution against 
 the land by elegit, and the scire facias, to revive a judgment of 
 a year's standing. Both Granville and Bracton treat so lightly 
 of personal actions in their works as to give no information 
 concerning the execution that might be had thereon. There 
 was a process against the chattels and the land to compel an 
 
Chap. I.] THE WRIT OF EXECUTION. 13 
 
 appearance, and in cases of outlawry both might be taken ; 
 but it does not appear that the land, like the goods, was ever 
 sold or delivered to the plaintiff in satisfaction of his debt. In 
 the Mirror it is stated, that in personal actions on defaults, 
 defendants were distrained to the value of the demand, and 
 ' for default after default judgment was given for the plaintiff; 
 that if the defendant had land, he should not be arrested, but 
 the judgment by default was in force, and the plaintiff should 
 have the land to hold until satisfaction was made ; and so in 
 real actions the land was to be adjudged to the plaintiff, to 
 hold as distress. The land was looked upon as the real secu- 
 rity, and it was only held to enforce appearance, or after the 
 judgment to enforce payment. So as to mixed actions, which 
 included debt and contract. The defendants were distrainable 
 by all their goods and lands till they appeared and answered, 
 and the issues of the lands came to the profit of the lord of 
 court. Thus the seizure was only as a mode of coercion. 
 There was no power to sell the goods any more than the land. 
 It is manifest it was the same after judgment as before. Noth- 
 ing is said in the Mirror as to execution in the sense of an 
 actual levy of the money. The plaintiff only had the power 
 to seize and hold the lands as a distress, and at common law a 
 distress could not be sold. There was coercion, but not exe- 
 cution, at common law, save in actions for assault or injury to 
 the person, when the arrest was allowed on mesne process, 
 and therefore on final process or execution. The rule seems 
 to have been, that the process allowed before judgment was 
 the process used after judgment. Then the statute of West- 
 minster 2d gave the plaintiff his option or election either 
 to have the land' to hold as before, and levy the debt out of the 
 profits, or to levy it on the goods ; and it seems that the cred- 
 itor was not entitled to both, even in succession, so as to en- 
 able him to resort to one to remedy the deficiency of the other. 
 It was only in real actions that the land was taken, except in 
 cases provided by the statute de mercatoribus, or of Acton 
 Burnell. But by this statute of Westminster it was enacted, 
 that when a debt was recovered or acknowledged, or damages 
 
14 ORIGIN AND NATURE OF [Chap. I. 
 
 adjudged, in a king's court, the plaintiff should have his elec- 
 tion either to have a writ qubd vice-comis fieri faciat de terns 
 et catallis, or one commanding qubd vice-comes liberet ei omnia 
 cat alia debitoris (exceptis bobus et affris caruccB), et medietatem 
 TERRiE svJEquousq; debitum fuerit levatum,perrationabilepre- 
 tium, vel extentam. The statute ordained, that if a person was 
 ejected from a freehold so delivered to him, he should have his 
 writ of novel disseisin, and redisseisin, if necessary. Upon 
 this there was framed out a writ of execution called an elegit, 
 from the words of the statute ; and if a plaintiff or conusee 
 prayed this writ, the entry on the roll was, quod elegit sibi ex- 
 ecutionem. fieri de omnibus catallis, et medietate terrcz, &c., and 
 the writ was, ac ciim idem H. ; juxta statutum inde editum 
 elegerit sibi liberari pro predictis 20 libris om,nia catalla, et 
 medietatem terrce ipsius R., &c. Thus the land was made di- 
 rectly liable to answer for debts, contrary to the general policy 
 of .feudal institutions. 
 
 § 17. During the somewhat ancient practice prior to the 
 passage of the statute giving the elegit, fi. fa., and extent, the 
 process in use was the capias and a writ of distringas ad sa- 
 tisfaciendum; and where the debtor appeared upon a distringas 
 in the mesne process, he was not liable to a capias ad satisfa- 
 ciendum on the judgment, but only to a distringas ad satisfa- 
 ciendum. During the reign of Edward III. the common writs 
 of execution were the. fi. fa., elegit, and capias, besides the dis- 
 tringas ad satisfaciendum, where the defendant was compelled 
 to make specific redress, as in detinue. It was settled that a 
 capias might be issued after a fi. fa., and a nihil returned. 
 But after taking the body, no fi. fa. nor elegit could be had, 
 the person of the defendant being considered full execution; 
 nor could the body be taken after an elegit. An elegit xviv^t 
 be sued in as many counties as the plaintiff pleased. Upon 
 an elegit all chattels were to be levied, under which were in- 
 cluded a lease for years, lands in ward, or in execution under a 
 statute. A gift of goods after judgment was void, and the 
 officer might levy them, under an elegit or fi. fa., notwith^' 
 standing any sale or gift, they being bound by the judgment. 
 
Chap. I.] THE WRIT OF EXECUTION. 15 
 
 A person taken upon a ca. sa. was not to be suffered to go 
 at large, though he had found mainpernors, the same as if he 
 was charged on a capias pro fine ; and if he escaped, another 
 capias might be had, as well as an action against the jailer. 
 The established practice was, upon the return of the first ca. 
 sa., to issue an exigent, and so proceed to outlawry. 
 
 § 1 8. Several statutes were made in the reign of Edward I. 
 to enforce the execution of process, and to punish the neglects 
 of sheriffs or bailiffs in serving it. In the reign of Henry III. 
 the practice was to amerce slieriffs for omissions and defaults 
 of that sort, but the method of levying such amercements is 
 not known. The courts adopted a more summary way by is- 
 suing process to the coroners to attach the sheriff, and accord- 
 ing to the nature of the case he was afterwards amerced.^ 
 
 § 19. The statute, therefore, granted the writ of elegit (so 
 termed for the reason it gives the plaintiff his choice or selec- 
 tion whether he will sue out this writ or one of the former), 
 by which the defendant's goods and chattels only are appraised, 
 and all of them (except oxen and beasts of the plough) are de- 
 livered to the plaintiff, at such reasonable appraisement and 
 price, in part satisfaction of his debt. If the goods are not 
 sufficient, then the moiety or one half his freehold, lands 
 which he had at the time of the rendition of judgment, wheth- 
 er held in his own name or by any other in trust for him, were 
 also to be delivered to the plaintiff until, from the rents and 
 profits thereof, the debt was levied, or until the defendant's 
 interest had expired. During this time the plaintiff is termed 
 tenant by elegit. So that at ancient common law, until the 
 passage of the statute giving the writ of elegit, the lands were 
 not liable to be seized or charged with debts. An additional 
 reason to those already given for this rule is, that it prevented 
 the relation of lord and tenant from being destroyed, and also 
 prevented fraudulent alienations by the tenant incurring a 
 debt suflSciently large in amount to cover the land. Only 
 one half of the property was liable to be taken in execution, so 
 that there might be enough left for the lord to distrain upon 
 
 ' Reeves, History of English Law. 
 
16 PRIGIN AND NATURE OF [Chap. I. 
 
 for his services ; but by a late statute, i and 2 Vic, c. i lo, 
 the sheriff was empowered to deliver all lands, tenements, and 
 hereditaments possessed by the judgment debtor at the time 
 of entering judgment. 
 
 § 20. The statute of Acton Burnell, 11 Ed. L, de mercatori- 
 bus, and the 1.3 Ed. I., which first created the statute mer- 
 chant, was designed to promote and encourage trade by pro- 
 viding a sure and speedy remedy for foreign and native 
 merchants to recover their debts at the date assigned for 
 payment. A law of this nature was deemed necessary to en- 
 courage strangers to trade with the English, and for the im- 
 portation of foreign commodities, and also to increase the rev- 
 enues of that kingdom. While this law was enacted- for the 
 sole benefit of the merchants and traders, it was not long be- 
 fore others, appreciating the advantages of the statute mer- 
 chant, began to avail themselves of its benefits; thus, by 
 common usage, it came into general practice. A statute mer- 
 chant is a bond of record acknowledged before one of the 
 clerks of the statute merchant, or other parties authorized to 
 take such acknowledgments. There was also a recognizance 
 at common law, and a statute staple. Both the statute mer- 
 chant and the statute staple were securities for debts acknowl- 
 edged to be due, whereby not only the body of the debtor 
 might be subject to imprisonment, but his goods seized in sat- 
 isfaction of his debt ; his lands were made liable, and might be 
 delivered to the creditor, till out of the rents and profits of 
 them he might be satisfied, and during such time as the cred- 
 itor so held the lands he was called tenant by statute mer- 
 chant or statute staple. The party plaintiff in the proceedings, 
 to whom the debtor's acknowledgment of his right to the land 
 in question was made, was called also cognizor or conusee. In 
 the case of a merchant, lands of a particular kind might be 
 taken in execution ; but after this general authority had been 
 given to take land by writ of elegit, the merchant's security 
 was enlarged still further by the second statute on that sub- 
 ject, so that the whole of a man's land was made liable to 
 statute merchant, while only half could be taken by elegit. 
 
Chap. I.] THE WRIT OF EXECUTION. 17 
 
 § 21. The object of the recognizances and the statutes was 
 to save the trouble and great delay of litigation by authenti- 
 cating debts due parties, so that there was no necessity of a 
 trial in order to obtain satisfaction. They were required to be 
 enrolled in courts of records, and unless payment was made 
 upon the day therein mentioned, execution was awarded for 
 the amount without any other process, or the trouble or ex- 
 pense of a trial. The statute staple derived its name from 
 being made at the staple, or market, where the merchants re- 
 sorted for the sale of their wares. The advantage to the cred- 
 itor by statute staple was, that it gave him power to take 
 body, lands, and goods, all in one writ, it being much quicker 
 than statute merchant. There was, in regard to recognizances, 
 a limitation provided, from the operation of which statutes 
 merchant and staple were wholly exempted — that if execution 
 was not issued within the period of a year and a day from the 
 time assigned for the payment of the debt, the party Was com- 
 pelled to bring an action upon it, the presumption being that 
 the debt was paid in that time, or execution would have been 
 issued to collect it. Upon this class of prosecutions, upon for- 
 feiture, the body, lands, and goods were all liable to be taken 
 in execution to compel the payment of the debt. The process 
 or writ of execution issued is called an extent or extendi facias, 
 for the reason that the sheriff is to cause the lands, &c., to be 
 appraised to their full extended value before he delivers them 
 to the plaintiff, so that it may be known whether the debt will 
 be satisfied. Under this writ may be taken the body and 
 goods of the party chargeable, all the lands and tenements 
 which he had at the time of entering into those particular 
 obligations or debts by which he is rendered liable to this writ, 
 and all the lands which he may have acquired afterwards, into 
 whose hands soever they may have passed. Extent, when ap- 
 plied to the act of the sheriff, means no more than a full valua- 
 tion by a jury under his authority. By statute 33 Henry 
 VIII., c. 39, all obligations made to the king had the same 
 force, and consequently the same remedy to recover theni, as 
 in a statute staple. The king, ' before the passage of said 
 3 
 
18 ORIGIN AND NATURE OF [Chap. I. 
 
 Statute, had these privileges, and his debt was preferred to 
 that of any other creditor who had not obtained judgment be- 
 fore the commencement of the king's suit The king's execu- 
 tion or judgment had a sweeping effect ; while between sub- 
 jects, even at common law, judgments related back only to the 
 first day of the term at which they were rendered, and did not 
 bind the goods and chattels but from the date of execution, 
 but now bind them only from the time of the actual delivery 
 of the writ to the officer. 
 
 § 22. In reviewing the law as it heretofore existed in Eng- 
 land, it should be borne in mind, that by the common law, 
 lands being at first inalienable under the operation of the 
 feudal system, there was no way in which a creditor could 
 avail himself of the title or possession of his debtor's land for 
 the purpose of satisfying his debt. The necessities of trade 
 and commerce developed the exigency which existed for main- 
 taining credit and confidence by some compulsory process 
 whereby a reluctant or dishonest debtor might be coerced to 
 make good his engagements. This resulted in the acts of 
 II and 13 Edward I., called statutes merchant; that of 27 Ed- 
 ward III., called statute staple ; and that of 23 Henry VIII., 
 providing for recognizances by which creditors, under certain 
 circumstances, were authorized by means of the sherifi" to 
 make extent upon the lands of their debtors, and hold them 
 until the debt should be satisfied out of the rents and income. 
 
 These statutes and recognizances are now wholly disused in 
 England ; and while the rights of creditors over their debtors' 
 lands are generally extended there, the process by which this 
 is accomplished is by the writ of elegit, which is a writ of exe- 
 cution. To give greater force and effect to this and similar 
 proceedings, the judgment became a lien upon the debtor's land, 
 which could be enforced at any time, into whosesoever hands 
 the lands might have come. The laws relative to estates by 
 elegit, and the extent to which lands of a debtor are bound by 
 judgment against him, have been essentially modified by re- 
 cent statutes, whereby, among other things, the whole of a 
 debtor's lands may be taken instead of the half, as formerly, 
 
Chap. I.] THE WRIT OF EXECUTION. 19 
 
 and a registration of judgments provided, so as to notify pur- 
 chasers of any existing judgment liens upon lands they are 
 about to purchase. 
 
 § 23. Having given a risum^ of the practice in ancient 
 times, we now proceed to the different writs and forms of exe- 
 cution, some of which have become obsolete, while others are 
 still in use. 
 
 Executions, in actions where money only was recovered, as 
 a debt or damages, and not any specific chattel, are of five 
 sorts : either against the body of the defendant ; or against his 
 goods and chattels ; or against his goods and the profits of his 
 lands ; or against his goods and the possession of his lands ; 
 or against all three, his body, lands, and goods. 
 
 The first of these species of execution is by a writ of capias 
 ad satisfaciendum (you take to satisfy) — a writ of execution 
 usually termed for brevity a ca. sa., which a party may issue 
 after having recovered judginent against another in certain 
 actions at law.. It commands the sheriff to take the party 
 named, and keep him safely, so that he may have his body 
 before the court on a certain day, the retutTt day, to satisfy, 
 ad satisfaciendum, the damages, or debt and damages, re- 
 covered by the judgment. Its effect is to deprive the party 
 taken of his liberty until he makes the satisfaction awarded.^ 
 The ca. sa. in its original form ran as follows : Rex vie sabi- 
 tem prczcipimus tibi quod capias J. de C. et eum salva custodius 
 ita quod habeas corpus ejus coram justitiariis nostris apud. 
 Westmonasterium (tali die) ad satisfaciendum G. de R. tam de 
 viginti solidis quod dem G., in curice nostra, &c,, recuperavit 
 versus eum, quam de viginti ; solidis qui ei, in eadem curia 
 nostra, adjudicata fuerunt pro damnis suis quce habuit occa- 
 sione detentionis debeti prcedicti, et habeas ibi hoc breve. 
 Teste, &c.^ This has been closely followed in the modern forms 
 ofca. sa. in debt. 
 
 § 24. It is a writ of execution issued after judgment, and 
 plight have been issued against a plaintiff against whom a 
 judgment had been obtained for costs, as well as against the 
 
 ' Co. Litt. 289, A. * Reg. Jud. 31. 
 
20 ORIGIN AND NATURE OF [Chap. 1. 
 
 defendant in a personal action. As a rule of common law, 
 it lay in all cases where a capias ad respondendum lay, as part 
 of the mesne process before judgment. It was a very common 
 form of execution, until within a few years, in many of the 
 states ; but its efficiency has been destroyed by statutes facili- 
 tating the discharge of the debtor, in some states^ and in others 
 by statutes prohibiting its issue except in specified cases. 
 
 It is tested on a general test day, and returnable on a gen- 
 eral return day. It is executed by arresting the defendant, 
 and keeping him in custody. He cannot be discharged upon 
 bail, or by consent of the sheriff, and payment to the sheriff is 
 held, in England, not to authorize a discharge. 
 
 § 25. This writ differs from the capias ad respondendum, which 
 lies to compel an appearance to a former suit ; and as a gen- 
 eral thing this cannot be issued against any but such as were 
 liable to be taken on capias ad respondendum. The intent is to 
 imprison the body of the debtor until satisfaction is made for 
 the debt, damages, and costs ; it does not lie against privileged 
 persons, nor against executors or administrators, nor against 
 such persons as could not originally be held to bail. There 
 are, however, many cases in which the defendant might have 
 been taken in execution after judgment, though he was not 
 liable to be arrested at the commencement of the suit ; but 
 the rule is a universal one, that where a capias is allowed on 
 mesne process before judgment, it may be had upon the judg- 
 ment itself. 
 
 § 26. Fieri Facias, — The next species of execution is 
 against the' goods and chattels of the defendant, and is called 
 a writ of fieri facias, from the words in the writ where the 
 sheriff is commanded quod fieri faciat de bonis, that he cause to 
 be made of the goods and chattels of the defendant the sum or 
 debt recovered. 
 
 Fieri facias (from fieri, to be made, a,nd facias, you cause) — 
 you cause to be made — is in practice a writ of execution, usu- 
 ally termed, for brevity, fi. fa., commanding the officer to whom 
 it is directed that he cause to be made of the party's goods 
 and chattels or real estate (that is, to obtain by levy and sale of 
 
CiiAp. I.] THE WRIT OF EXECUTION. 21 
 
 them) the amount specified in the writ, and that he must have 
 it in court on the return day. The name of this important 
 writ is derived from the two emphatic words as distinguished 
 in the form given. It is supposed to have obtained both its 
 name and existence from the words of the statute of Westmin- 
 ster 2d, 13 Ed. I., chap. 18, quod vice-comes, fieri faciat de terris 
 et catallis. It was, however, a common law execution, was issued 
 from the king's court, and was one of the original writs, there 
 being one .other, the levari facias, which issued from the lords' 
 courts. In modern English practice \h.& fi.fa. issues against 
 goods and chattels only, and it seems to be supposed that the 
 ancient writ was restricted in the same way ; but the forms in 
 the Register are all de terris et catallis, thus : Rex vie salutem 
 prcBcipimus tibi quod de terris et catallis. T. de S. in baliva 
 tua. Fieri facias decern libras, et illius habeas coram justitia- 
 riis nostras apud W. in octavis Sancti Hilari, ad redendum T. 
 de B: quce ei in eadem curia nostra adjudicates fuerunt, pro 
 damnis ipsius qucs habuit occasione cujusdam transgressionis, 
 &c. Et habeas ibi tunc hoc breve. Teste, &c. In American 
 practice the fi. fa. is usually directed, in the first instance, 
 against the goods and chattels of the party named, and, failing 
 those, against his real estate. This writ lies against privileged 
 persons as well as others ; also against executors and adminis- 
 trators with regard to the goods of the deceased. The sheriff 
 may not break open any outer door to execute this writ, or a 
 ca. sa., but must enter peaceably, and may then break open 
 any inner door belonging to the defendant in order to take the 
 goods ; and he may sell the goods and chattels (even an estate 
 for years, for that is a chattel real) of the defendant till he has 
 raised enough to satisfy the judgment and costs. In England 
 and Pennsylvania, he must first pay the landlord of the prem- 
 ises upon which the goods are found the arrears of rent then 
 due, not exceeding in the whole one year's rent. 
 
 § 27. The fieri facias is a writ that lay at common law, on 
 which only the goods and chattels of the debtor could be taken 
 in execution. Fieri facias took its name from the words of the 
 writ, quod fieri facias de bonis et catallis, &c. There is no 
 
22 ORIGIN AND NATURE OF [Chap. I. 
 
 direct authority either to contradict or support the theory that 
 this writ was a common law execution. It seems that this 
 writ, as well as the levari facias, obtained its name and exist- 
 ence from the words of the statute of W. 2d, 3 Ed. I., c. 18, by 
 which it was enacted, that when a debt was recovered or ac- 
 knowledged, or damages adjudged in the king's court, the 
 plaintiff should have his election either to have a writ qubd 
 vice-comis, fieri faciat de terris etcatallis, or one commanding 
 qubd vice-comes liberet ei omnia catalla debitoris (exceptis bobus, 
 et affris carucce) et medietatem TERR^E SU^, quousq ; debitum 
 fuerit levatum,per rationabile pretium, vel extentam. From the 
 mere penning of this statute ih.^ fieri facias appears as much a 
 new regulation as the medietatem terrcz. It is probable that 
 the distringas per terras et catalla, which was the mesne process 
 in personal actions, was the process of execution likewise. 
 The legislature seems to have an eye to this process in the 
 terms de terris et catallis. But the writ oi fieri facias, proper- 
 ly so called, never contained anything de terris. This defect 
 is supplied by the levari facias. Thus these two writs reach 
 all the objects that could be touched by the old process oi dis- 
 tringas, and were, perhaps, with that view framed after this 
 act, if, not upon the authority of it. 
 
 § 28. The writ oi fieri facias is a general authority or com- 
 mand to the sheriff to make so much money by sale from the 
 personal estate of the defendant. By this writ the executive 
 officer of the court is commissioned to seize the whole, any 
 part, or so much of the defendant's personal estate 4s may be 
 necessary to raise the specified sum of money. No particular 
 articles of property are ever designated. By statute, this 
 power given by the common law writ over personal estate has 
 been extended over real estate, and the same writ and nearly 
 the same principles of law now apply to both species of prop- 
 erty : no property is designated ; the terms and manner of 
 sale aie regulated by law. 
 
 § 29. Levari Facias. — A third species of execution was 
 by the writ of levari facias. Levari facias, — you cause to be 
 levied, — a writ of execution commanding the sheriff to levy 
 
Chap. I.] THE WRIT OF EXECUTION. 23 
 
 or make of the lands and chattels of the judgment debtor the 
 sum recovered by the judgment, whereby the sheriff might 
 seize all the debtor's goods, and receive the rents and profits 
 of his lands till satisfaction was made to the plaintiff. Little 
 use is now made of this writ, the remedy by elegit, which takes 
 possession of the lands themselves, being much more effectual. 
 The levari facias is used for various purposes against eccle- • 
 :siastics, and goes to the bishop of the diocese, in the nature 
 of a levari or fieri facias, to levy the debt and damages de 
 bonis ecclesiasticis, which are not to be touched by lay hands ; 
 and thereupon the bishop sends out a sequestration of the 
 profits of the clerk's benefice, directed to the church-wardens 
 to collect and pay them to the plaintiff until the full sum is 
 raised ; and in certain cases in favor of the crown. 
 
 This writ is used in Pennsylvania to sell lands mortgaged, 
 after judgment has been obtained by the mortgagee or his 
 -assignee against the mortgagor, under a peculiar proceeding 
 .authorized by statute ; and for collecting charges on land. 
 
 § 30. Elegit. — The latest and most common execution in 
 use is by the writ of elegit, which is a judicial writ given by 
 the statute Westm. 2d, 13 Edw. I., c. 18, either upon a judg- 
 ment for debt or damages, or upon forfeiture of a recogni- 
 -zance taken in a king's court. Elegit, from eligere (to choose), 
 — he has chosen, — a writ of execution commanding the sher- 
 iff to deliver to the plaintiff all the defendant's goods and 
 ■chattels (beasts of the plough excepted), and, if these were not 
 ^sufficient, a moiety of defendant's lands, to hold until, out of 
 the rents and profits thereof, the debt be levied, or till the de- 
 fendant's interest be expired. During such term or period 
 the plaintifF is called tenant by elegit, and the estate created 
 by such tenancy is known as an estate by elegit. 
 
 The statute gave the plaintiff his election to have either a 
 fieri facias or this writ, and the entry on the roll was, quod 
 ■elegit sibi executionem fieti de omnibus catallis et medietate 
 .terra (that he hath elected to have execution of all the chattels 
 and half the land of the defendant), and the writ itself had a 
 similar recital, quia elegit sibi liberari omnia bona, &c. ; hence 
 the name of elegit. 
 
21 ORIGIN AND NATURE OF [Chap. J. 
 
 In England a material alteration has been made in its form 
 by statute i and 2 Vic, c. no, and 2 and 3 Vic, c 11, which 
 provides, that upon an elegit the sheriif shall deliver the whole 
 of the defendant's lands, instead of a moiety, as before. 
 
 § 31. This execution, or seizing of the lands by elegit, is of so- 
 high a nature that after it the body of the defendant cannot be 
 taken ; but if execution can only be had of the goods, there 
 being no lands, and they are not sufficient to pay the debt, a 
 ca. sa. might be had in such a case, for the reason that an elegit 
 in such a case was of no greater effect than 2i fieri facias ; so- 
 that the body and goods, and the land and goods, but not the 
 body and the land, could be taken upon any execution between 
 subjects in the course of the English common law. 
 
 When a person has judgment in an action of debt, or any 
 other action in which he has damages, and he chooses to take 
 out execution by elegit, the entry is, quod elegit sibi executio- 
 nem fieri de omnibus catallis et medietate terrcs. This elec- 
 tion, either to have a fieri facias or this writ, is called an 
 elegit, the form of which being first given by statute. There 
 was no execution against the lands of the debtor at common 
 law. The English writ of elegit is but little used in the 
 United States. 
 
 By the common law a creditor could only obtain satisfac- 
 tion of his debts out of the goods, chattels, and the present 
 profits of land, by what was known as a writ oi fieri facias or 
 levari facias, but not the possession of the land itself, which 
 was one of the natural consequences of feudal principles, which 
 prohibited the alienation, and of course the encumbering of 
 the fief with the debts of the owner. The statute therefore 
 granted this writ called an elegit (because it was in th.e choice 
 or election of the plaintiff whether he would sue out this writ 
 or the writ of fieri facias or levari facias), by which the de- 
 fendant's goods and chattels were not sold, but only ap- 
 praised. All of them, with certain exceptions, were delivered 
 to the plaintiff at such reasonable appraisement and price, in 
 part satisfaction of his debt. If the goods were not sufficient, 
 then the moiety, or one half of the freehold lands of the 
 
Chap. J.] THE WRIT OF EXECUTION. 25 
 
 debtor which he had at the time judgment was given, whether 
 held in his own name, or by any other in trust for him, were 
 also delivered to the plaintiff, for him to hold until, out of the 
 rents and profits thereof, the debt to be levied was paid ; or 
 until the defendant's interest in the land had expired ; or until 
 the death of the defendant, if he was a tenant for life, or in tail. 
 During this period the plaintiff was known as tenant by elegit. 
 § 32. Estates by elegit, as well as by statute merchant and 
 statute staple, are not generally known in practice in the 
 United States. In this country lands are generally liable for 
 the payment of debts, but they are reached by a different 
 process. Here the fieri facias, by whatever name it may be 
 called, is the uniform process upon which lands are sold to 
 satisfy a judgment. The execution is issued to the sheriff of 
 the county in which the land to be reached lies, and in which 
 the judgment was docketed, requiring him to make the amount 
 of the judgment out of the personal property of the defendant^, 
 and if sufficient personal property cannot be found, then to 
 make it out of the real estate belonging to the defendant at 
 the time such judgment was docketed in said county ; where- 
 upon such real estate is advertised, appraised, and sold by the 
 sheriff at public auction to the highest bidder, and if the land 
 is not redeemed within a specified time, the purchaser receives 
 a sheriff's deed, and becomes vested with all the title the de- 
 fendant had at the time the judgment was rendered or dock- 
 eted against him. 
 
 • § 33- Extendi Facias. — Another writ is the extendi fa- 
 cias, — you cause to be extended, — in English practice a writ 
 issuing from the exchequer. Its name is derived from the 
 words of the old writ commanding the sheriff to cause the 
 lands, goods, and chattels to be extended {extendi facias), ap- 
 praised, &c. This form of ^writ is more commonly known as 
 an extent, a species of execution upon debts of record due the 
 crown, differing in this respect from an ordinary execution at 
 suit of the subject, that under it the body, lands, and goods 
 may all be taken at once in order to compel the payment of 
 the debt. There are two kinds of this writ — an extent in aid, 
 4 
 
26 ORIGIN AND NATURE OF ^Chap. 1 
 
 and an extent in chief. The extent in chief is the principal 
 kind of extent, issuing at suit of the crown for the recovery of 
 the crown's debts. The extent in aid issues at the instance, 
 and for the benefit, of a debtor to the crown for the recovery 
 of a debt due to himself This writ of extent is in use in 
 many of the New England states. 
 
 § 34. Habere Facias Possessionem. — In regard to writs 
 relating to real actions, there are two. First, habere facias 
 possessionem, — you cause to have possession, — a writ that 
 issues for a successful plaintiff in ejectment, to put him in pos- 
 session of the premises recovered. The sheriff is commanded 
 by this writ that, without delay, he cause the plaintiff to have 
 possession of the land in dispute, which is therein described. 
 A fieri facias or a capias ad satisfaciendum for costs may be 
 included in the same writ. The duty of the sheriff in the exe- 
 cution and return of that part of the writ is the same as in a 
 common fi. fa. or ca. sa. In the execution of this writ the 
 sheriff is required to deliver full and actual possession of the 
 premises to the plaintiff. For this purpose he may break an 
 outer door, if required ; and should he be opposed by force 
 and violence, he must raise the posse comitatus. This writ 
 must be executed at the earliest practical moment.^ Second, 
 the habere facias seisinam, — you cause to have seisin, — a 
 writ of execution for giving seisin of a freehold as distin- 
 guished from a chattel interest. A writ of seisin is an execu- 
 tion used in most real actions, by which the sheriff is directed 
 that he cause the demandant to have seisin of the lands he 
 has recovered. This writ may be taken out at any time 
 within the statutory period. It is executed in nearly the same 
 manner as the habere facias possessionem, and for this purpose 
 an officer may break open the outer door of a house to deliver 
 seisin to the demandant. 
 
 §35. Venditioni Exponas. — A venditioni exponas is a 
 writ by which the sheriff is commanded to sell goods and 
 chattels, and in some cases lands, which he has taken in exe- 
 cution by virtue of* a fieri facias, and which remain in his 
 
 ' Chapman v. Thornburg, 17 Cal. 87. 
 
Chap. I.] THE WRIT OF EXECUTION. 27 
 
 hands unsold. The object of this writ, as far as it regards 
 personal property, is to force the sheriff to sell when he has 
 returned a levy unsold for want of buyers, and to bring him 
 into contempt for not selling.^ He cannot, therefore, again 
 return, " Not sold for want of buyers." Should he make such 
 a return, however, an attachment will not be granted against 
 him.2 
 
 If property cannot be found on which to levy the execution 
 within the life of the writ, on and after the return of the exe- 
 cution, an alias execution can be issued, and so on until the 
 officer collects the amount of the judgment, &c. In cases 
 where a levy is made, and for some reason no sale is made 
 during the life of the execution, and the officer is compelled by 
 law to return it without making a sale of the property seized, 
 an order for the issuing of a writ of venditioni exponas is to be 
 obtained, which writ issues to the officer, commanding him to 
 sell the property levied upon, under and by virtue of the for- 
 mer execution, remaining unsold. This writ confers no addi- 
 tional authority upon the officer, but simply commands him to 
 do just what the execution did — sell the property.^ 
 
 § 36. Writ of Distringas. — This writ was used to en- 
 force a compliance of what was required of a party by a dis- 
 tress of his goods and chattels. In detinue, when judgment 
 was rendered for the plaintiff, "that the said A do recover 
 against the said B the goods and chattels aforesaid, or the 
 
 sum of dollars for the value of the same. If the said* A 
 
 cannot again have his said goods and chattels, together with 
 
 dollars, his charges and costs," then there issues a writ 
 
 oi distringas, which recites the judgment, and then proceeds 
 as follows : " And hereupon the said sheriff is commanded 
 that he distrain the said B by all his lands and' chattels in his 
 bailiwick, so that neither the said B nor any one by him do 
 lay hands on the same until the said sheriff shall have another 
 command from our said court in that behalf, and the said sher- 
 iff answer to our court here for the issues of the same ; so 
 
 ' Frisch V. Miller, 5 Penn. 310. ' Leader v. Danvers, I B. & P. 338. 
 
 ' Johnson v. Lynch, 3 3ibb. 345. 
 
28 ORIGIN AND NATURE OF [Chap. I. 
 
 that the said B render to the said A the goods and chattels 
 
 aforesaid, or the said sum of dollars for the value of the 
 
 same ; and in what manner the officer shall have executed this, 
 the command of our said court, he is commanded to make" 
 appear," Src. 
 
 § 37. Replevin. — In actions of replevin, the execution is 
 known as the writ of retorno habendo, which recited that the 
 defendant was summoned to appear to answer the plaintiff in 
 a plea, whereof he took the cattle of the said plaintiff, specify- 
 ing them, and that the said plaintiff afterwards made default, 
 wherefore it was then considered that the said plaintiff and his 
 pledges, if prosecuting, should be in mercy, and that the said 
 defendant should go without day, and that he should have re- 
 turn of the cattle aforesaid. It then commanded the sheriff 
 that he should cause to be returned the cattle aforesaid to the 
 said defendant, without delay, &c. 
 
 If the identical goods distrained are found in the hands of 
 the tenant undispoeed of and unencumbered, they may be 
 taken by the officer upon the retorno habendo ; if not, the offi- 
 cer may return an elongata, or, as it is called in law French, 
 eloigne, that is, that the goods have been removed out of the 
 reach of the officer. When that return is made, the plaintiff 
 may have a writ called a capias in withernam, by which the 
 officer is commanded to take the defendant's own goods which 
 may be found in his bailiwick, and keep them safely (not to 
 deliver them to the plaintiff) until such time as the defendant 
 shall submit himself, and allow the distress to be taken. If 
 the officer cannot execute the withernam, and consequently is 
 obliged to return it nihil, there issues an alias and then a 
 pluries withernam ; and if these, be returned nihil, then fol- 
 lows a capias against the body of the defendant.^ 
 
 § 38. These were all the various writs of execution under 
 the ancient practice. There is still another writ of much use, 
 and of the order of final process. It is known as scire facias 
 — that you make known. This is a judicial writ, and so called 
 
 ' Woglam V. Cowperthwaite, 2 Dall. 68. Frey v. Leeper, 2 Dall. 137. 
 Brady v. Ball, Brown Ch. 427. 
 
Chap. I.] THE WRIT OF EXECUTION. 29 
 
 because in the words of the writ, quod scire facias prcefat T. 
 qtu)d sit coram, the defendant is warned to plead any matter 
 in bar of an execution. This writ was given by the statute of 
 W. II., for at common law, if the plaintiff had failed to sue exe- 
 cution \>y fieri facias or levari facias a year and day, he was 
 driven to another action. ' 
 
 Scire facias is a judicial writ, founded upon some matter of 
 record having for its object (as far as it relates to execution) 
 the prevention of undue surprise, by interposing itself as a 
 warning between judgment and execution whenever any new 
 party is to be charged or benefited by such execution ; when- 
 ever such execution is contingent, after judgment, on the 
 existence of certain circumstances, to be first proved by the 
 party charging, and whenever execution has been delayed 
 beyond the statutory period after the entry of judgment, when 
 that delay has not been caused by the judgment plaintiff. 
 And though it be a judicial writ, or writ of execution, it is so 
 far in the nature of an original that the defendant may plead 
 to it, and in that respect is considered an action ; it is, there- 
 fore, held that a release of all actions, or a release of all execu- 
 tions, is a good bar to a scire facias. 
 
 This writ, containing a brief statement of circumstances, 
 and referring to the record on which it is sued out, is directed 
 to the sheriff, who is ordered to warn the party against whom 
 it issues why execution should not be awarded against him. 
 
 § 39. A. principle of the common law was, thai? a party sued 
 must have notice or warning to defend himself ; and as 
 he had had notice by summons in every action, so, after judg- 
 ment, he ought to have it whenever there had been a change 
 of parties such as might afford ground for some exception, or 
 a lapse of time during which such a change of parties might 
 have taken place ; and the common law rule fixed this at a 
 year and a day, after which execution could not be taken out 
 on a judgment without a scire facias. Upon this principle, 
 also, when it was sought to charge a person upon some obli- 
 gation or judgment to which he was not a party, but by which 
 he was under a legal liability, as in the case of a change of par- 
 
30 ORIGIN AND NATURE OF [Chap. I, 
 
 ties by death, the common law required that he should have 
 notice of the proceeding, and thus be made, in some way, a 
 party to it, so far as to give him an opportunity of showing 
 cause against his enforced liability to it, and also against the 
 tenants of any lands bound thereby. 
 
 The scire facias, being called from the principal words in it, 
 directs the sheriff to make parties know ; that is, to give notice 
 to parties to show if they have anything to say for themselves 
 why the land which they hold ought not to be delivered, &c., or 
 to show cause, at a certain day, why a judgment should not be 
 executed. If the party did not appear, or could show no cause 
 why execution should not be had, the sheriff is commanded to 
 do execution thereof A common method, under code prac- 
 tice, is to revive judgment when it becomes dormant, and 
 then issue execution without any further process. In New 
 York, and in- the states where the practice is under a code, 
 the writ of scire facias has been abolished, and the process is 
 either by motion or action. 
 
 § 40. These were the methods which the law of England 
 pointed out for the execution of judgments. When the plain- 
 tiff's demand is satisfied either by a voluntary payment by the 
 debtor, or by a compulsory process by the courts or otherwise, 
 satisfaction of the debt or judgment should be entered on the 
 record in order to save the defendant from being harassed a 
 second time on the same account. 
 
 All these writs of execution were to be sued out within a 
 year and a "Hay after the entry of judgment, otherwise the 
 court concluded prima facie that the judgment was extinct 
 and satisfied ; yet it would, in pursuance of statute, grant a writ 
 of scire facias for the defendant to show cause why the judg- 
 ment should not be revived, and execution had against him, to 
 which the defendant might plead any matter he had to show 
 why it should not be issued, or the plaintiff might still bring 
 an action on the dormant judgment, which was the only 
 method of revival allowed by the common law : while, by later 
 statutes, the writ of scire facias is still retained for the purpose 
 of reviving judgment. 
 
Chap. I.] THE WRIT OF EXECUTION. 31 
 
 § 41. Sequestration. — Another process of the nature of 
 an execution, but which is somewhat obsolete, yet used in 
 courts of chancery and equity, is a writ termed a writ of seques- 
 tration. A sequestration out of chancery is grounded on the 
 return of sergeant-at-arms, wherein it is certified that the de- 
 fendant has secreted himself; this process issues and gives 
 authority and power to the sequestrators to enter upon and 
 seize the defendant's real and personal estate, and was usually 
 issued as a mesne process. It was, however, sparingly used 
 after a decree to sequester the thing in demand only. This 
 process has become common in courts of equity, and may be 
 said to be' twofold ; that is, it issues either as a mesne process, 
 on the defendant's default in not appearing, or not answering, 
 after the whole process of contempt has been spent against 
 him ; or it issues as a judicial process, in pursuance of a de- 
 cree, and to enforce the performance of it. It is the execution 
 and life of a court of equity ; and as it is the fruit of a long 
 suit, it is to be favored, and in this case is said to be analogous 
 to an execution at common law. 
 
 It does not partake of the nature of a fieri- facias, but of a 
 writ of extent on a recognizance or distringas, vesting no right 
 in the party, because the execution is not complete, but a fur- 
 ther act of the court necessary ; the party must apply to have 
 an account of the sequestration taken. 
 
 The writ of sequestration is in full force in Maryland as a 
 judicial writ to enforce the performance of a decree, and may 
 be said to be analogous to an execution at law. Choses in 
 action, under certain circumstances, may be sequestered. If , 
 the party in whose hands the chose is admits the debt to be 
 due the defendant, and he is willing to pay the same over 
 under the order of the court, it becomes thereby subject to 
 sequestration, but not otherwise.^ 
 
 § 42. Decrees in Equity. — In England the former prac- 
 tice, in regard to decrees in equity (unless they were for land, 
 and operated only in personam), and the only method of en- 
 forcing them, was by means of what is termed process of 
 
 ' Keighler v. Ward, 8 lid. 254. 
 
32 ORIGIN AND NATURE OF [Chap. I. 
 
 contempt against the party disobeying the decree by seques- 
 tration. Originally this process was merely used as a means 
 of coercing the defendant by keeping him out of possession of 
 his property ; the practice of applying the money received by 
 the sequestrators in satisfaction of the sum decreed to be paid 
 is of comparatively modern origin, but by statute i and 2 
 Vic, decrees and orders in chancery have the effect of judg- 
 ments in superior courts of common law. In New York and 
 South Carolina they are liens on real estate only from the 
 time of being docketed.^ And when they direct the payment 
 of a sum of money and costs, it may be enforced by writs of 
 execution. It is a general rule that courts of chancer}^ have 
 the power to issue all pro'cesses that may be necessary to carry 
 their decrees into efFectual execution.^ 
 
 In North Carolina, decrees in chancery for money are en- 
 forced by execution against the body, or the goods and chat- 
 tels, lands and tenements, in like manner as at law; 
 
 § 43. Life of Execution. — The life or vitality of an exe- 
 cution continues from the time it reaches the sheriff or other 
 lawful officer's hands until the day when it is made returnable, 
 unless a supersedeas has been issued ; ^ from the time it is 
 known to the officer that a supersedeas has issued, the execu- 
 tion loses all of its protective virtue, and if the officer after- 
 wards proceeds to execute the writ, he will be a trespasser.* 
 But he will not be liable as a trespasser unless he actually 
 knew of the existence of the supersedeas? 
 
 § 44. Fieri Feci. — The next step after the execution of 
 the writ, or sale of property by virtue of its authority, is its 
 return, which is termed a fieri feci, — I have have caused to 
 be made, — and is the name given to the return made by the 
 
 ' Thompson V.Brown, 4 John. Ch. Boston Mill Corp., 4 Pick. 509. 
 
 636. Morton v. Talmadge, 3 Edw. Grew v. Breed, 12 Met. 363. Scott 
 
 Ch.310. Blalce V. Haywood, I Bailey v. Tailer, i Grant's Cases, 237. 
 
 Eq. 208. Woddrop v. Price, 3 De- White v. Hampton, 13 Iowa, 259. 
 
 saus. 206. 3 Vail v. Lewis, 4 Johns, 450. 
 
 » Ludlow V. Lansing, i Hopk. ■• BufFandeau v. Edmonson, 17 
 
 231. Charles River Bridge v. War- Cal. 436. 
 
 ren Bridge, 6 Pick. 395. Jones v. » Payne v. Governor, 18 Ala. 320. 
 
Chap. I.] THE WRIT OF EXECUTION. 33 
 
 officer to a writ of fieri facias, where he has collected the 
 whole or a part of the sum directed to be levied. The return, 
 as actually made, is by the word satisfied indorsed on the writ, 
 or nulla bona, or " after diligent search in my county or baili- 
 wick, I have been unable to find any goods, chattels, or other 
 property on which to levy this execution." 
 
 At common law, all writs of execution which are executed 
 by the sole authority of the sheriff — such as a capias ad satis- 
 faciendum, habere facias seisanam or possessionem, fieri facias, 
 liberate, &c. — are good when duly executed, though never 
 returned by the sheriff, for the plaintiff has the effect of his 
 suit, and there is nothing further to be done on his part ; 
 hence it is said that an execution executed is the end of the 
 law.^ ,' 
 
 In case of an elegit, a return must be made, so that it may 
 appear that the officer has complied with the statute. In the 
 United States, it is generally one of the statutory requirements 
 that the officer, after executing final process, must make a 
 return of his proceedings thereunder, and for any violation of 
 this requirement he is liable to an action, at the suit of the 
 party aggrieved, for the damages sustained by him, in addition 
 to any other proceeding against the officer which is authorized 
 by law. 
 
 § 45. The liability of a debtor's real estate to the payment 
 of his debts in the United States is the result of statutory law, 
 being unknown to the common law. 
 
 The remedy given to the judgment creditor by the English 
 law was a sequestration of the profits of the land by writ of 
 levari facias, or the possession of a moiety of the lands by the 
 writ of elegit, and in certain cases, of the whole of it by ex- 
 tent. In all these cases the'creditor held the land in trust 
 until the debt was discharged by the receipt of the rent and 
 profits. This limited remedy against .the real estate of the 
 debtor was not deemed sufficient security to British creditors 
 in its application to the American colonies, and the statute of 
 
 ' Hoe's Case, 4 Co. 67. 
 
34 ORIGIN AND NATURE OF [Chap. I. 
 
 5 Geo. II., c. 7, was passed, in the year 1732, for their relief. 
 It made lands, hereditaments, and real estate, within the 
 English colonies, chargeable with debt, and subject to the like 
 process of execution as personal estate. Lands were dealt 
 with on execution precisely as personal property, and it was, 
 consequently, the practice in some of the states, and particu- 
 larly in New York, before and even since the American Revo- 
 lution, down to the year 1786, to consider lands as assets in 
 the hands of the executors and administrators, and to sell 
 them as such. This was the practice in other states.^ 
 
 But though the statute of George II. introduced the sale of 
 real estate on execution throughout the colonies, that statute 
 was not the entire origin of the practice, for in Massachusetts, 
 as early as 1696, and in Pennsylvania in 1 700, lands were, by 
 colonial statutes, rendered liable to sale on execution for debt. 
 The general rule, prevalent in most of the states, is to require 
 the creditor to resort, in the first instance, to the personal 
 estate as the proper and primary fund, and to look only to the 
 real estate after the personal estate shall have been exhausted' 
 and found insufficient. 
 
 In East New Jersey, it was declared by law in 1682, among 
 the early acts of the General Assembly, that no man's land 
 should be sold without his consent, though the profits of it 
 might be extended. But shortly afterwards, the law provided 
 that the lands of the debtor should be appraised, and the 
 sheriff was to deliver possession ; and if not redeemed in six 
 weeks, the lands were to belong to the plaintiff, in fee, at the 
 price of the valuation. 
 
 § 46. In many of the states the lands of the debtor are 
 bound by a judgment from the time of its rendition, or from 
 the day of the term to which the judgment relates, — as, for 
 instance, the first day of the term at which it was rendered, — 
 but this rule is prescribed by statute, and is varied in the 
 different states. In Louisiana they are bound from the time 
 
 ' GraflF v. Smith, i Dall. 483. Halst. I. Daniels v. Ellison, 3 N. 
 Telfair v. Stead's Executors, 2 H. 279. Lyford v. Dunn, 32 N. H. 
 Cranch, 407. Warwick v. Hunt, 6 81. Gore v. Brazier, 3 Mass. 523. 
 
Chap. I.] THE WRIT OF EXECUTION. 35 
 
 they are registered with the recorder of mortgages.' In 
 Kentucky only from the time the execution reaches the sher- 
 iff's hands.^ 
 
 At common law, estates in fee simple were not liable for 
 debts of the owner, except debts of record, and by specialty, 
 and execution having been issued in favor of the king. Magna 
 Charta provided that no land or rent should be seized by the 
 king or his bailiff for debt while there were chattels of the 
 debtor. 
 
 § 47. It has always been in accordance with the spirit of 
 the American law to place within the power of the creditor 
 the means of reaching both the real and personal estate of the 
 debtor. The selling of personal estate at auction, and ap- 
 praising of real estate, rents, and rights to redeem, is said to 
 have had its origin wholly in the colony of Massachusetts 
 Bay. There was an early provincial act (1692) charging the 
 lands of debtors with the payment of their debts. 
 
 In the United States it is the general, if not the universal, 
 * policy of the law to make the whole of a man's property liable 
 for the payment of his debts during his life and after his 
 death ; for this purpose lands are considered as chattels : but 
 in the spirit of Magna Charta personal property must, in gen- 
 eral, be first taken upon legal process, and it is the universal 
 rule that this is the primary fund for the payment of debts.' 
 An execution purchaser is not bound to show that the debtor 
 had no chattels ; this is a question betviceen the debtor and 
 the officer.* 
 
 In New England a judgment constitutes no lien ; but as a 
 substitute therefor lands may be attached on the writ, or on 
 mesne process. An attachment is recorded, and then takes 
 
 ' Hanna v. His Creditors, 13 Den v. Hunt, 6 Halst. l. Daniels 
 
 Mart. 32. V. Ellison, 3 N. H. 279. Gore v. 
 
 ' Bank of U. S. V. Tyler, 4 Pet. Brazier, 3 Mass. 523. Wilson v. 
 
 366. Million V. Riley, i Dana, Watson, i Pet. C. C. 269. 
 360. * Frakes v. Brown, 2 Blackfd. 
 
 ' Whitney v. Whitney, 14 Mass. 295. Spencer v. Champion, 13 
 
 88. Brown V. Webb, I Watts, 414. Conn. 11. Isham v. Downer, 8 
 
 Andrew v. Fleming, 2 Dall. 94. Conn. 283. 
 
36 ORIGIN AND NATURE OF [Chap. I. 
 
 precedence of all subsequent encumbrances, though perfected 
 only by the levy of an execution. The effect of the execution 
 relates to the attachment. Independent of a judgment lien, 
 the liability of real estate to be taken on execution is subject 
 to a variety of statutory regulations. The lands, after being 
 taken by execution, are to be duly appraised by commissioners 
 or a sheriff's inquest, and set off, and possession delivered to 
 the creditor in the execution, by metes and bounds, which op- 
 erate as a conveyance of the debtor's title, and a payment on 
 the judgment to the amount of the valuation. The return of 
 the officer, when recorded, passes the title.^ If the debtor be 
 in possession, claiming title, the extent passes his possession 
 to the judgment creditor.^ The title does not depend upon 
 the return of the officer, or upon anything subsequent to the 
 sale, but upon the fact of the sale and purchase.^ 
 
 In Massachusetts all real estate of the debtor, including 
 lands fraudulently sold by him, and rights of entry and equi- 
 ties of redemption, may be so taken. Upon the levy being 
 made, the sheriff causes the value of the land to be appraised" 
 by three appraisers, and then possession delivered to .the cred- 
 itor at the sum appraised ; and the execution and appraise- 
 ment are returned to the clerk's office, and recorded. The 
 inchoate right of the debtor's wife to dower, and the amount 
 of mortgage encumbrances, are to be deducted from the ap- 
 praised value of the land. In Illinois the debtor is allowed a 
 year to redeem in ; in Vermont, only six months, on paying 
 the appraised value and lawful interest. In Rhode Island 
 the previous appraisement is requisite ; ■ in Connecticut the 
 levy and assignment of the lands to the creditor, at the ap- 
 praised value, passes the title when the execution is returned 
 and recorded, and there is no time allowed to redeem.* 
 
 § 48. In New York, until within a few years past, the rule 
 
 • Gore V. Brazier, 3 Mass. 523. ' Murray v. Emmons, 19 N. H. 
 
 Burnham v. Parsons, 40 Maine, 565. 483. 
 
 Swift V. Cobb, 10 Vt. 283. Wil- « Hill v. Kendall, 25 Vt. 528. 
 
 liams V. Downing, 18 Penn. St. * Booth v. Booth, 7 Conn. 350. 
 
 60. Spencer v. Champion, 13 Conn. 11. 
 
Chap. I.] THE WRIT OF EXECUTION. 37 
 
 was, to sell the real estate absolutely, at auction, upon due no- 
 tice, without any previous appraisement, and without any sub- 
 sequent right of redemption ; and the sheriff executed a deed 
 to the purchaser, which, by relation, vested the defendant's 
 title in the purchaser from the time of the sale. The deed 
 connected with the sale operated by way of execution of a 
 statute power to pass the defendant's title. This is the prac- 
 tice in respect to sales of land on execution by the marshals, 
 under the authority of the courts of the United States, by the 
 Act of Congress of May 7, 1800, and is the practice in many 
 other states.-' 
 
 In Alabama the sheriff sells land on execution under the 
 fieri facias aijd venditioni exponas? In New York, by stat- 
 ute, the real estate of the debtor may be sold on execution, 
 either at law or in chancery, in default of goods and chattels, 
 on six weeks' notice, and in separate parcels, if required by 
 the owner. 
 
 § 49. In Pennsylvania and Delaware the statute requires that 
 the lands shall be appraised ; and if, on inquest to be held by 
 the sheriff, it is found that the profits, rents, and issues will be 
 sufficient in a number of years, provided for by the statute, to 
 pay all the liens upon it, then it shall not be sold, but it shall 
 be delivered to the plaintiff, that out .of the rents, issues, and 
 profits, he may be paid the amount of his execution. The 
 lands are extended by the writ of liberari facias, and posses- 
 sion is given to the creditor, as is the practice upon the elegit 
 in England ; but if the lands are not extended, — that is, if the 
 rents, issues, and profits thereof will not be sufficient in those 
 states to pay the liens or encumbrances in seven years, — then 
 they are condemned, and are to be sold without redemption. 
 And as the land cannot be sold under the execution, because 
 an inquest must be held by the sheriff to ascertain whether 
 
 • Davidson v. Frew, 3 Dev. I. 84. F.step v. Weems, 6 Gill & 
 
 Childress v. AUin, 17 Louis. 37. Johns. 303. Huggins v. Ketchum, 
 
 Boring v. Lemmon, 5 H. & J. 225. 4 D. & B. 414.. 
 
 Barney v. Patterson, 6 H. & J. 204. * Ware v. Bradford, 2 Ala. 676. 
 Remington v. Linthicum, 14 Peters, 
 
38 ORIGIN AND NATURE OF [Chap. I. 
 
 the land can, from its rents, profits, and issues, satisfy the 
 debt within a certain time, the execution is returned to the 
 court, with a levy and the proceedings of the inquest, and so 
 remains until the sheriff is authorized, by a new writ called a 
 venditioni exponas, to sell the land levied upon. 
 
 In Virginia lands cannot be sold on execution. The Eng- 
 lish process of elegit and extent are in use in that state ; but 
 the officer who executes the elegit does not put the creditor in 
 actual possession of the land, but gives him only a legal pos- 
 session, which he must enforce by ejectment.^ In North 
 Carolina and other states, a sale of land under, and by virtue 
 of, a judgment and execution transfers at law all the estate, 
 rights, and interests of the defendant in the execution, and the 
 legal estate which he holds as trustee.^ 
 
 § 50. The lands are not to be sold, in Ohio and Kansas, 
 under the amount of two thirds of the previously appraised 
 value thereof, except in sales for taxes, or against officers for 
 moneys collected. Their real value in cash is to be first ap- 
 praised by an inquest of three freeholders, summoned by the 
 sheriff upon levying the execution ; and if two thirds of the 
 appraised value are sufficient to satisfy the execution, the judg- 
 ment ceases to be a lien on the residue to the prejudice of 
 bona fide judgment creditors. Though the sale be only of an 
 equity of redemption, yet the valuation must be of the entire 
 estate, and of its real value in money ; and the sale cannot be 
 for a sum short of two thirds of that value, though the sheriff's 
 deed will convey only the interest of the judgment debtor.^ 
 
 In Kentucky, on a sale of real estate on execution at law, 
 the land must be previously appraised ; and the statute au- 
 thorizes a redemption at any tiftie in twelve months, unless 
 the land brings two thirds of its appraised value. But the ne- 
 cessity of this valuation does not apply to lands sold under a 
 decree in chancery.* 
 
 ' Roland v. Barkley, i Brock. 356. » Baird v. Kirtland, 8 Ohio, 
 
 ' Giles v.- Palmer, 4 Jones L. 22. 
 
 386. Hart V. Lindsay, i Walker * Blakely v. Abert, i Dana (Ken.) 
 
 Ch. 144. Garretson v. Cole, 1 185. 
 H. & J. 370. 
 
Chap. I.] THE WRIT OF EXECUTION. 39 
 
 In Indiana the rents and profits of the land for seven years 
 are first offered for sale, and if they will not sell for a sufficient 
 sum to satisfy the execution, the fee simple is sold to the high- 
 est bidder. 
 
 In Illinois, formerly, land could not be sold under two thirds 
 ■of the appraised value, but, according to statute, was sold to 
 the highest bidder, subject to the right of redemption by the 
 debtor within a year, on paying the amount of the bid and ten 
 per cent, interest thereon. This law was repealed, and an ap- 
 praisement was required by three householders, of real or per- 
 sonal property, or both, levied on execution ; the property was 
 not to be struck off on the sheriff's sale unless two thirds of 
 the amount of such valuation should be paid therefor, the val- 
 uation to have reference to the cash value. 
 
 In other states the land must be valued or appraised, and 
 at the sale must bring a certain proportion of such valua- 
 tion. In some states, if the creditor will not take the lands at 
 two thirds of the appraised value, there is a stay, upon giving 
 -additional security. In almost all the states a part of the debt- 
 or's lands are exempted from sale, for the benefit of himself 
 and family. Another statutory provision in many states is a 
 right or equity of redemption, which is to be exercised within 
 some given time prescribed by statute. 
 
 §51. Making a Levy on Real Estate. — The usual 
 mode of making a levy on real estate is to describe the 
 land which has been seized- under the execution by metes 
 and bounds, as in a deed of conveyance. Under an ordinary 
 ■execution, or a writ of venditioni exponas, the lands seized 
 are advertised by the sheriff the 'time prescribed by the 
 state laws, and are sold at the time and place appointed, at 
 public auction to the highest biddei:. The writ is then re- 
 turned to court with a statement of what has been done, and 
 the sale is subject to the approval or confirmation of the court. 
 For any material description of the' property, or any act of the 
 sheriff, or of the inquest, not warranted by law, which may 
 have been prejudicial to any of the parties, as the plaintiff, de- 
 fendant, or purchaser, it may be set aside ; then a new sale is 
 
40 ORIGIN AND NATURE OF [Chap. I. 
 
 ordered by an alias execution, or venditioni exponas, which 
 sale is also subject to this statutory supervision. If the sale 
 is affirmed or confirmed, the sheriff then makes a deed to the 
 purchaser, in those states where required by statute, or a cer- 
 tificate of purchase until the time allowed for redemption has 
 expired ; and if not redeemed, then the sheriff is ordered to 
 make a deed to the purchaser which conveys all the title the 
 defendant had in the land, and no more. To complete his 
 title, the purchaser should procure the registration of the deed 
 in the proper office in the county where the lands lie. 
 
 § 52. In the New England states, with the exception of 
 Rhode Island, the sheriff's official return of the proceeding 
 under the execution constitutes the title of the purchaser, as 
 does the sheriff's return of the inquisition of the elegit in Eng- 
 land ; no deed is executed, as the title rests upon matter of 
 record. 
 
 § 53. The method of executing the different writs of execu- 
 tion will be clearly shown by pursuing the order in which the 
 powers and objects of each particular writ are made effective 
 in obtaining the fruits of a judgment. 
 
Chap. II.-| AN EXECUTION. 41 
 
 CHAPTER II. 
 
 FORM AND CONTENTS OF AN EXECUTION. 
 
 fJ'^ai it must contain. — Of the Caption. — Mandatory Part. 
 — Teste. — Directions for Return. — Indorsement. — When 
 regular. — When irregular. — When voidable. — When 
 void. — Executions in Actions of Replevin. — Amending 
 Executions. — Hotv amended. — When allowed. — What 
 Defects cured. — Who may amend. — Effect of Amend- 
 ment. 
 
 § 54. There are many forms of execution for enforcing the 
 judgments of courts in the various kinds of actions. In con- 
 sidering executions as to the objects they are to act upon, 
 they may be divided into two classes : those which are for the 
 recovery of specific things, and those for the recovery of 
 money. In Massachusetts there is but one form of execution, 
 which includes a capias ad satisfaciendum, a levari facias, and 
 an extendi facias} With the exception of the New England 
 states, the forms of execution against goods, chattels, and 
 lands are the fieri facias, venditioni exponas, the levari facias, 
 and the elegit ; against the body, the capias ad satisfacien- 
 dum and the attachment; for the recovery of specific things, 
 the habere facias seisanam, the habere facias possessionem, the 
 retomo habendo, and the distringas, which will be treated of in 
 their order. The most common of all writs is the fieri facias^ 
 which, for the sake of brevity, will be termed a fi. fa., the 
 words of the writ in ancient times being fieri facias de bonis 
 et cattallis, &c., that you cause to be tnade of the goods and 
 chattels. The foundation of all writs of final process is a 
 
 ' Ladd V. Blunt, 4 Mass. 402. Davis v. Richmond, 14 Mass. 
 .Lyman v. Lyman, 11 Mass. 317. 473. 
 6 
 
42 FORM AND CONTENTS OF [Chap. IL 
 
 judgment ; there can be no legal .and valid execution unless 
 there is a judgment rendered, in the action between the par- 
 ties whose names are mentioned or recited in the execution, in 
 favor of either the plaintiff or defendant. The foundation of 
 the writ of ^._/«. is a judgment for debt and damages. Any 
 party who recovers such a judgment is entitled to it unless 
 delayed by stay of execution, which, in certain cases, is allow- 
 able by law after the rendition of a judgment by agreement of 
 the parties, or by proceedings in error or appeal. 
 
 § 55. An execution, being founded on a legal judgment, 
 must follow the judgment, and be warranted by it, — and this 
 depends on its nature and form,^ — and must conform to it in 
 every respect as to the amount of the judgment and character 
 of the parties, or it is void.^ They must intelligibly refer to 
 the judgment, stating the name of the court from which it 
 issues, the name of the county wherein the judgment was ren- 
 dered, the names of the parties, except in United States courts 
 which recite the district of the state, the amount of the judg- 
 ment, if it is for money the amount due thereon, and the time 
 of the rendition of such judgment. It is not essential that 
 the utmost possible strictness should be observed in reciting 
 the judgment,^ if the substance is preserved.* It is generally 
 
 ' Kneib v. Graves, 72 Penn. 104. 143. Rider v. Alexander, i Chip. 
 
 Davis V. Robinson, 10 Cal. 411. 274. Phillips v. Birch, 2 Dowl. N. 
 
 Bain V. Chrisman, 27 Mo. 293. High- S. 97. Judson v. McLellan, Busb- 
 
 tower V. Handlin, 27 Ark. 20. Reese bee L. 264. Cobbold v. Chilver, 
 
 V. Burts, 39 Geo. 565. Wilson v. 4 Scott, N. R. 678. King v. Birch, 
 
 Reuter, 29 loa. 176. Crittenden v. 2 Gale & D. 513. Graham v. Pine, 
 
 Leitensdorfer, 35 Mo. 239. 3 Marsh. 522. Johnson v. Adair, 4 
 
 ' Commonwealth v. Fisher, 2 J. J. How. 58. 
 Marsh. 137. Washington v. Irving, ^ Graham v. Price, 3 Marsh. 522. 
 Mart. & Y. 45. Palmer v. Palmer, ■• Sears v. Burnham. 17 N. Y. 445. 
 
 2 Conn. 462. Butler v. Haynes, 3 Webber v. Hutcnins, j Dowl. N. S. 
 
 N. H. 21. Douglass v. Whiting, 28 95. McMahan v. Coldclough, 2 
 
 III. 362. Webber v. Hutchins, i Ala. 68. Pierce v. Crane, 4 How. 
 
 Dowl. N. S. 91. Gerard v. Gerard, P. 257. Stephens v. Browning, I 
 
 Comb. 352. Weddall v. Jocar, 10 Code Rep. 123. Erwin v. Dundas, 
 
 Mod. 270. Roet V. Gravesend, 7 4 How. 58. Johnson v. Adair, 3 
 
 C. B. 777. Wirt V. Hazen, 24 Vt. Bibb, 34. 
 
Chap. II.] AN EXECUTION. 43 
 
 issued in the name of the people, sealed with the seal of the 
 court, and directed to the sheriff, coroner, or constable, as the 
 case may be ; and where there are legal tenders and coin in 
 circulation, as in California, they state the kind of currency in 
 which the judgment is payable. The rule that a remedy for 
 breach of a contract is to be governed by the lex fori, without 
 regard to the lex loci contractus, is applicable to the form of 
 an execution to be issued on a judgment recovered.^ 
 
 § 56. If there is more than one plaintiff or defendant, it 
 must be in the name of all the plaintiffs against all the defend- 
 ants, if living ; and in case of the death of one of two joint 
 plaintiffs after judgment rendered, and there is no entry of 
 his death, it should issue in the name 'of both ;^ or if one of the 
 defendants die, it must run against them all, but can only, be 
 executed against the survivor or survivors ; and in cases where 
 the death of one of the defendants is suggested, the execution 
 will be issued against those living.^ When it is against an 
 executor or administrator for a liability of the testator or intes- 
 tate, it must conform to the judgment, and be only against the 
 goods and chattels, or other property of the deceased, unless 
 the defendant has made himself personally liable by his own 
 false pleading, or by waste ; in which case the judgment is 
 de bonis testatoris si, et si non, de bonis propriis, and they?, fa. 
 must conform to it.* If against a married woman, it shall 
 direct the levy_ and amount of the judgment against her, from 
 her separate property, and not otherwise.^ If it be against 
 the property of the judgment debtor, it shall require the officer 
 to satisfy the judgment out of the personal property of such 
 debtor, and if such debtor has not sufficient personal property 
 
 ' Woodbridge v. Wright, 3 Conn. R. 433. McCormick v. Mason, i 
 523. S. & R. 92. McCuUough V. Tidwell, 
 
 * Stewart v. Cunningham, 22 Ala. i Brev. 479. 
 
 626. Holmes v.McIndoe, 20 Wis. 657. * Wright v. Watson, 30 Ga. 648. 
 
 ' Erwin v. Dundas, 4 How. 58. Marsh v. Potter, 30 Barb. 506. 
 
 Johnson v. Adair, 3 Bibb, 334. Moncrief v. Ward, 25 How. Pr. 94. 
 
 ♦ Howe V. Spivey, 44 Ga. 616. Charles v. Lowenstein, 26 How. Pr. 
 Swearingenv. Pendleton, 4 S. & R. 29. Baldwin v. Kimmell, 16 Abb. 
 394. Todd V. Todd's Ex'rs., i S. & "Pr. 353. 
 
44 FORM AND CONTENTS OF [Chap. II. 
 
 out of which to satisfy the judgment, or if it cannot be found, 
 then to satisfy it out of the real estate belonging to said 
 debtor on the day from which said judgment dates, whether 
 of the day of its rendition, the first day of the term at which 
 rendered, according to the time when by law such judgment 
 became a lien on such debtor's property, or at any time there- 
 after. If it be against the real or personal property in the 
 hands of executors, administrators, or other personal represen- 
 tatives, heirs, devisees, legatees, or tenants of real property, or 
 trustees, it shall require the judgment to be satisfied out of 
 such property. If against the person of the judgment debtor, 
 it shall command and require the officer to arrest such debtor, 
 and commit him to the jail of the county, and him safely keep 
 until he pays the judgment, or is discharged according to law. 
 The requirements are the mandatory part of the writ. It 
 must be signed by the clerk or prothonot'ary of the court from 
 whence it issues, and be sealed with the seal of the court. 
 An execution from a court having and using a seal is void in 
 many states,^ but the want of a seal may be supplied on motion 
 to amend ; ^ but if sealed, though not sighed, it is valid. It 
 should be dated on the day of its issue by the clerk or proper 
 officer.^' Every execution has, in judgment of law, relation to 
 the judgment.* In New York, they need not be under seal, 
 nor tested in the name of the chief justice of the court from 
 which they issue, nor signed with the name of the clerk there- 
 of ; but they must be subscribed by the party issuing them, 
 or by his attorney, and be directed to the sheriff of the county 
 to which they are delivered, or to the coroner if the sheriff is 
 an interested 'party.^ If the execution is in favor of an as- 
 signee of the judgment plaintiffs, it must state that, he is 
 assignee, and of whom.® When the judgment is joint, the 
 process to enforce its payment must also be joint. While this 
 may be more technical than substantial, the court out of 
 
 ' Beal V. King, 6 Ohio, 1 1. * Lillington's Case, 7 Coke, 33. • 
 
 • Arnold v. Nye, 23 Mich. 286. ' Crocker on Sheriffs, 175. 
 
 ' Mollison V. Eaton, 16 Minn. ° Pemberton v. Searce, Hardin, 3. 
 426; Brown v. Parker, 15 111. 307. 
 
Chap. II.] AN EXECUTION. 45 
 
 which such process issues will take care that it be not used as 
 a means of injustice, and will protect a surety from an at- 
 tempted disregard of a release to him by a creditor.^ But 
 though all are sued jointly, and a joint execution be issued, 
 yet it may be executed against one only, for each is answer- 
 able for the whole, and not merely for his proportional part, 
 and resort must be had to equity to make the rest contribute.^ 
 
 Where there are several defendants that are not equally 
 liable, the execution should specify the amount to be collected 
 from each.^ 
 
 Where there are statutory provisions for issuing against 
 members of a corporation on a judgment against a corpora- 
 tion, the execution should follow the judgment, with a clause 
 that it be levied on the property of the members,* it being one 
 of the essentials of a valid execution that it conforms to the 
 judgment ; hence an execution against several joint debtors 
 cannot be set aside, as irregular, on the ground that after 
 judgment rendered, and before execution issued, one of such 
 judgment debtors had been declared a bankrupt, and dis- 
 charged. But such debtor is entitled to a stay of execution, 
 so far as his property is concerned.^ 
 
 • If there are personal service and judgment, a general execu- 
 tion must issue, though action was commenced by attach- 
 ment.^ In New Hampshire, upon a decree for alimony, an 
 execution for the amount may be awarded against the property 
 and the body.'^ 
 
 Where an inhabitant of a town who has paid an execution 
 sues for his own indemnity, the execution should issue against 
 all its inhabitants.® An execution directed to the coroner 
 
 ' Pennoyen v. Brace, I Ld. Ray- * Hampson v. Weare, 4 loa. 13. 
 mond, 244. Mortland v. ' Hines, 8 ' Linn v. Hamilton, 34 N. J. L. 
 
 Penn. 265. Clerk v. Clement, 6 T. 305. 
 
 R. 525. Beverly V. Beverly, Rolle, « Cloud v. Smith, i Tex. 611. 
 
 Ab. 888. Gee v. Fane, I Sid. 340. Conn v. Caldwell, 6 111. 531. 
 . ' Herries v. Jameson, 5 T. R. ' Sheafe v. Sheafe, 36 N. H. 135. 
 
 566. Wcoley V. Kelly, i B. & C. Sheafe v. Laughton, 36 N. H. 240. 
 68. ° Spencer v. Brighton, 49 Me. 
 
 ' Martin v. Rice, 16 Tex. 157. 326. 
 
46 FORM AND CONTENTS OF [Chap. II. 
 
 need not contain the reasons why so directed.^ An alias 
 execution should set forth all the previous proceedings that 
 have taken place under the original.^ Costs cannot be put 
 into an execution unless they form part of the judgment* 
 On an execution on a forfeited forthcoming bond, it need not 
 necessarily recite, on the face of the execution, that the bond 
 was forfeited.* The minutes of justice noticing the issue and 
 return of a writ are not evidence of its contents.^ 
 
 § 57. The levari facias is the proper process in equity 
 for collecting charges on land in Pennsylvania ; '° and by stat- 
 ute in Kentucky and Virginia, a capias pro fine is made to 
 operate as an execution against the property of the defendant 
 for the collection of the debt upon which it was issued, and if 
 so used, is to be returned as an ordinary execution.'^ 
 
 Where a justice of the peace enters judgment on the back 
 of a warrant, and writes, " Execute and sell according to law," 
 these will be deemed an execution.^ 
 
 Where the plaintiff recovers in an action, real or mixed, 
 whereby seisin or possession of land is awarded him, the writ 
 of execution is an habere facias seisanam, or writ of seisin, of a 
 freehold, or an habere facias possessionem, or writ of possession, 
 of a chattel interest. These writs are directed to the proper 
 officer, commanding him to give actual possession of the land 
 so recovered. In other actions, where the judgment is that 
 something special be done or rendered by the defendant, then, 
 in order to compel him to do and to see the judgment exe- 
 cuted, a special writ of execution issues to the sheriff, accord- 
 ing to the nature of the action. 
 
 § 58. In actions of replevin the execution to be issued upon 
 a judgment is the same as in ordinary actions, except it sub- 
 stantially requires the officer to deliver possession .of the prop- 
 erty, particularly describing it, to the party entitled thereto, 
 
 ' Bastardy. Trutch, 3A.&E.451. • Hart v. Homiller, 23 Penn. 39. 
 ' Watson V. Halsted, 9 Geo. 275. ' Commonwealth v. Merrigan, 8 
 
 ' Den V. Morse, 7 Halst. 331. Bush. 131. 
 
 * Sheppard v. Melloy, 2 Ala. 561. ' Governor v. Bailey, 3 Hawks. 
 
 * Stimson v. State, 2 Ind. 234. 463. 
 
Chap. II.] AN EXKCUTION. 47 
 
 and may, at the same time, require the officer to satisfy any 
 costs, or damages, or rents, or profits recovered by the same 
 judgment out of the personal property of the party against 
 whom the judgment was rendered, and the value of the prop- 
 erty for which the judgment was recovered to be specified 
 theirein ; if a delivery thereof cannot be had, and if sufficient 
 personal property cannot be found, then to be satisfied out of 
 the real property belonging to him on the day the judgment 
 was rendered, or at any time thereafter, and is in that respec-t 
 deemed an execution against property. 
 
 If the plaintiff recover judgment, and the goods and chattels 
 have not been replevied and delivered to him, the execution 
 commands the sheriff to levy the plaintiff's damages and costs 
 of the goods and chattels, land and tenements, of the defend- 
 ant, as in other executions, and also to replevy the goods and 
 chattels described in the declaration (specifying them), and to 
 deliver them to the plaintiff, if they can be found within his 
 county, and if the same cannot be found, then that he levy the 
 value of such goods and chattels (specifying them), together 
 with the aforesaid damages, and costs, &c., of the defendant, as 
 the same shall have been assessed by the jury on the trial, or 
 upon the writ of inquiry. 
 
 The execution of the defendant must, of course, as in all 
 other cases, pursue the judgment, whether it be for a return 
 of the property, for damages and costs, or for costs only. At 
 common law, when the defendant had judgment, he was en- 
 titled to issue execution by a writ de retorno habendo, to have 
 a return of the things distrained, and fi. fa. or ca. sa. for his 
 costs ; or in England, if he had judgment under the statutes 
 Henry VIII., c. 19, he was entitled to a writ de retorno haben- 
 do, and also to a fi. fa. or ca. sa. for his damages and costs. 
 Our statutes are silent as to the mode of issuing execution. 
 
 As it respects the execution of the writ by the sheriff, it is 
 well settled that he is not bound to execute a writ de retorno 
 'habendo unless some person attend, on behalf of the defendant, 
 to show him the goods ; and it will be a good return to the 
 writ to say that no person did so attend. 
 
48 FORM AND CONTENTS OF [Chap. II, 
 
 ' § 59. At common law, if to the retorno habendo the sheriff 
 returned that the goods, &c., were eloigned (that is, conveyed 
 to a place unknown to him, &c., that he could not execute the 
 writ), the defendant might then sue out a capias in withernam, 
 requiring the sheriff to take other cattle, &c., of the plaintiff to 
 the value of the cattle, &c., eloigned, and deliver them to the 
 defendant, to be kept by him until the plaintiff should deliver 
 to him the cattle, &c., originally replevied. If this writ were 
 returned nihil, the defendant might sue out an alias, and after 
 that dipluries ; and if the pluries were returned nihil, the de- 
 fendant might then sue out a scire facias against the plaintiff's 
 pledges, to show cause why the price of the cattle, &c., eloigned, 
 should not be made of their lands and goods, and rendered to 
 the defendant. If no cause were shown to this scire facias, a 
 writ issued to take the cattle, &c., of the pledges ; but if they 
 had none, and the sheriff returned nihil to the writ, the de- 
 fendant might then have a scire facias against the sheriff him- 
 self, requiring him to show cause why he should not render to 
 the defendant cattle, &c., to the value of those eloigned. 
 
 The writ of withernam is now generally abolished, and the 
 defendant's only remedy is either by alias or pluries, writs de 
 retorno habendo, as in case of other executions, or by the simple 
 and direct remedy on the bond given by the plaintiff on suing 
 out the writ of replevin. 
 
 An execution in form of an execution in action of debt is 
 not an execution in a replevin suit, and, when returned unsat- 
 isfied, is not admissible in evidence to charge the sureties on 
 the bond in the replevin suit ; nor will a motion to amend it 
 be granted in such a case.-^ 
 
 § 60. Every execution should be indorsed by the clerk of 
 the court or the party issuing it. It should state the names 
 of the parties, the amount of the judgment and the costs ; and 
 where the amount named in the execution varies from the in- 
 dorsement, the officer must obey the indorsement.^ In New 
 Jersey the interest due on a judgment is collected by means 
 
 ' Eaton V. Campbell, 2 Mich. N. • GriflSth v. Lyle, 7 Phil. (Pa.) 
 P. 10. 244. 
 
Chap, ll.j AN EXECUTION. 4» 
 
 of the indorsement ; ^ nor do the words alias or pluries in- 
 dorsed on the writ change the character of the execution as 
 an original,^ or the neglect to indorse it render it void.^ 
 
 § 6 1. Where the execution correctly describes the parties, 
 bears the correct number of the case, the law presumes it has 
 been issued upon a judgment rendered in such cause between 
 the parties in question.* 
 
 § 62. The validity of an execution cannot be inquired into ; 
 it is valid until set aside.^ A writ tested in the name of the 
 deputy is good,® and will not be vitiated by being informal, or 
 containing clerical errors, such as a misrecital in tfae date of 
 the rendition of judgment,'^ a variance in the names of the par- 
 ties, as given in the judgment and execution, when, if all the 
 documents are taken together, it is apparent that the parties 
 are the same ; ^ or where it correctly states the judgment, and 
 the clerk makes an error in the computation of costs.® An 
 execution issued against two, in which the name of one is er- 
 roneously stated, is not void as to the one correctly described ; ^^ 
 or an execution omitting to state in whose favor it was, but 
 signed by the plaintiff's attorney, all other parts being cor- 
 rect ; ^^ or one that is intended only for costs, because it fails 
 
 ' Erie R. R. Co. v. Ackerson, 33 Sneed, 418. Spratt v. Reid, 3 G. 
 
 N. J. L. 33. Greene, 489. 
 
 ' Watts V. Smith, 19 Geo. 81. ' Stewart v. Stockton, 13 S. & R. 
 
 Simpson v. Simpson, 64 N. C. 199. Durham v. Heaton, 28 111. 264. 
 
 427. ° Chapin v. Allison, 15 Ohio, 
 
 ' Graves v. Hall, 13 Tex. 379. 566. 
 
 " Durham v. Heaton, 28 111. 264. ' Alexander v. Miller, 18 Tex. 
 
 Phillips V. Coffee, 17 111. 154. Shaf- 893. Mollison v. Eaton, 16 Minn, 
 
 fer V. Bolander, 4 G. Greene, 241. 426. 
 
 Wilson V. Campbell, 33 Ala. 249. ' Hays v. Bernard, 38 111. 297. 
 
 Abels V. Westervelt, 15 Abb. Pr. Holmes v. Mclndoe, 20 Wis. 657. 
 
 230. Hendricks v. Davis, 27 Ga. Lewis v. Avery, 8 Vt. 289. Thorn- 
 
 169. Johnson v. Reese, 28 Ga. 353. ton v. Lane, 11 Geo. 451. 
 
 Coffee V. Silvan, 15 Tex. 354. Peck ' Avery v. Bowman, 40 N. H. 
 
 V. Tiffany, 2 N. Y. 451. Brace v. 453. Perry v. Whipple, 38 Vt. 
 
 Shaw, 1 6 B. Mon. 43. Little v. Sen- 278. 
 
 nett, 7 la. 324. Bradley v. Keese, '° Blake v. Blanchard, 48 Me. 297. 
 
 3 Cold. 223. Eakin v. Burger, i " Morrison v. Austin, 14 Wis. 601. 
 
 7 
 
50 FORM AND CONTENTS OF [Chap. II. 
 
 to give the amount of the debt recovered, when it refers to the 
 judgment with such precision that no one could be mistaken 
 about it ; ^ nor because it commands the oflficer to collect an 
 amount in addition to legal costs. The officer is presumed to 
 know what costs are legally collectible.^ A specia;l execution, 
 properly reciting the decree on which it is issued, the time at, 
 and court by, which it is rendered, names of parties, land to be 
 sold, the amount of the decree, the amount still due thereon, 
 is valid though the amount which the officer is commanded to 
 collect thereon is left blank.^ Neither the teste nor the direc- 
 tion to return is a necessary part of an execution, and errors 
 therein are immaterial to its validity. 
 
 § 63. Irregular Process. — This term is usually applied 
 to all processes not issued in strict conformity with law, 
 whether the defects appear on the face of the process, or by 
 reference to extrinsic facts, and whether such facts render the 
 process absolutely void or voidable.* Unless an execution fol- 
 lows the judgment, it is irregular;^ as where it recites the 
 judgment as of a diflFerent term from that which appears of 
 record,® or where it issues against one where there are two or 
 more parties defendant,' or where it issues for a smaller 
 amount than is due on the judgment ; but the defendant can- 
 not take advantage of it.^ An amendment by a justice, chan- 
 ging the direction of an execution to another town and officer.* 
 Relief must be sought in a court of law to stay proceedings on 
 them.i" A writ irregularly issued is a nullity .^^ Irregularities 
 can only be taken advantage of by the parties to the action.^ 
 
 ' Hunter v. Miller, 36 Mo. 143. ' Faught v. Byrne, Hardin, 330.- 
 
 ' HoUister-v. Giddings, 24 Mich. * Gano v. Slaughter, Hardin, 76. 
 
 SOI- » Atkinson v. Gatcher, 23 Ark. 
 
 " Cooley V. Campbell, 16 la. 10. 101. 
 
 * Cooper V. Harter, 2 Ind. 132. "* Lasselle v. Moore, I Blackfd. 
 
 » Bartlett v. Pentland, 1 B. & A. 226. Greenup v. Brown, I 111. 193. 
 
 704. Cobbold V. Chilver, 4 M. & Robinson v. Chesseldine, S HI. 332. 
 
 G. 62. Phillips V. Birch, 4 M. & G. " Read v. Markle, 3 Johns. 523. 
 
 403. Stuckert v. Ellis, 2 Miles, 433. '^ Allen v. Portland Stage Co., 
 
 King V. Birch, 2 Gale & D. 513. 8 Me. 202-207. Collingsworth v. 
 
 " Rider v. Chipman, i Chip. 274. Horn, J Stew. & P. 237. 
 
Chap. II.] 
 
 AN EXECUTION. 
 
 51 
 
 § 64. Voidable Process. — A slight variance will not viti- 
 ate a writ, though it might be quashed if a motion were made 
 for that purpose.^ The omission of the year in which the 
 judgment was rendered in a justice's execution.^ The mere 
 fact that an execution was issued- for more than is due on the 
 judgment does not, per se, avoid it. Its validity is to be tested 
 by the intent with which it was issued. If that is fraudulent, 
 it is void ; if otherwise, it will be available to the plaintiff to 
 the extent of the amount remaining due on the judgment.^ 
 An execution issued by the executor without a formal substi- 
 tution ; * where there is less than the statutory time between 
 the teste and return,^ or made returnable before the time fixed 
 by statute ; ^ or if issued upon a dormant judgment," or within 
 a period forbidden by law.^ A failure to indorse the proceed- 
 ings under an original execution on an alias writ.^ 
 
 §65. Void Executions. — Where there is a substantial 
 variance from the judgment, it is void ; ^^ or not founded upon 
 
 ' Williams v. Brown, 28 la. 247. 
 Hunt V. Loucks, 38 Cal. 372. New- 
 man v. Willetts, 60 HI. 519. Doe V. 
 Gildart, 5 Miss. 267. Butler v. 
 Haynes, 3 N. H. 21. 
 
 ' Perkins v. Spalding, 2 Mich. 
 
 157- 
 
 » Webber v. Hutchins, 8 M. & 
 W. 319. Harris v. Alcock, 10 G. & 
 J. 226. Chapman v. Alcock, 10 G. 
 & J. 226. Doe V. Gildart, S Miss. 
 267. 
 
 * Day V. Sharp, 4 Whart. 339. 
 
 ' Brown v. Hunt, 31 Ala. 146. 
 
 ' Williams v. Hogeboom, 8 Paige, 
 469. 
 
 ' Brown v. Long, i Ired. Ch. 190. 
 Pierce v. Alsop, 2 Barb. Ch. 184. 
 Ingram v. Belk, 26 Strobh. 207. 
 Mariner v. Coon, 16 Wis. 165. Kel- 
 logg V. GriflSn, 17 John. 274. Ball 
 
 V. Shell, 21 Wend. 222. Blanchenay 
 V. Burt, 4 Q. B. 707. Mitchell v. 
 Evans, 6 Miss. 548. Hoskins v. 
 Helm, 4 Litt. 310. Simmons v. 
 Wood, 6 Yerg. 518. 
 
 ' Carson v. Walker, 16 Mo. 68. 
 Bacon v. Cropsey, 7 N. Y. 295. 
 
 ° Culbertson v. MilhoUin, 22 Ind. 
 362. 
 
 •» Watson V. Fuller, 6 John. 282. 
 French v. Eaton, 15 N. H. 327- 
 Slaughter v. Fisher, 2 J. J. Marsh. 
 137. Dennis v. McLeod, 8 Ired. 
 221. Palmer v. Palmer, 2 Conn. 
 462. Cushman v. Carpenter, 8 
 Cush. 388. Newson v. Newson, 4 
 Ired. 381. Smith v. Knight, 11 Ala. 
 618. Walker v. Knight, 15 B. Mon. 
 476. Beazley v. Dunn, 8 Rich. 345. 
 Cutter V. Wadsworth, 7 Conn. 6. 
 Davis V. Robinson, 10 Cal. 411. 
 
52 FORM AND CONTENTS OF [Chaf. II.' 
 
 a judgment ; ^ if issued upon a void judgment ; ^ an alias reg- 
 ularly issued, which omits the name of one of the defendants ; ^ 
 an execution without a seal, when the statute requires it should 
 be sealed;* a misrecital as to date and amount;^ a mistake 
 in the style of the court ; ® an execution made returnable in 
 fifteen days ; "^ where it does not expressly state the name of 
 the debtor upon whose property a levy is to be made, and 
 there is a blank left for the name ; ^ a writ not directed to any 
 officer competent to execute it, as, "To any constable of 
 
 ";® an execution against one defendant on a judgment 
 
 against two ; ^^ or in action against three and judgment against 
 one, only an execution against the three.^^ An execution on 
 joint judgment against two, if void as to one, is void in toto}^ 
 where a judgment includes interest to date of the judgment 
 only. An execution which directs the collection of interest 
 on the whole amount, is invalid if the judgment says noth- 
 about it ; ^^ an execution directed to the oflficer who is a party 
 to the action.^* An execution issued upon a dormant judg- 
 ment is fraudulent as against a subsequent purchaser in good 
 faith, who buys while the judgment is dormant ; ^^ where it 
 commands, in default of lands and tenements of his intestate, 
 that the levy be made on the individual estate of the admin- 
 istrator.^8 If the execution is altered in any material part, it 
 thereby becomes void ; alteration of process is never permitted 
 
 ' Nabours v. Cocks, 24 Miss. 44. " Clerk v. Clement, 6 T. R. 
 
 ' Albee v. Ward, 8 Mass. 19. 525. 
 
 ' Brem v. Johnson, 70 N. C. " Breidenthal v. McKenna, 14 
 
 566. Penn. 160. 
 
 ■* Ins. Co. V. Halleck, 6 Wall. " Woodcock v. Bennett, i Cow. 
 
 SS6. 711. 
 
 ' Albee v. Ward, 8 Mass. 19. " Hastings v. Johnson, i Nev. 
 
 » Anon., Loft. 184. 613. Collars v. McLeod, 8 Ired. 
 
 ' Harris v. West, 25 Miss. 156. 221. 
 
 Toof V. Bentley, 3 Wend. 276. " Dean v. King, 13 Ired. 25. 
 
 ' Douglass V. Whiting, 28 111. " Ball v. Shell, 4 Wend. 222. 
 
 362. Kellogg V. Griffin, 17 Johns. 274. 
 
 • Hall V. Moore, Addison R. 379. '• Horn^v. Bird, 45 Ga. 610. 
 
Chap. II.] 
 
 AN EXECUTION. 
 
 53 
 
 by any court. If it is wrong, it should be returned, and a new 
 writ issue, or the one issued should be amended.^ 
 
 § 66. Amending Executions. — All clerical and formal 
 defects and errors in final process are amendable, as a matter 
 of course {vitium clerici nocere non debet), by leave of the court 
 out of which such process issues, upon calling' the attention 
 of the court thereto, except in cases hereinafter stated.^ 
 Where process is amendable, it will be considered as done 
 when the objection is taken.^ All courts, by virtue of their 
 power over process issued by them or their officers, may 
 amend an execution by striking therefrom, or adding thereto, 
 the name of a person who is improperly joined as plaintiff or 
 defendant with several others, without impairing its validity 
 as to those parties for or against whom it should have issued ; * 
 or where the Christian or surname of either party has been 
 erroneously written.^ Whenever an execution varies from 
 the judgment on which it issued, it may be amended by the 
 judgment so as to conform to it ;^ and when there is an error 
 
 ' People V. Lamborn, 2 111. 123. 
 White V. Jones, 38 111. 297. 
 
 ° Sheppard v. Melloy, 12 Ala. 
 561. McCall V. Trevor, 4 Blackfd. 
 496. Hutchins v. Doe, 3 Ind. 528. 
 Holmes v. Williams, 3 Gaines, 98. 
 Hutchinson v. Brand, 6 How. P. 
 73. Abels V. Westervelt, 24 How. 
 P. 284. Toomer v. Purkey, i Rep. 
 Con. Ct. 324. Jackson v. Anderson, 
 4 Wend. 474. Blanks v. Rector, 24 
 Ark. 496. Thompson v. Bickford, 
 19 Minn. 17. 
 
 ^ Den V. Lacony, I N. J. L. 1 1 1. 
 Stephens v. White, 2 Wash. 203. 
 
 * Cawthorn v. Knight, 11 Ala. 
 579. Andress v. Roberts, 18 Ala. 
 387. Goodman v. Walker, 38 Ala. 
 142. Morse v. Dewey, 3 N. H. 533. 
 Green v. Cole, 13 Ired. 421. Meyor 
 V. Ring, I H. Black. 541. Deloach 
 V. State Bank, 27 Ala. 437. 
 
 ' Cluggage V. Duncan, i S. & R. 
 HI. Anon., I Chitt. 350. Porter v. 
 Goodman, I Cow. 413. Simon v. 
 Gurney, S Taunt. 605. Voght v. 
 Ticknor, 48 N. H. 242. Bank of 
 Ky. V. Lacy, i Mon. 7. Sickler v. 
 Overton, 3 Penn. 325. 
 
 « Mahone v. Perkinson, 35 Geo. 
 207. Chase v. Gilman, 15 Me. 64. 
 Sheppard v. Melloy, 12 Ala. 561. 
 Robb V. Halsey, 19 Miss. 140. 
 Paine v. Spratley, 5 Kans. 325. 
 Black V. Wistar, 4 Dall. 267. Mc- 
 CuUum V. Hubbert, 13 Ala. 283. 
 Suydam v. McCoon, Col. Cases, 59. 
 Chapman v. Alcock, 10 G. & J. 226. 
 Jackson v. Anderson, 4 Wend. 474. 
 Smith v. Keene, 26 Me. 412. Doe 
 v. Rue, 4 Blackfd. 265. Williams v. 
 Waring, 2 C, M. & R. 354. Bissell 
 V. Kip, s John. 89. McCall v. Tre- 
 vor, 4 Blackfd. 496. Bicknell v. 
 
54 
 
 FORM AND CONTENTS OF 
 
 [Chap. II. 
 
 as to the amount to be collected, it rtiay be amended at any 
 time, even on the return day, or after its return.^ They are 
 not void because of any excess, but merely erroneous as to 
 the amount, which may be amended or quashed only to the 
 amount by which they exceed the judgment, as they are void- 
 able only as to the excess.^ And they may be amended by 
 consent of parties, so as to make them conform to the judg- 
 ments.^ 
 
 § 6^. As TO THE Teste. — This is a clerical error, and, 
 all courts being bound to protect parties from the errors, neg- 
 lect, and mistakes of their officers, is amendable as a matter 
 of course, because it is something for which neither the parties 
 nor their attorneys are responsible. The general mode is, for 
 an attorney or party to . file with the clerk a praecipe for the 
 issue of an execution, and he issues and delivers it to the proper 
 officer to execute.* It is amendable also where tested a year 
 
 Witherell, i Q. B. 918. Oakley v. 
 Becker, 2 Cow. 454. Brown v. Belts, 
 13 Wend. 29. McCormick v. Mel- 
 ton, I A. & E. 331. Jackson v. 
 Walker, 4 Wend. 462. Webber v. 
 Hutchins, 8 M. & W. 319. Harris 
 V. Alcock, 10 G. & J. 226. Spence 
 V. Rutledge, 11 Ala. 557. 
 
 ' Saunders v._ Smith, 3 Geo. 121. 
 Murphy v. Lewis, 1 Hemp. 17. 
 Hunt V. Loucks, 38 Cal. 372. Bruce 
 V. Westervelt, 4 E. D. Smith, 440. 
 Peck V. Tiffany, 2 N. Y. 451. Bis- 
 sell V. Kip, 5 Johns. 89. Phelps v. 
 Ball, I John. 31. Hunt v. Ken- 
 drick, 2 W. Black, 836. Mackie 
 V. Smith, 4 Taunton, 322; Doe v. 
 Rue, 4 Blackfd. 263. Bridewell v. 
 Moody, 25 Ark. 324. 
 
 ^ Stevenson v. Castle, l Chit. 349. 
 Jackson v. Pratt, 10 John. 381. King 
 V. Harrison, 15 East. 615. McCul- 
 lum V. Hubbert, 13 Ala. 282. Mor- 
 rys V. Leake, 8 T. R. 416. Morse 
 V. Dewey, 3 N. H. 533. Peck v. 
 
 Tiflfany, 2 N. Y. 451. Smith v. 
 Keene, 26 Me. 420. Bruce v. Wes- 
 tervelt, 4 E. D. Smith, 440. Hunt 
 V. Loucks, 38 Cal. 372. 
 
 '' McCormick v. Melton, 6 Nev. 
 & M. 881. Oakley a. Becker, 2 
 Cow. 454. Shaw V. Maxwell, 6 T. 
 R. 450. Arnold v. Weatherby, 3 
 Dowl. P. 464. Laroche v. Was- 
 brough, 2 T. R. 737. 
 
 ■* Brown v. Hammond, Barnes, 
 10. Newnham v. Law, 5 T. R. 577. 
 Atkinson v. Newton, 2 B. & P. 336. 
 Meyor v. Ring, i H. Bl. S4i- 
 Simon v. Gurney, 5 Taunt. 605. 
 Rex v. Sheriff, i Marsh. 344. Denn 
 V. Laconey, i Coxe, iii. Engle- 
 hart V. Dunbar, 2 Dowl. P. C. 202. 
 Baker v. Smith, 4 Yeates, 183. 
 Cherry v. Woolard, i Ired. 431. 
 Hammer v. McCormack, 5 Ark. 
 663. Converse v. Damariscotta 
 Bank, 13 Me. 341. People v. 
 Montgomery, 18 Wend. 633. 
 
Chap. II.] 
 
 AN EXECUTION. 
 
 65 
 
 subsequent to its issue ; ^ or in the name of the chief justice ;" 
 or out of term ; ^ or after the plaintiff's death ; * or for the want 
 of the clerk's signature,® or the omission to afSx the seal of 
 the court ; ^ by correcting the place at which it is tested,^ or 
 the name of the court in which it is returnable,^ or the date 
 •of its return.® An execution returnable out of term, or to the 
 wrong term, or on Sunday, is not void, but amendable.^" 
 
 § 68. When it may be amended after Levy, Sale, and 
 Return. — An execution directed to the sheriff, but executed 
 by the coroner, is amendable by striking out the word " sher- 
 iff," and inserting " coroner ; " ^^ may be by inserting the usual 
 words of authority to the sheriff;^ or where the words "lands 
 and tenements " were omitted ; ^^ after a sale on a vendi., all 
 
 ' Jackson v. Bowling, lo Ark. 578. 
 
 ' Ross V. Luther, 4 Cow. 158. 
 Brown V. Aplin, i Cow. 203. Hen- 
 ry V. Henry, i How. P. 167. Spoon- 
 ■ex V. Frost, i How. P. 192. 
 
 ' Denn v. Laconey, i N. J. L. ill. 
 Jones V. Cook, i Cow. 309. People 
 V. Judges, 18 Wend. 675. 
 
 ■* Center v. Billinghurst, i Cow. 
 33. Cleer v. Veer, Cro. Ca. 459. 
 Heapy v. Parris, 6 T. R. 368. Lane 
 V. Beltzhoover, Taney, no. 
 
 ' Whiting V. Beebee, 12 Ark. 42. 
 Cowperthwaite v. Owen, 3 T. R. 
 657. 
 
 ' Sawyer v. Baker, 3 Me. 29. 
 Bridewell v. Moody, 25 Ark. 524. 
 Purcell V. McFarland, i Ired. 34. 
 Clark V. Hellen, I Ired. 421. Ar- 
 nold V. Nye, 23 Mich. 286. Corwith 
 V. State Bank, 18 Wis. 560. 
 
 ' Porter v. Goodman, i Cow. 413. 
 Simon v. Gurney, 5 Taunt. 605. 
 
 ' Anon., I Chitt. 350. 
 
 ° Boyd V. Vanderkamp, i Barb. 
 Ch. 273. Davey v. HoUingsworth, 
 2 Tidd. 1037. Forward v. Marsh, 
 J 8 Ala. 645. Brown v. Hammond, 
 
 Barnes; 10. Newnham v. Law, 5 
 T. R. 577. Berthon v. Keely, 4 
 Yeates, 205. Shoemaker v. Knorr, 
 
 1 Dall. 197. Atkinson v. Newton, 
 
 2 B. & P. 336. Meyor v. Ring, I 
 H. Bl. 541. Simon v. Gurney, 5 
 Taunt. 605. Rex v. SheriflF, I 
 Marsh. 344. Denn v. Laconey, I 
 N. J. L. III. 
 
 '" Cramer v. Van Alstyne, 9 John. 
 386. Van Dusen v. Brower, 6 Cow. 
 JO. Harrison v. Agricultural Bank, 
 10 Miss. 307. Inman v. Griswold, 
 I Cow. 199. Stone v. Martin, 2 
 Denio, 185. Boyd v. Vanderkamp, 
 1 Barb. Ch. 273. Hall v. Ayer, 9 
 Abb. P. 220. 
 
 " Simcoke v. Frederick, i Ind. 
 54. Rollins V. Rich, 27 Me. 557. 
 Morrell v. Cook, 31 Me. 120. Sar- 
 tor V. Mcjunkin, 8 Rich. 451. 
 
 "^ Treasurers v. Bordeaux, 3 Mc- 
 Cord, 142. Hubbell v. Fogartie, i 
 Hill (S. C), 167. Giles v. Pratt, I 
 Hill (S. C), 239. 
 
 '^ Toomer v. Purkey, I Rep. Con. 
 Ct. 323. Jackson v. Anderson, 4 
 Wend. 474. 
 
56 FORM AND CONTENTS OF [Chap. II. 
 
 the proceedings being regular ; ^ by adding a recital of the 
 death of the plaintiff, and the appointment of his administra- 
 tor ; 2 or by affixing the seal of the court, if omitted by the 
 clerk ; ^ an erroneous teste ; * a capias after the defendant's 
 arrest, by adding the teste ; ^ an alias may be by reciting the 
 proceedings on the first, and that part of the amount was col- 
 lected, if omitted.^ 
 
 § 69. When an Amendment should not be allowed. — 
 No amendment should be permitted when it would destroy or 
 lessen the rights of third parties acquired bona fide, and with- 
 out notice by record or otherwise ; ^ or against another execu- 
 tion ; ^ or after defendant's death.^ Nor has a justice power 
 to amend after the return and execution of final process.^" 
 
 ' Owen V. Simpson, 3 Watts, 87. 582. Cape Fear Bank v. Williamson, 
 
 ' Lewis V. Lindley, 28 111. 147. 2 Ired. 417. Purcell v. McFarland,. 
 
 Durham v. Heaton, 28 111. 264. i Ired. 34. Baker v. Davis, 22 N» 
 
 ' Sawyer v. Baker, 3 Me. 29. H. 27. Webber v. Hutchins, 8 M. 
 
 Purcell V. McFarland, i Ired. L. 34. & W. 319. Brooks v. Hodson, & 
 
 * Cherry v. Woolard, i Ired. Law. Scott N. R. 223. Bradley v. Bailey^ 
 438. Baker v. Smith, 4 Yeates, I Scott, 78. Davidson v. Cowan, 1 
 185. Dev. 364. 
 
 ' Mclntire v. Rowan, 3 Johns. ' Brooks v. Hodson, 7 M. & G. 
 
 144- 529. 
 
 * Oviat V. Vyner, i Salk. 318. • Phillips v. Tanner, 6 Bing. 237.. 
 McMichael v. Knapp, 7 Cow. 413. ■ '" Toof v. Bentley, 5 Wend. 276. 
 
 * Williams v. Sharpe, 70 N. C. King v. Breeden, 2 Cold. 455. 
 
Chap. III.] AN EXECUTION. 57 
 
 CHAPTER III. 
 
 THE ISSUE OF AN EXECUTION. 
 
 Upon what Adjudications allowed. — When it may issue. — Who 
 may issue. — To whom it may issue. — Who may cause its 
 Issue. — Where it may issue. — When it cannot issue. — 
 When it cannot issue without Leave of Court; without 
 Revival. — Practice after Death of Plaintiff; of Defend- 
 ant. — Irregular Issue; voidable. — Void Executions. — Ex- 
 ecutions in Attachment Suits. 
 
 § 70. Parum est latam esse sententiam nisi mandetur execu- 
 tioni. It is to little purpose that a judgment is given, unless 
 it be committed to execution. With the exception of some 
 five or six of the states, an execution may issue immediately 
 upon the rendition, entry, or docketing of the judgment ;^ in 
 Maine and Massachusetts, after twenty-four hours ; in Arkan- 
 sas, ten days afterwards ; and on judgments in the Common 
 Pleas Courts in Kentucky ; on the last day of the term, in 
 Colorado ; upon judgments by default, in Wisconsin, when 
 such judgments are rendered in vacation, at the next succeed- 
 ing term after its rendition. It is a general principle of statu- 
 tory law that a creditor shall have a certain time allowed him 
 wherein he may cause execution to be issued upon the judg- 
 ment rendered in his favor, which statutory period varies from 
 a year and a day in some states to ten and fifteen years in 
 others ; after which the law then presumes the judgment to 
 have been satisfied, and it loses its effect, and is termed a dor- 
 
 ' Hastings v. Cunningham, 39 Ind. 50. Erie R. R. v. Ackerson, 
 Cal. 137. Sharp v. Lumley, 34 Cal. 33 N. J. L. 33. 
 611. Carpenter v. Van Scotten, 20 
 8 
 
58 THE ISSUE OF [Chap. III. 
 
 mant judgment, until revived by scire facias or a simpler pro- 
 cess under the code practice, by motion. Judgments, until 
 satisfied, may be enforced by execution in conforming to the 
 statutory provisions of the various states w^herein they are 
 rendered. In many they lose their priority if no execution is 
 issued within a year, and the maxim. Qui prior, Sic, applies, 
 (which will be treated of in its order), whereby the first levy 
 creates priority. At common law the period within which an 
 execution might be issued, without revival of the judgment, 
 was a year and a day. This period has been enlarged in the 
 various states ; in Minnesota, Arkansas, and Indiana, to ten 
 years ;^ as long as there is anything due, in Louisiana ;^ three 
 years on justices' executions, in Missouri ■,^ five years, in Cali- 
 fornia,* New York, Kansas, and Ohio. In Michigan, if a judg- 
 ment is rendered at or so near the close of a term that there 
 is no time for the losing party to move for a new trial or in 
 arrest of judgment at that term, the plaintiff need not wait 
 until the next term before issuing execution.^ Th-e general 
 rule in regard to the issuing of an execution is, that it may 
 issue at any time within the statutory period. If there was an 
 execution issued within that time, the statutory period com- 
 mences to run from the last issue of the execution, that is, 
 where the issue of an execution has the effect of keeping a 
 judgment alive. In some states the rule is, that the statute 
 commences to run from the date of the entry .of judgment,* 
 except where stayed by writ of error, injunction, agreement, 
 and the like ; when it is so stayed, the statute commences 
 from the time of the removal of the bar. The better practice, 
 in order to save all priority of liens, and to keep the judgment 
 in force, except when otherwise provided by statute, is to cause 
 
 ' Davidson v. Gaston, i6 Minn. White v. Clark, 8 Cal. 513. Stout 
 
 230. Plough V. Reeves, 33 Ind. v. Macy, 22 Cal. 647. 
 
 181. Plough V. Williams, 33 Ind. ' People v. Clerk, &c., 14 Mich; 
 
 182. Hanley v. Carneal, 14 Ark. 169. 
 
 524. . « Entrop V. Williams, 11 Minn. 
 
 " Harper v. Terry, 16 La. 216. 381. Bowers v. Crary, 30 Cal. 621. 
 
 ' Carpenter V. King, 42 Mo. 219. Solomon v. Maguire," 29 Cal. 227. 
 
 ■* Bowers v. Crary, 30 Cal. 621. Turner v. Ketler, 38 Mo. 332. 
 
Chap. III.] AN EXECUTION. 59 
 
 an execution to be issued at least once in a year. A justice's 
 judgment, when docketed in an appellate court, has, as a gen- 
 eral rule, the same effect as a judgment rendered in such su- 
 perior court, and the same provisions apply thereto. Before 
 execution can be awarded on a judgment of forfeiture, there 
 must be service, or a return of two nihils, unless the defendant 
 voluntarily appears.^ So, also, on a set. fa., to foreclose a mort- 
 gage, there must be two nihils upon writs returnable at differ- 
 ent terms of the court ; but both may be returned on the same 
 days they are issued.^ The execution of a final decree cannot 
 be- delayed or varied by the affidavits of the defendants, alleging 
 equities as between themselves.® 
 
 § 71. Where a statute requires the issuing of an execution, 
 a legal execution is meant.* Where it issued under the seal 
 of a court, the presumption is, that it was issued by the order 
 of the court.^ Nor will the recovery of a second judgment in 
 an action on the former one prevent the issue of an execution 
 on the previous judgment.^ A writ of prohibition will not 
 issue to restrain an inferior court from issuing execution.' 
 Where there is a conditional judgment, that if a certain sum is 
 not paid by a day certain, then the judgment shall stand for a 
 larger sum, execution may issue for the largest sum named in 
 the judgment, in default of the payment stipulated on the day 
 certain.^ The English rule is, that a party cannot have two 
 concurrent writs at the same time ; ^ but where the first is 
 inoperative, a second may issue before the return of the first.^" 
 While in Pennsylvania and North Carolina, the party may 
 
 \ 
 
 ' Lyttle V. People, 47 111. 422. Early v. Rodgers, 16 How. 599. 
 
 ' Williams v. Ives, 49 111. 512. Shackelford v. Apperson, 8' Gratt. 
 
 ' Proudfit V. Picket, 7 Coldw. 451. 
 
 <Tenn.) 563. ' Miller v. Parnell, 6 Taunt. 371. 
 
 * Dandistic v. Knonenberger, 39 Hodgkinson v. Walley, 2 Tyr. 174. 
 Ind. 45. Andrews v. Saunderson, 60 Eng. L. 
 
 ' Bryant v. Johnson, 24 Me. 304. & Eq. 436. Craig v. Adair, 22 Geo. 
 
 ' Howard v. Sheldon, 11 Paige, 373. Mackey v. Trustees, 3 Lans. 
 
 558. 391. Cumpston v. Field, 3 Wend. 
 
 ' In re Braudlacht, 2 Hill, 367. 382. Cutter v. Colvin, 3 Cow. 90. 
 
 • Alden v. Woods, 24 Penn. 76. '° Priest v. Milnes, 2 Chitt. 114 
 
60 THE ISSUE OF [Chap. III. 
 
 issue at one time, upon one judgment, as many executions as 
 the law affords, and pursue each until satisfaction is obtained 
 on one,^ the plaintiff being responsible for the improper use 
 of them. But in those states where there is only one form or 
 kind of execution, as a fi. fa., the party is not entitled to any 
 other, unless it is in such an action as will support a ca. sa. 
 Two or more executions may be issued to different counties at 
 the same time.^ 
 
 § 72. On what Adjudication allowable. — An absolute 
 decree in favor of a distributee against the administrator, on a 
 partial distribution of the estate, is a final decree, which will 
 support an execution, and it may be revived, if dormant on 
 account of failure to issue execution.^ In divorce cases ; * on 
 a judgment against plaintiff for costs ;^ on judgments by con- 
 fession ; ^ on a verified copy of a judgment, where the original 
 has been destroyed by fire.^ On a judgment rendered against 
 a person non compos mentis, who is under guardianship, an 
 execution may be issued against him.^ On a judgment in 
 favor of the wife against the husband, for alimony, in actions 
 for divorce ; ^ but where it is to be paid in instalments, it can- 
 not issue until after notice to the husband to show cause why 
 it should not.^" On all final judgments, as it is the fruit and 
 end of the law. 
 
 ' Pontius V. Nesbitt, 40 Penn. ' Worthington v. Hollister, i 
 
 309. Davies v. Scott, 2 Miles, 52. Root, loi. 
 
 Robbinett v. Pollard, 2 Miles, 99. • Reynolds v. Lowry, 6 Penn. 
 
 Tams V. Wardle, 5 W. & S. 222. 465. Bank of Chester v. Ratson, 7 
 
 Copmon wealth v. Lelar, 13 Penn. Penn. 482. 
 
 22. McNair v. Ragland, 2 Dev. ' Cheesewright v. Franks, 6 Dowl. 
 
 Ch. 42. P. C. 471. Fleece v. Goodrium, i 
 
 ' Dorland v. Dorland, ; Cow. 417. Duval, 306. 
 
 Hammond v. Mather, 2 Cow. 456. ' Thacher v. Dinsmore, 5 Mass. 
 
 ' Thompson v. Prettyman, 45 299. Ex parte Leighton, 14 Mass. 
 
 Ala. 619. 207. 
 
 ' Bonslough V. Bonslough, 68 ' Orrok v. Orrok, i Mass. 341. 
 
 Penn. 495. '' Howard V. Howard, 15 Howard v. Howard, 15 Mass. 
 
 Mass. 196. Orrok v. Orrok, i 196. 
 
 Mass. 341. French v. French, 4 '° French v. French, 4 Mass. 
 
 Mass. 587. 587. 
 
Chap. III.] AN EXECUTION. 61 
 
 § 73. When an Execution cannot be issued. — An exe- 
 cution cannot issue until after the rendition, entry, or filing 
 of the record of the judgment.^ An entry by the judge, " or- 
 dered judgment," for a sum expressed and costs mentioned, 
 will not be sufficient ; ^ nor the verdict of a jury after the expi- 
 ration of the term ; ^ nor to enforce a judgment or decree that 
 has been annulled or vacated ;* nor out of a court of common 
 law upon a decree in equity ^ (courts of equity have framed 
 writs of their own to carry their decrees into effect) ; nor 
 when there is an agreement for a stay of execution for a speci- 
 fied time without the order of the plaintiff.® A second one 
 cannot issue until the first has been returned or disposed of ;'^ 
 but where property is levied upon by the officer, and left with 
 the defendant, who removes it out of the county, thereby mak- 
 ing the oflficer liable, the court will, on notice to the defendant, 
 permit a new execution to issue for the benefit of the officer, 
 to be levied upon the real estate of the debtor, saving, how- 
 ever, all the rights of subsequent encumbrances, attaching after 
 the removal of the personal property.^ Nor can one execution 
 issue on two judgments ; ^ or where a levy is made on the 
 property of one debtor on a joint judgment against two or 
 more, and an appeal, stay, or replevy bond is given by that 
 debtor, as long as the bond remains in force, it being a satis- 
 
 ' Parker v. Frambes, I Penn. 156. ' Arnold v. Fuller's Heirs, i Ohio 
 
 Gofton V. Champrion, i Penn. 157. 466. Miller v. Parmlee, 6 Taunt. 
 
 Lane v. Pessant, i Penn. 319. Con- 370. Wilson v. Kingston, 2 Chit, 
 
 ner v. Loudon, 2 Penn. 529. Rec- 203. Windrum v. Parker, 2 Leigh, 
 
 tor V. Gale, Hardin, 78. Little v. 361. Turner v. Walker, 3 Gill. & 
 
 Henning, 2 Penn. 552. Maurin v. J. 377. Waters v. Caton, i Har. & 
 
 Herrlck, 5 Wend. 109. Barrie v. McH. 407. Cairns v. Smith, 8 John. 
 
 Dana, 20 Johns. 307. Finch v. 337. Dorland v. Borland, 5 Cow. 
 
 Brooke, 2 B. N. C. 710. 417. Ledyard v. Buckle, 5 Hill, 571. 
 
 " Lincoln v. Cross, 11 Wis. 91. Pardon v. Pardon, 2 Miles, 173. 
 
 ' Truett V. Legg, 32 Md. 147. Scott v. Hill, 2 Murph. 143. Hud- 
 
 * Wright V. Wright, 6 Tex. 29. son v. Dangerfield, 2 La. 66. 
 
 ' In re Stamford, 4 Scott N. * People v. Onondaga, &c., 19 
 
 R. 23. Wend. 79. 
 
 ° State V. Wilkinson, 21 Ind. 216. " Doe v. Rue, 4 Blackfd. 263. 
 
 Pollard V. Pollard, 2 Mod 16. Merchie v. Gaines, 5 B. Mon. 126. 
 
62 THE ISSUE OF [Chap. III. 
 
 faction of the original judgment.^ On a judgment against 
 more, than one, it cannot issue against one only ; it must issue 
 against all, for the execution must conform to the judgment.^ 
 Nor a joint execution on a separate judgment ; ^ nor a several 
 execution against one of several defendants ; * nor against par- 
 ties individually when they sue or are sued officially ; ^ nor 
 after a return of satisfied, though a portion of the costs are 
 not included in the first one.® In foreclosure cases, where 
 there is a personal judgment against the maker of the note, 
 and a sale is had under the decree, none can issue for any 
 deficiency until after the confirmation of the sale,'^ or pending 
 an appeal from a judgment quashing the levy and return of an 
 execution ; ^ on a judgment against four, when one only appeals 
 before a judgment of severance is passed by the appellate court* 
 Where a writ of error determines, in an appellate tribunal, by 
 abatement or discontinuance, the judgment in the court where 
 rendered cannot be executed until there is a remittitur entered, 
 for without a remittitur it cannot appear to the court below ; but 
 that writ of error is still pending, and therefore it is usual for 
 the plaintiff to move the court for leave to enter a remittitur, 
 and issue execution.^" Nor against a dead man's estate.^^ Nor 
 on a return of nulla bona on execution against an administra- 
 tor, upon final settlement, can it issue against his sureties.^ 
 Under the power of eminent domain, a judgment in a proceed- 
 ing for the condemnation of private property for public use, 
 awarding damages, being a special proceeding, no execution 
 can issue on it. The property does not pass till payment.^* 
 
 ' Taylor v. Dundas, i Wash. 94. ' Bryan v. Bridge, 10 Tex. 149. 
 
 ' Clerk V. Clement, 6 T. R. 525. » Cumberland, &c., Co. v. Jeffiies, 
 
 Beverly v. Beverly, Rollo Ab. 888. 27 Md. 526. 
 
 ' Dugat V. Babin, 8 La. N. S.392. "> Bryan v. Bridge, 10 Tex. 149. 
 
 < Boyken v. State, 3 Yerger, 426. Chautauqua Co. Bank v. White, 23 
 
 ' Superintendents v. Smith, 11 N. Y. 347. 
 Wend. 181. " Miller v. Doan, 19 Mo. 650. 
 
 « Poor VI Deaver, i Ired. 381. Doan v. Lisle, 19 Mo. 651. Athfer- 
 
 Crutchfield v. Haynes, 14 Ala. 49. ton v. Fowler, 46 Cal. 323. 
 
 ' Bank of Rochester v. Emerson, " Jenkins v. Gray, 16 Ala. 100. 
 10 Paige, 115. " Cook v. S. P. Commrs., 61 111. 
 
Chap. III.] AN EXECUTION. 63 
 
 Where a purchaser sues and recovers judgment for a certain 
 amount, which he is compelled to pay, no execution should 
 issue against the defendant (his vendor) until the purchaser or 
 plaintiff has paid such amount, which he, by his judgment, has 
 recovered.^ 
 
 § 74. Who entitled to have, and may sue out Execu- 
 tion. — Every person, plaintiff or defendant, in whose favor 
 judgment has been rendered, or who is privy to the judgment, 
 is entitled to have an execution issue for the purpose of obtain- 
 ing the fruits of his judgment, notwithstanding the pendency 
 of an action upon such judgment,^ and until an undertaking 
 for the perfection of an appeal, or a writ of error, or a stay of 
 execution is entered. The right of the creditor to an execu- 
 tion is not suspended, nor can it be withheld.^ An execution 
 issued in the name of the plaintiff, who is dead, is not abso- 
 lutely void, although his representatives have not been substi- 
 tuted by scire facias^ But if an administrator durante minoti 
 atate of an executor recovers in debt, and before execution 
 the executor comes of age, the executor shall have a scire fa- 
 cias, for he is privy to the judgment.^ So if an administrator 
 pendente lite obtains a judgment, the executor, on proving the 
 will, which determines the administration, shall take advantage 
 in the same manner. So if A makes B an executor upon 
 condition that, if A does a certain act, the executorship shall 
 cease, and that C shall be executor, and B recovers judgment, 
 and then does the act, C is the person entitled to the execu- 
 tion.® No person is entitled to, or can sue out execution who 
 is not privy to the judgment, or entitled to the thing recov- 
 ered, as heir, executor, or administrator to him who has judg- 
 ment. 
 
 § 75. Who may cause the Issue of an Execution. — 
 The plaintiff or party in whose favor judgment is or has been 
 
 115. Chicago, &c., R. R. v. Bull, ' Gaylor v. Hunt, 23 Ohio S. 
 
 20 III. 218. 255. 
 
 ' New Orl. v. Terriere, 17 La. 183. * Day v. Sharp, 4 Whart. 339. 
 
 » Gushing v. Arnold, g Met. 23. » Wright's Case, R. Abr. 888. 
 
 Moore v. Towle, 38 Me. 133. " Walwin v. Herbert, RoUe, 889 
 
64 THE ISSUE OF [Chap. III. 
 
 rendered may cause execution to be issued on such judgment 
 when it is a final one, unless he has agreed or consented to a 
 stay of execution, or there is some law or statutory enactment 
 by which the debtor, defendant, or losing party is permitted to 
 give or enter security, which has been done, for the purpose 
 of staying the issue of such execution for the time limited or 
 allowed by such statute. When the time limited by law for 
 the stay of execution has expired, or the time granted by the 
 party in whose favor the judgment is rendered has expired, 
 execution may be issued as a matter of course, subject at all 
 times to the control of the court, and is liable to be set aside 
 or modified as the justice of the case may require.^ Any one 
 of several creditors by a joint judgment may cause execution 
 to issue, without reference to the others, unless there is some 
 agreement to the contrary.^ The general rule is, that no one 
 but the plaintiff or his attorney can sue out execution.^ An 
 assignee may sue out execution in the name of the plaintiff 
 without making himself a party by sci. fa.^ A general or 
 standing order of court, directing the clerk to issue execution 
 for his own benefit, or at the instance of any person entitled 
 thereto, is sufficient without any special order under a statute 
 authorizing him to issue execution on order of court.^ Where 
 a stay expires in a justice's court, he is not bound to issue 
 unless an execution is demanded.^ But after the removal of 
 an administrator, he cannot legally sue out execution in his 
 own name upon a judgment recovered by him as administra- 
 tor7 Nor can an attorney who has a lien on the judgment 
 issue an execution for the amount of such lien.^ 
 
 § "36. Who may issue Execution, and from what Tri- 
 
 ' Commonwealth v. Magee, 8 Phillips, 17 Ind. 108. Osgood v. 
 
 Penn. 240. Irwin v. Shoemaker, Brown, i Free. Ch. 392. 
 
 8 W. & S. 75. Carpenter v. Van- * Cornell v. Doolittle, 2 Greene 
 
 scoten, 20 Ind. 50. Harrison v. la. 385. 
 
 Soles, 6 Penn. 398. " Elliott v. EUery, 1 1 Ohio, 306. 
 
 ' Hawley v. Cramer, 4 Cow. ' Knight v. Vincent, Wright (0.), 
 
 717. 78. 
 
 » Brush V. Lee, 36 N. Y. 49. Mc- ' Salter v. Cain, 7 Ala. 478. 
 
 Donald v. Elynn, 2 Daly, 42. Snell ' Barker v. St. Quintin, 12 M. & 
 
 V. Allen, I Swan, 208. Lewis v. W. 441. 
 
Chap. III.] AN EXECUTION. 65 
 
 BUNAL Executions are to be issued. — Judgments are gen- 
 erally executed in the court in which they are rendered, and 
 by such process as the law allows, in accordance with the 
 established practice of those, courts, except in cases where a 
 transcript of a court of limited jurisdiction is filed in a court 
 of general jurisdiction, by virtue of statutory provisions, for 
 the purpose of obtaining higher security for the satisfaction of 
 such debts. In such cases the execution issues from the 
 court where such transcript is filed, and is the ordinary gen- 
 eral execution of such tribunal, and runs against real estate as 
 well as goods and chattels ; ^ but the mere filing of such tran- 
 script is not sufficient to authorize a clerk of such court to 
 issue.^ Any court competent to pronounce judgment may 
 issue execution.^ Where a case is remitted from the Supreme 
 Court to a District Court, the clerk of the latter may issue an 
 execution for the costs accrued thereon without the order of 
 the District Court ; nor can the District Court prevent the im- 
 mediate execution of the judgment.* Where" an execution has 
 been superseded by a writ of error, an execution may issue on 
 the judgment of affirmance, as it is a subsisting judgment in 
 the court where rendered.^ The same tribunal that hears an 
 appeal must award execution, except the Supreme Court or 
 highest appellate tribunal of the state or United States, which 
 courts act by mandatory process on the inferior courts or 
 courts from which such appeal is taken, commanding such 
 tribunal to enter judgment in accordance with such mandate ; 
 and such inferior court carries the judgment of such appellate 
 tribunal into effect, and awards process on the judgment as if 
 rendered in such court from which the final process issues.® 
 In Missouri the Supreme Court may issue execution to enforce 
 its judgments.^ Whenever an appeal is abandoned, in West 
 
 ' Altman v. Johnson, 2 Mich. N. ' Prettyjohn v. Bloxom, i Houst. 
 
 P. 41. 594. Walter v. Tabor, 21 Mo. 75. 
 
 ' Seaton v. Hamilton, 10 la. 394. Altman v. Johnson, 2 Mich. N. P. 41. 
 
 ' U. S. V. Drennen, Hemp. 320. " Pringle v. Lansdale, 3 McCord, 
 
 * City of Marysville v. Buchanan, 489. 
 
 3 Cal. 213. ' McNair v. Lane, 2 Mo. 57. 
 9 
 
66 THE ISSUE OF [Chap. III. 
 
 Virginia, it is the duty of the clerk of the court to issue an 
 execution upon the judgment as soon as he is apprised of the 
 facts constituting an abandonment.^ The issue of an execu- 
 tion is an abandonment of an appeal or writ of error.^ In the 
 absence of statutory provisions to the contrary, a clerk has no 
 right to issue execution without the direction of the plaintiff 
 or his attorney. This direction is given generally by the filing 
 of a prascipe entitled in the action, directing the clerk or other 
 ministerial officer whose duty it is to issue execution on the 
 judgment rendered in such action. The property in the judg- 
 ment is in the plaintiff therein, and he alone, or those acting 
 for him have the exclusive right to order execution or delay it.* 
 Where a clerk has issued an execution, and the plaintiff adopts 
 and ratifies the action of the clerk, the debtor cannot com- 
 plain.* The issue of an execution being an act purely minis- 
 terial, the power to issue may therefore be delegated.® 
 
 § "jy. To WHOM AN Execution will issue, where it may 
 ISSUE, against wIiom it may issue. — An execution will issue 
 against the defendant in the action, and all parties defendant 
 or rendered liable for the payment of the judgment ; against 
 the husband in favor of the wife, for alimony, in divorce suits.* 
 Where several debtors are condemned in solido to pay the 
 same debt, it may be issued against one without issuing 
 against the others, in Louisiana.'^ A surety may cause it to 
 issue against the property of his principal first,^ or it may issue 
 against the debtor and his surety.^ Where a purchaser at an 
 execution sale refuses to pay his bid after an order made 
 upon him by the court to pay the money, it should issue 
 
 ' Sydenstriker v. Beard, 4 W. Va. •* Nunnemacher v. Ingle, 20 Ind. 
 
 707- I3S- 
 
 ' Knapp V. Brown, 45 N. Y. 207. ' Kyle v. Evans, 3 Ala. 481. 
 
 Bennett v. Van Syckel, 18 N. Y. ° Orrock v. Orrock, I Mass. 341. 
 
 481. Howard v. Howard, 15 Mass. 196. 
 
 ' Lewis V. Phillips, 17 Ind. 108. French v. French, 4 Mass. 587. 
 
 Brush V. Lee, 36 N. Y. 49. Mc- ' Michael v. Benner, 24 La. 287. 
 
 Donald V. Flynn, 2 Daly, 42. Snell Dickson v. Adams, Rolle Abr. 888. 
 
 V. Allen, I Swan; 208. Osgood v. ' Lacy v. Lofton, 26 Ind. 324. 
 
 Brown, i Free. Ch. 392. ' McCoy v. Elder, 2 Blackfd. 283, 
 
Chap. III.] . AN EXECUTION. 67 
 
 against him for the amount, to be made out of his property.^ 
 The execution issues to the sheriff, constable, or coroner in 
 office at the time of its issue, or to his immediate predecessor.^ 
 In cases where the court is satisfied that a sheriff is not a 
 proper person to execute process, it may be issued to a coro- 
 ner or elizor appointed by such court.^ A suggestion of the 
 reason for issuing a writ of execution to the coroner instead 
 of the sheriff need not be made upon the record previously to 
 the issuing of the execution.* Where the execution is against 
 the property of the defendant, it may be issued to the proper 
 officer in the county where the judgment is rendered or dock- 
 eted, and to several counties at the same time ; if against 
 joint defendants, it may issue to any county where one of 
 them resides ; ^ if the defendants have no property in the 
 county where the jud'gment is rendered, to any county in the 
 state where they have property.* Where a county is attached 
 to another for judicial purposes, an execution required to be 
 issued to the sher-ifif of the county where the debtor resides 
 may properly be issued to the sheriff of the principal county 
 to which the county in which the debtor resides is attached.'' 
 Where local courts have jurisdiction to render judgments, 
 they may issue final process beyond the limits of their original 
 jurisdiction to aid in the enforcing of such judgments.' Legis- 
 latures can authorize final process to run all over the state,* 
 and it is mainly statutory enactments that give them this 
 power, in a manner similar to the act of Congress making 
 executions in certain cases run all over the United States. 
 But where the execution is for the delivery of real property, it 
 
 • Atkinson v. Richardson, i8 Wis. Bank of Cape Fear v. StafTord, i 
 244. Jones' L. 98. 
 
 * Lofland v. Jefferson, 4 Harring. • Raub v. Heath, 8 Blackf. 575. 
 303. Crane v. Hardy, I Mich, 56. Sanders v. Norton, 4 Mon. 464. 
 Boaz V. Nail, 2 Met. (Ky.) 245. Chiles v. Hay, 6 Mon. 46. 
 
 ' Penn v. Isherwood, 5 Gill. 206. ' Beebe v. Findley, 16 Minn. 
 Walter v. Dennison, 24 Vt. 551. 518. 
 
 * Barsten v. Gutch, 5 N. & M. » People v. Barr, 22 111. 241. 
 
 109. * Hickman v. O'Neal, lo CaL 
 
 • Cooper V. Harter, i Ind. 427. 292. 
 
68 THE ISSUE OF . [Chap. III. 
 
 must be directed and delivered to the sherifif, coroner, or other 
 proper officer of the county where such property, or a part 
 thereof, is situated. 
 
 § y8. When an Execution may be issued without a 
 Revival of the Judgment.: — Where one execution has been 
 issued and returned unsatisfied, another may issue after the 
 statutory, time from the date of the judgment without revival ; 
 the issue of the execution stops the statute of limitations, and 
 prevents the judgment from becoming dormant? Where it 
 has been stayed by agreement,^ or by injunction ; * in the 
 name of an officer where a state or county is the bene- 
 ficiary, after the expiration of his term of office without a 
 revival in the name of his successor ; * in case of the state or 
 an officer of the state at any time, as no laches can be imputed 
 to the people.^ A receipt for the payment of money, indorsed 
 on an execution, will keep it alive, so that the statute begins 
 to run from the date of payment.^ In Kentucky on a replevin 
 bond (they have a practice there of replevying a judgment, 
 and it is on such a bond, not an ordinary action of replevin) 
 at any time after it is due, differing from executions on judg- 
 ment.^ 
 
 § 79. When an Execution cannot issue wtithout a Re- 
 vival OF the Judgment. — At common law, in real actions, 
 where land was recovered, the demandant, after the year, 
 might take out a scire facias to revive his judgment; but if 
 
 ' Thorp V. Fowler, 5 Cow. 446. v. Mann, 17 Ga. 454. Jewett v. 
 
 Dowsman v. Potter, i Mo. 518. Hoagland, 30 Ala. 716. Jordan v. 
 
 Craig V. Johnson, Hardin, 520. Petty, 5 Fla. 326. Abbey v. Com. 
 
 Reed v. Williams, 3 A. K. Marsh. Bank, &c., 31 Miss. 144. 
 
 531. Dodge V. Casey, i l^iles, 13. ' Hiscocks v. Kemp, 3 A. & E. 
 
 Clemens V. Brown, 9 Mo. 718. Scull 676. Wood v. Bayley, 12 Ired, 83. 
 
 V. Godbolt, 4 Ala. 326. Bank of Porter v. Vaugh, 27 Vt. 211. 
 
 Mississippi v. Cattail, 6 Miss. 175. ' Hutsonpiller v. Stover, 12 Gratt 
 
 Lindell V. Benton, 6 Mo. 381. Lamp- 579. 
 
 sett V. Whitney, 3 111. 441.* Messick * In re Pryor, 9 Ark. 257. 
 
 V. Russell, 3 Harring. 13. Smith » People v. Peck, 5 111, 404. 
 
 V. Spencer, 3 Ired. 256. Bracken " Ector v. Ector, 25 Geo. 274. 
 
 V. Wood, 12 Ark. 605. Kellogg v. ' Simmons v. Shain, 9 Dana, 
 
 Buckler, 17 Ga. 187. Strawbridge 164. 
 
Chap. III.] AN EXECUTION. 69 
 
 there was no record of an execution, a scire facias was issued 
 to show cause why execution should not be issued. In per- 
 sonal actions the presumption was that execution had been 
 issued within the year and the day ; but if it was not, the 
 party had to bring an action on his judgment, and the defend- 
 ant was obliged to show how the debt of which the judgment 
 was evidence was discharged. The time fixed was a year and 
 a day, within which the execution rnight issue. In some of 
 the American states the same statutory period of time has 
 been adopted, while in others the time has been enlarged and 
 extended ; so that there is no uniformity of time as to when 
 it becomes necessary to revive a judgment in order to issue 
 execution. In many states, as shown in the preceding section, 
 the mere issue of an execution prevents the judgment from 
 becoming dormant ; but where no execution has been issued, 
 the law presumes that the judgment has been paid, and a revi- 
 val is therefore necessary to rebut this presumption,- until 
 which time no execution can issue.^ The law will not permit 
 the judgment debtor to be disturbed by execution until the 
 judgment is revived, and is voidable only at the instance of 
 the party against whom it issues,^ and will be quasbed. This 
 is done by scire facias in some states, and by an ordinary 
 motion to revive in others, under the code practice, by which 
 scire facias and other common law proceedings have been 
 abolished. A revival of a judgment is but a continuation of 
 the original action, and continues the validity of the original 
 
 ' Seely v. Norris, 2 Penn. 624. Graves, 26 Cal. 156. Givens v. 
 
 Rutland v. Newnham, 2 Chitt. 384. Campbell, 20 la. 79. Ridge v. 
 
 Heebner v. Chane, 5 Penn. 115. Prather, i Blackfd. 402. Perkins 
 
 Booth V. Williams, 2 Ga. 252. v. Ballifiger, i Haywd. 367. Fletch- 
 
 Reeves v. Burnham, 4 Miss. 25. er v. Mott, i Ark. 399. 
 Scott V. Allen, i Tex. ' 508. Lub- « Oxley v. Mizzle, 3 Murph. 250. 
 
 bock V. Vince, 6 Tex. 29. Bacon v. Azcarati v. Fitzsimmons, 3 Wash. 
 
 Red, 27 Miss. 469. Bird v. Stone, C. C. 134. Simmons v. Wood's 
 
 3 Hill (S. C), 283. North v. Swing, Lessee, 6 Yerg. 518. Ball v. Shell, 
 
 24 Tex. 193. Bamnan v. Rathbone, 4 Wend. 222. Kellogg v. Griffin,' 
 
 3 Grant's Cas. 259. Solomon v. 17 John. 274. Hoskins v. Helm, 4 
 
 Maguire, 29 Cal. 227. Scammon v. Litt. 309. Noe v. Commonwealth, 
 
 Swartout, 35 111. 326. Kerns v. 6 J. J. Marsh. 514. 
 
70 THE ISSUE OF [Chap. 111. 
 
 judgment, with all the incidents of lien or otherwise, as pro- 
 vided by statute ; and an execution issued is an execution 
 issued on the original judgment.^ Where an execution has 
 issued without a revival, and the execution is in force, a revi- 
 val will be presumed.'^ 
 
 § 80. When Executions cannot be issued except on 
 Leave of Court. — Where there are statutory provisions 
 that ' no execution shall issue after a certain time without 
 leave of court, this provision is held to apply to all judgments, 
 whether executions have been issued on them or not.^. Where 
 a stay is agreed upon, and entered of record, it cannot be 
 issued on the judgment before the expiration of such stay, 
 unless by leave of court, for good cause shown ; * or in actions 
 on policies of insurance, where there is a verdict for the plain- 
 tiffs against one of several underwriters, and the others have 
 entered into a consolidation rule, and agreed to be bound by 
 it!^ Gn a decree against a party for a certain sum, and in 
 case of his failure to pay within a time specified in the decree, 
 prior to the expiration of the time specified, the clerk has no 
 authority, without leave of court, to issue an execution against 
 the property of the party.® 
 
 § 81. When an Execution may issue for Costs. — 
 An execution may issue against all the plaintiffs of record 
 when the defendant recovers a judgment for costs.'^ Where a 
 defendant is allowed to escape after judgment, it may .issue for 
 the fine and costs due the state which were unpaid at the 
 time of such escape;^ but if no costs are awarded by the 
 judgment, no execution can issue for costs.® Where a new 
 trial is granted on payment of costs, it does not authorize the 
 
 • Irwin V. Nixon, 1 1 Penn. 419. Towanda Bank v. Ballard, 7 W. & 
 » Gary v. Clark, 3 Ed. Ch. 274. S. 434. 
 
 ' Bolton V. Lansdown, 2i Mo. ' Shackelford v. Apperson, 6 Gratt. 
 
 399. 45 1. 
 
 * Wood V. Bagley, 12 I red. 73. ' Gifford v. Gifford, 27 Penn. 
 ' Graff V. Musser, 3 S. & R. 262. 202. 
 
 Brown v. Scott, I Dall. 145. Merri- * State v. Dodge, 4 Zab. 671. 
 hew V. Taylor, i Brown (Pa.), 67. • Criswell v. Ragsdale, 18 Tex. 
 Ramsey v. Wyncoop, i Yeates, ;. 443. 
 
Chap. III.] AN EXECUTION. 71 
 
 issue of an execution for costs.^ But where a judgment for 
 ■debt and costs is recovered, and the debtor pays the debt, the 
 plaintiff is entitled to, and the clerk will be compelled by man- 
 damus to issue an execution for the plaintiff's costs.^ , Manda- 
 mus is a proper remedy to compel ^n inferior court, or the 
 •clerk of a court, to grant the usual legal process to enforce a 
 judgment.^ 
 
 § 82. Of the Practice in Case of Death of Plaintiff 
 AFTER Judgment. — An execution cannot issue on a judgment 
 after the death of the plaintiff, and if issued in his name, will 
 be quashed on motion.* The practice is, to revive in the name 
 •of the executor or administrator. There is no uniformity in 
 regard to the issue of executions for or against deceased par- 
 ties. In Texas a revival must be had before execution can 
 issue in the name of the administrator, or else an affidavit be 
 "filed, stating the death of the party and notice of the appoint- 
 ment of the administrator.^ Where the plaintiff dies before 
 issue, it may be perfected forthwith by his personal repre- 
 sentatives.^ In Massachusetts, if there are several plaintiffs, 
 and one dies,' it may issue in their joint names.'^ It may be 
 ■enforced in the name of a deceased plaintiff, in Louisiana ; * 
 ■while it cannot be in Maryland.® In Pennsylvania the execu- 
 tor may be substituted in his place, and an execution reciting 
 the fact may issue without a scire facias to renew the judg- 
 ment in favor of the executor. i" Where a vendor of real estate 
 ■obtains a judgment to enforce his lien for the purchase money, 
 and sues out execution, but dies prior to the sale thereunder, 
 
 ' Herndon v. Rice, 21 Tex. 445. gerv. Ford, 14 Barb. 250. Trail v. 
 
 » Reg V. Clerk of Co. Court, 12 Snouffer, 6 Md. 308. 
 
 "E. L. & Eq. 428. » Fowler v. Burdett, 20 Tex. 34. 
 
 ' Terhune v. Barcalow, 6 Halst. ° Thompson v. Ross, 26 Miss. 
 
 38. Laud V. Abrahams, 3 Green 198. 
 
 '(N. J.), 22. Stafford v. Union Bank, ' Hamilton v. Lyman, 9 Mass. 14. 
 
 17 How. 275. People v. Gale, 22 Bowdoin v. Jordan, 9 Mass. i6o. 
 
 Barb. 502. ' Rooks v. Williams, 13 La. 374. 
 
 * Harwood v. Murphy, i Green, ' Trail v. Snouffer, 6 Md. 308. 
 
 193. Hicks V. Moore, i Miss. 193. '" Darlington v. Speakman, 9 W 
 
 Moore V. Bell, 13 Ala. 459. Bellin- & S. 182. '' 
 
72 THE ISSUE OF [Chap. III. 
 
 a special execution may issue, under the Missouri statutes, in 
 the name of his administrator, without a revival of judgment.^ 
 A surviving plaintiff can suggest the death of his co-plaintiff 
 in a proceeding to set aside for irregularity, and a revival 
 cures all defects.^ 
 
 § 83. Of the Effect of the Defendant's Death before 
 AND AFTER THE IssuE OF EXECUTION. — At common law an 
 execution issued after the death of the defendant, against his 
 goods and chattels, was regular if tested in the lifetime of the 
 debtor, although actually issued after his death ; ^ but if an 
 execution issues and bears teste after the death of the defend- 
 ant, it is irregular and void, and cannot be enforced against 
 either the real or personal property of the defendant. The 
 judgment must first be revived against the heirs or devisees- 
 in the one case, or personal representatives in the other. An 
 execution cannot be issued after the death of the defendant,, 
 which will authorize the sale of the real estate which may be 
 bound by the judgment. An execution cannot be sued against 
 heirs or terre-tenants without giving them an opportunity ta 
 be heard.* The judgment must be revived against them. 
 When a new person, who was not a party to a judgment,, 
 derives a benefit by, or becomes chargeable to, the execution,, 
 there must be a scire facias to make him a party to the judg- 
 ment before execution can issue. In some states the statutes 
 provide that execution may be issued at once against the per- 
 sonal representatives.^ Process having been issued for the 
 
 ' Gaston v. White, 46 Mo. 486. Fryer v. Dennis, 3 Ala. 254. Bus- 
 
 ' Newnham v. Law, 5 T. R. ton v. Payton, 2 Mon. 91. Erwin. 
 
 577- V. Dundas, 4 How. 58. McMahoa. 
 
 " Center v. Billinghurst, i Cow. v. Glasscock, j Yerg. 304. Samuel" 
 
 33. Robinson v. Yonge, 3 P. Wil- v. Zachary, 4 Ired. yjy. Stymets v. 
 
 Hams, 398. Nichols v. Chapman, 9 Brooks, 10 Wend. 206. Wagnon v. 
 
 Wend. 432. Day v. Rice, 19 Wend. McCoy, 2 Bibb. 198. Davis v.. 
 
 644. Waghorne v. Langmead, i B. Helm, n Miss. 17. Gwin v. Lati- 
 
 & P. 571. Watson V. Markell, 4 M. mer, 4 Yerg. 22. Bowen v. McCul- 
 
 &S. 461. Erwin V. Dundas, 4 How. lough, 2 Taylor, 251. Hubart v.. 
 
 58. Clere v. Veer, Cro. Car. Williams, i Miss. 175. 
 
 * Penn v. Klyne, Pet. C. C. 446. ' Harteaux v. Eastman, 6 Wis- 
 
 Wilson V. Kirkland, i Miss. 155. 410. Fowler v. Burdett, 20 Tex. 34^ 
 
Chap. III.] AN EXECUTION. 73 
 
 collection of a judgment by a sale of the real property of the 
 judgment debtor, and its execution commenced by an adver- 
 tisement of the property for sale, in pursuance of the statute, 
 the execution of the process is not arrested by the death of 
 the judgment debtor; the officer can complete its execution 
 by a sale. It is to be executed as though he were living.^ 
 But if either plaintiff or defendant dies, or any other change 
 of interest occurs after execution is issued and partly executed, 
 the rule does not apply. The execution creditor cannot be 
 deprived of the benefit of his execution by the death of the 
 debtor before an actual sale of property or the completion of 
 its service. The lien of the judgment dates from, the time of 
 entry and docket, and the execution is the means by which 
 the fruits are secured to the plaintiff. The execution, being 
 regular, and authorizing the sale of the property, is not vitiated 
 or defeated by a change of interest or of parties after its issue. 
 There is no process known to the law by which a party can 
 have judgment for completing the service of an execution 
 against hei-rs or terre-tenants which has been regularly com- 
 menced against the original debtor. A scire facias quare exe- 
 cutionem non issues against representatives, or heirs, or terre- 
 tenants, as occasion requires, when no execution has been 
 issued which can be enforced, and to give the party entitled 
 the benefit of that process, and the fruit of his judgment. By 
 scire facias the person to whom it is addressed has an oppor- 
 tunity to show cause why an execution shall not issue against 
 him or his property, and not to show cause why an execution 
 regularly issued, and partially executed, should not be fully 
 
 ' Dodge V. Mack, 22 111. 93. v. Bond, 4 Wash. C. C. 6. Center 
 
 Hanson v. Barnes, 3 G. & J. 359. v. Billinghurst, i Cow. 33. Wright 
 
 Jones V. Jones, i Bland. 443. Har- v. Walbaum, 39 111. 554. Lessee v. 
 
 wood V. Phillips Orl, Bridg. 469. Long, 2 Ohio, 287. Lessee v. Reed,. 
 
 Fox V. Lamar, 2 Brevard, 417. J Ohio, 221. Burdett v. Chandler,, 
 
 Gregory v. Shadwell, 3 Cold. 390. 22 Tex. 14. Ellis v. Griffith, 16 M. 
 
 Den V. Hillman, 2 Halst. 180. &W. 106. Wolf v. Heath, 7 Blackf. 
 
 Craig V. Fox, 16 Ohio, 563. Clerk 154. Bricker v. Terrell, Litt. S. C. 
 
 V. Withers, Salk. 422. Murray v. 29. Arnold v. Fullers, i Ohio, 458. 
 
 Buchanan, 7 Blackf. 549. Bleeker Becker v. Becker, 47 Barb. 498. 
 10 
 
74 THE ISSUE OF [Chap. IH. 
 
 executed. If there be judgment against A, and thereupon a 
 fi.fa. be sued out, but before execution A dies intestate, there 
 needs no sci.fa. to revive the judgment, but execution of the 
 goods may be made in the hands of the administrator ; for, as 
 the party himself could not have made any defence to the writ 
 of execution, there is no reason that his representatives should 
 be in a better condition.^ 
 
 § 84. The same principle applies to executions against real 
 property, the difference being, that at common law, in the one 
 case, by a fiction, the issuing takes effect by relation, as of the 
 day of the teste of the writ, and in the other it has effect from 
 its actual issue. In Den v. Hillman, 2 Halst. 180, the execu- 
 tion had been sent to the clerk to be sealed in sufficient time 
 for him to have sealed it before the death of the defendant in 
 the judgment ; but whether the seal was affixed before the 
 death was left in doubt. The execution was issued, and real 
 estate sold under it ; and the court below held the sale valid, 
 and that the title of the heirs was divested. Nor can an exec- 
 utor or administrator waive the necessity of a seine facias to 
 revive a suit so as to issue execution against the estate of the 
 deceased.^ Where there are two defendants, one of whom has 
 died, the judgment cannot be enforced by Execution against 
 the real estate of the survivor alone ; and as it has to issue 
 against the real estate of both, the real estate of the deceased 
 is protected by the same law which would govern the case if 
 he were sole defendant. The judgment must be revived by 
 sci.fa. Before and since the statute of Westminster 2d (which 
 subjected lands to an elegit), a judgment against two defend- 
 ants survived against the personal estate of the survivor, and 
 execution could be taken out against him without a scire facias, 
 upon the principle that personal property is bound by execu- 
 tion from its teste.^ But the real estate of the deceased can- 
 
 ' Farrer v. Brooks, i Mod. 188. Bellinger v. Ford, 21 Barb. 311. 
 
 « Gwin V. Latimer, 4 Yerg. 22. Hildreth v. Thompson, i6 Mass. 
 
 ' Davis V. Helm, 11 Miss. 17. 193. Payne v. Payne, 8 B. Mon. 
 
 Thompson v. Bondurant, ij Ala. 392. Martin v. Branch Bank, 15 
 
 346. Day V. Rice, 19 Wend. 644. Ala. 587. Johnson v. Adair, 3 Bibb. 
 
Chap. III.] AN EXECUTION. 75 
 
 not be subjected to execution until the judgment, which does 
 not survive as to the real estate, has been revived against the 
 surviving defendant, and against the heirs, devisees, and terre- 
 tenants of the deceased.^ In Arkansas a judgment cannot be 
 enforced by execution from a state or federal court, but be- 
 comes an established claim, to be classified by the executor, 
 and paid in its rank, under an order from the Probate Court.^ 
 In Alabama it cannot be levied on the goods of the deceased 
 in the hands of the administrator ; ^ nor against the estate of 
 the deceased unless one has previously issued on the same 
 judgment* In Illinois, after notice has been given, as required 
 by statute, to the administrator, of the existence of a judgment 
 against the decedent, the creditor may issue execution and an 
 alias.^ In Texas the general rule is, that all debts against 
 estates can be enforced only by process from courts having 
 probate jurisdiction.® In Kentucky the death of a defendant 
 abates the writ, and no further action can be taken under it ; 
 but it does not discharge the lien of a levy, if there is one. 
 Equity will enforce the lien.'' In Tennessee an execution 
 issued after the death of the defendant, on a judgment ren- 
 dered before his death, binds the goods from the day of its 
 teste.^ In Pennsylvania the personal property of a deceased 
 debtor is discharged from execution, and the lands and tene- 
 ments which were bound by the judgment are still liable to 
 satisfy it ; but an execution cannot issue after death of defend- 
 ant until revived by scire facias against the heirs, notwith- 
 standing the execution is tested before the death.® In New 
 York, if the judgment is rendered after the death of the 
 
 334. Erwin v. Dundas, 4 How. 58. ' Carroll v. Carroll, 20 Tex. 731. 
 
 Wade V. Watt, 41 Miss. 248. Wood- McMiller v. Butler, 20 Tex. 402. 
 
 cock V. Bennett, 1 Cow. 711. How- Chandler v. Burdett, 20 Tex. 42. 
 
 ell V. Eldrige, 21 Wend. 678. Reams ' Holeman v. Holeman, 2 Bush, 
 
 V. McNail, 9 Humph. 542. 514. Wagner v. McCoy, 2 Bibb. 
 
 ' Erwin v. Dundas, 4 How. 58. 198. 
 
 ' Honnor v. Hanks,. 22 Ark. 572. ' Black v. Planters' Bank, 4 
 
 » Blount V. Traylor, 4 Ala. 667. Humph. 367. 
 
 ■* Jones V. Swift, 12 Ala. 144. ' Stiles v. Brock, i Penn. 215. 
 
 * Letcher v. Morrison, 27 111. 209. Cadmus v. Johnson, 52 Penn. 295. 
 
76 THE ISSUE OF [Chap. III. 
 
 debtor, no execution can issue at all, but the judgment must 
 be paid in the course of administration. But if he die after 
 judgment, and before execution is issued, it may be issued 
 any time after one year from his death, and not before, upon 
 leave granted by the surrogate ; but where the judgment is a 
 lien upon real estate, it is not necessary to obtain leave of 
 court before issuing execution.^ Under the provisions of New 
 York statutes in regard to issuing against the real estate of a 
 deceased person, the permission of the surrogate is to be given 
 before the application is made to the court where the judg- 
 ment was rendered. The application can only be made upon 
 notice to the adverse party.^ Under the Alabama statutes, 
 where an execution de bonis testatoris is issued from the Pro- 
 bate Court, and returned " no property," it is improper to issue 
 an execution de bonis propriis? 
 
 § 85. Where an execution is issued after the death of the 
 judgment debtor, without a scire facias, it is voidable, not void, 
 and third parties cannot take advantage of the fact to invali- 
 date the proceedings under it. As to them, unless it has been 
 avoided by the representatives of the debtor, it is perfectly 
 valid.* An execution issued after defendant's death, and be- 
 fore revival, will be quashed on motion ;,^ but whqre there is 
 no suggestion of death in the execution, the survivors cannot 
 take advantage of it.^ An execution issued after the plaintiff's 
 death is good against the world, but if issued after the defend- 
 ant's death, is not good against the heir or terre-tenant.^ The 
 English rule is, that if a debtor dies after the. issue of execu- 
 tion, and before it is served, it may be levied upon the debtor's 
 
 ' Flanagan v. Tinen, 53 Barb. 587. ' Bentley v. Cumming.s, 9 Ark. 
 
 ° Alden v. Clark et al, 11 How. 487. James v. Marcus, 18 Ark. 
 
 N. Y. 209. Bellinger v. Ford, 21 421. Conkrite v. Hart, 10 Tex. 
 
 Barb. 311. Mott's Estate, I Tuck. 140. 
 N. Y. Surrogate, 347. e Johnson v. Lynch, 3 Bibb. 334. 
 
 " Allen V. Rives, 42 Ala. 435. Hamilton v. Lyman, 9 Mass. 14. 
 
 * Harper v. Hill, 3; Miss. 63. Bowdoin v. Jordan, 9 Mass. 160. 
 Hughes V. Wilkinson, 37 Miss. 482. ' Hughes v. Wilkinson, 37 Miss 
 
 Shelton v. Hamilton, 23 Miss. 496. 482. 
 Elliott V. Knott, 14 Md. 121. 
 
Chap. III.] AN EXECUTION. 77 
 
 goods in the hands of his executor or administrator, for, by the 
 award of execution,' the goods are bound, and the officer need 
 not take notice of the death. Hence, if an execution be tested 
 before the defendant's death, though not delivered to the offi- 
 cer, and executed after his death, the execution is regular. 
 The execution is issued for the benefit of strangers, who might 
 have title to the goods betweep the issuing and the delivery, 
 and not for the benefit of the party, his executors or adminis- 
 trators.^ 
 
 § 86; Alias Writs of Execution. — A second or addi- 
 tional writ, which is issued after the return of the first or 
 original, is termed an alias. If the plaintiff causes execution 
 to be issued within the statutory time allowed or given by the 
 laws of the state in which the judgment was rendered, and 
 such execution has been satisfied in part, or so executed as 
 not to produce to the plaintiff the full benefit and fruits of his 
 judgment, he may, after its return to the court from which 
 such writ was issued, have other writs of execution after such 
 statutory time, continuing the first writ down to the last. The 
 second or subsequent executions may be of the same kind as 
 the first, or, if entitled thereto, a different species may issue, as 
 a £■«. Ja. after a_/?._/«.^ Such second or subsequent execution 
 is called an alias, and all other subsequent writs of the same 
 kind are called pluries. The first is called " first pluries," 
 second, " stcond pluries" and so on. Where- the officer, in 
 the execution of final process, fails to make the amount which 
 he is commanded to by the writ, in order to satisfy the judg- 
 ment and costs, &c., the plaintiff may take out a new or alias 
 execution ; but as such new execution must be grounded upon 
 the first writ, the first or original must be returned,^ and must 
 
 ' Waghorne v. Langmead, i B. & John. 337. Dorland v. Dorland, 5 
 
 P. S7I. Bragner V. Langmead, 7 T. Cow. 417. Miller v. Purnell, 6 
 
 R. 20. Taunt. 370. Wilson v. Kingston, 
 
 ' Thorpe v. Fowler, 5 Cow. 446. 2 Chit. 203. Arnold v. Fuller's 
 
 ' Turner v. Walker, 3 Gill & J. Heirs, I Ohio, 466. Windrum v. 
 
 377. Waters v. Caton, i Har. & Parker, 2 Leigh. 361. Ledyard v. 
 
 McH. 407. Cairns v. Smith, 8 Buckle, 5 Hill, 571. Pardon v. 
 
78 THE ISSUE OF [Chap. III. 
 
 recite that all the money was not made upon the first. If the 
 execution be once begun, though it afterwards be withdrawn, 
 the writ must be returned before another can be issued against 
 the property or the person ; or where it is returned unsatisfied 
 for no fault of the officer after a levy ; ^ or where the officer 
 makes a return that is unwarranted.^ It cannot regularly 
 issue without an order of court, in Georgia.^ It should show 
 on its face that other executions have preceded if* After the 
 dissolution of an injunction restraining the execution of the 
 original writ after a levy has been made thereon, an alias 
 should issue ; ^ but it cannot issue during the time the original 
 is restrained by injunction,^ or where a writ has been executed 
 and not returned.'' In Maryland a writ of attachment may 
 issue instead of an alias or second execution.* In Massachu- 
 setts it is discretionary with the court as to whether a debtor 
 shall have notice as to the issue of an alias? Where an 
 execution is returned "satisfied" by mistake, the creditor's 
 remedy is by motion for an alias writ to be issued.^" The 
 proper way is, to move to cancel the entry of satisfaction, 
 and restore the record before issuing. ^^ The clerk cannot 
 issue it without action being taken by the court.-"^ But 
 where application is made for a new writ, on the ground that 
 the former had been returned satisfied by a levy on land 
 which was defective, and by which no title was acquired, it can- 
 Pardon, 2 Miles, 173. Scott V. Hill, » Lockridge v. Bickerstaaf, 2 Du- 
 2 Murph. 143. Corning v. Burdick, val, 281. 
 
 4 McLean, 133. Bouton v. Lord, 10 ' Byre v. Mithoff, 24 La. 297. 
 Ohio S. 454. Brasfield v. Whitta- ' Windrum v. Parker, 2 Leigh, 
 ker, 4 Hawks, 6. Lawes v. Cod- 361. 
 
 dington, i Dowl. P. C. 30. Bishop » Griffith v. Lynch, 21 Md. 575. 
 V. Spruance, 4 Harring. 114. Allen • Chase v. Chase, 105 Mass. 385. 
 V. Johnson, 4 J. J. M. 235. '" Langdon v. Langdon, i Root, 
 
 ' State V. Borden, 15 Ark. 611. 453. McMichael v. Branch Bank, 
 Mace V. Button, 2 Ind. 309. &c., 14 Ala. 496. Dewring v. Du- 
 
 ' Aycock V. Harrison, 63 N. C. rant, 10 Gray, 29. Aycock v. Har- 
 145- rison, 63 N. C. 145. 
 
 • Watson V. Halstead, 9 Ga. " Anderson v. Nicholas, 4 Rob. 
 257. (N. Y.) 630. 
 
 ♦ Scott V. Allen, i Tex. 508. " Harkins v. Clement, i Port. 30. 
 
Chap. III.] AN. EXECUTION. 79 
 
 not be granted without notice to the party, as in regular 
 actions ; if it is, the execution is void.^ An alias issued and 
 tested as of a day prior to the return day of the original is not 
 void, but voidable only for irregularity ; and if necessary to 
 make it regular, the return of an original writ may be amended 
 so as to make it of the same, date.^ Nor can a plaintiff's right 
 to issue an alias within a certain time be affected by any sub- 
 sequent legislation.* The alias reaches back to the original, 
 and protects all rights obtained under the first writ.* 
 
 § 87. Lost Executions, Practice in Case of. — If, 
 after an execution is issued, it is lost or destroyed, the court 
 out of which the execution issued has power to order the issue 
 of an alias execution, or a substituted writ to issue in lieu of 
 such lost execution, with the indorsements and levy made 
 thereon ; and such new execution does not by being so issued 
 become an alias writ, but becomes the original for all purposes, 
 and is an established copy of the lost original.^ 
 
 § 88. Irregular Issuance of Executions. What Exe- 
 cutions are irregular. Cannot be assailed by Stran- 
 gers. — An execution issued before the signing of judgment 
 is one that is irregularly issued.' But it becomes effective 
 after signature.'' Where it is warranted by the judgment, it 
 will not be set aside for irregularity in entering the judgment ;* 
 or, if issued on an informal judgment, may be sustained by 
 amending the judgment,* but is not affected by such irregu- 
 larity .^° An execution issued by a clerk without any authority 
 
 ' Williams v. Cable, 7 Conn. 124. • Peacock v. Day, 3 Dowl. P. C. 
 
 • Raummell v. Watson, 2 Vroom, 291. Engleheart v. Dunbar, 2 Dowl. 
 281. P. C. 202. Roth V. Schloss, 6 Barb. 
 
 ' Dormiriev.Cogly,8Blackfd. 177. 308. 
 
 * Bouton V. Lord, 10 Ohio 8.454. ' Clute v. Clute, 4 Denio, 242. 
 Brasfield v. Whittaker, 4 Hawks, 6. Walters v. Sykes, 22 Wend. 566. 
 
 » Burkle v. Luce, i N. Y. 163. » Watson v. Maskell, 4 M. & S. 
 
 Kellogg V. Buckler, 17 Ga. 187. 461- 
 
 White V. Lovejoy, 3 Johns. 448. ' Graham v. Lynn, 4 B. Mon. 17. 
 
 Corning v. Burdick, 4 McLean, 133. '» Carter v. Spencer, 7 Ired. 14. 
 Ruskin v. Shields, 1 1 Ga. 636. 
 
80 THE ISSUE OF [Chap. III. 
 
 is irregular ; ^ or at the instance of the defendant.^ One issued 
 on the same day, but after the death of the defendant ; ^ or by 
 a justice ten years from the issuance of the last one.* The 
 issue of an alias or a vendi., where no original has been issued.^ 
 On a writ of error coram nobis, issued without leave of court.^ 
 An execution issued and levied while the lien of the first one 
 continues, oris undisposed of;^ the proper process is a vendi- 
 tioni exponas with a fieri facias clause.^ Or where it issues 
 on a judgment where the officer has paid the plaintiff the 
 amount^ But where it issues for the whole amount of a judg- 
 ment, payable in instalments, it is good for the part due.^" 
 
 Where an execution has been issued for too large an amount, 
 the proper practice is to apply to the court to set aside as to 
 the excess ; and if the money has been raised thereon, to 
 notify the officer to pay the money into court, and then move 
 that the excess be restored ; or if the execution has been 
 irregularly issued, to move the court to set it aside. And in 
 such cases, if the money has been actually paid over to the 
 judgment creditor, the court will order the amount improperly 
 received by him to be restored, and, if necessary, will enforce . 
 the order by attachment, but not by writ of restitution.^^ And 
 an irregular execution is as effectual to create or continue a 
 lien as though it was free from irregularity.^ Where a joint 
 judgment against two is opened as to one, it is error to issue 
 against the other until the liability of his co-defendant is de- 
 cided.13 Where an execution issues prior to the expiration of 
 a stay, or on a dormant judgment while irregular, none' but 
 
 ' Shackelford v. Apperson, 6 ' Wolfe v. Wolfe, 4 Ind. 255. 
 
 Gratt. 451. Renick v. Orser, 4 Bosw. 384. 
 
 « Osgood V. Brown, i Free Ch. • Babcock v. McCamant, S3 HI- 
 
 392- 214. 
 
 ' Cluck V. Smith, 8 Dowl. P. C. • Fournier v. Currier, 4 Ala. 321. 
 
 337- • '" State v. Piatt, 5 Harring. 429. 
 
 *■ Brown v.Higginbotham, 19 Ala. " BruereV.Butlon,i Spencer, 268. 
 
 207' " Brown v. Hunt, 31 Ala. 146. 
 
 ' Brand v. Hears, 3 T. R. 388. " Struthersv. Lloyd,i4Penn.2i6. 
 
 Lippincott v. Tanner, i Miles, 287. Downer v. Dana, 22 Vt. 22. Jones 
 
 • Ribout V. Wheeler, Say, 166. v. Spear, 2; Vt. 426. 
 
Chap. .III.] AN EXECUTION. 81 
 
 the parties can take advantage of it.^ The improper issuance 
 of a second execution is no ground for equitable interference ; 
 such irregularities must be corrected by the court issuing the 
 writ.^ Nor can they be raised in collateral actions.* Where a 
 clerk of the court below, by an oversight in issuing an execu- 
 tion in accordance with the mandate of the appellate court, 
 issues execution not only against the proper parties, but also 
 against others who were not proper parties, as to the improper 
 parties the execution may be quashed ; it stands good against 
 the others.* An order for ah execution is not invalidated by 
 the mere fact that one to whom the case had been referred to 
 perform the duties of a master in chancery in assessing dam- 
 ages, &c., was designated as an assessor.^ The authority of 
 an attorney ceases after he has collected the money due on 
 the execution ; if a third person pays it, he cannot assign the 
 judgment to such person. An execution sued on the judg- 
 ment after such an assignment is voidable.^ 
 
 § 89. Void Executions, what are. — An execution issued 
 upon a void judgment.' Or where it is not supported by the 
 judgment ; as where it issues in the name of the guardian, 
 without stating the names of the wards.* Or where a person 
 is sued as administrator for the debt of his intestate, and the. 
 execution issues against him individually.^ An execution 
 issued after the death of the defendant without revival.^" An 
 
 ' Cody V. Quinn, 6 Ired. 191. Coon, 16 Wis. 465. Willard v. 
 
 State V. Morgan, 7 Iredell, 387. Whipple, 40 Vt. 219. Norton v. 
 
 Blanchenay v. Burt, 3 Gale & D. Quimby, 45 Mo. 388. Wilkinson's 
 
 613. Winebrenner V. Johnson, 7 Abb. Appeal, 65 Penn. 189. 
 
 Pr., N. S., 202. Collingsworth v. * Waysman v. Updegraff, McCa- 
 
 Horn, 4 Stew. & P. 237. Kennedy hon Kans. 88. 
 
 V. Holloway, 6 J. J. Marsh, 321. ' Fisk v. Gray, 100 Mass. 191. 
 
 Lowry v. Walker, 4 Vt. 80. Jackson ' Boren v. McGeehee, 6 Port. 432. 
 
 V. Bartlett, 8 Johns. 361. ' Abbe v. Ward, 8 Mass. 79. 
 
 '■Gregory v. Ford, 14 Cal. 143. ' Newson v. Newson, 4 Ired. 381. 
 
 ' Elliott V. Knott, 14 Md. 121. ' Beazley v. Dunn, 8 Rich. 345. 
 
 Harper v. Hill, 35 Miss. 63. Hughes Blanks v. Rector, 24 Ark. 496. 
 
 V. Wilkinson, 37 Miss. 482. Wells '° State v. Michaels, 8 Blackf. 436. 
 
 V. Griffin, 2 Head. 568. Mariner v. Hurst v. Weather, 15 Ala. 417. 
 11 
 
82 THE ISSUE OF [Chap. HI. 
 
 execution in the name of the plaintiff after his death.^ A writ 
 issuing out of a court after it is abolished ; ^ or from a court 
 having no jurisdiction of the subject-matter ; ^ or issued by a 
 justice of the peace as a trial justice, when there is no such 
 officer by law.* Where a statute requires process to be under 
 the seal of a court, and execution issues without such seal.^ 
 Or where a statute requires the officer to issue it after a cer- 
 tain time, if it is issued prior to such time.® An execution 
 issued by a justice of the peace after a stay of six months, when 
 the statute only grants a stay of three months.'^ Or where no 
 execution is issued within the statutory time, but one is issued 
 afterwards, and then a transcript filed in an appellate court, 
 the execution issued on the transcript is a nullity.* An exe- 
 cution issued on the original judgment after a forthcoming 
 bond has been given and forfeited.^ One issued for a fine and 
 costs after a pardon.^" One issued to an officer in his own 
 name, though he assigns all interest in the judgment before 
 the sale.-'^ One issuing for the value alone in an action of 
 detinue.^^ One issuing against a person not a party to the 
 action.^3 One issued against two debtors when there is judg- 
 ment against one only ; i* or against four when the judgment 
 is against five.^^ It is voidable only in Tennessee!^® Where it 
 issues for less than the plaintiiF is entitled to ; ^^ or where the 
 
 Whitehead v. Cummings, 2 Ind. 58. ' Shadbolt v. Bronson, i Mich. 85. 
 Beach v. Dennis, 47 Ala. 262. Col- ' Martin v. Jewell, n Md. 530. 
 lier V. Windham, 27 Ala. 291. Mi- ' Witherspoon v. Spring, :4 Miss, 
 
 chell V. St. Maxen's Lessee, 4 Wall. 60. King v. Terry, 7 Miss. 513. 
 237. Woodcock V. Bennett, i Cow. '» Blanchard v. State, Wright (0.) 
 
 711. Elliott V. Knott, 14 Md. 121. 377. 
 
 Henderson v. Gandy, 11 Ala. 431. " CoUais v. McLeod, 8 Ired. 221. 
 
 ' Stewart v. Nickols, 15 Ala. 225. " Boyd v. Williams, 5 J. J. Marsh, 
 
 Graham v. Chandler, 15 Ala. 242. 56. 
 
 * Lee V. Newkirk, 18 111. 550. '" Terrail v. Tinney, 20 La. 444. 
 
 ' Gelston v. Thompson, 29 Md. '* Fleming v. Dayton, 8 Ired. 453. 
 
 595- Nicolson v. Burke, 15 Ala. 353. 
 
 * Palmer v. Crosby,, 1 1 Gray, 46. " Pennoyer v. Brace, i Ld. Ray- 
 ' Ins. Co. V. Halleck, 6 Wall. 556. mond, 244. 
 
 * Briggs V. Wardwell, 10 Mass. " Lee v. Crossna, 6 Humph. 281. 
 356. Sellick V.Brown, 19 John. 271. " Webber v. Hutchins, i Dowl. N. 
 
Chap. III.] AN EXECUTION. 83 
 
 judgment is against the lands of heirs, and the execution issues 
 against the goods, chattels, lands, and tenements.^ The re- 
 issue of an original as an alias after it has become functus 
 officio ; ^ or reissued after it has been returned nulla bona or 
 executed by a sale.^ An alias issued for a balance due on an 
 execution prior to the return of the original with the officer's 
 return thereon.* The failure of the clerk to comply with a 
 statutory provision which requires him, in issuing a new exe- 
 cution, to refer to a former one, and, in case levies have been 
 made, to recite such levies, and authorize the officer to j levy 
 such new execution upon additional property, &c.^ One issued 
 returnable in thirty days, when it should have been returnable 
 in sixty days.® Where there is an appeal taken to the court 
 as to the taxation of costs : any execution issued before that 
 question is settled is void." 
 
 An execution founded on an award against administrators 
 in their representative capacity, which has been made the judg- 
 ment of the court, must follow the award, and. can only issue 
 against such administrators in their representative character, 
 to be levied of the goods, &c., of their intestate. If execution 
 on such award is issued against the property of the intes- 
 tate, and if none be found, then against the individual property 
 of the administrators, it is a nullity, so far as it seeks to sub- 
 ject the individual property of the administrators to the pay- 
 ment of the debt.^ 
 
 § 90. Renewal of Executions. — In some states execu- 
 tions issued by a justice of the peace may be renewed by such 
 justice at or about the time of its expiration. An indorsement 
 on a writ, " This execution is renewed," is good,® and retains 
 Its lien upon the property levied on by the officer.^" Any memo- 
 
 S. 95. Browns v. Julian, S J. J. ' Maupin v. Evans, 47 Mo. 304. 
 
 Marsh, 312. Walker v. Marshall, * Fifield v. Richardson, 34 Vt. 410. 
 
 7 Ired. I. ' Winslow v. Hathaway, i Pick. 
 
 ' Walker v. Marshall, 7 Ired. I. 211. 
 
 ' Love V. Gates, 2 Ired. 14. ' Home v. Spivey, 44 Ga. 616. 
 
 ' James v. Gurley, 48 N. Y. 163. * Wickham v. Miller, 12 John. 320. 
 
 * Johnson v. Huntington, 13 '• Chapman v. Fuller, 7 Barb. 70 
 Conn. 47. 
 
84 THE ISSUE OF [Chap. III. 
 
 randum indicating tiie intention of the justice of redelivering 
 it to the officer has been held sufficient/ and is evidence that 
 it was in the officer's hands in time to enforce it by levy within 
 its life.^ But there is no renewal in Vermont, nor in Illinois ; ^ 
 but if renewed, is not absolutely void.* It is a statutory pro- 
 vision, and is not allowed unless by express enactment, except 
 in Connecticut.^ 
 
 § 91. Execution in Actions commenced by Attach- 
 ment. — After judgment in the action, the execution, when 
 issued in such action, must be directed to the officer who 
 served the attachment, notwithstanding his term of office 
 may have since that time expired. The execution issuing in 
 such a case should be a special one, directed to the officer 
 serving or making the attachment, reciting the issuing of the 
 attachment, the seizure or taking of the property thereon, and 
 requiring the sale of that property by him. Such former officer 
 is not bound to deliver the property to his successor in office, 
 to be sold on execution directed to the latter, and cannot be 
 made liable for a refusal so to deliver it ; nor can he be placed 
 in default with regard to the attached property until a proper 
 execution has been placed in his hands, directing a sale of the 
 property seized.^ 
 
 If the attached property in such case be insufficient in value 
 and amount to satisfy the judgment rendered in the action, 
 and personal service was obtained upon the defendant, so that 
 the judgment is in personam, a supplementary or alias execu- 
 tion should be issued to the proper officer, directing him to 
 sell the defendant's property generally, or, in other words, an 
 ordinary general execution running against goods and chattels 
 lands and tenements. On a judgment for the plaintiff, and 
 upon execution issued to the officer, it is his duty to first apply 
 on such writ all moneys received by him from any sa:le or 
 
 ' Preston v. Leayitt, 6 Wend. 663. ' Boaz v. Nail, 2 Met. (Ky.) 245. 
 
 ' Wilson V. Gale, 4 Wend. 623. Crane v. Hardy, I Mich. 56. Dodge 
 
 ' State V. Campbell, 2 Tyler, 181. v. Porter, 13 Abb. Pr. 253. McKay 
 
 Calhoun v. Buck, 27 111. 440. v. Harrower, 27 Barb. 463. Amer. 
 
 * Sawyer v. Doane, ^19 Vt. 598. Ex. Bank v. Morris Canal, &c. Co. 
 
 ' Roberts v. Church, 17 Conn. 144. 6 Hill, 362. 
 
Chap. III.] AN EXECUTION. 85 
 
 sales of the attached property, previously made, or from any 
 dabts or credits collected by him, or as much thereof as may 
 be necessary to satisfy such execution ; and if a balance still 
 remains due, the officer must sell all the attached property, 
 real or personal, or so much thereof as may be necessary. But 
 where the judgment is in rem, as against a non-resident or 
 foreign corporation, and the service is made by publication or 
 in other modes provided by statute, and the judicial power of 
 the court attaches only by virtue of the seizure of such prop- 
 erty within its jurisdiction, its judgment being in rem or 
 against the property, and having no force or effect over any 
 property except that seized on the attachment, which is a 
 condition precedent to the adjudication in such causes. No 
 execution can issue after judgment for the sale of any other 
 property than that seized ; the attachment being merely an 
 auxiliary writ by which the plaintiff may hold the property 
 until such time as by order of the court it may be sold, and 
 the proceeds of such sale be applied to the satisfaction of his 
 judgment. Where the defendant in the attachment dies after 
 the issuing of the writ of attachment, and before judgment is 
 rendered, the right of an execution is with the court in which 
 such action is pending ; and the execution should be indorsed 
 with directions to levy only upon the property attached.^ 
 
 § 91 a. The teste of a writ is not conclusive as to the time of 
 issuing. The real time may be shown by parol evidence.^ 
 
 • Thacher v. Bancroft, 15 Abb. 51. Allen v. Smith, 7 Halst. 150, 
 Pr. 243. Harrell v. Martin, 6 Ala. 587. 
 
 • l>rown V. Van Duzer, 10 John, 
 
86 PROPERTY EXEMPT [Chap. IV. 
 
 CHAPTER IV. 
 
 PROPERTY EXEMPT FROM EXECUTION. 
 
 Personal Property. — Homestead. — Exemption ■when allowed. 
 
 — Who entitled to. — Householders., Heads of Families. — 
 Who are ; -who are not. — How claimed. — How waived. — 
 Statutory Enactments relating to the various States. — Per- 
 sonal Property exempt. — Nature and Kind of Goods and 
 Chattels. — Horses. — Cattle., &c. — Farm.ing Implements. — 
 Household Furniture. — Provisions, <&c. — Wearing Apparel. 
 
 — What is and is not exempt. — Homestead Exemption. — 
 How created. — Who entitled to. — How lost. — How retained. 
 
 — Who may and may not claim. — What may and may not be 
 a Homestead. — Homestead Laws of the various States. — 
 
 What Claims are superior to Homestead Claims. — What not. 
 
 § 92. All the property of a defendant or party against 
 whom the execution has been issued is liable to seizure and 
 sale by the officer to whom the writ issues, except such as the 
 common law or the various state laws exempt from forced 
 sale ; that is, a sale made by virtue of a legal process.^ And 
 such property as a party cannot sell himself, cannot on execu- 
 tion be legally sold for his debts.^ The common law was very 
 niggardly of these exemptions ; it allowed only the necessary 
 wearing apparel of the debtor, and if he had two gowns, the 
 officer might seize and sell one. By the wise and beneficial 
 statutory provisions of the American states, laws have been 
 enacted upon grounds of public policy and humanity, intending 
 to relieve and mitigate the consequences of the thoughtless- 
 
 ' Sampson v. Williamson, 6 Tex. Robb v. Beaver, 8 W. & S. in. 
 
 102. Doe V. Prarratt, 5 T. R. 652. Gen- 
 
 " French v. Mehan, 56 Penn. 286. try v. WagstafF, 3 Dev. 270. 
 McCurdy v. Canning, 64 Penn. 39. 
 
Chap. IV.] FROM EXECUTION. 87 
 
 ness and improvidence of mankind, exempting certain ptersonal 
 property of limited value, or of the kind necessary for the sup- 
 port of a family ; and in almost every state, with but few ex- 
 ceptions, a residence or homestead has been by statute reserved 
 from such sales. " The legislatures meant in the passage of 
 these laws to confer this privilege of exemption on each of 
 those little communities called families ; " ^ and they apply only 
 to householders who have families for which they provide. 
 " The exemption laws are designed as a protection to poor and 
 ■destitute families, and the forlorn and destitute condition of 
 the family, in the absence of the husband and father, and gives 
 them a peculiar claim to the benefits of these statutes, so that 
 they may not be stripped of all means of support and cast off 
 as paupers on the community." ^ These statutes, being based 
 on just views of humanity, should have a liberal construction 
 and application to cases of unquestioned indigence.^ This 
 rule of construction is followed in many states, while in others, 
 such laws, being in derogation of the common law exempting 
 the debtor's property from the payment of his debts, are not 
 •extended to objects not expressly therein designated.^ In 
 Pennsylvania the exemption is allowed only on contract debts,* 
 but are allowed in all cases in other states.^ Exemption laws 
 ■do not enlarge the operation of executions, nor obstruct legal 
 remedies.® 
 
 § 93. The right of exemption is an incident of ownership 
 -as long as the owner, who is an inhabitant of the state, chooses 
 to exert it, and if the property is within the control of the court 
 it exists.^ In order to claim and derive the benefit of the 
 
 ' Knettles v. Newcomb, 22 N. Y. ' Crilly v. Sheriffs, 25 La. Ann. 
 
 252. 219. Guillory V. Deville, 21 La. Ann. 
 
 = Webb V. Brandon, 4 Heisk, 285' 686. Ward v. Kuhn, 16 Minn. 159. 
 
 Vogler V. Montgomery, 54 Mo. 577. Olson v. Nelson, 3 Minn. 53. 
 Good V. Fogg, 61 111. 449. Con- * Lane v. Baker, 2 Grant Cas. 424. 
 
 naughton v. Sands, 32 Wis. 387. Commonwealth v. Dougherty, 8 Phil. 
 
 Shaw V. Davis, 55 Barb. 389. Stewart (Pa.) 366. 
 
 V. Brown, 37 N. Y. 350. Gilman v. ' Dellingerv.Tweed, 66N. C.206. 
 Williams, 7 Wis. 329. Bevan v. ° Alkord v. Lent, 23 Mich. 369. 
 Hayden, 13 la. 122. Kuntz v. Kin- '' Howard v. Jones, 13 Am. Law 
 
 ,ney, 33 Wis. 510. Reg. (N. S.) 457- 
 
88 PROPERTY EXEMPT [Chap. IV. 
 
 statute, the debtor must bring himself and his property within 
 its provisions, and prove the facts' afifirmatively.-^ Being a 
 statutory privilege of which the debtor alone can avail himself, 
 he may, if he chooses, waive it, and allow a levy and sale of 
 his exempt property.^ But the assent of the wife to a levy, in 
 the absence of her husband, is not binding upon him.^ Nor is 
 the execution of a delivery bond a waiver of the illegality* 
 Nor does a waiver in favor of a junior judgment creditor give 
 him a preference over other creditors in whose favor there is 
 no waiver,^ unless the waiver is in the instrument creating the 
 contract obligation.® Nor is exempt property rendered subject 
 to levy and sale by general creditors in consequence of being 
 mortgaged ; ^ and to property mortgaged before the passage 
 of the exemption law it does not apply ; ^ or where the value 
 of the property of a single article exceeds the amount allowed 
 by statute.^ In such cases the property is sold by the officer, 
 and out of the proceeds the debtor receives the amount of 
 money equal to the allowance of the exemption.^" Nor is the 
 
 ' Calhoun v. Knight, lo Cal. 393. * Perry v. Hensley, 14 B. Mon. 
 
 Briggs V. McCulIough, 36 Cal. 542. 474. Eltzroth v. Webster, 15 Ind. 
 
 Griffin v. Sutherland, 14 Barb. 456. 21. Atkinson v. Catcher, 23 Ark, 
 
 Davenport v. Alston, 14 Ga. 271. lol. 
 
 Lines's Appeal, 2 Grant Cas. 197. ' Shelly's Appeal, 36 Penn. 373, 
 
 Danis v. Prosser, 32 Barb. 290. Laucks's Appeal, 44 Penn. 395. Gar- 
 
 Tuttle V. Buck, 41 Barb. 417. Hill rett's Appeal, 32 Penn. 160. 
 
 V. Johnson, 29 Penn. 362. Corp v. " Thomas's Appeal, 69 Penn. I20> 
 
 Griswold, 27 la. 379. Swan v. Ste- " CoUett v. Jones, 2 B. Mon. 19. 
 
 phens, 97 Mass. 7. Vaugh v. Thompson, 17 111. 78, 
 
 ' Bowman v. Smiley, 31 Penn. 225. Johnson v. Hill, 29 Penn. 362. 
 
 Lines's Appeal, 2 Grant's Cas. 197. ' Lavillbeure v. Frederick, 20 La. 
 
 Smiley v. Bowman, 3 Grant's Cas. 374. 
 
 132. Beegle v.Wentz, 55 Penn. 359. 'Waldo v. Gray, 14 111. 184. 
 
 Chamberlain v. Lyell, 3 Mich. 448. ' Hughes v. Farrar, 45 Me. 72. 
 
 Laucks's Appeal, 24 Penn. 426. Case '° Welsh v. Horie, 36 111. 238. 
 
 V. Dunmore, 23 Penn. 93. State v. Morgan v. Stearns, 44 Vt. 398. Mc- 
 
 Melogue, 9 Ind. 196. Mickles v. Donald v. Vandal, 43 111. 297. Dear- 
 
 Tousley, i Cow. 114. Earl v. Camp, ing v. Thomas, 25 Ga. 233. Fogg 
 
 16 Wend. 562. Smith v. Hill, 6 v. Fogg, 40 N. H. 282. Pittsfield v. 
 
 Barb. 656. Hawks, 4 Allen, 347. Bennet v. 
 
 ' Woodward v. Murray, 18 John, Child, 10 Wis. 362. Maxey v. Loyal, 
 
 400. 38 Ga. 531. 
 
Chap. IV.] FROM EXECUTION. 89 
 
 exemption lost by the temporary absence of the debtor.^ A 
 voluntary surrender of exempt property, and without claiming 
 it as such, estops the debtor from claiming it afterwards.^ 
 
 § 94. As the right of exemption is for the sole purpose pf 
 protecting families from want and misfortune, and as a guard 
 against their being impoverished by stripping them of the 
 necessaries of life and the means of support, the privileges 
 and benefits conferred by the statutes to the unfortunate 
 debtors are, as a matter of necessity to their creditors, con- 
 fined and extended only to such classes as have families de- 
 pendent upon them for support, and are mentioned as heads 
 of families or householders. Prima facie all of a debtor's 
 property is liable to seizure and sale on execution, unless spe- 
 cifically exempted therefrom by statute or some rule of the 
 common law. Therefore where a debtor desires to obtain the 
 privileges thus accorded, and claim the benefit of these salu- 
 tary enactments, it is necessary that he brings himself and 
 property within some statute by proper proof, showing that he 
 is a resident or inhabitant of the state wherein he claims the 
 exemption ; ^ that he is a householder or head of a family, that 
 is, having a family dependent upon him for support.* While in 
 Texas all inhabitants, married or single,^ and in Pennsylvania 
 bachelors, are entitled to it.® But there is no exemption in 
 actions ex delictu in Pennsylvania.'^' A " family," in the ex- 
 emption laws, is a man and wife who live together, although 
 they have no children,* and includes such persons as constitute 
 
 ' Carrington v. Herrin, 4 Bush. Pollard v. Thomasson, 5 Humph. 56. 
 
 424. Whicher v. Long, 11 la. 48. Wolfenberger v. Standifer, 3 Sneed, 
 
 Norman v. Balliman, 16 Ind. 156. 659. Gun v. Gudehus, 15 B. Mon. 
 
 ' Richards v. Haines, 30 la. 574- 447- 
 
 ' McKenzie v. Murphy, 24 Ark. ' Cobbs v. Coleman, 14 Tex. 594. 
 
 155. ' Dieffenbarger v. Fisher, 5 
 
 * Sears v. Hanks, 14 Ohio S. 298. Grant's Cas. 830. 
 
 McKenzie v. Murphy, 24 Ark. 155. ' Kenyon v. Gould, 61 Penn. 292, 
 
 Boykin v. Edwards, 21 Ala. 261. ' Kain v. Fisher, 6 N. Y. 597. 
 
 Abercrombiev. Alderson, 9Ala. 981. Cox v. Stafford, 14 How. Pr. 519. 
 
 Succession of Norton, 18 La. Ann. Sallee v. Walker, 17 Ala. 482. 
 36. Bonnell v. Dunn 4 Dutch. 153. 
 12 
 
90 PROPERTY EXEMPT [Chap. IV. 
 
 the domestic circle, and the servants and children, but not 
 mere boarders ; ^ nor operatives hired by a debtor to cultivate 
 his farm.^ " The relation of parent and child, or husbarid and 
 wife, with its consequent conditions of dependence, is sufficient 
 to constitute a family, though the members of it may not live 
 together or under the same roof."^ A man who controls, 
 supervises, and manages affairs about the house, is the head 
 of a family, and he need not necessarily be a husband or a 
 father.* A father who has children for whom he provides, who 
 are temporarily absent at school,^ though his wife may be dead 
 at the time.^ A widower without children, whose widowed 
 mother keeps house for him,^ or if he has children who are 
 married and away, and he has rented his house, but boards in 
 it;^ or if he has a minor child residing with him dependent 
 upon him for support.^ A widow, the mother of several children, 
 residing with her father, living in the same house, eating at 
 the same table, and cultiYating portions of his land with her 
 children.^" A widow after the death of her husband.^^ A mar- 
 ried woman, if she continues to support the family,^ notwith- 
 standing she keeps a house of ill fame as a means of r)btaining 
 a livelihood.^* Although, in general, it is the husband, father, 
 or mother who is the head of a family, but where a son of full 
 age assumes the obligation of providing for a widowed mother 
 and her children who are dependent upon him, he is in legal 
 contemplation the head of the family.^* A " housekeeper," in 
 
 ' Strawn v. Strawn, 53 111. 263. '" Bachman v. Crawford, 3 Humph. 
 
 " McMurrayv. Shuck, 6 Bush. III. 213. 
 
 ^ Sallee v. Walker, 17 Ala. 482. " Floyd v. Mosier, i la. 512. 
 
 * Wade V. Jones, 40 Mo. 75. " Brigham v. Bush 33 Barb. 596. 
 
 * Robinson's Case, 3 Abb. Pr. 466. "Bowman v. Quackenbcss, 3 
 Sexton V. Marshall, 6 Bush. 429. Code's Rep. 17. 
 
 ' Sears v. Hanks, 14 Ohio S. 298. " Connaughton v. Sands, 32 Wis. 
 
 Griffin v. Sutherland, 14 Barb. 456. 387. Bowne v. Witt, 19 Wend. 47J. 
 
 Cox V. Staiford, 14 How. Pr. 519. McMurray v. Shuck, 6 Bush. iii. 
 
 ' Parsons v. Livingston, ii la. Seaton v. Marshall, 6 Bush. 429. 
 
 *o4- Crane v. Waggoner, 33 Ind. 83. 
 
 ' Myers v. Ford, 22 Wis. 139. Graham v. Crockett, 18 Ind. 119. 
 
 * Barney v. Leeds, 51 N. H. 253. Marsh v. Lazenby, 41 Ga. 153. 
 
Chap. IV.] FROM EXECUTION. 91 
 
 the exemption laws, is one providing for a household ; ' or one 
 who rents a house and keeps boarders, although at the time 
 he has neither wife nor children to provide for.^^ But a bache- 
 lor living with his brothers and sisters, he furnishing all the 
 means, or one with no family except hired servants, is not the 
 head of a family.^ A wife having no children of her own is 
 not the head of the family of her former husband.* A widow, 
 with no children dependent on her for support.^ An adult male 
 residing with his step-mother, and transacting her business.^ 
 
 § 95. Every person, solvent or insolvent, in the absence of 
 statutory regulations, is entitled to the benefit of the exemption 
 law, provided he possesses the property.^ And it applies to 
 families, whether they are stationary or moving from place to 
 place.* Or if the husband has absconded, his family are never- 
 theless entitled to the benefit of the exemption act.® Nor is it 
 lost by temporary absence ; ^^ nor by temporarily ceasing house- 
 keeping, with a view of returning to and renewing housekeep- 
 ing again." It cannot be claimed by any one but the debtor.^* 
 In the absence of the owner, the person in charge, the debtor's 
 wife or attorney, is competent to claim the benefit.^^ Or a wife 
 may claim it as the head of the family when divorced, she being 
 the meritorious party having the custody of the children.^* And 
 where a wife has property of her own, and her husband has 
 
 ' Bowne v. Witt, 19 Wend. 475. * Davis v. Allen, 11 Ala. 164. 
 
 Woodward v. Murray, 18 John. 400. Mark v. Bowless, 15 Ind. 98. 
 
 Griffin v. Sutherland, 14 Barb. 456. ' Bonnel v. Dunn, 5 Dutch. 485. 
 
 Van Vechten v. Hull, 14 How. Pr. '" Norman v. Bellman, 16 Ind. 
 
 436. 156. Whicher v. Long, 11 la. 48. 
 
 ^ ' Hutchinson v. Chamberlain, 11 Carrington v. Herrin, 4 Bush. 424. 
 
 N. Y. Leg. Obs. 248. Crawford v. " Griffin v. Sutherland, 14 Barb. 
 
 Lockwood, 9 How. Pr. 547. Van 456. 
 
 Vechten v. Hull, 14 How. Pr. 436. '" Hersfeldt v. George, 6 Midi. 
 
 ^ Whaten v. Cadmun, 11 la. 226. 456. Twinam v. Swart, 4 Lans. 263. 
 
 Calhoun v. McLendon, 42 Ga. 405. Wygant v. Smith, 2 Lans. 685. 
 
 * Lathrop v. Soldier, &c. Ass. 45 " McContley's Appeal, 68 Penn. 
 Ga. 483. 217. Meitzler's Appeal, 73 Penn. 
 
 ' Kidd V. Lester, 46 Ga. 231. 368. Wilson v. McElroj', 32 Penn. 
 
 • Bowne V.Witt, 19 Wend. 475. 82. Waugh v. Bennett, 3 Grant'a 
 ' Mosely v. Anderson, 40 Miss. Cas. 319. 
 
 49. " Bonnell v. Smith, 53 111. 375. 
 
92 PROPERTY EXEMPT [Chap. IV. 
 
 not, the amount limited by statute.^ But they both cannot at the 
 same time hold the exemption provided by statute.^ A terre- 
 tenant is not a debtor, nor defendant, within the meaning of 
 the exemption law, and is not entitled to an exemption.^ The 
 Pennsylvania practice is for the debtor, defendant, or owner 
 to claim the exemption allowed by statute before sale, and, 
 unless for good cause shown, before appraisement and adver- 
 tisement of sale, or he will be deemed to have waived it ;* and 
 is too late to receive its benefits if claimed on the day of sale.* 
 Tfie sickness of the debtor's family, and his absence at the 
 time of levy, are sufficient causes for not claiming it.^ A 
 claim to hold all the property is good, without designating 
 every particular article.'^ 
 
 § 96.' Where the debtor is to assert his claim to' the exemp- 
 tion, a levy may be made on exempt property, unless he asserts 
 his privilege.^ He may assert his privilege at any time before 
 sale.^ Such levy has no more effect to change title than if it 
 were the property of a, stranger to the action ; and an officer 
 who wrongfully takes such property as against the debtor can- 
 not justify the taking by virtue of the process.-^" The mere 
 
 i 
 
 ' Crane v. Waggoner, 33 Ind. 83. v. Hoeben, 39 Penn. 213. Strouse 
 
 ' Dwinnell v. Edwards, 23 Ohio, v. Becker, 44 Penn. 206. 
 
 603. ' Bell V. Davis, 12 Ala. 160. Die- 
 
 ^ Everhart's Appeal, 39 Penn. 509. fenderfer v. Fisher, 3 Grant's Cas. 
 
 * Twinam v. Swart, 4 Lans. 263. 30. Livermore v. Boutelle, 11 Gray, 
 
 Weaver's Appeal, 18 Penn. 307. 217. 
 
 Hammer v. Freese, 19 Penn. 255. « Haswell v. Parsons, 15 Cal. 266. 
 
 Bowyer's Appeal, 21 Penn. 210. ' Mark v. State, i; Ind. 98. 
 
 Brant's Appeal, 20 Penn.141. Rogers ' Gresham v. Walker, 10 Ala. 370. 
 
 V. Waterman, 25 Penn. 182. Dob- Hanson v. Edwards, 10 Ired. 42. 
 
 son's Appeal, 25 Penn. 232. Hill v. Frost v. Shaw, 3 Ohio S. 270. Twi- 
 
 Johnson, 29 Penn. 362. Miller's nam v. Swart, 4 Lans. 263. 
 
 Appeal, 16 Penn. 300. Yost v. ° Jordan v. Aurey, 10 Ala. 276. 
 
 HefTner, 69 Penn. 68. Hammer v. Pate v. Swan, 7 Blackfd. 500. Mc- 
 
 Freese, 5 Pa. L. J. R. 153. Bain Clusky v. McNeeley, 8 111. 578. 
 
 V. Steinman, 52 Penn. 423. Shaw's '» Williams v. Miller, 16 Conn. 
 
 Appeal, 49 Penn. 177. Pittman's 144. Pinkerton v. Tumlin, 22 Ga. 
 
 Appeal, 48 Penn. 313. Common- 165. Wiggins v. Chance, 54 111. 175. 
 
 wealth V. Boyd, 56 Penn. 402. Diehl Frost v. Mott, 34 N. Y. 257. 
 
Chap. IV.] FROM EXECUTION. 93 
 
 silence of the party, while an officer is stripping him, under color 
 of legal authority, of property exempt from seizure, furnishes 
 no protection to the wrong-doer.^ Nor can exempt property be 
 taken in Texas, even if pointed out by the head of a family .^ 
 A state stands on the same footing as other creditors.^ A 
 sale of exempt property, being against the policy of the law, 
 passes no title to the purchaser.* The exception to this gen- 
 eral rule is where the debtor falsely denies the ownership of 
 his property,^ or, by a conveyance and transfer in fraud of 
 creditors.^ But not in Alabama.'^ An assignment of all a 
 debtor's property for the benefit of creditors divests him of the 
 personal right to claim what is exempt from execution, and 
 does not vest the right in the assignee.* Or lyhere it is 
 levied on in attachment, after judgment and order of sale, it is 
 too late to claim the exemption, on the principle of waiver.' 
 But not in other states, where it is shown it was exempt at 
 the time of seizure.^" All federal courts respect the state 
 exemption laws, and are governed by them,^^ in regard to the 
 seizure and sale of property on execution.^ 
 
 > Frost V. Mott, 34 N. Y. 257. Mosely v. Anderson, 40 Miss. 49. 
 
 » Ross V. Lister, 14 Tex. 469. Mandlove v. Burton, i Ind. 39. Pi- 
 
 ' State V. Pitts, 51 Mo. 183. Glad- per v. Joiinson, 12 Minn. 60. 
 
 ney V. Deavers, 11 Ga. 79. ' Callaway v. Carpenter, 10 Ala. 
 
 * Pinkerton v. Tumlin, 22 Ga. 500. 
 
 165. Beecher v. Baldy, 7 Mich. 488. ' Moses v. Thomas, 2 Dutch. 124. 
 
 Paxton V. Freeman, 6 J. J. Marsh. Van Waggoner v. Moses, 2 Dutch 
 
 234. Parkerson v. Wightman, 4 570. 
 
 Strobh. 363. Wiggins v. Chance, 54 * State v. Manly, 15 Ind. 8. Per- 
 il!. 175. Johnson v. Babcock, 8 kins v. Bragg, 29 Ind. 507. Slaugh- 
 Allen, 583. Kendall v. Clark, 10 ter v. Detiney, i; Ind. 49. 
 Cal. 17. Vogler v. Montgomery, 54 '" Greaton v. Pike, 34 Me. 233. 
 Mo. 577. Ackley v. Chamberlain, " Gilman v. Williams, 7 Wis. 329. 
 16 Cal. 181. H^mblin v. Worneke, In re Stevens, 3 Biss. 373. 
 31 Tex. 681. " Bank of U. S. v. Halsted, 10 
 
 ' Strouse v. Becke, 38 Penn. 190. Wheat. 62. Ward v. Chamberlain, 
 
 Diefenderfer v. Fisher, 3 Grant's 2 Black, 430. Messingill v. Downs, 
 
 Cas. 30. 7 How. 760. Williams v. Benedict, 
 
 " Byrd v. Catlin, I Humph. 466. 8 How. 107. Bayard v. Lombard, 9 
 
 Cassell V. Williams, 12 111. 387. How. 551. McGill v. Armour, 11 
 
 Emerson v. Smith, 51 Penn. 9b. How. 142. Bank of Tenn. v. Horn, 
 
04 PROPERTY EXEMPT [Chap. IV. 
 
 § 97. The amount, kind, and value of personal property 
 which is exempt from levy and sale upon execution for the 
 payment of debts, varies in the different states, and is a mat- 
 ter of statutory regulation. What is exempt in each state 
 will be learned from the abstract of the laws here given. 
 
 Alabama. — The personal property of any resident of this 
 state, to the value of one thousand dollars, to be selected by 
 such resident, shall be exempted from sale on execution, or 
 other final process of any court issued for the collection of 
 any debt contracted since the adoption of the present consti- 
 tution (1868). 
 
 California. — Chairs, tables, desks, and books to the value 
 of two hundred dollars ; necessary household, table, and kitchen 
 furniture, including one sewing machine and one piano in actual 
 use in a family or belonging to a woman ; stoves, stove-pipe, and 
 stove furniture, wearing apparel, beds, bedding, and bedsteads, 
 and provisions sufficient for one month ; tools of a mechanic 
 or artisan necessary to his trade ; notarial seal and records of 
 a notary ; instruments and chest of a surgeon, physician, sur- 
 veyor, dentist, necessary to their profession, with their scientific 
 and professional libraries ; the law and professional libraries 
 and office furniture of attorneys and judges, and libraries of 
 ministers of the gospel ; the cabin or dwelling of a miner not 
 exceeding five hundred dollars in value ; also his sluices, pipes, 
 hose, windlass, derrick, cars, pumps, tools, irnplements and appli- 
 ances necessary for mining operations, not exceeding five hun- 
 dred dollars in value ; and two horses, oxen, or mules and har- 
 ness, and food of horses, &c., for one month, when necessary to 
 be used in any rhim windlass, derrick, car, pump, or hoisting gear ; 
 two horses, oxen, or mules with harness, and hack, carriage, cart, 
 &c., by which a cartman, drayman, peddler, teamster, &c., earns 
 his living, and the horse, vehicle, and harness of a physician or 
 
 17 How. 157. Beauregard v. New ham, 2 Ohio S. 38. Den v. Jones, 
 
 Orleans, 18 How. 503. Union Bank 2 McLean, 78. Clement v. Berry, 
 
 V. Jolly, 18 How. 507. Simpson v. 11 How. 411. U. S. v. Morrison, 4 
 
 Niles, I Ind. 196. Corwin v. Ben- Pet. 124. 
 
Chap. IV.] FROM EXECUTION. 95 
 
 minister of the gospel, with food for one month ; 1 four cows 
 with their sucking calves, and four hogs with their sucking 
 pigs ; poultry not exceeding fifty dollars in value ; earnings 
 of debtor for services rendered within thirty days before levy, 
 necessary for the use of his family residing in the state, sup- 
 ported by his labor ; shares in a homestead corporation not 
 exceeding one thousand dollars in value, when the holder does 
 jiot own a homestead ; all benefits of life insurance whose annual 
 ■premiums do not exceed five hundred dollars ; fire engines, &c., 
 of fire companies ; arms and accoutrements required to be kept 
 by law. In addition to the property now exempted by law from 
 sale or levy on execution, there shall be exempted one sewing 
 machine of a value not exceeding one hundred, dollars, in 
 actual use by each debtor or the family of the debtor. The 
 books, papSrs, maps, and diagrams of a person engaged in 
 searching records, and making abstracts of titles, used in 
 such business, shall be exempt from execution in all cases, 
 except upon a judgment recovered for the purchase money 
 thereof, or upon a mortgage thereon. The farming utensils 
 or implements of husbandry of the judgment debtor; also 
 two oxen, or two horses, or two mules and their harness, 
 four cows, one cart or wagon, and food for such oxen, horses, 
 cows, or mules for one month ; also all seed, grain, or vegeta- 
 bles actually provided, reserved, or on hand for the purpose of 
 planting or sowing at any time within the ensuing six months, 
 not exceeding in value the sum of two hundred dollars. This 
 exemption is aipplicable to such judgment debtors as were 
 engaged in farming at the time of the levy,^ and extends only 
 to oxen, horses, and mules suitable and intended for the ordi- 
 nary work conducted on a farm.^ 
 
 Colorado. — The family pictures, library, &c. ; wearing ap- 
 parel not exceeding one hundred dollars in value ; provisions 
 for the debtor and his family for six months ; tools and imple- 
 ments not exceeding two hundred dollars in value ; the library 
 
 • Roberts v. Adams, 38 Cal. * Brusie v. Griffith, 34 Cal. 305. 
 383. ' Roberts v. Adams, 38 Cal. 383 
 
96 PROPERTY EXEMPT [Chap. IV. 
 
 and implements of any professional man not exceeding three 
 hundred dollars ; working animals to the value of two hun- 
 dred dollars ; cow, calf, ten sheep, and necessary food for six 
 months ; also a farm wagon, a plough, harrow, &c., not ex- 
 ceeding fifty dollars in value. No article of property shall be 
 exempt from sale for the purchase money for said article of 
 property. Persons not the heads of families are entitled to 
 tools, working animals, and stock in trade not exceeding three 
 hundred dollars in value. 
 
 Connecticut. — The necessary apparel and bedding, house- 
 hold furniture necessary for supporting life, arms, military 
 equipments, implements of the debtor's trade, one cow, ten 
 sheep not exceeding in value one hundred and fifty dollars, are 
 protected, and certain specified amounts of family stores, one 
 stove, the horse, saddle and bridle, buggy and harness (not 
 exceeding in value two hundred and fifty dollars) of any prac- 
 tising physician or surgeon, one sewing machine in use, one 
 pew in church in use, and a library not exceeding in value 
 five hundred dollars, one boat used in fishing, not exceeding 
 two hundred dollars in value. 
 
 Delaware. — One hundred dollars' worth of personal prop- 
 erty is exempted. The above exemption of one hundred dol- 
 lars does not afifect a debt or contract incurred or made prior 
 to July 4, 1851, or an execution in Kent county. 
 
 District of Columbia. — The following property of a 
 householder is exempt from distraint, attachment, or sale on 
 execution, except for servants' or laborers' wages due : Wear- 
 ing apparel ; household furniture to the amount of three hun- 
 dred dollars ; provisions and fuel for three months ; mechanic's 
 tools or implements of any trade to the value of two hundred 
 dollars, with stock to the same amount ; the library and im- 
 plements of a professional man or artist to the value of three 
 hundred dollars ; a farmer's team and other utensils to the 
 value of one hundred dollars ; family pictures and library, in 
 value four hundred dollars. 
 
 Florida. — One thousand dollars' worth of property is ex- 
 empt from all debts. 
 
Chap. IV.] FROM EXECUTION. 97 
 
 Georgia. — Personal property to the value of one thousand 
 dollars in specie at the time it is set apart. 
 
 Illinois. — The following articles of personal property owned 
 by the debtor are exempt from execution, writ of attachment, 
 and distress for rent : The necessary wearing apparel of every 
 person ; one sewing machine ; the furniture, tools, and imple- 
 ments necessary to carry on his trade or business not exceed- 
 ing one hundred dollars in value ; the implements or library 
 of any professional man not exceeding one hundred dollars in 
 value ; materials and stock designed and procured for- carrying 
 on his trade or business, and intended to be used or wrought 
 therein, not exceeding one hundred dollars in value, additional 
 to heads of families ; and also when the debtor is the head of 
 a family, and resides with the same, necessary beds, bedsteads, 
 and bedding, two stoves and pipe, necessary household furni- 
 ture not exceeding in value two hundred dollars ; one cow, two 
 swine, two sheep for each member of the family, and the fleeces 
 taken from the same, and the yarn and cloth that may be man- 
 ufactured from the same, one yoke of oxen, or two horses in lieu 
 thereof, worth not exceeding two hundred and fifty dollars, with 
 the harness therefor, necessary provisions and fuel for the use 
 of the family for three months, and necessary food for the stock 
 hereinbefore exempted for the same time ; the bibles, school 
 books, and family pictures ; the family library, cemetery lots, 
 and rights of burial, and tombs for repositories of the dead ; 
 one hundred dollars' worth of other property suited to his con- 
 dition in life, selected by the debtor. Whenever the debtor has 
 not any or all of the specific articles hereinbefore exempted, he 
 may elect others of equal value in their stead, or he may retain 
 the value thereof in money, if he shall so elect. Wages of a la- 
 borer who is head of a family cannot be garnisheed except the 
 sum due him be in excess of twenty-five dollars. 
 
 Indiana. — Personal property to the value of three hundred 
 dollars. Exemption may be waived, except for laborers' and 
 mechanics' liens. ' 
 
 Iowa. — All wearing apparel kept for actual use, and suit- 
 able to the condition of the party, and trunks and other recep- 
 13 
 
98 PROPERTY EXEMPT [Chap. IV.^ 
 
 tacles to contain the same ; one musket or rifle ; the proper 
 tools, instruments, or books of any farmer, mechanic, surveyor, 
 clergyman, lawyer, physician, teacher, or professor ; the horse, 
 or the team consisting of not' more than two horses or mules, 
 or two yoke of cattle, and the wagon or other vehicle, with the 
 proper harness or tackle, by use of which any physician, pub- 
 lic officer, farmer, teamster, or other laborer habitually earns 
 his living ; all private libraries, family bibles, portraits, pictures, 
 and paintings not kept for the purposes of sale. If the debtor 
 is the head of a family, there is further exempt one cow, one 
 calf, one horse (unless a horse has been exempted for him, 
 under the preceding section), fifty sheep and the wool there- 
 from, five hogs- and all pigs under six months, the necessary 
 food for all animals exempt from execution for sixty days, all) 
 flax raised by the defendant and the manufactures therefrom,, 
 one bedstead and the necessary bedding for every two in the 
 family, all cloth manufactured by the defendant not exceeding- 
 one hundred yards in quantity, household and kitchen furni- 
 ture not exceeding one hundred dollars in value, all spinning- 
 wheels and looms and other instruments of domestic labor kept: 
 for actual use, and the necessary provisions and fuel for the use 
 of the family for six months. The word " family " does not in- 
 clude strangers or boarders lodging with the family. The earn- 
 ings of such debtor for the personal service, or those of his, 
 family, at any time within ninety days next preceding the levy,, 
 are also exempt from attachment and execution. None of the- 
 foregoing exemptions are for the benefit of a single man not 
 the head of a family, nor of non-residents, nor of those who-, 
 have started to leave this state ; but their property is liable to. 
 execution, with the exemption in the two former cases of ordi- 
 nary wearing apparel and trunks to contain the same, and ii> 
 the latter case of such wearing apparel and such property as- 
 the defendant may select, not to exceed seventy-five dollars, ta 
 be selected by the debtor, and appraised. But any person 
 coming to this state with the intention of remaining is a resi- 
 dent. ' 
 
 Kansas; — No personal property is exempt for the wages 
 
Chap. IV.] FROM EXECUTION. 99 
 
 of a servant, mechanic, laborer, or clerk} Every person residing 
 in this state, and being the head of a family, shall have exempt 
 from seizure upon attachment, or execution, or other process 
 issued from any court in this state, family bible, school books, 
 and family library, family pictures and musical instruments 
 used by the family, all wearing apparel of the family, all beds, 
 bedsteads, and bedding used by the debtor and his family, one 
 cooking stove and appendages, and all other cooking utensils, 
 and all other stoves and appendages necessary for the use of 
 the debtor and his family, one sewing machine, spinning- 
 v.'heel, and all other implements of industry, and all other 
 household furniture not herein enumerated not exceeding five 
 hundred dollars ; two cows, ten hogs, one yoke of oxen, and 
 one horse or mule, or, in lieu of one yoke of oxen and one 
 horse or mule, a span of horses or mules and twenty sheep 
 and their wool, either in the raw material or manufactured into 
 yarn or cloth ; necessary food for the support of the stock for 
 one year, either provided or growing, or both, as the debtor 
 may choose ; one wagon, cart, or dray, two ploughs, one drag, 
 and other farming utensils not exceeding three hundred dollars 
 in value, including harness or tackle for teams ; grain, meat, 
 vegetables, groceries, &c., on hand, necessary for the support 
 of the debtor and his family for one year, and also all the fuel 
 on hand necessary for their use for one year ; the tools and 
 implements of any mechanic, or miner, or other person, kept 
 for the purpose of carrying on his business, and in addition 
 thereto stock in trade not exceeding four hundred dollars in 
 value ; the library, implements, and office furniture of any pro- 
 fessional man ; for others than the heads of families, only the 
 wearing apparel. 
 
 Kentucky. — One work beast or yoke of oxen, two cows 
 and calves, five sheep, wearing apparel, and the usual house- 
 hold and kitchen furniture of about the value of one hundred 
 dollars ; also one sewing machine. 
 
 Louisiana. — The sheriff cannot seize the linen and cloth- 
 ing belonging to the debtor or his wife ; nor his bed, nor those 
 
 ' Reed v. Umbarger, 1 1 Kan. 206. 
 
100 PROPERTY EXEMPT [Chap. IV 
 
 of his family; nor his arms and military accoutrements ; nor 
 the tools, and instruments, and books necessary for the exer- 
 cise of his calling, trade, or profession by which he. makes a 
 living ; nor shall he in any case seize the rights of personal 
 servitude, of use and habitation, of usufruct to the estate of a 
 minor child ; nor the income of dotal property ; nor money 
 due for the salary of an officer ; nor wages ; nor recompense 
 for personal services ; nor house or kitchen furniture to the 
 value of six hundred dollars (this last clause has been held not 
 to apply to landlord's seizure under his privilege for rent) ; nor 
 one work horse, one wagon or cart, one yoke of oxen, two cows 
 and calves, twenty-five head of hogs or one thousand pounds 
 of bacon or equivalent in pork, and, if a farmer, the necessary 
 quantity of corn and fodder for the current year ; provided 
 that the property above stated to be exempt from seizure does 
 not exceed two thousand dollars in value. No debtor shall be 
 entitled to this exemption whose wife shall own, in her own 
 right, and be in the actual enjoyment of property worth more 
 than one thousand dollars. The foregoing "homestead ex- 
 emption " does not apply in cases of seizure for taxes, for pur- 
 chase price, or for rents bearing privilege on such property 
 under existing laws. The widow or minor children of a de- 
 ceased person left- in necessitous circumstances, and not pos- 
 sessing in her or their own right property to the amount of 
 one thousand dollars, shall be entitled to receive from the suc- 
 cession of the deceased person a sum which, added to that 
 already possessed in her or their own right, shall make the 
 sum of one thousand dollars. This claim has preference over 
 all debts of the deceased person, except for vendor's privilege 
 and expenses incurred in selling the property. In addition to 
 the foregoing are also the corn, fodder, hay, provisions, and 
 other supplies necessary for carrying on the plantation to 
 which they are attached for the current year. 
 
 Maine. — Necessary apparel ; a bed, bedstead, and bedding 
 for every two members of a family ; one cooking stove, all 
 stoves used for warming buildings, and other necessary furni- 
 ture to the value of fifty dollars' ; one sewing machine for use, 
 
Chap. IV.] FROM EXECUTION. 
 
 not exceeding one hundred dollars in value ; all tools neces- 
 sary for the debtor's occupation ; all bibles and school books 
 for use of the family, one copy of the statutes of the state, gjid 
 a library not exceeding one hundred and fifty dollars in v^ix^ ; 
 one cow and one heifer, two swine, ten sheep and the wo(|il ^hd 
 lambs from them, one pair of working cattle, or, instead |here- 
 of, one pair of mules or two horses, not exceeding three 'tiun- 
 dred dollars in value ; all produce of farms until harvested,!.; 
 corn and grain for use of debtor and family, not exceeding^ 
 thirty bushels ; all potatoes raised or purchased for use in 
 family ; one barrel of flour ; a sufficient quantity of hay to 
 winter all exempted stock ; all flax raised for use on one half- 
 acre of land ; lumber to the amount of ten dollars, twelve 
 cords of fire-wood, five tons of anthracite coal, fifty bushels of 
 bituminous coal, and all charcoal for use in the family ; one 
 pew in meeting-house where debtor worships ; one horse sled 
 or ox sled, twenty dollars in value ; one harness worth twenty 
 dollars for each horse or mule ; one cart or truck wagon, one 
 harrow, one plough, one yoke, two chains, and one mowing ma- 
 chine ; for fisherman, one boat not exceeding two tons burden. 
 
 Maryland. — The property exempted is the personal prop- 
 erty actually necessary for the sustenance of the family, and 
 the implements or tools necessary to earn a livelihood and 
 wearing apparel. The constitution of the state directs the 
 legislature to pass laws exempting from judicial sales property 
 not exceeding five hundred dollars. One hundred dollars' are 
 the amount fixed and exempted in pursuance of this constitu- 
 tional requirement. (The exact language of the law is, " all 
 wearing apparel, books, and the tools of mechanics.") 
 
 Massachusetts. — All chattels, real or personal, and all 
 other goods which, by the common law, are liable to be taken 
 on execution, may be taken and sold thereon, except the fol- 
 lowing articles of the debtor, which are exempt : The neces- 
 sary wearing apparel of himself and of his wife and children ; 
 one bedstead, bed, and the necessary bedding for every two 
 persons of the family ; one iron stove used for warming the 
 dwelling house, and fuel not exceeding the value of twenty 
 
102 PROPERTY EXEMPT [Chap. IV. 
 
 dollars, procured and designed for the use of the family ; one 
 sewing machine, of a value not exceeding one hundred dollars, 
 in actual use by each debtor, or the family of the debtor ; other 
 household furniture necessary for him. and his family, not ex- 
 ceeding one hundred dollars in value ; the bibles, school books, 
 and library used by him or his family, not exceeding fifty dol- 
 lars in value ; one cow, six sheep, one swine, and two tons of 
 hay ; the tools, implements, and fixtures necessary for carry- 
 ing on his trade or business, not exceeding one hundred dol- 
 lars in value ; materials and stock designed and procured by 
 him, and necessary for carrying on his trade or business, and 
 intended to be used or wrought therein, not exceeding one 
 hundred dollars in value ; provisions necessary and procured 
 and intended for the use of the family, not exceeding fifty dol- 
 lars in value ; the boat, fishing tackle, and nets of fishermen, 
 actually used by them in the prosecution of their business, to 
 the value of one hundred dollars ; the uniform of an officer or 
 soldier in the militia, and the arms and accoutrements required 
 by law to be kept by him. 
 
 Michigan. — Household furniture to the amount of two 
 hundred and fifty dollars ; stock in trade, a team, or other 
 things which may be necessary to carry on the pursuit of par- 
 ticular business, up to two hundred and fifty dollars ; library 
 and school books not exceeding one hundred and fifty dollars ; 
 to a householder, ten sheep, two cows, five swine, and some 
 other minor things. There are some other exemptions besides 
 a homestead, but they are trivial. 
 
 Minnesota. — The family bible, family pictures, school 
 books or library, and musical instruments ; all wearing ap- 
 parel of the debtor and his family, all beds, bedsteads, and 
 bedding kept and used by the debtor and his family, all stoves 
 and appendages put up or kept for the use of the debtor and 
 his family, all cooking utensils, and all other household furni- 
 ture not herein enumerated, not exceeding five hundred dol- 
 dollars in value ; three cows, two swine, one yoke of oxen, and 
 a horse, or, in lieu of one yoke of oxen and a horse, a span of 
 horses or mules, twenty sheep, and the wool from the same, 
 
'Chap. IV.] FROM EXECUTION. 103 
 
 'either in the raw-material, or manufactured into cloth or yarn, 
 the necessary food for all the stock mentioned in this section 
 for one year's support, either provided or growing, or both, as 
 the debtor may choose ; also one wagon, cart, or dray, one 
 sleigh, two ploughs, one drag, and other farming utensils, in- 
 ■ eluding tackle for teams, not exceeding three hundred dollars 
 in value ; the provisions for the debtor and his family neces- 
 sary for one year's support, either provided or growing, or 
 both, and fuel necessary for one year; the tools and instru- 
 ments of any mechanic, miner, or other person used and kept 
 for the purpose of carrying on his trade, and, in addition there- 
 to, stock in trade not exceeding four hundred dollars in value. 
 {The stock in trade referred to above, according to a decision 
 •of the Supreme Court, only means the material before it is 
 manufactured. For instance, if a man was a manufacturer 
 -of, and dealer in, boots and shoes, his leather, &c., would be 
 •exempt to the amount of four hundred dollars in value ; but 
 <after it was manufactured into boots and shoes, it would not . 
 be exempt. An ordinary merchant, not doing a manufactur- 
 ing business, would not be entitled to this exemption.) Also 
 the library and implements of any professional man. All of 
 "which articles hereinbefore intended to be exempt shall be 
 ■^^chosen by the debtor, his agent, clerk, or kgal representative, 
 as the case may be ; one sewing machine ; the earnings of 
 minor children. None of these articles of personal property 
 •are exempt from execution or attachment for the purchase 
 money thereof 
 
 Mississippi. — Two horses or mules (the new exemption 
 ;gives an additional mule or horse, making two exemptions) ; 
 ■one hundred and fifty bushels of corn, four cows and calves, 
 eight hundred pounds of pork, twenty bushels of wheat, one 
 yoke of oxen, one wagon ; furniture, two hundred and fifty 
 dollars ; the tools of a mechanic necessary for carrying on his 
 trade, and five hundred dollars' worth of material used in his 
 business ; the implements of a laborer necessary in his usual 
 ■employment ; the books of a student required for the comple- 
 tion of his education ; the wearing apparel of every person. 
 
104 PROPERTY EXEMPT [Chap. IV. 
 
 and the libraries of all persons, and also saddles and bridles 
 sufficient for the use of the family ; also the instruments of 
 surgeons and dentists, used in their profession ; the arms and 
 accoutrements of each person ; all globes, pictures, and scien- 
 tific apparatus, books and maps used by teachers of schools, 
 academies, and colleges, and in families by the heads thereof; 
 all household and kitchen furniture ; all necessary farming 
 tools and implements of husbandry needed in carrying on a 
 farm ; one year's supply of provisions for the family and the 
 hands employed on the farm, and of forage for the teams and 
 stock of every kind exempted by the act. 
 
 Missouri. — Personal property to the amount not less than 
 three hundred dollars to heads of families. 
 
 Nebraska. — No property hereinafter mentioned shall be 
 liable to attachment, execution, or sale, or any final process, 
 issued from any court of this state, against any person being a. 
 resident of this state and the head of a family : The family 
 Bible, family pictures, school books, and library for use of the- 
 family ; all necessary wearing apparel of the debtor and his- 
 family ; all beds, bedsteads, and bedding necessary for the use 
 of such family ; all stoves and appendages put up or kept for 
 the use of the debtor's family, not to exceed four ; all cooking, 
 utensils and all other household furniture not herein enumer- 
 ated, to be selected by the debtor, not exceeding in value one 
 hundred dollars ; one cow, three hogs, and all pigs under six 
 months old ; and if tl^e debtor be at the time actually engaged; 
 in the business of agriculture, in addition to the above, one 
 yoke of oxen, or a pair of horses in lieu thereof, ten sheep, and 
 the wool therefrom, either in the raw material, or manufactured, 
 into yarn or cloth ; the necessary food for the stock mentioned 
 in this section for the period of three months ; one wagon,, 
 cart, or dray, two ploughs, and one drag ; the necessary gear- 
 ing for the team herein exempted, and other farming imple- 
 ments not exceeding fifty dollars in value ; the provisions for 
 the debtor and his family necessary for six months' support, 
 either provided or growing, or both, and fuel necessary for six: 
 months ; the tools and instruments of any mechanic, miner, or 
 
Chap. IV.] FROM EXECUTION. 105 
 
 other person, used and kept for the purpose of carrying on his 
 trade or business ; the library and implements of any profes- 
 sional man. All heads of families who have neither lands, 
 town lots, nor houses subject to exemption as a homestead, 
 under the laws of this state, shall have exemption from forced 
 sale on execution the sum of five hundred dollars in personal 
 property. 
 
 New Hampshire. — Necessary apparel and bedding and 
 household furniture to the value of one hundred dollars, Bibles 
 and school books in use in the family, library to the value of 
 two hundred dollars ; one cow, one hog and one pig, and pork 
 of same when slaughtered ; tools of occupation to the value of 
 one hundred dollars ; six sheep and their fleeces, one cooking 
 stove and its furniture, provisions and fuel to the value of fifty 
 dollars, and one sewing machine ; beasts of the plough not 
 exceeding one yoke of oxen, or a horse, and hay not exceeding 
 four tons. 
 
 New Jersey. — Personal property to the amount of two 
 hundred dollars owned by a resident head of a family, ap- 
 praised by three persons appointed by the sheriff"; and the 
 widow or administrator of a deceased person may claim the 
 same exemption of two hundred dollars as against the creditors. 
 
 New York. — All spinning wheels, weaving looms, and 
 stoves, put up or kept for use in any dwelling-house ; also one 
 sewing machine, with the appurtenances thereto belonging ; 
 the family Bible, family pictures, and school books used in the 
 family of such person, and books not exceeding in value fifty 
 dollars, which are kept and used as a part of the family library. 
 A seat or pew occupied by such person or his family in a house 
 or place of public worship. All sheep to the number of ten,, 
 with their fleece, and the yarn or cloth manufactured from the 
 ^ame ; and such wool and cloth will be exempt, though the 
 defendant does not own the sheep from which the wool was 
 sheared.^ One cow, two swine, the necessary food for them ; 
 all necessary pork, beef, fish, flour, vegetables procured for 
 
 > Hall V. Penny, ii Wend. 44. Brackett v. Watkins, 21 Wend. 68. 
 14 
 
106 PROPERTY EXEMPT [Chap. IV. 
 
 family use (whether gathered or growing) ; ^ and necessary 
 fuel for the family for sixty days. All necessary wearing ap- 
 parel owned by the householder, or furnished by him for the 
 use of others living with him ; but the exemption does not 
 extend to the clothing of one living in the family who provides 
 them for himself. All necessary wearing apparel of the de- 
 fendant, whether he be a householder or not, is exempt.^ Beds 
 and bedding for such householder and his family ; arms and 
 accoutrements required by law to be kept by such person ; 
 necessary cooking utensils ; (but to render them exempt, it 
 must appear affirmatively that they are necessary and not 
 merely useful.^) If any part of the judgment is for the sale of 
 intoxicating liquors, any levy and sale of exempt property, even 
 with the consent of the defendant, is void.* In addition .to the 
 household articles usually enumerated as exempt from the sale 
 under execution, and the tools of any mechanic not exceeding 
 twenty-five dollars in value, there are exempted necessary 
 household furniture and working tools ; team, and food for 
 said team fot a period not exceeding ninety days ; professional 
 instruments, furniture, and library owned by any person being 
 a householder, or having a family for which he provides, to the 
 value of not exceeding two hundred and fifty dollars, and a 
 sewing machine. Such exemption does not apply to any exe- 
 cution issued on a demand for purchase money of such furni- 
 ture, tools, or team, or the food for said team, or professional 
 instruments, furniture, or library, sewing machine, or the arti- 
 cles now enumerated by law ; nor to any judgment rendered 
 for a claim accruing for work and labor, performed in a family 
 as a domestic ; nor to any judgment obtained in any court in 
 the city of New York, for work, labor, or services done or per- 
 formed by any female employee, when such amount does not 
 exceed the sum of fifteen dollars, exclusive of costs. 
 
 • Carpenter v. Harrington, 25 456. Van Sicklen v. Jacobs, 14 
 
 Wend. 370. John. 434. Wilson v. Ellis, I Denio, 
 
 ' Bowne v. Witt, 19 Wend. 475. 462. 
 
 ' Griffin V. Sutherland, 14 Barb. * Laws of New York. 
 
Chap. IV.] FROM EXECUTION. 107 
 
 North Carolina. — Personal property to the amount of 
 five hundred dollars. 
 
 Ohio. — The wearing apparel of such family, beds, bed- 
 steads, bedding necessary for the use of the family ; one stove 
 and pipe, fuel sufficient for sixty days. In case the debtor is 
 not the owner of a homestead, he is entitled to hold exempt 
 from levy and sale personal prdperty not exceeding five hun- 
 dred dollars, in addition to the amount of chattel property as 
 aforesaid. 
 
 Oregon. — Books, pictures, and musical instruments, to the 
 value of seventy-five dollars ; wearing apparel to the value of 
 one hundred dollars, and if a householder, to the value of fifty 
 dollars for each member of the family ; tools, implements, ap- 
 paratus, team, vehicle, harness, or library, when necessary in 
 the occupation or profession of a judgment debtor, to the 
 amount of four hundred dollars ; if the judgment debtor be a 
 householder, ten sheep with one year's fleece, two cows, five 
 swine, household goods, furniture, and utensils, to the value of 
 three hundred dollars. No article of property is exempt from 
 execution issued upon a judgment for the purchase price. 
 
 Pennsylvania. — Property, either real or personal, to the 
 value of three hundred dollars. The exemption may be waived 
 in note or contract. 
 
 RnpDE Island. — The law exempts from sale the necessary 
 wearing apparel of a debtor or of his family ; working tools 
 not exceeding fifty dollars in value ; household furniture, &c., 
 not exceeding two hundred dollars in value ; Bibles and school 
 books in use in the family ; one cow and one and a half tons 
 of hay of a housekeeper ; one hog and one pig, and the pork 
 of the same when slaughtered, of a housekeeper ; the uniform, 
 &c., of a militia-man ; the debtor's interest in one pew in 
 church, and one lot in any cemetery ; mariner's wages until 
 after the termination of the^voyage in which such wages shall 
 have been earned ; debts secured by bills of exchange or nego- 
 tiable promissory notes. 
 
 South Carolina. — The personal property of such person 
 of the following character, to wit : household furniture, beds 
 
108 PROPERTY EXEMPT [Chap. IV. 
 
 and bedding, family library, arms, carts, wagons, farming im- 
 plements, tools, neat cattle, work animals, swine, goats and 
 sheep, not to exceed in value, in the aggregate, the sum of five 
 hundred dollars, should be subject to like exemption as said 
 homestead ; and that there should be exempt, in addition 
 thereto, all necessary wearing apparel. 
 
 Tennessee. — Two beds, bedsteads, and necessary cloth- 
 ing for each ; and for each three children an additional bed, 
 bedstead, and clothing, such bedstead not exceeding twenty- 
 five dollars in value ; one cow and calf, and if family consists 
 of six persons, two cows and calves ; one dozen knives and 
 forks, one dozen plates, half a dozen dishes, one set table- 
 spoons, one set teaspoons, one bread tray, two pitchers, one 
 waiter, one coffeepot, one teapot, one canister, one cream jug, 
 one dozen cups and saucers, one dining-table and two table- 
 cloths, one dozen chairs, one bureau not exceeding forty dollars 
 in value, one safe or press, one wash basin, one bowl and 
 pitcher, one washing kettle, two washing tubs, one churn, one 
 looking glass, one chopping axe, one spinning wheel, one loom 
 and gear, one pair cotton cards, one pair wool cards, one cook- 
 ing stove and utensils not exceeding twenty-five dollars in 
 value, one cradle, one Bible and hymn book, all school books, 
 two horses or mules, or one of each, or one yoke of oxen, one 
 ox cart, ring, staple, and log chain, one two-horse or one-horse 
 wagon not exceeding seventy-five dollars in value, and harness, 
 one man's saddle, one woman's saddle, two riding bridles, 
 twent)f-five barrels corn, twenty bushels wheat, five hundred 
 bundles oats, five hundred bundles fodder, one stack hay not 
 exceeding twenty dollars in value, and in family of less than 
 six persons one thousand pounds of pork, slaughtered or on 
 foot, or six hundred pounds of bacon, and if more than six per- 
 sons, twelve hundred pounds of pork, or nine hundred pounds 
 of bacon ; all the poultry on hand, and fowls up to twenty-five 
 dollars ; a home-made carpet, and six cords wood or one hun- 
 dred bushels coal ; and if the head of the family be engaged in 
 agriculture, two ploughs, two hoes, one grubbing hoe, one 
 cutting knife, one harvest cradle, one set plough gears, one 
 
Chap. IV.] FROM EXECUTION. 109 
 
 pitchfork, one rake, one iron wedge, five head of sheep, and 
 ten head of stock hogs ; also, in hands of a mechanic, one set 
 yf mechanic's tools, such as are usual and necessary in pursuit 
 of his trade ; also, in hands of every male citizen, or female if 
 •head of family, one gun ; also, in hands of head of family, or 
 single female using in earning livelihood, one sewing machine ; 
 and in hands of heads of families, fifty pounds, of picked cotton, 
 twenty-five pounds of wool, and enough upper and sole leather 
 to provide shoes for family ; also, if such person be a mechanic, 
 fifty dollars' worth of lumber or material ; also, in addition to 
 all these articles, two hundred and fifty dollars' worth of prop- 
 erty generally. 
 
 Texas. — Household and kitchen furniture, five hundred 
 dollars' worth. To every citizen not the head of a family, one 
 horse, saddle, and bridle ; all wearing apparel, and tools, books, 
 and apparatus of his trade or profession ; also, five cows, 
 twenty hogs, one year's provision ; and in case of death of 
 husband, the court will set aside to the widow and children 
 other property or money to the value of the foregoing exemp- 
 tions, if the estate has not got the specific articles exempted. 
 
 Utah. — Personal property amounting to five hundred dol- 
 lars is exempt from levy and sale. 
 
 Vermont. — Such suitable apparel, bedding, tools, arms, and 
 articles of furniture, the products of the homestead, as may be 
 necessary for upholding life ; one sewing machine kept for use, 
 one cow, the best swine, or the meat of one swine, ten sheep, 
 and one year's product of said sheep in wool, yarn, or cloth ; 
 forage sufficient for keeping not exceeding ten sheep and one 
 cow through one winter ; ten cords of firewood, twenty bushels 
 of potatoes, such military arms and accoutrements as the debtor 
 is required by law to furnish ; all growing crops, ten bushels 
 of grain, one barrel of flour, three swarms of bees and hives, 
 together with their produce in honey ; two hundred pounds of 
 sugar, and all lettered gravestones ; the Bibles and other books 
 used in a family ; one pew or slip in a meeting-house or place 
 of religious worship ; live poultry not exceeding in amount or 
 value the sum of ten dollars ; the professional books and instru- 
 
110 PROPERTY EXEMPT [Chap. IV. 
 
 ments of physicians, and the professional books of clergymen 
 and attorneys at law, to the value of two hundred dollars ; and 
 also one yoke of oxen or steers, as the debtor may select, or two 
 horses, kept and used for team work, and such as the debtor 
 may select, in lieu of oxen or steers, but not exceeding in value 
 the sum of two hundred dollars, with sufficient forage for the 
 keeping of the same through the winter ; provided, however, 
 the exemption, as to one yoke of oxen or steers, and the forage 
 therefor, is not to extend to any attachment issued on any 
 contract made on or before the twenty-first day of November, 
 1859, or the exemption as to two horses and the forage there- 
 for, on or before the first day of December, 1 866, or any exe- 
 cution issued on a judgment founded on any such contract. 
 
 Virginia. — Every householder or head of a family shall be 
 entitled, in addition to the articles mentioned below, to hold 
 exempt from levy bis real and personal property, or either, in- 
 cluding money or debts due him, to a value not exceeding two 
 thousand dollars, to be selected by him. In case of husband, 
 parent, or other person, who is a housekeeper and head of a 
 family, there are also exempt family Bible, family pictures, 
 books, &c;, not exceeding one hundred dollars in value ; a pew 
 in a church, lot in a burial ground, necessary wearing apparel 
 of debtor and family, necessary beds, bedding, &c., stoves for 
 necessary use of family, not exceeding three ; one cow, one 
 horse, six chairs, one table, six knives, six forks, six plates, one 
 dozen spoons, two dishes, two basins, one pot, one oven, six 
 pieces of wooden or earthenware, one loom, one safe or press, 
 spinning wheel, pair of cards, one axe, two hoes, five barrels 
 of corn, five bushels of wheat or one barrel of flour, two hun- 
 dred pounds of bacon, three hogs, ten dollars' worth of forage ; 
 one cooking stove and utensils for cooking ; one sewing ma- 
 chine ; and, in case of a mechanic, the tools of his trade to the 
 value of one hundred dollars ; if debtor at the time is actually 
 engaged in agricultural pursuits, there are exempt, whilst so 
 engaged, one yoke of oxen, or a pair of horses or mules in lieu 
 thereof, one wagon, two ploughs, one drag, one harvest cradle, 
 one pitchfork, one rake, two iron wedges. The foregoing list 
 
Chap. IV. J FROM EXECUTION. HI 
 
 of exemptions, except the item of two thousand dollars, applies 
 to debts contracted since February. 20, 1867; the exemption 
 affecting debts contracted before that time embraces but a 
 small proportion of the above described articles. 
 
 West Virginia. — Personal property to the value of five 
 hundred dollars is also exempted ; provided debtor is a resi- 
 dent and parent. 
 
 Wisconsin. — Family Bible, family pictures, or school books ; 
 library of debtor, but not circulating libraries ; wearing apparel 
 of debtor and family ; all stoves put up and kept for use, all 
 cooking utensils, and all other household furniture not herein 
 enumerated, not exceeding two hundred dollars in value ; two 
 cows, ten swine, one yoke of oxen or one horse, or a span of 
 horses or mules ; ten sheep and the wool from same, either 
 raw or manufactured ; the necessary food for above stock for 
 a year's support ; one wagon, cart, or dray, one sleigh, one 
 plough, one drag, and other farming utensils, including tackle 
 for teams, not exceeding fifty dollars in value ; provisions and 
 fuel for one year ; tools and implements, or stock in trade of a 
 mechanic or miner or other person, not exceeding two hundred 
 dollars in value ; ■ library or implements of any professional 
 man, not exceeding two hundred dollars in value ; all moneys 
 from insurance of exempt property ; earnings of all persons 
 for sixty days next preceding the issuing of any process ; all 
 sewing machines kept for use ; any swords, plate, books, or 
 other articles, presented by Congress or the members thereof. 
 
 § 98. Every one is presumed to know the law ; therefore a 
 debtor need not designate what articles are specifically ex- 
 empted. It is for the officer to know the statute, and to obey 
 it at his peril.^ But where a debtor has" a greater number of 
 articles of the same kind that are exempt, he has the right of 
 election as to which shall be exempt ; and if not made within 
 a reasonable time, the right to elect will be waived.^ Where 
 
 ' Gilman v. Williams, 7 Wis. 329. * Lockwood v. Younglove, 27 
 Maxwell v. Reed, 7 Wis. 582. Mark Barb. 505. Elliott v. Flanagan, 37 
 V. State, IS Ind. 98. Penn. 425. Gaxitt v. Doub, 23 Cal. 
 
112 PROPERTY EXEMPT [Chap. IV. 
 
 he has just what the law exempts, no selection is necessary.^ 
 It is the duty, of the officer to notify the debtor of his rights.^ 
 There is no prescribed form of election to retain exempt prop- 
 erty from sale ; it is sufficient if made so the officer can under- 
 stand it ; ^ and if the debtor takes away what he may claim, 
 this amounts to an election* There can be but one exemption 
 allowed on the same judgment. Where it is allowed from a 
 sale, or prior to levy on one execution, it cannot be claimed on 
 other alias writs.* Where there are several executions in an 
 officer's hands, one demand or notice is all that is necessary.^ 
 Where by a statute there is a certain amount of property ex- 
 empt, without enumerating the specific kind as so much per- 
 sonal property, the debtor is allowed either property to the 
 amount limited, or its equivalent in money,'' from the proceeds 
 of the sale ; or if after acquired property is necessary to make 
 the amount to which he is entitled, it is exempt.^ On a joint 
 execution against several defendants, where a levy is made oh 
 the property of one only, he is entitled to the statutory exemp- 
 tion.® In some of the states personal property is liable on a 
 judgment for the purchase money. Where a note is given for 
 goods previously furnished, it does not create a liability. Such 
 a debt is not within the scope of the law.^* Or where a note 
 
 78. Seaman V. Luce, 23 Barb. 240. ° Bechtel's Appeal, 2 Grant's .Cas. 
 
 Austin V. Swank, 9 Ind. 102. Bor- 375. Strouse v. Becker, 38 Penn. 
 
 land V. O'Neal, 22 Cal. 504. Elliott igo. 
 
 V. Whitmore, ; Micli. 532. Frost v. ' Duvall v. Rollins, 68 N. C. 220. 
 
 Shaw, 3 Ohio S. 270. Finnin v. Maxey v. Loyal, 38 Ga. 531. Sei- 
 
 Maloy, 33 N. Y. Sup. Ct. 382. Bray bert's Appeal, 73 Penn. 3J9. Mahan 
 
 V. Laird, 44 Ala. 295. McGee v. v. Scruggs, 29 Mo. 282. Cole v. 
 
 Anderson, i B. Mon. 187. Ross v. Green, 21 111. 104. WycofF v. Wyllis, 
 
 Hannah, 18 Ala. 125. 8 Mich. 48. Eager v. Taylor, 9 
 
 ' State V. Haggard, i Humph. 390. Allen, 156. Deane v. King, 13 Ired. 
 
 Goodman v. Smith, 17 Ind. 152. 20. State v. Farmer, 21 Mo. 160. 
 
 * State V. Romer, 44 Mo. 99. Frost v. Naylor, 68 N. C. 325. 
 
 ' Keller v. Bricker, 64 Penn. 379. ' Clark v. Ismael, 2 Cin. (O.) 
 
 * Ross V. Hannah, 18 Ala. 125. 437. 
 
 » Vogelsong v. Beltzhoover, 59 • Spade v. Bruner, 72 Penn. 57. 
 Penn. 57. "• Marsh v. Alfred, 5 Bush. 392. 
 
Chap. IV.] FROM EXECUTION. 113 
 
 is merged into a judgment, and the judgment is paid by a 
 surety.^ 
 
 § 99. Wearing Apparel, what is and is not exempt. — 
 All ijecessary wearing apparel of every debtor is exempt from 
 levy and sale on execution. This exemption existed at com- 
 mon law independent of any statutory right ; still it was held,' 
 that, if a man had two gowns, the officer could seize one.^ 
 This exemption extends to cloths and trimmings put into the 
 hands of a tailor to be made into clothes necessary for the 
 debtor,* and cloths not manufactured.* But rihgs, jewelry, 
 and watches, not being wearing apparel, are liable to levy ; if 
 the officer is unable to levy on them, a receiver will be ap- 
 pointed to take possession of them." But where a watch is 
 actually necessary to the discharge of the debtor's business, 
 and not merely a convenience, it has been exempted as a 
 working tool.® Nor are travelling trunks, mahogany cabinet, 
 satchels or bags, wearing apparel.'' 
 
 § 100. Household Furniture. — Under the exemption of 
 household furniture, or necessary household furniture, the fact 
 that there is a larger amount than is required for the imme- 
 diate and constant use of the family is no objection.* The- 
 term "necessary," in the exemption laws, while it excludes 
 superfluities and articles of luxury, is not intended to denote 
 those articles of furniture which are indispensable to the bare 
 subsistence of the debtor and his family, but to embrace those 
 things which are requisite in order to enable them to live in a 
 comfortable and convenient manner; nor is it actually con- 
 
 ' Haley v. Davis, 16 Minn. 487. ' Towns v. Pratt, 33 N. H. 345. 
 
 Davis V. Peabody, 10 Barb. 91. Frazier v. Barnum, 4 Green, 316. 
 
 Griffin v. Trentlen, 48 Ga. 14B. Deposit Bank v. Wickham, 44 How. 
 
 ■■' Bowne v. Witt, 19 Wend. 475. Pr. 421. Rothschild v. Boelter, 18 
 
 Bumpus V. Maynard, 38 Barb. 626. Minn. 361. In re Graham, 2 Biss. 
 
 Cook V. Gibbs, 3 Mass.' 193. Sun- 449. 
 
 holf V. Alfred, 3 M. & W. 248. Wolf " Biting v. Vandenburgh, 17 How. 
 
 V. Summers, 2 Camp. 631. Pr. 80. 
 
 ' Richardson V. Buswell, 10 Met. ' Shaw v. Davis, 55 Barb. 389. 
 
 506. Towns V. Pratt, 33 N. H. 345. 
 
 ♦ Sims V. Reed, 12 B. Mon. 551. ' Haswell v. Parsons, 15 Cal. 266. 
 15 
 
114 PROPERTY EXEMPT [Chap. IV. 
 
 fined to such articles^as were necessary at the time such stat- 
 utes were enacted.^ In Louisiana the commercial books, office 
 fiirniture, and iron safes containing the books and papers, are 
 exempt.^ A piano is not exempt as household furniture ;^ but 
 may be as a musical instrument, and is in Kansas. 
 
 §101. Under the Terms "Provisions," "Necessaries," 
 "Food," &c., are included corn, potatoes, and vegetables planted 
 and raised by the debtor for use in his family, though not 
 severed from the soil ; * even on their way to market, to be 
 exchanged for articles of necessity in the family.^ And in 
 Kentucky, " necessaries " includes food, raiment, shelter,, and 
 other comforts for the family.^ 
 
 § I02. Under the Provisions relating to "Cattle," &c., 
 where the only cow is exempt, the exemption is applied to the 
 one of two cows on which there is no claim or mortgage ; ^ 
 while in other states, where the debtor has two, one within 
 and one without the jurisdiction of the court, the one within 
 the jurisdiction may be taken. Or where one is owned and 
 one hired, the one owned may be takeri.^ A heifer not old 
 enough to milk is included in the term cow, if the owner has 
 . no other, and intends to Iceep it as a cow.^ 
 
 § 103. In order that men might.be able to keep their fami- 
 lies together, and to preserve the domestic establishment from 
 want and dispersion, and, in the younger states of the Union, 
 as an inducement to immigration and protection to the new 
 settlers from the misfortunes and disabilities which they were 
 
 ' Davlin V. Stone, 4 Cush. 359. ' Nash v. Farrington, 4 Allen, 
 
 Montague v. Richardson, 24 Conn. 157. Shaw v. Davis, 55 Barb. 389. 
 
 338. ' Ford V. Teal, 7 Bush. 156. Har- 
 
 ' Harrison v. Mitchell, 13 La. 260. ris v. Dale, 5 Bush. 61. 
 
 Farmers', &c.. Bank v. Franklin, i ' Greenleaf v. Sanborn, 44 N. H. 
 
 La. 319. 16. Tryon v. Mansir, 2 Allen, 219. 
 
 ^ Tanner v. Billings, 18 Wis. 163. Hill v. Loomis, 6 N. H. 263. 
 
 Dunlap V. Edgerton, 30 Vt. 224. ' Robinson v. Myers, 3 Dana, 441. 
 
 * Mulligan v. Newton, 16 Gray, Lidsey v. Fuller, 10 Watts, 144. 
 
 211. Atkinson v. Catcher, 23 Ark. Trovillo v. Shingles., 10 Watts, 438. 
 
 101. Jewett V. Guyer, 38 Vt. 209. Hawkins v. Pearce, 11 Humph. 44. 
 
 Carpenter v. Herrington, 25 Wend. ° Carrith v. Grassee, 11 Gray, 2 17. 
 370- 
 
Chap. IV.] FROM EXECUTION. 115 
 
 compelled to flee as a matter of necessity, and seek new homes, 
 exemption laws were passed granting such extensive privileges 
 that to own all the law exempted would constitute a small 
 competence without other means ; and in many of the southern 
 states, under their reconstruction policies, the liberal induce- 
 ments and exemptions of the western states have been adopted. 
 Many articles are now exempt which do not enter into the 
 common use of the family, as teams, wagons, tools, implements 
 of agriculture, farming utensils, necessary food for stock, &c. 
 The term " teams " is intended to apply to teamsters, who by 
 the use of the team obtain a livelihood. Where a teamster is 
 mentioned in the exemption acts, it is a person who is engaged 
 with his own or other teams in the business of hauling freight 
 for others, for a consideration by which he habitually supports 
 himself and family, if he has one.^ The team which the ex- 
 emption law exempts from sale on execution, when owned by 
 any person being a householder, or having a family for which 
 he provides, includes any team which a householder or head 
 of a family may or can use in and about the business of pro- 
 viding for such family. The exemption is not exclusively for 
 the benefit of the owner of the property, but mainly for the 
 benefit of the family for which he provides.^ It may be com- 
 posed of one or more animals ; and whatever number may 
 compose it, if within the limit as fixed by statute, it will be 
 exempt. And whether a debtor has more or less property 
 beyond the amount limited by statute is wholly immaterial in 
 determining whether a team is necessary for him.^ Under the 
 term team are included an ox or bull, where the debtor has no 
 horse, mule, or yoke of oxen,* a single horse,^ a yoke of steer 
 
 ♦ 
 
 ' Brussie v. GrifBth, 34 Cal. 302. v. Slade, 57 Barb. 637. Wheeler v. 
 
 ' Wilcox V. Hawley, 31 N. Y. 648. Cropsey, 5 How. Pr. 288. 
 Knettle v. Newcomb, 22 N. Y. 252. ■* Wolfenbarger v. Standifer, 3 
 Curtis V. O'Brien, 20 la. 376. Den- Sneed, 659. Bowzey v. Netobegin, 
 ny V. White, 2 Cold. 283. Levick v. 48 Me. 410. 
 
 Walker, 15 La. 245. Maxwell v. ' Hoyt v. Van Alstyne, 15 Barb. 
 Reed, 7 Wis. 582. 568. Lockwood v. Younglove, 27 
 
 ' Wilcox V. Hawley, 31 N. Y. 648. Barb. 505. 
 Bevan v.Hayden, 13 la. 122. Smith 
 
116 PROPERTY EXEMPT [Chap. IV 
 
 calves,^ an ass,^ a stallion kept as a work horse, though a por 
 tion of the time applied to other uses,^ but not if kept only for 
 service of mares.* All that is required to extend the exemption 
 to a horse as a work-horse is, that he performs the common 
 drudgery of the homestead ; he need not be broken to gear, or 
 used in harness.^ The presumption is, that a debtor's only 
 horse is exempt under the statute, if he is entitled to one.* 
 The exemption of a horse includes, not only the horse, but 
 everything essential to its beneficial enjoyment, as shoes, sad- 
 dle, &c. ; '^ and the interest of a part owner of a horse is within 
 the statute.* A colt four months old and its dam are not a 
 span or teani of horses.^ "Necessary" food for stock does 
 not include food for animals which the debtor does not pos- 
 sess, and has no present purpose 'of obtaining.^* The term 
 " wagon " is intended to mean a common vehicle for the trans- 
 portation of goods, wares, and merchandise.^^ In Texas it in- 
 cludes all four-wheeled vehicles, whether covered or placed on 
 springs, whether for the transportation of property or per- 
 sons ; but in other states a buggy,^ a hackney coach,^^ a 
 wagon used for the purpose of selling patent couplings,^* are 
 not included in the term so as to come within the purview of 
 the. exemption laws, while a buggy or chaise used by a prac- 
 tising physician, who is a householder and head of a family, is 
 exempt.^^ 
 
 ' Mundell v. Hammond, 40 Vt. Rikers, i Duer. 606. Becker v. 
 
 641. Becker, 47 Barb. 497. 
 
 ' Richardson v. Duncan, 2 Heisk. ' Radcliif v. Wood, 25 Barb. 52. 
 
 220. * Ames V. Martin, 6 Wis. 361. 
 
 ' Allmann v. Gann, 29 Ala. 240. '" King v. Moore, 10 Mich. 538. 
 
 * Robert v. Adams, 38 Cal. 383. Cowan v. Main, 24 Wis. 569. 
 
 ■ ' Noland v. Wickham, 9 Ala. 169. " Quigley v. Gorham, 5 Cal. 418. 
 
 ' Matthews v. Redwine, 25 Miss. Favers v. Glass, 22 Ala. 621. 
 
 99. Cook V. Baine, 37 Ala. 350. " Gordon v. Shields, 7 Kan. 320. 
 
 Dearborn v. Phillips, 21 Tex. 447. Bevitt v. Crandall, 19 Wis. 581. 
 
 ' Davis V. Prosser, 32 Barb. 290. ■ " Roberts v. Adams, 38 Cal. 383. 
 
 Hutchinson v. Chamberlain, 11 N. Adams v. Quigley, 5 Cal. 418. 
 
 Y. Leg. Ob. 248. Cobbs v. Cole- " Gibson v. Gibbs, 9 Gray, 62. 
 
 man, 14 Tex. 594. Harthouse v. " Van Buren v. Loper, 29 Barb. 
 
Chap. IV.] FROM EXECUTION. 117 
 
 § 104. The Exemption of "Tools" is applicable to me- 
 chanics, miners, and other persons needing tools, and the stock 
 necessary for them to use their tools upon.^ Where the 
 words "other person" are used in a statute which exempts 
 from execution the tools, &c., of any " mechanic, miner, or oth^r 
 person," it does not include a farmer, in those statutes where 
 farming implements are mentioned or specified.^ Where the 
 owner of tools is not a tradesman, and does not use them him- 
 self, but employs others to work for him, the exemption does 
 not apply ; ^ or where a mechanic has ceased to carry on his 
 trade ; * or a horse used by a tanner.^ Tools are only pro- 
 tected by statute when used by a mechanic, &c., in his busi- 
 ness, and then only.^ A threshing machine five rods long, 
 requiring eight horses and ten men to work it, is not a work- 
 ing tool within the exemption act ;'' or if used to thresh other 
 people's grain as well as the owner's.^ Where the exemption 
 law applies to a mechanic as well a& heads of families, a party 
 who is both may in some states claim all the exemptions, as 
 the provisions are regarded as cumulative, and is allowed to 
 hold both classes exempt ; ® while in other states it is held not 
 so.^" Under the term " tools and implements " are classed a 
 printing press and material,^^ the surgical instruments of a 
 physician,^^ dental instruments,^^ but not in Mississippi ; ^* they 
 are tools, and should always be regarded as " necessary " tools. 
 
 388. Farner v. Turner, I Clarke ' Ford v. Johnson, 34 Barb. 364. 
 la. 53. ' Meyer v. Meyer, 23 la. 359. 
 
 ' Grymes v. Bryne, 2 Minn. 89. ° Harrison v. Martin, 7 Mo. 286. 
 
 ' Bevitt V. Crandall, 19 Wis. 581. Kenyon v. Baker, 16 Mich. 373. 
 
 ' Abercrombie v. Alderson, 9 Ala. Springer v. Lewis, 22 Penn. 191. 
 981. Richie v. McCauley, 4 Penn. '" In re Hezekiah, 2 Dill. 551. 
 471. Smith v.-Gibbs, 6 Gray, 298. " Prather v. Bobo, 15 La. 524. 
 
 Prather v. Bobo, 15 La. 524. Bailee v. Walters, 17 Ala. 482. ■> 
 
 * Davis V. Wood, 7 Mo. 162. " Robinson's Case, 3 Abb. Pr. 
 
 * Wallace v. Collins, 5 Ark. 41. 466. 
 
 * Burgess v. Everett, 9 Ohio S. " Maxon v. Perott, 17 Mich. 
 425. Prather v. Bobo, 15 La. 524. 332. 
 
 Garrett V. Patchin, 29 Vt. 248. Wil- " Whitcomb v. Reid, 31 Miss. 
 kinson v. Alley, 45 N. H. 551. 567. 
 
118 PROPERTY EXEMPT [Chap. IV. 
 
 A sewing machine ^ is by statute exempt in many states. In 
 some of the states, in addition to the usual allowance, there is 
 a fixed amount of stock in trade exempt, or " tools, iniplements, 
 or stock in trade of any mechanic, miner, or other person," 
 applies only to a lawful trade or business, notsto a saloon- 
 keeper without a license.''* But there is no reason why ex- 
 empt property should not consist of merchandise,' &c., where 
 a statute fixes a certain amount of property as exempt without 
 specifying the articles ; ^ but where the articles exempted are 
 specified, they, if mixed up with others of a similar kind, must 
 be identified so as to protect them.* In regard to the exemp- 
 tion of stock in trade, in its application to mercantile firms, 
 the decisions are not at all uniform. In some of the states, 
 the law is construed as inapplicable to property owned by sev- 
 eral persons in a partnership business,^ nor to ordinary mer- 
 chandise, on the ground, that if one partner may claim the 
 amount of the exemption, every one of a large partnership 
 may, thus withdrawing, perhaps, all the property from a sale 
 on execution. In North Carolina one of the partners may 
 claim the exemption by the consent of the firm, but not with- 
 out it ; ^ and in New York and Alabama it is construed so as 
 to exempt property owned by a debtor as one of a partnership.' 
 If the New York decision is to become the law of the land in 
 regard to its application to partnership debtors, a large part- 
 nership or corporation may, under that decision, own thou- 
 sands of dollars' worth of property which by no statute, in any 
 of the states, would be. exempt in the hands of an individual 
 debtor ; but if owned by twenty or fifty jointly, they could 
 defy their creditors. There is no doubt but that humanity 
 requires a liberal and charitable construction of the exemption 
 
 ' Dowling V. Clark, 3 Allen, 570. ' Pond v. Kimball, loi Mass. 105. 
 
 Daniels v. Hayward, 5 Allen, 43. Grymes v. Bryne, 2 Minn. 89. Gup- 
 
 In re Graham, 2 Biss. 449. til v. McFee, 9 Kan. 30. 
 
 ' Walsch V. Call, 32 Wis. 159. ° Burns v. Harris, 67 N. C. 140. 
 
 " Brewer v. Granger, 45 Ala. ' Stewart v. Brown, 37 N. Y. 350. 
 
 580. Howard v. Jones, 13 Am. Law Reg 
 
 * Smith V. Turnley, 44 Ga. 243. 457. 
 
Chap. IV.] FROM EXECUTION. 119 
 
 laws, but under the generous impulses of the New York Court 
 ■of Appeals, it will become almost impossible to collect a debt. 
 There are in some states, and should be in all, exemptions 
 allowed to professional men. Their libraries are exempt in 
 many states, and to a limited amount in others ; they are as 
 necessary as the tools of a mechanic, or the farming imple- 
 ments of a farmer, or the team to a teamster.^ Life insurance 
 policies are also exempted by the laws of most states,^ owing 
 to the efforts of the companies, and as inducement to insure. 
 An annuity is. exempt ; ^ wool and yarn, though its possessor 
 did not own the sheep from which it came ; * the necessary 
 implements of a militiaman ; ^ troop horses, but they must be 
 registered in accordance with law.^ A gun or rifle is not ex- 
 empt unless the property of a hunter or frontiersman." A bag 
 of gold coin in the hands of a person cannot be claimed, as a 
 ■debtor might, in the case of money upon his person.* The 
 earnings of a husband or head of a family, necessary for their 
 support, are exempt.^ But when a party ceases to be a resi- 
 dent, he is not entitled to the benefit of the exemption laws.^" 
 § ips. Of the Homestead Exemption. — The principles 
 upon which this exemption exists have already been stated — 
 those of humanity, and the protection that every sovereignty 
 owes its citizens, in preventing their being thrown upon the 
 cold mercies of the people, and turned out of house and home 
 ■dependent upon the charities of others. At common law no 
 such privileges were known. The laws abolishing imprison- 
 ment for debt having been enacted, upon similar principles 
 state legislatures went still farther, and gave to the unfortu- 
 nate debtor the home of himself and family, in many instances 
 
 ' Robinson's Case, 3 Abb. Pr. ' Hendricks v. Lewis, R. M. 
 
 466. Fowler v. Gilmore, 30 Tex. Charlt. 105. Crocker v. Hunt, 2 
 
 .432. Lenoir v. Weeks, 20 Ga. 596. McCord, 352. 
 
 » Friedlander v. Mahoney, 31 la. ' Southwell v. Harley, 3 Rich. 180. 
 
 311. ' Choate v. Redding, 18 Tex. 579. 
 
 ' Courtoy v. Vincent, 9 Eng. L. ' Green v. Palmer, 15 Cal. 411. 
 
 & Eq. 205. " Rush V. Vought, 55 Penn. 437^ 
 
 * Hall V. Penny, 1 1 Wend. 44. Brown v. Hebard, 20 Wis. 326. 
 
 3rackett v. Watkins, 21 Wend. 68. •» Finly v. Sly, 44 Ind. 266. 
 
120 PROPERTY EXEMPT [Chap. IV. 
 
 limiting it to such amount in value as would make the exemp- 
 tion peculiarly applicable to the very class of debtors it was 
 intended for. As an inducement to emigration, the states 
 west of the Ohio river, and the lately reconstructed states of 
 the south, have, by constitutional and statutory provisions, in- 
 creased the quantity and value of the homestead exemption to 
 such an extent that a homestead may (in Kansas) consist of a 
 place worth half a million, if the owner desires so costly and 
 expensive a home, and exempts it from ordinary debts. The 
 entire lack of unanimity in the decisions relating to the home- 
 stead exemption, in the various states, is only equalled by the: 
 difference in the provisions of the various statutes regulating 
 them ; so that, while there is no uniform rule of construction, 
 there is no uniform exemption, and the adjudications can be 
 given only so far as they relate to the subject of execution, 
 with the abstract of the homestead laws of each state. A 
 homestead represents the dwelling house at which the family 
 resides, with the usual and customary appurtenances, includ- 
 ing outbuildings of every kind for family use, and the land 
 used for the purpose thereof If situated in the country, it 
 may include a garden or farm ; if in a city or town, one or 
 more lots or blocks. It need not be in one compact body, or 
 circumscribed by fences, in some states, while in others it must 
 consist of only one tract or body of land.^ The only test, in most: 
 states, is use and value.^ The homestead laws do not carve out: 
 of the real property occupied as a family homestead, an estate 
 of the value or quantity fixed by statute, distinct from the resi- 
 due of the property, possessing from its inception the quality of 
 assignability, either separately or in connection with the entire, 
 property, but only create for the mutual benefit of the husband,, 
 wife, and minor children, an inchoate right of homestead in. 
 every piece or tract of real property owned and occupied as a.. 
 
 ' Randall v. Elder, 12 Kan. 257. ' Tomlinson v. Swinney, 22 Ark.. 
 
 Bunckerv. Locke, 16 Wis. 638. True 400. Barney v. Leeds, 51 N. H.. 
 
 V. Morrill, 28 Vt. 672. Walters v. 253. Gregg v. Bostwick, 33 CaL 
 
 People, 18 III. 194. Kresin v. Mann, 220. 
 15 Minn. 116. 
 
Chap. IV.] FROM EXECUTION. 121 
 
 family homestead, incapable of extinguishment by the sole act 
 of the husband and father, except as may be provided in the 
 laws, contingent upon the occurrence of circumstances which 
 may entitle the parties in whom it vests to demand its enforce- 
 ment personal to them, until perfected by the actual separation 
 of the property to which it may be applied from the residue of 
 the estate, liable to be waived only by the joint deed of hus- 
 band and wife, duly executed, and not assignable to a third 
 person, as an available right in the hands of an assignee, until 
 vested in some specific property.^ It cannot, in an obsolete 
 sense, be said to be an estate in land, for the law creates none, 
 and leaves the fee as it was before ; but it in substance declares 
 that the right of occupancy shall not be disturbed as long as 
 the homestead character exists. While this continues, the 
 judgment creditor cannot lay his hands on the property, nor 
 the husband sell it without the consent of his wife, and in many 
 states not then, without an express release of both. The ob- 
 ject of the law is to secure a honiestead for the family, and the 
 disposition of the property, either by judicial sale or voluntary 
 conveyance, is left unaffected, except so far as is necessary to 
 accomplish this object. As long as the property retains its 
 peculiar character, it is within the protection of the law. As 
 soon as a place acquires the character of a homestead, without 
 reference to the manner in which the title to the property 
 originated, whether it was the sepafate property of the hus- 
 band or wife, or the common property of both, it is changed to 
 a sort of joint tenancy, with the right of survivorship, as be- 
 tween husband and wife ; and this estate cannot be altered or 
 destroyed except by the concurrence of both in the manner 
 provided by law.^ 
 
 § io6. Who entitled to claim the Homestead Exemp- 
 tion. — The exemption from sale under execution may be 
 lost by abandonment or surrender, that is, by acts in pais? 
 The exemption laws are held not to apply to debts contracted 
 
 ' Gunnison v. Twichell, 38 N. Taylor v. Hargous, 4 Gal. 268. 
 
 H. 62. North V. Shearn, 15 Tex. 174. 
 
 ' Cook V. McChristian, 4 Cal. 23. ^ Finley v. McConnell, 60 III 
 16 
 
122 
 
 PROPERTY EXEMPT 
 
 [Chap. IV. 
 
 before their passage ; ^ or from actions founded on tort, in 
 Georgia.^ This right of exemption may be claimed by tempo- 
 rary residents on their own property ^ (by a " resident of the 
 state " is meant actual, not constructive, presence,* and " a cit- 
 izen " means a resident of a town, state, or county, without 
 any implication of political or civil privileges ^ ) ; unmarried 
 men, in Arkansas ;^ aj:iead of a family, or householder, if the 
 owner of the land ; ^ by an alien who intends to make a per- 
 manent residence in the state ; ^ a husband, after the death of 
 his wife, regardless of issue or no issue,^ or after divorce ; ^° the 
 wife, if she survive the husband, provided the right has not 
 been lost by acquiring another homestead,^^ though married a 
 second time ; ^^ it vests absolutely in the survivor.-'^ An un- 
 married woman who has the care and custody of her minor 
 child, although she has never been married.^* But it cannot 
 be claimed by the wife during the lifetime of her husband ; 
 it is for him, while living, to claim it,-'^ or where she has with- 
 drawn from the jurisdiction of the state, and lives in another^* 
 
 259. Lawton v. Bruce, 39 Me. 488. 
 Hershfeldt v. George, 6 Mich. 456. 
 Chamberlain v. Lyell, 3 Mich. 448. 
 McDonald v. Crandall, 43 III. 231. 
 Coe V. Smith, 47 111. 225. Hewitt 
 V. Templeton, 48 III. 367. Hoyt v. 
 Howe, 3 Wis. 752. Allen v. Cooke, 
 26 Barb. 374. Smith v. Brocket, 36 
 Barb, 571. Black v. Curran, 4 Legal 
 News, 237. 
 
 ' Homestead Cases, 22 Gratt. 266. 
 Gunn V. Barry, 15 Wall. 610. Kib- 
 bey V. Jones, 7 Bush, 243. Lasley 
 V. Phipps, 13 Am. Law Reg. 236. 
 Martin v. Hughes, 67 N. C. 293. 
 
 * Davis V. Henson, 29 Ga. 345. 
 
 ' Dawley v. Ayers, 23 Cal. 108. 
 Lowe V. Stringham, 14 Wis. 222. 
 
 * Rix V. McHenry, 7 Cal. 98. 
 
 ' McKenzie v. Murphy, 24 Ark. 
 
 ' Greenwood v. Maddox, 27 Ark. 
 648. 
 
 ' White V. Clark, 36 III. 285. 
 
 ' People V. Clay, 2 Neb. 7. 
 
 ' Silloway v. Brown, 12 Allen, 30. 
 Burns v. Kneas, 21 la. 257. Stew- 
 art V. Brand, 23 la. 477. 
 
 '" Redfern v. Redfern, 38 111. 509. 
 
 " Davis V. Andrews, 30 Vt. 678. 
 Chaplin v. Sawyer, 35 Vt. 286. 
 Keyes v. Hill, 30 Vt. 759. Becker 
 v. Becker, 47 Barb. 497. McClary 
 V. Bixby, 35 Vt. 254. 
 
 " Nicholas v. Purcell, 21 la. 265. 
 Johnson v. Davenport, 42 Ala. 
 
 317- 
 
 " Wixom's Estate, 35 Cal. 320. 
 Williams v. Hall, 33 Tex. 272. 
 
 " Ellis v. White, 47 Cal. 73. 
 
 " Getzler v. Saroni, 18 111. 511, 
 Strachn v. Foss, 42 N. H. .43. 
 Guiod V. Guiod, 14 Cal. 506. 
 
 " Trawick v. Harris, 8 Te*. 
 
 312. 
 
Chap. IV.] FROM EXECUTION. 123 
 
 (the mere fact of a wife never having been in a state does not 
 debar her of homestead rights ; her domicile is supposed to be 
 where her husband is^), or where she has no children, and her 
 husband is a non-resident ; ^ an unmarried woman without 
 children ; ^ where the wife dies without children, the husband 
 cannot claim, in California ; * a mortgagor as against his mort- 
 gagee." 
 
 § 107. What may constitute a Homestead. < — A home- 
 stead, while it exists in lands held in fee, may exist in land 
 held by tenants in common;® in a country hotel;'' in a 
 house, though part is used for other purposes,^ or rented 
 to a tenant ; ® in the entire property of the debtor, if its value 
 is less than the statutory limit ; ^^ in property purchased and 
 moved into on the day of sale ; ^^ land of which the party has 
 only naked possession, as against everybody but the owner.^ 
 The occupant need not have a perfect title, but whatever his 
 interest may be, the occupancy, in order to constitute a home- 
 stead, must be of some specific portion, capable of being set 
 apart by metes and bounds, and thus separated from that which 
 is not exempt.^* 
 
 § 108. What is not exempt as a- Homestead. — A 
 tract of land two and a half miles from the homestead farm, 
 and used as a pasture, cannot be claimed ; ^* nor a tract 
 cornering on the homestead tract, if it does not otherwise 
 adjoin it, upon which the owner has never resided ; ^^ nor a 
 
 ' Lacy V. Clement, 36 Tex. 661. ' Mercier v. Chase, 11 Allen, 194. 
 
 ' KeifFer v. Barney, 31 Ala. 193. •"' Hubbell v. Canady, 58 111. 425. 
 
 ' Woodworth V. Comstock, 10 Al- " Stone v. Darnell, 20 Tex. 11. 
 
 ten, 425. West River Bank v. Gale, 42 Vt. 
 
 * Revalk v. Kramer, 8 Cal. 66. 27. McManus v. Campbell, 37 Tex. 
 ' McAuley App., 35 Penn. 209. 267. 
 
 McCormack v. Wilcox, 25 111. 274. " Spencerv. Geissman,37CaI.96. 
 
 * Higgins V. Higgins, 46 Cal. 259. FyfFe v. Beers, 18 la. 4. 
 Williams v. Wetherel, 37 Tex. 130. " West v. Ward, 26 Wis. 319. 
 Smith V. Desschaumes, 37 Tex. 429. Ward v. Kuhn, 16 Minn. 159. Elias 
 McClary v. Bixby, 35 Vt. 254. v. Verdugo, 27 Cal. 418. 
 
 ' Lazell V. Lazell; 8 Allen, ^7^. " Adams v. Jenkins, 16 Gray, 146. 
 Goldman v. Clark, i Nev. 607. " Kressin v. Mann, 15 Miim. ii6u 
 
 ' /« re Tertelling, 2 Dill. 339. 
 
124 PROPERTY EXEMPT [Chap. IV. 
 
 vacant lot never used, and wholly separated from the home- 
 stead by a street.^ But where the whole does not exceed the 
 limit, it may be exempt.^ No more of a lot in a city or village 
 should be allowed as exempt than is used for the purpose of a 
 homestead. The law has regard for the purpose for A^hich 
 property is used ; and if a building is erected, consisting of 
 magnificent stores and offices, with the owner residing in the 
 upper or attic story, and the rest of the building is in posses- 
 sion of tenants, the portion so occupied should not be ex- 
 empted ; it is a fraud upon the law, and upon one^s cred- 
 itors.^ Where a homestead is selected for agricultural pur- 
 poses, and, as such, exempt from execution, if subsequently 
 the land is attached to a city or town, the exemption of a 
 town or city property then applies to it* In case of a result- 
 ing trust, where the nominal grantee holds land for the use of 
 the real owner, it is impossible for the trustee to acquire any 
 homestead rights unencumbered by such trust.^ In some 
 states there is no homestead in land held in joint tenancy.^ 
 
 § 109. Only one Homestead allowed by Law. — A debt- 
 or can have but one homestead.' There can be no contem- 
 plated homestead, nor a homestead without a dwelling-house ; 
 the mere purchase of a tract of unimproved: land, with the in- 
 tention of residing thereon, will not create a homestead.* 
 The essentials of a homestead are ownership and occupancy 
 
 ' Methery v. Walker, 17 Tex. * Parker v. King, 16 Wis. 223. 
 
 593. True V. Morrill, 28 Vt. 672. Sarahas v. Fenlon, 5 Kans. 592. 
 
 Walters v. People, 18 111. 194. ° Shephard v. White, 1 1 Tex. 346. 
 
 Mills V. Estate of Grant, 36 Vt. 269. ' Cameto v. Dupuy, 47 Cal. 79. 
 
 " Buxton V. Dearborn, 46 N. Elias v. Verdugo, 27 Cal. 418. 
 
 H. 43. Thurston v. Maddocks, 6 Allen, 
 
 '' Casselman v. Packard, 16 Wis. 427. 
 
 114. Dyson v. Sheely, ,11 Mich. ' Tourville v. Pearson, 39 111. 446. 
 
 527. True V. Morrill, 28 Vt. 672. ' Lee v. Miller, 11 Allen, 377. 
 
 ^urchv. Bursch, 13 la. 371. Rhodes Charless v. Lambertson, i la. 435. 
 
 V. McCormick, 4 la. 368. Philleo v. Christy v. Dyer, 14 la. 438. Cole v. 
 
 Smalley, 23 Tex. 498. Hoyt v. Gill, 14 la. 527. Coolidge v. Wells, 
 
 Webb, 36 N. H. 158. Cary v. Tice, 20 Mich. 79. Eranklin v. Coffee, 18 
 
 6 Cal. 625. Wisner v. Farnham, 2 Tex. 41. 
 Mich. 472. 
 
Chap. IV.] 
 
 FROM EXECUTION. 
 
 125 
 
 by the husband and family. The exemption applies to an 
 equitable as well as a legal estate, an encumbered as well as 
 an unencumbered estate.^ Premises do not become impressed 
 with the legal character of a homestead until actual residence 
 and occupation by the family as a home, and must be the actual 
 residence of the debtor and his family .^ A homestead is not 
 acquired until the title to the land is acquired, or the party is 
 in condition to demand title.' They must be selected as such, 
 in Michigan,* and must be owned and occupied as a home- 
 stead ; it is a personal right, and the premises cannot be occu- 
 pied by a tenant.^ The general rule adopted by the courts in 
 regard to the temporary abandonment of the homestead, with 
 the intention of reoccupying it, though occupied by a tenant 
 during such abandonment, is, that it does not lose its char- 
 acter, or subject it to levy and sale.* Nor will the convey- 
 
 ' Morgan v. Steams, 41 Vt. 391. 
 Doane v. Doane, 46 Vt. 485. 
 
 * Tourville v. Pierson, 39 111. 444. 
 Austin V. Stanley, 46 N. H. 51. 
 Wassail V. Tunnah, 25 Ark. loi. 
 Folsom V. Carli, j Minn. 333. Til- 
 lottson V. Millard, 7 Minn. 513. 
 Benedict v. Bunnell, 7 Gal. 248. 
 Charless v. Lambertson, i la. 435. 
 Gregg V. Bostwick, 33 Gal. 220. 
 Mann v. Rogers, 35 Gal. 316. Pres- 
 cott V. Prescott, 45 Gal. 58. Holden 
 V. Pinney, 6 Gal. 235. Norris v. 
 Moulton, 34 N. H. 392. Meyer v. 
 Glaus, 15 Tex. 516. Wisner v. Farn- 
 ham, 2 Mich. 172. Rix v. McHenry, 
 7 Gal. 89. Williams v. Swetland, 10 
 la. 51. Philleo v. Smalley, 23 Tex. 
 498. Horn V. Tufts, 39 N. H. 478. 
 True V. Morrill, 28 Vt. 672. Met- 
 hery v. Walker, 17 Tex. 573. Prior 
 V. Stone, 19 Tex. 371. Davis v. An- 
 drews, 30 Vt. 678. Earle v. Earle, 
 9 Tex. 630. Kitchell v. Burgwin, 
 21 III. 45. Walters v. People, 21 
 
 III. 178. Franklin v. Goffee, 18 
 Tex. 413. Edwards v. Fry, 9 Kan. 
 417. Spaulding v. Crane, 46 Vt. 
 292. West River Bank v. Gale, 42 
 Vt. 27. McGlary v. Bixby, 36 Vt. 
 
 2S4- 
 
 ' Farmer v. Simpson, 6 Tex. 303. 
 
 ■* People v. Plumstead, 2 Mich. 
 465. 
 
 ° Hoitt V. Webb, 36 N. H. 158. 
 Gary v. Tice, 6 Gal. 625. Wisner 
 V. Farnham, 2 Mich. 472. True v. 
 Morrill, 28 Vt. 672. Raster v. Wil- 
 liams, 41 Ala. 302. 
 
 ' Wiggins V. Chance, 54 111. 475. 
 Green v. Marks, 25 111. 221. Ste- 
 venson V. Marony, 29 111. 534. Bliss 
 V. Clark, 39 111. 590. Fishback v. 
 Lane, 36 III. 437. Davis v. Kelley, 
 14 la. 523.' Herrick v. Graves, 16 
 Wis. 157. Drury v. Batchelder, 11 
 Gray, 214. Dulanty v. Pynchon, 6 
 Allen, 510. Connor v. Nichols, 31 
 111. 148. Thornton v. Boynton, 31 
 111. 200. Moore v. Dunning, 29 III 
 
126 
 
 PROPERTY EXEMPT 
 
 [Chap. IV. 
 
 ance and repurchase of a homestead without a relinquish- 
 ment of possession, even though made in fraud of creditors, 
 constitute an abandonment ; ^ and if sold or exchanged for 
 another, is free from any judgment lien,^ but not in Missis- 
 sippi and Minnesota.^ 
 
 § no. The homestead exemption is created by statute in 
 IlHnois, New York, Massachusetts, Ohio, Maine, Michigan, 
 New Hampshire, Iowa, Vermont, by constitutional provisions 
 in Kansas, Texas, California, Wisconsin, Indiana, Nebraska, 
 and Mississippi, and only a quasi homestead exemption in 
 Pennsylvania, Louisiana, Indiana, and Nevada. In Connecti- 
 cut, Delaware, Rhode Island, and the District of Columbia, 
 there is no homestead exemption known. The statutory pro- 
 visions of the various states, in relation to the extent, amount, 
 and limit, are so different that an abstract of the laws is given 
 in order that what is a homestead in the various states may be 
 ascertained. 
 
 135. Walter v. Beadles, 18 111. 224. 
 Kitchell V. Burgwin, 21 111. 45. 
 Campbell v. Adair, 45 Miss. 170. 
 Taylor v. Boulevare, 17 Tex. 74. 
 Hancock v. Morgan, 17 Tex. 582. 
 McDowell V. Diefendorf, Kansas 
 (unreported). Cipperly v. Rhodes, 
 S3 111. 346. Woodward v. Till, I 
 Mich. N. P. 210. Bearing V. Thom- 
 as, 25 Ga. 223. Franklin v. Coffee, 
 18 Tex. 413. Walters v. People, 21 
 111. 178. Shepard v. Cassily, 20 
 Tex. 24. Gouchenor v. Cockrell, 20 
 Tex. 96. Moss V. Warner, 10 Cal. 
 296. Lazell V. Lazell, 8 Allen, 575. 
 Phelan's Estate, 16 Wis. ^(>. pyffe 
 V. Beers, 18 la. 4. Morris v. Sar- 
 gent, 18 la. 90. Woodbury v. Lud- 
 dy, 14 Allen, i. Locke v. Rowell, 
 47 N. H. 46. Cross V. Evarts, 
 28 Tex. 523. West River Bank v. 
 Gale, 42 Vt. 27. Carrington v. Her- 
 rin, 4 Bush, 424. Whicher v. Long, 
 
 II la. 48. Norman v. Bellman, 16 
 Ind. 156. 
 
 ' Vogler V. Montgomery, 54 Mo. 
 577. Crummen v. Bennet, 68 N. C. 
 494. Tumlinson v. Swinney, 22 Ark. 
 400. Morgan v. Stearns, 41 Vt. 398. 
 Locke V. Rowell, 47 N. H. 46. Fish- 
 back V. Lane, 36 111. 437. Ives v. 
 Mills, 37 111. 73. Lamb v. Shay, 14 
 la. 57. Bearing v. Thomas, 25 Ga. 
 224. Cox v. Wilder, 2 Dill. 45. 
 Rix V. Capitol Bank, 2 Dill. 367. 
 Bartholomew v. West, 2 Dill. 290. 
 
 ■^ Green v. Marks, 25 111. 221. 
 Dopp v. Albee, 17 Wis. 590. Good- 
 man V. Smith, 17 Ind. 152. Cooke 
 v. Baine, 37 Ala. 350. Sepman v. 
 Carter, 15 Wis. 548. Denny v. 
 White, 2 Cold. 283. Tillottson v. 
 Wolcott, 48 N. Y. 188. 
 
 ' Whitworth v. Lyons, 39 Miss. 
 467. Piper V.Johnson, 12 Minn. 60, 
 
Chap. IV.] FROM EXECUTION. 127 
 
 Alabama. — A homestead not exceeding eighty acres of 
 land, the dwelling and appurtenances- thereon to be selected by 
 the owner, not in any village, town, or city, or, in lieu thereof, 
 at the option of the owner, any lot in a city, town, or village, 
 with the dwelling and appurtenances thereon, owned and occu- 
 pied by any resident of the state, and not exceeding the value 
 of two thousand dollars, shall be exempted from sale, or execu- 
 tion, or any other final process from court, since the adoption 
 of the present constitution. 
 
 Arkansas. — One hundred and sixty acres of land, or one 
 town or city lot, being the residence of a householder or head 
 of a family, with the appurtenances and improvements thereto 
 belonging, to the value of five thousand dollars, and personal 
 property to the value of two thousand dollars. 
 
 California. — The homestead, not exceeding five thousand 
 dollars in value, if a declaration of homestead is properly filed in 
 the recorder's office of the county where situate, by a husband, 
 or wife, or other head of a family, is exempt from execution, 
 except in the following cases : First, where the judgment was 
 obtained before the declaration of homestead ; second, on judg- 
 ment for liens of mechanics, laborers, or vendors of the land; 
 third, on debts secured by mortgage on the land executed by 
 husband and wife or an unmarried claimant ; fourth, on debts 
 secured by mortgage on the land before the declaration of 
 homestead. The exemption is extended to the right to home- 
 steads held in joint tenancy, tenancy in common, or where the 
 claimant owns only an undivided interest therein. 
 
 Colorado. — Every householder being the head of a family 
 is entitled to a homestead not exceeding in value the sum of two 
 thousand dollars, exempt from execution and attachment arising 
 from any debt, contract, or civil obligation entered into or in- 
 curred after the first day of February, 1868. Such homesteads 
 are only exempt while occupied as such by the owner thereof 
 or his or her family. When any person dies seized of a home- 
 stead, leaving a widow, or husband, or minor children, such 
 widow, or husband, or minor children shall be entitled to the 
 homestead ; but in case there is neither widow, husband, nor 
 
] 28 PROPERTY EXEMPT [Chap. IV. 
 
 minor children, the homestead shall be liable for the debts of 
 the deceased. The homestead may consist of a house and lot 
 or lots in any town or city, or of a farm of any number of acres, 
 so that the value does not exceed two thousand dollars. Lands 
 acquired also under the United States homestead law are not 
 liable for debts contracted prior to the issuance of the patent. 
 
 Florida. — Homestead of one hundred and sixty acres of 
 land and irnprovements, if in the country ; a residence and one 
 half acre of ground, if in a village or city, together with one 
 thousand dollars' worth of personal property. 
 
 Georgia. — Each head of a family, or guardian, or trustee 
 of a family of. minor children is entitled to a homestead of 
 realty to the value of two thousand dollars in specie, to be 
 valued at the time it is set apart. 
 
 Illinois. — Lot of ground and buildings thereon occupied 
 as a residence by the debtor, being a householder, and having 
 a family, to the value of one thousand five hundred dollars. 
 Exemption continues after the death of the householder for 
 benefit of the widow and family, some one of them occupying 
 the homestead until the youngest child shall become twenty- 
 one years of age, and until death of the widow. No release or 
 waiver of exemption is valid unless in writing, and subscribed 
 by such householder and wife (if he have one), and acknowl- 
 edged as conveyances of real estate are required to be ac- 
 knowledged. 
 
 Iowa. — The homestead must embrace the house used as a 
 home by the owner thereof; and if he has two or more houses 
 thus used by him at different times and places, he may select 
 which he will retain as his homestead. If within a town plat, 
 it must not exceed one half acre in extent ; and if not in a 
 town plat, it must not embrace in the aggregate more than 
 forty acres. But if, when thus limited in either case, its value 
 is less than five hundred dollars, it may be enlarged until its 
 value reaches that amount, if owned and occupied by any resi- 
 dent of the state. This exemption is not to affect any labor- 
 er's or mechanic's lien or mortgage, lawfully obtained, which 
 shall expressly stipulate that the homestead is liable ; neither 
 
Chap. IV.] FROM EXECUTION. 129 
 
 does it apply to an execution for debts contracted prior to the 
 passage of the law, or prior to the purchase of the homestead. 
 A mortgage or conveyance of the homestead is void unless 
 joined by both husband wife. This exemption descends to 
 the surviving head of the family, or to their issue. The debtor 
 must select his own homestead, and have it marked out, plat- 
 ted, and recorded in the homestead book. Failure to do this 
 does not render the homestead liable, but the officer having an 
 execution may have it done, and add the expenses to the 
 writ. 
 
 Indiana. — Any resident householder has an exemption 
 from levy and sale under execution of real or personal prop- 
 erty, or both, as he may select, to the value of three hundred 
 dollars. The law further provides that no property shall be 
 sold by virtue of an execution for less than two thirds of its 
 appraised cash value. The provisions of this law can be 
 waived in contracts. To do this the note or contract should 
 read, " Payable without any relief whatever from valuation or 
 appraisement laws." The debtor cannot waive the exemption, 
 or stay laws in a binding form. 
 
 Kansas. — A homestead to the extent of one hundred and 
 sixty acres of farming land, or of one acre within the limits of 
 an incorporated town or city, occupied as a residence by the 
 fanaily of the owner, together with all the improvements on the 
 same, shall be exempt from forced sale under any process of 
 law, and shall not be alienated except by joint consent of hus- 
 band and wife, when that relation exists. No value is affixed 
 to the homestead. It may be worth a million dollars. 
 
 Kentucky. — On all debts or liabilities created after the 
 firstday of June, 1866, so much land, including the dwelling- 
 house and appurtenances, as shall not exceed in value one 
 thousand dollars. 
 
 Louisiana. — One hundred and sixty acres of land and the 
 buildings and improvements thereon, occupied as a residence, 
 and bona fide owned by the debtor, having a family, or mother, 
 or father, 01 person, or persons dependent on him for support. 
 
 Maine. — By complying with certain statutory provisions, 
 17 , 
 
130 PROPERTY EXEMPT , [Chap. IV. 
 
 there is exempted a lot of land, dwelling-house, &c., not ex- 
 ceeding five hundred dollars in value. 
 
 Massachusetts. — Every householder having a family is 
 entitled to an estate of homestead to the extent in value of 
 eight hundred dollars, in the farm or lot of land and buildings 
 thereon, owned or rightly possessed by lease or otherwise, and 
 occupied by him as a residence. To constitute a homestead, 
 and entitle it to exemption, it must be set forth in the deed of 
 conveyance by which the property is acquired that it is de- 
 signed to be held as a homestead, or, after the title is acquired, 
 such design must be declared in writing, and recorded in the 
 registry of deeds for the county or district where the property 
 is situated. The homestead estate may be conveyed or re- 
 leased by a deed duly acknowledged and recorded, in which 
 the wife joins for the purpose of releasing the right of home- 
 stead. The estate or right of homestead of any householder, 
 existing at his death, continues for the benefit of his widow 
 and minor children, and may be held and enjoyed by them, if 
 some one of them occupies the premises, until the youngest 
 child is twenty-one years of age,' or until the death or marriage 
 of the widow. 
 
 Michigan. — Any quantity of land not exceeding forty 
 acres, and the dwelling-house thereon with its appurtenances, 
 to be selected by the owner thereof, and not included in any 
 recorded town plat, city, or village, or instead thereof, at the 
 option of the owner, a quantity of land not exceeding in 
 amount one lot, being within a recorded town plat, city, or 
 village, and the dwelling-house thereon and its appurtenances, 
 owned and occupied by any resident of the state, not exceed- 
 ing in value one thousand five hun(ired dollars, is exempt dur- 
 ing the minority of his children and the occupation of his 
 widow. Any person owning and occupying any house on 
 land not his own, and claiming such house as his homestead, 
 shall be entitled to the exemption. 
 
 Minnesota: — Eighty acres of land selected as a home- 
 stead, or a lot and dwelling-house thereon in any incorporated 
 town plat, city, or village, being a homestead. 
 
Chap. IV.] ,FROM EXECUTION. 131 
 
 Mississippi. — On debts contracted after September i, 1870, 
 only eighty acres of land to the head of every family being a 
 housekeeper ; to a resident of any incorporated town being the 
 head of a family and a housekeeper, two thousand dollars' 
 worth of real property, comprising the proper homestead. It 
 is understood that on debts contracted before September, 
 1870, the exemptions of the code of 1857 are applicable, viz., 
 one hundred and sixty acres of land, homestead, one thousand 
 five hundred dollars. 
 
 Missouri. — Married men are allowed a homestead of one 
 hundred and sixty acres of land, to the value of one thousand 
 five hundred dollars. In cities of forfy thousand inhabitants 
 or over, homestead shall not include more than eighteen square 
 rods of ground, nor exceed in value three thousand dollars. In 
 cities of less size a homestead shall not include over thirty square 
 rods, nor exceed one thousand five hundred dollars in value. 
 Personal property to the amount of not less than three hun- 
 dred dollars to the heads of families. 
 
 Nebraska. — A homestead consisting of any quantity of 
 land, not exceeding one hundred and sixty acres, and the 
 dwelling-house thereon and its appurtenances, to be selected 
 by the owner thereof, and not included in any incorporated 
 city or village: ; or, instead thereof, at the option of the owner, 
 a quantity of contiguous land, not exceeding two lots, being 
 within an incorporated town, city, or village, and according 
 to the recorded plat of said incorporated town, city, or village ; 
 or, in lieu of the above, a lot or parcel of contiguous land, not 
 exceeding twenty acres, being within the limits of an incorpo- 
 rated town, city, or village; the said parcel or lot of land not 
 being laid off into streets, blocks, and lots, owned and occupied 
 by any resident of the state being the head of a family, shall not 
 be subject to attachment, levy, or sale upon execution or other 
 process issuing out of any court in this state so long as the 
 same shall be occupied by the debtor as a homestead. 
 
 Nevada. — Real estate worth less than five thousand dollars 
 is exempt^ 
 
 ' Goldman v. Clark, i Nev. 607. 
 
132 PROPERTY EXEMPT [Chap. IV. 
 
 New Hampshire. — Homestead to the value of five hundred 
 dollars. A homestead is exempt from attachment and execu- 
 tion, and is in no way liable for the husband's debts, nor sub- 
 ject to distribution or devise while a widow or minor child 
 lives thereon ; but the right may be waived by the deed of the 
 husband and wife, and is not valid against a claim on note and 
 mortgage, or for labor less than one hundred dollars, or a lien 
 by the seller of the estate for its price, or for a debt contracted 
 for the erection of buildings, or for taxes. 
 
 New Jersey. — Under certain stringent statutory provisions 
 the lot and buildings thereon, occupied as a residence, and 
 owned by the debtor, being a householder, and having a fam- 
 ily, to the value of four thousand dollars. Such exemption 
 shall continue after the death of such householder for the ben- 
 efit of the widow and children, some or one of them continuing 
 to occupy such homestead until the youngest child becomes 
 twenty-one years of age, and until the death of the widow, and 
 no release or waiver of such homestead exemption shall be 
 valid. The statute further provides for the sale or division of 
 the homestead on execution when its value exceeds one thou- 
 sand dollars. 
 
 New York. — Homestead to the value of one thousand dol- 
 lars, owned and occupied by debtor being a householder, and 
 having a family, such exemption to be continued after the 
 death of the debtor for the benefit of his widow and children, 
 some or one of them continuing to occupy such homestead 
 until the youngest child becomes twenty-one years of age, and 
 until the death of the widow. To entitle any person to the ben- 
 efit of the homestead exemption,, the conveyance of the same 
 must show that it is designed to be held as a homestead, or if 
 already purchased, or the conveyance does not show such de- 
 sign, a notice that the same is to be so held shall be executed and 
 acknowledged by the person owning the property, which shall 
 contain a full description thereof, and shall be recorded in the 
 office of the clerk of the county in which the property is situ- 
 ate, in the " Homestead Exemption Book." 
 
 North Carolina. — Every homestead, and dwelling, and 
 
Chap. IV.] FROM EXECUTION. 133 
 
 buildings used therewith, not exceeding in value one thousand 
 dollars, to be selected by the owner thereof; or in lieu thereof, 
 at the option of the owner, any lot in a city, town, or village, 
 with the dwellings used thereon, owned and occupied by any 
 resident of the state, and not exceeding the value of one thou- 
 sand dollars. 
 
 Ohio. — The family homestead of each head of a family is 
 exempt from sale on execution on any judgment or decree ren- 
 dered in any cause of action accruing after April 9, 1869, pro- 
 vided that such homestead does not exceed one thousand dol- 
 lars in value. When the homestead consists of a house and 
 lot of land that will not bear a division, the plaintiff in execu- 
 tion shall receive, in lieu of the proceeds of a sale of the home- 
 stead, the amount over and above one hundred dollars annually, 
 which shall be adjudged by appraisers as a fair and reasonable 
 rent for the same, until the debt, interest, and costs are paid, 
 the same being payable quarterly. In default of rent being 
 paid quarterly, or within ten days after each payment shall 
 become due, it is the duty of the sheriff to proceed and sell 
 said homestead. It cannot be sold for less than its appraised 
 value. 
 
 Pennsylvania. — Three hundred dollars' worth of property, 
 either real or personal. 
 
 South Carolina. — By the constitution of 1868, it is pro- 
 vided that the family homestead of the head of each family re- 
 siding in the state, such homestead consisting of the dwelling- 
 house, outbuildings, and land appurtenant,' not to exceed the 
 value of one thousand dollars, and yearly product thereon, 
 should be exempt from levy, attachment, or sale on any mesne 
 or final process issued from any court, and that to secure the 
 full enjoyment of said homestead exemption to the person enti- 
 tled thereto or to the head of any family. 
 
 Tennessee. — The homestead, consisting of the dwelling- 
 house and outbuildings and land appurtenant, to the value of 
 one thousand dollars. 
 
 Texas. — To every citizen householder or head of a family, 
 two hundred acres of real estate, including homestead, in the 
 
134 PROPERTY EXEMPT [Chap IV. 
 
 country, or any lot or lots in a town or city used as a home- 
 stead, not to exceed five thousand dollars in value at the time 
 of their designation as a homestead. (Subsequent increase in 
 value by improvements or otherwise does not subject it to 
 forced sale.) 
 
 Utah. — Homestead occupied by the debtor and his family, 
 including land and improvements and appurtenances thereunto 
 belonging. 
 
 Vermont. — Homestead to the value of five hundred 
 dollars. 
 
 Virginia. — The benefit of a homestead (two thousand dol- 
 lars) can only be secured by deed duly recorded in the county 
 where the property or the greater part thereof is situated, de- 
 claring an intention to claim such homestead, with a descrip- 
 tion of the property so claimed as such homestead. The 
 homestead continues aft^r death of the householder or head of 
 a family for the benefit of the widow and children of the de- 
 ceased until her death or marriage, and after her death or 
 marriage for the exclusive benefit of the minor children until 
 the youngest becomes twenty-one years of age, after which 
 period it shall pass according to the law of descent, as other 
 real estate, or as may be devised by said householder, not 
 being subject to dower, yet subject to all the debts of the said 
 householder or head of a family. The homestead exemption 
 laws, so far as they apply to contracts entered into or debts 
 contracted before their adoption, are void. 
 
 West Virginia. — Homestead to the value of one thousand 
 dollars is exempt, where the property of that value is devised 
 or granted to debtor, being a husband or parent, and resident 
 in the state, as a homestead, and where he, previously to con- 
 tracting the debt or liability, has placed a declaration of his 
 intention to keep the property as a homestead on the land 
 records of the county in which the real estate is situate. 
 
 Wisconsin. — A homestead consisting of any quantity of 
 land, not exceeding forty acres, used for agricultural purposes, 
 and the dwelling-house thereon and its appurtenances, to be 
 selected by the owner thereof, and not included in any town 
 
Chap. IV.] FROM EXECUTION. ' 135 
 
 plat, or city, or village, or instead thereof, at the option of the 
 owner, a quantity of land not exceeding in amount one fourth 
 of an acre, being within a recorded town plat, or city, or vil- 
 lage, and the dwelling-house thereon and its appurtenances, 
 owned and occupied by any resident of the state, shall not be 
 subject to forced sale on execution or any other final process 
 from a court for any debt or liability contracted after January 
 I, 1849. This exemption does not affect any laborer's or me- 
 chanic's lien. The law also exempts the dwelling-house owned 
 by any person, and situate on land not his own, but which land 
 he is rightfully in possession of by lease or otherwise, provided 
 he claims such house as his homestead. Owners of home- 
 steads may remove from and sell the same, and such removal 
 or sale shall not render the homestead subject to forced sale on 
 execution against the owner, except in judgment for foreclosure 
 of mortgages. The homestead descends to the widow, who 
 •holds it during widowhood. 
 
 § III. The exemption of a homestead under the statutory 
 and constitutional provisions of the various states protects it 
 from a forced sale,^ even for alimony, where it is all the prop- 
 erty the husband has as the head of the family ; ^ or for a debt 
 which was created to remove an encumbrance on it, unless 
 the encumbrance was one that rendered the homestead liable.^ 
 As a judgment is not a lien upon a homestead, an execution 
 sale of a debtor's homestead conveys no title.* It is no lien 
 
 ' Sampson v. Williamson, 6 Tex. Chance, 54 111. 475. Green v. Marks, 
 102. Trotter v. Dobbs, 38 Miss. 25 111. 221. Fishback v. Lane, 36 
 189. Smith V. Omans, 17 Wis. 395. 111. 437. Bliss v. Clark, 39 111. 590. 
 'Grubbs v. Ellison, 23 Ark.' 287. Cummings v. Long, 16 la-. 41. Ken- 
 Hawthorne V. Smith, 3 Nev. 182. dall v. Clark, 10 Cal. 17. Vogler v. 
 Tucker v. Kenniston, 47 N. H. 267. Montgomery, 54 Mo. 577, Beecher 
 Dreutzer v. Bell, 1 1 Wis. 1 14. Spen- v. Baldy, 7 Mich. 509. Hamblin v. 
 ■cer V. Geissman, 37 Cal. 96. Worneke, 31 Tex. 681. Ackley v. 
 
 ' Byers v. Byers, 21 la. 268. Chamberlain, 16 Cal. 181. Myers 
 
 Wood V. Davis, 34 la. 264. v. Ford, 22 Wis. 139. Paxton v. 
 
 ■■■ Griffith V. Treutlen, 48 Ga. 148. Freeman, 6 J. J. Marsh. 234. Par- 
 
 ' Morris v. Ward, 5 Kan. 239. kerson v. Wightman, 4 Strobh, 363. 
 
 Xamb V. Shay, 14 la. 567. Revalk Johnson v. Babcock, 8 Allen, 583, 
 
 -V. Kramer, 8 Cal. 66. Wiggins v. Lies v. Le Diablar, 12 Cal. 327. 
 
136 PROPERTY EXEMPT [Chap. IV 
 
 unless expressly declared so by statute, and where it is not, 
 the surplus proceeds of a foreclosure sale cannot be appro- 
 priated to pay the personal debts of the husband. ^ The lien 
 of a judgment and the homestead right being mere creations 
 of statute, they must be construed together. The lien of a 
 judgment is only co-extensive with the right to enforce it.^ 
 While a judgment is no lien upon a homestead, yet, unless a 
 debtor is allowed to isell or remove therefrom, regardless of 
 judgments against him, by statute it is subject to sale when- 
 ever it ceases to be the homestead, or is conveyed by him ; and 
 a purchaser takes it subject to such lien.^ It is also disposed 
 of by a decree in which husband and wife are parties, and nei- 
 ther husband nor wife can resist a sale on the ground of its 
 being a homestead.* And where no constituent member of 
 the family remains, the homestead ceases to exist, and becomes 
 liable ; * or if it attaches to an estate less than the fee, it cease& 
 after such estate terminates.^ 
 
 § 112. Where, as in many states, the amount and value of 
 the property which a debtor who is the head of a family may 
 claim and select as a homestead, exempt from sale on execu- 
 tion, is regulated by statute, it makes no difference whether it 
 be one or more lots or tracts of land,^ so that the value or 
 
 ' Ogden V. Giddings, 15 Tex. 485. Johnson, 14 Wis. 523. Trustees^ 
 
 Folsom V. Carli, 5 Minn. 333. Dick- &c., v. Scliell, 17 Wis. 308. Allen 
 
 son V. Chorn, 6 la. 19. Green v. v. Cook, 26 Barb. 374. McDonald 
 
 Marks, 25 111. 221. Dorsey v. Mc- v. Crandall, 43 111. 231. Coe v> 
 
 Farland, 7 Cal. 342. Alley v. Bay, Smith, 47 111. 225. Hewitt v. Tem- 
 
 9 la. 509. Yost V. Devault, 9 la. 60. pletoh, 48 111. 367. Findley v. Mc- 
 
 Morris v. Ward, 5 Kan. 239. Wil- Connell, 60 111. 259. 
 
 liams V. Starr, 5 Wis, 534. Revalk ■* Miller v. Sherry, 2 Wall. 237.. 
 
 V. Kramer, 8 Cal. 66. Cook v. Klink, Brewer v. Wall, 23 Tex. 589. Tad- 
 
 8 Cal. 347. Van Reynegan v. Re- lock v. Eckles, 20 Tex. 782. Baxter 
 
 valk, 8 Cal. 75. v. Dean, 24 Tex. 17. Lee v. Kins- 
 
 ' Scriba v. Dean, i Brock. 166. bury, 13 Tex. 68. 
 
 Bliss V. Clark, 39 111. 590. Lamb v. ° Burns v. Jones, 37 Tex. 50. 
 
 Shay, 14 la. 567. Shrew v. Jones, Hoffman v. Newhas, 36 Tex. 633. 
 
 2 McLean, 78. Sossaman v. Powell, 21 Tex. 664. 
 
 ^ Bliss V. Clark, 39 III. 590. Hoyt " Brown v. Keller, 32 111. 151. 
 
 -». Howe, 3 Wis. 752. Simmons v. ' Ante, p. 120. 
 
Chap. IV.] FROM EXECUTION. 137 
 
 amount of the homestead does not exceed the limit ; and no 
 action of the owner is required to exempt, except where it is a 
 statutory requirement, as in New York and other states, by- 
 entry in a Homestead Book.^ Being the dwelHng-place of the 
 family, where they permanently reside, at common law such 
 residence would raise the presumption that the premises so 
 held are the homestead, and every one is bound to take notice 
 of the occupant's claim.^ Where a homestead exists in prop- 
 erty that is worth more than the amount allowed by statute 
 under the homestead law, and it is all the debtor has, it is sub- 
 ject to sale on execution, and out of the proceeds of such sale, 
 the officer must pay over to the debtor the amount in cash 
 allowed by law as to the value of the homestead.^ It is held, 
 in some states, that a homestead is liable for debts contracted 
 before its purchase,* or after its purchase, but before occupa- 
 tion.'' It may be, where a statute provides it shall not be ex- 
 empt from such debts ; but unless a homestead is exempt from 
 every ordinary debt, exempt from forced sale, the law should 
 be changed, and certain specified debts and judgments selected 
 by the legislature of each state, which should be registered as 
 
 ' Thomas v. Dodge, 8 Mich. 51. Morgan v. Stearns, 41 Vt. 398. Mc- 
 Cook V. McChristian, 4 Cal. 23. Donald v. Crandall, .43 111. 231. 
 Taylor v. Hargous, 4 Cal. 268. Hoi- Hume v. Gossett, 43 111. 297. Dear- 
 den V. Pinney, 6 Cal. 234. Pardie ing v. Thomas, 25 Ga. 223. Fogg 
 V. Lindley, 31 111. 187. Vogler v. v. Fogg, 40 N. H. 282. Pittsfield 
 Montgomery, 54 Mo. '577. Kelly Bank v. Houcks, 4 Allen, 347. Ben- 
 V. Baker, 10 Minn. 154, Clark v. nett v. Child, 10 Wis. 362. Maxey 
 Shannon, i Nev. 568. Mercier v. v. Loyal, 38 Ga. 531. 
 Chase, 11 Allen, 194. Hancock v. ' Laing v. Cunningham, 17 la. 
 Morgan, 17 Tex. 582. Raymond 510. Tucker v. Drake, 11 Allen, 
 V. Rogers, 34 Tex. 617. Williams 145. Brainard v. Van Kuran, 22 la. 
 V. Hall, 33 Tex. 212. Pryor v. 261. 
 Stone, 19 Tex. 371. ° Hale v. Heaslip, 16 la. 451. 
 
 ' Cook V. McChristian, 4 Cal. 23. Page v. Ewbank, 18 la. 580. Hyatt 
 
 Taylor v. Hargous, 4 Cal. 268. Rey- v. Spearman, 20 la. 5 ro. Delevan 
 
 nolds V. Pixley, 6 Cal. 165. Holden v. Pratt, 19 la. 429. Potschinsky v. 
 
 V. Pinney, 6 Cal. 234. Beecher v. Kremlin, 26 Tex. 307. Stevens v. 
 
 Baldy, 7 Mich. 503. Stevens, 10 Allen, 146. Elston v. 
 
 ' Welsh v. Horine, 36 111. 238. Robinson, 21 la. 531. S.C.23la.4o8 
 
 18 
 
138 PROPERTY EXEMPT [Chap. IV. 
 
 uncollectable against a person's homestead. It is not the true 
 construction of the homestead exemption laws. A homestead 
 is either exempt from all debts, or it is not exempt at all. 
 There is a class of debts which no statute can exempt a home- 
 stead from ; that is, for the purchase money. The law will 
 not work a fraud upon parties ; therefore no homestead right 
 can be superior to the right of the vendor for the price of the 
 premises.^ The purchase money, in the exemption law, means 
 the original demand for the property sold, as distinguished 
 from the demand on the security given for the payment of the 
 purchase money ; nor is the statute applicable for one who 
 becomes security for the purchase money of the property 
 therein naiAed ; ^ nor is it exempt for debts contracted for 
 improvements thereon,^ except in Minnesota.* A sale of the 
 homestead by the owner, and an investment in property of 
 the same nature, invests the latter with the same character, 
 and entitles it to the same exemption as the first.® The pro- 
 ceeds represent the exempt property. The rent of a home- 
 stead is not liable in Georgia, unless the debt is for necessaries 
 for the support of the family.^ The debtor's means of enforcing 
 
 ' Austin V. Underwood, 37 111. Simpson, 6 Tex. 303. Dillon v, 
 
 438. Ulrich's Appeal, 48 Penn. 489. Byrne, 5 Cal. 455. Pratt v. To- 
 
 Fehley V. Barr, 66 Penn. 196. Buck- peka Bank, 12 Kan. 570. Phelps v. 
 
 ingham v. Nelson, 42 Miss. 417. Connover, 25 111. 309. Succession 
 
 Montgomery v. Tutt, 11 Cal^ 190. ofFoulks, 12 La. 537. McHenry v. 
 
 Kitchell V. Burgwin, 21 111. 40. Reilly, 13 Cal. 75. Swift v. Krae- 
 
 Barnes v. Gay, 7 la. 26. Perrin v. mer, 13 Cal. ^26. 
 
 Serjeant, 33 Vt. 184. Skinner v. ' Davis v. Peabody, 10 Barb. 91. 
 
 Beatty, 16 Cal. 156. N. E., &c., Co. Griffith v. Treutlen, 48 Ga. 148 
 
 V. Merriam, 2 Allen, 390. Williams ■' Allen v. Hailey, 3 S. C. 412. 
 
 V. Young, 17 Cal. 403. Cummings Merchant v. Perez, ii Tex. 20. 
 
 V. Long, 16 la. 41. Stevens v. Ste- ' Cogel v. Mickrow, 11 Minn. 475. 
 
 yens, 10 Allen, 146. McGhee v. ° Sargent v. Chubbuck, 19 la. 27- 
 
 Way, 46 Ga. 282. McCreevy v. Robb v. McBride, 28 la. 386. Pear- 
 
 Fortion, 35 Tex. 681. Burford v. son v. Minturn, 18 la. 36. Keyes 
 
 Rosenfield, 37 Tex. 42. McManus v. Rines, 37 Vt. 260. Tillottson v. 
 
 V. Campbell, 37 Tex. 267. Stone v. Wolcott, 48 N. Y. 188. 
 
 Danell, 20 Tex. 14. Sheppard v. ' HuiFv. Burnell, 48 Ga. 338. 
 White, II Tex. 354. Farmer v. 
 
Chap. IV.] FROM EXECUTION. 139 
 
 the homestead right are not prejudiced by a sale of his equity of 
 redemption.^ It is the duty of the officer, in North Carolina, 
 to have the homestead laid off before he levies an execution at 
 the expense of the judgment creditor ; and if he refuses to pay 
 the officer's fees, he is justified in refusing to execute the pro- 
 cess.^ Where appraisers have set off a homestead, their action 
 should not be disturbed, except for fraud, corruption, or irreg- 
 ularities affecting the rights of parties.^ Where a party aban- 
 dons his homestead, and there are several judgments against 
 him, the first levy made' has priority, a judgment being no lien 
 while the homestead continues ; so where there is a release 
 of the homestead exemption in favor of one of several cred- 
 itors, the lien aind levy of his execution is the prior lien on the 
 property.* An attachment lien upon land prior to its occupa- 
 tion as a homestead has a preference over a homestead right 
 which accrues after the levy of an attachment.® 
 
 ' Swan V. Stephens, 99 Mass. 7. v. Miller, 1 1 Allen, 37. Elston v. 
 
 ' Lute V. Reilly, 65 N. C. 20. Robinson, 21 la. 531. Tourville v. 
 
 Taylor v. Rhyme, 65 N. C. 530. Pierson, 39 111. 446. Krisin v. Marr, 
 
 ' Pomeroyv. Bunting, 42 Ala. 250. 15 Minn. 116. Coolidge v. Wells, 
 
 * Bliss V. Clark, 39 111. 590. 20 Mich. 79. Hale v. Heaslip, 16 
 
 • Bullene v. Hiatt, 12 Kan. 98. la. 452. Wright v. Dunning, 46 111. 
 Austin V. Stanley, 46 N. H. 51. Lee 276. Tuttle v. Howe, 14 Minn. 145. 
 
140 PROPERTY SUBJECT [Chap. V. 
 
 CHAPTER V. 
 
 PROPERTY SUBJECT TO EXECUTION. 
 
 Personal Property. — What is Property. — General Rule of 
 Property liable. — Personal Property liable in Preference 
 to Real Estate. — What is Personal Property. — Personal 
 Property liable. — Property fraudulently conveyed. — Pawned., 
 Pledged., or Mortgaged Property. — When Mortgages are 
 fraudulent as to Creditors. — When and where not liable. -~ 
 Ckoses in Action, what are, when not liable, -when and where 
 liable. — Money, when it is, and is not liable. — Crops and 
 Emblements. — Fixtures, what are, are not, when and how 
 taken. — Movable or Trade Fixtures. — Terms or Estates 
 for Years. — Personal Property not liable to Execution. 
 
 § 1 1 3. All the property of a defendant, or against whom 
 judgment is rendered, or against whom the execution issues, 
 is, as a general rule, liable to seizure and sale for the payment 
 or satisfaction of such judgment or execution, except as shown 
 in the preceding chapter, and such as will be shown to be ex- 
 ceptions to this general rule. Property includes both real 
 and personal ; includes lands and tenements, hereditaments 
 and commodities, the value of which may be measured in 
 money. " Property is the highest right a man can have to 
 anything being used for that right which one hath in goods 
 and chattels, lands and tenements, which in no way depends 
 upon another man's courtesy." ^ Generally, the right to seize 
 and sell property on execution is confined to the seizure and 
 
 ' Stief V. Hart, i N. Y. 20. West- Lawrence, I Edw. Ch. 241. Ten- 
 
 ervelt v. Gregg, 12 N. Y. 202. People broeck v. Sloo, 13 How. Pr. 28. Law 
 
 V. Mayor, 9 Barb. 535. Jackson v. of Burial, 4 Brad. 516. 
 Housel, 17 Johns. 281. Lawrence v. 
 
Chap. V.] TO EXECUTION. 141 
 
 sale of such property as an owner himself can sell, or that can 
 be sold, if there be no law to the contrary.^ Whatever one 
 cannot sell himself cannot on execution be legally sold for his 
 debts.^ Property or funds cannot be vested . by will or any 
 other instrument in a trustee without being subject to the 
 debts of the cestui qui trust? In Louisiana a plaintiff's prop- 
 erty is liable notwithstanding he recovers a judgment.* 
 
 § 114. Personal Property the Primary Fund out of 
 WHICH Satisfaction is to be obtained. — In the Roman 
 law, the chattels were first to be resorted to, and the land was 
 seized and eventually sold, provided the movables of the debtor 
 were found insufficient to satisfy the debt ; and this has been 
 the universal rule in all countries. Personal property being 
 primarily liable for the satisfaction of debts, it is, as a general 
 rule, the duty of the officer having an execution in his hands 
 to search for personal property sufficient to satisfy the execu- 
 tion ; and in case there is no personal property, or not enough 
 to satisfy the execution, he must, in accordance with the com- 
 mand of the writ, cause the amount to be made out of the real 
 estate of the party against whom the writ issues, at the time 
 of the rendition of judgment. Many statutes require that the 
 personal property of the debtor be first exhausted before pro- 
 ceeding to subject his real estate to the satisfaction of an exe- 
 cution, and require the officer to make an entry or indorsement 
 on the execution, of " no property," and where required is 
 necessary before subjecting real estate.^ It is error to take 
 
 ' Francis v. Nash, Gas. T. Hard. ' Boling v. Strickland, Ga. Decis. 
 
 58. Coombs V. Jordan, 3 Bland Ch. (Part 2) 170. Daniel v. Justices 
 
 39. Carpenter's Case, 3 Bland Ch. Dudley (Ga.) 2. Neilson v. Neilson, 
 
 640. 5 Barb. 565. Simpson v. Hiatt, 13 
 
 ' French v. Mehan, 56 Penn. 286. Ired. 470. Hassell v. Southern B'k, 
 
 McCurdy v. Canning, 64 Penn. 39. 2 Head. 381. Carmichael v. Strawn, 
 
 Doe V. Praratt, j T. R. 652. Robb 27 Ga. 341. Koehler v. Ball, 3 Kans. 
 
 V. Beaver, 8 W.& S. III. Gentry v. 173. Gore v. Brazier, 3 Mass. 523. 
 
 WagstafF, 3 Dev. 270. Ewing v. Hatfield, 17 Ind. 513. Hall 
 
 ' Samuel v. Salter, 3 Met. (Ky.) v. Schultz, 4 Johns. 239. Wilson v. 
 
 250. Watson, I Pet. C. C. 269. Clarke 
 
 * Bantz V. Price, 14 La. 191. v. Holmes, i Doug. 390. Thacher 
 
142 PROPERTY SUBJECT [Chap. V. 
 
 real estate without first making such indorsement. The reason 
 of this provision is, that the personal property of such debtor 
 may be first applied in payment of the debt, and if there is 
 none, to place proof of that fact upon the record, to satisfy the 
 court of the regularity of the proceedings, and, in case of con- 
 firmation of a sale, that the court may act correctly in the 
 matter. Unless the defendant otherwise requests, the officer 
 is bound to apply the personal property first.^ But, by consent 
 of both parties, real estate may be taken in the first instance.^ 
 In Kentucky an affidavit is required to be filed, before a judg- 
 ment for the sale of real estate can be rendered.^ In Con- 
 necticut, it would seem, notwithstanding the statute, that real 
 estate may be attached, though there be personal property 
 sufficient to satisfy the demand.* Where the officer makes a 
 demand of money and chattels to satisfy an execution, and 
 none is offered, a levy on real estate will be good, though the 
 debtor owns and possesses personal property enough at the 
 time to satisfy the execution, though the statute makes per- 
 sonal property the primary fund.^ In Illinois, personal prop- 
 erty, and the land on which the debtor resides, are to be la%t 
 taken on execution, on the ground that the domestic and farm- 
 ing goods and chattels, and the ground occupied and settled, 
 are vastly more necessary to him than wild lands, and notice 
 to the debtor is given that real property may be taken before 
 personal property.® In North Carolina the debtor must show 
 the officer personal property ; if he does not, and real property 
 is taken, without any knowledge of the officer as to there being 
 any personal property, he will not be liable.'^ But if a debtor's 
 
 V. Powell, 6 Wheat. ii8. Coe v. (la.) 306. Maybury v. Jones, 4 
 
 Wickham, 33 Conn. 389. Dietrich Yeates, 21. 
 
 V. State Bank, 6 Ind. 439. Williams ^ Smith v. Randall, 6 Cal. 47. 
 
 V. Reynolds, 7 Ind. 622. Whitney Springer v. Johnson, 3 Harring. 515. 
 
 V. Whitney, 14 Mass. 88. Brown v. ^ Jackson y. McElroy, 2 Bush. 132. 
 
 Webb, I Watts. 414. Andrew v. * Isham v. Downer, 8 Conn. 282. 
 
 Fleming, 2 Dall. 94. Den v. Hunt, ' Graves v. Merwin, 19 Conn. 96. 
 
 6 Halst. I. Daniels v. Ellison, 3 N. • Pitts v. Magie, 24 111. 611. . 
 
 H. 279. ' Sloan v. Stanley, 11 Ired. 627. 
 ' Cavender v. Smith, i Clarke 
 
Chap. V.] TO EXECUTION. 143 
 
 personal property is so encumbered with mortgages that it 
 would not sell for anything, the officer need not take it first ; ^ 
 or, if by agreement with the debtor it is returned to him after 
 being taken.^ Or, where real and personal property is taken 
 under several executions, and the personal estate sells for 
 enough to pay the principal and interest, leaving the costs 
 unpaid, the real estate may be sold to pay the balance due.' 
 Or, where the land alone is sold, the purchaser gets a good 
 title.* An indorsement on the execution by the officer of " No 
 property," or " No goods or chattels of defendant found in my 
 county," is sufficiently certain and valid, and warrants the tak- 
 ing of real estate for the purpose of satisfying the execution.'' 
 § 115. What is Personal Property. — "Jt usually con- 
 sists of things temporal and movable, and includes all subjects 
 not of a freehold nature or descendible to the heirs at law. It 
 includes not only everything movable and 'tangible which can 
 be the subject of property, but may include things quasi mov- 
 able, as tenants' fixtures, and quasi tangible, as choses in 
 action. It is the right or interest which one has in things 
 personal ; the right or interest less than a freehold which one 
 has in realty, or any right or interest which one has in things 
 movable. Personal property is to be distinguished from things 
 personal. There may be, for example, a personal estate in 
 realty, as chattels real ; but the only property one can have in 
 things personal is personal property. The essential idea of 
 personal property is that of property in a thing movable, or 
 separable from the realty ; or of perishability or possibility of 
 brief duration of interest, as compared with the owner's life, 
 in a thing real, without any action on the part of the owner." 
 It embraces not only goods, chattels, coins, bills, and evidences 
 of debt, but, in the strict and more appropriate legal definition, 
 signifies the right and interest of the owner in these articles.' 
 
 ' Detrick V. State Bank, 6 Ind. ' Trotter v. Nelson, i Swan, 7. 
 
 439. Carmichael v. Strawn, 27 Ga. 341. 
 ' Jones V. Lusk, 2 Met. (Ky.) 356. « Stief v. Hart, i N. Y. 24. Mor- 
 
 ' Doe V. Ingersoll, 19 Miss. 2491 rison v. Semple, 6 Binn. 94. Jack- 
 
 * Dowdell V. Neal, 10 Ga. 148. son v. Housel, 17 Johns. 283. Walls 
 
 Vilas V. Reynolds. 6 Wis. 214. v. Langfard, 14 East. 370. 
 
144 PROPERTY SUBJECT [Chai V 
 
 It includes a judgment.^ In the New England states, spirit- 
 uous liquors.^ 
 
 § ii6. Personal Property subject to Seizure and Sale 
 UPON Execution. — At common law, everything that is a 
 chattel belonging to the party against whom the execution 
 issues, except wearing apparel, was liable to be taken and sold ; 
 also leases or terms for years, which are chattels real.^ Grow- 
 ing grain which went to the executor as personalty ; and all 
 such fixtures as might be removed by the tenant if he was the 
 defendant in the execution ; everything of a personal nature 
 belonging to the debtor in the execution may be levied on and 
 sold, except personal things of which the owner has not pos- 
 session, but merely a right of action for their possession ; or 
 rights which cannot be enforced without action, termed choses 
 in action. Property exempt by law from sale on execution, 
 and certain fixtures which are so annexed to real estate as to 
 partake of and become real property,* including bank-notes 
 and money. The latter is not liable to sale on execution. 
 Generally, the right to seize and sell personal property on exe- 
 cution is coextensive only with the power to take and deliver 
 possession.^ Whatever an owner himself may sell may be 
 taken on execution, if there is no law to the contrary.® Pos- 
 session is presumptive of ownership. An officer failing to 
 make the money on an execution must show that the property 
 did not belong to the debtor.'^ Where goods are bound from 
 the teste of a writ, property sold by a debtor after such teste.* 
 
 ' Adams v. Hackett, 7 Cal. 187. Flower v. Nuncaster, 2 La. 615. 
 
 Crandall v. Blen, 13 Cal. 15. Mc- Handy v. Dobbin, 12 Johns. 220. 
 
 Keon V. Bisbee, 9 Cal. 142. Davis Holmes v. Nuncaster, 12 Johns. 395. 
 
 V. Mitchell, 34 Cal. 81. Walker v. Sherman, 20 Wend. 537. 
 
 ' State V. Johnson, 33 N. H. 441. " Campbell v. Leonard, 1 1 la. 489. 
 
 ' People V. Haskins, 7 Wend. 466. ' Woodward v. Hopkins, 2 Gray, 
 
 People v.Westervelt, 17 Wend. 674. 210. Coombs v. Jordan, 3 Bland. 
 
 S. C. 20 Wend. 416. Merry v. Hal- Ch. 39. Henson v. Edwards, 10 
 
 lett, 2 Cow. 497. Vredenburgh v. Ired. 43. Carpenter's Case, 3 Bland. 
 
 Morris, I Johns. 223. Ryall v. RoUe, Ch. 640. 
 
 I Atk. 165. Gordon v. Harper, 7 ' Leavitt v. Smith, 7 Ala. 175. 
 
 T. R. II. 8 Farlee v. Lee, 4 Dev. & B. 
 
 ♦ First V. Miller, 4 Bibb. 311. 169. 
 
Chap. V.] TO EXECUTION. 145 
 
 Where nothing is said about payment and delivery in a bargain 
 for property, it passes immediately and is liable.-^ The interest 
 of a cestui qui trust in personal property.^ A vested remainder 
 in chattels during the life of the tenant for life.^ Property in 
 the possession of another than its owner, as a bailee without 
 claim of title.* Manuscripts secured by copyright, or which 
 are the subject of copyright.^ Paper and ink used by a printer 
 in Alabama, where they are not exempt as tools and imple- 
 ments.^ Where a newspaper printing establishment has been 
 seized, the subscription list may be included. A horse, though 
 the owner is riding him at the time.^ Under Kentucky stat- 
 ute, if an officer has an execution in his hands against A, and 
 he exchange horses with B, both horses are liable.^ Standing 
 timber held under a timber lease which gives no further in- 
 terest in the land than to cut and carry away timber.^ Im- 
 provements of settlers upon public lands.^" Buildings and 
 fixtures erected by a tenant for the purposes of trade belong 
 to him.^i A steam saw-mill, when standing on another's land.^ 
 A house erected upon the land of another with his consent, 
 where the party owning the house has no interest in the land.^^ 
 
 ' Jenkins v. Jarrett, 70 N. C. 255. "" Switzer v. Skiles, 8 111. 529. 
 
 May V. Gentry, 4 D. & B. 117. Sim- , " Holmes v. Tremper, 20 John, 
 
 mons V. Swift, 5 B. & C. 862. 30. Miller v. Plumb, 6 Cow. 665. 
 
 ° Clark V. Windham, 12 Ala. 478. Doty v. Gorham, 5 Pick. 489. Her- 
 
 Eastland v. Jordan, 3 Bibb. 186. lakenden's Case, 4 Co. 63. Kutter 
 
 ^ Knight V. Leak, 2 D. & B. 133. v. Smith, 2 Wall. 497. Van Ness v. 
 
 Lockwood V. Nye, 2 Swan, 515. Packard, 2 Pet. 137. Dame v. Dame, 
 
 ' Thomas v. Thomas, 2 A. K. 38 N. H. 429. Russell v. Richards, 
 
 Marsh. 430. Beale v. Digges, 6 10 Me. 449. 
 Gratt. 582. '« State v. Bonham, 18 Ind. 233. 
 
 ' Banker v. Caldwell, 3 Minn. 89. Yater v. Mullen, 24 Ind. 278. 
 
 * Sallee v. Walker, 17 Ala. 482. " Dame v. Dame, 38 N. H. 429. 
 ' State V. Dillard, 3 Ired. 102. Aldrich v. Parsons, 6 N. H. 555. 
 
 * Orchard v. Williamson, 6 J. J. Osgood v. Howard, 6 Me. 452. Rus- 
 Marsh. 558. Grooms v. Dixon, 5 sell v. Richards, 11 Me. 429. Ash- 
 Strobh. 149. Simpson v. Simpson, mun v. Williams, 8 Pick. 402. Doty 
 30 Ala. 225. Pool V. Reid, ij Ala. v. Gorham, 5 Pick. 487. Mott v. 
 326. Palmer, i N. Y. 571. Rodgers v. 
 
 ' Caldwell v. Fifield, 4 Zabriskie, Woodbury, 15 Pick. 156. Wood v. 
 150. Hewett, 8 Q. B. 913. 
 
 19 
 
146 PROPERTY SUBJECT [Chap. V. 
 
 Or where by parol agreement the severance of a house from 
 the freehold is contemplated at the pleasure of the parties, the 
 house immediately becomes personal property subject to exe- 
 , cution.^ Iron safes and iron planing mills as against a railroad 
 company.2 Fuel, office furniture, stationery, materials for 
 lights, and other detached property of a corporation.^ For a 
 mechanic's lien, the engine in a steam saw-mill.* A boiler in- 
 a brew-house.'' Burr millstones.® Brick made under a contract 
 with a, party to build a house belong to the contractor until 
 put into the building, and may be taken against him.'' The 
 interest of a contractor to the amount of his contract.^ Per- 
 sonal property of the wife for the husband's debts.® A hus- 
 band's interest in his wife's property for his debts.^" The un- 
 divided interest of a widow in personal property, bequeathed 
 to herself and children jointly, one third to her during widow- 
 hood, and two thirds to her children. ^^ A ferry boat, though 
 on a mail' route, and used to carry the United States mail.^^ 
 After a final decree in favor of a plaintifT, a receiver's duties 
 are ended ; and he holds simply as trustee for the party, and 
 the property may be taken for such party's debt.^^ Goods in 
 the hands of an administrator, in Delaware, by virtue of an 
 execution issued after the death of the intestate, but bearing 
 teste before.^* A legatee is entitled to have a decree for his 
 legacy and the interest thereon, enforced by execution against 
 the personalty of the testator's estate, but not against the 
 realty.^* 
 
 ' Foster v. Mabe, 4 Ala. 402. ' Weaver v. Darby, 42 Barb. 41 1. 
 
 ' Titus V. Mabee, 25 111. 257. » Hill v. Wynn, 4 W. Va. 453. 
 
 " Hunt V. Bullock, 23 111. 320. "> Allen v. Gordon, 3 Brews. 543. 
 
 Palmer v. Forbes, 23 111. 302. Hall v. Sroufe, 52 111. 421. 
 
 * Morgans v. Arthurs, 3 Watts. " Mcintosh v. Walker, 17 Ala. 20. 
 140- " Lathrop v. Middleton, 23 Cal. 
 
 ' Gray v. Holdship, 17 S. & R. 257. 
 41 3- " Very v. Watkins, 23 How. 469, 
 
 * Wademan v. Thorp, 5 Watts. " Graham v. Wilson, 5 Harring. 
 
 II S- 435- 
 
 ' Crockett v. Latimer, i Humph. "> Packwood v. Elliott, 43 Miss. 
 272. 504. 
 
Chap. V.] TO EXECUTION. 147 
 
 § 117. Property fraudulently conveyed. — An officer 
 is warranted in seizing goods which have been fraudulently- 
 sold or conveyed away ; for such sale is void as against cred- 
 itors. And a principal badge of fraud is the defendant's con- 
 tinuing in possession. A sale of personal property must be 
 followed by a visible substantial change of possession to hold 
 against execution creditors of the vendor,^ without waiting to 
 set the sale aside.^ Or, where a bill of sale is not recorded 
 before the lien of an execution attaches, it may be taken.^ 
 Property purchased with the proceeds of a fraudulent assign- 
 ment, in the same manner as the assigned property would.* 
 To protect personal property from being fraudulently with- 
 drawn from the operation of judgments, it is a principle of law 
 that a sale and transfer of it for the purpose of preventing a 
 judgment creditor from appropriating it on execution, is 
 deemed an act done mala fide, and void as to such creditor.^ 
 Or, where a party, with intent to defraud creditors of an in- 
 solvent debtor, intermixes his money with that of the debtor 
 in the purchase of personal property, so that it cannot be 
 ascertained what portion of the purchase money belonged to 
 each, and takes title in his own name, the property may be 
 levied on by the creditors, and may be sold in satisfaction of 
 their demands.^ A judgment creditor has a right to satis- 
 faction from the debtor's property wherever he can find it, and 
 may follow and reclaim it, or its proceeds, in whatever shape 
 
 ' Moore v. Kelly, 5 Vt. 34. Judd Wilson, i Gall. 419.. Hetrick v. 
 
 V. Langdon, 5 Vt. 231. Nott v. Mc- Campbell, 14 Penn. 263. Jonan v. 
 
 Neil, I Ark. 162. Boardman v. Dreaux, i La. 364. Weld v. Peters, 
 
 Keeler, i Ark. 158. Weeks v. Wead, i La. 432. 
 
 2 Ark. 64. Farnsworth v. Shepard, ' Brown v. SneU, 46 Me. 490. 
 
 6 Vt. 521. Pierce v. Shipman, 8 Vt. Scully v. Keans, 14 La. 436. Holmes 
 
 337. Morris v. Hyde, 8 Vt. 356. v. Barbin, 15 La. 553. 
 
 Sibley v. Hood, 3 Mo. 290. Foster » Johnson v. Morgan, 2 Humph. 
 
 V. Wallace, 2 Mo. 231. Daniel v. 11;. 
 
 Holland, 4 J. J. Marsh. 18. Ragan * Caville v. Stout, 10 Ala. 196. 
 
 V. Kennedy, I Overt. 191. Hudnal » Streeper v. Eckart, 2 Whart. 302. 
 
 V. Wilder, 4 McCord. 294. Thomas « Lanier V. Branch Bank, &c., 18 
 
 V. Soper, 5 Munfd. 28. Meeker v. Ala. 625. 
 
1 48 PROPERTY SUBJECT [Ckap. V. 
 
 it may be found, as against such debtor, or any one but an 
 innocent purchaser for valiie.-^ If a chattel wrongfully taken 
 retains its original form and substance, or may be reduced to 
 its original materials, it belongs to the original owner ; and 
 this rule, it seems, holds against an innocent purchaser from 
 the wrong-doer, without regard to the increased value bestowed 
 by him upon the chattel. But if the chattel be converted by 
 an innocent purchaser into a thing of a different species, — as 
 where wheat is made into bread, olives into oil, grapes into 
 wine, — the original owner cannot reclaim it. In favor of a 
 wilful wrong-doer there is no such distinction. He can acquire 
 no property in the goods of another by any change wrought in 
 them by his labor and skill, however great the change may be, 
 provided it can be proven that the improved article was made 
 from the original material ; and the owner's creditors may 
 seize the chattel by virtue of his ownership of the same, — 
 as whiskey made of a debtor's corn.^ Goods left by a pur- 
 chaser at an execution sale with the debtor, to be manufactured 
 and disposed of at his own profit, the debtor accounting only 
 for the price of sale, may be taken as the debtor's property.^ 
 The same property may be seized under other executions, 
 whenever the title is revested in the debtor.* A creditor who 
 has attached several parcels of goods may take under his exe- 
 cution any one of the different parcels, without reference to 
 the claim of another creditor who has attached a portion only.^ 
 Property received in exchange for exempt property may be 
 
 ' Carey v. C. & C. R. R. Co., 5 la. v. West, 26 N. H. 491. Carrol v. 
 
 368. Phelan v. Clark, 19 Conn. 421. Rice, Walk. Ch. 215. Cherry v. 
 
 Rogers v. Brant, 10 111. 582. Cunans Newsom, 3 Yerg. 369. Barber v. 
 
 V. Hart, Hardin, 37. Balgney v. Lyon, I ; la. 37. Nusbaum v. Keim, 
 
 Hamilton, Amb. 413. Wallace v. 24 N. Y. 325. , 
 
 Duffield, 2 S. & R. 521. Lebreton » Sillsbury v. McCoon, 3 N. Y. 
 
 V. Pierce, 2 Allen, 8. Lloyd v. 379. 
 
 Brewster, 4 Paige, 537. Root v. ' Dick v. Cooper, 24 Penn. 17. 
 
 French, 13 Wend. 570. Bank, &c., * Howard v. Jones, 2 Ga. 190. 
 
 V. Polock,4Ed. Ch. 215. Thompson Collins v. Pace, Ga. Decis. (Part 2) 
 
 V. Perkins, 3 Mason, 232. Moffit v. 160. 
 
 McDonald, 1 1 Humph. 457. Heath ' Parker v. Dennie, 6 Pick. 227. 
 
Chap. V.] TO EXECUTION. 149 
 
 taken.-^ On a judgment against an idiot, if he is under guar- 
 dianship, an execution may be levied on his property.^ 
 
 § 1 1 8. Pawned, Pledged, or Mortgaged Personal Prop- 
 erty, WHEN liable. — In order to prevent the owner from 
 keeping up an assumed credit, and placing fraudulent encum- 
 brances on his property, to prevent its being used in the satis- 
 faction of his debts, the statutory enactments in the various 
 states require, as one of the essential ingredients of good faith 
 in the mortgaging or encumbering of real property, that such 
 instruments be in writing, and that, in the absence of the de- 
 livery of the property to the mortgagee, the instrument be 
 duly recorded. The statutes require either a registry or a de- 
 livery of the goods, in order to give the mortgagee a lien which 
 will be protected in preference to a judgment. The place of 
 record is generally where the mortgagor resides, and has his 
 place of business.* The subsequent removal of the mortgagor 
 to a new place does not make a new record necessary in such 
 place.* In many states a re-filing or re-recording is necessary 
 after a certain period of time to continue the mortgage lien ; ^ 
 and after the expiration of the time mentioned in the mort- 
 gage, without such renewal, the property is subject to levy and 
 sale, unless the mortgagee has taken possession of it, as the 
 presumption is that the mortgage debt has been paid. In 
 some states there are statutes permitting mortgaged goods to 
 be seized as if unencumbered ; in Massachusetts, providing 
 
 ' Lloyd V. Durham, i Wins. (N. 21 Ind. 128. Griswold v. Sheldon, 
 
 C. No. I), 288. 4 N. Y. 581. 
 
 * Thacher v. Dinsmore, 5 Mass. * Brigham v. Weaver, 6 Gush. 298. 
 
 299. Ex parte Leighton, 14 Mass. Barrows v. Turner, 50 Me. 127. 
 
 207. ' Dillingham V. Bolt, 37 N. Y. 148. 
 
 " Call V. Gray, 37 N. H. 428. Hill v. Beebe, 13N. Y. 556. Thomp- 
 Langworthy v. Little, 12 Cush. 109. son v. Van Vechten, 27 N. Y. 568. 
 Henderson v. Morgan, 26 111. 431. Wetherell v. Spencer, 3 Mich. 123. 
 Bevans v. Bolton, 31 Miss.. 437. Paine v. Mason, 7 Ohio S. 198. Ed- 
 Weed V. Stanley, 12 Fla. 166. Rood son v. Newell, 14 Minn. 228. Na- 
 V. Welch, 28 Conn, 157. Kuhn v. tional Bank v. Sprague, 20 N. J. 
 Graves, 9 la. 303. Rich v. Roberts, Eq. 13. 
 50 Me. 395. Matlock v. Straughn, 
 
150 
 
 PROPERTY SUBJECT 
 
 [Chap. V. 
 
 that the seizing creditor pays or tenders to the mortgagee the 
 amount of his encumbrance within ten days after demand. 
 The mortgagee, in such demand, must state in writing a just 
 and true account of the debt for which the property is hable 
 to him. In New Hampshire there is a similar statute.-' If 
 there is no such statutory provision, an officer cannot levy 
 upon personal property which is mortgaged, whether in pos- 
 session of the mortgagor or mortgagee, even if the mortgage 
 is not due, unless it contains an express stipulation permitting 
 the mortgagor to retain possession for a definite period ; nor 
 even then, if that period has elapsed.^ Notwithstanding a levy 
 upon the property in the mortgagee's possession, the mortgagee 
 retains his right of taking possession ; ^ but where the execution 
 defendant has the right of possession of personal property mort- 
 gaged by him, his interest may be levied on and sold at any 
 time before forfeiture, and before the right of possession ac- 
 crues to the mortgagee ; * or if in possession of the mortgagor 
 after the condition is broken,^ he has a redeemable interest 
 
 ' Hanson v. Herrick, loo Mass. 
 323. Howe V. Bartlett, i Allen, 29. 
 Rowley v. Rice, 10 Met. 7. Gassett 
 V. Sanborn, 8 Gray, 218. Brewster 
 V. Bailey, 10 Gray, 37. Gilmore' v. 
 Gale; 33 N. H. 410. Kimball v. 
 Morrison, 40 N. H. 117. 
 
 ' Eggleston v. Mundy, 4 Mich. 
 295. 
 
 ' Saxton V. Williams, 1 5 Wis. 292. 
 Cudworth v. Scott, 41 N. H. 456. 
 
 * Bailey v. Burton, 8 Wend. 339. 
 Jamieson v. Porter, 2 Mon. 71. Mc- 
 Gregor V. Hall, 3 S. & P. 397. Parm- 
 lee V. Hogan, 5 S. & P. 192. Magee 
 V. Carpenter, 4 Ala. 469. McDon- 
 ald V. Foster, 5 Ala. 664. Harbison 
 V. Harrell, 19 Ala. 753. Yeldell v. 
 Stemmons, 15 Mo. 443. Tannahill 
 V. Tuttle, 3 Mich. 104. Cotton v. 
 Marsh, 3 Wis. 221. Cotton v. Wat- 
 kins, 6 Wis. 629. Champlin v. John- 
 
 son, 39 Barb. 606. Ballard v. An- 
 derson, 18 Tex. 377. Gelhaar v. 
 Ross, I Hilt. 117. Schrader v. 
 Wolfln, 21 Ind. 238. Anthony v. 
 Shaw, 7 R. I. 275. Saxton v. Wil- 
 hams, 15 Wis. 292. Manning v. 
 Monoghan, 28 N. Y. 585. Hull v. 
 Carnley, ii N. Y. 501. RindskofF 
 V. Lyman, 16 la. 260. Curd v. 
 Wunder, 5 Ohio, 92. Hall v. Samp- 
 son, 35 N. Y. 274. Merritt v. Niles, 
 25 111. 282. Mercer v. Tindsley, 14 
 B. Mon. 274. Matteson v. Baucus, 
 I N. Y. 295. Hanford v. Archer, 4 
 Hill, 271. Strong v. Taylor, 2 Hill, 
 326. Randall v. Cook, 17 Wend. 
 53. Wheeler v. McFarland, 10 
 Wend. 318. Otis V. Wood, 3 Wend, 
 500. Marsh v. Lawrence, 4 Cow. 
 461. Welsh V. Bell, 32 Penn. 12. 
 
 ° Carty v. Fenstemaker, 14 Ohio 
 S. 457. Ferguson v. Lee, 9 Wend. 
 
Chap. V.] 
 
 TO EXECUTION. 
 
 151 
 
 until after foreclosure ; or if the mortgagee's interest be for a 
 fixed time, it is liable.^ 
 
 § 119. Mortgages, when fraudulent as to creditors, are no 
 protection to the property conveyed. The rule of law govern- 
 ing the question of fraud is somewhat unsettled, and the fol- 
 lowing have been held void : A mortgage made by an insolvent 
 person, which covers more property than is necessary to secure 
 the debt ; ^ all conveyances for the use of the grantor ; ^ a sale 
 •of property by an insolvent debtor for long notes.* A deed of 
 articles consumable in their use is void on its face.^ A strong 
 presumption of fraud arises where the party making a bill of 
 sale or mortgage remains in possession of the property.® The 
 retention of possession by the vendor is fraudulent per se? 
 But the tendency of the later decisions has been to qualify 
 this doctrine, and the later cases regard it as indicia or prima 
 facie presumption of fraud, and a question of fact ; * so that, 
 
 258. Cary v. Hewitt, 26 Mich. 228. 
 Van Brunt'v. Wakelee, 11 Mich. 177. 
 
 ' Hull V. Carnley, 11 N. Y. 50 ii 
 Matteson v. Baucus, i N. Y. 295. 
 HindskofFv. Lyman, 16 la. 260. 
 
 '■' Bailey v. Burton, 8 Wend. 339. 
 Mitchell V. Beal, 8 Yerg. 134. Ben- 
 nett V. Union Bank, 5 Humph. 612. 
 
 ^ Mackey v. Cairns, i Hopk. 373. 
 "Wilson V. Cheshire, i McCord Ch. 
 .233. Brown v. Donald, i Hill Ch. 
 ^297. Jackson v. Parker, 9 Cow. 73. 
 "Van Wyck v. Seward, 18 Wend. 
 375. Lukin V. Aird, 6 Wall. 78. 
 .■Smith V. Smith, 11 N. H. 460. 
 
 ■* Pope V. Andrews, i S. & M. 
 ■Ch. 135. Kepner v. Burkhardt, 5 
 Penn. 478. Borland v. Walker, 7 
 .Ala. 269. Grannis v. Smith, 3 
 Humph. 179. Mitchell v. Beal, 8 
 Terg. 134. 
 
 ' Hunter V. Foster, 4 Humph. 211. 
 "Wade V. Green, 3 Humph. 547. 
 (Charlton v. Leay, 5 Humph. 496. 
 
 Richmond v. Crudup, i Meigs, 581. 
 
 ° Twyne's Case, 3 Co. 81. Ed- 
 wards V. Harben, 2 T. R. 587. 
 
 ' Hamilton v. Russell, i Cranch, 
 310. Phettiplace V. Sayles, 4 Mason, 
 312. Fuller V. Sears, 5 Vt. 527. 
 Farnsworth v. Shepard, 6 Vt. 521. 
 Mills V. Camp, 14 Conn. 2ig. Kirt- 
 land V. Snow, 20 Conn. 63. Doark 
 V. Brubacker, i Nev. 218. Babb v. 
 Clemsen, 10 S. & R. 419. Young 
 V. McClure, 2 W. & S. 147. Jarvis 
 V. Davis, 14 B. Mon. 52. Hundley 
 V. Webb, 3 J. J. Marsh. 643. . Brem- 
 nel V. Stockton, 3 Dana, 134. Che- 
 nery V. Palmer, 6 Cal. 119. Gibson 
 V. Love, 4 Fla. 217. Sanders v. Pe- 
 poon, 4 Fla. 465. Bowman v. Her- 
 ring, 4 Harring. 458. Jorda v. Lewis, 
 I La. Ann. 59. Coburn v. Pickering, 
 3 N. H. 415. Claflin v. Rosenberg, 
 42 Mo. 439. Ketchum v. Watson, 
 24 111. 591. 
 
 ' Warner v. Norton, 20 How. 
 
152 
 
 PROPERTY SUBJECT 
 
 LChap. V. 
 
 in the light of the adjudicated cases, the officer should by all 
 means require a bond of indemnity before making a levy, in 
 order to protect him in the discharge of his duty in obedience 
 to the execution. But where, from the peculiar situation of 
 the property, and circumstances such as must prevent the 
 vendor from delivering possession at the time of the execution 
 of the conveyance, as in the case of a ship at sea, it is not even 
 presumptive evidence of fraud.^ A mortgage which contains 
 a stipulation reserving the power of the mortgagor to sell for 
 his own benefit, is void ;^ so where there is an agreement that 
 the mortgagor shall buy and sell as usual.^ The conveyance 
 must be of property liable to be taken in execution for the 
 payment of debts.* 
 
 448. Hornbeck v. Van Metre, 9 
 Ohio, 153. Collins v. Myers, 16 
 Ohio, 547. Reed v. Jewett, J 
 Me. 96. Ulmer v. Hills, 8 Ind. 
 326. Brooks V. Powers, 15 Mass. 
 244. Bartlett v. Williams, I Pick. 
 288. Hanford v. Artcher, 4 Hill, 
 271. Thompson v. Blanchard, 4 N. 
 Y. 303. Terry v. Belcher, i Baily, 
 568. Davis V. Turner, 4 Gratt. 422. 
 Forkner v. Stuart, 6 Gratt. 197. 
 Callen v. Thompson, 3 Yerg. 475. 
 Manly v. Killough, 7 Yerg. 440. 
 Vick V. Keys, 2 Haywd. 126. Foley 
 V. Knight, 4 Blackfd. 420. Watson 
 V. Williams, 4 Blackfd. 26. Miller v. 
 Pancoast, 4 N. Y. 303. Beers v. 
 Dawson, 8 Ga. 556. Kuykendall v. 
 McDonald, ij Mo. 416. Bryant v. 
 Kelton, 1 Tex. 415. Morgan v. Re- 
 public, 2 Tex. 273. Livingston v. 
 Littell, 15 Wis. 221. BuUis v. Bor- 
 den, 21 Wis. 136. Hobbs v. Bibb, 
 2 Stew. 54. Mayer v. Clark, 40 
 Ala. 259. Rankin v. HoUoway, 11 
 Miss. 614. Comstock v. Rayford, 
 20 Miss. 369. Field y. Simco, 7 
 Ark. 269. 
 
 ' Conard v.' Atlantic Ins. Co., i 
 Peters, 386. Joy v. Sears, 9 Pick. 4. 
 Putnam v. Dutch, 8 Mass. 287.. 
 Portland Bank v. Stacey, 4 Mass.. 
 661. 
 
 " Edzell v. Hart, 9 ~N. Y. 2U 
 Lang V. Lee, 3 Rand. 410. Collins, 
 v. McElroy, 16 Ohio, 547. Shep- 
 pard V. Turpin, 3 Gratt. 373. Ad- 
 dington v. Etheridge,. 12 Gratt. 436. 
 Brooks V. Wirner, 20 Mo. 503, 
 Walter v. Winner, 24 Mo. 63. Free- 
 man V. Ranson, 5 Ohio S. I. Har- 
 man v. Abbey, 7 Ohio S. 219. Place 
 V. Langworth, 13 Wis. 629. Chop- 
 hard V. Bayard, 4 Minn. 533. Bar- 
 net V. Fergus, 51 111. 352. Arm- 
 strong V. Tuttle, 34 Mo. 432. 
 
 ' Gardner v. McEwen, 19 N. Y.. 
 -123. Russell V. Wines, 37 N. Y. 
 591. Ward V. Lowry, 17 Wend. 432.. 
 Deleware v. Ensign, 21 Barb. 85. 
 
 * Bean v. Smith, 2 Mason, 252. 
 Poaque v. Boyce, 6 J. J. Marsh. 70.. 
 Bayard v. Hoffman, ; John. Ch. 450. 
 Planters' Bank v. Henderson, 4 
 Humph. 75. Winebrenner v. Wei- 
 siger, 3 Mon. 32. Legro v. Lord, io« 
 
Chap. V.] TO EXECUTION. 153 
 
 § 1 20. The right and interest of the owner in goods and chat- 
 tels pledged or pawned for the payment of money or the perform- 
 ance of a contract or agreement, may be levied on and sold on 
 execution against such owner, and upon compliance with the 
 terms of the pledge, or the payment of the amount for which 
 they are pledged, the purchaser will be entitled to possession of 
 them. If taken in execution, they are taken subject to the rights 
 of the pawnee or pledgee,^ or the lien must be discharged. An 
 officer may take the property into his custody, and bring it to 
 the place of sale, but he can sell only the pledgor's interest in 
 it, and after the sale return it to the party or pledgee from 
 whom he took it.^ In Pennsylvania the seizure and sale must 
 be made without disturbing the possession.^ In California it 
 is reached by serving a garnishment on the pledgee,* and if 
 re-delivered to the pawnor, it is liable without any question of 
 lien.^ A lien denotes a legal claim or charge on property, 
 either real or personal, for the payment of any debt or duty, 
 although property be not in the possession of him to whom. the 
 debt or duty is due.^ Property upon which a factor has a lien 
 for advances may be seized subject to such lien ; '' and a pui- 
 chaser's title is subject to such lien in the same manner as an 
 equity of redemption of real estate.^ A lessee's interest in 
 personal property may be sold on execution, and the purchaser 
 is subrogated to the lessee's rights.® Where property is held 
 by way of lien, but which lien is satisfied and discharged by a 
 
 Me. 161. Foster v. McGregor, 11 * Tread well v. Davis, 34 Cal. 601. 
 
 Vt. 595. Dearman v. Dearman, 4 ' Barrett' v. Cole, 4 Jones' L. 40. 
 
 Ala. 521. Howe v. Wayman, 12 Mo. Smith v. Sasser, 4 Jones' L. 43. 
 
 169. Lishey v. Clayton, 6 Bush. 515. ' Downer v. Brackett, 21 Vt. 579. 
 
 ' Strodes v. Craven, 3 Watts, 258. ' Joost v. Scott, 19 Tex. 473. 
 
 Mechanics', &c., Ass. v. Conover, 1 Gregory v. Stryker, 2 Denio, 628. 
 
 McCarter, 219. Glassner v. Whea- Moore v. Hitchcock, 4 Wend. 292. 
 
 ton, 2 E. D. Smith, 352. Wheeler v. Truslow v. Putnam, 3 Keyes, 568. 
 
 McFarland, 10 Wend. 318. ' Stief v. Hart, i N. Y. 20. Bake- 
 
 " Gary v. Hewitt, 26 Mich. 228. well v. Ellsworth, 6 Hill, 484. 
 
 Van Brunt v.Wakalee, II Mich. 177. ° Hurd v. West, 7 Cow. 752. Otis 
 
 ' Baugh v. Kirkpatrick, 54 Penn. v. Wood, 3 Wend. 500. Van Ant- 
 
 84. Welsh V. Bell, 32 Penn. 12. werp v. Newman, 2 Cow. 543. 
 20 
 
154 PROPERTY SUBJECT [Chap. V. 
 
 Stranger, who takes the property, it does not vest title in him ; 
 it may be taken against the owner.^ 
 
 § 121. When and where it cannot be taken on Execu- 
 tion. — At common law, chattels pawned or pledged are not 
 liable to be taken in execution against the pawnor or pledgor, 
 on the ground that an officer can seize notliing but what he 
 can sell; and he cannot substitute as the owner of the goods 
 a third person, between whom and the original owner there is 
 no privity.^ In many states a mortgagor's interest cannot be 
 seized on execution at law ; ^ nor where the possession of the 
 mortgagor is determinable at the will of the mortgagee ; * or 
 after the mortgagee has taken possession ; * or where the mort- 
 gage gives the mortgagee the right of possession at any time ; 
 or the mortgagee has reduced the property to possession, the 
 interest of the judgment debtor being a mere chose in action, 
 is not liable ;^ or where the title has become absolute, or vested 
 in the mortgagee, as where there is no time specified in the 
 mortgage for payment, or it provides for an impossible time of 
 payment, or it is prior to the date of the conveyance, or imme- 
 diately, there is no interest in the property subject to seizure 
 
 ' Woods V. Gibson, 17 111. 218. fin v. Richardson, 11 Ired. 439. Rose 
 
 ^ Legg V. Evans, 6 M. & W. 36. v. Be van, 10 Md. 466. Myers v. 
 
 Jacobs V. Latour, 2 M. & P. 20. Arney, 21 Md. 302. Campbell v. 
 
 Smith V. Goss, i Camp. 282. Scott Leonard, 11 la. 489. Reeves v. Se- 
 
 v. Scholey, 8 East. 467. Metcalf v. bern, 16 la. 234. Wilson v. Gray, 2 
 
 Scholey, 5 B. & P. 461. Strodes v. Stockt. 323. Boyce v. Smith, 16 Mo. 
 
 Craven, 3 Watts,^ 258. Pomeroy v. 317. Chapman v. Hunt, 2 Beasley, 
 
 Smith, 17 Pick. 85. Badlam v. Tuck- 370. 
 
 er, I Pick. 3S9. Marsh v. Lawrence, * King v. Bailey, 8 Mo. 332. 
 
 4 Cow. 461. Wilkes v. Ferris, 5 ' Adams v. Tanner, 5 Ala. 740. 
 
 John. 336. Townsend v. Newell, 14 Planters', &c., Bank v. Willis, j Ala. 
 
 Pick. 332. Outcall v. Darling, i 770. Sexton v. Monks, 16 Mo. 156. 
 
 Dutch. 443. TuUy v. Peachy, 4 T. Ladbrooke v. Crickett, 2 T. R. 649. 
 
 R. 640. Tannahill v. Tuttle, 3 Mich. 104.' 
 
 '' Harris v. Alcock, 10 Gill. & J. Nichols v. Mead, 2 Lans. 222. 
 
 226. Chapman v. Alcock, 10 Gill. ' Palmer v. Forbes, 23 111. 301. 
 
 & J. 226. Whitesides v. Williams, Matteson v. Baucus, I N. Y. 295. 
 
 2 Dev. & B. Ch. 153. Cora., &c., Otis v. Wood, 3 Wend. 500. Far- 
 Bank V. Waters, i8 Miss. 559. Grif- rell v. Hildreth, 38 Barb. 178. 
 
Chap. V.] TO EXECUTION. 155 
 
 against the mortgagor ; ^ or after forfeiture.* Nor can a les- 
 see's interest be taken where the removal of the property 
 works a forfeiture of the lease after the removal of the prop- 
 erty by the lessee ; ^ or where the party, to secure a debt, 
 transfers property to his creditor, and authorizes him to sell 
 the same, and pay himself out of the proceeds, the property 
 canno); be taken by the other creditors of the debtor unless 
 the debt is paid.* 
 
 § 122. Choses in Action. — A chose in action is a thing 
 which a person has not possession or actual enjoyment. of, but 
 only a right to, or a right to demand by an action. It is a per- 
 sonal right to a thing not reduced to possession, but recover- 
 able in an action, as a right to recover money due on a contract, 
 or damages for an injury, which cannot be enforced against a 
 reluctant party without suit. Promissory notes, coupons, notes 
 for the payment of interest on bonds, judgments, &c., ac- 
 counts, account books, private 'papers, or claims and demands 
 against others, stock in corporations, bank shares, the interest ' 
 of a special partner in a partnership, are beyond the reach of 
 an execution; 5 shares in a public library;® interest of a special 
 
 ' Galen v. Brown, 22 N. Y. 37. Goodenow v. DufEeld, Wright (O.), 
 
 Baltes V. Ripp, 3 Keyes, 216. Farm- 455. Field v. Lawson, 5 Ark. 376. 
 
 €rs' Bank v. Cowen, 2 Keyes, 217. .Stewart v. English, 6 Ind. 176. 
 
 Howland v. Willett, 3 Sand. Ch. 607. People v. Auditors, 5 Mich. 223. 
 
 Fuller V. Acker, i Hill, 473. Patch- Smith v. Kennebec R. R. Co., 45 
 
 in V. Pierce, 12 Wend. 61. Langdon Me. 547- Skowhegan Bank v. Cut- 
 
 V. Buel, 9 Wend. 80. Diver v. Mc- ter, 49 Mfe. 315. Rhoads v. McGon- 
 
 Laughlin, 2 Wend. 596. negal, 2 Penn. 39. • Crandall v. Blen, 
 
 ■* Lamb v. Johnson, 10 Cush. 126. 13 Cal. 15. Harding v. Stevenson, 
 
 Marsh v. Lawrence, 4 Cow. 467. 6 Har. & J. 264. Donovan v. Finn, 
 
 Otis V. Wood, 3 Wend. 500. Camp- Hopk. 59. Handy v. Dobbin, 12 
 
 bell V. Leonard, 1 1 la. 489. laly . 220. Holmes v. Nuncaster, 
 
 '^ Otis v. Wood, 3 Wend. 500. 12 John. 395. Rawsom v. Miner, 3 
 
 ■• Swanston v. Sublette, I Cal. Sandf. 692. Greenwood v. Spiller, 
 
 133. 3 111. 504. Kercheval v. Wood, 3 
 
 ' Watkins v. Dorset, i Bland. 530. Mich. 509. Carlos v. Ansley, 8 Ala. 
 
 Crogan v. Cooke, 2 Ball. & B. 233. 900. Huey's Appeal, 29 Penn. 219. 
 
 Ingalls V. Lord, i Cow. 240. Mc- ° Denton v. Livingston, 9 Joha 
 
 Clellan v. Hubbard, 2 Blackfd. 361. 96. Ingalls v. Lord, I Cow. 240. 
 Rickart v. Madiera, i Rawle. 325. 
 
356 PROPERTY SUBJECT ■ [Chap. V. 
 
 partner in the copartnership property ; ^ property let to hire, 
 as against the owner during the time the property is in the 
 use and possession of the lessee ; ^ the residuary interest of a 
 debtor in goods assigned in good faith by him in trust for the 
 payment of debts, or other specific purposes, after the purposes 
 of the trust are satisfied ; ^ contracts for railway shares ; * a 
 lottery ticket;^ a claim against a railroad company for the 
 value of goods destroyed by fire ; ^' debts due ; '' stock in a cor- 
 poration, as bank shares ;* negotiable bills and notes ;* judg- 
 ments.^" The estate of a mortgagee, before foreclosure or pos- 
 session taken by him, is not liable to be taken upon execution. 
 Until foreclosure, it is a mere chose in action, and an incident 
 attached to the debt, from which it cannot properly be sepa- 
 rated. The debt cannot be sold with the mortgage, it being 
 well settled that a chose in action is not subject to sale on exe- 
 cution. ^^ A lease for another's life.^^ 
 
 § 123. When and where they are liable. — In some 
 states choses in action and debts due the defendant are liable 
 to be taken.^^ A promissory note is liable to seizure and sale 
 under execution against the holder and payee. By such sale 
 
 ' Harris v. Murray, 28 N. Y. 574. " Jackson v. Willard, 4 John. 43. 
 
 Tempest v. Killner, 3 D. & L. 407. Eaton v. Whiting, 3 Pick. 488. 
 
 ^ Hartford v. Jackson, 11 N. H. Marsh v. Austin, i Allen, 235. 
 
 145. ■ Thornton v. Wood, 42 Me. 282. 
 
 ' Wilkes V. Ferris, j John. 335. Jenkins v. Quincy, 7 Gray, 373. 
 
 ' Humble v. Mitchell, 11 A. & Huntington v. Smith, 4 Conn. 237. 
 
 E. 205. . Johnson v. Bartlett, 17 Pick. 477. 
 
 * Jones V. Carter, 8 Q. B. 134. Glass v. Ellison, 9 N. H. 69. Trap- 
 
 « Ayres v. W. R. R. Co., 48 Barb, nail v. State Bank, 18 Ark. 53. Rick- 
 
 132. art V. Madiera, i Rawle. 325. Den 
 
 ' Carr v. Carr, i Mer. 543. v. Hay, i N. J. 174. Brown v. Bates, 
 
 ' Hutchins v. State Bank, 12 Met. 55 Me. 520. Hutchins v. Hanna, 8 
 
 421. Slaymaker V. Gettysburg Bank, Ind. 533. Haynes v. Baker, s Ohio 
 
 lo Penn. 373. Union Bank v. State, S. 253. 
 
 9 Yerg. 490. Mechanics' Bank v. '^ Commonwealth v. Allen, 30 
 
 N. Y. R. R., 33 N. Y. 627. Penn. 49. 
 
 ' Gates V. Madderly, 6 M. & W. " Collier v. Stanbrough, 6 How. 
 
 423. Nash V. Nash, 2 Madd. 133. 14. Adams v. Hackett, 7 Cal. 187. 
 
 '" Osborn v. Cloud, 23 la. 104. 
 
Chap. V.] TO EXECUTION. 157 
 
 the purchaser takes the note upon the same terms upon which 
 he would have taken it had it come into his hands in the ordi- 
 nary course of business.^ If commercial paper be mortgaged, 
 the mortgage may be foreclosed, and the securities sold under 
 the decree. Such securities may be seized and sold under exe- 
 cution on a judgment at law.^ In order to make a valid seiz- 
 ure of a negotiable promissory note after maturity, it must be 
 taken into possession.^ A judgment may be.* The proper 
 mode in Louisiana is by notification of seizure to the judgment 
 debtor ; ^ and it may be sold by the officer, under an execution, 
 at auction as well as by private agreement between the parties.^ 
 The purchaser of a judgment on sale under execution and levy 
 takes as assignee only, assuming that a judgment is the subject 
 ■of levy and sale. The sheriff's sale of a judgment passes no 
 title other than would pass by an assignment by the owner.'' 
 In some state;s power is given to the officer, under peculiar 
 process authorized by statute, to attach the rights of the de- 
 fendant to such choses in action, as in cases of debts due, by 
 a third person, who is made a garnishee ; or in case of a judg- 
 ment, inTowa, which can only be reached by garnishment.^ 
 
 § 124. Money, when it is and is not liable. — Bills or 
 notes could not, at common law, be taken in execution at the 
 suit of the subject ; nor, if taken, could the officer or his as- 
 signee acquire title against the other parties to the instrument, 
 they being only assignable by the custom of merchants, .in the 
 ■ordinary way of mercantile transfer ; and such as more nearly 
 resemble money than securities, as bank notes, were, like 
 money, not subject to be taken in execution. But now money, 
 bank notes, bills, and promissory notes, with all other securi- 
 ties for money, may be seized on an execution. The officer 
 delivers the money and bank notes to the creditor. There is 
 no reason why it should not be taken. The reason given 
 
 ' Davis V. Mitchell, 34 Cal. 81. * Ballard v. Waller, 9 Jones' L. 84. 
 
 » Davis V. Mitchell, 34 Cal. 81. ' Monticon v. Mullen, 12 La. 275. 
 
 Donahoe v. Gamble, 38 Cal. 340. * SafFord v. Maxwell, 23 La. 345. 
 
 ' Allison V. King, 21 la. 302. ' Fore v. Manlove, 18 Cal. 436. 
 
 .Miller v. Streeter, 18 La. 56. ' Osborn v. Cloud, 23 la. 104. 
 
158 PROPERTY SUBJECT [Chap. V. 
 
 under the common law rule that it could not be sold was not 
 a good one. The object of the sale on execution is to obtain 
 money to satisfy it with. If any other property is taken, it 
 must be turned into money. But this is no cause for refusing 
 to take the very article to procure which is the sole object of 
 the writ.i If in possession of the defendant, it may be taken j^ 
 or if set apart, and earmarked specifically the property of the 
 defendant ;^ coin held in the hand, like a horse by the bridle ;* 
 in Louisiana, money appropriated by a legislature to be paid 
 to a debtor as compensation for public services ; ^ surplus 
 money in an oflBcer's hands ; ^ a check may be.^ In some 
 cases, where an officer has made the money on an execution 
 in favor of A, and he has in his hands an execution against A 
 in favor of B, he may appropriate enough of the money in his 
 hands to satisfy the execution of B against A ;^ and in some 
 cases by leave or order of court ; ^ or in case the plaintiff can- 
 not find sufficient property to satisfy his judgment.^" The gen- 
 eral rule is, that the surplus proceeds of an execution will not 
 be retained by the court, or stayed in the officer's hands, pend- 
 ing an action against the debtor ; it is a debt due the debtor 
 from the officer, and, as such, cannot be taken on execution.^^ 
 
 ' Turnery. Fendall, I Cranch, 117. ' Watts v. Jeffries, 3 M. & G. 
 
 Handy v. Dobbin, 12 John. 220. 422. Watson v. Todd, 5 Mass. 271. 
 
 Holmes v. Nuncaster, 12 John. 395. Davidson v. Clayland, i H. & J. 
 
 Spencer v. Blaisdell, 4 N. H. ig8. 546. Orr v. McBryde, 2 Car. L. R. 
 
 Orr V. McBryde, 2 N. C. Law, 257. 257. 
 
 Brooks V. Thompson, i Root, 216. * Hamilton v. Ward, 4 Tex. 356. 
 
 * Reno V. Wilson, i Hemp. 91. Dolby v. MuUins, 3 Humph. 437. 
 Steele v. Brown, 2 Virg. Cas. 246. Summers v. Caldwell, 2 N. & M. 341. 
 Means v. Vance, i Bailey, 39. Reg ' Steele v. Brown, 2 Virg. Cas. 
 V. Webb, 2 Show. 166. Dolby v. 246. Rogers v. Bullen, R. M. 
 MuUin, 3 Humph. 437. Rogers v. Charlt. 196. Watts v. Jeffryes, 4 
 Bullen, R. M. Charlt. 296. Eng. L. & Eq. 29. 
 
 ■" Wood V. Wood, 3 G. & D. 532. '" Armistead v. Philpot, i DougL 
 
 * Green v. Palmer, 15 Cal. 411. 235. 
 
 ' Flower v. Livingston, 2 N. S. La. " Harrison v. Paynter, 6 Mee. & 
 
 615. W. 387. Fieldhouse v. Croft, 4 
 
 ' Tucker v. Atkinson, i Humph. East. jio. Willoms v. Ball, 2 N. 
 
 300. R. 376. 
 
Chap. V.] 
 
 TO EXECUTION. 
 
 159 
 
 In some states it may be, but not if assigned before a seizure 
 is made.^ But the proceeds of goods seized under an execu- 
 tion are not liable, as money belonging to the execution cred- 
 itor ; it does not become goods, chattels, and property until it 
 is paid over by the officer to the party entitled to it ; it is in 
 the custody of the law until paid over.^ Or where it has been 
 paid into a clerk's office ; ^ or in the hands of a third person ; * 
 money paid to an officer for the purpose of redeeming prop- 
 erty, and refused by the party to whom it was tendered ; ^ or 
 paid voluntarily by a debtor to the officer, to be applied on a 
 junior writ, cannot be appropriated in his hands to a senior 
 execution upon which a levy has been made on land ; ® nor 
 money loaned to an officer, and applied in good faith to his 
 
 • Dupong V. Watkins, 2 Rich. 328. 
 Southern, &c., Bank v. Watkins, 2 
 Rich. 328. Reid v. Ranney, 2 Rich. 4. 
 
 ' State V. Taylor, 56 Mo. 492. 
 Dawson v. Holcomb, i Ohio, 
 275. Willis V. Pitkins, I Root, 47. 
 Turner v. Fendall, i Cranch, 117. 
 Prentiss v. Bliss, 4 Vt. 513. Crane 
 V. Freese, i Harring. 305. In re 
 Fearle, 13 Mo. 467; Marvine v. 
 Hawley, 9 Mo. 382. Wood v. Wood, 
 4 Q- B. 397. Padfield v. Brine, 3 B. 
 & B. 294. Collingridge v. Paxton, 
 1 1 C. B. 683. State v. Lea, 8 Ired. 
 94. Harding v. Stevenson, 6 H. & 
 J. 264. Hill V. R. R., 14 Wis. 291. 
 First V. Miller, 4 Bibb. 311. Baker 
 V. Kenworthy, 41 N. Y. 2 1 5. Knight 
 V. Criddle, 9 East. 48. Masters v. 
 Stanley, 8 Dowl. P. C. 169. Har- 
 rison V. Paynter, 6 Mee. & W. 387. 
 Reno V. Wilson, i Hemp. 91. Win- 
 ton V. State, 4 Ind. 421. Sibert v. 
 Humphries, 4 Ind. 48. Staples v. 
 Staples, 4 Me. 532. Hooks v. York, 
 4 Ind. 636. Lion v. Wilcher, 27 Ga. 
 496. Marsh v. Lawrence, 4 Cow. 
 461. Dubois V. Dubois, 6 Cow. 494. 
 
 Williams v. Rogers, 6 John. 163. 
 Carroll v. Cone, 40 Barb. 220. Red- 
 dick V. Smith, 4 111. 452. Campbell 
 V. Hasbrouck, 24 111. 243. Clymer 
 V. Willis, 3 Cal. 363. Thompson v. 
 Brown, 17 Pick. 462. Conant v. 
 Bicknell, i Chip. 50. Zurcher v. 
 Magee, 2 Ala. 253. Jones v. Jones, 
 I Bland. 443. Blair v. Cantney, 2 
 Speers, 34. Burnell v. Letson, 1 
 Strobh. 239. Pawley v. Gains, i 
 Tenn. 208. Drane v. McGavock, 
 7 Humph. 132. Lightner v. Stein- 
 agel, 33 111. 510. Farmers' Bank v. 
 Beaston, 7 G. & J. 421. 
 
 3 Ross V. Clark, I Dall. 354. All- 
 ston V. Clay, 2 Haywd. 171. Over- 
 ton V. Hill, I Murph. 47. Hunt v. 
 Stevens, 3 Ired. 365. Drane v. Mc- 
 Gavock, 7 Humph. 132. Farmers' 
 Bank v. Beaston, 7 G. & J. 421. 
 Murrell v. Johnson, 3 Hill (S. C), 12. 
 Bowden v. Schatzell, Bailey Eq. 360. 
 
 ■* McDonald v. Pickett, 2 Bailey, 
 617. Maxwellv.McGee,i2Cush. 137. 
 
 ' Davis v. Seymour, 16 Minn. 210. 
 
 ° Rudy v. Commonwealth, 35 
 Penn. 166. 
 
160 PROPERTY SUBJECT [Chap. V 
 
 own use, prior to his receiving an execution against the lender, 
 either at law or in equity ; ^ or money deposited in a bank by 
 a person who transacts a general business with it, making gen- 
 eral deposits, and keeping a regular account, for he has no 
 right to any specific pieces of money in the hands of the bank, 
 and therefore no levy can be made on the deposit,^ not even 
 when the amount is counted out by the banker, and handed 
 over to the officer.^ Where negotiable certificates of deposit 
 have been issued to the depositor, there is nothing left in the 
 possession of the bankers belonging to the depositor upon 
 which an attachment issued against his property can fasten.* 
 Or money assigned by check or order for the assignor's debt, 
 though not paid over, and in the assignee's possession ; ^ nor 
 an order upon a county treasurer ; ^ nor money collected for 
 taxes ; ^ nor pension money ; ^ or the proceeds of a forced sale 
 of a homestead on any judgment that is not a hen thereon, as 
 long as the owner expects to use the surplus in redeeming the 
 old or securing a new one.^ 
 
 § 125. Crops. — A crop growing in the ground is personal 
 property so far as not to be considered an interest in land 
 under the statute of frauds.^" The products of annual planting 
 and cultivation, or the fructus industriale, as, for instance, a 
 growing crop, may be taken on execution as personal property ; ^^ 
 
 ' Price V. Crump, 2 H. & M. 89. '" Parker v. Staniland, 1 1 East. 
 
 » Scott V. Smith, 2 Kan. 438. 362. Evans v. Roberts, j B. & C. 
 
 ' Carroll v. Cone, 40 Barb. 220. 829. Smith v. Surnam, 9 B. & C. 561. 
 
 * McMillan v. Richards, 9 Cal. Jones v. Flint, 10 A. &E. 753. 
 365- " Craddock v. Riddlesbarger, 2 
 
 * Moorman v. Quick, 20 Ind. 67. Dana, 206. Peacock v. Purvis, 2 B. 
 « People V. Auditors, ; Mich. 223. & B. 368. Warren v. Leland, 2 
 
 State V. Lawson, 7 Ark. 391. Barb. 613. Jones v. Flint, 10 A. & 
 
 ' Edgerton v. Third Municipality, E. 753. Parham v. Thompson, 2 J. 
 
 I La. 434. J. Marsh. 159. Pierce v. Roche, 40 
 
 ' Morris v. Mamesty, 7 Q. B, 674. 111. 292. McKinney v. Lampley, 31 
 
 " Mitchell V. Milhoan, 11 Kan. Ala. 526. Hartwell v. Bissell, 17 
 
 ■628. Sargent v. Chubbuck, 19 la. John. 128. Whipple v. Foote, 2 
 
 37. Robb V. McBride, 28 la. 386. John. 418. Evans v. Roberts, 5 B. 
 
 Marshall v. Ruddick, 28 la. 487. & C. 829. Heard v. Fairbanks, S 
 
 Keyes v. Rines, 37 Vt. 260. Pear- Met. iii. 
 
 son V. Minturn, 18 la. 36. 
 
Chap, v.] TO EXECUTION. 161 
 
 as corn, wheat, hops, a crop of potatoes ; ^ a share of a 
 crop after it is divided, though seized on before division, and 
 is still in the crib of the owner of the land.^ A lessor's interest 
 in growing crops on his land leased to a tenant on shares.* 
 By statutory enactment in Kentucky it cannot be levied on 
 while growing, except corn after the ist of October. In Ala- 
 bama until gathered. In Michigan it may be, but no sale 
 thereof, with a lien reserved to the creditor thirty days after it 
 is ripe or severed. In other states, an unripe crop is not sub- 
 ject to seizure.* In Tennessee it cannot be seized before the 
 1st of November, except for rent, where the tenant has ab- 
 sconded. No seizure can be made upon the annual produce 
 of the earth, as grass growing, or fruit not gathered,^ where 
 the debtor is the owner of the land. In such cases they are a 
 portion of the freehold, and must be sold as such. Where the 
 debtor is merely a tenant, then the fruit or growing grass, and 
 even trees not severed, may become personal property; as 
 where the owner sells the trees and grass, or sells the land and 
 reserves to himself the grass and trees. Where they are mort- 
 gaged, there can be no severance from the soil until after for- 
 feiture of the conveyance, when they belong to the mortgagee, 
 and are liable to be taken on execution against him.® Or 
 where a tenant is to have half of the crops or profits, he has 
 
 ' Planters', &c., v. Walker, 1 1 ° State v. Gemmill, i Houst. 9. 
 Miss. 409. Coombs v. Jordan, 3 ° Pooles's Case, i Salk. 368. 
 
 Bland. 312. Cassilly v. Rhodes. Whipple v. Foote, 2 John. 418. Hart- 
 
 12 Ohio, 88. Penhallow V. Dwight, well v. Bissell, 17 John. 128. Bricker 
 
 7 Mass. 34. Bradshaw v. Ellis, 2 v. Hughes, 4 Ind. 146. Bloom v. 
 
 Dev. & B. 23. Debow v. Titus, 5 Welsh, 27 N. J. 177. Westbrook 
 
 Halst. 128. Sarrisbury V. MathewSj v. Eager, .1 Harrison, 153. Adams 
 
 4 M. & W. 343. Stambrough v. v. Smith, I 111. 221. Bank, &c, v. 
 Yates, 2 Rawle. 161. Gland's Case, Crary, I Barb. 542. Austin v. Saw- 
 
 5 Co. 116. Frank V. Harrington, 36 yer, 9C0W. 39. Green v. Armstrong, 
 Barb. 415. I Denio, 550. ' Smith v. Jenks, I 
 
 ' Hare v. Pearson, 4 Ired, 76. Denio, 580. Stewart v. Doughty, 9 
 
 ' Currey v. Davis, i Houst. 598. John. 108. Evans v. Roberts, 5 B. 
 
 * Thoiapson v. Craignyle, 4" B. & C. 829. Jones v. Flint, 10 A. & 
 
 Mon. 392. Pitts V. Hendrix, 6 Ga. E. 753. Crosby v, Wadsworth, 6 
 
 452. Shannon V. Jones, 12 Ired. 206. East. 602. Zeal v. Auty, 2 B. & B. 99. 
 
 21 
 
162 PROPERTY SUBJECT [Chap. V. 
 
 no such perfected interest until his part of the contract is per- 
 formed as will give his creditors a right to seize his share.^ 
 
 § 126. Immovable Fixtures, what are, what are not, 
 WHEN AND HOW THEY MAY BE TAKEN. — Fixtures are chattels 
 or articles of a personal nature which have been affixed to the 
 land. They must be permanently and habitually attached to 
 it, or must be component parts of some erection, or structure, 
 or machine attached to the freehold, without which the erec- 
 tion, structure, or machine would be imperfect and incomplete. 
 A personal chattel becomes a fixture, so as to form part of the 
 real estate, when it is so affixed to the freehold as to be in- 
 capable of severance without injury thereto ; and this, whether 
 the annexation be for use, for ornament, or from mere capHce.^ 
 If articles are essential to the use of the realty, have been ap- 
 plied exclusively to use in connection with it, and are neces- 
 sary for that purpose, and without such or similar articles the 
 realty would cease to be of value, then they may be properly 
 considered as fixtures, and should pass with the land.^ Its 
 true criterion is the united application of these requisites: ist, 
 actual annexation to the realty, or something appurtenant 
 thereto ; 2d, application to the use or purpose to which that 
 part of the realty with which it is connected is appropriated ; 
 3d, the intention of the party making the annexation to make 
 permanent accession to the freehold. In order to take them 
 out of the general rule which makes them the property of the 
 owner of the soil, it is necessary to bring them within some of 
 the established exceptions ; * or as determined by reference to 
 the chattel itself, the position of the party placing it where 
 found, as tenant or owner, the probable intention of placing it 
 there, the injury that would result from its removal, and the 
 object of the party in placing it on the premises, with reference 
 to trade, agriculture, or ornament.^ In order to make a thing 
 
 » Smith V. Meech, 26 Vt. 233. ■• Wilde v. Waters, 32 Eng. L. & 
 
 ' Providence, &c., Co. v. Thurber, Eq. 422. 
 
 2 R. I. ij. » Richardson v. Borden, 42 Miss. 
 
 ' Hoyle V. P. & M. R. R. 51 Barb. 71. Weatherby v. Steeper, 42 Miss. 
 
 45- 732. Perkins v. Swank, 43 Miss. 
 
Chap. V.] 
 
 TO EXECUTION. 
 
 163 
 
 part of the realty by merely annexing it, it is necessary that 
 the party annexing the thing owns both the thing and the soil 
 to which it is attached.^ A fixture cannot exist without actual 
 annexation.^ A statue or thing which by its own weight is as 
 firmly attached as though it had been fastened with cement or 
 other material is a part of the freehold.^ An article may be a 
 fixture or a chattel personal, according to the agreement of the 
 parties in relation to it ;^ and the same protection is extended 
 to fixtures for agricultural purposes as is afforded fixtures 
 erected for purposes of trade.^ Between the owner and pur- 
 chaser at an execution sale the same rule applies as between 
 vendor and purchaser at private sale.^ In the many adjudicated 
 cases relating to questions as to what personal property were 
 fixtures so as to become part of the freehold, are the following : 
 
 349. Hill V. Sewald, 53 Penn. 274. 
 Hill V. Wentworth, 28 Vt. 436. 
 Voorhees v. McGuinness, 48 N. Y. 
 278. Potter V. Cromwell, 40 N. Y. 
 287. Capen v. Peckham, 35 Conn. 
 88. Vorhies v. Freeman, 2 W. & S. 
 116. Murdock v. Gilford, 18 N. Y. 
 28. Swift V. Thompson, 9 Conn. 63. 
 Walmsley v. Milne, 7 C. B. N. S. 
 115. Culnick V. Swindell, 3 Law 
 R. Eq. 249. Boyd v. Shorrock, j 
 Law R. Eq. 72. Climie v. Wood, 3 
 Law R. Ex. 257. Crippen v. Mor- 
 rison, 13 Mich. 32. Teaff V. Hewitt, 
 I Ohio, S. 511. Noble v. Bosworth, 
 19 Pick. 314. Butler v. Page, 7 Met. 
 40. Christian v. Dripps, 28 Penn. 
 271. Crane V. Bingham, 2 Stockt. 29. 
 HoUawell v. Eastwood, 6 Exchq. 
 295. Lancaster v. Eve, 5 C. B. N. S. 
 727. Laflin v. Griffiths, 35 Barb. 58. 
 Meigs' Appeal, 62 Penn. 28. Leader 
 V. Homewood, 5 C. B., N. S. 546. 
 Wilde V. Walters, 16 C. B. 647. Ly- 
 ford's Case, 1 1 Co. jo. Hitchman v. 
 Walton, 4 M. & W. 409. Trappes 
 
 V. Harter, 2 C. & M. 177. Place v. 
 Fagg, 4 M. & R. 277. 
 
 ' Lancaster v. Eve, 5 C. B. N. S. 
 727. Adams v. Smith, i 111. 221. 
 
 ' Taylor v. Townsend, 8 Mass. 
 411. Walker v. Sherman, 20 Wend. 
 636. Holmes v. Tremper, 20 John. 
 29. Talbott V. Whipple, 14 Allen, 
 177. Despatch Line v. Bellamy, 12 
 N. H. 205. Lathrop v. Blake, 23 N. 
 H. 46. McClintock v. Graham, 3 
 McCord, 553. TafFe v. Warnick, 3 
 Blackfd. III. Swift v. Thompson, 
 9 Conn. 63. Hill v. Wentworth, 28 
 Vt. 428. FuUam v. Stearns, 30 Vt. 
 443. Wade V. Johnston, 29 Ga. 331. 
 McKinn v. Mason, 3 Md. Ch. 186. 
 Farrar v. Chaufetete, 5 Den. 337. 
 Vanderpoel v. Van Allen, 10 Barb. 
 157. Snedeker v. Waring, 12 N. Y. 
 170. 
 
 ' Snedeker v. Waring, 12 N. Y. 
 170. 
 
 * Brearly v. Cox, 4 Zabr. 287. 
 
 " Harkness v. Sears, 26 Ala. 493. 
 
 " Farrar v. Chaufetete, 5 Denio, 
 527. 
 
164 PROPERTY SUBJECT [Chap. V. 
 
 Brick which have been put into a building by a contractor, 
 where the owner of the property refuses to accept the work, 
 employs mechanics to undo the work of such former con- 
 tractor, and takes the brick down to the foundation, aind piles 
 them upon the land. The brick are part of the realty, and 
 cannot be taken as the property of such former contractor.^ 
 A portable grist-mill.^ A cotton gin attached to a building by 
 nails and braces.^ A steam-engine and apparatus placed on 
 the premises by the owner of the realty.* Mill chains, dogs 
 and bars of a saw-mill, being in their appropriate place.^ A 
 marine railway.* A clapboard machine and shingle machine 
 attached to a saw-mill.'^ Mill machinery detached from the 
 mill for repairs.^ Engines and boiler of a steam saw-mill.^ A 
 steam-engine, boilers, and machinery adapted to be moved by 
 such engine by means of connecting bands and gearing, placed 
 in a building designed for the purpose of manufacturing steam- 
 engines and other heavy iron-work.^" The rolls of an iron-mill, 
 iron plates covering the floor, indispensable parts of the floor.^^ 
 Saws in a mill, where there are two sets, one may be at work 
 while the other is being sharpened. So of a coffer which has 
 two covers.^ The stones and irons of a grist-mill accidentally 
 detached by a flood carrying away the main body of the mill.^^ 
 Potash kettles set in an arch of masonry, with a chimney 
 
 ' Moore v. Cunningham, 23 111. " Roberts v. Dauphin, 19 Penn. 
 
 328. 71. Farrant v. Thompson, 5 B. & A. 
 
 ° Potter V. Cromwell, 40 N. Y. 287. 825. Morgan v. Arthur, 3 Watts. 
 
 Saunders v. Fuller, 4 Humph. 516. 140. Oves v. Aylsby, 7 Watts. 107. 
 
 ' Rice V. Adams, 4 Harring. President, &c., v. Emerson, 15 Mass. 
 
 352- 159- 
 
 ■• Farrar v. Stackpole, 6 Me. 154. '» Winslow v. Merchants' Ins. Co. 
 
 * Trull V. Fuller, 25 Me. 545. 4 Met. 306. Farrant v. Thompson, 
 
 « Strickland v. Parker, 54 Me. 263. S B. & A. 825. 
 
 Smith V. Jenks, I Denio, 580. Jenks " Vorhies v. Freeman, 2 W. & S. 
 
 V. Smith, I N. Y. 90. 119. Pyles v. Pennock, 2 W. & S. 
 
 ' Strickland v. Parker, 55 Me. 263. 330. 
 
 Copeland v. Copeland, 29 Me. 545. " Walker v. Sherman, 20 Wend. 
 
 Curtis V. McLagan, 30 Me. 114. 636. 
 
 ' House V. House, 10 Paige, 158. " Goddard v. Bolster, 6 Me. 
 
 Walker v. Sherman, 20 Wend. 636: 427. 
 
Chap. V.l TO EXECUTION. 165 
 
 through the arches, placed on a platform, and fastened to the 
 building.^ A still set in brick-work in a distillery ; pumps, 
 cisterns, iron gratings, distillery, and horse mills.^ An iron 
 safe encased in a brick wall.^ A portable hot-air furnace for 
 the purpose of warming a house, .set in a pit prepared for it, 
 and the smoke-pipe leading from it to the chimney.* Stoves 
 standing in their places.^ Hop-poles used on a farm, though 
 taken down to gather ; the hops in the yard, with the intent of 
 using them again in the proper season.^ Growing grass and 
 fruit trees.'^ A strawberry bed in full bearing, though pur- 
 chased from the tenant.^ A border of box not grown for sale 
 by the gardener.* Manure in the ordinary course of accumu- 
 lation on the farm, whether made by the owner of the land or 
 the tenant, whether in heaps or scattered about the farm.^" 
 Permanent fences, when erected.^^ The permanent stage of 
 a theatre.^^ A freight-car, and a tank-house, on the roadside, 
 track, or turn-table of the company, are part of realty in Illi- 
 nois. ^^ A fixture cannot be seized where the house is the free- 
 hold of the debtor." 
 
 § 127. Movable Fixtures, Tenants' and Ornamental 
 Fixtures, &c. — Things annexed to the freehold in former times 
 were not liable to be taken in execution, like movable goods 
 
 ' Goodrich v. Jones, 2 Hill, 142. ° Empson v. Soden, 4 B. & A. 
 
 Noble V. Bosworth, ig Pick. 314. 655. 
 
 ' Kirwan V. Latour, I H. & J. 289. '" Middlebrook v. Corwin, 15 
 
 ' Folger V. Kenner, 24 La. 436. Wend. 169. Goodrich v. Jones, 2 
 
 * Stockwell V. Campbell, 39 Conn. Hill, 142. Wyndham v. Way, 4 
 362. Taunt. 316. 
 
 * Blethen v. Towle, 40 Me. 310. " Glidden v. Bennett, 43 N. H. 
 ' Bishop V. Bishop, 11 N. Y. 123. 306. Smith v, Carroll, 4 Greene, 
 
 * Mitchell V. Billingsly, 17 Ala. (la.) 146. Boon v. Orr, 4 Greene, 
 391. Evans v. Robarts, 5 B. & C. (la.) 304. Goodrich v. Jones, 2 Hill, 
 829. Jones V. Flint, 10 A. & E. 753. 142. 
 
 Green v. Armstrong, i Denio, 550. '* Walker v. Sherman, 20 Wend. 
 
 Crosby v. Wadsworth, 6 East, 602. 636. 
 
 Bank v. Crary, i Barb. 542. Warren " Titus v Mabee, 25 111. 257. Ti- 
 
 V. Leland, 2 Barb. 613. Teal v. tus v. Genhelmer, 27 111. 462. 
 
 Auty, 2 B. & B. 99. " Wynn v. Ingilby, 5 B. & A. 625. 
 
 * Wetherells v. Howells, I Camp. Place v. Fagg, 4 M. & R. 277. 
 N. P. C. 227. 
 
166 PROPERTY SUBJECT [Chap. V. 
 
 and chattels of the debtor.^ But this rule of law has given way 
 to a more liberal construction in favor of creditors, in modern 
 times, and for their benefit fixtures are now considered to be 
 so far in the nature of personal chattels, that, in cases where 
 they are not exempted by law, they may be seized and removed 
 under a writ of execution.^ A tenant has the right to remove 
 and carry away all such fixtures of a chattel nature as he him- 
 self has erected upon the premises occupied by him as such 
 tenant for the purpose of ornament, domestic convenience, or 
 to carry on trade, provided they can be removed without ma- 
 terial injury to the land.^ Movable fixtures are so completely 
 considered the personal property of the tenant, that, when not 
 exempt, they may be stripped from the house and sold against 
 him as goods and chattels ; they may be goods and chattels 
 because removable by the tenant.* Whenever a tenant is 
 entitled to remove fixtures from the freehold, and treat them 
 as personalty, the same right may be exercised by any one 
 who claims under or against him as an execution creditor.^ 
 Fixtures may be seized and severed, by virtue of an execution 
 against the tenant, whenever their character is such that they 
 might have been removed by him at pleasure, without the con- 
 sent of the landlord.® But a fixture that cannot be removed 
 
 ' Day V. Austin, Cro. Eliz. 374. 72. Boydell v. McMichael, 5 B. & 
 
 « Pooles's Case, i Salk. 368. Allen A. 177. Dalton v. Whittier, 3 Q. 
 
 V. Allen, Mosely, 112. Minshall v. B. 961. 
 
 Lloyd, 2 M. & W. 459. Place v. * Lemar v. Miles, 4 Watts. 330. 
 
 Fagg, 4 M. & R. 277. Ryall v. Rolle, Doty v. Gorham, ; Pick. 487. Om- 
 
 I Atk. 170. Wynn v. Ingilby, 5 B. bony v. Jones, 19 N. Y. 234. State 
 
 & A. 625. V. Bonham, 18 Ind. 231. 
 
 ' Washburn v. Sproat, 16 Mass. ' Fitzherbert v. Shaw, I H. Bl. 
 
 449. Whiting V. Barstow, 4 Pick. 528. Lawton v. Lawton, 3 Atk. 13. 
 
 310. Faires V. Walker, I Bailey, 541. Dean v. Allaley, 3 Esp. N. P. ill. 
 
 Van Ness v. Packard, 2 Pet. 137. Lawton v. Salmon, I H. Bl. 259. 
 
 Ombony v. Jones, 19 N. Y. 234. Pooles's Case, i Salk. 368. Elwes 
 
 Pemberton v. King, 2 Dev. 376. v. Maw, 3 East. 54. Mansfield v. 
 
 Cook V. Champlain, &c., Co. i Denio, Blackburn, 6 Bing. N. C. 426. Pen- 
 
 92. Goddard v. Gould, 14 Barb, ton v. Robart, 2 East. 90. Bank, 
 
 662. King V. Wilcomb, 7 Barb. 263. &c., v. Crary, I Barb. 542. Cook v. 
 
 ' Coombs V. Beaumont, 5 B. & A. Champlain, &c., Co. I Denio, 91. 
 
Chap. V.J TO EXECUTION. 167 
 
 cannot be taken, as the right of the creditor cannot be greater 
 than that of the debtor.^ The rule in regard to ascertaining 
 -whether personal property or chattels affixed to the freehold 
 are subject to levy and removal requires that the article is 
 capable of being removed without destroying or seriously in- 
 juring the freehold; that is, the premises must be in as good 
 condition after removal as they were before annexation.^ To 
 give more than the adjudications upon a question as intricate 
 as that of the law relating to fixtures is beyond the scope of a 
 work of this character ; therefore the articles specifically adju- 
 dicated to be movable fixtures can alone be given. Among 
 such are houses and buildings. Though it is a general prin- 
 ciple of law that a building permanently fixed in the freehold 
 becomes a part of it, and is realty, yet, if it is erected by the 
 builder with his own money, or by a tenant for the purpose of 
 trade, manufacture, or agricultural purposes, and for his exclu- 
 sive use, as disconnected from the use of the land, and with 
 an understanding to that effect between the owner of the land 
 and the builder, it will be regarded as personal estate.^ A 
 ■wooden dwelling-house, with a cellar of stone or brick, erected 
 by the tenant for the purpose of carrying on the business of a 
 ■dairyman, and the residence of those engaged in the business.* 
 A wooden ice-house, of two thousand tons capacity, on no 
 foundation except wooden blocks, on leased land.^ A barn 
 
 JMinshall v. Lloyd, 2 M. & W. 450. Marston v. Roe, 7 E. & B. 257. Om- 
 
 Prescott V. Wells, 3 Nev.82. Walker bony v. Jones, 19 N. Y. 234. Wood 
 
 -V. Sherman, 20 Wend. 636. Dubois v. Hewett, 8 Q. B., 913. Mills v. 
 
 V. Kelly, 10 Barb. 496. Kelsey v. Reddick, i hfeb 437. Weathersby 
 
 Durkee, 33 Barb. 410. v. Sleeper, 42 Miss. 732. Sudbury 
 
 ' Sawyer v. Twiss, 26 N. H. 345. v. Jones, 8 Cush. 189. Dame v. 
 
 ' Lawton v. Lawton, 3 Atk. 13. Dame, 38 N. H. 429. Brearly v. 
 
 -Xirwan v. Latour, i H. & J. 289. Cox, 4 Zabr. 287. McCracken v. 
 
 Whiting V. Barstow, 4 Pick. 311. Hall, 7 Ind. 30. 
 •* Davis V. Jones, 2 B. & A. i6j. * Van Ness v. Packard, 2 Pet. 137. 
 
 PuUen V. Bell, 40 Me. 314. Fuller Faires v. Walker^ i Bailey, 541. 
 
 -V. Taylor, 39 Me. 519. Cook v. Washburn v. Sproat, 16 Mass. 449. 
 
 ■Champlain T. Co., i Denio, 9. Vah Pembertou v. King, 2 Dev. 376. 
 
 Nessv. Packard, 2 Pet, 137. Grymet ' Antoni v. Belknap, 102 Mass. 
 
 ■V. Bowereli, 6 Bing. N. C. 437.' 193. 
 
168 PROPERTY SUBJECT [Ch*.p. V. 
 
 fixed on pattens.^ Barn placed upon blocks of wood lying on 
 the ground, but not let into it.^ Buildings known as Dutch 
 barns, standing on a foundation of brick-work.^ A varnish 
 house for carrying on a varnish manufactory, on a brick foun- 
 dation, with a chimney.* A ball-room erected by a tenant of 
 an inn, resting upon stone posts slightly imbedded in the soil,, 
 removable without injury to the freehold.^ Bowling alleys in 
 a room leased for ball purposes.® But if a tenant at will of 
 land removes a substantially constructed building from another 
 place, and puts it on the land, upon stone foundations, with a 
 cellar under it, as and for a permanent dwelling-house, without 
 the consent of the land-owner, or any contract with him, ex- 
 press or implied, that the tenant shall hold it as personal 
 property, it becomes part of the realty, and cannot afterwards- 
 become personal property by the mere assent of the land- 
 owner, without an actual severance of it from the land.'^ 
 
 § 128. Under the term "buildings" are included: A saw- 
 mill on the land of another ; ^ or, if constructed with the object 
 and purpose of removal to another locality, after sawing the 
 timber within a convenient distance.^ A bark milL^" Cider 
 mill and press. ^^ A post wind-mill ; coffee-mills.^ Vessels and 
 utensils of trade, such as furnaces, fixed vats, salt-pans, tables,, 
 partitions, buckets, pickets, faucets, small potash kettles, a 
 
 ' Elwes V. Maw, 3 East. 54. ' Madigan v. McCarty, 108 Mass. 
 
 ' Culling V. Tuffnal, Bull. N. P. 376. 
 
 34. Horn y. Baker, 9 East. 215. * Witherspoon v. Nickels, 27 Ark. 
 
 Anthony v. Harvey, 8 Bing. i86. 332. 
 
 Davis V.Jones, 2 B.& A. 165. Smith " Brown v. Lillie, 6 Nev. 244.. 
 
 V. Benson, I Hill, 176. Boydell v. State v. Bonham, 18 Ind. 233. 
 
 McMichael, i C. M. & R. 177. "" Heermancev.Vernoy, 6John. 5. 
 
 '"Dubois V. Kelly, 10 Barb. 496. " Wadleigh v. Janvrin, 41 N. H. 
 
 Dean v. AUaley, 3 Esp. N. P. C. 11. 503. Holmes v. Tremper, 20 John.. 
 
 Wells v. Bannister, 4 Mass. 514. 29. 
 
 ' Penton v. Robart, 2 East. 88. '^ Ward's Case, 4 Leon. 241. Rex^ 
 
 Rex V. Otley, I B. & A. 161. Davis v. Inhabitants, &c., 8 T. R. 377.- 
 
 V. Jones, 2 B. & A. 166. Weelton v. Steward v. Lombe, i B. & B. 403.. 
 
 Woodcock, 7 M. & W. 14. Rex v. Otley, i B. & A. 161. Wood 
 
 ' Ombony v. Jones, 19 N. Y. 234. v. Hewett, 8 A. & E. 913. Wans- 
 
 • Hanrahan v. Reilly, 102 Mass. borough v. Matin, 4 A. & E. 884. 
 201. 
 
Chap. V.] 
 
 TO EXECUTION. 
 
 16& 
 
 heater in a tannery, bakers' ovens, carding-machines, copper 
 stills, a stove for grinding bark affixed to a bark mill.^ Salt 
 kettles, mortgaged before they are imbedded in brick arches.^ 
 Pattern tools and movable fixtures, when agreed not to be in- 
 cluded in a mortgage, but to remain unencumbered personal 
 property.^ Agricultural fixtures.* Green-houses, hot-houses, 
 and all trees, shrubbery, &c., when planted by gardeners and 
 nursery-men ; ^ but is not applicable to farmers.^ Gas fixtures, 
 chandeliers, side brackets, &c.^ Stoves, grates, coppers, tubs, 
 blinds, furnaces, cupboards, shelves, bells, bell-pulls.^ Wain- 
 scots, pier and chimney glasses, iron stoves, iron safes, jacks, 
 lamps, pumps, ranges, wall sinks, clock-cases, coffee-mills 
 looking-glasses, pictures, cabinets, desks, drawers, frames, &c.* 
 
 ' Pooles's Case, i Salk. 368. 
 Lawton v. Lawton, 3 Atk. 13. Lord 
 Dudley v. Ward, Amb. 113. Horn 
 V. Baker, 9 East. 215. Lawton v. 
 Salmon, I H. BIk. 259. Elwes v. 
 Maw, 3 East. 56. Culling v. TufTnal, 
 Bull. N. P. 34. Grymes v. Boweren, 
 
 6 Bing. N. C. 437. Year Book, 20 
 Hen. VII . 13 b. Raymond v. White. 
 
 7 Cow. 319. Miller v. Plumb, 6 Cow. 
 665. Kirwan v. Latour, I H. & J. 
 289. Taffe V. Warnick, 3 Blackfd. 
 III. Holmes V. Tremper, 20 John. 
 29. Reynolds v. Shirley, 5 Cow. 323. 
 Taylor v. Townsend, 8 Mass. 416. 
 
 ' Ford V. Cobb, 20 N. Y. 344. 
 Fryatt v. Sullivan Co. 3 Hill, 116. 
 Goddard v. Gould, 14 Barb. 662. 
 Mott V. Palmer, i N. Y. 564. Rus- 
 sell V. Richards, 10 Me. 429. 
 
 ' Frederick v. Devol, 15 Ind. 357. 
 
 * Harkness v. Sears, 26 Ala. 483. 
 Whiting V. Barstow, 4 Pick. 310. 
 
 ' Penton v. Robart, 2 East. 90. 
 Lee V. Risdon, 7 Taunt. 191. Wynd- 
 ham V. Way, 4 Taunt. 316. Rex v. 
 Otley, I B. & A. 161. Wansborough 
 V. Maton, ^ A. & E. 884. King v. 
 22 
 
 Wilcome, 7 Barb. 263. Price v. 
 Brayton, 19 la. 309. Whitmarsh v. 
 Walker, I Met. 313. Miller v. Baker, 
 I Met. 27. Maples v. Mellon, 31 
 Conn. 598. 
 
 ° Wyndham v. Way, 4 Taunt. 316. 
 Miller v. Baker, I Met. 27. 
 
 ' Lawrence v. Kemp, i Duer, 363. 
 Hays V. Doane, 3 Stockt. 196. Potter 
 V. Cromwell, 40 N. Y.. 287. Guthrie 
 V. Jones, 108 Mass. 191. Montague 
 V. Dent, 10 Rich. L. (S. C.) 135. 
 
 ' Colegrave v. Dias Santos, 2 B. 
 & C. 76. Freeland v. SouthwtJrth, 
 24 Wend. 191. Rex v. St. Dunstan, 
 4 B. & C. 686. Lee v. Risdon, 7 
 Taunt. 191. Lyde v. Russell, i B. 
 & A. 394. Wynn v. Ingilby, 5 B. & 
 A. 625. Leach v. Thomas, 7 C. & P. 
 328. Grymes v. Boweren, 6 Bing. N. 
 C. 437. Lawrence v. Kemp, i Duer, 
 363. Blethen v. Towle, 40 Me. 310. 
 
 ' Beck V. Rebow, I P. Wms. 94, 
 Leach v. Thomas, 7 C. & P. 327. 
 Lawton v. Lawton, 3 Atk. 15. Ex 
 parte Quincy, I Atk. 477. Elwes 
 V. Maw, 3 East. 53. Lawton v. 
 Salmon, i H. Bl. 260. Cave v. Cave^ 
 
170 PROPERTY SUBJECT [Chap. V. 
 
 Ornamental cornice.^ Pumps.^ The moving scenery and flying 
 stages in a theatre.^ Hewed timbers, posts, and round logs ; 
 stone, brick, and lumber, lying loosely on the land, not intended 
 to be put into a building upon the land.* A post and rail 
 fence, when under an agreement to be removed.^ Turpentine, 
 sugar maple.^ Peat, cut for fuel, lying on the land.'^ Manure 
 in a stable ; ^ on a farm in New Jersey.^ Fixtures removed 
 from the freehold to which they have been annexed by the 
 owner.^" Counters — one called an oyster and trench counter, 
 ten or twelve feet long and two or three feet wide, brought 
 into the room entire and nailed to the floor, and afterwards 
 enlarged by an addition, of about the same size, constructed 
 of joints and a base-board, both nailed to the floor, and of 
 boards nailed to the joists and to each other ; the other, called 
 a bar, twenty-two feet long and two feet wide, brought into the 
 room entire, and fastened to the floor by nails and with iron 
 knees — are trade fixtures.-'^ Rolling stock of a railroad com- 
 pany, where by statute it is not real estate, is subject to 
 sale as personal property. ^^ Bridge piers, built and imbedded 
 by a railroad company, are removable as personal property. ^^ 
 Machinery erected by a tenant to carry on his business, being 
 trade fixtures, may be sold on execution, and the purchaser 
 may remove them before the expiration of the term.^* Machin- 
 
 2 Vern. 508. Squier v. Mayer, 2 ' Plumer v. Plumer, 30 N. H. 558. 
 
 Free. 249. Harvey v. Harvey, Str. Needliam v. Allison, 24 N. H. 355. 
 
 1141. ° Ruckman V. Outwater, 4 Dutch. 
 
 ' Avery v. Cheslyn, 3 A. & E. 75. 581. 
 
 ' Grymes v. Boweren, 6 Bing. N. '° Heaton v. Findly, 12 Penn. 304. 
 
 C. 437. " Guthrie v. Jones, 108 Mass. 191. 
 
 ^ Olympic Theatre, 2 Browne, 279. " R. R. Co. v. James, 6 Wall. 750. 
 
 Walker v. Sherman, 20 Wend. 636. Hoyle v. P. & M. R. R. Co. 54 N. Y. 
 
 * Cook v. Whiting, 16 III. 480. 315. Prov. Gas Co. v. Thurber, I 
 
 Woodman v. Pease, 17 N. H. 282. R. I. 22. Stevens v. B. & N. Y. 
 
 Wing V. Gray, 36 Vt. 261. R. R. Co. 31 Barb. 590. Beardsley 
 
 " Fitzherbert v. Shaw, I H. Black v. Ont. Bank, 31 Barb. 619. Farm- 
 
 2j8. Holmes v. Tremper, 5 Cow. ers' Loan and T. Co. 25 Barb. 493. 
 
 323- " Wagner v. Clev., &c., R. R. 22 
 
 " Branch v. Morrison, 5 Jones, 16. Ohio, S. 563. 
 
 ' Gile V. Stevens, 13 Gray, 149. '* Heffner v. Lewis, 73 Penn. 302. 
 
Chap, v.] TO EXECUTION. 171 
 
 €ry, when not attached,^ in breweries, collieries, mills, — as 
 steam-engines and the like.^ 
 
 Steam boilers used in a saw-mill on a plantation, as between 
 the lessor of the boilers and purchaser of the plantation.* A 
 ■steam-engine and boilers used as auxiliary to water-power, in 
 a building by itself, with a smoke-stack one hundred feet high.* 
 An engine placed in a mill by a mortgagee in possession.^ An 
 hydraulic press, if owned by the tenant.^ Machinery attached 
 to a sugar-house, if detached ; if removed therefrom, per- 
 sonal property.^ Or machinery and the like, which may be 
 used in any other building as well as that in which they are 
 placed, though firmly secured to the freehold, if they can be 
 removed without material injury to it.' 
 
 § 129. Estates for Years. — An estate for years is a 
 ■chattel real. Being an interest in land, it has the quality of 
 immobility, which constitutes its real ; but having no indeter- 
 minate duration, it does not obtain the character of a freehold, 
 but is a mere chattel. It is an interest in lands by virtue of a 
 •contract for the possession of them for a limited period of time, 
 and are known generally as terms. The length of time for 
 which the estate is to endure is of no importance in the ascer- 
 
 Lemar v. Miles, 4 Watts. 330. * Voorhies v. McGinness, 46 Barb. 
 
 White's Appeal, 10 Penn. 253. Wa- 242. 
 
 terfall v. Penistane, 37 E. L. & Eq. ' Cope v. Romeyn, 4 McLean, 384. 
 
 156. Citizens' Bank v. Knapp, 22 ' Harlan v. Harlan, 15 Penn. 507. 
 
 La. 117. Bartlett v. Wood, 32 Vt. ' Citizens' Bank v. Knapp, 22 La. 
 
 372. 117- 
 
 ' Sturgis V. Warren, 1 1 Vt. 433. ' Taylor v. Bartlett, 32 Vt. 372. 
 
 ' Lawton v. Lawton, 3 Atk. 12. Vaughn v. Haldeman, 33 Penn. 522. 
 
 Dudley v. Ward, Amb. 114. Culling Gale v. Ward, 14 Mass. 352. Farrar 
 
 V. Tuffnall, Bull. N. P. 34. Elwes v. v. Chaufetete, 5 Denio, 527. Cresson 
 
 Maw, 3 East. 53. Dean v. AUaley, v. Stout, 17 John. 116. Swift v. 
 
 3 Esp. N. P. C. II. Davis v. Jones, Thompson, 9 Conn. 63. Vanderpoel 
 
 2 B. & A. 165. Sturgis v. Warren, v. Van Allen, 10 Barb. 157. Walms- 
 
 11 Vt. 433. Swift V. Thompson, 9 ley v. Milne, 7 C. B. N. S. iij. 
 Conn. 63. Cook v. Champlain, &c., Wade v. Johnson, 25 Ga. 331. 
 Co. I Denio, 92. Heiton v. Findley, Walker v. Sherman, 20 Wend. 636. 
 
 12 Penn. 308. Murdock v. Gifford, 18 N. Y. 28. 
 ' Slack V. Gay, 22 La. 387. Raymond v. White, 7 Cow. 319. 
 
172 PROPERTY SUBJECT [Chap. V, 
 
 tainment of its character. It may be for nine hundred and 
 ninety-nine years in consideration of a gross amount, and is 
 liable to sale under execution like any other chattel.-' In Ver- 
 mont and Massachusetts the owners of long terms are invested 
 with all the incidents of a fee-simple. So, in Ohio, with lands 
 held by permanent leases. But a term for ninety-nine years 
 is to be sold as a chattel.^ A sale thereof need not be on the 
 premises ; nor is a deed necessary to pass title. The officer's 
 return is sufficient evidence of the sale.^ Under an execution 
 against a tenant an officer may sell any interest of the tenant 
 in the premises which he is about leaving, however short.* 
 
 § 130. How Equitable Principles apply to subject 
 Property to Levy for the Protection of Creditors. — 
 Courts sometimes apply the equitable principle that where one 
 creditor has a lien on two funds, and another creditor has a 
 lien on one only, the creditor having the lien on the two funds 
 will be compelled to levy his execution and seek his satisfaction 
 out of that fund upon which he alone has security, so that both 
 creditors may escape without injury ; as where one creditor 
 has a particular piece of property pledged for the payment of 
 his debt, and the other has none, and both creditors have judg- 
 ments, which are general liens upon all the unpledged property 
 of the debtor.^ 
 
 ' Sparrow v. Earl, i Marsh. 10. Barb. 394. Breese v. Bange, 2 E. D. 
 Doe V. Smith, i M. & R. 137. Mun Smith, 494. In re Wilson, 7 Hill, 
 V. Carrington, 2 Root. 15. Chapman 150. People v. Haskins, 7 Wend. 
 V. Gray, 15 Mass. 439. Montague 466. People v. Westervelt, 17 Wend. 
 V. Gray, 17 Mass. 439. McLean v. 674. S. C. 20 Wend. 416. Merry 
 Rockey, 3 McLean, 235. Osborn v. Hallett, 2 Cow. 497. Vredenburg 
 V. Humphrey, 7 Conn. 335. Sprague v. Morris, i John. 223. Adams v, 
 V. Stanley, i Md. Ch. 31. Barr v. French, 2 N. H. 387. Bisbee v. 
 Doe, 6 Blackfd. 335. Williams v. Hall, 3 Ohio, 449. Shelton v. Cod- 
 Downing, 18 Penn. 60. Sowers v. man, 3 Cush. 318. 
 Vie, 14 Penn. 99. Glenn v. Peters, " Bisbee v. Hall, 3 Ohio, 449. 
 Busb. Law, 457. Hurst v. Lithgow, ^ Sowers v. Vie, 14 Penn. 99. 
 2 Yeates, 25. Evertsen v. Sawyer, * Sparrow v. Earl of Bristol, r 
 2 Wend. 507. Buhl v. Kenyon, 11 Marsh. 10. 
 
 Mich. 249. Dalzell v. Lynch, 4 W. " Hurd v. Eaton, 28 111. 122. In- 
 
 & S. 255. Bigelow V. Finch, 17 galls v! Morgan, 10 N. Y. 178. 
 
-Chap. V.] 
 
 TO EXECUTION. 
 
 173 
 
 § 131. Personal Property which is not liable to 
 Seizure on Execution. — Having shown the various kinds 
 ■of goods and chattels, crops, emblements, fixtures, and other 
 things liable to be taken by an officer in order to satisfy an 
 ■execution against their owner or the debtor, we come to per- 
 sonal property which cannot be taken on an execution. What 
 •one cannot sell himself cannot on execution be legally sold for 
 his debts.^ At common law, such things as belonged to the 
 freehold and descended to the heir, as furnaces, growing apples, 
 trees, and other things, could not be seized and sold on execu- 
 tion;^ nor could judgments, accounts, bonds, bank-notes, or 
 ■other choses in action ; ^ nor goods mortgaged or pawned for 
 ■debt ; * nor goods distrained or demised for years, or seized 
 and held on a prior execution ; nor fixtures of a house which 
 
 Wright V. Nutt, I H. Black, 136. 
 -Cheesbrough v. Millard, i John. Ch. 
 409. Stevens v. Cooper, i John. Ch. 
 425. Hayes v. Ward, 4 John. Ch. 
 123. Evertson v. Booth, 19 John. 
 486. Hannegan v. Hannah, 7 Black- 
 fd. 353. Applegate v. Mason, 13 
 Ind. 75. James v. Hubbard, i Paige, 
 .235. Gouvenor v. Lynch, 2 Paige, 
 300. Hanly v. Mancius, 7 John. Ch. 
 174. Findlay v. U. S. Bank, 2 Mc- 
 Xean, 44. Lenoy v. The Duke and 
 Duchess of Athol, 2 Atk. 446. Mogg 
 V. Hodges, 2 Ves., Jr., 52. Alston 
 /. Mumford, I Brock, 266. Beesly 
 V. Lawrence, 11 Paige, 581. Geller 
 V. Hoyt, 7 How. Pr. 265. Jones v. 
 Dow, 18 Wis. 241. York & Jersey 
 :Steamboat Co. v. The Associates of 
 Jersey Co., Hopk. 460. Johnson v. 
 Tuttle, I Stock. 365. Sagitary v. 
 Hyde, i Vern. 455. Mills v. Eden, 10 
 Mod. 488. Attorney General v. Tyn- 
 ■dall, Amb. 614. Aldrich v. Cooper, 
 ■8 Ves. 388. Trimmer v. Bayne, 9 
 Ves. 209. Mechi nics' Bank v. Ed- 
 
 wards, I Barb. 271. Clowes v. Dick- 
 enson, 9 Cow. 403. Avery v. Fallen, 
 I Freeman, 419. Baines v. Wil- 
 liams, 18 Miss. 113. Thompson v. 
 Murray, 2 Hill, Ch. 204. Henshaw 
 V. Wells, 9 Humph. 568. Ramsay's 
 Appeal, 2 Watts. 228.' Bruen's Ap- 
 peal, 7 W. & S. 269. Rollins V. 
 Thompson, 21 Miss. 522. 
 
 ' Gentry v. Wagstaff, 3 Dev. 270. 
 French v. Meehan, 56 Penn. 286. 
 McCurdy v. Canning, 64 Penn. 39. 
 Doe V. Praratt, j T. R. 652. Robb 
 V. Beaver, 8 W. & S. iii. 
 
 ' Craddock v. Riddlesbarger, 2 
 Dana, 206. 
 
 " McGee v. Cherry, 6 Ga. 550. 
 Taylor v. Gillean, 23 Tex. 508. 
 Rhodes v. McGonegal, 2 Penn. 39. 
 Ingalls V. Lord, i Cow. 240. Mc- 
 Cloud V. Hubbard, 2 Blackfd. 361. 
 Osborn v. Cloud, 23 la. 104. 
 
 * Legg V. Evans, 6 M. & W. 36. 
 Rogers v. Kennay, 15 L. J. N. S. Q. 
 B. 381. Johnson v. Crawford, 6 
 Blackfd. 377. 
 
174 PROPERTY NOT SUBJECT [Chap. \. 
 
 was the freehold of the execution defendant^ But this rule 
 of law has been greatly modified and enlarged in favor of 
 creditors. By a statute of the United States, goods of an 
 ambassador or other public minister, nor those of any domestic 
 or domestic servant' of any ambassador, can be seized upon 
 execution, except where such servants are citizens of the United 
 States, and the debt is contracted before entering the service 
 of such ambassador, which debt is still due and unpaid ; unless 
 the name of such servant be first registered in the office of the 
 Secretary of State, and furnished to United States marshals 
 to be posted in conspicuous places.^ Property in a receiver's 
 hands, is in the custody of the law.^ A judgment be- 
 longing to a partnership on an execution issued against the 
 individual members.* A bailee's interest in a contract of per- 
 sonal bailment ; as where A loans B certain live-stock, to be 
 kept for their increase, and to be returned in a certain time in 
 as good condition as when lent.^ A right resulting from a 
 contract of labor between a state and a citizen.® Growing 
 wool on sheep belonging to A, in possession of B, under an 
 agreement that he should have the wool for their keeping, can- 
 not be on an execution against B, he having no interest in the 
 wool until after shearing time ; there being no such thing 
 known in law as such a union of interest or title in animals as 
 that one party may own the carcass, and another the wool or 
 feathers.'' Goods purchased with intent to subject them to 
 seizure under an execution of the judgment creditor, as no title 
 vests in the purchaser.^ One who bargains for personal prop- 
 
 ' Wynn v. Ingilby, 5 B. & A. 625. ' Williams v. McGrade, 13 Minn. 
 
 " Laws of U. S. 1790. 174. 
 
 ' Skinner v. Maxwell, 68 N. C. ' Case v. Taylor, 23 La. 497. 
 
 400. Governeur v. Warren, 2 Sandf. ' Hasbrouck v. Bouton, 60 Barb. 
 624. Very v. Watkins, 23 How. 469. . 413. 
 
 Nelson v. Conner, 6 Rob. La. 339. * Van Cleef v. Fleet, 15 John. 147. 
 
 Glenn v. Gill, 2 Md. i. Taylor v. Durell v. Halley, i Paige, 292. Lu- 
 
 Gillean, 23 Tex. 508. Field v. Jones, pin v. Marie, 2 Paige, 169. Lloyd 
 
 II Ga. 413. V. Brewster, 4 Paige, 537. Acker v. 
 
 * Smith V. McMicken, 3 La. 321. Campbell, 23 Wend. 372. Covil v. 
 
 Beauchamp v. Chachere, 12 La. 851. Hitchcock, 23 Wend. 6ii. Cary v. 
 
Chap. V.] TO EXECUTION. I75 
 
 erty does not, by mere payment of part of the purchase-money, 
 under an express contract that no title shall vest in him until 
 it is all paid, acquire any interest therein subject to seizure 
 and sale on execution.^ Or where a purchase is made for cash, 
 and a delivery is made at too late an hour for payment, but 
 before presentation of the bill next day a levy was made on it, 
 no title passes before payment as subjects the property to 
 levy.^ The goods of a principal for the debts of his agent.^ 
 A legacy for the legatee's debt.* A legacy to the wife for the 
 debt of the husband.^ Goods of a testator in the hands of his 
 executor, under an execution against the executor in his own 
 right.^ But where the executrix used the goods of the testator 
 as her own, was afterwards married, she was not permitted to 
 object to their being taken for her husband's debt.'' Nor a 
 specific legacy which .has been delivered to a legatee by the 
 executor, in an action against the executor.^ A lessor's share 
 in a crop until after it is allotted to him.® A crop on rented 
 land sold in good faith by the tenant before the issue of an 
 execution.^" Where the hay and straw is to be used on a farm 
 by the terms of a lease, the hay raised is not at the instance 
 of the lessee's creditors.^^ Trees cannot be regarded as par- 
 taking of the character of emblements or fructus industriales. 
 
 Hotalling, I Hill. 31 1. Ash v. Put- Gratt. 257. Dawson v. Wood, 3 
 
 nam, i Hill. 302. Olmsted v. Ho- Taunt. 256. 
 
 tailing, 1 Hill, 317. Hitchcock v. ■* Suggs v. Sapp, 20 Ga. 100. 
 
 Covil, 20 Wend. 167. ' Skinner's Appeal, 5 Penn. 262. 
 
 ' Sage V. Sleutz, 23 Ohio S. i. ° Newman v. Farr, 4 T. R. 651. 
 
 Hussey v. Thornton, 4 Mass. 405. Gaskell v. Marshall, i M. & Rob. 
 
 Marston v. Baldwin, 17 Mass. 606. 132. Fenwick v. Laycock, i G. & D. 
 
 Barrow v. Coles, 3 Camp. 92. Bar- 532. Grant v. Williams, 6 Ired. 341. 
 
 rett V. Pritchard, 2 Pick. 512. Strong ' Quick v. Staines, i B. & P. 293. 
 
 V. Taylor, 2 Hill, 326. Herring v. ' Babo v. Grimke, i McMull. Ch. 
 
 Happock, i; N. Y. 409. Piser v. 304. Alston v. Foster, i Dev. Ch. 
 
 Stearns, i Hilton, 86. BickerstafF 337. 
 
 V. Doub, 19 Cal. 109. Johnson v. ° Gordon v. Armstrong, 5 Ired. 
 
 White, 46 Cal. 328. ' 409. Devoe v. Kemp, 3 Hill. (S. C.) 
 
 ^ Acker v. Campbell, 23 Wend. 259. 
 
 372. '" Northern v. State, i Ind. 71. 
 
 ' Farmers' Bank v. Kent, 16 " Coe v. Wilson, 46 Me. 314. 
 
J 76 PROPERTY SUBJECT [Chap. V. 
 
 They only become personalty by actual severance, or by a 
 severance in contemplation of law.^ The tortious severance 
 of an article from the realty will not subject it to seizure on 
 execution if it was before exempt.^ In Marylatjd, a debtor's 
 equitable interest in personal property at law.^ A resulting 
 trust in personalty.* An undivided residuary interest in re- 
 mainder of personal property.^ Personalty conveyed in a 
 mortgage by an executor to indemnify his sureties, while out- 
 standing claims exist upon which his sureties may be liable.® 
 Collateral securities deposited with an ofScer after a levy on 
 personal property, given for its delivery to the debtor, to be 
 returned if the writ is satisfied or otherwise disposed of, he 
 cannot afterwards levy upon such securities in violation of his 
 agreement.'^ Property assigned for the oenefit of creditors 
 under an execution against the assignor^ Property sold at 
 auction bona fide, although after the sale they are left in the 
 debtor's possession, cannot be taken in execution by one of the 
 debtor's creditors who was present at the sale, the change of 
 possession being notorious, there being good and legal consid- 
 erations to support it.® Property of a debtor discharged under , 
 the bankrupt law, though he continues in possession of it.^" 
 Property held by one for life, in trust for himself and others, ' 
 on an execution against him.^^ Salary of an officer of a polit- 
 ical corporation.^^ A ferry license, being a franchise.^^ Per- 
 
 ' Slocumb V. Seymour, 36 N. J. Taunt. 676. Brown v. Wood, 6 
 
 L. 138. Rich. Eq. 155. 
 
 * Congregational Society v. Flem- * Woodhatn v. Baldock, 3 Moore, 
 ing, II la. 533. II. Leonard v. Baker, i M. & S. 
 
 * Martin v. Jewell, 37 Md. 570. 251. Jezeph v. Ingram, I Moore, 
 
 * Cunningham V. Wood, 4 Humph. 189. Latimer v. Batson, 7 D. & R. 
 4T7. 106. Steel V. Brown, i Camp. 512. 
 
 ' Dargan v. Richardson, Dudley, '» Hindle v. Bell, I Holt. 161. 
 
 (S. C.) 62. " Wylie v. White, 10 Rich. Eq. 
 
 ' Perkins v. Majrfield, 5 Port. 182. 294. 
 
 Bronston v. Robinson, 4 B. Mon. 142. " Chaudet v. De Jong, 16 La. 399. 
 
 ' Kimballv.Couchman, 15 111.138. " Thomas v. Armstrong, 7 CaL 
 
 ' Williamson v. Clark, 2 Miles, 286. Munroe v. Thomas, 5 Cal. 470. 
 
 153. Wooderman v. Baldock, 8 Wood v. Turnpike Co. 24 Cal. 474. 
 
Chap. V.] TO EXECUTION. 177 
 
 sonalty after a sufficient levy on real estate.^ Contingenf and 
 complicated contracts cannot be levied upon and sold without 
 being in the possession of the officer at the sale, to be exhibited 
 to the by-standers and assigned to the purchaser, unless a full 
 and accurate description of the particular interest and chose 
 in action, with all its conditions and covenants, and a full ex- 
 planation of the facts determining the value of the chose, be 
 given by the levy, and announced at the sale.^ Property pre- 
 viously seized upon execution,* unless the first execution was 
 fraudulent,* or the goods were not legally seized. The mere 
 right to personal property in the adverse possession of a third 
 person, which- possession originated and continues in good 
 feith.^ A mere equitable interest in personal property unac- 
 companied with possession ; and could not at common law.^ 
 It can neither be seen, handled, or delivered, and where sub- 
 ject to execution, is made so by statute. Deeds, writings, &c.'' 
 Nor can a levy and sale be made of a portion of the undis- 
 tributed personalty of the estate, merely because the debtor's 
 interest in the estate is of greater value than the property 
 seized.' 
 
 • Powell V. Governor, 9 Ala. 36. Harman, Comb. 217. King v. Man- 
 
 ' Crandall v. Blen, 13 Cal. 15. ning, Comb. 619. 
 
 ' Backhurst v. Clinkard, i Show. * Rice v. Serjeant, 7 Mod. 37. 
 
 173. Freeman v. Howe, 20 How. ' Horton v. Smith, 8 Ala. 73. 
 
 450. Noe V. Gibson, 7 Paige, 713. Carlos v. Ansley, 8 Ala. 900. 
 
 Moore V. Wittenburg, 13 La. 22. ° Boyce v. Smith, 10 Mo. 317. 
 
 Lewis V. Buck, 7 Minn. 104. The Sexton v. Monks, 16 Mo. 156. Yel- 
 
 Oliver Jordan, 2 Curtis, 414. The dell v. Stemmons, 15 Mo. 143. 
 
 Robert Fulton, i Paine, 620. Har- ' Francis v. Nash. Cas. 7 Hard. 53. 
 
 ris V. Dennie, 2 Pet. 292. Pope v. ' Hancock v, Titus, 39 Miss. 224. 
 
 23 
 
178 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 CHAPTER VI. 
 
 REAL ESTATE, LAND, OR REAL PROPERTY SUBJECT TO 
 EXECUTION. 
 
 Real Property, what it consists ■ of. — General Rule of Prop- 
 erty liable, — Lands held by Tenants in Common. — Life 
 Estate of Husband. — Estates in Reversion or Remainder. 
 
 — Rights of Entry and Possession. — Lands held in Trust. 
 
 — Interest of a Cestui qui Trust and Cestui qui Use. — 
 Land fraudulently conveyed. — Lands of Intestates, &c. — 
 Equity of Redemption. — Equitable Interests. — Interest of 
 a Purchaser before Title vests in him. — What Rights and 
 Interests are not liable to Sale. — Where they are not liable. 
 
 § 132. In Regard to the Principles relating to Real 
 Property or Land that is subject to Execution, to 
 satisfy the debts of a defendant, it will not be necessary to 
 trace them back to the Roman law for their origin, being the 
 creation of modern legislation and statutory enactments in 
 England and America.^ Land is defined as any ground, soil, 
 or earth whatsoever, as meadows, pastures, woods, &c., and 
 everything annexed to it, whether by nature, as trees, water, 
 &c., or by the hand of man, as buildings, fences, &c. It has 
 an indefinite extent upwards as well as downwards. It legally 
 includes all buildings standing or built on it, trees, fixtures, 
 and fences upon it, and whatever is in a direct line between 
 the surface and the centre of the earth.^ The term "real 
 estate " is co-extensive in meaning with lands, tenements, and 
 hereditaments,* and, when applied to an interest in lands or 
 
 ' Ante, chap. I. § 48. v. Armstrong, i Denio, 550. Baker 
 
 » Canfield v. Ford, 28 Barb. 336. v. Johnson, 2 Hill, 342. 
 Mott V. Palmer, i N. Y. 564. Gieen ' Pelletrau v. Smith, 30 Barb. 494. 
 
Chap. VI.J SUBJECT TO EXECUTION. 179 
 
 Other real property, includes all estates or interests in such 
 real property which are held for life or some greater estate, 
 but does not embrace terms for years, and other chattel inter- 
 ests in land.^ The term " property in lands " is not confined 
 to title in fee, but is sufficiently comprehensive to include any 
 usufructuary interest, whether it be a mere leasehold or mere 
 right of possession. Land embraces all titles, legal or equita- 
 ble, perfect or imperfect.^ The general rule is, with, perhaps, 
 the exception of some few states, to subject all the real prop- 
 erty to the payment of debts, and where real property is sub- 
 ject to execution, every legal interest not exempted from such 
 sale is liable to be taken. This remedy, unknown to the com- 
 mon law, is dependent in all cases upon positive statutes. In 
 Virginia J and Delaware the exceptions occur, the writ known 
 as the elegit being still in .use ; but only such lands as the 
 debtor himself can dispose of, or such interest or estate as the 
 debtor had, and might lawfully part with, in lands, can be' sold 
 on execution ; ^ every interest, contingent or otherwise,* pro- 
 vided there is a real interest in the defendant, legal or equita- 
 ble,^ even when the title is a bare occupancy or possession.' 
 In some states the plaintiff has the Option of having either 
 real or personal property sold.'' In others, if there be no per- 
 sonalty subject to seizure, the rents and profits are appraised 
 for a certain period, and are offered for sale for such time ; if 
 they fail to sell for enough to satisfy the judgment, then the 
 land itself is sold.* The real estate of afemme couverte, in satis- 
 faction of her debts contracted before marriage.* Property in 
 any county of the state in which judgment is rendered.^' 
 
 ' Westervelt v. People, 20 Wend. * Humphrey v. Humphrey, I 
 
 416. Jackson v. Parker, 9 Cow. Yeates, 427. 
 
 73- ' Drake v. Brown, 68 Penn. .223. 
 
 * Leese v. Clark, 20 Cal. 388. ° Thomas v. Bowman, 30 111. 84. 
 
 State of California v. Moore, 12 ' Tuttle v. Wilson, 24 111. 559, 
 
 Cal. 56. Pitts V. McGie, 24 111. 610. 
 
 " McConnell v. Brown, 5 Mon. ' Gantley's Lessee v. Ewing, 3 
 
 481. GriflSth V. Huston, 7 J. J. How. 707. 
 
 Marsh, 388. Myers v. Sanders, 7 ' Fox v. Hatch, 14 Vt. 320. 
 
 Dana, 5I0. '» Brush v. Lee, 36 N. Y. 49. 
 
180 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 § 133. Land held by Tenants in Common. — Tenants in 
 cammon are such as hold lands and tenements by several dis- 
 tinct titles, and not by a jpint title, but occupying it in com- 
 mon, the only unity recognized between them being that of 
 possession. The levy of an execution against one tenant in 
 common, upon any designated portion of the land, is void, the 
 general rule being that an execution can be extended upon 
 such property only as the debtor might legally convey .■^ An 
 execution may be levied, after appraisal, upon the undivided 
 interest of the debtor, he being a tenant in common, or a part 
 thereof; if indivisible, upon his undivided interest, or by such 
 division as the appraisers may think best.^ Most of the decis- 
 ions do not fall within these terms ; for, instead of attempting 
 to convey the whole of any specific portion of the iands, the 
 tenant conveys, or there is taken ,on execution, only his undi- 
 vided interest in a specific portion. An execution may be 
 levied upon an undivided interest in a specific portion of the 
 land, designated by metes and bounds.^ An alienation of the 
 interest of one joint tenant, either by deed or execution, is not 
 void, but operates against him and all claiming under him, by 
 estoppel, whether he has notice of not, and can be avoided 
 only by the co-tenant, if injured, or those claiming under him. 
 The levy of an execution upon an undivided portion of a farm, 
 such part being specified by metes and bounds, the whole of 
 which is held by the debtor as tenant in common, will be vahd 
 until the other co-tenant has obtained partition, and ousted 
 the creditor from the part so levied upon ; therefore an action 
 cannot be maintained to recover the amount of the judgment 
 satisfied by the levy until the creditor has been ousted of some 
 part of the land.* In Massachusetts, where the whole interest, 
 of a tenant in common is more than sufficient to satisfy an 
 execution against him, it is levied upon an undivided portion 
 
 ' Bartlett v. Harlow, 12 Mass. 563. Blevins v. Baker, ii Ired. 201. 
 
 ;?48. Baldwin v. Whiting, 13 Mass. Barnes's Appeal, 46 Penn. 350. 
 
 57. Webber v. Mallett, 16 Me. 88. ' Bartlett v. Harlow,. 12 Mass. 348. 
 
 Stainford v. FuUerton, 18 Me. Baldwin v. Whiting, 13 Mass. 57. 
 
 229. Varnum v. Abbot, 12 Mass. 474. 
 
 ' Thompson v. Barber, 12 N. H. * Godwin v. Gregg, 28 Me. 128. 
 
Chap. VI.] SUBJECT TO EXECUTION. 18 1 
 
 of that interest, sufficient, according to appraisement, to satisfy 
 the execution. 
 
 § 134. Life Estate of Husband. — The husband's inter- 
 est is assignable, and subject to be taken on execution.^ In 
 Virginia, Kentucky, Mississippi, Vermont, Maryland, Pennsyl- 
 vania, and North Carolina, the husband cannot sell or lease 
 the wife's lands without her consent, expressed upon private 
 examination, as in case of conveyances in which she joins. 
 The land cannot be taken on execution against him, being a 
 matter of statutory enactment. Though a husband has ac- 
 quired, by his marital rights, a title which he can dispose of, it 
 does not follow that it is such an estate as can be sold by exe- 
 cution against him at law.^ Where a husband and wife are 
 seized in her right of a remainder in fee, the husband has such 
 an interest as may be taken ; ^ the possessory interest of a 
 husband in dower lands already assigned to his wife as the 
 widow of a former husband.* In Massachusetts a husband's 
 interest in land of the wife may be levied on, either by taking 
 the rents and profits for a certain time, or the whole estate, at 
 an appraisal founded on the probable duration of his life ; but 
 where the amount of the execution is less than the value of 
 the estate, it seems, the former mode of levy is the proper, if 
 not the only legal one.^ An execution extended upon land 
 held by the debtor in right of his wife, as upon an estate in fee 
 simple, but no entry made, the husband and- wife continuing to 
 occupy it until she died, leaving no children,. is no disseisin of 
 hers, and her heirs may maintain a writ of entry, declaring 
 upon their own seisin, without an actual entry.^ Curtesy 
 being an estate vested immediately by law in the husband 
 upon the wife's death, he having had an initiate title during 
 her life ; when once vested, the estate becomes ■ liable for his 
 
 ' Bennett v. Child, 19 Wis. 362. ' Litchfipld v. Cudworth, 15 Pick. 
 
 ' Sale V. Sanders, 24 Miss. 24. 23. Roberts v. Whiting, 16. Mass. 
 
 ^ Brown v. Gale, 5 N. H. 416. 186. Barber v. Root, 10 Mass. 260. 
 
 Bennett v. Child, 19 Wis. 362. Chapman v. Gray, 15 Mass. 439. 
 
 * McConnihe v. Sawyer, 12 N. H. ' Larcom v. Cheever, 16 Pick 
 
 369. 260. 
 
182 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 debts. It may be taken on execution, and a voluntary settle- 
 ment of it upon a wife will be void against creditors.^ And 
 also of a tenant by the curtesy initiate may be taken in exe- 
 cution for his debts, and it may be set off by appraisement, or 
 the rents and profits may be levied upon, at the election of the 
 creditor ; ^ and it seems that the widow of the execution cred- 
 itor is not entitled to dower in such estate.^ Where an ex- 
 ecution against a tenant by the curtesy initiate is extended 
 upon his land, as if he owned the fee, the creditor acquires a 
 freehold for the hfe of the debtor ;* in Connecticut, during the 
 life of her or her issue. In Virginia such interest passes to 
 the sheriff, under insolvency proceedings, and a purchaser 
 from the sheriff becomes a tenant for life, hable to an action of 
 waste by the husband and wife.^ Where a husband has pos- 
 session of his wife's real estate, equity will not enjoin the sale 
 of his life estate for the payment of meritorious judgments 
 against him, nor make a provision for her therefrom.® Where 
 a debtor has a fee simple in an undivided half of certain prem- 
 ises, and curtesy in the remainder, and a levy is made upon 
 a portion of the premises by metes and bounds, treating it as 
 an estate by the curtesy, the levy is void, and passes no title, 
 as against a creditor of the same debtor, who acquires title to 
 the land by a subsequent valid levy.^ The effect of a levy on 
 the husband's interest is the same as that of a conveyance by 
 him, which would °pass the freehold, leaving the reversion in 
 fee in the wife.^ 
 
 § 135. In some states a widow's right of dower is not 
 
 ' Steadman v. Palling, 3 Atk. 423. ' Gillies v. Brown, j Cow. 388. 
 
 Watson V. Watson, 13 Conn. 83. * Mechanics', &c., v. Williams, 17 
 
 Vanduzer v. Vanduzer, 6 Paige, 366. Pick. 438. 
 
 Wickes y. Clark, 8 Paige, 161. Can- » Dejarnatte v. Allen, 2 Gratt. 
 
 by V. Porter, 12 Ohio, 79. Shorfhall 499. 
 
 V. Hinckley, 31 111. 219. . « Mitchell v. Sevier, 9 Humph. 
 
 ' Roberts v. Whiting, 16 Mass. 146. 
 
 186. Burd V. Dansdale, 2 Binn, 80. ' Howe v. Blanden, 21 Vt. 315- 
 
 Mattock V. Stearns, 9 Vt. 326. " Babb v. Perley, I Me. 6. Litch- 
 
 Schermerhorn v. Miller, 2 Cow. 439. field v. Cudworth, 15 Pick. 23. 
 Bennett v. Child, 19 Wis. 362. 
 
Chap. VI.] SUBJECT TO EXECUTION. 183 
 
 liable.^ Dower lands held by actual possession of the tenant 
 in dower are subject to levy, and the possessory right passes 
 by the sale, and so will the crops, subject to the same redemp- 
 tion as other land.^ Where dower is set off, the heirs may be 
 •considered as holding by two distindt tenancies in common 
 (two thirds in fee, and one third in reversion), and the share 
 of either tenant may be levied on separately.^ A direct con- 
 "veyance by husband to wife without any consideration is void, 
 both at law and equity, and therefore is not such a transfer, 
 ■conveyance, or assignment as enures to the benefit of all cred- 
 itors ; and the levy of an execution by one of the creditors of 
 the husband cannot be defeated by his general creditors.* 
 Property conveyed by deed, of marriage settlement, in trust 
 that the husband and wife shall be permitted, during their 
 joint lives, to enjoy the fjrofits, may be taken to satisfy a debt 
 incurred after marriage for supplies furnished for the proper 
 support of the husband and wife.® Life estates are liable.® 
 The property of the wife is not liable on execution against the 
 husband, without proof that her title is merely colorable and 
 fraudulent, as against creditors.'^ An execution against a ten- 
 ant for life may be levied on the lands or rents and profits. 
 In either case, as no more than the debtor's interest can be 
 taken, the creditor will be entitled to possession in order to 
 receive the rents and profits. The effect must be the same.* 
 The interest of a joint tenant in South Carolina,^ but not in 
 Xentucky.io 
 
 ' Nason v. Allen, 5 Me. 479. Conn. 470. Howell v. Woolfort, 2 
 
 •Gooch V. Atkins, 14 Mass. 378. Dall. 75. 
 
 * Pitts V. Hendrix, 6 Ga. 452. ' Gage v. Dauchy, 34 N. Y. 293. 
 
 ■■' Peabody v. Minot, 24 Pick. Buckley v. Wells, 33 N. Y. 581. 
 
 329. Kluender v. Lynch, 4 Keyes, 361. 
 
 ■* Fowler v. Trebein, 16 Ohio S. Knapp v. Smith, 27 N. Y. 280. Van 
 
 493. Etten V. Currier, 3 Keyes, 329. 
 
 ° Scott V. Loraine, 6 Mumfd. 117. ' Roberts v. Whitrng, 16 Mass. 
 
 ' Pringle V. Allen, i Hill Ch. 135. 186. Barber v. Root, 10 Mass. 260. 
 
 Fifzhugh V. Hellen, 3 H. & J. 206. Chapman v. Gray, 15 Mass. 439. 
 
 Boyce v. Waller, 2 B. Mon. 91. ' Durant v. Cabbage, 2 Hill (S. 
 
 Mendenhall v. Rawdon, 3 Stew. & C), 311. 
 
 P. 251. Hitchcock V. Hotchkiss, i '° P-own v. Burdett, 4 Bush. 401. 
 
184 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 § 136. Real Estatk held in Reversion and Remainder 
 is liable to be sold like an estate in possession. Remainders 
 are contingent and vested. A contingent remainder is one 
 limited to take effect on an event or condition, which may 
 never happen or be performed, or which may not happen or 
 be performed till after the determination of the preceding par- 
 ticular estate. A vested remainder is one by which a present 
 interest passes to a party, though to be enjoyed in the future,, 
 and by which the estate is invariably fixed to remain to a de- 
 terminate person after the particular estate has been spent. 
 A reversionary estate is the residue of an estate left in the 
 grantor, to commence in possession after the determination of 
 some estate granted out by him ; the return of land to the 
 grantor and his heirs after the grant is over. Either or all of this, 
 class of estates are subject to sale under and by virtue of an 
 execution against their owner,-^ and the officer may enter on. 
 the land for the purpose of giving seisin to the creditor with- 
 out being a trespasser.^ Contingent remainders are not liable- 
 in other states.^ 
 
 §137. Rights of Entry and Possession. — Rights of 
 entry, which are not assignable at common law, can be sold 
 on execution ; this seems to be definitely settled in this coun- 
 try. The weight of authority is in favor of the capacity of the 
 execution to reach them as a part of the real estate.* In 
 
 ' Wiley V. Bridgman, i Head. 68. Jackson v. Middleton, 52 Barb. 9.. 
 
 Den V. Hillman, 2 Halst. 180. Hunt Baker v. Copenbarger, 15 111. 103. 
 
 V. Gulick, 4 Halst. 205. Burton v. •* Jackson v. Varick, 7 Cow. 238.. 
 
 Smith, 13 Pet. 464. Munell v. Rob- Inglis v. Trustees of the Sailors'' 
 
 erts, II Ired. 424. Humphreys v. Snug Harbor, 3 Peters, 131. 
 
 Humphreys, i Yeates, 427. Smith Bumpas v. Gregory, 8 Yerger, 46.. 
 
 V. Ingles, 2 Oregon, 43. Lock- Coombs v. Jordan, 3 Bland. 299.- 
 
 wood V. Nye, 2 Swan, 515. Crabb Jarrett v. Tomlinson, 3 W. & S> 
 
 V. Jones, 2 Miles, 130. Kelly v. 114. Woodman v. Bodfish, 25 Me. 
 
 Morgan, 3 Yerg. 437. 317. Hall v. Hefly, 5 Humph. 581. 
 
 '' Williams v. Amory, 14 Mass. Falkney v. Leith, 1 5 Ala. 55. Landes 
 
 20. Penniman v. Hollis, 13 Mass. v. Brant, 10 How. 348. Land v> 
 
 429. Watkins V. Bean, .14 Mass. 404. Hopkins, 7 Ala. 115. Thomas v. 
 
 ' Watson V. Dodd, 68 N. C. 528. Marshall, Hardin, 19. 
 
Chap. VI.] SUBJECT TO EXECUTION. 185 
 
 Arkansas, at law, only such interests as are acquired by entry 
 and purchase from the United States ; ^ and a deed from the 
 officer after sale conveys a title to the vendee, and the grant 
 which issues to the debtor enures to the purchaser, and by re- 
 lation vests him with the fee.^ Actual possession being prima 
 facie evidence of title, it may be taken and sold on execution. 
 So a mere possession without right, and a sale passes the pos- 
 session.^ Possession under a claim of right* The possessory 
 interest of a grantor in a deed of trust, if it is a certain ascer- 
 tained possession for a definite period ; ® but not a permissive 
 possession, terminative at pleasure. The interest must be in 
 the land itself, not a mere permit to occupy.® The interest of 
 a debtor in land, either before or after forfeiture, if he remains 
 in possession.''^ 
 
 § 138. Lands held in Trust. Interest of a Cestui que 
 Trust. — Lands so held may be taken and sold for the debt 
 of the person for whose benefit they are held ; as lahd held by 
 A for the use of B, on execution against B at law. This was 
 the rule at common law, being enacted by statute 29 Charles 
 IL, c. 3.* Land conveyed to a wife with a resulting trust for 
 
 ' Petitt V. Johnson, 15 Ark. 55. son v. Williams, 10 Ohio, 69. 
 
 Lester v. White, 44 111. 464. Levy Haynes v. Baker, 5 Ohio S. 253. 
 
 V. Thompson, 4 How. 17. Jackson ' McCasklev. Amarine, 12 Ala. 17. 
 
 V.Williams, 10 Ohio, 69. Rogers v. * Hawkins v. May, 12 Ala. 673. 
 
 Brent, 10 111. 573. Cavender v. ° R. R. Co. v. Johnson, 59 Penn. 
 
 Smith, 5 la. 157. Huntingdon v. 294. Morrow v. Brenizer, 2 Rawle. 
 
 Grantland, 33 Miss. 453. 188. Thomas v. Sampson, 3 Penn. 69. 
 
 ' Lee V. Crossna, 6 Humph. 281. ' Curtis v. Root, 21 111. 53. 
 
 Hall V. Heffly, 6 Humph. 444. Cav- * Tevis v. Doe, 3 Ind. 129. Dav- 
 
 ender V. Smith, 5 la. 157. enport v. Lacon, 17 Conn. 278. 
 
 " Talbot v. Chamberlain, 3 Paige, Hunter v. Hunter, i Miss. 194. 
 
 219. Murray v. Enimons, 19 N. H. Garro v. Thompson, 7 Watts, 416. 
 
 483. Thomas v. Bowman, 29 111. Phelps v. Butler, 2 Ohio, 224. Bank, 
 
 426. S. C. 30 111. 84. Bunker v. &c.,''v. Commercial Bank, 10 Ohio, 
 
 Rand, 19 Wis. 253. Kellogg v. Kel- 71. Bagley v. Bailey, 16 Me. 151. 
 
 ^ogg> 6 Barb. 116. Brewster v. Drysdale's Appeal, 15 Penn. 457. 
 
 Power, 10 Paige, 562. Boughton v. Upham v.^Varney, 15 N. H. 462. 
 
 Bank, &c., 2 Barb. Ch. 458. Jack- Blanchard v. Taylor, 7 B. Mon. 645. 
 24 
 
186 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 the husband's benefit, as the property of the husband.^ In 
 South Carolina only the legal estate, or such a trust as is 
 made liable to execution by the statute of frauds.^ Where 
 trust estates are liable to sale, it is only those which would be 
 enforced between the cestui que trust and the trustee, not one 
 tainted with fraud.^ Land purchased by the husband after 
 marriage, for debts of the wife contracted before marriage.* 
 A resulting trust in favor of creditors on execution against 
 them.^ The interest of a cestui que use.^ The interest of a 
 debtor in real estate, though held by a third party in adverse 
 possession.'^ A resulting trust.^ 
 
 § 139. Land fraudulently conveyed to defeat, hin- 
 der, DELAY, AND DEFRAUD CREDITORS. — When One makes a 
 fraudulent conveyance of his lands to hinder, delay, and de- 
 fraud his creditors, there is created a resulting trust in favor 
 of his creditors, and such property can be sold on execution 
 against him ; ^ or purchased by a debtor, and conveyed by his 
 
 Flournoy v. Johnson, 7 B. Mon. v. Fitch, 1 1 Barb. 399. Brewster v. 
 
 493. Ethridge V. Smith, 34 Vt. 484. i Power, 10 Paige, 562. Ontario Bank 
 
 Presley v. Rodgers, 24 Miss. 520. v. Root, 3 Paige, 498. 
 
 Rankinv. Harper, 23 Mo. 579. Eddy "Jackson v. Walker, 4 Wend. 
 
 V. Baldwin, 23 Mo. 588. Doe v. 462. Bryan v. Knickerbacker, i 
 
 Evans, i C. & M. 450. Foot v. Col- Barb. Ch. 409. Degraw v. Clason, 
 
 vin, 3 John. 216. Jackson v. Bate- 11 Paige, 136. Snowden v. Dale, o 
 
 man, 2 Wend. 720. Evans v. Wild- Sim. 524. Hallett v. Thompson, 5 
 
 er, 5 Mo. 313. Guthrie v. Gardner, Paige, 583. Havens v. Healey, 15 
 
 19 Wend. 414. Ells v. Tousley, i Barb. 296. 
 
 Paige, 280. Thomas v. Walker, 6 ' Jarrett v. Tomlinson, 3 W. & S. 
 
 Humph. 93. Kellogg v. Wood, 4 114. Park v. Larkin, i Overt. loi. 
 
 Paige, 578. Jackson v. Sternbergh, * Pool v. Glover, 2 Ired. Eq. 129. 
 
 I John. 153. Ontario Bank v. Root, ° Ryland v. Callison, 54 Mo. 513. 
 
 3 Paige, 498. Wright v. Douglas, 3 Allen v. Berry, 50. Mo. 90. Bobb 
 
 Barb. 555. Bogert v. Perry, 17 v. Woodward, 50 Mo. 95. Hildreth 
 
 John. 350. v. Sands, 2 John. Ch. 35. Anderson 
 
 ' Low v. Marco, 53 Me. 45. v. Roberts, 18 John. 513. Bridge v. 
 
 ' White v. Kavanagh, 8 Rich. Eggleston, 14 Mass. 245. Dunn v. 
 
 377- Paiftter, 27 Penn. 148. Osborn v. 
 
 ' Page V. Goodman, 8 llf-ed. Eq. 16. Tunis, I Dutch. 633. Jones v. Craw- 
 
 * Phdps v. Tappan, 18 Mo. 393. ford, I McMuU. 373. Staples v. 
 
 * Wait V. Day, 4 Denio, 439.. Reid Bradly, 23 Conn. 167. Lenox v. No- 
 
Chap. VI.] SUBJECT TO EXECUTION. 187 
 
 procurement to Lis infant children to defeat creditors.^ Prop- 
 erty conveyed voluntarily from husband to wife.^ Land fraud- 
 ulently mortgaged.^ The real property of an intestate fraud- 
 ulently conveyed by him, if the administrator assumes the 
 defence of the case, and neglects to suggest the insolvency of 
 the estate on the records.* An attempted fraudulent convey- 
 ance of all a debtor's property, in North Carolina, amounts to 
 a waiver of his right to subject his personalty in preference to 
 land, and the land may be taken in the first instance.® 
 
 § 140. Real Estate of Intestates, &c. Other Inter- 
 ests LIABLE. — An execution may be legally levied on lands 
 of which the intestate died seized, although partition has been 
 made among the heirs.® In Massachusetts such as is not in- 
 ventoried by the administrator.' The interest of a co-distribu- 
 tee.^ The interest of an heir in the lands of his ancestor.^ 
 On a judgment against an administrator, land as well as per- 
 sonal property.^" The devisee of " the use and occupancy of 
 real estate " during his life, takes an estate liable to execution 
 against him.^^ Property not held in trust for public use by a 
 municipal corporation.^ In California, lands granted to the 
 city of San Francisco under a statute of 1851.^* Land pur- 
 
 trebe, i Hemp. 251. Jewell v. For- ° Norvell v. Bragdon, 14 Me. 320. 
 ter, 31 N. H. 34. Montgomery v. Baker v. Webb, I Haywd. 43. Van- 
 Hunt, 5 Cal. 366. George v. Wil- houten v. Reilly, 14 Miss. 440. 
 liamson, 26 Mo. 190. Getzler v. ' Prescott v. Tarbell, i Mass. 
 Saroni, 18 III. 511. Fowler v. Tre- 204. 
 
 bein, i6 Ohio S. 493. Trask v. ' Proctor v. Newhall, 17 Mass. 
 
 Green, 9 Mich. 358. Gorham v. 81. Black v. Steel, i Bailey, 307. 
 
 Wing, 10 Mich. 486. De Haar v. Bunn, 2 Penn. 335. 
 
 ' Smith V. Hinson, 4 Heisk. 250. ° Douglass v. Massie, 16 Ohio, 27. 
 
 ° Annin v. Annin, 24 N. J. Eq. '" Beall v. Osbourn, 30 Md. 8. 
 
 184. Phelps V. Morrison, 24 N. J. Averett v. Thompson, 15 Ala. 678. 
 
 Eq. 195. Preston v. Fryer, 38 Md. " McClure v. Melendy, 44 N. H. 
 
 221. Fowler v. Trebein, 16 Ohio 69. 
 
 S. 493. " Darlington v. New York, 31 N. 
 
 ' Brown v. Snell, 46 Me. 490; Y. 164. 
 
 ■* Wyman v. Fox, 55 Me. 523. " Holladay v. Frisbee, 15 Cal. 63a 
 
 ' Standi V. Branch, Phiil. (N. C. Wheeler v. Miller, 16 Cal. 124. 
 L.) 306. 
 
188 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 chased by a railroad company beyond what is actually dedi- 
 cated to corporate purposes, on an execution against them.^ 
 A portion of a road-bed abandoned by the company.^' The in- 
 terest of a miner in his mining claim. ^ A church, and lot upon 
 which it is erected.* An estate in fee or in tail, defeasible upon 
 a contingency.^ Where one has a general power of appoint- 
 ment over property, which he actually exercises, either by deed 
 or will, he thereby subjects the property to the claims of his 
 creditors in preference to the claims of his appointee.^ Prop- 
 erty sold for only sufficient to satisfy a portion of the judgment 
 may be sold to satisfy the balance of it whenever it is redeemed 
 from the first sale.'^ Where a party purchases land, and takes 
 possession, and by mistake the deed conveys other land, he 
 has such an estate in the land actually purchased as is liable.® 
 § 141. Equity of Redemption. — An equity of redemption 
 is a right which the mortgagor of an estate has of redeeming 
 such estate after it has been forfeited at law for the non-pay- 
 ment of the mortgage debt, or money secured by the mort- 
 gage, at the time stipulated and agreed upon by such mortgage, 
 by paying the amount of the 5ebt, interest, and costs. It is 
 the mere creature of a Court of Equity, founded upon the prin- 
 ciple, that as a mortgage is nothing but a pledge for the pur- 
 pose of securing the t)ayment of the amount for which the 
 mortgage is given to the mortgagee, the ownership of the 
 property being considered, upon principles of equity and jus- 
 tice, to be in the mortgagor, subject only to the legal title of 
 the mortgagee as far as such title may be necessary for his 
 security. But where a mortgage is made to defraud creditors, 
 it is, as to them, void, and creates no equity of redemption 
 liable to be sold on execution. In order that there may be an 
 
 ' Plymouth R. R. Co. v. Colwell, ' Phillips v. Rogers, 12 Met. 405. 
 
 39 Penn. 357. « Johnson v. Cushing, 15 N. H. 
 
 * Benedict v. Heineberg, 43 Vt. 298. 
 
 231- ' Crosby v. EI Kader Lodge, 16 
 
 ^ McKeon v. Bisbee, 9 Cal. 137. la. 399. 
 
 ' Presbyterian Cong. v. Colt, 2 * Morgan v. Bouse, 53 Mo. 219. 
 Grant's Cas. 75. 
 
Chap. VI.] 
 
 SUBJECT TO EXECUTION. 
 
 189 
 
 equity of redemption, there must be a valid mortgage. It be- 
 longed to a system of law which gave the legal estate (defeasi- 
 bly before default, and absolutely afterwards) to the mortgagee, 
 and was descriptive of the mortgagor's right to go into a Court 
 of Equity to redeem a forfeited estate, and demand a recon- 
 veyance. These descriptive words, "equity of redemption," 
 yet survive, although {he ideas they once represented have 
 become obsolete.^ In the United States, equities of redemp- 
 tion are, almost as a universal rule, made subject to legal 
 process for the debts of the mortgagor. This liability is a 
 necessary result of the principle generally adopted in the 
 United States, that the mortgagor, until foreclosure, and as 
 regards third persons, remains the owner of the lind, the 
 mortgage being a mere lien, which is not subject to legal 
 process. Real estate mortgaged is made subject to execution, 
 because the land is generally mortgaged for less than its value, 
 and the right of redemption is a valuable interest.^ It is the 
 
 • Kortright v. Cady, 21 N. Y. 343. 
 
 ' Stewart v. Crosby, 50 Me. 130. 
 Taylor v. Cornelius, 60 Penn. 187. 
 Porter V. Millett, 9 Mass. loi. Wat- 
 Wns V. Gregory, 6 Blackfd, 113. 
 Trimm v. Marsh, 54 N. Y. 599. Fitch 
 V. Pinkard, g 111. 70. Second, &c., 
 Bank v. Upman, 12 Wis. 499. Funk 
 V. McReynolds, 33 111. 481. Russell 
 V. Fabyan, 34 N. H. 218. Haw- 
 thorn V. Bronson, 16 S. & R. 269. 
 Thorpe v. Ricks, i Dev. & B. Ch. 
 613. Heimberger v. Boyd, 18 Ind. 
 420. Beers v. Bottsford, 13 Conn. 
 146. Dunbar v. Starkey, 19 N. H. 
 160. Jewitt V. McGowan, R. M. 
 Charlt. 391. Smith v. McCann, 24 
 How. 398. Bell V. Commonwealth, 
 I J. J. Marsh. 550. Hulett v. Sou- 
 lard, 26 Vt. 95. Fontaine v. Beers, 
 19 Ala. 722. IngersoU v. Sawyer, 2 
 Pick. 276. Van Ness v. Hyatt, 13 
 Peters, 294. Hobart v. Frisbie, 5 
 
 Conn. 592. Ford v. Philpot, ; H. & 
 J. 313. Kelly V. Beers, 12 Mass. 
 388. ShofRier v. Fogleman, I Wins. 
 N. C. (No. 2), 12. Carpenter v. 
 Parish, &c., 7 Pick. 49. Kittredge 
 V. Bellows, 4 N. H. 424. Collins v. 
 Gibson, 5 Vt. 243. Bagley v. Bailey, 
 16 Me. iji. Garro v. Thompson, 7 
 Watts, 416. McWhorter v. Huling, 
 3 Dana, 349. Livermore \ . Boutelle, 
 .11 Gray, 217. Very v. Richardson, 
 5 Allen, 107. Grover v. Flye, 5 Al- 
 len, 543. Capen v. Doty, 13 Allen, 
 262. Julian V. Beal, .26 Ind. 220. 
 Kizer v. Sawyer, 4 Kan. 503. Evans 
 V. Wilder, 5 Mo. 313. Foot v. Col- 
 vin, 3 John. 216. Jackson v. Bate- 
 man, 2 Wend. 570. Pratt v. Lawe, 
 9 Cranch, 456. Farmers', &c., v. 
 Commercial, &c., 10 Ohio, 71. Mor- 
 ris V. Way, 16 Ohio, 469. Allen v. 
 Parrish, 3 Ohio, 526. Phelps v. But- 
 ler, 2 Ohio, 224. Ely v. McGuire, 
 
190 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 proper way to reach a mortgagor's interest in real estate,^ and, 
 when taken, the whole of the debtor's estate is taken from 
 him. Where a corporation, to secure its bonds, executes a 
 deed of trust, it operaJ:es as a mortgage, leaving in the corpo- 
 ration an equity of redemption subject to sale on execution.^ 
 The interest of a mortgagor in a mining claim, and the pur- 
 chaser, as against the mortgagee, acquires the right of posses- 
 sion until foreclosure.^ Although an equity of redemption is 
 liable to be taken on execution by third persons, the mort- 
 gagee himself shall not be allowed to take it upon a judgment 
 recovered for the mortgage debt, because a shorter time is 
 allowed for redeeming an equity sold on execution than for 
 redeem ihg the land itself.* But where a negotiable note 
 
 2 Ohio, 330. Pritchard v. Brown, 4 
 N. H. 397. Kelly v. Burnham, 9 N. 
 H. 20. Crocker v. Frazier, 52 Me. 
 405. Pratt V. Scholfield, 45 Me. 386. 
 Franklin v. Blossom, 24 Me. 546. 
 Steward v. Allen, 5 Me. 103. Whit- 
 taker V. Sumner, 7 Pick. 551. At- 
 kins V. Sawyer, i Pick. 351. Thayer 
 V. Felt, 4 Pick. 354. White v. Bond, 
 16 Mass. 400. Jenks v. Ward, 4 Met. 
 404. Warren v. Childs, il Mass. 
 222. Brown v. Worcester Bank, 8 
 Met. 47. Houghton v. Bartholomew, 
 10 Met. 138. Pomeroy v. Winship. 
 12 Mass. SH- Perry v. Hayward, 
 12 Cush. 344. Hunter v. Hunter, i 
 Miss. 194. Wooton v. Wheeler, 22 
 Tex. 338. Hartwell v. Fitts, 20 Ga. 
 723. Lenox v. Notrebe, i Hemp. 
 251. State V. Lawson, 6 Ark. 269. 
 Punderson v. Brown, i Conn. 93. 
 Hinman v. Leavenworth, 2 Conn. 
 244. Scripture v. Johnson, 3 Conn. 
 211. Swift V. Dean, 11 Vt. 323. 
 Kimball v. Smith, 21 Vt. 449. Com'rs 
 V. Hart, I Brev. 492. State v. Laval, 
 4 McCord, 336. Naples v. Minnier, 
 
 3 Penn. 475. Roberts v. Williams, 
 
 5 Whart. 170. Tower's App. 9 
 W. & S. 103. Jones v. Thomas, 4 
 Ired. 12. Slocum v. Catlin, 22 Vt. 
 137. Davis v. Evans, j Ired. 525. 
 Thompson v. Parker, 2 Jones' Eq. 
 475. Reed v. Diven, 7 Ind. 189. 
 Knight V. Fair, 9 Cal. 117. Curtis 
 V. Root, 21 111. 53. Dougherty v. 
 Linthicum, 8 Dana, 194. Governor 
 V. Powell, 9 Ala. 83. Trudear v. 
 McVicar, i La. 426. Waters v. 
 Stewart, i Caines, 47. Cook v. Dil- 
 lon, 9 la. 407. Huntington v. Cot- 
 ton, 31 Miss. 253. Jackson v. Wil- 
 lard, 4 John. 41. McCormick v. 
 Digby, 8 Blackfd. 99. Freeman v. 
 McGaw, i; Pick. 82. Hardy v. 
 Heard, 15 Ark. 184. 
 
 ' Kelly v. Burnham, 9 N. H. 20. 
 
 ^ Coe v. Johnson, 18 Ind. 318. 
 Coe V. McBrown, 22 Ind. 252. 
 
 " Halsey v. Martin, 34 Cal. 81. 
 
 * Atkins V. Sawyer, i Pick. 351. 
 Deaver v. Parker, 2 Ired. Eq. 40. 
 Washburn V. Goodwin, 17 Pick. 137. 
 Powell V. Williams, 14 Ala. 476. 
 Barker v. Bell, 37 Ala. 358. Bald- 
 win V. Jenkins, 23 Miss, 206. Camp 
 
Chap. VI.] SUBJECT TO EXECUTION. 191 
 
 secured by mortgage is assigned without the mortgage, the 
 equity of redemption may be attached and sold on execution 
 by the indorsee ; ^ or by a mortgagee for a debt not secured 
 by the mortgage.^ The right to redeem subsequer^t mort- 
 gages may also be taken.^ Where an equity is seized, and 
 before the sale the mortgage debt is paid, there may still be 
 a' sale of the equity.* An officer has the right to take posses- 
 sion of the property for the purpose of making the sale.^ In 
 Maryland the distinction between common law and equity, as 
 known to the English law, has been constantly preserved in 
 its system of jurisprudence. The statute of George II., which 
 made lands in the Ainerican colonies liable to be sold under a 
 fi.fa. issued upon a judgment in a court of common law, did 
 not interfere with this distinction, and under it a legal estate 
 only, and not an equitable interest, could be seized under a 
 fieri facias. But in 1810 a statute was passed making equita- 
 ble interests subject to the process of 3. fi.fa. ; but the pur- 
 chaser at the sale of an equitable interest under this process 
 only buys the interest which the debtor had, and thus becomes 
 the owner of an equitable, and not a legal, estate. And it is 
 not every legal interest that is made liable to sale on 3. fi.fa. 
 The debtor must have a beneficial interest in the property, and 
 not a barren legal title held in trust. And so in other states.' 
 But the statutory right to redeem from execution sale is not 
 
 V. Coxe, I Dev. & B. 52. Young v. ter v. King, i Me. 297. Freeby v. 
 
 Shreve, 7 Dana, 64. Palmer v. Tupper, ij Ohio, 467. Crocker v. 
 
 Foote, 7 Paige, 437. Buck v. Sher- Frazier, 52 Me. 406. 
 
 man, 2 Doug. (Mich.) 176. Hill v. ' Clark v. Austin, 2 Pick. 528, 
 
 Smith, 2 McLean, 446. Waller v. Reed v. Bigelow, 5 Pick. 281. Big- 
 
 Tate, 4 B. Mon. 531. Lyster v. Dol- elow v. Wilson, i Pick. 485. 
 
 land, I Ves. Jun.431. Ticev. Annin, * Bagley v. Bailey, 16 Me. 151. 
 
 3 John. Ch. 130. Brownston v. Capen v. Doty, 13 Allen, 262. 
 
 Brownston, 4 B. Mon. 143. Thorn- ' Phillips v.-Morris, 7 J. J. Marsh, 
 
 ton V. Pigg, 24 Mo. 249. Trimm v. 279. McConneghy v. McCaw, 31 
 
 Marsh,3Lans.509. S.C.54N.Y.599. Ala. 447. 
 
 ' Crane v. Matsh, 4 Pick. 131. • Dougherty v. Cox, 13 Tex. 209. 
 
 Waller v. Tate, 4 B. Mon. 529. Crosby v. Elkader Lodge, 16 la. 
 
 • Pierce v. Potter, 7 Watts, 475. 399. Harrison v. Kramer, 3 la. 543. 
 
 Cushing V. Hurd, 4 Pick. 253. Por- Blain v. Stewart, 2 la. 378. 
 
192 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 liable in Illinois ; ^ but is in Michigan.^ In some states an 
 equity cannot be sold ; ^ not before entry or foreclosure, in 
 Maine.* Nor at common law.^ In New Jersey, after the mort- 
 gagee takes possession in order to foreclose.^ Nor after for- 
 feiture and before foreclosure, in Connecticut.'^ Or where the 
 mortgagee brings suit on the debt and not on the mortgage.' 
 In Mississippi, unless- the whole debt is paid.^ 
 
 § 142. Equitable Interests. Interest of Purchaser 
 UNDER A Title Bond. Purchaser at Sheriff's Sale, &c. 
 When and where they are liable. 1 — As heretofore stated, 
 a mere equitable title without possession was not subject to 
 levy on execution, but has been made so by statute.'" So the 
 interest of a person holding under a contract of purchase is 
 not in many states liable, not being bound by a judgment ; but 
 there is no reason why an interest of this kind should not be 
 liable to be sold on execution for the payment of debts, in 
 every state in the Union, in the same manner as an equity of 
 redemption, as it is in some states,'^ when coupled with a 
 
 ' Watson V. Reissig, 24 111. 281. v. Kennedy, 3 Atk. 279. Childs v. 
 
 Merry v. Bostwick, 13 111. 398. Derrick, i Yerg. 79. 
 
 ' Maynard v. Hoskins, 10 Mich. « Ketcham v. Johnson, 3 Green 
 
 480. Ch. 370. Van Cleve v. Groves, 3 
 
 ' Allison V. Gregory, i Murph. Green Ch. 330. 
 333. Wilson V. Carver, 4 Hay. 90. ' Huntington v. Smith, 4 Conn. 
 
 Hart V. Reeves, 5 Hay. 50. Cautzon 235. 
 
 V. Door, 27 Miss. 246. Thornhill v. » McNair v. O'Fallon, 8 Mo. 188. 
 
 Gilmore, 12 Miss. 153. Valentine v. Planters' Bank, I Free. 
 
 ■* Coombs V. Warren, 34 Me. 89. Ch. 727. 
 Randall v. Farnham, 36 Me. 86. ' Wolf v. Dowell, 21 Miss. 103. 
 
 * Smith V. Hill, 2 McLean, 446. Boarman v. Catlett, 21 Miss. 149. 
 
 Shute V. Harder, i Yerg. i. Lipe v. Thornhill v. Gilmer, 12 Miss. 153. 
 
 Mitchell, 2 Yerg. 400. Buford v. Henry v. Fullerton, 21 Miss. 631. 
 Buford, I Bibb. 306. McDermott v. '" Haynes v. Baker, 5 Ohio S. 253. 
 
 Morrison, I A. K. Marsh. 174. Van Thomas v. Marshall, Hardin, 20. 
 
 Ness V. Hyatt, 13 Pet. 294. Lyster January v. Bradford, 4 Bibb. 566. 
 
 V. DoUand, i Ves. 431. Hendricks Tytee v. Williams, 3 Bibb. 366. Al- 
 
 V. Robinson, 2 Johns. Ch. 312. Scott len v. Saunders, 2 Bibb. 94. 
 V. Scholey, 8 East. 467. Metcalf v. " Stevens v. Legrow, 19 Me. 95. 
 
 Scholey, s Bos. & P. 461. Burdon Jameson v. Head, 14 Me. 34. Woods 
 
Chap. VI.] SUBJECT TO EXECUTION. 193 
 
 lawful possession.^ Where chancery prevails, the creditor 
 niust issue his execution, and seek to collect his debt, before 
 he can resort to the equitable estate of his debtor.^ After a 
 return of nulla bona they may obtain a decree to apply the 
 property belonging to the debtor, but held by third persons, to 
 their debts.^ A holder of a government certificate of sale of 
 land has such an interest as may be sold. The patent relates 
 back to the right created by the certificate.^ Upon payment 
 for the land and the issue of the certificate, the land is no 
 longer the property of the government, though technically the 
 fee might be in the government. The land is real estate in 
 the hands of the purchaser ; he is as fully protected under his 
 •certificate as under the patent.^ Where a party, after judg- 
 ment against him, complies with the contract, the judgment 
 will be a lien, though he has transferred the property.® It may 
 be taken, in North Carolina, before the execution of a deed to 
 his assignee,^ after the payment of several instalments,^ when 
 surrendered to the officer for sale ; ® if no legal or equitable title 
 intervene ; or if he makes improvements thereon.^" Where 
 
 V. Scott, 14 Vt. 518. Hawthorn v. ' Kirkpatrick v. Means, 5 Ired. 
 Bronson, 16 S. & R. 269. Russell Eq. 220. Den v. Hay, i N. J. 174. 
 V. Stinson, 3 Hay. I. McMechen v. Ishmael v. Parke, 13 111. 324. 
 Marman, 8 G. & J. 57. Bryant v. ' Woodward v. Solomon, 7 Ga. 
 Robinson, 16 Mo. 129. Anthony v. 246. Caldwell v. Montgomery, 8 Ga. 
 Rodgers, 17 Mo. 394. Leadbetter 106. Long v. Page, 10 Humph. 541. 
 V. Anderson, Phill. Eq. (N. C.) 323. * Stark v. Starrs, 6 Wall. 402. 
 Houston V. Jordan, 35 Me. 520. Gray v. McCance, 14 111. 344. Car- 
 Jordan V. Hudson, 1 1 Tex. 82. Figg roll v. SafFord, 3 How. 459. Petit v. 
 V. Snook, 9 Ind. 202. Modisett v. Johnson, i; Ark; 55. 
 Johnson, 2 Blackfd. 431. Orth v. ' Jackson v. Spink, 59 111. 404. 
 Jennings, i Blackfd. 421. Kercheval ' Jackson v. Walker, 4 Wend. 462. 
 V. Wood, 3 Mich. 513. Vierheller's Jackson v. Batenjan, 2 Wend. 570. 
 Appeal, 24 Penn. 105. Patterson's Jackson v. Scott, 18 John. 94. 
 Estate, 25 Penn. 71. Antwerther v. ' Phillips v. Davis, 69 -N. C. 117. 
 -Mathiot, 9 S. & R. 397. Russell's ' Henry v. Patterson, 57 Pend. 346. 
 Appeal, 15 Penn. 319. CarkhaiF v. ' Moore v. Simpson, 3 Met. (Ky.) 
 Anderson, 3 Binney, 4. 349. 
 
 ' Miner v. Wallace, 10 Ohio, "• Woods v. Scott, 14 Vt. 518. 
 
 -403. Botts V. Cozine, i HoflF. Ch. 79. 
 . 25 
 
194 REAL ESTATE, LAND, OR REAL PROPERTY [Ch4p. VI. 
 
 the deed is taken in the name of a third person, the purchaser's 
 interest is liable ; ^ or where a purchaser's deeds have not been 
 recorded.^ The purchaser of real estate at execution sale, both 
 before and after the period for redemption expires, has an 
 estate in the land purchased, which may be levied on and sold 
 on an execution running against his property.^ But not in 
 other states* But where the party conveys by quitclaim, his 
 grantee has no interest liable ; ^ or upon forfeiture or cancel- 
 lation of the bond, or a surrender of the land to the grantor.® 
 Nor upon a verbal contract to conveyJ Nor, as a general rule 
 in many states, at law.* Where none of the purchase-money 
 
 Smith et al.-v. Gray, i Humph. 491. 
 Dunnica v. Coy, 24 Mo. 167. 
 
 ' Dewey v. Long, 25 Vt. 564. 
 Dunnica v. Coy, 24 Mo. 167. Tevis 
 V. Doe, 3 Ind. 129. McCartney v. 
 Bostwick, 31 Barb. 390. Dockray 
 V. Mason, 48 Me. 178. Clark v. 
 Chamberlain, 13 Allen, 257. 
 
 ' Russell V. Stinson, 3 Hay. I. 
 Clarke v. Clarke, 2 Dev.412. Shields 
 V. Mitchell, 10 Yerg. i. Frost v. 
 Reynolds, 4 Ired. Eq. 494. Moody 
 V. Farr, 14 Miss. 100. Harman v. 
 James, 10 Miss. iii. 
 
 ' Slater's Appeal, 28 Penn. 169. 
 Morrison v. Wurtz, 7 Watts. 437. 
 Page V. Rogers, 31 Cal. 293. 
 
 * Kidder v. Orcutt, 40 Me. 589. 
 Den V. Steelman, 5 Halst. 193. 
 
 ' Sage V. Cartwright, 9 N. Y. 49. 
 Sheridan v. House, 4 Keyes, 569. 
 
 ° Jameson v. Head, 14 Me. 34. 
 Barton v. Rushton, 4 Dess. 373. 
 Mount V. Harris, 9 Miss. 185. Alex- 
 ander V. Tams, 13 111. 221. RafFens- 
 berger v. CuUison, 28 Penn. 426. 
 
 ' Patterson v. Bodenhamer, 9 
 Ired. 96. 
 
 ' Talbot V. Chamberlain, 3 Paige, 
 219. Allen V. Sanders, 2 Bibb. 94. 
 Disbrough v. Outcalt, Saxton, 298. 
 
 Hopkins V. Carey, 23 Miss. 55. Col- 
 vard V. Coxe, Dudley, 99. Daugher- 
 ty V. Cox, 13 Tex. 209. Han way v. 
 Wallace, i8 Ind. 377. Bogart v. 
 Perry, i Johns. Ch. 52. Gentry v. 
 Allison, 20 Ind. 481. Blight v. 
 Banks, 6 Mon. 92. Justice v. Car- 
 roll, 4 Jones's Eq. 329. Ketcham v. 
 Johnson, 3 Greene's Ch. 370. Col- 
 lins V. Robinson, 33 Ala. 91. Allen 
 V. Sanders, 2 Bibb. 94. Shute v. 
 Harder, i Yerg. 3. Moody v. Farr, 
 14 Miss. 100. Hancock v. Brinker, 
 2 Bibb. 249. Fawcett v. Kinney, 33 
 Ala. 261. Mclntyre v. Agricultural 
 Bank, I Free. Ch. 105. Delafield v. 
 Anderson, 15 Miss. 630. Ellis v. 
 Ward, 15 Miss. 651. Moore v. 
 Simpson, 3 Met. (Ky.) 345. Frost v. 
 Reynolds, 4 Ired. Eq. 494. Sage 
 V. Cartwright, 9 N. Y. 49. Thomp- 
 son V. Wheatley, 13 Miss. 499. Ty- 
 ree v. Williams, 3 Bibb. 366. Foote 
 V. Colvin, 3 Johns. 216. Elnure v. 
 Harris, 13 Ala. 360. Hogan v. Smith, 
 16 Ala. 600. Wilson v. Beard, 19 
 Ala. 629. Dewey v. Long, 25 Vt. 
 561. Bigelow V. Finch, 17 Barb. 
 394. Smith V. Ingles, i Oregon, 43. 
 Thomas v. Marshall, Hardin, 20. 
 
Chap. VI.] SUBJECT TO EXECUTION. 195 
 
 has been paid.^ But may be sold as a trust estate.^ In some 
 courts it is held that a party who takes a conveyance in the 
 name of a third person has only a resulting trust, not subject to 
 levy and sale,^ that can only be reached in equity. As against 
 the grantor or vendor of land, a judgment is a lien thereon 
 only to the extent of the unpaid purchase-money,* and the 
 purchaser only gets the right to the unpaid purchase-money,* 
 or the legal title subject to the equities of the purchaser.^ In 
 Mississippi, when part of the purchase-money is paid, he has 
 no interest liable- to sale ; "^ nor after the' payment of the whole 
 amount ; ^ or if he takes notes, and afterwards indorses them 
 without recourse.® Where the interest of a purchaser is sold 
 under a judgment against him, the purchaser at the sale takes 
 the vendee's equitable title subject to the payment of such part 
 of the unpaid purchase-money as remains unpaid.^" The prop- 
 erty can be sold only subject to such lien of the vendor." The 
 purchaser may redeem from the lien of the vendor, and get 
 title by paying it.^^ Such purchaser has not all the rights of 
 such vendee, for the vendee may against his vendor set off in- 
 dependent debts, while the purchaser at the execution sale can 
 only set off what was directly or indirectly received as pay- 
 ment.^3 Where a party enters into a contract with another 
 whereby certain lands are to be granted on certain conditions, 
 and there is no conveyance until a satisfactory bond is given 
 
 ' Brandt V. Robinson, 1 6 Mo. 129. ' Branton v. Bush, 32 Ga. 669. 
 
 ' Pitts V. Bullard, 3 Ga. 5. Jen- McGregor v. Matthis, 32 Ga. 417. 
 
 nings V. Hardin, i Bush. Eq. 275. '" Vierheller's Appeal, 24 Penn. 
 
 ' Bauskett V. Holsomback, 4 Rich. 105. Patterson's Estate, 25 Penn. 
 
 624. Mitchell V. Robinson, 15 Ala. 71. Antwerther v. Mathiot, 9 S. & 
 
 413. Houston V. Jordan, 35 Me. 520. R. 397. Russell's Appeal, i; Penn. 
 
 * Moyer v. Hinman,- 13 N. Y. 180. 319. Carkhaif v. Anderson, 3 Binn. 4, 
 
 Manly v. Hunt, i Ohio, 257. " Hinton v. Mitchell, I Duvall, 
 
 ° Riley v. Million, 4 J. J. Marsh. 382. 
 
 395. Patterson's Estate, 25 Penn. 71. " Bondurant v. Owens, 4 Bush. 
 
 ' Blackmer v. Phillips, 67 N. C. 662. Jordan v. Hudson, 1 1 Tex. 82. 
 
 340. Bush V. Williams, 6 Bush. 405. 
 
 ' Money v. Dorsey, i; Miss. 15. Phillips v. Edmondson, 17 Mo. 579. 
 
 ' Cutting V. Pike, 21 N. H. 347. " McGuire v. Faber, 25 Penn. 436. 
 
196 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 for the performance of the contract, there is no such estate 
 conveyed to the grantee as to make the whole of it subject to 
 levy under an execution against him.^ 
 
 § 143. What is not liable to Execution, and where 
 NOT LIABLE. — Having seen what may be taken on execution 
 as real estate, we now come to the rights, titles, and interests 
 that are not liable outside of the exemption laws. Among the 
 interests that are not subject to sale on execution are : Lands 
 held adversely to the debtor.^ Land once sold at a price in- 
 sufficient to satisfy the execution for the balance due on the 
 judgment, though the debtor remains in possession.^ A claim 
 of land not based upon right or possession.* Mere possession 
 and improvements on land belonging to the United States, 
 however valuable.^ A pre-emption claim, in Missouri.^ The 
 right to recover for the value of improvements made on land.'^ 
 A right of entry for breach of condition in a conveyance.^ The 
 equitable lien of a vendor after conveyance.® Lands in the 
 possession of a third person, under a recorded title ostensibly 
 valid, cannot be seized by the execution creditor under an alle- 
 gation of fraud until the title itself has been set aside by a 
 direct action.^" Land, in Louisiana, for a judgment where the 
 principal, interests, and costs do not amount to fifty dollars." 
 The municipal lands of a city, which is trust property for the 
 benefit ,of its inhabitants.^^ Leasehold estates in the lands and 
 water-power situated on the canals and rivers owned and 
 
 ' Kissam v. Nelson, 2 Hiesk. 4. ' Hendricks v. Snediker, 30 Tex. 
 
 s Ring V. Gray, 6 B. Mon. 368. 297. 
 
 Griffith V. Huston, 7 J. J. Marsh. 385. ' Bangor v. Warren, 34 Me. 324. 
 
 McConnell v. Brown, 5 Mon. 478. ' Ross v. Heintzen, 36 Cal. 313. 
 
 ' Smithv. Fore, i Jones, L. 488. '° Payne v. Graham, 23 La. 771. 
 
 ■* Hagaman v. Jackson, i Wend. Collins v. Shaffer, 20 La. 41. 
 
 502. Major V. Drear, 4 J. J. Marsh. " Zimmerman v. Bartchy, 14 La. 
 
 585. 520. 
 
 ' Rhea v. Hughes, i Ala. 219. " Townsend v. Greely, 5 Wall. 
 
 Brown v. Massey, 3 Humph. 470. 326. Hart v. Burnett, 15 Cal. 530. 
 
 " Bray v. Ragsdale, 53 Mo. 170. Darlington v. New York, 31 N. Y. 
 
 Hatfield v. Wallace, 7 Mo. 112. 164. Chicago v. Hasley, 25 IlL 
 
 Bower v. Higbee, 9 Mo. 256. 595. 
 
Chap. VI.] SUBJECT TO EXECUTION. 197 
 
 leased by the state.-' Lands devised to an executor or others, 
 in trust for the payment of debts, on an execution against the 
 heirs of the deceased.^ An estate under administration for 
 the debts of the deceased owner.^ Lands of the intestate on 
 an execution against an executor de son- tort, they not being 
 assets in his hands.* The undivided interest of a legatee or 
 devisee in any one portion of the property of an estate on exe- 
 cution against him.^ An estate at will or sufferance.^ A mort- 
 gagee's interest before foreclosure.'' The property of the wife 
 on execution against the husband, without proof that her title 
 is fraudulent as against creditors.^ A husband's interest in 
 the land of his wife at the time of, or acquired by her after, 
 marriage, for debts of his contracted before marriage, or prior 
 to the acquisition of such land.^ The right of dower before it 
 is assigned,^" it being a mere chose in action prior to such time. 
 A church, to pay the debts of the society where the pews are 
 owned by individuals.^-' Where, upon an organization of a town, 
 the title of the original owner vests in the township trustees, 
 and cannot be sold without his consent, in Kentucky.^ No 
 particular portion of a joint tenancy, or tenancy in common, 
 but only the debtor's share of the estate, or an undivided por- 
 tion of his share.^^ In Louisiana, a building erected on the 
 land of another, at the expense of the owner.^* A rent reserved, 
 
 ' Buckingham v. Reeve, 19 Ohio, '" Mason v. Allen, j Me. 479. 
 
 399. Gooch V. Atkins, 14 Mass. 378. 
 
 ' Helm V. Darby, 3 Dana, 185. Graham v. Moore, 5 Harrington, 318. 
 
 ' Houston V. Childers, 24 La. 472. Pennington v. Yell, 11 Ark. 212. 
 
 * Mitchell V. Lunt, 4 Mass. 654. Torrey v. Minor, i S. & M. Ch. 489. 
 
 * Clarke v. Harker, 48 Ga. 596. Tompkins v. Fonda, 4 Paige, 448. 
 
 ° Bigelow V. Finch, 17 Barb. 394. " Bigelow v. Cong. Society, 1 1 
 
 Colvin V. Baker, 2 Barb. 206. Vt. 283. Revere v. Gannett, I Pick. 
 
 ' Brown v. Bates, 55 Me. 520. 169. 
 
 Trapnall vl State Bank, 18 Ark. 53. " Wickliflfe v. Bascom, 7 B. Mon. 
 
 ' Gage V. Dauchy, 34 N. Y. 293. 681. 
 
 Buckley v. Wells, 33 N. Y. 581. " Bartlett v. Harlow. 12 Mass. 
 
 Kluender v. Lynch, 4 Keyes, 361. 348. Baldwin v. Whiting, 13 Mass. 
 
 Knapp V. Smith, 27 N. Y. 280. Van ST. Atkins v. Bean, 14 Mass. 404. 
 
 Etten V. Currier, 3 Keyes, 329. Pond v. Pond, 14 Mass, 403. 
 
 ° White V. Dorris, 35 Mo. 181. " Poche v. Theriot, 23 La. 137. 
 
198 REAL ESTATE, LAND, OR REAL PROPERTY [Chap. VI. 
 
 where there is a right of entry. ^ The land of a debtor in an- 
 other state.^ Land for the fees of an officer cannot be legally 
 sold after the judgment is satisfied ; he must look to the plain- 
 tiff for his fees.^ A trust estate, on execution against the 
 cestui que trust. ^ A resulting trust at law.^ Trust interests 
 of debtor in land.® The interest of a cestui que trust, where it 
 is of so varying and indeterminate a character that the transfer 
 would greatly interfere with the purposes of the trust.'^ Or 
 where he has neither seisin nor possession, and no power to 
 dispose, of any estate, or to enjoy the occupancy, or collect the 
 rents'; nor any power to call upon the trustee to execute a 
 conveyance to himself.^ A trustee's interest and title in trust 
 property, so as to embarrass the estate of the cestui que trust? 
 The interest in a mixed trust.-'" The interest of a son, in a 
 conveyance from the father, in trust for another. ^i Where 
 property held by a debtor, as trustee for another, has con- 
 veyed it to a third person, who has conveyed it to the cestui 
 que trust, by an unrecorded deed, as the property of the 
 trustee, even if conveyed by him in fraud of creditors.^^ The 
 interest of a grantor in a deed of trust, though given to 
 secure a debt^^ The interest of an assignor in property con- 
 veyed in trust for creditors, because it would vest the legal 
 title in the purchaser, and defeat the trust,^* or the assignee's 
 
 ' Payne v. Beal, 4 Denio, 405. ' Gamble t. Dabney, 20 Tex. 69. 
 People V. Haskins, 7 Wend. 463. ' Mcllvaine v. Smith, 42 Mo. 
 
 Huntington v. Forkson, 6 Hill, 149. 45. 
 
 ' Runk V. St. John, 29 Barb. ' Campfield v. Johnson, i Halst 
 
 585. Ch. 245. 
 
 ^ Jackson v. Anderson, 4 Wend. '» Melton v. Davidson, 6 Ired. 
 
 474. Eq. 195. 
 
 ■* Hagan v. Jacques, 4 Green, 123. " Eyrick v. Hetrick, 13 Penn. 
 
 Russell V. Lewis, 2 Pick. 508. 488. 
 
 ° McDermott v. Strong, 4 Johns. " Carter v. Porter, 55 Me. 337. 
 Ch. 690. Garfield v. Hatmaker, 15 " Morris v. Way, 16 Ohio, 469, 
 N. Y. 475. Immerson v. Duncan, " Brown v. Graves. 4 Hawks, 
 
 3 Jones's L. 537. 342. Sprinkle v. Martin, 66 N. C. 
 
 » Trask v. Green, 9 Mich. 358. 55. McKeithian v. Walker, 66 N. C. 
 
 Gorham v. Wing, 10 Mich. 486. 95. Pope v. Boyd, 22 Ark. 538. 
 
Chap. VI.] .SUBJECT TO EXECUTION. 199 
 
 interest.^ On an execution against one as an officer of a cor- 
 poration, in an action where the corporation is not a party, its 
 property cannot be taken.^ 
 
 Petit V.Johnson, IS Ark. 55. Biscoe ' Gait v. Dibrell, 10 Yerg. 146. 
 
 V. Royston, 18 Ark. 508. Cornish Wright v. Henderson, 12 Tex. 43. 
 
 V. Dews, 18 Ark. 183. Trapnall v. * North Carolina, &c., Ins. Co. v. 
 
 State Bank, 18 Ark. 60. Hicks, 3 Jones's L. 58. 
 
200 OF THE EXECUTION OF THE WRIT. [Chap. VIT. 
 
 CHAPTER VII. 
 
 OF THE EXECUTION OF THE WRIT. 
 
 W^o is to execute. — Who may not execute it. — When an 
 Officer may be compelled to execute a Writ. — Within -what 
 Time it must be executed. — When it cannot he executed, — 
 Who to execute after the Expiration of Officer's Term. — 
 Right of Plaintiff to control the Execution. — When it pro- 
 tects and justifies the Officer; Tvhen it does not. — When the 
 Plaintiff is liable. — Of the Authority of Officers, in the 
 Execution of Process., to break into Dwelling-houses. — In- 
 dorsing Time of Receipt upon Writ. — When they may be 
 set off. 
 
 § 144. In its application to final process, the word " exe- 
 cuted " means " levied." ^ A writ is therefore executed when 
 its mandate is complied with by the officer, by a seizure and 
 taking of sufficient of thfe goods and chattels of the party 
 against whom the execution issues ; and if sufficient goods and 
 chattels cannot be found of such debtor within the jurisdiction 
 of the officer, then to cause the amount to be made out of the 
 lands and tenements of said debtor ; and to have the money 
 in court, and to make due return of the writ, &c., in order ta 
 bring the money into court, or make the money, a sale is 
 necessary, so that it is executed by a sale of the property.^ 
 There are several important ministerial duties to perform by 
 an officer in the execution of final process. The first, as a 
 matter of record for the purpose of adjusting the rights and 
 priorities of conflicting claimants to the proceeds of personal 
 property, and to prevent a sale or conveyance of the property 
 in fraud of the execution creditor, is the indorsement of the 
 hour, day, month, and year of its receipt by the officer. The- 
 
 ' Den V. Young, 7 Halst. 300. ' Swain v. Morland, i B. & B. 370. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 201 
 
 second is perhaps the most important to the officer : the 
 search for and taking or seizure of sufficient personal property- 
 out of which to make or collect the amount of the judgment, 
 interest, and costs. Third, the appraisement, advertisement, 
 and sale of the property, real or personal. It must be under- 
 stood that an officer cannot deliver the debtor's property to 
 the creditor in satisfaction of the debt, but the goods must be 
 sold ; nor can he redeliver them to the defendant if he pays 
 only part of the debt, or detains them until the money is made, 
 and the charge for keeping them is paid ; nor can he pay the 
 debtor with his own money, and keep the property for his own 
 use, for the authority by which he acts is to sell the property. 
 Fourth, the return of his official acts or proceedings under the 
 execution, and the disposal of the proceeds either by payment 
 to the party entitled thereto, or by bringing the same into court 
 for disposal by the court. All of which matters, in all their 
 variou? aspects, will be treated at length in their proper order. 
 § 145. By the ancient law of England, and adopted in the 
 American states, all writs, except as to some few particular 
 jurisdictions, are directed to the sheriff of the county where 
 the cause of suit arose, and cannot be directed to any other 
 person, uhless it be in special cases where there is good cause 
 of exception against the sheriff; and there the writ is directed 
 to the coroner who acts in the place of the sheriff; as in cases 
 where the sheriff is of kin to any party in the writ, or where 
 he is_himself a party to the action, whether plaintiff or defend- 
 ant, and in some cases where he either refuses or makes default 
 in the service. The sheriff or his officers cannot dispute the 
 authority of the court from which any writ or process is issued 
 to them ; but on their part are to truly execute the same, and 
 are justified by the command of the court, though that com- 
 mand was erroneous. But. this must be understood with this 
 exception, that the court must have jurisdiction of the cause ; 
 for if the court has no jurisdiction, all the proceedings are 
 coram non judice, and an action will lie against the officer, 
 without any regard for the process of the court. In strictness, 
 the money made under a writ is to be brought into court ; but 
 26 
 
202 
 
 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 a return of payment to the party is good by permission of the 
 court, though not by force of law. 
 
 § 146. Who to execute Final Process. — Whenever a 
 statute, judgment, or decree authorizes a sheriff to do an offi- 
 cial act, it may be done by deputy, the sheriff and his deputies 
 being considered in law one officer. Courts do not recognize 
 any other officer ; nor does the law.^ When a writ from a 
 court of competent jurisdiction is placed in an officer's hands, 
 he is bound to execute it according to the exigency of the 
 writ, without inquiring into the regularity of the proceedings 
 upon which it was grounded.^ Nor can he refuse because in 
 his opinion it is irregular,^ or that the sum varies from the 
 amount for which the judgment was rendered.* He is not 
 justified or bound to execute void process, as a writ without a 
 seal where one is required by statute, or where it is absolutely 
 void by being issued from a court which could not in any event 
 acquire jurisdiction.^ But process merely irregular and void- 
 
 ' Gregory v. Cotteril, i E. & B. 
 360. Woodland v. Fuller, 3 Per. & 
 
 D. 570. Cameron v. Reynolds, 
 Cowp. 403. Jones v. Perchard, 2 
 Esp. 507. Smart v. Hutton, 8 A. & 
 
 E. 568. Belshaw v. Marshall, i Nev. 
 & M. 689. Anon., Loft, 81. Hotch- 
 kiss V. Cutting, 14 Minn. 537. Wat- 
 son V. Todd, s Mass. 271. Perley 
 V. Foster, 9 Mass. 112. Vinton v. 
 Bradford, 13 Mass. 114. Congdon 
 V. Cooper, 15 Mass. 10. Barrett v. 
 Copeland, 18 Vt. 69. Campbell v. 
 Phelps, 17 Mass. 244. Jentry v. 
 Hunt, 2 McCord, 410. Paxton v. 
 Steckel, 2 Penn. 93. Hazard v. Is- 
 rael, I Binn. 240. Moore v. Dawney, 
 3 H. & M. 127. Estes V. Williams, 
 Cooke, 413. Prewitt v. Neal, Minor, 
 386. Houser v. Hampton, 7 Ired. 
 333. Humphries v. Cobb, 23 Me. 
 380. Ferguson v. Williams, 3 B. 
 Mon. 302. Young v. Smith, 10 B. 
 Mon. 293. Early v. Dye, 14 Ala. 
 
 158. Townsend v. Olin, 5 Wend. 
 207. Gardner v. Hosmer, 6 Mass. 
 327. Haynes v. Small, 22 Me. 14 
 Purrington v. Loring, 7 Mass. 388. 
 Doty V. Turner, 8 John.' 20. Snell 
 V. Kelly, 43 Ind. 359. Boaz v. Tate, 
 43 Ind. 60. Wood V. Finnis, 7 
 Exchq. 369. Parrott v. Mumford, 
 2 Esp. N. P. C. 585. Slackford v. 
 Austin, 14 East. 468. Taijer v. 
 Baker, 2 Levinz, 203. Stringer v. 
 Stanlack, Cro. Eliz. 404. 
 
 ' Chase v. Plymouth, 20 Vt. 469. 
 Stoddard v. Tarbell, 20 Vt. 328. 
 In re Cumins, 4 Ark. 103. Cody v. 
 Quinn, 6 Ired. 181. Arnold v. Com- 
 monwealth, 8 B. Mon. 109. Jordan 
 V. Porterfield, 19 Ga. 139. Reams 
 V. McNeill, 9 Humph. 542. 
 
 ' Roth V. Duvall, I Idaho, 167. 
 
 * Parmlee v. Hitchcock, 12 Wend. 
 96. 
 
 ' Boal's Lessee v. King, 6 Ohio, 
 II. State V. Curtis, I Hayw. 471. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 203 
 
 able must be executed.^ Where the judgment has been satis- 
 fied, and the officer has notice of the satisfaction, he cannot 
 execute the writ.^ But if an officer refuses to execute any 
 judicial process, it is a contempt of court for which an attach- 
 ment will be granted. But where he has notice aliunde of 
 some jurisdictional defect which renders it void, in such case 
 he may refuse to proceed without indemnity.^ The authority 
 issuing a writ may authorize some one specially to serve it* 
 The universal rule is, that a sheriff, or constable, his authorized 
 deputy, shall serve all process, except as hereinafter shown.^ 
 The same party who executes a writ of attachment should 
 execute final process ; ^ but another officer may execute final 
 process on it." In case of a vacancy in the office, and a cor- 
 ■ oner receives a writ, it may be turned over to the officer, if the 
 vacancy is filled before the levy, and a levy will be valid.* 
 
 § 147. When a Ministerial Officer cannot execute 
 Final Process. — An officer cannot execute final process in 
 his own favor ; the law does not authorize or . tolerate such 
 service.* Or where he is interested, or against a private cor- 
 poration of which he is a member.^" An officer who, by reason 
 
 Stoddard v. Tarbell, 20 Vt. 321. Ste- * Walter v. Dennison, 24 Vt; 551. 
 
 vens V.' Choteau, 11 Mo. 382. How- Hampton v. Allison, 9 Humph. 113. 
 
 ard V. Clark, 43 Mo. 344. Hall v. ' Wroe v. Harris, 2 Wash. 126. 
 
 Jones, 9 Pick. 446. Smith v. Alston, Tillotson v. Cheatham, 2 Johns. 63. 
 
 I Rep. Con. Ct. 404. Filkins v. ° Tuggle v. Smith, 6 Men. 76. 
 
 Buckway, 19 John. 170. Ins. Co. v. Am. Ex. Bank v. Morris, &c., Bank, 
 
 Halleck, 6 Wall. 556. Case of Mar- 6 Hill, 362. 
 
 shalsea, 10 Coke, 76. Allen v. ' Higgins v. Kendrick, 14 Me. 
 
 Greenlie, 2 Dev. 370. Brown v. 83. 
 
 Compton, 8 Term. 424. ' Carr v. Youse, 39 Mo. 346. 
 
 ' State V. Page, I Speers, 408. ' Snydacker v. Brasse, 51 111. 357. 
 Stevenson v. McLean, 5 Humph. May v. Walters, 2 McCord, 470. 
 332. Scott V. Carr, Riley, 193. Carpenter v. Stillwell, 11 N. Y. 61. 
 Bank, &c., v. Rettes, 13 Vt. 395. Stewart v. Magness, 2 Cold. 2. Sin- 
 State V. Morgan, 7 Ired. 387. Daw- gletary v. Carter, i Bailey, 467. Mor- 
 son V. Shepherd, 4 Dev. 497. ris v. Lake, 16 Miss. 521. Chambers 
 
 " Jackson v. Anderson, 4 Wend. v. Thomas, 3 A. K. Marsh. 538. 
 
 474- '" Wood v. Gibson, 17 111. 218. 
 
 ' Grace v. Mitchell, 31 Wis. 533. Carter v. Harris, 4 Rand, 199. Sam- 
 
204 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 of bis neglect to execute final process, has been compelled, 
 either by action or proceeding as for a contempt, to satisfy the 
 claim of an execution creditor, cannot enforce the process 
 against the property of the debtor for his own benefit and in- 
 demnity. The payment and satisfaction of the judgment puts 
 an end to the power of the officer under th£ writ, and the pro- 
 cess hecomes functus officio ; nor can a creditor assign such 
 judgment to him or any party for his benefit.^ An officer can- 
 not do that indirectly which the law will not tolerate him to 
 do directly ; nor will the legal rights of the parties be varied" 
 by any form or disguise that may be given to the transaction. 
 Any assignment after the payment by the officer is void, for it 
 can only be made for his benefit ; and if a writ issues, and a 
 sale is made by the officer, such sale is void, for he is the only 
 one interested in the execution of the process ; and to allow 
 an officer to wield the process of courts in his own behalf is 
 contrary to well-settled principles of public policy, and would 
 lead to great abuse.^ The general rule is, that where the 
 sheriff is a party, the writ must issue to the coroner, or by an 
 officer specially appointed by the court for that purpose.^ "The 
 danger of a perversion of the process of the court by an inter- 
 ested person is greater when the fact that the officer charged 
 with its execution is the party in interest is concealed, than 
 when it is apparent on the face of the writ itself ; and if policy 
 forbids the execution by an officer of process to which he is a 
 party by name, a fortiori should the execution &f process nom- 
 inally in favor of others, but really in his own favor, be for- 
 bidden." Nor can he be subrogated to the rights of the judg- 
 
 uel V. Commonwealth, 6 Mon. 173. v. Nuttal, 16 Ired. 347. Crutchfield 
 
 CoUais V. McLeod, 8 Ired. 221. v. Haynes, 14 Ala. 49. Harwell v. 
 
 Bank of Rutland v. Parsons, 21 Vt. Worsham, 2 Humph. 524. Burt v. 
 
 199. Thompson, 3 Head. 534. Martin v. 
 
 ' Carpenter v. Stilwell, 11 N. Y. Goudy, i Hill, S. C. 417. 
 61. Doyle V. Glenn, 4 Humph. 309. ' Mills v. Young, 23 Wend. 314. 
 
 Roundtree v. Weaver, 8 Ala. 314. Sherman v. Boyce, 15 John. 443. 
 Garth v. Campbell, lo Mo. 154. ^ Singletary v. Carter, i Bail. 467. 
 
 Arnett v. Cloud, 2 Ga. 53. Boren Chambers v. Thomas, 3 A. K. Marsh. 
 
 V. McGehee, 6 Port. 432. Rogers 536. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 
 
 205 
 
 ment creditor, and be entitled to enforce the judgment for his 
 own indemnity.^ " It is fit and just that the judgment debtor 
 should be made to pay his debts, and it is the province and 
 business of the officer to whom process is issued to compel 
 him to do so by a proper, vigilant, and seasonable performance 
 of bis duty ; but it .is not .discreet or consistent with just views 
 of policy by any inducements to encourage a lax or careless 
 discharge of the responsible duties devolved upon officers. If 
 an officer intrusted with the execution of final process may, 
 "without peril or ultimate loss, select his own time for its exe- 
 cution, he may seriously interfere with the right of the creditor 
 by delaying the process to his prejudice, and he may at his 
 I option employ the same process to annoy and oppress the 
 debtor, and to make gain for himself Both the creditoV and 
 debtor will in a measure be subject to the caprice of the officer, 
 and serious inconveniences will result if rights either equitable 
 or legal are held to result to an officer from his own breach of 
 duty. While it has ever been the policy of the law to protect 
 an officer within proper limits from loss or damage in the 
 faithful discharge of his duties, it has done nothing to encour- 
 age or protect him in the neglect or violation of those duties. 
 The consequences of all violations of duty have been visited 
 upon him, and he has not been supposed to be entitled to any 
 equities beyond those which enure to any other wrong-doer. 
 Thus, where an officer is compelled, by attachment or other 
 means, to pay to the creditor the amount of his claim or judg- 
 ment, it is a satisfaction as to him, and he has no further claim 
 upon the officer in respect to the execution, or any right to 
 enforce it against his debtor. The execution having fully ac- 
 complished its purpose, which is to raise the money to satisfy 
 the judgment creditor, the power conferred' by the execution 
 
 ' Doyle V. Glenn, 4 Humph. 309. 
 Carpenter v. Stillwell, 11 N. Y. 61 
 Roundtree v. Weaver, 8 Ala. 314. 
 Garth v. Campbell, 10 Mo. 154. 
 Arnett v. Cloud, 2 Ga. 53. Boren v. 
 McGehee, 6 Port. 432. Rogers v. 
 Nuttal, 10 Led. 347. CrutchiSeld v, 
 
 Haynes, 14 Ala. 49. Harwell v. 
 Worsham, 2 Humph. 524. Burt v. 
 Thompson, 3 Head. 534. Lintz v. 
 Thompson, i Head. 456. Miller v. 
 Dyer, I Duval, 263. Smith v. Her- 
 man, I Cold, 141. 
 
206 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 upon the officer is spent. The payment and acceptance of the 
 amount which the officer is compelled to pay necessarily di- 
 vests the creditor of all power as well as right to enforce the 
 process ; it is then functus officio. In such cases no rights 
 result to an officer either to maintain an action against the 
 debtor for the money paid, or to retain and enforce the execu- 
 tion for his own benefit. There is no distinction between vol- 
 untary payments or those made by compulsion. An action is 
 denied him because such a practice would not only be against 
 the rules of law, but would tend to multiply suits and increase 
 litigation." ^ The right to enforce the execution for his own 
 benefit is denied frbm principles of policy and the " grand in- 
 convenience '' which would ensue.^ " To allow any man to 
 wield' the process of courts in his own favor, in order to exact 
 such measure of justice as he may think due to himself, would 
 not only lead to abuse and oppression, but would tend to sub- 
 vert the foundation of private rights and of civil liberty." ^ Nor 
 can he legally serve an execution on his deputy.* A deputy 
 is disqualified to serve when either he or his principal is 
 the plaintiff in the action, has a direct interest in the pro- 
 cess, or is entitled to the proceeds of the sale under it.^ But 
 by statute, in some states, there is a provision made for an 
 officer being subrogated to the creditor's rights in certain cases 
 where he is compelled to pay an amount equal to the judg- 
 ment, or advances it without collecting it on the ground that 
 such payment does not enure to the debtor ; ® or on the faith 
 of a judgment afterwards obtained ; ^ or where the writ is lost 
 after the debtor promises to pay it, and the officer is compelled 
 
 ' Jones V. Wilson, 3 John. 434. = Sherman v. Boyce, 15 John. 443. 
 
 Menderback V. Hopkins, 8 John. 436. Hammatt v. Wyman, 9 Mass. 138. 
 
 Whittier v. Hemingway, 22 Me. 238. Stevens v. Rowe, 3 Denio, 327. 
 
 Beach v. Vandenburgh, 10 John. 361. Brackett v. Winslow, 17 Mass. 153. 
 Carpenter v. Stillwell, 11 N. Y. 6i. •• Dane v. Gilmore, jl Me. 544. 
 
 ^ Reed v. Pruyn, 7 John. 426, ' Wood v. Gibson, 17 III. 218. 
 Sherman v. Boyce, 15 John. 443. « State Treasurer v. Holmes, 4 
 
 Mills V. Young, 23 Wend. 314. Big^ Vt. in. Finn v. Shatton, 5 J. J. 
 
 elow V. Provost, 5 Hill, 566. Car- Marsh. 364. 
 penter v. Stillwell, 11 N. Y. 61. ' Ely v. Harvey, 6 Bush. 620. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 207 
 
 to.^ Where a deputy left the property levied upon with the 
 defendant, who eloigned it, and the officer was compelled to 
 pay its value to the plaintiff, and took an assignment of the 
 judgment, he was subrogated to the rights of the plaintiff as 
 against the defendant, but not so as to affect purchasers of 
 defendant's real estate under subsequent judgments.^ But 
 where there is a simple allegation that an officer is friendly 
 with the judgment debtor, and it is expected that he would 
 not perform his duty, it is no cause for a coroner serving the 
 writ.^ 
 
 § 148. Who shall execute Final Process after the 
 Expiration of the Officer's Term. — It is a general rule 
 that when an officer commences to execute a fieri facias by a 
 seizure of the property, he may complete it notwithstanding 
 the writ may have died, or his office may have, expired before 
 its completion, where personal property is taken.* Being an 
 entire thing, it must be completed by the hand that commences 
 it.^ Land cannot be sold by an officer after the expiration of 
 his office.^ Although the terra of office has expired, an officer 
 is authorized to serve process until he has been officially noti- 
 fied that his successor has qualified.^ But where an officer 
 has not commenced the execution of the writ, he has no power 
 to after the expiration of his office.* But where a writ comes 
 to the hands of an officer after the expiration of his term of 
 office, he has no more authority to execute it than any other 
 private individual. It is his duty to deliver all unexecuted 
 writs to his successor, to be executed by him.® 
 
 ' Rees V. Earaes, 20 111. 282. 38. Ballard v. Whitlock, 18 Gratt. 
 
 ' People V. Onondaga C. P. 19 235. 
 
 Wend. 79. • « Chicago v. R. I. R. R. Co. 20 
 
 ^ Kelly V. James, Coxa, 6. 111. 286. United States v. Bank of 
 
 * Chicago V. R. I. R. R. Co. 20 Arkansas, I Hemp. 460. Bank of 
 
 111. 286. Bank of Tennessee v. Tennessee v. Beatty, 3 Sneed, 305. 
 Beatty, 3 Sneed, 305. Clark Vi Pratt, ' Curtis v. Kimball, 12 Wend. 275. 
 55 Me. 546. Anon., i Haywd. 415. ' State v. Parchman, 3 Head. 609. 
 United States v. Bank of Arkansas, ° Lawson v. Orear, 4 Ala. 156. 
 
 I Hemp. 460. State v. Parkman, 3 Dunnica v. Coy, 28 Mo. 525. An- 
 
 Head. 609. dress v. Brougliton, 21 Ala. 200. 
 
 ' Sanderson v. Rodgers, 3 Dev. Armstrong v. Grant, 7 Kans. 285. 
 
208 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 § 149. When to be executed ; when it cannot be. — 
 All that is required of an officer is, that he executes process 
 before the return day. And he has the whole time intervening 
 between its delivery to him and the return day of the writ to 
 do this, unlaes in cases where, by delay in the execution there- 
 of, the debt might be lost or put, in jeopardy ; ^ and he has a 
 right to presume that such process was issued in sufficient 
 time to give him the whole statutory period allowed for the 
 execution of iinal process in which to execute and return it.^ 
 An officer being obliged, to execute every writ and process 
 issuing to him by lawful authority, he is likewise obliged by 
 the duty of his office to execute such process with the utmost 
 expedition, or as soon after he receives it as the nature of 
 the thing will admit. And there can be no safer rule for an 
 officer to go by than a strict observance of what is enjoined 
 in the writ. But as, on the one hand, he must not show any 
 favor, nor be guilty of any unreasonable delay, so, on the other 
 hand, he must not be guilty of oppression, nor make use of 
 other force, nor greater violence, than the thing requires.^ 
 And if he is guilty of malicious conduct, he may be punished 
 by being mulcted in damages.* They must be executed against 
 the same party in the order of their reception by the officer^ 
 An officer should not delay the execution of final process until 
 the return day, for the debtor's property may be seized on 
 
 ' State V. Parchman, 3 Head. 609. '• People v. Warren, 5 Hill, 440. 
 
 State V. Ferguson, 13 Mo. 166. State Hart v. Dubois, 20 Wend. 236. 
 
 V. Rollins, 13 Mo. 179. Tucker v. Parker v. Smith, 6 111. 411. Lud- 
 
 Bradley, 15 Conn. 50. Vail v. Lewis, dington v. Peck, 2 Conn. 700. Beatty 
 
 4 Johns. 450. Devoe v. Elliott, 2 v. Perkins, 6 Wend. 382. Fortner 
 
 Caines, 243. Haggerty v. Wilber, v. Flanagan, 12 Ala. 257. Smith v. 
 
 16 Johns. 287. Chase v. Gilman, 15 Miles, i Hemp. 34. Everett v. Her- 
 
 Me. 64. ritt, 48 Me. 537. Burton v. Calway, 
 
 ' Dayton v. Lynes, 31 Conn. 578. 20 Ind. 469. Taylor v. Jones, 42 
 
 ' Hinman v. Borden, 10 Wend. N. H. 25. 
 
 267. Jackson v. Law, 5 Cow. 248. ' Rust v. Pritchett, 5 Harring. 
 
 McDonald v. Neilson, 2 Cow. 139. 260. Walker v. Anderson, 31 Tex. 
 
 Haggerty v. Wilber, 16 John. 287. 646. Knox v. Webster, 18 Wis. 
 
 Brewster v. Van Ness, 18 John. 133. 406. 
 Kennedy v. Brant, 6 Cranch. 187. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 209 
 
 ■Other writs, or may be sold to a purchaser without notice of 
 the writ, or removed by the debtor beyond the jurisdiction of 
 the ofScer having such process. The seizure and disposal 
 of the debtor's property should take place in ample time to 
 make the money and pay it over to the party entitled thereto, 
 or have it in court on the return day of the writ ; or, in case 
 of no personal property, to give the necessary time to subject 
 and complete a sale of the debtor's real estate to the satis- 
 faction of the debt. The latest period allowed by law for the 
 service of an execution is the day on which it is returnable.^ 
 No writ or process can be executed on Sunday. The service 
 of process on a Sunday being absolutely void by statute, it 
 •cannot be made good by any subsequent waiver of the debtor, 
 as by his not objecting. Nor can it be made after the return 
 day of the writ : the power of the officer is then gone, the exe- 
 cution is functus officio, and no proceedings can be taken to 
 execute it.^ Or after the death of the debtor, if before the 
 delivery of the writ to the officer,* or for the fees of the officer 
 in whose hands the writ is; Fees are not part of the judg- 
 ment, but constitute a demand against the party for whom the 
 services are performed. If the judgment is paid, the officer's 
 authority is extinguished, and he cannot lawfully proceed to 
 seize property to enforce the collection of his costs,* where 
 such costs are not included in the judgment. 
 
 § ISO. Of the Right of the Creditor or Plaintiff, 
 HIS Agent or Attorney, to control the Execution. — 
 An execution issued at the request of a party to the action, 
 who is entitled by the judgment of the court or by law to have 
 
 ' Vail V. Lewis, 4 John. 450. 323. Gaines v. Clark, i Bibb, 608. 
 
 Devoe V. Elliott, 2 Caines, 243. Dugal v. Baben, 8 La. (N. S.) 393. 
 
 ° Prescott V. Wright, 6 Mass. 20. Johnson's Ex'rs v. Wall, i La. (N. S.) 
 
 Heyward v. Hildreth, 9 Mass. 393. 541. Barnard v. Stevens, 2 Aik. 
 
 Waterhouse v. Waite, 1 1 Mass. 207. 429. Devoe v. Elliott, 2 Caines, 243. 
 
 Parrott v. Kent, 2 Esp. 585. Lov- Vail v. Lewis, 4 John. 450. Stoyel 
 
 eridge v. Plastow, 2 H. Bl. 29. Lof- v. Cady, 4 Day. 222. 
 land V. Jefferson, 4 Harring. 303. ' People v. Bradley, 17 111. 485. 
 Morgan v. Ramsey, 15 -Ala. 190. * Craft v. Merrill, 14 N. Y; 456. 
 
 Toomer v. Perkey, i Rep. Con. Ct. Jackson v. Anderson, 4 Wend. 474. 
 27 
 
210 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 it issue in his favor, may control it, without any interference 
 on the part of the officer or the attorney ; it is the process of 
 the party causing its issue ; ^ and no one but such party, his 
 agent or attorney, can control the service thereof; and either 
 one may authorize the officer to depart from the regular and 
 ordinary method of enforcing it,^ until the rights of others have 
 become vested.^ The officer may, by direction of the owner 
 of the judgment, or his attorney, as a special agent of such 
 owner, be restrained and limited to any act which is within 
 his general authority under the writ ; * and he may direct the 
 amount of the execution to be made from the joint or several 
 property of the defendants therein and in the judgment, or any 
 of them if there is more than one defendant.® An execution 
 may at any time be countermanded by the attorney or party 
 who caused its issue ; and the officer is bound to obey such 
 instructions, and suspend proceedings upon the 'writ whenever 
 he is instructed so to do ; unless it be a case of collusion 
 between the parties for the purpose of defrauding the officer 
 out of his fees, the plaintiff and his attorney both being insol- 
 vent and irresponsible.® An officer is not required to obey the 
 directions of the party in executing the writ, if in his judgment 
 it will produce a great sacrifice of the property. Where by law 
 a postponement or adjournment of sale is permitted, he should, 
 in case the creditor can sustain no injury by delay, postpone 
 the sale. An officer, in the discharge of his duty in the exe- 
 cution of final process, should take all the necessary means to 
 
 ' Morgan v. People, 59 111. 58. 24 Vt. 252. Gorham v. Ga]e, 7 Cow. 
 
 Reddick v. Adm'rs, &c., 7 111. 670. 739. Stern's Appeal^ 64 Penn. 44.7. 
 
 ° In re Hampton, 2 Greene (la.) Armstrong v. Garrow, 6 Cow. 465. 
 137. Tucker v. Bradley, 15 Conn. Walters v. Sykes, 22 Wend. 566. 
 50. Pierce v. Partridge, 3 Met. 44. Colton v. Camp, i Wend. 365. God- 
 Rogers V. McDearmid, 7 N. H. 506. frey v. Gibbons, 22 Wend. 569. 
 Fitts V. Johnson, 22 Ga. 307. Rich- Sherry v. Schuyler, 2 Hill, 204. 
 ardson v. Bartley, 2 B. Mon. 328. ' Shryock v. Jones, 22 Penn. 303. 
 Patton V. Hammer, 28 Ala. 6i8. ■* Walters v. Sykes, 22 Wend. 566. 
 S. C. 33 Ala. 307. Hill V. Pratt, 29 ' Root v. Wagner, 30 N. Y. 18. 
 Vt. 119. Postern v. Southern, 7 B. Godfrey v. Gibbons, 22 Wend. 569. 
 Mon. 289.. Walworth v. Readsboro, ° Jackson v. Anderson, 4 Wend. 
 
 480. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 211 
 
 secure the amount he is commanded by the writ to make ; 
 but as to time, manner, and place of sale, he is vested with 
 such discretion as ordinary and discreet business men use ; 
 and he has been justified in postponing a sale.^ Where an 
 execution is indorsed, " No security of any kind to be taken," 
 the officer has no authority to take a forthcoming or delivery 
 bond ; and, if he does, it will not be valid as a statutory bond, 
 although it may be good at common law as a protection to the 
 officer.^ If he is instructed to sell for cash, he is bound to fol- 
 low such instructions ; ^ or if not to collect the whole amount 
 in such case, he cannot receive more than he is directed to ; * 
 or if from the proceeds he satisfy a writ which is not entitled 
 to be paid from such money, but does it by direction of the 
 plaintiff on whose execution the money is made, he will be 
 protected.^ 
 
 Where the owner of the judgment or his attorney in- 
 structs a deputy holding the writ to depart from his duty in 
 executing it, as where he directs him to do nothing after mak- 
 ing the levy until further instructions, the officer ceases to be 
 the servant of the sheriff, and becomes the agent of the party, 
 and the liability of the sheriff to the owner for his acts or 
 default ceases ; and if the owner wishes to change this rela- 
 tion, he must give notice to the sheriff himself, and not to the 
 deputy.^ Where the party directs the deputy to depart in any 
 other way from the regular course of proceedings, directing 
 him to give credit on a sale of property, or the like, he makes 
 him his agent, and relieves the sheriff from any liability for the 
 money received at such sale, and the party must look to the 
 deputy for the proceeds.'^ But where the deputy, after receiv- 
 ing instructions from the party, does not follow them, but acts 
 in executing the writ in conformity with the law, this does not 
 
 ' McDonald v. Neilson, 2 Cow. ■* Rogers v. McDearmid, 7 N. H. 
 
 139. 506. Webber v. Hutchins, i Dowl. 
 
 " Richardson v. Bartley, 2 B. Men. N. S. 95. 
 
 328. Postern v. Southern, 7 B. ' Fitts v. Johnson, 22 Ga. 307. 
 
 Mon. 289. » Mickles v. Hart, i Denio, 548. 
 
 ' Wal'worth v. Readsboro, 24 Vt. ' Gorham v. Gale, 6 Cow. 467. 
 252. 
 
212 OF THE EXECUTION OF THE WRIT. [Cha?. VII. 
 
 affect the liability of the sheriff. It must be shown, in order 
 to discharge the sheriff from all liability, not only that the 
 party directed the deputy to depart from the line of duty 
 imposed by law, but that he followed, or undertook to follow, 
 his directions ; and in case where he is authorized to sell on 
 credit on receiving good indorsed notes, but allows bidders to 
 take the goods purchased by them without receiving such 
 notes, as he does not follow the instructions of the plaintiff, 
 the sheriff is liable for his acts.^ A plaintiff or his attorney is 
 not bound to give the officer notice of where the residence of 
 the debtor is, or that he has property in the county. The 
 want of such notice will not excuse any neglect of the officer.^ 
 Nor is the creditor bound to point out property to be levied 
 on. He does all the law requires of him when he places his 
 writ in the hands of the officer, whose duty it is to make the 
 money .^ A delivery of a writ without anything to restrain its 
 full execution is a delivery to be executed.* The debtor has 
 the right to insist that the writ shall be legally executed upon 
 his property, that the seizure be legally made, the sale fairly 
 conducted, and the money collected in the manner provided 
 by law. 
 
 § 151. When an Execution justifies and protects the 
 Officer in Discharge of his Duty. When it does not. 
 — One of the effects of' final process is the protection which it 
 affords to the officer while acting according to its exigencies. 
 Being the delegated agent of the court, if the court has juris- 
 diction to issue an execution, the officer to whom such writ is 
 directed, and all his deputies under it, are protected. He is 
 protected whether the execution issues from a court of general 
 or limited jurisdiction, although such court has not, in fact, 
 jurisdiction of the case, or over the debtor, provided it appears 
 on the face of the writ that the court has jurisdiction of the 
 
 ' Sheldon v. Payne, 7 N. Y. 453. •" Albany, &c., v. Dorr, Walk. Ch. 
 
 N. H. Savings Bank v. Varnura, I 317. Vancev. McNairy, 3 Yerg. 171. 
 
 Met. 34. * Moses v. Thomas, 2 Dutch. 124. 
 
 ' Tomlinson v. Rowe, Hill & D. Van Waggoner v. Moses, 2 Dutch. 
 
 4J0. , 570. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 
 
 213 
 
 subject matter, and the process in other respects shows no 
 want of authority ; and whether it is regular or irregular is of 
 no importance to the officer, except when he participates in 
 the irregularity. The law affords him this protection for the 
 reason that he, being an officer of the court, cannot impugn its 
 authority, nor inquire into the regularity of its proceedings. 
 Quijussu judicis aliquod fecerit non videtur dolo malo fecisse, 
 quia parere necesse est. He must execute it according to its 
 requirements, and the protection thus afforded him is only 
 while obeying its requirements.-' , This protection is afforded 
 
 ' Button V. Cole, 12 Mod. 178. 
 Barker's Widow v. Braham, 3 Wils. 
 370. Jones V. Williams, 8 M. & W. 
 349. Moravia v. Sloper, Willes, 30. 
 Hill V. Bateman, 2 Str. 710. Tur- 
 ner V. Felgate, Lev. 95. Blanchenay 
 V. Burt, 4 Q. B. 707. Cheasley v. 
 Barnes, 10 East. 73. State v. Mc- 
 Nally, 34 Me. 210. Wilton, &c., 
 Co. v. Butler, 34 Me. 431. Chase v. 
 Fish, 16 Me. 132. Robinson v. Bar- 
 rows, 48 Me. 186. Carle v. Deles- 
 dernier, 13 Me. 363. Kenniston v. 
 Litde, 30 N. H. 318. Hill v. Wait, 
 
 5 Vt. 124. Gage v. Barnes, 11 Vt. 
 195. Pierson v. Gale, 8 Vt. 512. 
 Churchill v. Churchill, 12 Vt. 661. 
 Brown v. Mason, 40 Vt. 157. Ber- 
 gin V. Haywood, 102 Mass. 414. 
 Chase v. Ingalls, 97 Mass. 524. 
 Clarke v. May, 2 Gray, 413. Day 
 V. Sharp, 4 Whart. 339. Whipple 
 V. Kent, 2 Gray, 410. Twitch ell v. 
 Shaw, 10 Cush. 46. Donahoe v. 
 Shed, 8 Met. 236. Wilmarth v. Burt, 
 7 Met. 257. Damon v. Bryant, 
 2 Pick. 411. Hoskins v. Helm, 
 4 Litt. 310. Simmons v. Wood, 6 
 Yerg. 518. Nichols v. Thomas, 4 
 Mass. 232. Portland Bank v. Stubbs, 
 
 6 Mass. 421. Oy^tead v. Shed, 12 
 Mass. 511. Neith v. Crofut, 30 
 
 Conn. 580. Waterbury v. Lockwood, 
 4 Day, 257. Watson v. Watson, 9 
 Conn. 141. Carter V. Clark, 28 Conn. 
 512. Hill V. Haynes, 54 N. Y. 153. 
 Chegaray v. Jenkins, 5 N. Y. 381. 
 Sheldon v. Van Buskirk, 2 N. Y. 
 473. Hutchinson v. Brand, 9 N. Y. 
 208. Noble v. Halliday, i N. Y. 330. 
 Read v. Markle, 3 John. 523. Rosen- 
 field v. Palmer, 9 Alb. Law Journal, 
 192. Webber v. Gay, 24 Wend. 485, 
 People v. Warren, 5 Hill, 440. Earl 
 V. Camp, 16 Wend. 562. Parker v. 
 Walrod, 16 Wend. 514. Holmes v. 
 Nuncaster, 12 John. 395. Parmlee 
 V. Hitchcock, 12 Wend. 96. Coon 
 V. Congdon, 12 Wend. 496. Yates 
 V. St. John, 12 Wend. 75. Savacol 
 V. Boughton, 5 Wend. 170. Elder v. 
 Morrison, 10 Wend. 128. Noble v. 
 Holmes, 5 Hill, 194. Rogers v. Mul- 
 liner, 6 Wend. 597. People v. Coop- 
 er, 13 Wend. 379. Warner v. Shed, 
 10 John. 138. Cornell v. Barnes, 7 
 Hill. 35. Shaw v. Davis, 55 Barb. 
 389. Alexander v. Hoyt, 7 Wend. 
 89. Hart V. Dubois, 20 Wend. 236. 
 Lewis V. Palmer, 6 Wend. 369. Do- 
 minick v. Eacker, 3 Barb. 17. Mc- 
 Guinty v. Herrick, 5 Wend. 241. 
 Wilcox V. Smith, 5 Wend. 231. 
 Beach v. Furman, 9 John. 230. Bou- 
 
214 
 
 OF THE EXECUTION OF THE WRIT. [Chap. VII 
 
 him, while the plaintiff or the party causing its issue cannot 
 justify himself under the writ, but will be guilty of trespass in 
 pausing it to issue.^ As long as the judgment exists, it pro- 
 tects those who seize property upon it,^ and, even after its 
 reversal, is a justification for all acts done ih enforcing it prior 
 
 ton V. Neilson, 3 John. 474. Rey- 
 nolds V. Moore, 9 Wend. 36. French 
 V. Willett, 4 Bosw. 639. Sheldon v. 
 Striker, 34 Barb. ii6. Decker v. 
 Bryant, 7 Barb. 182. Mangold v. 
 Thorpe, 33 N. J. L. 134. Raum- 
 mell V. Watson, 2 Vroom. 281. 
 Woodruff V. Barrett, 3 Green, 40. 
 Fall Creek v. Smith, 71 Penn. 230. 
 Kilpatrick v. Frost, 2 Grant Cas. 
 168. Swires v. Brotherlien, 41 
 Penn. 135. Paul v. Von Kirk, 6 
 Binn. 123. Fox v. Wood, i Rawle. 
 143. Jones V. Hughes, 5 S. & R. 
 299. Kerlin v., Heacock, 3 Binn. 
 215. Hodgson V. Milward, 3 Grant, 
 406. Hecker v. Jarrett, 3 Binn. 404. 
 Campbell v. Webb, 11 Md. 471. 
 Deal V. Harris, 8 Md. 40. Earle v. 
 Thomas, 14 Tex. 583. Price v. Hol- 
 land, I P. & H. 289. Mankin v. 
 Fletcher, 7 Cold. 162. Young v. 
 Wise, 7 Wis. 128. Taylor v. Mc- 
 Keown, 12 Rich. L. 251. Bicker- 
 staaf V. Doub, 19 Cal. 109. Clark 
 y. Norton, 6 Minn. 412. Loomis v. 
 Wheeler, 21 Wis. 271. Parish v. 
 Wilhelm, 63 N. C. 50. Howard v. 
 Clarke, 43 Mo. 344. Culbertson v. 
 Milhollin, 22 Ind. 362. Atkinson 
 V. Catcher, 23 Ark. 10 1. Harget v. 
 Blackshear, Taylor N. C. 107. Clay 
 V. Caperton, i Mon. 10. Gott v. 
 Mitchell, 7 Blackfd. 270. Foster v. 
 Gault, 2 McMuU. 335. Stevenson 
 V. McLean, ; Humph. 332. Barnes. 
 V. Barber, 6 111. 401. Parker v. 
 
 Smith, 6 111. 411. State v. Morgan, 
 3 Ired. 186. Crockett v. Latimer, i 
 Humph. 272. Lattin v. Smith, i 111. 
 284. State V. Ferguson, 67 N. C. 
 219. Swazy V. Hunt, 2 N. &M. 211. 
 McHugh V. Pundt, i Bailey, 441. 
 Brown V. Wood, i Bailey, 457. Al- 
 len V. Johnson, 4 J. J. Marsh. 235. 
 Harmon v. Gould, i Wright (0.), 
 709. Taylor v. Alexander, 6 Ohio, 
 145. McLean v. Cook, 23 Wis. 364, 
 Dynes v. Hoover, 20 How. 65. Mc- 
 Donald V. Wiikie, 13 111. 22. Miller 
 V. Girce, i Rich. 147. State v. Crow, 
 II Ark. 642. Higdon v. Conway, 12 
 Mo. 295. Camp v. Mosely, 2 Fla. 
 171. Ford v. Treasurer, i N. & M. 
 234. Brown v. Henderson, i Mo. 
 134. Atkinson v. Micheaux, I Humph. 
 312. Percefull v. Commonwealth, 3 
 B. Mon. 347. Farlee v. Lee, 4 D. 
 & B. 169. Hunt V. Bellew, g B. 
 Mon. 390. Paris v. State, 3 Ohio S. 
 159. McElhany v. Flynn, 23 Ala. 
 819. Milburn v. State, 11 Mo. 188. 
 Dixon v. Watkins, 9 Ark. 139. Mil- 
 burn v. Gilman, 1 1 Mo. 64. Barnes 
 v. Haynes, i Swan, 304. Etheridge 
 v. Edwards, i Swan, 426. Averett 
 V. Thompson, 15 Ala. 678. Cog- 
 burn V. Spence, 15 Ala. 549. 
 
 ' Baldwin v. Whittier, 16 Me. 33. 
 Young V. Bucher, 31 Mo. 136. 
 Mower v. Stickney, S Minn. 397. 
 Lathrop v. Arnold, 25 Me. 136. 
 
 * Ives V. Lucas, i C. & P. 7. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 215 
 
 to that time ; ^ or where it is issued on a judgment that has 
 been satisfied,^ or issued by an officer de facto? Where an 
 officer; when he seizes property, has lawful process authorizing 
 him to do so, he may justify under it, although at the time of 
 the seizure he did not claim to act under it, and did claim to 
 take it by other authority.* Persons summoned by an officer 
 to assist in the execution of legal process are justifiable in 
 their acts to the same extent that the officer would be.^ So the 
 acquiescence of the party plaintiff in the officer's acts is a pro- 
 tection to him;^ or by the negligence' of the party.'' Where 
 an officer who has seized property by virtue of an execution is 
 sued by the defendant in the execution for taking the property, 
 the officer is never compelled to produce the judgment to jus- 
 tify the taking ; the execution alone protects him.^ But a 
 ■constable cannot unless he produces the judgment;^ or show 
 that he has taken indemnity for the execution of the writ.^" 
 
 § 152. When the person who justifies under the authority 
 of a tribunal is an officer bound to execute its mandates, he 
 will not be liable for obeying them if they fall within the gen- 
 eral scope of its powers, although those powers may have been 
 exceeded or wrongfully administered in the particular instance." 
 
 ' Turner v. Felgate, Lev. 95. Keys v. Grannis, 3 Nev. 548. Toby 
 
 Simpson v. Hornbeck, 3 Lans. 53. v. Read, 9 Conn. 216. 
 
 Ives v. Lucas, i C. & P. 7. ° Hamilton v. Decker, 2 South, 
 
 ' McGuinty v. Herrick, 5 Wend. 873. 
 
 240. '" Norton v. Hendershott, i Hill, 
 
 " Wilcox V. Smith, 5 Wend. 231. 118. 
 
 Savacol v. Boughton, 5 Wend. 170. " Warner v. Shed, 10 John. 138. 
 
 ■* State V. Elrod, 6 Ired. 250. Smith v. Shaw, 12 John. 247. Sava- 
 
 ' Payne v. Green, 18 Miss. 507. col v. Boughton, 5 Wend. 170. Ford 
 
 ° Tomlinson v. Shynn, 2 B. & B. v. Babcdck, i Denio, 158. Darling 
 
 77. Stuart v. Whittaker, 2 C. & P. v. Bowen, 10 Vt. 148. Barrett v. 
 
 100. Crane, 16 Vt.*246. Stoddard v. Tar- 
 
 ' Ruston v. Hatfield, 3 B. & A. bell, 20 Vt. 321. Noble v. Holmes, 
 
 ^04. 5 Hill, 194. Cady v. Quinn, 6 Ired. 
 
 ' Cheasely v. Barnes, 10 East. 73. 191. Tarlton v. Fisher, i Doug. 
 
 Sheldon v. Van Buskirk, 2 N. Y. 671. Chegaray v. Jenkins, 5 N. Y. 
 
 477. Jackson v. Hobson, 5 111. 412. 376. Patterson v. Ritter, 27 Barb. 
 
 Cleveland v. Rogers, 6 Wend. 438. 34. Ward v. Davis, 34 N. H. 328. 
 
216 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 Obedienta est legis essentia. All the officer is required to do is 
 to obey the mandate of the writ. The officer is not bound to 
 look to the judgment ; the writ is his warrant.-' This princi- 
 ple of law may be invoked whenever an attempt is made tO' 
 render an officer of the law responsible for acts done in obe- 
 dience to an authority or vfaxra.nt prima facie valid, and failing^ 
 by reason of defects which he had no means of ascertaining.^ 
 When the subject matter of the suit is prima facie within the 
 powers of the court which issues the process, it cannot be 
 shown that the officer who executed the writ knew that the 
 facts were misstated in the complaint or warrant, and would 
 not be within the jurisdiction, if set forth truly ;^ or that 
 proper steps had not been taken to make the jurisdiction 
 effectual.* This results from the injustice of making those 
 who are charged with the execution of process, and who are 
 punishable if they do not execute it, liable for omissions which 
 they have no means of ascertaining, while they are rightfully 
 made responsible where the defect consists in a total want of 
 authority, and not in the manner in which it has been exer- 
 cised. The duty of the officer at the time, and his responsibil- 
 ity afterwards, will be measured by what appears on the face 
 of the process placed in his hands for execution, while he can- 
 not escape from liability under cover of a void or illegal writ.^ 
 A writ legal on its face will be a complete justification for 
 everything done in pursuance of its precepts without the pro- 
 duction of the proceedings upon which it is founded, and not- 
 
 Hecker v. Jarrett, 3 Binn. 404. People v. Cooper, 13 Wend. 379. 
 
 Whipple V. Kent, 2 Gray, 410. Webber v. Guy, 24 Wend. 585. 
 
 Moore v. Alleghany City, 18 Penn. Watson v. Watson, 9 Conn. 141. 
 
 55. Billings V. Russell, 23 Penn. * Sanford v. Nichols, 13 Mass. 
 
 189. Champaign Co. Bank V. Smith, 286. State v. Weed, 21 N. H. 262. 
 
 7 Ohio S. 43. Sprague v. Birchard, Webb v. Batchelour, i Ventris, 273. 
 
 I Wis. 4S7. ' Stetson v. Packer, 7 Cush. 562.. 
 
 ' Kleissendorff V. Fore, 3 B. Mon. Morse v. James, Willes, 122. Gos- 
 
 471. settv. Howard, 10 Q. B. 359. Tobift 
 
 ' Oliet V. Bissey, 2 T. Jones, 214. v. Addison, 2 Strobh, 33. Gruman. 
 
 Henderson v. Brown, l Caines, 92. v. Raymond, i Conn. 40. Carratt v. 
 
 ' People V. Warren, 5 Hill, 440. Morley, i Q. B. 18. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 217 
 
 withstanding any defects which they may exhibit on examina- 
 tion.i 
 
 There is this difference between process from inferior 
 and superior courts : While an officer will be protected by the 
 rnandate of a superior court, unless there is plain want of, or 
 excess of jurisdiction,^ that of an inferior court will be no justi- 
 fication to him unless it sets forth enough to show that juris- 
 diction exists, and that the case falls within it ; ^ although 
 where the warrant is prima facie sufficient, the officer will not 
 be liable for latent defects which he has no means of knowing.* 
 But where the officer goes beyond the exigency of the writ, in 
 reliance on a right given by the judgment (as where an execu- 
 tion against one man is levied on the goods sold or assigned 
 by him to another, on the ground that the transfer is fraudu- 
 lent as against creditors), the judgment itself must be given in 
 evidence. Where an officer is sued by A for taking his prop- 
 erty under color of an execution against B, the question to be 
 tried is, whether the property, when taken, belonged to A or 
 B. If it belonged to A, the execution, with or without the 
 judgment, is no protection, for it does not command the officer 
 to take A's property ; but if A claims title to the property by 
 virtue of a sale from B to him, which is alleged to be fraudu- 
 lent against B's judgment creditors, then it becomes necessary 
 to produce the judgment on which the execution issued against 
 B. This is for the purpose of proving, in connection with 
 other testimony, that the pretended sale from B to A was 
 fraudulent and void, and that the property still belongs to B, 
 not A. The judgment in such case is given in evidence be- 
 cause it affects the title to the property in question, and not 
 because it is for any other purpose necessary to protect the 
 officer ; ^ and the justification will consequently fail, if the 
 
 ' State V. Weed, 21 N. H. 262. * Andrews v. Morris, i Q. B. 3. 
 Dominick v. Eacker, 3 Barb. 17. ' Sheldon v. Van Buskirk, 2 N. 
 
 Andrews v. Morris, i Q. B. 3. Y. 477. Lake v. Billers, i Ld. 
 
 ' Gossett V. Howard, 10 Q. B. Raymd. 733. Martin v. Podger, 3 
 
 359. Burrows, 2631. White v. Morris, 
 
 • Carratt v. Morley, i Q. B 18. 11 C. B. 1015. 
 28 
 
218 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 record discloses a want of jurisdiction.^ Those who rely on 
 the proceedings of an inferior tribunal must show, not only that 
 the cause was within its jurisdiction, but that the necessary 
 steps were taken to make that jurisdiction effectual;^ and they 
 may be made responsible for every defect which renders the 
 exercise of its powers irregular arid invalid, whether they were 
 or were not acquainted with its existence.^ The protection 
 which would otherwise be afforded by an execution, for acts 
 done under it, may be overthrown by proof that the judgment 
 was rendered without due notice to the defendant, because the 
 party who procures and enforces a writ is responsible for its 
 validity, and must take the consequences of it if it prove in- 
 valid.* Every one who acts by virtue or under color of the 
 law is compelled to determine at his peril whether the law has 
 conferred the authority which he assumes to exercise.^ Those 
 who command and those who do an illegal act are alike tres- 
 passers ; the magistrate who makes an illegal order or decree 
 will.be equally liable with the officer by whom it is carried into 
 execution.^ Process void upon its face is no protection to the 
 officer,^ as want of jurisdiction ; or if issued on a satisfied judg- 
 ment ; ^ or where he has notice aliunde of some jurisdictional 
 
 ' Beasly v. Dunn, 8 Rich. 346. ' Fisher v. McGirr, i Gray, i. 
 
 Walker v. Lowell, 28 N. H. 139. Barker v. Stetson, 7 Gray, 53. Kelly 
 
 Damon v. Bryant, 2 Pick. 411. Van v. Bemis, 4 Gray, 83. Piper v. Pear- 
 
 Etter V. Hurst, 6 Hill, 311. son, 2 Gray, 120. Clarke v. May, 2 
 
 ' Camp V. Wood, 10 Watts, 118. Gray, 410. Sullivan v. Jones, 2 
 
 ' Cable V. Cooper, 15 John. 152. Gray, 570. 
 
 * Painter v. Liverpool Gas Co., 3 ' Morse v. James, Willes, 122. 
 A. & E. 433. Clarke v. Holmes, i Allen v. Greenlee, 2 Dev. 370. Bar- 
 Doug. 390. Cable V. Cooper, i; ker's Widow v. Braham, 3 Wils. 376. 
 John. 157. Curry v. Pringle, 11 Fisher v. McGirr, 1 Gray, i. Lin- 
 John. 444. Bigelaw v. Stearns, 19 coin v. Cross, 11 Wis. 91. Bully- 
 John. 39. more v. Cooper, 2 Lans. 71. Brown 
 
 ' Dynes v. Hoover, 20 How. 65. v. Compton, 8 Term. 424. Huddle- 
 Wise v. Withers, 3 Cranch, 331. ston v. Spear, 8 Ark. 406. French 
 Brown v. Compton, 8 Term. 424. v. Willet, 4 Bosw. 649. Stephens v. 
 Campbell v. Webb, 11 Md. 471. Wilkins, 6 Penn. 260. 
 Case of Marshalsea, 10 Coke, 68. « McGuinty v. Herrick, 5 Wend. 
 State v. McDonald, 3 Dev. 468. 240. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 219 
 
 ■defect which renders it void ; ^ or where the court could not in 
 any circumstance . have jurisdiction ;2 or if illegally issued;^ 
 where he perpetrates a fraud on the debtor by refusing to take 
 a certificate of appeal from a justice of the peace, which would 
 stay further proceedings, after he had agreed to call on the 
 justice, and receive it* When the original act of an officer in 
 the execution of civil process is unlawful, those aiding him in 
 the performance of it will be trespassers, though they act by 
 his command.^ Where the ignorance of the officer, if it exists, 
 is of the law, it is no excuse.^ 
 
 '§ I S3- When the Party issuing, or the Party in whose 
 Pavor it issues, is liable to the Debtor or other in- 
 jured Parties. — No execution of process can take place after 
 the day when it is made returnable ; and if the officer, by the 
 direction of the party in whose favor the writ issues, makes a 
 seizure after that day, the party directing, as well as the officer, 
 will be liable as trespassers,'' it being an abuse of process. Or 
 by causing it to issue on a satisfied judgment, there is no need to 
 prove malice.^ Or where, in an action against A, by mistake 
 an execution issues against the goods of B.'' So the attorney 
 
 , ' Grace v. Mitchell, 31 Wis. 533. Vail v. Lewis, 4 John. 450. Hag- 
 
 Batchelder v. Currier, 45 N. H 460. gerty v. Wilbur, 16 John. 287. Chase 
 
 'Parker v. Walrod, 16 Wend. 518. v. Oilman, 15 Me. 64. Snydacker v. 
 
 ' Howard v. Clark, 43 Mo. 344. Brasse, 51 111.. 357. Armstrong v. 
 
 Allen V. Greenlee, 2 Dev. 370. Case Dubois, i Abb. N. Y. App. 8. Hop- 
 
 of Marshalsea, 10 Coke, 76. Brown kins v. Smith, 7 J. J. Marsh. 263. 
 
 V. Compton, 8 Term. 424. Wilson v. Tummon, 6 Scott. N. R. 
 
 ' Poraeroy v. Crocker, 4 Chaiid. 894. Elder v. Morrison, 10 "Wend. 
 
 (Wis.) 174. Parsons v. Lloyd, 3 128. Collins v. Waggoner, i 111. 142. 
 
 Wils. 341. Grant v. Bagge, 3 East. McElhenny v. Wylie, 3 Strobh, 284. 
 
 128. * Brown v. Feeter, 7 Wend. 301. 
 
 * Streeter v. Frank, 4 Chand. Glover v. Horton, 7 Blackfd. 295. 
 <Wis.) 9. ° Jarmain v. Hooper, 7 Scott N. 
 
 * Hooker v. Smith, 19 Vt. 151. R. 663. Wally v. McConnell, 13 Q. 
 ' Grumon v. Raymond, I Conn. B. 903. Risely v. Ryle, 11 M. & 
 
 40. Martin v. Marshal, Hob. 63. W. 16. Collett v. Fosten, 2 H. & N. 
 
 Shergold v. HoUaway, 2 Str. 1002. 356. . Churchill v. Siggers, 3 E. & 
 
 Savacol v. Boughton, 5 Wend. 181. B. 929. Roret v. Lewis, 5 D. & L. 
 
 ' Devoe v. Elliott, 2 Caines, 243. 371. 
 
220 OF THE EXECUTION OF THE WRIT. [Chap. VII 
 
 who caused its issue will be liable.^ And a surety giving an in- 
 demnifying bond, if the seizure is illegal.^ A stranger who offi- 
 ciously undertakes to direct a seizure of property, and it is sold, 
 he is liable in place of the plaintiff.^ And a plaintiff who assigns 
 a judgment is liable for any act done by the assignee.* Or by 
 attending a sale of property wrongfully seized, and purchasing 
 part of it.^ Or by receiving the proceeds of a seizure made after 
 the return day.^ But where the plaintiff or creditor does not 
 control or direct the course of an officer, but requires him to pro- 
 ceed at his peril, and if the officer makes a mistake of law in 
 judging of his duty, whereby he becomes a trespasser, the party 
 is not affected by it, even when he receives the money coming by 
 such irregularity, although aware of the course pursued by the 
 officer. He is not liable unless he consents to, or adopts,- the 
 officer's course, or subsequently adopts it ; ' and a person as- 
 sisting at a legal seizure will not become liable by a subsequent 
 abuse of authority by the officer.^ Where a debtor tenders the 
 officer the amount of the judgment and sufficient to cover his 
 fees, and the officer refuses to accept it, but sells the property 
 in the presence of the plaintiff, who does not prohibit the sale, 
 he is liable for conversion of the property sold.^ Judicial offi- 
 cers, when assuming to act beyond the scope of their author- 
 ity, are responsible as trespassers.^" A justice of the peace 
 who enters judgment and issues execution against a defendant 
 not served with summons, there being no return showing such 
 
 ' Rowles V. Senior, 8 Q. B. 777. " Wheelock v. Archer, 26 Vt. 
 
 ' Davis V. Newkirk, 5 Denio, 92. 380. 
 
 ' Youngs V. Moore, 7 J. J. Marsh. ' Tiffany v. St. John, 5 Lans. 
 
 646. 153. 
 
 * Hodges V. Biggs, 2 A. K. Marsh. "" Blood v. Sayre, 12 Vt. 609. 
 
 220. Houlden v. Smith, 14 A. & E. (N. 
 
 » Deal V. Bogue, 20 Penn. 228. S.) 841. Pease v. Clator, i B. & S. 
 
 ' Murray v. Binninger, 3 Abb. N. 658. Revill v. Petit, 3 Met. (Ky.) 314. 
 
 Y. App. 336. Gaboon v. Speed, 2 Jones, 333. 
 
 ' Hyde v. Cooper, 26 Vt. 552. Knowles v. Davis, 2 Allen, 61. Piper 
 
 Hopkins v. Smith, 7 J. J. Marsh, v. Pearson, 2 Gray, izo. Wise v. 
 
 263. Wilson v. Tummins, 6 Scott Withers, 3 Cranch, 331. 
 N. R. 894 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 221 
 
 service and no appearance by the defendant, is liable for acts 
 done under the execution.^ 
 
 § 154. The Right to demand Indemnity before levying 
 AN Execution. What Creditors are preferred when an 
 Officer is indemnified. Verbal Promise, when suffi- 
 cient. — An officer has the right to require a bond of indem- 
 nity before seizing goods not in possession of the debtor, but 
 in the possession of third persons ; or where he doubts that it 
 is subject to- levy and sale ; or where there are conflicting 
 claims to it.^ The object of this proceeding is for the protec- 
 tion of the officer in making a levy upon property which, if 
 belonging to any person other than the debtor, he is liable to 
 such person for, in an action against him to recover the value 
 of the property taken. Where there are several creditors, 
 some of whom refuse to furnish indemnity, the officer may 
 decline acting for those not furnishing, relinquish his levy, and 
 proceed only for those who indemnify, and incur the responsi- 
 bility.^ If a levy is relinquished on account of a failure to give 
 an indemnifying bond, it destroys the lien on the property.* 
 There is no implied promise of indemnity when an officer 
 levies on the goods 'of a stranger without authority or special 
 instructions to do so.^ Where an officer is forbidden by a 
 claimant to sell property on execution, and a creditor promises 
 to indemnify him, if the parties are in good faith, seeking to 
 •enforce a legal right, such promise is valid, and may be en- 
 forced.^ An officer is not authorized to surrender property 
 levied upon, or require a bond of indemnification, unless claim 
 is made to the property levied on substantially as required by 
 
 ' Inos V. Winspear, 18 Cal. 397. Neville, 36 Cal. 455. Minter v. Bige- 
 
 Tobin V. Addison, 2 Strobh, 3. low, 9 Porter, 481. 
 
 ^ King V. Bridges, 7 Taunt. 294. ' Smith v. Osgood, 46 N. H. 178. 
 
 Burr V. Freethy, I Bing. 71. Shriver Davidson v. Dallas, 8 Cal. 227. Lor- 
 
 ■v. Harbaugh, 37 Penn. 399. Cham- ing v. Neville, 36 Cal. 455. Pickards 
 
 -berUin v. Beller, 18 N. Y. 115. v. Peters, 3 Ala. 493. 
 
 Board v. Helm, 2 Met. (Ky.) 500. * Gotten v. Thompson, 25 Ala. 671. 
 
 3all V. Pratt, 36 Barb. 402. Smith ' Fitler v. Fossard, 6 Penn. 540. 
 
 V. Cicotte, II Mich. 383. Smith v. ' Stark v. Ranney, 18 Cal. 622. 
 
 •Osgood, 46 N. H. 178. Loring v. Thompson v. Coleman, i South. 216. 
 
222 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 Statute.^ In Kentucky a bond taken after the sale will not 
 protect the officer, if he is otherwise a trespasser.^ In exe- - 
 cuting writs in favor of different creditors, where each one 
 furnishes a bond for his protection, he is the agent of each ; 
 and if the property does not belong to the debtor, he must 
 look for indemnity to the one for whose benefit he sells.^ If 
 an officer, before releasing property of which he has doubts as 
 to the ownership thereof, summons a jury (in those states 
 where this mode of procedure is provided for in questions of 
 this nature) to try the right of property (if the title is found to 
 be in a stranger to the action), it will be a protection to him if 
 he returns the writ unsatisfied, if he acts in good faith, and no 
 indemnity is offered him.* But where the verdict is against 
 the claimant of the property in a trial of this kind, it is no pro- 
 tection to the officer if he proceed to sell' the property. The 
 proceedings in such a trial not being judicial, they are not even 
 admissible as evidence in his favor.® Where the officer is pro- 
 tected by the creditor, who furnishes him with a bond of in- 
 demnity, he is bound to proceed, and make the money out of 
 the property.^ Offering to give the officer indemnity does not 
 compel him to levy." The giving of an indemnity bond neither 
 lessens nor adds anything to his obligations or duties ; nor 
 will it justify him in making an illegal seizure.^ He is bound 
 to perform his duty without a bond,^ and is liable for failure to 
 levy if the debtor has property.^" 
 
 ' Bradley v. Holloway, 28 Mo. i8g. Sheldon v. Loomis, 28 CaL 
 
 150. 122. Bailey v. Bates, 8 John. 143. 
 
 '•' Carrington v. Herrington, 4 Townsend v. Phillips, 10 Wend. 98. 
 
 Bush. 550. Phillips v. Harris, 3 J. J. Marsh. 121. 
 
 " Davidson v. Dallas, 8 Gal. " Williams v. Lowndes, i Hall, 
 
 227. 179. Curtisv. Patterson, 8 Cow. 651. 
 
 ' Smith V. Cicotte, 11 Mich. 383. Piatt v. Sherry, 7 Wend. 236. 
 Plattv. Sherry; 7 Wend. 236. Strong ' Commonwealth v. Watmough, 6 
 
 V. Patterson, 6 Cal. 156. Townsend Whart. 117. Warren v. Edgerton, 
 
 V. Phillips, 10 Wend. 98. Vancleef 22 Vt. 199. 
 
 V. Fleet, 15 John. 147. Bailey v. * James v. Thompson, 12 La. 174. 
 Bates, 8 John. 143. ' Bosley v. Farquar, 2 Blackfd. 61. 
 
 ' Perkins v. Thornburgh, 10 Cal. '" State v. Sandlin, 44 Ind. 504. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 223 
 
 § 155. The Authority of the Officer, in the Execu- 
 tion OF Final Process, to enter Dwelling-houses. — It 
 is laid down as a general rule of law that an officer, in exe- 
 cuting any judicial writ, cannot break open the door of a 
 dwelling-house. This privilege which the law grants to a 
 man's habitation arises from the great regard it has to every 
 man's safety and quiet ; and it therefore protects him from 
 those inconveniences which must necessarily attend an unlim- 
 ited power in the officers of the law in this respect. Hence it 
 is, Debet sui cuique domus esse per fugium tutissi ntum ; or, 
 " Every man's house is his castle." ^ But this privilege is con- 
 fined to those who are owners of the house, which is not the 
 sanctuary of a stranger ; and the privilege of the outer door 
 belongs only to one door, and not to the others, although be- 
 longing to the separate apartment of lodgers.^ Nor can he 
 open the door, though it be only latched. Lifting the latch, 
 and thus opening the outer door, is such a forcible breaking 
 as the law forbids to an officer holding civil process. What 
 would be a breaking of the outer door in burglary is equally a 
 breaking by an officer in .the execution of process.^ Nor can 
 he knock, and, when the door is slightly opened, thrust it in 
 with violence ; or a window ; or enter when the family are 
 absent, against the known wishes of the occupant.* It has 
 been good cause for setting aside seizures, where an officer 
 forcibly breaks into a house to execute a writ ; but the officer 
 will hold the property, and the only remedy a party has is of 
 
 • Semayne's Case, 5 Co. 91. Sny- Semaine v. Gresham, Cro. Eliz. 908. 
 
 dacker V. Brasse, 51 111. 357. Boggs Bishop v. White, Cro. Eliz. 759. 
 
 V. Van Dyke, 3 Harring. 288. Cur-' Ratcliffe v. Burton, 3 B. & P. 223. 
 
 tis V. Hubbard, i Hill, 336. Keith Lee v. Gansell, Cowp. I. Haggerty 
 
 V. Johnson, i Dana, 605. Closson v. v. Wilber, 16 John. 228. Bucken- 
 
 Morris, 47 N. H. 482. State v. Hook- ham v. Francis, 1 1 Moo. 40. Curtis 
 
 er, 17 Vt. 659. Hooker v. Smith, 19 v. Hubbard, i Hill, 336. 
 Vt. 152. People V. Hubbard, 24 * State v. Armfield, 2 Hawks, 246. 
 
 Wend. 369. Cooke's Case, W. Jones, 429. Cur- 
 
 ' Lee V. Gansell, Loft. 374. tis v. Hubbard, i Hill, 336. Walker 
 
 ' Penton v. Brown, i Keh. 698. v. Fox, 2 Dana, 404. 
 
224 OF THE EXECUTION OF THE WRIT. [Chap. VIZ. 
 
 trespass against him.^ An outhouse or barn in close proxim- 
 ity to the dwelling-house is under its protection ; but if it 
 stands a distance from the house, the privilege of the house 
 does not extend to it.^ Where the door of the debtor's house 
 is open, the officer may enter the house and seize his goods ; 
 or the house of a stranger ; and by night or by day, if the door 
 be open. But if it be the house of a stranger, he ought to 
 inform the party that the property is there ; and, having 
 gained peaceable entrance at the outer door, he may break 
 open the window of a person residing in the house of another, 
 if such person refuses to open the door of his apartment after 
 being informed by the officer that he has process to execute 
 against him ; ^ or he may break open any inner door or trunk 
 to take the goods.* Under an execution the officer cannot, on 
 suspicion of finding the debtor's goods, enter the house of a 
 stranger, but he may enter the house of a debtor. His justifi- 
 cation in entering the debtor's dwelling does not depend upon 
 the fact of his finding or not finding the debtor's goods, and for 
 the plain reason that the- most probable place to find the debt- 
 or's goods is in the house where he dwells." If the goods of the 
 debtor be secreted in the store, warehouse, or dwelling-house 
 of a third person, or are taken to the house of another to avoid 
 their being taken on execution, the rule is then changed, and 
 the privilege relates only to such writs as affect himself, and 
 not strangers ; and the officer will be justified in breaking 
 open the door for the purpose of seizing them by due process 
 of law, at night as well as by day, if, after a request made by 
 the officer for the goods, or admittance into the house to take 
 the goods, he is refused it by the proper person.* But he does 
 
 ' Semayne's Case, 5 Co. 91. v. Brasse, 51 111. 357. Williams v. 
 
 » Penton v. Brown, i Sid. 186. Spencer, 5 John. 352. 
 
 Haggerty v. Wilber, 16 John. 287. ° Cook v. Birt, 5 Taunt. 769. 
 
 ^ Lloyd V. Sandilands, 2 Moore, ' FuUerton v. Mack, 2 Aik. 415. 
 
 207. Burdett V. Abbott, 14 East. I.' Douglass v. State, 6 Yerg. 525. Piatt 
 
 Ratcliffe V. Burton, 3 B. & P. 223. v. Brown, 16 Pick, 553. DeGraiFen- 
 
 * Rex V. Bird, 2 Show. 87. State reid v. Mitchell, 3 McCord, 506. 
 
 v.Thackman, i Bay. 358. Snydacker Burton v. Wilkinson, 18 Vt. 186. 
 
Chap. VII.] OF THE EXECUTION OF THE WRIT. 225 
 
 this at his peril, in entering the house of a stranger, unless he 
 actually finds therein goods of the debtor which are liable to 
 be taken on execution.^ If the party imprison his deputies, or 
 he makes a seizure in a house, he may break open the outer 
 door to get either out of the house.^ Goods may be taken 
 through the windows if open ; and a seizure of a part of the 
 ^oods in a house, in the name of the whole, is a good seizure 
 of all. But the absolute property of the goods to be taken 
 must be in the debtor ; and therefore if the officer takes the 
 goods of a stranger, though the plaintiff assures him they are 
 the debtor's, he is a trespasser, for he is obliged at his peril to 
 take notice whose the goods are. If, when he comes to seize 
 property, he breaks down a fence when he might have gone 
 through the gate, he is guilty of trespass, but not if he is 
 threatened by the owner, that if he enters the gate, he will 
 take his life. But in a writ of seisin, or habere facias posses- 
 sionem in ejectment, the officer may justify breaking open the 
 outer door if he be denied entrance, for the intent of the writ 
 being to give the party full and actual possession, the officer 
 must consequently have all the power necessary for this end ; 
 besides, after judgment, the law does not regard the house as 
 belonging to the party in possession, but to the party who 
 has recovered it. An officer, when necessary, should summon- 
 the power of the county to aid him in the execution of final 
 process.^ 
 
 § 156. Indorsing Time of Receipt upon the Writ. ^ It 
 is necessary in many states, under the statute of frauds, that 
 the officer indorse upon an execution the exact time of its de- 
 livery to him, the hour and the day, and it is conclusive evi- 
 dence against him that it was ifi his hands for service at that 
 time.'* It is not required in Illinois,* and is regarded as merely 
 
 ' Johnson v. Leigh, i Marsh. 565. ' Sutton v. Allison, 2 Jones' L. 
 
 Stanhope v. Dawson, 2 Lutw. 1428. 339. 
 
 Cooke V. Birt, 5 Taunt. 765. Se- * Williams v. Lowndes, i Hall, 
 
 mayne's Case, 5 Co. 91. 574. 
 
 • ' Pugh V. Griffith, 7 A. & E. 827. » Chickering v. Failes, 26 111. 507. 
 White V. Wiltshire, 2 Rol. 137. 
 
 29 
 
226 OF THE EXECUTION OF THE WRIT. [Chap. VII. 
 
 directory in Alabama.^ If neglected, and it afterwards becomes 
 important to protect the lien of the creditor, it may be proven 
 by the same evidence that the creditor might prove it by 
 against the officer.^ 
 
 § 157. When an Execution can be set off. When not. 
 — Where an officer has in his hands at the same time twO' 
 executions belonging to the respective parties, he is empow- 
 ered to set off one execution against the other ; ^ but he can- 
 not set off the costs due to the attorney in the suit, for which 
 such attorney has a lien.* Where an officer has cross-execu- 
 tions put into his hands, and he is requested to set oflf one 
 against the other, he may require an indemnity ; but it is his 
 duty to malie the set-ofF, otherwise he will become personally 
 liable.^ It cannot be done in Alabama.® Or where stay of 
 execution has been ordered, one judgment cannot be set off 
 against another ; ^ nor where an appeal from one of them is 
 still pending and undetermined.^ To permit a set-off under 
 such circumstances would be a violation of the rule, that both 
 causes of action must be mutual subjects of set-off against 
 each other, and be certain and determinate. The order to be 
 entered must be, that the judgment be absolutely set off, not 
 merely in case one be not reversed on appeal, which it is mani- 
 fest could not be done. 
 
 Having shown how final process is to be executed, by whom, 
 when, &c., we . now come to the execution of the writ after it 
 comes to the hands of the proper officer, and the time of its 
 receipt has been indorsed by him on the writ ; which proceed- 
 ing is known as the Levy, and will be considered in another 
 chapter. 
 
 ' Hester v. Keith, i Ala. 316. ' McGlinchy v. Hall, 58 Me. 152. 
 
 " Fletcher v. Pratt, 4 Vt. 182. Leathers v. Carr, 24 Me. 351. 
 
 Hester v. Keith, i Ala. 316. » Brazeal v. Smith, 5 Ala. 206. 
 
 ' Culver V. Pearl, i Tyler, 12. ' Best v. Lawson, I Miles, 11. 
 
 * Djinklee v. Locke, 13 Mass. ' De Figaniere v. Young, 2 Rpb. 
 
 525. 670. 
 
Chap.VIII._1 the levy ON PERSONAL PROPERTY. 227 
 
 CHAPTER VIII. 
 
 OF THE LEVY ON PERSONAL PROPERTY. 
 
 What a Levy is. — Duty of Officer in Regard to Levy. — Exe- 
 cutions against Principal and Surety., several Defendants. 
 
 — How a Levy is made. — What constitutes a Valid Levy. — 
 What is Evidence of a Levy. — Right of Debtor to designate 
 Property to be taken. — What is sufficient Levy as against 
 Debtors., Third Persons. — When a Levy will be sustained. 
 
 — What -will avoid it. — What is an Invalid Levy. — What 
 Levies are void. — Setting aside Levies. — Excessive Levies; 
 what are, are not. — One Levy only allowed. — When an 
 Additional Levy may be made. — Effect of a Levy: vests 
 Property in Officer ; Custody of Law. — When it enures to 
 other Writs. — Effect of a Release after Levy. — Effect of 
 a Levy as a Satisfaction of the Judgment. — When it is, 
 when not. — Of the Care of Property after Levy, 
 
 § 158. Of the various matters connected with the issue and 
 execution of final process there is no one step in the proceed- 
 ing of more or greater importaince than the levy. It is impor- 
 tant not only as to the quantity of property levied upon in 
 order to satisfy the debt, but to the plaintiff in the execution 
 as to the responsibility of the officer to the amount of the 
 execution, to the debtor or defendant for the payment and 
 satisfaction of his debt, and to third persons or strangers to 
 the action in regard to property claimed or owned by them, 
 and in the care and custody of property after levy. As to 
 what may be levied upon under and by virtue of an execution 
 is a matter of purely statutory regulation in each state. But 
 as to the levy, what constitutes one, how made, the validity, 
 &c., are questions of law that have been adjudicated by the 
 
228 THE LEVY ON lChap. VIII. 
 
 courts of last resort in England and in almost every state in 
 the Union. To levy is to collect by execution. Executions 
 are usually indorsed with a direction to the officer to levy so 
 much money ; to take or seize in execution ; to apply an exe- 
 cution to property ; to subject property to the operation of an 
 execution ; — a taking or seizure of property under execution . 
 by the officer to whom the writ is directed ; a taking of per- 
 sonal property in execution as preliminary to a sale; the 
 application of a writ of execution to the property of the party 
 named in the writ. A levy is the act of taking possession of 
 the property of a person condemned by the judgment of a 
 competent tribunal to pay a certain sum of money, by a sheriff, 
 constable, or other officer lawfully authorized thereto by virtue 
 of an execution for the purpose of having such property sold 
 according to law to satisfy the judgment. The seizure is com- 
 plete as soon as the goods are within the power of the officer. 
 It is the seizing and reducing property to possession.^ A levy 
 upon personal property is the act of taking possession of it, or 
 seizing it ; or where the officer takes control of the property 
 of the judgment debtor by virtue of an execution against him, 
 for the purpose of selling the same and converting it into 
 money ; and is one of the steps towards fulfilling the mandate 
 of the court from whence the execution issued. By the taking 
 of such property the lien of the execution becomes perfect, and 
 it is beyond the reach of other process while so held. The 
 terms levy and sale, when used with reference to judicial pro- 
 ceedings in civil cases, are equivalent to the word execution.^ 
 § 1 59- Of the Duty of the Officer in Regard to the 
 Levy. — Upon the delivery of an execution to an officer, he 
 should examine the writ, and ascertain w'hether it is regular 
 on its face, and that the party against whom it issues is cor- 
 rectly named in the writ. While he may know the party for 
 whom it is intended, and takes the property of the debtor, still 
 he may be liable in an action against him by seizing property 
 of a party not named in the writ.^ If the writ is regular, and 
 
 ' Leach v. Pine, 41 111. 66. ' Comms v. Wan-zap-pe-che, 3 Kans. 3661 
 ' Farnham v. Hildreth, 22 Barb. 277. 
 
Chap. \'III.] PERSONAL PROPERTY. 22& 
 
 the party rightly named in it, it is the duty of the officer, in 
 case such party fails to pay the amount which the officer is 
 directed to collect on the execution, to proceed to execute the 
 writ according to its command, and for this purpose to make 
 a levy upon the goods and chattels of such debtor, sufficient 
 to pay the amount which he is directed to collect upon the 
 execution, with his fees, interest, and costs, if so much property 
 of the debtor can be found within his county.^ But he cannot 
 levy on property outside of his county.^ There is no restric- 
 tion upon an officer making a levy by virtue of an execution as 
 to the amount of property he shall take, nor is he required to 
 levy upon all the property at the same time.^ An additional 
 levy may be made, if necessary, without waiting for the sale.* 
 His duties being purely ministerial, he should, when a writ is 
 placed in his hands, proceed to make the levy, leaving the 
 debtor to assert his rights, if he has any.^ He is not bound to 
 regard the equities subsisting among the debtors.^ A bare 
 suspicion that there might be some difficulty with regard to 
 the title of property pointed out to him does not justify him 
 in refusing to levy. His neglect to levy is at liis own peril.'' 
 If the debtor is absent, and cannot be notified, he must levy 
 on all property not specifically exempt, and permit the debtor 
 to make his selection afterwards.® In many states a demand 
 of payment is necessary before a levy can be made ; it is not 
 necessary in others.^ All that is required of the officer in the 
 execution of process is, that he shall in good faith make a rea- 
 
 ' Pitcher v. King, 13 L. J., N. .S., » Rogers v. Silas, 42 Ga. 54. Pat- 
 
 Q. B. 162. Spicer v. Myers, 47 Ga. ton v. Hammer, 28 Ala. 61S. 
 559. Griffin v. Thompson, 2 How. ' Rutland v. Pinge, 24 Vt. 181. 
 256. ' Marshall v. Simpson, 13 La. 
 
 ' Finley v. R. R. Co., 2 Rich. 567. 437. Peet v. Simpson, 13 La. 437. 
 
 Kinter v. Jenks, 43 Penn. 455. Din- Kellogg v. Monroe, 9 John. 300. 
 
 krave V. Sloan, 13 La. 393. People v. Palmer, 46 111. 398. Weld 
 
 ' Moses V.Thomas, 2 Dutch. 124. v. Bartlett, 10 Mass. 474. Young 
 
 Denvrey v. Fox, 22 Barb. 522. Van v. Hosmer, 1 1 Mass. 89. Patterson 
 
 Waggoner v. Moses, 2 Dutch. 570. v. Westervelt, 17 Wend. 543. 
 
 * Ind., &c., R. R. Co. v. Bradley, « People v. Palmer, 46 111. 398. 
 15 Ind. 23. Marshall v. Morris, 13 * Nichols v. McCall, 13 La. 215. 
 Ga. 185. 
 
230 THE LEVY ON [Chap. VIII. 
 
 sonable effort to execute it. If he were required to make all 
 possible effort in one case, he might thereby lose the oppor- 
 tunity of executing every other process in his hands. He is 
 to act in each case honestly and diligently, but with due regard 
 to his other duties.^ Reasonable diligence is all that is re- 
 quired.^ His discretion should be liberally construed.^ His 
 duties are generally defined by statute, which declare that, in 
 . respect to final process, it is to be executed by levying, &c., 
 and paying to the plaintiff or his attorney so much of the pro- 
 ceeds as will satisfy the judgment, &c. ; and if there be any 
 surplus, he shall return the same to the judgment debtor, or 
 the money to be brought into court, as the case may be. Such 
 statutes are to be construed in pari material It is the duty 
 of the officer to levy an execution upon the defendant's prop- 
 erty wherever it is found (if not exempt from seizure and sale 
 on execution) ; and although it may be in the possession, and 
 ostensibly the property, of another, if it proves to be the de- 
 fendant's, and he fails to levy upon it, he is liable to the plain- 
 tiff in the execution, especially if the property was pointed out 
 to him as liable to seizure. If he seizes and sells the property, 
 and it does not belong to the defendant, or is exempt, or has 
 been sold, assigned, or mortgaged, he is liable to the true 
 owner.^ Where the defendant owns sufficient property to pay 
 the judgment, he is prima facie liable for the whole amount, 
 if he fails to levy.^ .He must obey the mandate of an execu- 
 tion, unless otherwise directed by the plaintiff orchis attorney.^ 
 Where a writ is placed in his hands with directions not to do 
 anything until further orders, he is not bound to take notice 
 
 '. Ashby V. Gill, 14 B. Mon. 20. State v. Moore, 19 Mo. 369. State 
 
 ' Bank of Rome v. Curtis, I Hill, v. Farmer, 21 Mo. 160. 
 
 275. • Wdd V. Bartlett, 10 Mass. 474. 
 
 ' Todd V. Hoagland, 36 N. J. 352. Young v. Hosmer, 1 1 Mass. 89. 
 
 < Wilson V. Broder, 10 Cal. 486. Kellogg v. Monroe, 9 John. 300. 
 
 ' Emanuel v. Cocke, 6 Dana, 212. Patterson v. Westervelt, 17 Wend. 
 
 Williams v. Lowndes, i Hall, 579. 543. 
 
 Stephens v. Lawson, 7 Blackfd. 275. ' Patton v. Hammer, 28 Ala. 618. 
 
 Camp V. Chamberlain, j Denio, 198. S. C, 33 Ala. 307. Hill v. Pratt, 29 
 
 James v. Thompson, 12 La. 174. Vt. 119. 
 
Chap. VIII.] PERSONAL PROPERTY. 231 
 
 of any orders given on Sunday.^ If the officer is informed of 
 the danger of delay, and is directed to make immediate service 
 ■of tlie writ, he is bound to follow such instructions, or, on fail- 
 ure, is answerable for the consequences.^ An officer has no 
 authority to receive specific property in satisfaction of an exe- 
 cution.^ He cannot levy on goods and real estate at the same 
 time ; the proper proceeding in each mode would prima facie 
 satisfy the execution.* If the writ is received too late to make 
 a sale before the return day, he is bound to make a levy and 
 return the execution, setting up want of time as an excuse.^ 
 A levy may be made, though the officer is prevented from 
 selling.^ The officer, as soon as a levy is made, should indorse 
 it on the execution ; it is irregular to include it in the return.' 
 It should show that the levy was made within the life of the 
 writ, and it should be distinct and specific.^ Before it can be 
 sold, the property must be seized.® Nor can the property be 
 released after levy, unless the claim is made in accordance 
 with the statutory requirements in such cases. ^^ But if the 
 •officer ascertains that the debtor has no interest whatever in 
 the property seized, it is his duty to stop all further proceed- 
 ings under the levy." Property outside of his bailiwick cannot 
 be levied upon by him.^ Levies are preferred according to 
 their priorities, and must be executed by the officer in the 
 order of the reception of the writs in his hands ; that is, he 
 must execute that one first which was first delivered to him.^^ 
 
 ' Stern's Appeal, 64 Penn. 447. " Finley v. R. R. Co., 2 Rich. 567. 
 
 ^ Tucker v. Bradley, 15 Conn, 50. Kinter v. Jenks, 43 Penn. 485. 
 
 Pierce v. Partridge, 3 Met. 44. '" Rust v. Pritchett, J Harring. 
 
 ' Bobo V. Thompson, 3 Stew. & 260. Walker v. Anderson, 31 Tex. 
 
 P. 385. 646. Knox V. Webster, 18 Wis. 406. 
 
 ■* Miller v. Miller, 25 Me. 1 10. Religious Society v. Hitchcock, 2 
 
 ° Smith V. Gilraore, 3 Sneed, 481. Browne, 333. Aubery v. Noland, 2 
 
 ° Smith V. Hughes, 24 111. 270. J. J. Marsh. 421. Wylie v. Hyde, 
 
 ' Douglass V. Whiting, 28 111. 362. 13 John. 249. Smallcorn v. Sheriffs, 
 
 " Davidson v.Waldron, 31 111. 120. &c., Comb. 428. Field v. Milburn, 
 
 ° Scott V. Scholey, 9 East. 474. 9 Mo. 492. Lash v. Gibson, I 
 
 Blount V. Mitchell, Taylor, 131. Murph. 266. McClellan v. Slinglufl^ 
 
 '" Bradleyv.Holloway,28Mo. 150. 7 W. & S. 134. Bragg v. State, 30 
 
 '' State V. Surgert, 22 Ark. 528. Ind. 427. See § 183. 
 
232 THE LEVY ON [Chap. Vlir. 
 
 On a judgment payable in instalments, a levy can only be 
 made for the instalment due at the time of the issue of the 
 execution.^ 
 
 § 1 60. Executions against Principal and Surety. Sev- 
 eral Defendants. How levied. — In many states, a surety 
 or indorser on a note is protected by statute providing that 
 the property of the principal, or maker, shall be primarily liable 
 for the satisfaction of the debt ; and it is the duty of the clerk 
 to indorse on the writ the character of the debtors. In such 
 cases the officer should collect the execution out of the prop- 
 erty of the principal, if it can be done without embarrassing 
 or delaying him in making the amount of the execution by the 
 return day of the writ. A surety or indorser, to protect his 
 own property from levy, must point out the property of his 
 principal, or so identify it that it can be levied on.^ But where 
 the principal has no property in the state out of which to make 
 the money, or it is in the custody of the law, or is encumbered, 
 or if by reason of the death of the principal it cannot be 
 reached without a revival of the judgment against the personal 
 representatives, or, for any other cause, it is not amenable t* 
 the immediate requirements of the process in the officer's 
 hands, he may immediately levy on the property of the surety.^ 
 But where the officer has no means of knowing who is pri- 
 marily liable, he is not bound, at his peril, to decide upon the 
 conflicting claims of the defendants to equities as between- 
 themselves. The party claiming to be surety, if he wishes tO' 
 have the writ enforced against the principal, must resort to 
 the equitable pov/ers of the court for an order on the officer 
 to subject the property of the principal to the satisfaction of 
 the judgment.* If execution is issued against several defend- 
 ants, the officer must first proceed against the; personal prop- 
 erty ; but he is not compelled to exhaust the personal effects 
 of all of them before proceeding against the land. He must 
 
 ' State V. Gemmill, i Houst. 9. ■• Bough ton v. Bank, &c., 2 Barb. 
 
 " Gibson v. Hughes, 7 Miss. 315. Ch. 463. Warren v. Edgerton, 2i 
 
 ^ Cheatham v. Brien, 3 Head. 552. Vt. 199. 
 Walker v. Gilbert, 21 Miss. 693. 
 
Chap. VIII.] PERSONAL PROPERTY. . 233 
 
 exhaust the personal property of those defendants whose land 
 he takes before proceeding against the land.^ Each debtor is 
 lialjle in solido, and the officer is not bound to regard any 
 equities subsisting between them, or between them and the 
 creditor. Therefore, where he is about to levy upon the land 
 of one of several execution debtors, he is not required to re- 
 gard the offer of such debtor to expose to him personal prop- 
 erty of his co-debtors, and to indemnify him for levying the 
 writ for the entire amount on such personal property .^ Where 
 a judgment has been recovered by a creditor against the exec- 
 utor of the debtor's surety, a levy may be made on the execu- 
 tor's property, notwithstanding an injunction restraining the 
 creditors generally of the principal debtor from proceeding 
 against him at law.^ 
 
 § i6i. How A Levy is made. — A levy must be made so 
 as to vest in the officer the special ownership of the property, 
 so as to enable hirn to bring an action for it if taken from 
 him ; and to make him liable for a wrongful seizure, if it were 
 not for the protection which the law affords the officer under 
 the process by which the levy is inade.* It must be made so 
 that it will be good against the party defendant, purchasers in 
 good faith, and subsequent execution creditors. For if, through 
 the carelessness or error of the officer, the seizure is invalid as 
 to any party, so that the rights of the party in whose favor or 
 for whose benefit the execution issues be lost or prejudiced, 
 or if he fails to take an amount of property sufficient to satisfy 
 the sum mentioned in the writ, where the party has sufficient 
 property at the time the levy is first made, the officer is liable 
 to him to the extent of the loss or damag6 sustained. Enough 
 property should be taken in the first instance to satisfy the 
 writ. In determining the amount necessary for that purpose, 
 the probable sacrifice which all property is subject to at forced 
 sale should be considered by the officer.^ Great discretion is 
 
 ' Faris v. Banton, 6 J. J. Marsh. * Allen v. McCalla, 25 la. 464. 
 235. Crowder v. Sims, 7 Humph. Bryan- v. Bridges, 6 Tex. 137. Portis 
 375. ■ V. Parker, 8 Tex. 23. 
 
 ' Warren v. Edgerton, 22 Vt. 199. ° French v. Snyder, 30 111. 339. 
 
 • Beall V. Osborn, 30 Md. 8. GrifBn v.- Ganaway, 8 Ala.. 625. 
 
 30 
 
234 
 
 THE LEVY ON 
 
 [Chap. VIII. 
 
 left to the officer in fixing the value of property taken.}/ The 
 officer must enter on the premises where the goods axcr^cSS 
 take possession of them if that be practicable ; if not, he must 
 openly and unequivocally assert his title to them by virtue of 
 his execution.^ They must be brought within his view, and 
 be subject to his power or control, at the time it is made.^ An 
 actual seizure, or manual caption, is not absolutely essentialiJ 
 His acts must be open and unequivocal, without concealing 
 the transaction.^ An inventory should be made of the prop- 
 erty seized by the officer for his own protection, and to sustain 
 the dona fides of the transaction, as well as being a means of 
 identification of the property in case of doubt or litigation con- 
 cerning it ; but it is not essential to the validity of a levy that 
 an inventory be made.^ The seizure is complete as soon as 
 
 > Todd V. Hoagland, 36 N. J. L. 
 352. Harrison v. Harwood, 31 Tex. 
 650. 
 
 ^ Roth V. Wells, 29 N. Y. 471- 
 Havely v. Lowry, 30 111. 446. Bryan 
 V. Bridges, 6 Tex. 137. Portis v. 
 Parker, 8 Tex. 23. Allen v. Mc- 
 Calla, 25 la. 464. Davidson v. 
 Waldron, 31 111. 120. Artisans' Bank 
 V. Treadwell, 34 Barb. 533. Prince- 
 ton Bank v. Crozer, 2 N. J. 383. 
 Dutertre v. Driard, 7 Cal. 549. Levi 
 V. Sliockley, 29 Ga. 710. Banks v. 
 Evans, 17 Miss. 35. Brown v. Lane, 
 19 Tex. 203. Leach v. Pine, 41 111. 
 66. Logsdon v. Spivey, 54 111. 104. 
 Westervelt v. Pickney, ' 14 Wend. 
 123. Scott V. Scholey, 9 East. 474. 
 Blount V. Mitchell, Taylor, 131. 
 Banks v. Evans, 18 Miss. 35. 
 
 ' Cary v. Bright, 58 Penn. 70. 
 Chittenden v. Rogers, 42 111. 400. 
 Linton v. Ford, 46 Penn. 294. Dun- 
 can's Appeal, 37 Penn. 500. Caw- 
 thorn v. McCraw, 9 Ala. 519. Min- 
 ium V. Sticker, I Edm. Sel. Cas. 356. 
 Lowrey v. Coulter, 9 Penn. 349. 
 
 Logsdon V. Spivey, 54 111. 104. 
 Barker v. Bininger, 14 N. Y. 271. 
 Bryant v. Strait, I Dud. (S. C.) 19. 
 Brown v. Pratt, 4 Wis. 513. Sleight 
 V. Leavenworth, 5 Duer, 122. Barnes 
 v. Billington, I Wash. 29. Wood 
 V. Van Arsdale, 3 Rawle, 405. 
 Burchard v. Reese, i Whart. 377. 
 Lewis V. Smith, 2 S. & R. 142. 
 
 * Barker v. Bininger, 14 N. Y. 271. 
 Very v. Watkins, 23 How. 469. Bond 
 V. Willett, 31 N. Y. 102. Pugh v. 
 Calloway, lo Ohio, S. 488. Logsdon 
 V. Spivey, 54 111. 104. Moss v. 
 Moore, 3 Hill (S. C.) 276. BuUett 
 V. Winston, i Munf. 264. Sheffield 
 V. Key, 14 Ga. 528. Hill v. Harris, 
 10 B. Mon. 120. 
 
 ' Beekman v. Lansing, 3 Wend. 
 446. Haggerty v. Wilber, 16 John. 
 288. Ray V. Harcourt, 19 Wend. 
 49J. Lewis v. Smith, 2 S. & R. 142. 
 Barnes v. Billington, i Wash. C. C. 
 29. Lloyd V. WycofF, 6 Halst. 218. 
 Davidson v. Welden, 31 111. 120. 
 
 ' Watts V. Cleveland, 3 E. D. 
 Smith, 553. Pugh v. Calloway, 10 
 
Chap. VIII.] PERSONAL PROPERTY. 235 
 
 the goods are in the power of the officer.^ A seizure is taking 
 possession.^ There must be possessory acts to indicate a levy; 
 or it must be asserted by word of mouth/ so that(the test of a 
 valid levy is, whether enough has been done by the officer to 
 subject him to an action of trespass but for the protection of 
 the execution^ An actual taking does not imply an actual 
 touching of the property, but merely such a course of proceed- 
 ing as is calculated to reduce it to the dominion of the law ; 
 and an assertion made by an officer, that he levies or takes 
 property by virtue of a writ in his possession, if the property 
 is within his view, or where he can, if necessary, take it into 
 his custody, is an actual taking possession of the property ; * 
 or if he exercises that dominion over the property which own- 
 ers ordinarily do.^ It is not necessary to its validity that the 
 owner of the property should assent to it.® But where the 
 species of property is such that actual possession cannot be 
 taken, as a growing crop, then some notorious act, as nearly 
 equivalent to actual seizure as practicable, must be substituted 
 for it. Hence, in levying upon a growing crop, the officer 
 must go to the premises, and announce that he seizes the crop 
 
 Ohio, S. 488. Weidensaul v. Rey- 123. Beekman v. Lansing, 3 Wend. 
 
 Holds, 49 Penn. 73. Barnes v. Bil- 446. Camp v. Chamberlain, 5 Denio, 
 
 lington, I Wash. C. C. 29. Beekman 198. Havely v. Lowry, 30 111. 446. 
 
 V. Lansing, 3 Wend. 446. Greene Davidson v. Walden, 31 111. 120. 
 
 V. Burke, 23 Wend. 490. Spoor v. McBurnie v. Overstreet, 8 B. Mon. 
 
 Holland, 8 Wend. 445. 303. Carey v. Bright, 58 Penn. 70. 
 
 ' Bullett V. Winston, I Munf. 264. Allen v. McCalla, 25 la. 464. Minor 
 
 Wood V. Van Arsdale, 3 Rawle, 401. v. Herriford, 25 111. 344. Duncan's 
 
 Lloyd V. WycofF, 6 Halst. 218. Appeal, y] Penn. 500. Linton v. 
 
 " Gonbeam v. No. & M. R. R., 6 Ford, 46 Penn. 294. 
 
 Rob. 345. * Copley v. Rose, 2 N. Y. 115. 
 
 '' Minor v. Smith, 13 Ohio, 879. Barker v. Bininger, 14 N. Y. 270. 
 
 Elias V. Farley, 2 Abb. N. Y. Ct. Elias v. Farley, 3 Keyes, 391. Roth 
 
 App. II. Roth V. Wells, 29 N. Y. v. Wells, 29 N. Y. 471. Bond v. 
 
 471. Miller v. Streeter, 18 La. 56. Willett, 31 N. Y. 102. Greene v. 
 
 Bond V. Willett, 31 N. Y. 102. Arti- Burke, 23 Wend. 490. Lewis v. 
 
 sans' Bank v. Treadwell, 34 Barb. Smith, 2 S. & R. 142. 
 
 553. Dresser v. Ainsworth, 9 Barb. ' Rives v. Porter, 7 Ired. 74. 
 
 619. Price V. Shipps, 16 Barb. 585. • Artisans' Bank v. Treadwell, 34 
 
 Weslervelt v. Picknsy, 14 Wend. Barb. 553. 
 
236 THE LEVY ON [Chap. VIIL 
 
 to answer the exigencies of the writ ; ^ or call disinterested' 
 parties to witness his open assertion of the levy.^ It must be 
 made during the life of the execution,^ and should, whenever 
 possible, be made during the customary hours of doing busi- 
 ness, and not at midnight or other improper times, except in 
 cases where emergencies make it necessary.* In Minnesota, 
 a levy is defined by statute, and differs entirely from that at 
 common law ; and the statute mufft be sj:rictly followed, or it 
 will be void.^ Where the debtor makes an inventory of the 
 property, and hands it to the officer, it is not necessary for him 
 to see it in order to make a valid levy.® The giving of a forth- 
 coming bond is also equivalent to actual seizure.'^ If he levy 
 on notes which he takes into his possession, he may sue and 
 collect the same ; and a payment to him is a valid discharge 
 of the debt.^ To levy on bank bills, the officer must take them 
 into his possession.^ 
 
 § 162. What is Evidence of a Levy. — The law is silent 
 as to what shall constitute the evidence of a levy ; it will be 
 sufficiently regular if the memorandum of the levy be made 
 upon a separate piece of paper, and copied upon the writ before 
 its return ; and the advertisement of the officer may be used 
 as evidence of the levy.^" It need not be signed separately from 
 the return.^^ The indorsement on the writ is competent evi- 
 dence of it.^^ A judgment which determines its validity is final 
 on the subject until reversed.^' A levy made in writing, if it 
 
 ' State V. Poor, 4 D. & B. 384. ' Pugh v. Calloway, i Ohio, S. 
 
 ' Moore v. Fitz, 15 Ind. 43. 488. Roebuck v. Thornton, 19 Ga. 
 
 ' Arnold v. Fuller, 10 Ohio, 458. 149. 
 Cartney v. Reed, 5 Ohio, 221. ' Rohrer v. Turrill, 4 Minn. 407. 
 
 * State V. Thackham, i Bay. 358. " Princeton Bank v. Crozer, 2 N. 
 
 * Castnerv. Simonds, i Minn. 432. J. 383. 
 
 ° Walker v. Shotwell, 21 Miss. '" Duncan v. Matney, 29 Mo. 368. 
 
 544. Weatherby v. Covington, 3 " Miller v. Alexander, 13 Tex. 
 
 Strobh. 27. Jayne v. Dillon, 28 497. 
 
 Miss. 283. Caldwell v. Fifield, 4 " Loftin v. Hughes, 2 Dev. 10. 
 
 Zabriskie, 150. Dean v. Thacher, Spoor v. Holland, 8 Wend. 445. 
 
 3 Vroom, 470, Rhame v. McRoy, '" Sibley v. Rider, 54 Me. 463. 
 7 Rich. (S. C.) 37. 
 
Chap. VIII.] PERSONAL PROPERTY. 237 
 
 can be proved by parol, it is when no list of the property has 
 been made, or it has been lost, and proof of its loss must be 
 made, or when other property not included in the list has been 
 levied on.^ The date of it may be proved by parol,^ or the 
 proceedings at the time of the levy.' It may be controverted 
 where the property of defendant is taken, who claims to hold 
 it as trustee ; he may as trustee dispute it.* But it must be 
 such a seizure as would have been available.^ 
 
 § 163. Right of Debtor to designate what Property 
 SHALL BE taken. — In some states, the debtor has the right 
 in all cases to designate the property for levy ; but if he fails, 
 then the officer may proceed in the order prescribed by law. 
 In Texas, the debtor has the privilege of twice pointing out the 
 property he intends to surrender ; but on the third levy the 
 creditor has the right of designation. The levy of the officer 
 must be based on the act of the party who has the right to 
 ■designate the property, or it may be annulled. A valid levy 
 must first be disposed of before other property can be taken.^ 
 But the officer need not go out of the county to hunt the de- 
 fendant, in order to have the property pointed out.'^ In In- 
 diana, if the debtor does not, when called upon, designate the 
 property to be taken, but finally does before a levy is made, 
 the officer is not bound to let the creditor designate it* 
 
 § 164. What is a sufficient Levy as against the 
 Debtor and Third Persons. —\A levy may be good as 
 against the defendant, but not as to third persons ij as if he 
 dispenses with actual seizure.^" No great strictness being 
 necessary, a mere memorandum of the property, with the 
 assent of the debtor, will be good, though the property is not 
 
 ' Backus V. Danforth, 10 Conn. ' Rennett v. Lawrence, 15 Q. B. 
 
 297. Farmers', &c., Bank v. For- 1004. 
 
 -dyce, I Penn. 454. Gaither v. Mar- ° Bryan v. Bridges, 6 Tex. 137. 
 
 tin, 3 Md. 140. ' Cook v. Garza, 13 Tex. 431. 
 
 = Balch V. Pattee, 38 Me. 353. ' State v. Williss, 33 Ind. 118. 
 
 ' Spiller V. Nye, 16 Ohio, 16. .' Tafts v. Manlove, 14 Cal. 47. 
 
 * Fenwick v. Laycock, 2 Q. B. '" Trovillo v. Tilford, 6 Watts, 
 
 1108. 468. 
 
238 THE LEVY ON [Chap. VIII. 
 
 present, and the officer does not know where it is.^ As to 
 third persons, there can be no levy when the officer does not 
 know the subject of the levy ; as where he stands at the door 
 of a store, which is locked, and keeps others out.^ | In order 
 to be good as against third parties, the officer must take actual 
 or constructive possession of the property, or else some open, 
 unequivocal act should be done that would lead all persons to 
 know that the property was no longer in the custody of the 
 former owner, but in that of the law.^ ^ An entry upon an exe- 
 cution of a levy, and a paper attached thereto, signed by the 
 debtor, acknowledging a levy on the same property, is a good 
 levy, though the officer does not take possession* An inven- 
 tory and advertisement of the property for sale are good until 
 it is shown that the officer never saw it or had it in his pos- 
 session.^ All the stock in trade, of every kind and description, 
 of the defendant (naming him), now in the brick building, on 
 a street (named) between other named streets, including one 
 fire-proof safe and office fixtures.® A levy upon a certain num- 
 ber of bricks in a kiln '^ (on six hundred tons of railroad iron) 
 is sufficiently definite, and the whole quantity may be seized 
 and held by the officer until the amount levied on is separated 
 
 ' Butler V. Maynard, ii Wend. Brown v. Pratt, 4 Wis. 513. Mc- 
 
 548. Ray V. Harcourt, 19 Wend. Burnie v. Overstreet, 8 B. Mon. 303. 
 
 495. Trovillo V. Tilford, 6 Watts, Bond v. Willett, I Keyes, 377. Vaa 
 
 468. Wyck V. Pine, 2 Hill, 666. Ray v. 
 
 ' Herron v. Hughes, 25 Cal. 563. Harcourt, 19 Wend. 495. Butler v. 
 
 ' Minor V. Smith, 13 Ohio, S. 79. Maynard, 11 Wend. 548. Haggerty 
 
 Davidson v. Waldron, 31 111. 120. v. Wilber, 16 John. 288. Beekman 
 
 Linton v. Ford, 46 Penn. 294. Lewis v. Lansing, 3 Wend. 548. Wood v. 
 
 V. Smith, 2 S. & R. 142. Carey v. Van Arsdale, 3 Rawie, 405. Barnes 
 
 Bright, 58 Penn. 70. Davis v. Com- v. Billington, i Wash. C. C. 29. 
 
 mon wealth, 13 Penn. 160. Lowry v. Burchard v. Reese, i Whart. 377. 
 
 Coulter, 9 Penn. 369. Hawley v. * Rhame v. McRoy, 7 Rich.^ 
 
 Lowry, 30 111. 446. Pierce v. Roche, (S. C.) 37. 
 
 40 111. 292. Chittenden v. Rogers, ' Brewster v. Vail, i Spencer, 52- 
 
 42 111. 100. Blount v. Mitchell, 2 ° Zug v. Laughlin, 23 Ind. 170. 
 
 Hay. 65. Armes v. Taylor, 49 Me. ' Hill v. Harris, lo B. Mod. 
 
 381. Sheffy. Shockley, 29 Ga. 710. 120. 
 
Chap. VIII.] PERSONAL PROPERTY. 239 
 
 from a larger quantity and disposed of ; ^ while " Levied on 
 175,000 feet of lumber at Arlington " has been held void.^ 
 
 § 165. When a Levy will be sustained. — A levy will 
 be sustained if the ofiScer's return imports by necessary intend- 
 ment the actual performance of the statutory requirements ; ' 
 or where there i? a mistake by the officer in the indorsement 
 of his levy;* or for mere irregularities;® or where a levy is 
 for a sum not greater than the sum of the judgment and costs, 
 with interest, though there is nothing shown as to the amount 
 of interest added ; ^ or where a general execution issues in a 
 suit commenced by attachment, and the attached property 
 only is takep.'^ 
 
 § 166. What will avoid a Levy. — In some states it is 
 necessary that notice be given to a debtor that a levy has been 
 made ; if it is not given, the levy is void.^ But where the 
 property taken is not in the same county where the debtor's 
 residence is, no notice is necessary.® 
 
 § 167. What is an Invalid Levy as to Creditors and 
 Purchasers in Good Faith. — ^ A levy on a portion of the 
 debtor s property, including property not in view of the officer, 
 is good as to that which is in view ; but as to the balance it is 
 not, as to other creditors or purchasers in good faith.^") Or a 
 seizure outside of a building, and a claim of levy on alHnside." 
 Going on to the debtor's premises, and stating that he has a 
 writ against him, without announcing that he will make a levy, 
 
 ' Morgan v. Spangler, 14 Ohio, Hinson v. Hinson, j Sneed, 222. 
 
 S. 102. Jensen v. Woodbury, 16 la. 515. 
 
 ' Davidson v.Waldron, 31 III. 120. ' Harrison v. Caclielin, 35 Mo. 
 
 ' Brackett v. McKinney, 55 Me. 79. Harrison v. Choteau, 37 Mo. 
 
 504. 163. Harper v. Harper, 42 Mo. 
 
 * Perkins v. Spalding, 2 Mich. 124. Buchanan v. Atchison, 39 Mo. 
 
 '57- 503- 
 
 ' Jenks V. Ward, 4 Met. 404. '" Lowry v. Coulter, 9 Penn. 349. 
 
 " Parker v. Osgood, 3 Allen, 487. Van Wyck v. Pine, 2 Hill, 666. 
 
 ' Cabell V. Grubbs, 48 Mo. 353. Dubois v. Harcourt, 20 Wend. 41. 
 
 ' Helms V. Alexander, "10 Humph. Ray v. Harcourt, 19 Wend. 495. 
 
 44. Schultz V. Elliott, 1 1 Humph. Dresser v. Ainsworth, 9 Barb. 619. 
 
 183. Lafferty v. Conn, 3 Sneed, 221. " Haggerty v. Wilber, 16 John. 
 
 287. 
 
240 THE LEVY ON [Chap. VIII. 
 
 or taking any further proceedings in the matter. ■^ Or if made 
 in the name of the person for whose benefit the writ is alleged 
 to have been issued, instead of the name of the judgment cred- 
 itor.2 A levy and sale, under a judgment by confession, upon 
 an insufficient statement, as against creditors having liens on 
 the property.^ 
 
 § 1 68. What Levies are void. A levy made on property 
 that is not subject to levy on execution is void.* A levy after 
 the return day of the execution, as the authority of the officer 
 to seize is then at an end.* A levy made after the death of 
 the debtor.^ A levy made by an officer outside of his state or 
 bailiwick.'^ A levy on the land of a stranger.^ A levy made 
 without seeing the property,® on an execution signed after the 
 death of a justice of the peace, by one claiming to act as such, 
 who has no authority.-^'' A levy made after the commencement 
 of bankruptcy proceedings against the debtor.^^ A levy made 
 upon property substituted by agreement, after the return day, 
 for property levied on prior to that time.^ A levy upon prop- 
 erty outside the district or county of the officer holding the 
 €xecution.^^ 
 
 ' Camp V. Chamberlain, 5 Denio, Ross v. McCartan, i Brev. 507. 
 
 198. Cobb v., Cage, 7 Ala. 61 g. Love v. Gates, 2 Ired. 11. 
 
 Westervelt v. Pickney, 14 Wend. ' Arnold v. Fuller, I Ohio, 458. 
 
 123. ' Kinter v. Jenks, 43 Penn. 455. 
 
 ' MyrsoU v. Violette, 55 Me. 108. Runk v. SU John, 29 Barb. 585.' 
 
 ' Miller v. Earle, 24 N. Y. i lo. Finley v. R. R. Co., 2 Rich. 567. 
 
 * Thompson v. Ford, 7 Ired. 418. Dinkgrave v. Sloan, 13 La. 393. 
 Arnold v. Fuller, i Ohio, 458. Cart- * Howeth v. Mills, 19 Tex. 295. 
 ney v. Reed, 5 Ohio, 221. Jones v. Chambers v. Lewis, 28 N. Y. 454. 
 Williams, 2 Swan, 105. ° Cary v. Bright, 58 Penn. 84. 
 
 * McElwee v. Sutton, 2 Bail. 361. Duncan's Appeal, 37 Penn. 500. 
 Rangely v., Goodwin, 18 N. H. 287. Gllkey v. Dickerson, 3 Hawks, 293. 
 Gaither v. Martin, 3 ]\Id. 146. '" Perry v. Whipple, 38 Vt. 278. 
 Frellsen v. Anderson, 14 La. 6s. " Hall v. Whiston, 5 Allen, 126. 
 Gaines v. Clark, I Bibb, 608. Kem- " Shelton v. Westervelt, i Duer, 
 ble V. Harris, 36 N. J. L. 526. Ha- 109. 
 
 thaway v. Howell, 54 N. Y. 113. " Finley v. R. R. Co., 2 Rich. 
 Prescott v. Wright, 6 Mass. 23. 567. Dinkgrave v. Sloan, 13 La. 
 West V. Shockley, 4 Harring. 287. 393. Kinter v. Jenks, 43 Penn. 455- 
 
Chap. VIII.] PERSONAL PROPERTY. 241 
 
 § 169. Setting aside Levies. — Levies may be set aside 
 by the courts out of wliich the execution issues, each court 
 having control over its own process ; and will be set aside for 
 irregularities, on motion made to such court; as where a writ 
 is not subscribed by the party or his attorney, when required 
 by statute.^ Where the debtor has a right to elect whether a 
 levy shall be made on personal or real property, and the right 
 is not accorded to him ; ^ or if levied on property in the hands 
 of a receiver by judicial authority ; * or if levied on exempt 
 property ; * or where the goods of a discharged bankrupt are 
 taken, but notice must be given to the creditor, so that he may 
 show that the debt is not satisfied by the discharge ; ^ or for 
 some ground affecting the validity of the judgment, or the 
 regularity of process, on which the seizure is made.^ The levy 
 can only be set aside by sale, agreement of the parties, the 
 plaintiff, or by order of court.' A debtor cannot avoid a levy 
 for defects not injurious to him'; and the creditor must adopt 
 it in toto or not at all.^ The proper remedy for any vagueness 
 or uncertainty, or other defect in the description, is by amend- 
 ment. An application to set aside a levy is discretionary with 
 the court out of which the writ issues, and if refused, is not 
 reviewable in an appellate tribunal ; ® its effect, when set aside, 
 is the same as though it had never been made.^" Any radical 
 defect in a levy made during the life of a defendant cannot be 
 cured after. his death." 
 
 •§ 170. Excessive Levies; what are, what are not. 
 Effects of. — ,In determining the sufficiency of a levy, the 
 officer must exercise his own discretion and judgment ; and if 
 
 ' Bonesteel v. Orvis, 23 Wis. 506. ' Smith v. Hughes, 24 111. 270. 
 
 ' Pitt V. McGee, 24 111. 210. ' Paine v. Webster, i Vt. 129. 
 
 Bryan V. Bridges, 6, Tex. 137. • Lewis v. Amor, 3 Penn. 460. 
 
 ' Robinson v. R. R. Co., 66 Penn. Skidmore v. Bradford, 4 Penn. 296. 
 
 160. Bliss V. Guslow, 3 Ohio, 269. 
 
 * Jopes V. Williams, 2 Swan, 105. "• Patton v. Sheriff, &c., 2 Ohio, 
 ■ • Linn v. Hamilton, 34 N. J. L. 395. 
 
 305. " Campau v. Barnard, 25 Mich. 
 
 • Boyd V Harris, I Md. Ch. 466. 381. 
 
 31 
 
242 THE LEVY ON [Chap. VIII. 
 
 he fails to levy on what a reasonable man would deem suffi- 
 cient if within his power, he will be liable to the plaintiff in 
 the execution for the deficiency ; ^ and he will be liable to the 
 defendant for an unreasonable excess. But if the levy be origi- 
 nally sufficient, he will not be liable in case of a deficiency or 
 excess by reason of a depreciation or advance in the value of 
 property. It is his duty to levy on property sufficient to make 
 the debt in his hands amply secure against all possible contin- 
 gencies, but it should not be excessive. Where the debtor has 
 sufficient property out of which the officer may satisfy the 
 judgment for which the writ has issued, he is guilty of negli- 
 gence in not levying on enough to satisfy it,^ or on too much.*- 
 An appraisement is no criterion of the value of the property.* 
 The value is to be estimated in current money .^ If the levy is^ 
 sufficient at the time it is made, that is all that is required.^ 
 Where more property is sold than is necessary to satisfy the 
 execution, in the absence of "fraud, the sale as to the excess is- 
 not absolutely void, though under some circumstances it may 
 be spt aside ; ^ or where the excess is made, in the computation 
 of the amount due, by a clerk.^ Nor will a levy on goods, the 
 sale of which is insufficient to satisfy the writ, render himi 
 liable, in the absence of fraud or unfairness.* Nor will mere 
 inadequacy of price at the sale make him liable for an insuffi- 
 cient levy.^" Where there is great uncertainty as to the value 
 of the property levied on, and it is afterwards ascertained that 
 
 its value is greatly in excess of the demand, itdoes not follow 
 
 • 
 
 ' Hall V. Tomlinson, 5 Vt. 228. ' Avery v. Bowman, 40 N. H. 453. 
 
 ° Pitcher v. King, ; Q. B. 758. Jones v. Davis, 2 Ala. 730. 
 
 GrifiSn v. Ganaway, 8 Ala. 626. ' Grosvenor v. Chesley, 48 Me. 
 
 Governor V. Powell, 9 Ala. 83. Ran- 369. Avery v. Bowman, 40 N. H. 
 
 som V. Halcott, 18 Barb. 56. 453. 
 
 ' Vance v. Van Arsdale, i Bush. ' Ingram v. Belk, 2 Strobh. 207. 
 
 504. ■ Lynn v. Sisk, 9 B. Mon. 135. Com- 
 
 • Lawson v. State, 10 Ark. 28. monwealth v. Lightfoot, 7 B. Mon. 
 ' Harper v. Fox, 7 V^. & S. 142. 298. • 
 
 • Governor v. Carter, 3 Hawks. '" hyach v. Commonwealth, 6 
 32(8. Watts, 495. 
 
Chap. VIII.] PERSONAL PROPERTY. 243 
 
 that the levy therefor was excessive.^ But an excessive levy 
 made wilfully by an officer is an abuse of his power, and renders 
 him liable.^ The party aggrieved will be left to his remedy in 
 equity, while the creditor may be compelled to relinquish so 
 much of the property levied as would be equal^ to the excess 
 levied, or pay an equivalent therefor in money .^ As to what 
 is an excessive levy is a question that must depend upon the 
 circumstances of each particular case as it arises,; still, if 
 grossly excessive, it will be set aside ; as a levy upon property 
 valued at one thousand dollars, to satisfy a judgment and costs 
 amounting to less than twenty-one dollars ; * or a levy on a 
 steamboat worth forty thousand dollars for an execution of one 
 hundred and nine dollars, when it might be satisfied by levying 
 on a small part of the furniture'.^ A levy on more than the 
 debtor owns, or where a portion only is taken, will be good for 
 what he does own, or for his share ; ® or, if excessive, it may 
 be released.^ It does not vitiate the title of the officer to the . 
 property levied on,* nor avoid it in favor of subsequent levies.* 
 Where property is levied on, as several tracts of land, several 
 times to satisfy the same execution, the fact that the several 
 levies exceed the amount to be satisfied will affect only the 
 validity of the last writ which contains the excess.^" Where 
 more property is levied on than is necessary, but only enough 
 of it is sold to satisfy the execution, the levy is neither unrea- 
 sonable nor excessive.^^ Where the debtor himself points out 
 the property to be sold to satisfy the execution, he cannot 
 complain of its being excessive in the hands of a bona fide 
 purchaser.^ 
 
 ' Sexey v. Addison, 40 Cal. 408. ' Black v. Nettles, 25 Ark. 606. 
 
 ' Piatt V. Sherry, 7 Wend. 236, ' Brown v. Allen, 3 Head. 429. 
 Dezell V. Odell, 3 Hill, 215. ' ' Pugh v. Calloway, 10 Ohio, S. 
 
 ' Avery v. Bowman, 40 N. H. 453. 488. 
 
 * Cooke V. Jenkins, 30 la. 452. '• Pierce v. Stnckland, 26 Me. 277. 
 
 ' Silver V. McNiel, 52 Mo. 518. " Drake v. Murphy, 42 Ind. 82. 
 
 ' Pond V. Pond, 14 Mass. 403. " Cornelius v. Burford, 28 Tex. 
 
 Marcy v. Kinney, 9 Conn. 394. 202. 
 
244 THE LEVY ON [Chap. VIII. 
 
 § 171. One Levy only permitted. When a second one 
 ALLOWED. — A levy on sufficient personal property of a de- 
 fendant being prima facie satisfaction of an execution, only 
 one levy is as a general rule allowed. After making one seiz- 
 ure, and taking possession of property levied on, the creditor 
 will not be permitted by a subsequent writ to make another 
 levy until he has accounted for the first, or it has been unavail- 
 able.^ Nor can a levy be made on real and personal property 
 at the same time.^ After levy upon the property of one joint 
 debtor, a creditor cannot countermand the levy, so as to seize 
 the property of the other debtor.^ Where a levy has been made, 
 and the property is claimed by a stranger to the action, the 
 writ may be withdrawn, and, a new levy made, only by leave 
 or order of court, upon a satisfactory showing.* But where an 
 officer misconstrues instructions received from the creditor, 
 and releases a levy, he may retake it, even after 'the return 
 day ; ^ or where it is made through the instrumentality of one 
 of the defendants, by inducing the officer to levy contrary to 
 his instructions, and the creditor is liable to become involved 
 in litigation by the action of- the officer, the levy may be re- 
 leased, and other property taken ; ® or where the officer has 
 been induced by a claimant to relinquish a levy, he has been 
 allowed, even after a return of nulla bona, to have the return 
 set aside, so that he might retake the property, or bring an 
 action therefor.^ 
 
 § 172. Effect of a Levy. Vests Special Ownership in 
 Officer. — While the law subjects an officer to an action for 
 negligence and derelictions for which he is responsible, so, on 
 the other hand, it vests in him such special ownership or pos- 
 sessory property in the goods takeh by him in execution that, 
 if taken out of his possession, he may maintain an action 
 
 » Parker v. David, 45 Miss. 488. * Branch v. Riley, 19 Ga. 161. 
 
 Smith V. Hughes, 24 111. 270. * Colton v. Camp, I Wend. 365. 
 
 ' Miller v. Miller, 25 Me. no. « Godfrey v. Gibbons, 22 Wend. 
 
 Trapnall v. Richardson, 13 Ark. 543- 569. 
 
 ' McChain v. McKeon, 2 Duer, ' Barker v. Bininger, 14 N. V. 270. 
 645. 
 
Chap. VIII.] PERSONAL PROPERTY. 245 
 
 against the wrong-doer as well as a carrier or bailee of goods ; 
 after the seizure he is the bailee of the law,^ and nothing less 
 than the satisfaction of the debt, or some recognized act of 
 abandonment, or waiver, either by the creditor or officer, can 
 have the effect to destroy the title vested by the levy, or 
 restore the right of property to the execution debtor. It gives 
 the officer both the legal and the actual possession.^ He may, 
 at any time before the sale or satisfaction of the debt, main- 
 tain an action for it against the debtor himself; but when the 
 execution is satisfied, the right of the. debtor recurs, and the 
 right of the officer ceases to exist against him.^ The mere 
 issue of an execution gives the officer authority and power 
 over the debtor's goods and chattels, but vests him with no 
 right or title until a levy is made. No constructive levy can 
 be presumed from the mere fact of its delivery.* While the 
 levy gives the officer a special property in the goods, it does 
 not change the title of the debtor ; he may sell or transfer it as 
 if no levy existed, but it continues subject to the levy.^ Tak- 
 ing property in execution at the suit of a party having a lien 
 thereon destroys the lien by changing the possession from the 
 
 ' Wilbraham v. Snow, I Mod. 31. v. McVicar, 12 John. 403. Bliss v. 
 
 Baker V. Miller, 6 John, 195. Casher Ball, 8 John. 132. Harkins v. Kings- 
 
 V. Peterson, I South. 317. Parker land, 2 Hall, 425. Jones v. Leach, 
 
 V. David, 45 Miss. 488. Rogers v. I B. R. 165. Sherman v. Howell, 
 
 Darnaby, 4 B. Mon. 241. Fuller v. 40 Ga. 257. 
 
 Loring, 42 Me. 481. Lockwood v. ' Evans v. Barnes, 2 Swan, 292. 
 
 Bull, I Cow. 322. Blades v. Arun- Etheridge v. Edwards, i Swan, 426. 
 
 del, I M.&S. 711. Blacker V. Shel- ^ Hill v. Haynes, 9 Alb. Law 
 
 don, 7 John. 32. McClintock v. Jour. 276. Bate^ v. -Guest, 3 Mc- 
 
 Graham, 3 McCord, 243. Williams Cord, 493. McClintock v. Graham, 
 
 V. Herndon, I2 B. Mon. 484. Sher» 3 McCord, 242. 
 
 iff of Surrey v. Alderton; Lit. R. 296. * Hathaway v. Howell, 54 N. Y. 
 
 Howland v. Wells, 9 N. Y. 173. 113. 
 
 Rhodes v. Woods, 41 Barb. 471. ' Alexander v. Springs, j I red. 
 
 Weatherby v. Covington, 3 Strobh, 475. Atwood v. Pierson, 9 Ala. 656. 
 
 27. Walker v. Shotwell, 21 Miss. Popleston v. Skinner, 4 D. & B. 
 
 544. ; Martin v. Watson, 8 Wis. 315. 456. Samuel v. Duke, 3 M. & W. 
 
 Garner v. Willis, I 111. 291. Benson 622. Rice v. Trower, i Gray, 426, 
 V. Berry, 55 Barb. i52o. Hotchkiss 
 
246 THE LEVY ON [Chap. VIII. 
 
 bailee to the ofificer, even though the property is left with the 
 party. The possession must of necessity vest in the officer in 
 order to enable hinj to sell the property.^ The officer's right 
 of possession dates from the time of the levy.^ The officer, 
 must continue in possession in order to maintain any action, 
 for where an officer seizes property, locks up the writ, and 
 leaves the writ with the property where he finds it, he aban- 
 dons his possession, and no action lies against one who sub- 
 sequently takes it.^ He cannot bring an action before a levy has 
 been actually made ; * or where he returns that he has levied on 
 the whole where a claimant has taken away part.^ A constable 
 must make a levy or an inventory before he has such posses- 
 sion as will enable him to bring an action for it.® All levies 
 of chattels real and personal of the debtor must be accounted 
 for satisfactorily before a writ will be allowed to interfere with 
 property purchased of the debtor by a third party and in his 
 possession.^ 
 
 § 173. Effect of a Levy. Custody of the Law. —[An- 
 other result of the levy of an execution upon property is, that 
 when once taken by a sheriff or other officer who is the bailee 
 of the law, the property is then in custodia legis, or in the 
 custody of the law. In general, when things are in custodia 
 legis, they cannot be interfered with by a private person, or by 
 ianother officer acting under the authority of a different court _ 
 or jurisdiction. They are in the custody of the law until the 
 prpper time for their sale, and for such a reasonable time 
 thereafter as may be necessary for the purchaser to remove 
 them. During this time they are beyond the reach of seizure 
 by any other execution, attachment, or other writ, even for 
 taxes, though they remain in the possession of the very party 
 
 ' Jacobs V. Latour, 2 M. & P. 20. ' Cluley v. tockhart, 59 Penn. 
 
 " Haywood v. Sledge, 3 Dev. 338. 376. 
 
 Lyon V. Stewart, j J. J. Marsh, 676. ' Wintermute v. Harkinson, I 
 
 Clement v. Garland, 53 Me. 427. Halst. 140. Cliver v. Applegate, 2 
 
 ' Blades v. Arundel, i M. & S. South. 479. Brink v. Decker, 2 
 
 711. Lloyd V. WycofF, 6 Halst. 218. Penning. 903. 
 
 * Hotchkiss V. McVicar, 12 John. 'Dougherty v. Marsh, 11 Ga. 
 
 405- • 277. Hammond v. Myrick, 14 Ga. 77. 
 
<;hap. VIII.] 
 
 PERSONAL PROPERTY. 
 
 247 
 
 ■who is liable to pay taxes. The possession of the officer is 
 the possession of the court by whose command such officer 
 seizes them, and that possession cannot be interfered with by 
 any other court.^ Property placed in the hands of a receiver 
 by a court is also in the custody of the law ; the receiver is 
 the officer of the court, as a sheriff is, and also a bailee of the 
 law ; ^ it being a maxim of the law, Fortior est custodia legis 
 .quam hominis, the custody of the law is stronger than that of 
 man. A party whose property is taken in execution to satisfy 
 -a judgment against him cannot replevy such property, . and 
 take it out of the possession of the officer ; it would be repug- 
 nant to all sound principles of law to permit it to be taken 
 •out of such custody.^ " If a defendant in the execution, after 
 
 ' Chapinv.James, 7 Chic. Legal N. 
 33. U. T. Co. V. R. R. Co., 7 Chic. 
 Legal N. 33. Cunjberland Bank v. 
 Hann, 40 Harring. 166. Winegard- 
 jier V. Hafer, 15 Penn. 144. Crane 
 ■V. McCoy, I Bond, 422. Johnson v. 
 Bishop, Woolworth R. 324. Payne 
 T. Dreme, 4 East. 523. Evelyn v. 
 Lewis, 3 Hare, 472. Russell v. E. 
 A. R. Co., 3 McN. & G. 104. Van 
 Winkle v. Udall, i Hill, 559. Birds- 
 ■eye v. Ray, 4 Hill, 152. Sherry v. 
 Schuyler, 2 Hill, 204. Van Loan v. 
 Kline, 10 John. 129. Hartwell v. 
 Bissell, 17 John. 128. Gilbert v. 
 -Moody, 17 Wend. 354. Dubois 
 v. Harcourt, 20 Wend. 41. Sterling 
 -V. Welcome, 20 Wend. 228. The 
 'Circassian, i Ben. 128. Hagan v. 
 Lucas, 10 Pet. 400. Foulger v. Tay- 
 lor, 5 H. & N. 202., Hamilton v. 
 Reedy, 3 McCord, 38. Pierce v. 
 Scott, 4 W. & S. 344. Milliken v. 
 :Selye, 6 Hill, 623. Buckey v. Snouf- 
 fer, 10 Md. 149. Moore v. Withen- 
 l)urg, 13 La. 22. ■ Bell v. N. A. & C. 
 Co., 2 Biss. 390. Peck v. Jenness, 
 7 How. 612. PuUiam v. Osborne, 
 
 17 How. 471. Smith v. Mclver, 9 
 Wheat. 532. Freeman v. Howe, 24 
 How. 450. Taylor v. Carryl, 20 
 How. 583. The Oliver Jordan, 2 
 Curtiss C. C. 414. The Robert 
 Fulton, I Paine C. C. 620. Ex par- 
 te Robinson, 6 McLean, 355. Harris 
 V; Dennie, 3 Pet. 292. Riggs v. 
 Johnson, 6 Wall. 197. Ex 'parte 
 Dorr, 3 How. 103. Buck v. Col- 
 bath, 3 Wall. 334. In re Campbell, 
 Am. L. R. Dec. 1867. Skelly v. 
 Bacon, 10 How. 56. Peale v. Phipps, 
 14 How. 56. Brown v. Clark, 4 
 How. 4. In re Booth, 3 Wis. i. 
 Wood V. Lake, 13 Wis. 34. Booth 
 V. Ableman, 16 Wis. 60. Lewis v. 
 Buck, 7 Minn. 104. JMoe v. Gibson, 
 7 Paige, 713. Lechmere v. Thorow- 
 good, 3 Mod. 236. 
 
 = Robinson v. A. & G. W. R. R. 
 66 Penn. 160. Martin v. Davis, 21 
 la. 535. County, &c., v. Adams, 7 
 Cal. 35. Glenn v. Gill, 2 Md. 1. 
 Taylor v. Gillian, 23 Tex. 508. Field 
 V. Jones, II Ga. 413. Nelson v. 
 Conner, 6 Rob. (La.) 339. 
 
 ' Rex V. Oliver, Bunb. 14. Rex 
 
248 THE LEVY ON [Chap. VIII. 
 
 judgment had been legally entered against him upon a full 
 and fair trial, were tolerated in bringing his action of replevin,, 
 and by it to replevy the goods taken in execution, there might 
 be no end to delays which defendants might create," and an 
 execution would not be the end of the law. " Justice and the 
 end of the law would be effectually subdued, for, although the 
 defendant in the execution and the plaintiff in the action of 
 replevin would fail upon the trial, and judgment would be ren- 
 dered in favor of the officer for the restoration of the goods, 
 yet the action might be again and again renewed, and delays 
 without end effected. To prevent such abuses and such con- 
 tempt of the authority of courts, to prevent the monstrous ab- 
 surdity of rendering the remedies afforded by law with a view 
 to redress wrong the means of defeating the very end to be 
 accomplished, the defendant in execution who should thus 
 prevent the action by replevin ought to be severely punished 
 for contempt." 1 If the judgment on which the execution is 
 issued is paid, satisfied, or otherwise discharged, his remedy is 
 full, ample, and complete, by filing a motion in the court in 
 which the judgment was rendered, on proper notice to the. 
 adverse party, to quash the execution. Property which an 
 officer has no right to seize cannot be said to be in the cus- 
 tody of the law ; ^ or where there is no valid levy, by reason 
 of irregularities, or the property is not subject to levy at the 
 time ; ^ or where it is the property of a party to the action not 
 served with process ; * or where the writ has become dor- 
 
 V. Sheriflf, I Barnard B. R. no. v. Jenkins, 5 N. Y. 380. Coon v. 
 
 Rex V. Monkhouse, 2 Stra. 1184. Congdon, 12 Wend. 496. Reynolds 
 
 Wilson V. Weller, i B. & B. 57. v. Sallee, 2 B..Mon. 18. Saffell v.. 
 
 Earl V. Reeve, 2 B, & B. 39. West- Wash, 4 B. Mon. 92. Phillips v. 
 
 enberger v. Wheaton, 8 Kan. 169. Walker, 3 J. J. Marsh. 124. 
 
 Hall V. Turtle, 2 Wend. 478. People > Phillips v. Walker, 3 J. J. Marsh.. 
 
 V. Albany, 7 Wend. 485. Thompson 124. 
 
 V. Button, 14 John. 87. Gardner v. ' Gilman v. Williams, 7 Wis. 329. 
 
 Campbell, 15 John. 402. Ilsley v. ' Bank, &c., v. Crary, 1 Barb. 542. 
 
 Stubbs, 5 Mass. 283. Marshall v. Camp v. Chamberlain, 5 Denio, 198. 
 
 Davis, I Wend. 109. Hudler v. * Sherry v. Schuyler, 2 Hill, 204- 
 Golden, 36 N. Y. 446. Chegaray 
 
Chap. VIII.] PERSONAL PROPERTY. 249 
 
 mant ; ^ or where the officer leaves it without leaving any one 
 in possession of it,^ it is no longer in custodia legis. Another 
 effect is, that the creditor affirms the title of the debtor by a 
 levy.^ It is not conclusive proof of the defendant's title.* It 
 keeps a judgment alive, and preserves the lien without a sci. 
 faf' A levy on personalty will release the debtor's lands as to 
 third persons.^ When a levy is made upon sufficient property 
 to satisfy the writ, proceedings taken to collect the same debt 
 will be stayed until after the sale.'^ A creditor cannot release 
 or abandon a levy, and claim to be paid out of the proceeds of 
 a sale of other property.^ A levy remains good against the 
 debtor, although the process becomes dormant, as to subse- 
 quent writs, and the officer, under such levy, has the custody 
 and control of the property.® 
 
 § 174. When a Levy enures to the Benefit of subse- 
 quent Writs. — It is a matter of frequent and almost con- 
 stant occurrence that more than one execution issues against 
 the same party. Generally when a party owes one debt, he 
 owes more, and when one creditor commences proceedings 
 against him, others do ; and, as a matter of course, several 
 writs are liable to reach the same officer's hands, As above 
 stated, property already levied on by virtue of an execution is 
 in the custody of the law, and therefore beyond the reach of 
 any other process while such levy exists. In. order, therefore, 
 to subject the property of a debtor to the payment of his 
 debts, the Jaw applies the surplus proceeds, or property after 
 the satisfaction of the first writ, to those subsequently issued, 
 in the order of their issue and delivery to the officer, while he 
 
 ' Russell V. Gibbs, 5 Cow. 390. 361. U. S. v. Mechanics' Bank, 
 
 Power V. Van Buren, 7 Cow. 560. Gilp. 51. 
 
 Camp V. Chamberlain, 5 Denio, 198. ° Hunt v. Breeding, 12 S. & R. 
 
 ' Blades v. Arundel^ i M. & S. 37. Taylor's Appeal, l Penn. 393. 
 
 711. ' Duncan v. Harris, 17 S. & R. 436. 
 
 ' Robinson v. A., &c., R. R., (£ ' Gregory v. Stark, 4 111. 611. 
 
 Penn. 165. ° Hunt v. Breeding, 12 S. & R- 
 
 ' Governor v. Gibson, 14 Ala. 37. Taylor's Appeal, i Penn. 393. 
 
 326. Duncan v. Harris, 17 S. & R. 436. 
 
 ' Bank, &c., v. Wells, 12 Mo. ' Peck v. Tiffany, 2 N. Y. 451. 
 32 
 
250 THE LEVY ON [Chap. VIII. 
 
 cannot levy on the same property. He may indorse on such 
 subsequent writs a levy, which is of course subject to the lien of 
 such prior writ, and it is a good levy under subsequent or later 
 executions, because the goods so levied upon are considered in 
 the custody of the officer, and of course within his control ; so 
 that a valid levy by an officer under one writ is a good and 
 sufficient levy for all writs then in his hands, and enures to 
 the benefit of all such executions as are received by him dur- 
 ing the lien or life of such first writ,^ and in such case no 
 further or actual seizure need be made. But where two exe- 
 cutions against the same defendant are delivered to the officer 
 on different days, and no sale is actually made of the goods, 
 even though the seizure was made under the subsequent exe- 
 cution, the first execution must have priority, and the levy 
 under the junior writ enures to the benefit of the one first 
 delivered to the officer.^ A seizure under separate writs can- 
 not operate as a seizure under a joint one, as to a writ against 
 one partner.^ In some states there must be an actual levy, as 
 it is held that a prior levy does not operate as a constructive 
 levy as to other writs.* If the first levy is irregular or invalid, 
 as if made upon property of a party not served with process, 
 or there has been such delay as amounts to a fraudulent execu- 
 tion of the writ, then a prior levy will not enure, but the officer 
 in receipt of such subsequent executions must proceed to levy 
 irrespective of the rights of the prior creditor.^ So where two 
 
 ' Watmough v. Francis, 7 Penn. * Jones v. Atherton, 2 Marsh. 375. 
 
 206. Sawle V. Painter, i D. & R. Hutchinson v. Johnston, i T. R. 729. 
 
 307. Goldschmidt v. Hamlet, 6 M. Stubble v. Walpole, Wright (O.), 
 
 & G. 187. Jones v. Atherton, 2 447. 
 
 Marsh. 275. S. C, 7 Taunt. 56. ' Johnson v. Evans, 7 M. &. G. 
 
 State V. Doan, 39 Mo. 44. Pecfe v. 240. 
 
 Tiffany, 2 N. Y. 451. Cresson v. " Banks v. Evans, 18 Miss. 35. 
 
 Stout, 17 John. 116. McCormick Scriba v. Beanes, i Brock. 166. 
 
 V. Miller, 3 Penn, 230. Wood v. Howard v. Jones, 2 Ga. 190. 
 
 •Van Ai-sdale, 3 Rawle. 401. Burch- ° Lovick v. Crowder, 8 B. & C. 
 
 ard V. Rees, i Whart. 377. Leach 132. Russell v. Gibbs, 5 Cow. 390. 
 
 V. Pine, 41.111. 6;. Slade v. Van Payne v. Drew, 4 East. 523. Sherry 
 
 Vech ten, II Paige, 21. Van Winkle v. Schuyler, 2 Hill, 204. Camp v. 
 
 V. Udall, I Hill, 559. Chamberlain, 5 Denio, 198. 
 
Chap. VIII.] PERSONAL PROPERTY- 251 
 
 writs of execution against the same person are delivered to the 
 officer, he is bound to execute first that writ which was first 
 delivered to him,^ unless the first writ, or the possession held 
 under it, were fraudulent ; in which case the goods seized can- 
 not be considered in the custody of the law at the date of the 
 delivery of the second writ, and . the latter, therefore, has pri- 
 ority. Where goods are seized under a writ founded on a 
 judgment fraudulent as against creditors, remain in the ofificer's 
 hands, or are capable of being seized by him, he ought to sell, 
 or sejze and sell, under a subsequent writ founded upon a bona 
 fide debt.2 Where a party is in possession of goods apparently 
 the property of the debtor, the officer who has a writ to exe- 
 cute is bound to inquire whether the party in possession is so 
 bona fide ; and if he finds that the possession is held under a 
 fraudulent bill of sale, he is bound to treat it as null and void, 
 and levy "under the writ.^ The general property in the goods, 
 even after seizure, is in the debtor, for the reason that he may, 
 after the seizure, by payment, suspend the sale, and stop the 
 execution.* But where, after a writ is delivered to the officer, 
 notice is given to restrain execution, or suspend proceedings 
 thereunder, the writ cannot be considered to be in the hands of 
 the officer to be executed ; and the officer will be bound to ex- 
 ecute a subsequent writ of execution which may be issued during 
 such stay of execution, and before orders are given to proceed 
 with the first one.^ 
 
 § 175. The Effect of a Release after Levy. What 
 WILL RELEASE A Levy. — If a court ordcrs that a judgment 
 be not enforced after a levy has been made, it operates as a 
 
 ' Hutchinson v. Johnston, I T. R. ' Lovick v. Crowder, 8 B. & C. 
 
 131. Drewe v.,Lainson, 11 A. & E. 135. WaimoU v. Young, j B. & C. 660. 
 
 537. Jones V. Atherton, 7 Taunt. 56. * Playfair v. Musgrove, 14 M. & 
 
 Aldred v. Constable, 6 Q. B. 370. W. 246. Samuel v. Duke, 3 M. & 
 
 Harrison v. Sipp, 8 Blackf. 455. W. 622. Rice v. Trower, i Gray, 
 
 ' Chrislerpherson y. Burton, 3 426. Atwood v. Pierson, 9 Ala. 656. 
 
 Excheq. 160. Shattuck v. Garden, Popleston v. Skinner, 4 D. & B. 456. 
 
 6 Excheq. 725. Imray v. Magnay, Alexander v. Springs, 5 Ired. 475. 
 
 II M. & W. 267. Drew v. Lainson, ' Hunt v. Hooper, 12 M. & W. 
 
 1 1 A. & E. 529. 664. Sturgis v. Bishop, 7 E. & B. 542. 
 
252 THE LEVY ON [Chap. VIIL 
 
 release ; ^ so the execution of a supersedeas bond, the bond tak- 
 ing the place of the goods ; ^ the suing out an injunction, re- 
 straining the execution of z.fi.fa. ; ^ or a stay by agreement of 
 parties;* the giving of a delivery bond;^ the reversal of a 
 judgment ; ^ claiming under the exemption laws.'' Suing out 
 an alias is an abandonment of the levy made on the original,* 
 but not in Ohio.^ A mere suspension of proceedings, and a 
 release by the officer through a mistake, will not release it ; i* 
 or where an officer is stayed in his proceedings on the execu- 
 tion and the levy made on it by an order of court, and he 
 resumes his control as soon as the order is vacated ; •'^ nor an 
 appeal by a debtor after a levy on real estate.^ The effect of 
 a release after a levy has been made upon the property of a 
 debtor is, that it discharges a surety or indorser from his lia- 
 bility.i^ Or if real property is sold after a levy, but bgfore the 
 release, it is sold free from the judgment lien.^* But if an offi- 
 cer, after levy, discovers that the property or some part of it is 
 not subject to the execution, he may release it from his levy 
 at any time before sale.^^ 
 
 § I ']6. The Effect of a Levy on Personal Property, as 
 
 ' Mulfordv. Estudillo, 32Cal. 131. 94- Howerton v. Sprague, 64 N. 
 
 ' Parker v. Dean, 45 Miss. 408. C. 451. Bank v. Fordyce, 9 Penn. 
 
 Bassett V. Daniel, 10 Ohio S. 617. 275. Carpenter v. King,' 9 Met. ui. 
 
 ' Lockridge v. Bickerstaaf, 2 Du- Brown v. Riggins, 3 Ga. 405. Peo- 
 
 val, 281. pie V. Chisholm, 8 Cal. 30. Curran 
 
 * Eldridge v. Chambers, 8 B. v. Colbert, 3 Ga. 239. Bangs v. 
 Mon. 411. Strong, 10 Paige, 11. Finley v. 
 
 * Biscoe V. Sandefur, 14 Ark. 569. King, i Head, 123. Farmers', &c., 
 « Mosely v. Garner, 10 Tex. 393. Bank v. Kingsley, 2 Doug. 374. 
 ' Hall V. Hough, 24 Ind. 273. Com. Bank, &c., v. Western, &c., 
 » Alley V. Carroll, 3 Sneed, no. Bank, 11 Ohio, 444. Hubbell v. 
 
 * Bouton V. Lord, 10 Ohio S. 453. Carpenter, ; Barb. 520. Lafarge v. 
 '" Walker v. Commonwealth, 18 Herter, 9 N. Y. 241. Jones v. 
 
 Gratt. 13. Bullock, 3 Bibb, 467. Carpenter 
 
 " Bond V. Willett, 31 N. Y. 102. v. Devon, 6 Ala. 718. Common- 
 
 Batsdorf v. Focht, 44 Penn. 95. wealth v. Miller, 8 S. & R. 52. Tal- 
 
 Brinley v. Mann, 2 Cush. 337. madge v. Burlingame, 9 Penn. 275. 
 
 '« Moore v. Rittenhouse, 15 Ohio » Ford v. Geauga Co., 7 Ohio, 148. 
 
 S. 310- " Lummis V. Kasson, 43 Barb. 373. 
 " Mulford V. Estudillo, 23 Cal. 
 
Chap. VIII.] PERSONAL PROPERTY. 253 
 
 Satisfaction of the Judgment upon which the Execu- 
 tion ISSUES. When it is and is not a Satisfaction. — 
 When an officer takes personal property into his possession 
 and control by virtue of the mandate of an execution, whether 
 he sells the property or not, yet, being taken from the party 
 against whom such execution issues, the debtor may allege and 
 prove that taking or levy in discharge of such judgment, and is 
 not liable to satisfy a second writ, though the one under which 
 the levy was made is returned. The defendant cannot avoid 
 the execution, and he would be in a bad situation if he were 
 compelled to submit to a second levy and satisfaction of the 
 same debt. If the officer dies after such levy, his executors 
 are liable to the creditor. They have a quid pro quo, and it is 
 in the nature of contract created by law. As the defendant in 
 cases of this kind is released, the plaintiff may maintain an 
 action of debt against the officer; for, although there is no 
 actual contract between the officer and the creditor, the levy- 
 ing of the money creates the contract in law which lays a lien 
 on the officer, otherwise the party would be without a remedy. 
 So an action lies by an executor against a deputy for money 
 levied on an execution, as money received to the plaintiff's use, 
 though before the return day of the writ ; for if an officer were 
 permitted to stave off the action by his delay in not returning 
 the writ, it would be allowing him to take advantage of his own 
 wrong. It has been held that such an action is not within the 
 statute of limitations.^ But this rule of law has been modified 
 
 ' Cockram v. Welbye, 2 Show. 79. v. Pope, 7 Hemp. 27. People v. 
 Trigg V. Harris, 49 Mo. 176. Ladd Hopson, I Denio, 514. Bayley v. 
 T. Blunt, 4 Mass. 402. Ex parte French, 2 Pick. 586. Case v. Ad- 
 Lawrence, 4 Cow. 417. Fuller v. ams, 3 Ohio, 223. Planters' Bank 
 Loring, 42 Me. 481. F. & M. Bank v. Black, 19 Miss. 43. Campbell v. 
 -V. Kingsley, 2 Doug. (Mich.) 3/9. Spence, 4 Ala. 343. Camp v. Laird, 
 Webb V. Bumpass, 9 Porter, 201. 6 Yerg. 246. People v. Chisholm, 8 
 Carr v. Weld, 19 N. J. Eq. 319. Cal. 29. Mulford v. Estudillo, 23 
 Hogshead v. Carruth, 5 Yerg. 227. Cal. 94. S. C, 32 Cal. 131. Troup 
 Wood V. Torrey, 6 Wend. 562. Car- v. Wood, 4 John. Ch. 228. Collier 
 roll V. Fields, 6 Yerg. 305. Young v. Bank of Newbern, 2 Dev. Ch. 
 -v. Read, 3 Yerg. 297. Porter v. 525. Hoyt v. Hudson, 12 John. 207. 
 Soome, I W & S. 251. Campbell 
 
254 THE LEVY ON [Chap. VIII. 
 
 SO that a levy is not per se a satisfaction of the judgment, but 
 only /rm«y««V satisfaction,-' or sub modo? A levy on suffi- 
 cient personal property to s'atisfy the execution operiites per se 
 as an extinguishment of the judgment while it exists.^ Or if, 
 through the negligence or misconduct of the officer, the prop- 
 erty is lost, wasted, or . destroyed while in the custody of the 
 law, the debt is paid to the extent of the value of the property 
 lost, destroyed, or wasted ; and the creditor is remitted to 
 his rights against the officer.* Or if the debtor is permitted to 
 carry on business, and dispose of the goods levied, it is a satis- 
 faction to the value of the levy.^ So far as the rights of third 
 persons are concerned, the levy upon goods is a satisfaction to 
 the extent of their value, unless the plaintiff is deprived of the 
 benefit of his levy without any fault of his.^ Where a levy is made 
 under two writs on personal property, and the property is neither 
 sold nor returned to the debtor, it is a satisfaction of the senior 
 execution /w fatiio, and for that amount the senior execution 
 creditor is barred from claiming the proceeds of a sale of other 
 
 ' Alexander v. Polk, 39 Miss. 739. v. Burke, 23 Wend. 501. Mcintosh 
 Williams v. Gartrell, 4 Greene (la.), v. Chew, i Blackfd. 289. First, &c., 
 287. Brown V. Kidd, 34 Miss. 291. Bank v. Rogers, 13 Minn. 407. Fork 
 Martin v. Carter, 27 111. 291. Ordi- v. Skinner, 4 Ohio, 378. Smith v. 
 nay v. Spann, i Rich. 429. Kershaw Hughes, 24 111. 270. Trenary v. 
 V. Merchants' Bank, 8 Miss. 386. Cheever, 48 111. 28. Cass v. Little- 
 Hill V. Fleming, 2 Hill Ch. 97. Mc- ton, 3 Ohio, 223. 
 N;itt V. Wilcox, I Free. Ch. 116. ' Pigg v. Sparrow, 3 Hey. 144. 
 Wilson V. Rockwell, 14 111. 375. Morrow v. Hart, I A. K. Marsh. 
 Hammond v. <Myrick, 14 Ga. 77. 291. Bingaman v. Hyatt, i S & M. 
 Deal V. Bolton, 24 Miss. 630.- Corn- Ch. 137. 
 
 ingv.Burdick, 4 McLean, 133. Shel- " Peck v. Tiffany, 2 N. Y. 451. 
 
 ton V. Hamilton, 23 Miss. 496. Lii- Kershaw v. Merchants' Bank, 8 Miss, 
 
 cas V. Cassaday, 2 Greene (la.), 208. 386. State v. Meyers, 14 Ohio, 538. 
 
 First, &c.. Bank V.Rogers, 15 Minn. People v. Hopson, i Denio, 374. 
 
 381. Chisholm v. Chittenden, 45 Hayden v. Agent, &c., i Sand. Ch. 
 
 Ga. 213. Miller v. Bagwell, 3 Mc- 195. Fuller v. Loring, 42 Me. 481. 
 
 Cord, 429. Ladd v. Blunt, 4 Mass. 402. Pick- 
 
 « Lynch v. Pressly, 8 Ga. 237. ens v. Marlow, 10 Miss. 428. 
 
 Mace V. Dutton, 2 Ind. 309. Dow- » Truitt v. Ludwig, 25 Penn. 145. 
 
 dall V. Neal, 10 Ga. 148. Mountney • Lyon v. Hampton, 20 Penn. 46. 
 
 V. Andrews, Cro. Eliz. 237. Green Hunt v. Breeding, 12 S. & R. 37. 
 
Chap. VIII.] PERSONAL PROPERTY. 255 
 
 property, as against creditors.^ But where a levy is made 
 upon a senior execution and judgment upon sufficient personal 
 property to satisfy it, and other writs upon subsequent judg- 
 ments are levied upon the same property, and the plaintiff's 
 attorney in the prior judgment consents that the proceeds be 
 applied to junior executions, such judgment will be deemed 
 satisfied as against all liens and levies existing at the time.^ 
 In Indiana a levy on land or goods of sufficient value to pay 
 the judgment upon which the execution issues, raises the pre- 
 sumption that the judgment is satisfied, and another levy, by 
 virtue of the same writ, until the property first levied upon has 
 been legally disposed of, and its insufficiency shown by actual 
 sale;* and is the rule in other states, except as to levies on 
 real property.* But such levy must be followed by the other 
 proceedings on execution to be a satisfaction.^ A levy on suf- 
 ficient personal property is a satisfaction of the judgment — 
 sufficient, at least, to discharge the surety or indorser ; ^ a levy 
 on one execution of sufficient to satisfy all, where the officer 
 has several others against the same party in his hands, is not 
 even prima facie of those not levied.^ If, without any fault of 
 the creditor or plaintiff, the levy does not produce the amount 
 necessary to satisfy the execution, then there may be another 
 writ issued for the balance due in the same manner as though 
 no other execution had been issued.^ While a levy \s, prima facie 
 a satisfaction of an execution, it is not an absolute satisfaction, 
 
 > Hamner v. Griffith, I Grant's 237. Green v. Burke, 23 Wend. 501. 
 
 Cases, 193. Bank v. Rogers; 15 Minn. 281. 
 
 » Barber v. Reynolds, 44 Cal. 520. ' Ward v. Dalton, 7 C. B. 64.3, 
 
 ' Frank v. Brasket, 44 Ind. 92. * Finley v. King, i Head. 123. 
 Lindley v. Kelly, 42 Ind. 294. Farmers', &c., Bank v. Kingsley, 2 
 Barrett v. Thompson, 5 Ind. 457. Doug. (Mich.) 379. People v. Chis- 
 Law V. Smith, 4 Ind. 56. Doe v. holm, 8 Cal. 30. Mulford v. Estu- 
 Dutton, 2 Ind. 309. Stewart v. Nun- dillo, 23 Cal. 94. 
 nemacher, 2 Ind. 47. Miller v. Ash- ' Banks v. Evans, 18 Miss. 35. 
 ton, I Blackfd. 29. Mcintosh v. ' Curtis v. Root, 28 111. 367. Bar- 
 Chew, I Blackfd. 289. Laselle v. rett v. Thompson, 5 Ind. 457. Banta 
 Moore, l Blackfd. 226. v. McClellan, l McCarter Ch. 120. 
 
 * Bank v. Rogers, 13 Minn. 407. Hoard v. Wilcox, 47 Penn. jl. Peo- 
 
 Mountney v. Andrews, Cro. Eliz. pie v. Hopson, i Denio, 574. Voor- 
 
256 THE LEVY ON [Chap. VIII. 
 
 like actual payment. If the property is given up to the debtor, 
 or if he wrongfully take the property, or do any other act by 
 which the fruits of the levy are destroyed, he cannot claim it 
 as a satisfaction.^ Or it may be released without impairing 
 the creditor's claim ; ^ or rebutted by proof that the property 
 was exhausted in. satisfying other executions.^ But if, from no 
 fault of the officer or creditor, the writ proves of no benefit, it 
 is no satisfaction ; * or where the debtor has not been deprived 
 of his property, or the debt paid. The simple act of levying is 
 no satisfaction, whether he has been permitted to retain the 
 property either by his own misconduct, or by his request, or 
 by the voluntary act of the officer, because neither works any 
 wrong to him.^ Or where it is released by the creditor, and 
 restored to him,^ at his request, or by some act for which he is 
 responsible.^ Or when the debtor consents that the proceeds 
 may be applied to satisfy junior executions.* Or if taken from 
 the officer by due course of law.^ Or is not subject to levy. 
 Or redelivered to the debtor upon his giving a delivery bond.^" 
 
 hees V. Gross, 3 How. P. 262. Taylorv. Ramsey, 4 Hill, 621. Craw- 
 
 Mickles v. Haskin, 11 Wend. 125. ford v. Bank, &c., 5 Ala. 55. Voor- 
 
 ' Nelson v. Rockwell, 14 111. 395. hees v. Gross, 3 How. P. 262. 
 
 • Sasscer v. Walker, 5 G. & J. People v. Hopson, i Denio, 574. 
 102. Morrow v. Hart, i A. K. Hayden v. Agent, i Sand. Ch. 195. 
 Marsh. 291. Cummins's Appeal, 9 W. & S. 73. 
 
 ' Peay v. Fleming, 2 Hill Ch. 97. Stone v. Tucker, 2 Bailey, 495. 
 
 McNutt V. Wilcox, I Free. Ch. 116. 'Williams v. Bowdon, i Swan, 
 
 Moody V. Harper, 28 Miss. 61 5. 203. Morton v. Walker, 8 Miss. 554. 
 
 * Curtis V. Root, 28 111. 367. Smith ' U. S. v. Dashiell, 3 Wall. 688. 
 V. Hughes, 24 111. 170. Green v. Holbrook v. Champlain, Hoflf. Ch. 
 Burke, 23 Wend. 490. 148. Binford v.-Alston, 4 Dev. 351. 
 
 ' Bennett v. McGrade, i; Minn. /« re King, 2 Dev. 341. Thomas v. 
 
 132. Bank of Tenn. v. Turney, 7 Cleveland, 33 Mo. 126. Smith v. 
 
 Humph. 271. Peck v. Tiffany, 2 N. Hughes, 24 111. 270. 
 
 Y. 456. Whiting v. Beebee, 12 Ark. » Barber v. Reynolds, 44 Cal. 520. 
 
 421. Wade V. Watt, 41 Miss. 248. Cornelius v. Buford, 28 Tex. 202. 
 
 Blackburn v. Jackson, 26 Mo. 308. ' Walker v. McDowell, 12 Miss. 
 
 Waddell v. Elmendorf, 5 Denio, 447. 1 1 8. Alexander v. Polk, 39 Miss. 739. 
 
 Green v. Burke, 23 Wend. 496. 'x Walker v. Bradley, 2 Ark. 578. 
 
 Morton v. Walker, 8 Miss. 554. Biscoe v. Sandefur, 14 Ark." 569. 
 
 Ostrander v. Walter, 2 Hill, 231. Douglass v. Twombly, 25 Ark. 124. 
 
Chap. VIII.] PERSONAL PROPERTY. 257 
 
 Or where an appeal is perfected before sale, staying all further 
 proceedings.^ Or where a levy is made by a creditor of one 
 meniber of an insolvent firm upon firm property.^ 
 
 § 177. The Care of Property after Seizure. — In the 
 custody of property seized by an officer, under authority of 
 legal process, he is a quasi bailee, and, as such, is bound only 
 to use such care and diligence in regard to its custody as is 
 required of a bailee who receives compensation for his services, 
 if he otherwise complies with the requisitions of the statute.^ 
 He must use due diligence in keeping the property safely to 
 satisfy the execution — such diligence as the manner and na- 
 ture of his employment make it reasonable to expect of him, 
 and such as careful, prudent men of good sense use in the con- 
 duet of such affairs of their own.* But he is not, like a common 
 carrier, an insurer ; nor is he liable for a loss of the goods by 
 fire, if he has exercised proper care in relation to the custody 
 of the property. If he misuses such property so as to diminish 
 its value, he becomes a trespasser ab initio, and is liable to the 
 injured party.^ Or keeps it in an unsafe place, and it is ex- 
 posed to destruction, it is not due diligence, and he becomes 
 liable.® The officer may intrust its possession to his servant 
 or agent for this purpose, and he will be responsible for the 
 same degree of diligence by such servant or agent in respect to 
 the property as he will be for his conduct were the property in 
 his own actual possession ; and though the execution debtor 
 DC made such agent, this of itself does not increase the officer's 
 liability. But he is liable for the negligence of such bailee, 
 unless such loss is occasioned by act of God or of the public 
 •enemies.^ But if it is done with the assent of the plaintiff or 
 
 Bank of Tenn. V. Turney, 7 Humph. * Briggs v. Taylor, 28 Vt. 185. 
 
 271. Stone V. Tucker, 2 Bailey, Moore v. Westervelt, 27 N. Y. 234. 
 
 495. Crawford v. Bank, &c., 5 Ala. McKinney v. Craig, 4 Sneed, 577. 
 55. Trenary v. Cheever, 48 111. 28. ' Briggs v. Gleason, 29 Vt. 78. 
 
 Watson V. Gabby, 8 B. Mon. 658. McKinney v. Craig, 4 Sneed, 577. 
 
 ' Bennett v. McGrade, 15 Minn. " Moore v.Westervelt, 27 N.Y. 234. 
 132. ' Browning v. Hanford, 5 Denio, 
 
 ' Muir V. Leitch, 7 Barb. 341. 586. State v. Nelson, I Ind. 522. 
 
 ' Price V. Stone, 49 or 50 Ala. — . Bond v. Willett, i Abb. Ct. of App. 
 33 
 
258 THE LEVY ON PERSONAL PROPERTY. [Chap. VIIL 
 
 his attorney, it is at the risk of the plaintiff.^ Where there is 
 no negligence on his part, he is not made liable for losses by- 
 theft, robbery, fire, or other accident.^ He is liable for the 
 safe keeping of the goods seized, and for their value, and he is 
 bound to sell with reasonable diligence.^ It is in contraven- 
 tion of law to permit the possession and control of the property 
 of a defendant in an execution to remain after levy as before, 
 or to sell at private sale, it being not only fraud in fact, but 
 fraud in law ; and if done in pursuance of arrangements made 
 by the execution creditor, he will be postponed to a junior 
 writ.* Goods levied on and regularly sold may be left in pos- 
 session of the debtor.^ The officer is allowed*a reasonable 
 time after seizure for the purpose of removing the property.* 
 An officer is permitted to take a receipt for property levied on, 
 that it will be forthcoming on demand, or that, in default there- 
 of, the receiptor will pay the debt, which will be valid, and not 
 within the statute against taking bonds colore officii^ The 
 bond must specify the property and time of its delivery.^ A 
 party is estopped to deny the existence of the judgment and 
 execution after giving the bond.^ 
 
 Decis. 165. Ray V. Harcourt, 19 " Janvrier v. Vandever, 3 Harring. 
 Wend. 495. Beekman v. Lansing, 29. 
 
 3 Wend. 446. Byrne v. Anderson, * Parry's Appeal, 41 Penn. 273. 
 
 8 La. 139. Moss v. Moore, 3 Hill ■* Latimer v. Batson, 4 B. & C. 
 (S. C), 76. Bullitt V. Winston, i 652. 
 
 Munf. 269. Smith v. Hughes, 24 ' Woods v.Van Arsdale, 3 Rawle. 
 111.270. Cumberland Bank V. Hann, 401. People v. Hopson, i Denio, 
 
 4 Harring. 166. Very v. Watkins, 574- 
 
 23 How. 469. Logsdon v. Spivey, ' Cornell v. Dakin, 38 N. Y. 253. 
 
 54 111. 104. Clever v. Applegate, 2 People v. Reeder, 25 N. Y. 302. P6- 
 
 South. 479. Denton v. Livingston, nobscot Boom Co. v. Wilkins, 27 
 
 9 John. 96. Me. 345. Acker v. Burrell, 23 
 ' Pugh V. Calloway, 13 Ohio S. Wend. 606. 
 
 488. Donham v. Wild, 19 Pick. 520. ^ Tompkins v. Roberts, Litt. Sel. 
 
 ' Browning v. Hanford, ; Denio, Cas. 12. 
 
 586. Jenner v. Joliife, 6 John. 9. ° May v. Johnson, 3 Ind, 449. 
 
 Stewart v. Nunnemacher, 2 Ind. 47. People v. Reeder, 25 N. Y. 302. Pe- 
 
 Donnahv. Kane, 5 Allen. 38. Mitch- nobscot Boom Co. v. Wilkins, 27 
 
 ell v. Commonwealth, 37 Penn. 187. Me. 345. 
 Hartlieb v. McLane, 44 Penn. 510. 
 
Chap. IX.] MATTERS ARISING FROM LEVIES. 259 
 
 CHAPTER IX. 
 
 MATTERS ARISING FROM LEVIES ON PERSONAL 
 PROPERTY. 
 
 Conflict bettueen State and National Courts, — ^ui ■prior, <&c. — 
 When and how the Priority of an Execution Lien may be lost. 
 
 — Requisites necessary to suspend it as against other Credit- 
 ors. — By neglecting to levy. — Leaving Property in Debtor's 
 Possession. — As to what Time Personal Property is bound. 
 
 — Date to -which an Execution relates so as to avoid any 
 Alienation by the Debtor. — After-acquired Property., how 
 it may becom-e bound. — Priority of Levies over Bankruptcy 
 Proceedings. — Trial of the Right of Property. 
 
 § 1 78. In respect to the questions which arise where execu- 
 tions against the same debtor are issued nearly together (one 
 from a state court, and one from a court of the United States), 
 the general principle is, that the execution first actually levied 
 has precedence. Property cannot be the subject of levy under 
 an execution issuing from a federal court and one from a state 
 court at the same time. The first levy, whether it is made 
 under a federal or state authority, withdraws the property from 
 the reach of the process of the other ; and the marshal or sher- 
 iff, as the case may be, acquires by the levy a special property 
 in the goods, and may maintain an action for them.i Where 
 
 ' Hagan v. Lucas, 10 Pet. 400. B. R. 165. Sherman v. Howell, 40 
 
 Brown v. Clarke, 4 How. 4. Logan Ga. 257.' Watson v. Jones, 13 Wall. 
 
 V. Lucas, 59 111. 237. Munson v. T2!7- Juggles v. Simonton, 3 Biss. 
 
 Harroun, 34 111. 422. Foulger v. 525. Evelyn v. Lewis, 3 Hare, 472. 
 
 Taylor, 5 H. & N. 202. Hamilton Payne v. Drewe, 4 East. 523. M. I. 
 
 V. Reedy, 3 McCord, 38. Pierce v. v. M. C. R. R. Co., 15 How. 233. 
 
 Scott, 4 W. & S. 344. Milliken v. Fox v. Hempfield R. R. Co., 2 Abb. 
 
 Selye, 6 Hill, 623. Buckeye v. Snouf- C. C. 151. Johnson v. Bishop, i 
 
 fer, 10 Md. 149. Jones v. Leach, i Woolw. 324. Bell v. L. & T. Co., I 
 
260 MATTERS ARISING FROM [Chap. IX. 
 
 no provision is made for the determination of the priorities 
 between the creditors of the respective courts, state or fed- 
 eral, and where the demands of respective creditors are re- 
 duced to judgment, and the officers of either tribunal are 
 invested with authority to seize the property, the levies are 
 co-ordinate or equal ; and in cases of this kind the tribunal 
 which first acquires possession of the property, by the seizure 
 of it by its officers, may dispose of it so as to vest a title in 
 the purchasers discharged of all claims of creditors of the same 
 rank.^ This rule is the fruit of wisdom and experience, and 
 regulates the relations, and maintains harmony among the 
 various courts of this country. It is the rule in England also. 
 All courts take efficient measures to maintain their control 
 over property within their custody, and support their officers 
 in defending it with constancy and firmness ; nor can inter- 
 fering claimants question the orders under which possession is 
 obtained, on the ground that they were improvidently issued.^ 
 § 179. The lien of an execution issued out of. a United 
 States court commences with the delivery of the writ to the 
 officer. As no provision is made by statute to determine pri- 
 orities between creditors proceeding in federal and state courts, 
 the general principle applies which governs other cases of co- 
 ordinate or equal liens to such creditors. The tribunal which 
 first acquires possession of the property is recognized by 
 
 Biss. 220. Riggs V. Johnson, 6 Wall, bell, Am. L. R. Dec. 1867. Skelly 
 
 197. Bell V. N. A., &c., Co., 2 Biss. v. Bacon. 10 How. 56. Peale v. 
 
 390. Chapin v. James, 7 Chicago Phipps, 14 How. 56. In re Booth, 
 
 Leg. News, 33. U. T. Co. v. R. R., 3 Wis. i. Wood v. Lake, 13 Wis. 
 
 &c., Co., 7 Chicago Leg. News, 33. 34. Booth v. Ableman, 16 Wis. 60. 
 
 Peek V. Jenness, 7 How. 612. Pul- Booth v. Ableman, 20 Wis. 63. 
 
 liamv. Osborne, 17 How. 471. Smith ' Hagan v. Lucas, 10 Pet. 400. 
 
 V. Mclver, 9 Wheat. 532. Freeman Pulliam v. Osborn, 17 How. 471. 
 
 V. Howe, 24 How. 450. Taylor v. Payne v. Drewe, 4 East. 523. Wood- 
 
 Carryl, 20 How. 583. The Oliver rufF v. Chapin, 3 Zab. 566. Sellers 
 
 Jordan, 2 Curtiss C. C. 414. The v. Corwin, 5 Ohio, 398. Tilford v. 
 
 Robert Fulton, i Paine C. C. 620. Burnham, 7 Dana, 109. 
 
 Ex parte Robinson, 6 McLean, 355. ' Russell v. East Anglican Co., 3 
 
 Ex parte Dorr, 3 How. 103. Buck McN. & G. 104. 
 V. Colbath, 3 Wall. 334. In re Camp- 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 261 
 
 Other tribunals as empowered to dispose of it so as to vest a 
 title in the purchaser free from all claims of creditors of the 
 same grade ; and thus where co-ordinate liens are obtained 
 (one under a judgment of a state court, and one under a judg- 
 ment of a United States court), a seizure by a sheriff, in virtue 
 of an execution on the state judgment, gives priority to the 
 lien of that judgment upon the property seized. This rule is, 
 of course, subordinate to any considerations which may show 
 the claim on which one execution is founded to be entitled to 
 a priority over the other, as where the United States has a 
 prior right to payment over private creditors. So fully is the 
 principle of priority recognized in the national courts that 
 property which has been taken on a state execution, and de- 
 livered to a third person claiming the same as his own, on his 
 giving bond to return it to the sheriff in case it shall be deter- 
 mined that the right of property was not in him, is not thereby 
 withdrawn from the custody of the law, or released from the 
 prior lien of the state execution. The custody of the claimant 
 is merely substituted for that of the sheriff; the levy of the 
 execution is not released. The property does not become 
 liable, meantime, to be taken by the marshal under process 
 issuing from the federal courts.-^ 
 
 § 1 80. Where there are several executions issued out of a 
 court of record, and executions issued upon judgments of a 
 justice of the peace against the same debtor, that which shall 
 have been first delivered to an ofiScer for execution shall have 
 preference, notwithstanding he may have made a levy under 
 another execution. The same rule prevails as between attach- 
 ments and executions. If the property is seized by virtue of 
 an order of attachment prior to the issue of an execution, the 
 lien of the attachment has the priority, and nothing but the 
 dissolution of the attachment can cause its priority to be lost.^ 
 
 ' Hagan v. Lucas, 10 Pet. 400. People v. Cameron, 7 111. 468. Vin- 
 
 Pulliam V. Osborn, 17 How. 471. son v. Huddleson, Cooke, 254. Van 
 
 * Goore v. McDaniel, I McCord, Loan v. Kline, 10 John. 129. Desha 
 
 480. Peck V. Webber, 8 Miss. 658. v. Baker, 3 Ark. 509. Davenport v. 
 
 Smith V. Bradstreet, 16 Pick. 264. Lacon, 17 Conn. 278. Schluckett 
 
262 
 
 MATTERS ARISING FROM 
 
 [Chap. IX. 
 
 No subsequent act of the legislature can destroy the specific 
 lien created by a levy.^ But if a levy and sale of any goods 
 and chattels shall have been made under a subsequent execu- 
 tion, before an actual levy under the execution first delivered 
 to the officer, such goods and chattels shall not be levied upon 
 or sold by virtue of such first execution. Where the officer 
 sells the property upon a junior execution, but before paying 
 over the money he discovers that a prior execution is entitled 
 to the whole or part of the proceeds, he may at any time, be- 
 fore making his return, apply the money accordingly.^ 
 
 § i8i. Qui prior est tempore, potior est jure. — While 
 an execution issuing out of a court of record becomes a lien 
 upon the goods and chattels of the defendant from the time 
 of its delivery to the officer for execution, yet if any other exe- 
 cution, issued out of any court, be actually levied, it has pref- 
 erence over any other writ not actually levied.^ The respective 
 
 & Clyde's Appeal, 14 Penn. 326. 
 Erskine v. Staley, 12 Leigh. 406. 
 Moore v. Holt, 10 Grattan, 284. 
 Gary v. Gregg, 3 Stewart, 433. Mur- 
 ray V. Gibson, 2 La. Annual, 311. 
 Hervey v. Champion, 11 Humph. 
 569. Snell V. AUerf, i Swan, 208. 
 Ziegenhagen v. Doe, i Ind. 296. 
 Pierson v. Robb, 4 111. 439. Martin 
 V. Dryden, 6 111. 187. Lyon v. Sand- 
 ford, 5 Conn. 344. Lackey v. Sei- 
 bert, 23 Mo. 85. Hannahs v. Felt, 
 15 la. 141. 
 
 ' Franklin Bank v. Batchelder, 23 
 Me. 60. Davenport v. Tilton, 11 
 Met. 320. Kitredge v. Warren, 14 
 N. H. 509. Kitredge v. Emerson, 
 15 N. H. 227. BufFum v. Seaver, 16 
 N. H. 160. Vreeland v. Brown, I 
 Zabr. 214. Wells v. Brandner, 18 
 Miss. 348. Downer v. Brackett, 21 
 Vt. 599. Rowell's Case, 21 Vt. 620. 
 Haughton v. Eustis, 5 Law Rep. 505. 
 Ingraham v. Phillips, i Day. 117. 
 
 McKeithan v. Terry, 64 N. C. 25. 
 Sluder v. Rogers, 64 N. C. 289. 
 
 " Rankin v. Scott, 12 Wheat. 177. 
 Kirk V. Vonberg, 34 111. 440. Mar- 
 shall V. McLean, 3 G. Greene, 363. 
 Peck V. Tiflfany, 2 N. Y. 451. Mil- 
 lien V. Commonwealth, i B. Mon. 
 311. Kennon V. Ficklin, 6 B. Mon. 
 415. Rogers V. Dickey, 6 111. 630. 
 
 ' Lash V. Gibson, i Murph. 266. 
 Jones V. Judkins, 4 Dev. & B. 454. 
 Seller v. Corwin, 5 Ohio, 398. Til- 
 ford V. Burnham, 7 Dana, 109. Ir- 
 win V. Sloan, 2 Dev. 349. Ricks v. 
 Blount, 4 Dev. 128. Moore v. Fitz, 
 15 Ind. 43. MarsTi v. Lawrence, 4 
 Cow. 461. McCall V. Trevor, 4 
 Blackfd. 496. Jones v. Davis, 2 Ala. 
 730. Ray v. Harcourt, 19 Wend. 
 495. Dubois V. Harcourt, 20 Wend. 
 41. Religious Society v. Hitchcock, 
 2 Browne, 333. Harrison v. Sipp, 
 8 Blackfd. 455. Arberry v. Noland, 
 2 J. J. Marsh. 421. Wylie v. Hyde, 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 
 
 263 
 
 rights of the execution creditors inter se must in very many 
 cases be determined by applying the maxim Qui prior, &c. In 
 no other branch of the law has this maxim any greater force 
 or effect than in the determination of the rights of respective 
 creditors in regard to the priorities of the liens created by the 
 levy of an execution or writ of attachment. A prior lien, or 
 the first levy made, gives a prior claim which is entitled to 
 prior satisfaction out of the fund to which it attaches ; -^ unless 
 such lien be intrinsically defective, or be displaced by some 
 act of the party holding it, which . may operate in a court of 
 law or equity to postpone such prior right to that of a subse- 
 quent claimant.^ Courts will not on the application of only 
 
 13 John. 249. Smallcorn v. Sheriffs, 
 &c.. Comb. 428. Field v. Milburn, 
 •9 Mo. 492. MfCleland v. Slingluff, 
 7 W. & S. 134. Knox V. Webster, 
 18 Wis. 400. Rust V. Pritchett, 5 
 Harring. 260. 
 
 ' Weed V. Pierce, 9 Cow. 722. 
 Feise v. Wray, 2 East. 93. Hutchin- 
 son V. Johnson, I T. R. 732. Drewe 
 V. Lainson, 11 A. & E. 537. Jones 
 V. Atherton, 7 Taunt. 56. McCantz 
 V. Rogers, Const. Rep. 443. Small- 
 ■comb V. Cross, i Ld. Raym. 251. 
 Kempland v. Macaulay, Peake, N. 
 P. C. 95. Religious Society v. Hitch- 
 cock, 2 Browne, 333. Arberry v. 
 Noland, 2 J. J. Marsh. 421. Wylie 
 -V. Hyde, 13 Johns. 249. Galbraith 
 "v. Fisher, 22 Penn. 400. Sawle v. 
 Painter, i D. & R. 307. Kring v. 
 'Green, 10 Mo. 195. Ricks v. Blount, 
 4 Dev. 128. Irwin v. Sloan, 2 Dev. 
 349. Lash V. Gibson, i Murph. 266. 
 Jones V. Judkins, 4 D. & B. 454. 
 Furman v. Christie, 3 Rich. i. Hu- 
 ger V. Dawson, 3 Rich. 328. Carne- 
 -ghan V. Brewster, 2 Penn. 41. In 
 ^e Ives, I Hill, 639. Trapnall v. 
 Jordan, 7 Ark. 436. Shafner v. Gil- 
 
 more, 3 W. & S. 438. Smith V. 
 Lind, 29 111. 24. Becker v. Tor- 
 rance, 31 N. Y. 631. Peck V. Rob- 
 inson, 3 Head. 438. In re Shuey, 
 6 Chic. Leg. News, 248. First Nat. 
 Bank v. Redman, 57 Me. 405. Bruce 
 V. Vogel, 38 Mo. 100. Schaller v. 
 Wickersham, 7 Coldw. 376. Brown 
 V. Early, 2 Duval, 369. Fowler v. 
 Trebein, 16 Ohio S. 493. Willough- 
 by V. Willoughby, i T, R. 730. 
 Pritchard v. Toole, S3 Mo. 356. 
 McCobb V. Tyler, 2 Cranch C. C. 
 199. McMahan v. Hall, 36 Tex. 69. 
 Puryear v. Taylor, 12 Gratt. 401. 
 Talmadge v. Sill, 27 Barb. 34. Lynch 
 V. Hannahan, 9 Rich. Law (S. C.) 
 186. McNair v. Bateman, 27 Ga. 
 181. Clement v. Kaign, 2 McCarter, 
 47. - Patterson v. Fowler's Ex'rs, 23 
 Ark. 459. McCance v. Taylor, 10 
 Gratt. s8o. Bedford v. Hunt, I 
 Mason, 302. Bean v. Smith, 2 Ma- 
 son, 252. Wiggin V. Doi;r, 3 Sum. 
 410. Hallett V. Collins, 10 How. 
 174. Watson V. Leroy, 6 Barb. 485. 
 Boone v. Chiles, 10 Pet. 177. Brace 
 V. Duchess, &c., 2 P. Wms. 490. 
 " Rankin v. Scott, 12 Wheat. 179. 
 
264 MATTERS ARISING FROM [Chap. IX. 
 
 one party interested determine the , priorities between the 
 writ^ ; ^ it is purely a question of law.^ As between mere 
 equitable claims, it may be laid down as a general rule, equity 
 will give no preference, and mortgages, judgments, and recog- 
 nizances will be alike payable according to their respective- 
 priority of date.^ Nor does an execution at law give any pref- 
 erence in equity unless it creates a lien at law.* A levy upon 
 lands, duly made and recorded within the statutory time, has 
 precedence over a prior unrecorded leyy.^ An assignment by 
 a judgment creditor of a judgment recorded under the laws of 
 Louisiana, and thus made a lien on the judgment debtor's real 
 estate, is good as against an execution issued in a subsequent 
 suit against such creditor.^ Between the ofiScer and the cred- 
 itor the general rule is, that the first writ delivered to him is 
 entitled to priority.^ Where there are several judgments of 
 the same date, the judgment on which the first levy is made 
 is the prior one.® So if the judgments are not liens.® 
 
 § 182. Lien of an Execution. — The common-law rule in 
 regard to the lien of an execution upon personal property, from 
 its teste is adopted in some of the American states, and binds. 
 the property against all but bona fide purchasers without 
 notice ; ^" in other states, from the time of the delivery of the 
 
 Marshall v. McLean, 3 Green (la.) ' Rockhill v. Hanna, i; How. 189. 
 
 363. Rogers v. Dickey, 6 111. 636. Adams v. Dyer, 8 John. 350. Wa- 
 
 Kirk V. Vonberg, 34 111. 440. terman v. Haskin, 1 1 John. 228. 
 
 ' McDonald v. Laury, i Halst. Bruce v. Vogle, 38 Mo. 100. 
 
 414. ° Lathrop v. Brown, 23 la. 40. 
 
 ' Child V. Dwight, i D. & B.Ch. '» Daley v. Perry, 9 Yerg. 442.. 
 
 I7I- Beckerdite v. Arnold, 3 Hawks. 296.. 
 
 ' Brace v. Duchess of Marlbor- Gilkey v. Dickerson, 3 Hawks. 293.. 
 
 ough, 2 P. Wms. 491. Willoughby Hardingv. Spivey, 8 Ired. 63. Unioft 
 
 V. Willoughby, i T. R. 773. Bank v. McClurg, 9 Humph. 91. 
 
 * McKay v. Williams, i Dev. & Barnes v. Haynes, I Swan, 304. 
 Bat. Ch. 398. ' Evans v. Barnes, 2 Swan, 292. Par- 
 
 ' Doe V. Flake, 19 Me. 249. Pope ish v. Saunders, 3 Humph. 431. Cox 
 
 V. Cutler, 23 Me. 105. v. Hodge, i Swan, 371. Grooms v^ 
 
 • Stockton V. Ford, 11 How. 232. Dixon, 5 Strobh. 149. Morrisey v^ 
 ' Smallcomb v. Cross, i Ld. Hill, 9 Ired. 66. Erwin v. Dundas^ 
 
 Raymd. 251. Kempland v. Macau- 4 How. 58. 
 lay, Peakes, N. P. C. 95. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 265 
 
 writ to the officer.^ The general rule in this country is, that 
 personal property is bound only from the time of the seizure 
 by the officer.^ While the goods are bound from the delivery 
 of the writ to the officer, the property in them is not changed, 
 and they may be sold subject to the execution by the debtor. 
 Where the judgment is a lien on lands, there can be no inde- 
 pendent lien acquired by the issue of an execution. But where 
 land is seized by virtue of a judgment which is no lien, the 
 execution becomes a lien.^ The lien of an execution is not 
 affected by striking out the name of a person who is not a 
 party to the judgment.* It is only on the property described 
 in the inventory and appraisement^ In North Carolina, the 
 lien acquired by the mere issue of a wrjt does not affect the 
 title, but amounts only to a charge which the lien imposes 
 upon the property. A levy is necessary to prevent the debtor 
 from securing a homestead exemption after its issue.^ Nor is 
 it a lien on the ungathered crop of the defendant, or on after- 
 acquired property.'^ It extends only to the goods and chattels 
 of the defendant in the county where issued.^ A person ac- 
 quiring a lien occupies no better position, as regards subsisting 
 
 ' Hutchinson v. Johnson, i T. R. 223. Field v. Milburn, 9 Mo. 492. 
 
 732. Woodland v. Fuller, 3 Per. & Gilkey v. Dickson, 2 Hawks. 341. 
 
 D. 570. Waller V. Best, 3 How. III. Hamilton v. Hamilton, i Dutch. 544. 
 
 Dodd V. McCraw, 8 Ark. 93. Arnold Johnson v. McLean, 7 Blackfd. jio. 
 
 V. Bell, I Hayw. 396. Ray v. Birds- Marshall v. Cunningham, 13 111. 20. 
 
 eye, 5 Denio, 619. Lambert v. French v. Allen, 50 Me. 437. Knox 
 
 Paulding, 18 John. 311. Layton v. v. Webster, 18 Wis. 406. Estes v. 
 
 Steel, 3 Harring. 512. Duncan v. Williams, Cooke, 413. Furlong v. 
 
 McCumber, 10 Watts, 212. Hobson Edwards, 3 Md. 99. Tabb v. Harris, 
 
 V. Thelluson, 2 Q. B. 642. Tullis v. 4 Bibb. 31. McMahon v. Green, 12 
 
 Brawley, 3 Minn. 277. Taylor v. Ala. 71. Dodge v. Mack, 22 III. 93. 
 
 Horsey, 5 Harring. 131. Duify v. ' Riland v. Eckert, 23 Penn. 215. 
 
 Townsend, 9 Mart. 585. Samuel * Andress v. Roberts, 18 Ala. 387. 
 
 V. Duke, 3 M. & W. 622. Brown v. ° Farmers' Bank v. Massey, I 
 
 Barnes, 8 Mo. 26. Million v. Riley, Harring. 186. 
 
 I Dana, 359.' Childs v. Dilworth, " Horton v. McCall, 66 N. C. 159. 
 
 ■ 44 Penn. 123. Newell v. Sibley, l Ladd v. Adams, 66 N. C. 164. 
 
 South, 381. ' Caldwell v. Fif.eld, 4 Zabr. 150 
 
 ' Reeves v. Seborn, 16 la. 234. Evans v. Lamar, 21 Ala. 333. 
 
 Cogswell V. Warren, 2 Curtis, C. C. ^ Pond v. Griffin, i Ala. 678. 
 34 
 
266 MATTERS ARISING FROM [Chap. IX. 
 
 adverse claims, than does a purchaser with notice.^ In those 
 states where the common-law rule is applicable, the issuing of 
 subsequent writs of execution in proper time cuts off the lien 
 of executions issued between the times the original and sub- 
 sequent ones are issued.^ A levy made during the existence 
 of the lien of a judgment will not operate to continue the same 
 beyond the statutory period ; ^ and it ceases with the return 
 of the execution, unless there is a levy, and that may be waived 
 by issuing an alias in place of a venditioni} Where an exe- 
 cution is renewed on the day it expires, and, where property 
 is sent from county to county, the execution is sent with it to 
 the hands of the proper officer, the lien of. the execution is 
 preserved.^ Where a judgment of an inferior court is sus- 
 pended by an appeal to a superior court, if the judgment is 
 affirmed, execution issues from the inferior court, and the lien 
 of its judgment remains good, notwithstanding the suspension 
 of the judgment ; but where the judgment is reversed, or a 
 new judgment is rendered by the superior court, execution 
 may issue from the superior court, or from the inferior cpurt 
 upon the judgment of the superior court, and the lien of the 
 former judgment is lost.® It ceases by the giving of a delivery 
 bond ; ^ . in Tennessee, after the forfeiture of the bond ; ^ but 
 is not affected by a general assignment for the benefit of cred- 
 itors.® If the plaintiff becomes the owner of the land upon 
 which the judgment is a lien, it becomes extinct. i" In Illinois 
 and Missouri, a levy binds more than ten days after the return 
 day.^i and is not dissolved by the death of the defendant.^^ In 
 South Carolina they bind property throughout the state from 
 the time they are entered in the sheriff's office.^^ The lien 
 
 ' O'Rourke v. O'Connor, 39 Cal. ' Harris v. Ellis, 30 Tex. 4. 
 
 442. Parker v. Dean, 45 Miss. 408. 
 
 » Brasfield v. Whittaker, 4 Hawk. * Malone v. Abbott, 3 Humph. 532. 
 
 309' ° Graydonv. Barlow, 15 Ind. 197. 
 
 =■ Tenney v. Hemenway, 53 111. >» Koons v. Hartman,. 7 Watts, 20. 
 
 97. Gridley v. Watson, 53 111. 186. " Logsdon v. Spivey, 54 111. 104. 
 
 Ewing V. Ainsworth, 53 111. 464. McDonald v. Gronefield, 45 Mo. 28. 
 
 * Ross V. Alexander, 65 N. C. 576. "^ Burge v. Brown, 5 Bush. 535. 
 
 * Formanv. Proctor, 9 B.Mon.324. Kimbal v. Jenkins, n Fla. 9. 
 
 * Meyer V. Campbell, 12 Mo. 603. " Woodward v. Hill, 3 McC'd, 241. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 267 
 
 created by a seizure on execution is confined to the execution 
 levied, and it is prior and superior to that of every execution 
 subsequently levied, and cannot be defeated by such subse- 
 quent levy, even though made on a senior execution.^ It can- 
 not continue by delation a lien created by a previous execution, 
 unless it purports on its face to be an alias ; ^ and, if regularly 
 renewed from term to term, and left in the hands of the officer, 
 is a hen on the personalty of the debtor in the county, in 
 Alabama ; ^ but is lost by failing to issue within the statutory 
 period, as to other writs.* The omission to indorse the time 
 ■of receiving an execution does not give priority to a subsequent 
 writ whereon the. time of its receipt is indorsed.^ And where 
 both real and personal property is levied on at the same time, 
 a sale of the real property, made by mistake prior to the sale 
 of the personal property, does not divest the lien of the levy 
 upon the personal property.® A levy cannot create lien sepa- 
 rate from the possession of the property.' The lien is on the 
 property, not the proceeds in the hands of a purchaser.^ 
 
 § 183. When and how the Priority of an Execution 
 Lien may be lost. Requisites necessary to suspend it 
 AS against other Creditors. — Controversies relating to 
 the priorities of executions generally arise between conflicting 
 claimants of personal property seized or liable to seizure upon 
 •execution. The principles of law governing this class of cases 
 are not applicable to levies on real estate. The lien upon real 
 property, as a general rule, depends upon the date, entry, or 
 ■docketing of the judgment upon which it issues, and not upon 
 the writ or levy. Unless in accordance with express statutory 
 ■enactment, the lien of a judgment never becomes dormant 
 until it expires by the limitation imposed by statute.^ While 
 ■executions, in accordance with the universal rule, are to be 
 satisfied in their order of priority, or in their rank as liens 
 
 ' Knox V. Webster, 18 Wis. 406. ' Hale's Appeal, 44 Penn. 438. 
 
 " Mclver V. Ritter, i Wins. N. C. ° Childs v. Dilworth, 44 Penn. 123, 
 
 Eq. 56. ' Davidson v. Waldron, 31 111. 120. 
 
 ' King V. Kenan, 38 Ala. 63. ' Paysinger v. Shumpard, i Bailey, 
 
 * Patterson v. Fowler's Ex'rs, 23 237. 
 
 Ark. 459. ' Muir v. Leitch, 7 Barb. 341. 
 
268 MATTERS ARISING FROM [Chap. IX. 
 
 upon the personalty, in the order of their receipt by the officer, 
 yet, by certain acts of the parties, or their neglects, the first 
 or prior execution may become dormant in the hands of the 
 officer, and thus lose its prior lien. When by any act it loses 
 its priority, it is only in favor of subsequent writs issued upon 
 judgments obtained by other creditors, and such subsequent 
 or junior execution which is executed becomes entitled to the 
 preference. There is no settled rule whereby it may be deter- 
 mined when a senior writ loses its preference. Each particu- 
 lar case must be determined by its own peculiar circumstances 
 in order to ascertain when it has become dormant in the hands 
 of the officer, thus giving preference to the process issued by 
 a creditor at a period subsequent to the issue of the first. 
 Among the causes which effect such a result is, where the 
 party plaintiff interferes, and instructs the officer not to make 
 a levy, or delay action. There must in this case be an inter- 
 ference with the execution of the writ by the plaintiff, in order 
 to ,make it dormant ; ^ or a failure to advertise and sell within 
 the time prescribed by statute ; ^ or by the return, if stopped 
 or stayed by injunction or agreement of the parties.^ Or 
 where there are two, and the oldest is enjoined.* But if the 
 injunction is dissolved before sale on the junior writ, the prior 
 one is restored to its position of seniority,^ if placed in the 
 officer's hands with any other view than the enforcement of 
 the judgment on which it issues,® as to keep off other cred- 
 
 ' Michie v. Planters' > Bank, 5 Porter v. Cocke, Peck, 30. Power 
 
 Miss. 178. Cockrel v. Wynn, 20 v. Van Buren, 7 Cow. 560. Cook v. 
 
 Miss. 117. Knower v. Barnard, 5 Wood, i Harr. 254. KaufFelt's Ap- 
 
 Hill, 377. Storm v. Woods, 11 John, peal, 9 Watts, 334. Ross v. Wilber, 
 
 no. Farrington v. Sinclair, 15 John. 26 III. 221. Deposit Bank v. Berry, 
 
 429. Kellogg V. GrifBn, 17 John. 2 Barb. 236. 
 
 274., Dickinson v. Cook, 17 John. " Plaisted v. Hoar, 45 Me. 380. 
 
 332. Rew V. Barber, 3 Cow. 272. ^ Eldridge v. Chambers, 8 B. Hon. 
 
 Russell V. Gibbs, 5 Cow. 390. Ben- 411. 
 
 jamin V. Smith, 12 Wend. 404. Kim- •* Mitchell v. Anderson, i Hill, 
 
 ball V. Munger, 2 Hill, 364. Kemp- (t,. C.) 69. 
 
 land V. Macaulay, Peake, N. P. C. ° Duckett v. Dalrymple, i Rich. 
 
 95. Pringle v. Isaac, 11 Price, 445. 143. 
 
 Samuel v. Duke, 3 M. & W. 622. « Weir v. Hale, 3 W. & S. 28 ij. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 269 
 
 itors ; ^ or with a direction to " stay proceedings," and the 
 debtor in the mean time sells it to a bona fide purchaser ; ^ or 
 by unreasonable delay,^ a relinquishment of a levy by the 
 officer.* A creditor who has made a levy has priority over 
 one who has failed to find any property to levy on.^ Where a 
 creditor is pursuing his legal remedy by execution, something 
 more than a notice, or a lis pendens, is required to prejudice 
 his lien.^ Where a creditor causes execution to issue, and 
 personal property to be taken under it, thereby producing a 
 conditional satisfaction of his own judgment, and depriving 
 other creditors of the benefit of a levy upon the same property, 
 he cannot withdraw his execution so as to insist upon the 
 operation of his judgment as a lien upon real estate as against 
 other parties.'^ Property seized and advertised to be sold, and 
 before sale is stayed, cannot be seized on a junior writ, in 
 Louisiana, before its release from seizure on the older one.* 
 In New Jersey, a junior execution delivered in conformity with 
 the law destroys the priority of a senior judgment upon which 
 no final process has issued.® Where no execution issues upon 
 a judgment recovered against a woman dum sala until after 
 her marriage, the execution constitutes no lien on her property, 
 .and no impediment to the levy of an execution against her 
 .and her husband.^" Where there are statutory provisions giv- 
 ing priority to junior judgment creditors, who have caused 
 ■execution to issue, over older judgment creditors who fail, 
 refuse, or neglect to sue out final process, it refers and applies 
 
 Mathews v. Warne, 6 Halst. 295. 236. Lovick v. Crowder, 8 B. & C. 
 
 Stern's Appeal, 64 Penn. 447. Free- 132. 
 
 burger's Appeal, 40 Penn. 244. * Weber v. Henry, 16 Mich. 399. 
 
 ' Bradley v. Wyndham, i Wils. ' Becker v. Torrance, 31 N. Y. 
 
 44. Corlies v. Stanbridge, 5 Rawle, 631. Peck v. Robinson, 3 Head. 
 
 286. 438. 
 
 '■ Hickman v. Caldwell, 4 Rawle, " Becker v. Torrance, 31 N.Y. 631. 
 
 376. Commonwealth v. Strembach, ' Lyon v. Hampton, 20 Penn. 46. 
 
 3 Rawle, 341. Wise v. Darby, 9 * Denton v. Woods, 19 La. 356 
 
 Mo. 131. Hickok v. Coates, 2 Lynn v. Gridley, i Miss. 548. 
 
 Wend. 419. Ross v. Weber, 26 111., ' Clement v. Kaighn, 2 McCarter, 
 
 321. 47. 
 
 ' Deposit Bank v. Berry, 2 Bush. '" Haygood v. Harris, 13 Ala. 65. 
 
270 MATTERS ARISING FROM [Chap. IX. 
 
 only in the case of living judgment creditors. Where any of 
 the older creditors are dead, they cannot properly be said to 
 refuse, fail, or neglect to issue execution.^ The mere neglect 
 or delay of the officer, without any interference or directions, 
 assent or approval, of the plaintiff, will not cause a senior writ 
 to lose its' priority .2' Or a return before the return day.^ An 
 injunction staying proceedings, unless a bond is given.* A 
 postponement of the sale to any time within the life of the 
 writ, being a mere adjournment ; ^ but a postponement beyond 
 the return day is equivalent to an indefinite postponement, and 
 is fraudulent for the reason that no sale could be tnade on the 
 writ, or by unreasonable delay to sell.^ A stay by order of 
 court on a judgment by default, where the judgment and exe- 
 cution are made a security for what may be recovered, where 
 the default is set aside at the defendant's request.^ A mis- 
 taken entry of satisfaction on an execution made without any 
 authority or payment.^ But it so far extinguishes the lien of 
 the judgment on which it issues, that property sold after such 
 return would not be bound by it ; but not, if the sale is made 
 after vacating the return.® Where a party has two judgments 
 against the same debtor, of different dates, and a seizure and 
 sale is made under the second, the rights of the party, as 
 against a purchaser with notice of the older judgment, is not 
 prejudiced by the sale.^" An alias writ, being of the same 
 
 ' Dibble v. Norton, 44 Miss. 158. ' Wood v. Gary, j Ala. 43. 
 
 ' Leach v. Williams, 8 Ala. 759. ■• Conway v. Jett, 3 Yerg. 481. 
 
 Johnson v. Williams, 8 Ala. 529. ' Dancy & Co. v. Hubbis, 71 N. 
 
 Howell V. Alkyn, 3 Rawie, 282. C. 424. Logan v. Dougherty, 70 N. 
 
 Adair v. McDaniel, i Bail. 158. C. 558. 
 
 Casher v. Peterson, i South. 317. « Lantz v. Worthington, 4 Penn. 
 
 McCoy V. Reed, 5 Watts, 300. Wil- 453. Bank v. Berry, 2 Bush. 621. 
 
 liamson v. Johnston, 7 Halst. 86. Webber v. Henry, 16 Mich. 399. 
 
 James v. Burnett, Spencer, 636. ' Richards v. Morris Canal, i 
 
 Houston V. Sutton, 3 Harring. (Del.) Spencer, 136. 
 
 37. Snipes v. Sheriff, i Bay. 295. « Sims v. Campbell, I McC. Ch. 
 
 Brown v. Gilleland, 3 Dess. 539. 53. 
 
 Greenwood v. Naylor, i McCord, ° Parks v. Person, i S. & M. Ch. 
 
 414. Taylor v. Daniel, 9 B. Mon. 76. 
 
 S3. Hickman v. Hickman, 3 Harr. '° Shotwellv. Murray, i John. Ch. 
 
 484. Brown's Appeal, 26 Penn. 490. 512. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 271 
 
 teste as other writs, is not postponed by reason of indulgences 
 granted on the original.^ Mere delay to have judgment en- 
 tered, or execution issue, without other evidence, is not suffi- 
 cient to warrant a finding of collusion.^ A creditor may cause 
 execution to issue within the time provided by law, and if he 
 agrees to. stay execution for any specified time, he will not 
 subordinate the lien of his judgment to that of junior ones.* 
 A lien or priority cannot be lost without the fault of the cred- 
 itor, unless the officer becomes liable.* A levy on an execu- 
 tion on part only loses its preference as to the balance of the 
 property as against other creditors.* 
 
 § 184. Neglecting to levy, or leaving Property with 
 Debtor, waives its Lien. — By delivering a writ to an officer 
 with instructions not to levy until a future day, and in the 
 meanwhile another writ is delivered to him, he must proceed 
 with the second writ as if no other had ever been delivered to 
 him.* Neglecting to levy within one year.'' A sheriff, after 
 having levied on goods and chattels, is presumed, in law, to 
 have the possession or custody of them, and he must take care 
 of them at his peril. He may leave them in the actual posses- 
 sion of the defendant until the day of sale, and, in such case, 
 the law will consider the defendant as his agent or bailiff ; but 
 will be at the risk of the sheriff, as between him and the plain- 
 tiff. Goods so left by the sheriff, acting in good faith, would 
 not be liable to seizure on a subsequent execution, so as to 
 avoid the former levy.* He may leave the goods by the plain- 
 tiff's direction or consent, and at his risk, without thereby 
 
 ' Roberts v. Oldham, 63 N. C. 445. Dutertre v. Driard, 7 Cal. 549. 
 
 297. Deposit Bank v. Berry, 2 Bush. 236. 
 
 ' Devoe v. Brandt, 58 Barb. 493. ' McCormickv. Alexander, 2 Ohio, 
 
 ' Love V. Harper, 4 Humph. 113. 63. Patten v. Sheriff, 2 Ohio, 396. 
 
 Muir V. Leitch, 7 Barb. 341. Waymire v. Stayley, 3 Ohio, 367. 
 
 * Bain v. Lyle, 68 Penn. 60. Ben- Dugan v. Waring, 1 1 Ala. 988. U. 
 
 son V. Berry, 55 Barb. 620. S. Bank v. Longworth, i McLean, 
 
 ' Walpole V. Ink, 9 Ohio, 142. 35. 
 
 ' Slocumb V. Blackburn, 18 Ark. ' Cox v. McDougal, 2 Yeates, 434. 
 
 309. Hunt V. Hooper, 12 M. & W. Swift v. Hartman, 2 Yeates, 435. 
 
 664. Kempland v. Macaulay, 4 T. Levy v. Wallis, 4 Dall. 167. Crow- 
 
 R. 436. Pringle v. Isaac, 11 Price, den v. Brady, 8 S. & R. 510.- 
 
272 
 
 MATTERS ARISING FROM 
 
 [Chap. IX. 
 
 losing the legal custody of them, or the plaintiff's priority, if 
 done in good faith, however long the goods may be so left with 
 the defendant.^ But if the plaintiff, when he gives the execu- 
 tion to the sheriff, directs him not to proceed to sale without 
 further orders, and the defendant is permitted, with the knowl- 
 edge and consent, express or implied, of the plaintiff, not only 
 to use, but to exercise an imUmited control and dominion over 
 all the property levied on, selling, consuming, or disposing of 
 it as his own, it is evidence of a fraudulent or colorable use of 
 the execution, so as to let in a younger execution prosecuted 
 in good faith.^ But if left unreasonably long, without the return 
 of the writ, the delay will afford evidence of the plaintiff being 
 the fraudulent cause of it, and vitiates it.^ In other states the 
 rule is, that, in order to prevent a levy under a senior writ 
 from becoming dormant as to junior ones, it is the duty of the 
 officer to take possession, and hold the same until the prop- 
 
 ' Cumberland Bank v. Hann, 4 
 Harring. 166. Herkimer Bank v. 
 Brown, 6 Hill, 232. 
 
 ' Bradley v. Wyndham, i Wils. 
 44. Keyser's Appeal, 13 Penn. 409. 
 Acton V. Knowles, 14 Ohio, S. 18. 
 Davidson v. Waldron, 31 111. 120. 
 Surjert v. Thomas, 7 Dana, 220. 
 Cook V. Wood, 4 Harr. 254. Kellogg 
 V. Griffin, 17 John. 274. Cumberland 
 V. Hann, 4 Harr. 166. Earl's Ap- 
 peal, 13 Penn. 483. Imray v. Mag- 
 nay, II M. & W. 267. Lovick V. 
 Crowder, 8 B. & C. 132. West v. 
 Skipp, I Ves. 244. Hunt v. Hooker, 
 12 M. & W. 664. Ball V. Shell, 21 
 \^^end. 222. Knower v. Barnard, 5 
 Hill, 877. Wood V. Van Arsdale, 4 
 Rawle, 401. Wier v. Hall, 3 W. & 
 S. 285. United States v. Conyng- 
 ham, 4 Dall. 458. Barnes v. Billing- 
 ton, I Wash. 29. Berry v. Smith, 3 
 Wash. 60. Russell v. Gibbs, 5 Cow. 
 390. Sawle V. Painter, i D. & R. 
 
 307. Pavy's Appeal, 41 Penn. 273. 
 Rew V. Barber, 3 Cow. 272. Storm 
 V. Woods, II John. no. Dickinson 
 V. Cook, 17 John. 332. Benjamin v. 
 Smith, 12 Wend. 404. Heitzman v. 
 Divil, II Penn. 264. Herkimer 
 Bank v. Brown, 6 Hill, 232. Butler 
 V. Mayiiard, 11 Wend. 548. Far- 
 rington v. Sinclair, 15 John. 428. 
 Etheridge v. Edwards, i Swan, 426. 
 Parker v. Waugh, 34 Mo. 340. 
 Whipple V. Foote, 2 John. 418. 
 Hickok V. Coates, 2 Wend. 419. 
 
 ' Lewis V. Smith, 2 S. & R. 142. 
 Corlies v. Stanbridge, 5 Rawle, 286. 
 Albertson v. Goldsby, 28 Ala. 71. 
 Kirkpatrick v. Cason, i Vroom, 331. 
 Slocumb V. Blackburn, 18 Ark. 309. 
 Eberle v. Mayer, i Rawle, 366. 
 McClure v. Ege, 7 Watts, 74. Metz 
 V. Hanman, 5 Whart. 150. Com- 
 monwealth V. Stremback, 3 Rawle, 
 341. Wood V. Gary, 4 Ala. 43. 
 PAtton V. Hay tor, 15 Ala. 18. 
 
Chap. IX,] LEVIES ON PERSONAL PROPERTY. 273 
 
 -erty is disposed of.^ Where this rule is followed, the leaving 
 of the property in the debtor's possession is void as to subse- 
 quent creditors ; ^ and a sale to a bona fide purchaser without 
 notice will take precedence of the lien of the execution.^ So 
 a subsequent levy, without notice of the first.* Or by taking a 
 bond for the debt, staying proceedings, and leaving the debtor 
 in possession!^ Or where a purchaser gives his note in pay- 
 ment, and the officer holds the goods until the note is paid.^ 
 The exceptions are, where the property is of such a nature or 
 •condition that it is a sufficient cause for leaving it in the debt- 
 or's possession.'' Or where, without the direction of the plain- 
 tiff, the officer permits it to remain in the debtor's possession, 
 and returns the writ without sale under the impression that 
 his successor has qualified, and is the proper person to make 
 the sale ; and for a reasonable time, and without fraud, the 
 •defendant will be presumed to be the agent of the officer, and 
 the levy will not be thereby postponed to the claims of inter- 
 vening purchasers, or junior executions.* But if a writ issues 
 on a judgment wherein the debtor is not rightly named, or the 
 name is written in some foreign language, it loses its prece- 
 dence over other writs issued against the same person by his 
 proper name.^ So a levy niade on a dormant judgment.^" Or 
 
 ' Harding v. Janes, 4 Vt. 462. Owens v. Patterson, 6 B. Mon. 318. 
 
 Bagley V. White, 4 Pick. 395. Mills Ross v. Walter, 26 111. 221. Hickok 
 
 V. Camp, 14 Conn. 219. Taintor v. v. Coates, 2 Wend. 419. Snyder v. 
 
 Williams, 7 Conn. 271. Beam, i Browne, 366. Williams v. 
 
 = Zug V. Laughlin, 23 Ind. 170. Shelly, n N. Y. 375. Millspaugh 
 
 Mangum v. Hamlet, 8 Ired. 44. v. Mitchell, 8 Barb. 333. 
 Pomeroy v. Kingsley, I Tyler, 294. ' Lewis v. Smith, 2 S. & R. 142. 
 
 Guardians, &c., v. Lawrence, 4 Border v. Benge, i? la. 330. 
 Yeates, 195. Barham v. Massey, S ' Truitt v. Ludwig, 25 Penn. 145. 
 Ired. 192. Green v. Allen, 2 Wash. ' Bayley v. French, 2 Pick. 586. 
 C. C. 280. Wise V. Darby, 9 Mo. ' Woodworth v. Woodworth, 21 
 
 136. Wilson V. Hansley, 4 Ired. 66. Barb. 343. 
 
 Bingham v. Young, 10 Penn. 395. ' Tucker v. Bond, 23 Ark. 268. 
 Rice V. Serjeant, 7 Mod. 37. • Shirley v. Phillips, 17 111. 471. 
 
 " Birdseye v. Ray, 4 Hill, 158. Niel's Appeal, 40 Penn. 453. 
 Butler V. Maynard, 1 1 Wend. 548. '" Lyttle v. Cincinnati Manuf. Co. 
 
 Slade V. Van Vechten, n Paige, ■21. 4 Ohio, 459. 
 35 
 
274 MATTERS ARISING FROM [Chap. IX. 
 
 by interfering with subsequent writs, the creditor postpones 
 his own.^ Or where he authorizes the seizure to be liept 
 secret from the defendant.^ Or where property is left in the 
 hands of an officer of a federal court by a claimant upon an 
 agreement to dispense with a bond. The officer holds it as 
 agent, and not in his official capacity, and it may be taken 
 without creating any conflict of jurisdiction.^ 
 
 § 185. In questions of this character, as to which one of 
 several writs has priority, courts determine on a motion or 
 contest between the execution creditors. They arise in ques- 
 tions relating to the distribution of proceeds realized from sales 
 under final process, and in such determination the courts direct 
 as to which one of the conflicting claimants the money shall 
 first be paid. The maxim, Vigilantibus et non dormientibus 
 jura subserviunt, is applicable in cases of this kind. The test 
 of the validity of such lien is, whether the execution creditor 
 really means to obtain his money, in determining whether it is 
 fraudulent or not.* Executions to hinder and delay creditors 
 are included within the statute of frauds. The only legal pur- 
 pose for which an execution can be or is issued, is for the ob- 
 taining of the fruits of a judgment, — the satisfaction of the 
 debt or judgment on which it issues. Where a levy is delayed 
 by no fault or direction of the party, it will not be held fraudu- 
 lent as against a junior writ. There must be some proof of 
 actual fraud; or intent to hinder and delay creditors.^ Any 
 act which shows that a party does not intend a writ shall be 
 executed before the return day, or in accordance with the 
 statutory enactments relating to final process, will, as between 
 such party and third persons or other judgment creditors of 
 the debtor, discharge the property seized from the lien of such 
 execution.® If issued only for the purpose of creating a lien, 
 
 ' Snyder v. Kunkleman, 3 Penn. 404. Sterling v. Vancleve, 7 Halst. 
 
 487. 285. 
 
 • Price V. Shipps, 16 Barb. 585. » Weir v. Hale, 3 W. & S. 285. 
 ' Planters' Bank y. Black, 19 Mentz v. Hanman, 5 Whart. 150. 
 
 Miss. 43. Howell v. Alkyn, 2 Rawle, 282. 
 
 • Smith's Appeal, 2 Penn. 331. Wilder v. Fonda, 4 Wend. 100. 
 
 • Benjamin v. Smith, 12 Wend. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 275 
 
 it is fraudulent, as it is a purpose not tolerated by the law.^ 
 The execution and delivery of a replevin bond destroy the 
 lien.^ Where a creditor causes an alias to be issued before 
 the property taken in the original writ is disposed of, he 
 destroys the lien acquired by the original, and waives it.^ 
 
 § 1 86. As TO WHAT Time Personal Property is bound. 
 Date to which an Execution relates so as to avoid any 
 Alienation by the Debtor. — The question as to the time 
 property is bound by an execution is important, and becomes 
 a material fact in cases where the debtor makes a sale of his 
 personal property after the rendition of a judgment against him. 
 As to real estate, it is, as a general rule, bound from the time 
 of the entry or rendition of the judgment ; so that execution 
 may be of real estate though the party aliens or conveys it in 
 good faith before the writ of execution issues. In England, by 
 statutory provisions, a judgment is a lien only from its entry 
 as against purchasers, and if the defendant die in vacation, the 
 jiadgment may be entered after his death, as of the preceding 
 term ; and it is a good common law judgment as of such term, 
 though there can be no execution issued upon it against the 
 representatives of the debtor until revival by scire facias^ And 
 as between parties, at common law, it bears, relation to its 
 teste, binding the property as against the party himself and 
 claimants by or under him.^ So that a sale by the defendant 
 to a purchaser in good faith did not protect them from the exe- 
 cution tested prior to the time of the sale, although not issued 
 or delivered until after the sale had been made ; ^ which rule 
 
 ' Hickman v. Caldwell, 4 Rawle, Fannv. Atkinson, Wille.s, 427. Saire 
 
 376. V. Wiltshire, Barnes, 271. Fuller v. 
 
 'Harrison v. Wilson, 2 A. K. Jocelyn, 2 Str. 882. Heapy v. Paris, 
 
 Marsh. 547. 6 T. R. 628. Bragner v. Langmoad, 
 
 ' Eckhols V. Graham, i Call. 492. 7 T. R. 20. Waghorne v. Lang- 
 Harrison V. Wilson, 2 A. K. Marsh, moad, i B. & P. 571. Freckleton v. 
 547. Alley V. Carroll, 3 Sneed, no. Kietsell, 2 Lill. Pr. R. 145. 
 
 ■* Cades v. Woodward, I Salk. 87. " Payne v. Drewe, 4 East. 538. 
 
 Duke of Norfolk's Case, i Salk. 401. Erwin v. Dundas, 4 How. 58. Dodge 
 
 Parsons v. Gill, i Ld. Raymd. 695. v. Mack, 22 111. gj. 
 
 Finch V. Earl, &c., 3 P. Wms. 399. • Baskerville v. Brocket, Cro. Jac. 
 
276 MATTERS ARISING FROM [Chap. IX. 
 
 Still prevails in some of the United States.^ But this being 
 a means of perpetrating gross injustice upon innocent pur- 
 chasers, the statute of frauds was passed, the principles of 
 which have been adopted in most of the United States ; 
 which enacted, " that no writ of execution shall bind the prop- 
 erty of the goods of the party against whom such writ of exe- 
 cution issued forth, but from the time such writ shall be deliv- 
 ered to the officer to be executed, and for the better manifestation 
 of the said time, the officers, their deputies or agents, shall, 
 upon receipt of any such writ, without fee or reward for doing 
 the same, indorse upon the back thereof the day of the month 
 and year whereon he or they received the same."^ When 
 issued against any person who had died between the teste day 
 and return day of the writ, it had relation back to the teste, 
 and the binding operation upon his personal property, that the 
 executor was not entitled to it for' the general payment of his 
 debts.^ In this country the statutory provisions for the equal 
 distribution of intestates' estates have perhaps everywhere pre- 
 vented this unjust preference. Though the goods are bound 
 from the time the execution comes into the officer's hands, the 
 property in such goods is not altered, but continues in the 
 debtor until execution is executed.* An execution binds a 
 trust estate of the debtor, under the statute, only from the 
 issuing of the execution ; and a title to the land acquired sub- 
 sequently to the judgment, but before execution issued, will be 
 preferred to the execution.^ The levy under an execution 
 issued on a judgment rendered in an action where the pro- 
 ceedings are commenced by attachment relates back to the 
 
 4SI. Rankin v. Harwood, lo Jur. ' State v. Blundin, 32 Mo. 387. 
 
 794- Russell v. Lawton. 14 Wis. 20. Gott 
 
 ' McLellan v. McLean, 2 Head, v. Williams, 29 Mo. 461. Williams 
 
 684. Peck V. Robinson, 3 Head, v. Lowndes, i Hall, 579. 
 438. Evans v. Barnes, 2 Swan, 292. ' Den v. Hillman, 2 Halst. 180. 
 Winsted v. Winsted, i Haywd. 243. ■• Folson v. Chesley, 2 N. H. 432. 
 
 Ingles V. Donaldson, 2 Haywd. 57. Churchill v. Warren, 2 N. H. 298. 
 
 Williams v. Bradley, 2 Haywd. 363. Bates v. Moore, 2 Bailey, 614. 
 McLean v. Upchurch, 2 Murph. 353. ' Williamson v. James, 10 Ired. 
 
 Gilky V. Dickinson, 2 Hawks, 341. 162. Hall v. Harris, 3 Ired. Ch. 289. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 277 
 
 date of the attachment, and gives priority over writs issued 
 before the rendition of judgment in the attachment suit.^ 
 
 § 187. After -ACQUIRED Property, how it may become 
 BOUND BY THE Levy OF AN EXECUTION. — Where the prop- 
 erty is left with the party by the officer, and such party sells a 
 portion of the goods levied upon, but purchases other goods of 
 the same description, and puts them in the place of those sold, 
 or in the places from which the other goods have been taken, 
 such substituted goods are liable on the execution, especially 
 where the party, after request made by the ofi&cer, refus'es to 
 designate the property on which the levy was made. The 
 substituted goods become liable because of voluntarily min- 
 gling goods not liable with those that are. No action can 
 be maintained against the ofificer for selling such substituted 
 goods. To allow such an action to be maintained under such 
 circumstances would be a fraud upon both the officer and 
 the party whose process he holds.^ Where there are several 
 executions in the hands of different officers, this rule could not 
 apply, as the property specifically levied on would only be 
 bound, and other levies might interfere with the general pos- 
 session of the whole of the personal property. But where 
 there are no other writs, " the lien of the execution attaches to 
 all the goods held by the defendant within the jurisdiction of 
 the officer during the life of the execution without a levy. At 
 common law the writ oi fieri facias bound the goods of the 
 debtor from the time when the writ was tested, which oftert 
 preceded by a whole vacation the time of its delivery to the 
 sheriff. The goods of the defendant, in an execution as against 
 him, are bound from the time of the delivery of the writ to the 
 
 ' Redus V. Wofford, 12 Miss. 579. Humph. 172. Oldham v. Scrivener, 
 
 Brownv.Williams, 3iMe.403. Har- 3 B. Mon. 579. Lackey v. Seibert, 
 
 bison V. McCartney, i Grant, 172. 23 Mo. 85. Hannah v. Felt, 15 la. 
 
 Tyrell v. Rountree, 7 Peters, 464. 141. Cockey v. Milne's Lessee, 16 
 
 Stephen v. Thayer, 2 Bay. 272. Mar- Md. 200. 
 
 tin V. Dryden, 6 111. 187. First Nat. ^ Hart v. Ten Ejck, 2 John. Ch. 
 
 Bank v. Redman, 57 Me. 405. Am. 62. Frost v. Willard, 9 Barb. 440. 
 
 Ex. Bank v. Morris Canal, &c., Co., Roth v. Wells, 29 N. Y. 486. 
 6 Hill, 362. Tappan v. Harrison, 2 
 
278 MATTERS ARISING FROM [Chap. IX. 
 
 officer to be executed, and, as a matter of course, must extend 
 to all after-acquired property of the defendant during the life 
 of the execution. The lien of an execution is created by law 
 for the benefit and security of the plaintiff, and cannot be de- 
 feated by any act of the defendant short of a sale to a bona fide 
 purchaser. By the delivery of an execution to an officer, with- 
 out actual levy he acquires a special property in the goods 
 of the defendant sufficient to sustain an action against the 
 general owner for their removal. That special property the 
 law creates, not for the benefit of the officer, but for the ben- 
 efit of the plaintiff in the execution ; and the object for which 
 it is enacted will not allow it to be lost by the officer's negli- 
 gence. The death of a defendant after the issuing of an exe- 
 cution, and before a levy, does not prevent the officer from 
 seizing and selling the goods of the defendant after his death, 
 for, by execution awarded, the goods are bound.^ If the goods 
 are bound after the death of the defendant, and after removal 
 from the county without levy,^ they must be equally bound 
 after the return day of the writ. The spirit of the rule which 
 declares execution to be the life of the law, and which creates 
 the Hen without the levy, requires the continuance of such lien 
 after the return day, so long as the rights of purchasers or of 
 other creditors do not intervene. It is the duty of the defend- 
 ant to satisfy the execution, as well after the return day as 
 before, and no wrong can be done him by continuing the lien 
 which has once attached upon his goods until he makes such 
 satisfaction."^ 
 
 § 1 88. Priority of Levies over Proceedings in Bank- 
 ruptcy. — Many cases have arisen under the present bank- 
 rupt law (act of 1867) in regard to priorities of levies under 
 process issued from state courts and process issued from courts 
 having bankruptcy jurisdiction, as to the time to which an ad- 
 judication in bankruptcy relates, and its effect upon a lien 
 
 ' Parker v. Mosse, Cro. Eliz. 181. Logsdon v. Spivey, 54 III. 104. Mc- 
 
 ' Lambert v. Paulding, 19 John. Donald v. Gronefield, 45 Mo. 28. 
 
 31 !• Charron v. Bos well, 18 Gratt. 216. 
 ' Roth V. Wells, 29 N. Y. 488. 
 
Chap. IX.] ' LEVIES ON PERSONAL PROPERTY. 279 
 
 acquired by virtue of the levy at or about the time of the com- 
 mencement of bankruptcy proceedings. Under the bankrupt 
 law the assignment of the property vests the debtor's title as 
 it was at the commencement of the proceedings' against him. 
 The respective rights of the execution creditor and the as- 
 signee of a bankrupt must, in very many cases, be determined 
 by applying the maxim, Qui prior est tempore, potior est jure. 
 The execution creditor is entitled only to a ratable share of 
 his debt with the other creditors, unless there is a seizure 
 made under it before the date of the , filing of the petition for 
 adjudication.''^ As an ofificer cannot take the goods of a third 
 party, so if the defendant becomes bankrupt before the deliv- 
 ery of the writ to the ofificer, or, as it seems, before it is act- 
 ually executed, the officer cannot legally take or dispose of 
 them, as the execution is superseded j^ consequently the prop- 
 erty is not absolutely bound by the delivery of the writ to the 
 officer. The English rule in relation to this question is, that 
 the goods of a bankrupt are absolutely vested in assignees 
 from the time of the act of bankruptcy ; and though the de- 
 fendant become bankrupt after the writ of execution is deliv- 
 ered, which in other cases binds the goods, yet, as they imme- 
 diately vest in the assignees, notwithstanding the delivery of 
 such writ, the officer may not sell them. He is excused, if he 
 have no notice ; and if he sell them after notice in such case, 
 he must be sued in trover, not trespass. This rule has not 
 been adopted in this country, although some of the bankruptcy 
 courts have attempted, under the present law, to extend their 
 jurisdiction so as to bind the property from the same time. 
 Eut where, by a valid levy, the jurisdiction of a state court has 
 attached, the jurisdiction is not disturbed by a subsequent 
 adjudication in bankruptcy ; and the title of the state court 
 and its officers is superior to that of the United States court 
 and its officers, or an assignee in bankruptcy.' The lien of a 
 
 ' Hutton V. Cooper, 6 Exchq. 159. ' Sedgwick v. Musick, i B. R. 
 
 Young V. Roebuck, 32 L. J. Ex. 260. 204. Sedgwick v. Place, i B. R. 
 
 • Lester v. Mundell, i B. & P. 204. Matter of Campbell, 7 Am. L. 
 
 427. Reg. 100. In re Burns, 7 Am. L. 
 
280 
 
 MATTERS ARISING FROM 
 
 • [Chap. IX. 
 
 levy made under an execution issued upon final judgment, ob- 
 tained bona fide and without collusion, is preserved by the 
 bankrupt law.^ It does not discourage diligence in the collec- 
 tion of debts. Creditors who have obtained a lien by a legiti- 
 mate effort to collect an honest debt are permitted to enjoy 
 the advantage gained by their diligence.^ A levy that is good 
 and creates a valid lien under the state laws is valid even in a. 
 bankrupt court.^ The law does not divest liens acquired and 
 consummated before the adjudication in bankruptcy,* but pro- 
 tects all valid judgments to the same extent as the constitution, 
 of the United States guards the obligation of contracts whea 
 attempted to be impaired by state laws,^ and is an affirmance 
 of the universal pi-inciple, that "A prior lien gives a prior 
 claim, which is entitled to a prior satisfaction out of the sub- 
 ject it binds." ^ Courts in bankruptcy give effect to liens. 
 
 Reg. 105. Hawkins's Appeal, Am. 
 L. Reg. 205. Taylor v. Carry], 20 
 How. 584. Ex parte Allen, i N. Y. 
 Leg. Obs. 11;. Clarke v. Rist, 3 
 McLean, 494. Sullivan v. Hieskell, 
 Crabbe, 525. Atkinson v. Purdy, 
 Crabbe, 501. Ex parte Dudley, i 
 Penn. L. J. 302. Ex parte Don- 
 aldson, 7 Am. L. Reg. 213. Cul- 
 len V. Myrick, i T. R. 475. Taylor 
 V. Taylor, 5 B. & C. 392. Matter 
 of Smith, I B. R. 169. In re Hill, 2 
 B. R. 253. In re Clark, 3 B. R. 
 130. Langley v. Perry, 8 Am. L. 
 Reg. 428. Farrin v. Crawford, 2 B. 
 R. 181. In re Marks, 2 B. R. 175. 
 In re Hazleton, 2 B. R. 12. Peck 
 V. Jenness, 2 How. 612. Clark v. 
 Bininger, N. S. Am. L. Reg. No. 5, 
 1870. Clark V. Bininger, 38 How. 
 Pr. 341. Sedgwick v. Musirk, 6 
 Blatch. 1 56. Sampson v. Burton, 4 
 B. R. I. 
 
 ' In re Bernstein, B. R. Sup. 43. 
 In re Smith et al., i B. R. Sup. 164. 
 
 In re Kerr, 2 B. R. Sup. 1 14. In re- 
 Campbell, B. R. Sup. 36. In re- 
 SehnefF, B. R. Sup. 41. The Cir- 
 cassian, I Bened. 128. Bernstein'.s. 
 Case, 2 Bened. 44. Smith's Case,. 
 2 Bened. 432. 
 
 * In re Kerr, 2 B. R. Sup. 124. 
 In re Campbell, B. R. Sup. 36. Itt 
 re Campbell, 7 Am. L. Reg. 100. 
 In re SehnefF, 7 Am. L. Reg. 214.. 
 /« ^tf Wright, 2 B. R. 155. Haughey 
 V. Albin, 2 B. R. 129. Ames v.. 
 Wentworth, 5 Met. 294. 
 
 ' Armstrong v. Rickey Bros., 2 B.. 
 R. 150. In re Winn, I B. R. 131.. 
 Bernstein's Case, 2 Bened. 44.. 
 Smith's Case, 2 Bened. 432. The- 
 Circassian, i Bened. 128. 
 
 '' In re Hambright, 2 B. R. 71.- 
 In re Hambright, 2 Law T. 761. 
 
 ° Ex parte Christy, 3 How. 327.. 
 Savage v. Best, 3 How. 1 11. Nor- 
 ton V. Boyd, 3 How. 426. 
 
 " Rankin v. Scott, 12 Wheat. 179.. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 281 
 
 according to priority.^ Under the bankrupt law "liens are 
 held sacred. To say that the vigilant creditor, who, by his 
 diligence, has secured his debt, and has a valid lien upon the 
 property of the bankrupt, shall come in with the other cred- 
 itors pro rata, would be a perversion of the purposes of Con- 
 gress in the passage of the act. No right acquired by the 
 creditor is affected or impaired." ^ Proceedings on final process 
 issued from state courts are not stayed by the mere commence- 
 ment of proceedings in bankruptcy.* A provisional warrant 
 cannot authorize the marshal to seize any property except that 
 of the debtor himself.^ In Massachusetts the levy takes effect, 
 and the title vests in the judgment creditor from the time of 
 seizure ; the assignee acquires no right to the property seized.* 
 Being final and not mesne process, executions do not fall within 
 the fourteenth section of the bankrupt act.® Under the bank- 
 rupt law no power is conferred upon officers of the United 
 States courts to take property from the custody of an officer 
 of a state court after it has been taken under an execution 
 issued from such court prior to the commencement of proceed- 
 ings in bankruptcy ; ^ nor have they jurisdiction to enjoin a 
 sale by an officer on process issued from state courts.^ A 
 
 ' Scott's Case, l Abb. U. S. 336. 149. Keating v. Spink, 3 Ohio S. 
 
 • Campbell's Case, l Abb. U. S. 105. Whitney v. Burnet, 3 Wis. 622. 
 
 188. Ex parte Booth, 3 Wis. 145. Gil- 
 
 ' Shannon v. Howell, 40 Ga. 257. man v. Williams, 7 Wis. 329. In re 
 
 « /»r«Harthill,4B. R. 131. Cut- Shuey, 6 Chi. Leg. News, 248. 
 
 ter V. Gray, 8 Allen, 134. Ante, sec. 179, p. 260. 
 
 » Hallv. Hoxie, 3 Met. 251. Hay- * In re Cabrera, I Wash. 232. 
 
 wood V. Hildreth, 9 Mass.- 393. Wa- City Bank, &c.;^v. Skelton, 2 Blatch. 
 
 terhouse v. Waite, 11 Mass. 210. 14. Sawyer v. Gill, 3 W. & M. 97. 
 
 Cushing V. Arnold, 9 Met. 23. Tay- Brown v. Swan, 10 Pet. 497. Wynn 
 
 lor V. Taylor, 5 B. & C. 392. v. Wilson, Hemp. 698. Marshal v. 
 
 " First Nat. Bank of Baltimore v. Beverly, ; Wheat. 313. Ruggles v. 
 
 Jaggers, 31 Md. 38. Simonton, 3 Biss. 325. McKim v. 
 
 ' Foulger v. Taylor, 5 H. & N. Voorhies, 7 Cranch, 979. In re 
 
 202. Hamilton v. Reedy, 3 Mc- • Hopkins, 2 Curt. C. C. 567. Logan 
 
 Cord, 38. Pierce v. Scott, 4 W. & v. Lucas, 59 111, 237. Munson v. 
 
 S. 344. Milliken v. Selye, 6 Hill, Harroun, 34 111. 422. 
 623. Buckley v. Snouffer, 10 Md. 
 36 
 
282 MATTERS ARISING FROM [Chap. IX. 
 
 creditor holding a judgment may issue an execution, and levy 
 upon the property of the debtor, even though he doubts his 
 solvency at the time of making the levy ; and the lien thus ac- 
 quired will be protected. Diligence on the part of a creditor 
 is not to be discouraged.^ But where there is fraud or collu- 
 sion between the creditor and debtor, or delay in issuing the 
 execution, or where the judgment is used for the purpose of 
 preventing and obstructing other creditors in the collection of 
 their claims, the judgment will be declared void.^ 
 
 § 1 89. The Trial of the Right of Property. — Another 
 of the results of the execution of final process by an officer is 
 the settlement of conflicting claims to the property taken by 
 him under and by virtue of final process. There are special 
 statutory provisions in each of the United States, regulating 
 the mode of procedure by which the rights of claimants (as 
 they are termed in many states) are settled. A brief outline 
 of the proceedings relating thereto is all that can be given in 
 a work of this nature. In many states the action is called one 
 of claim and delivery, the party claiming the property giving a 
 delivery bond to the officer after making claim to the property 
 as provided by statute, generally by an affidavit stating that he 
 (the claimant) is the owner of the property taken, that he is 
 entitled to its immediate possession, and that it was not taken 
 from him by virtue of any legal or statutory authority. It is 
 in the nature of an action of replevin, and in some states the 
 claimant interpleads, in others the sheriff summons a jury. 
 There is no unanimity in the various states as to the method 
 of determining this question, trespass for an illegal or wrong- 
 ful taking being also an adequate remedy. In order, therefore, 
 that an officer may be justified in seizing property for the sat- 
 isfaction of a debt, the absolute property of the goods must be 
 in the debtor ; and if, therefore, he tak^s the goods of a stran- 
 
 ' In re Kerr, 2 B. R. 124. In re In re Kerr, 2 B. R. 124. In re 
 
 I. B. Wright, 2 B. R. 155. Haughey ■ SchnefF, 2 Bened. 72. Clark v. Rist, 
 
 V. Albin, 2 B. R. 129. Ames v. 3 McLean, 494. Andrew v. Digges, 
 
 Wentworth, 5 Met. 294. 52 E. L. & Eq. 425. 
 
 » Fitch V. McGie, 2 B. R. 164. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 283 
 
 ger, though the. plaintiff assures him that they belong to the 
 defendant, he is a trespasser ; for the officer is obliged, at his 
 peril, to take notice, and learn whose the goods are, and for 
 that purpose, at common law, and in many states, may im- 
 panel a jury to inquire in whom the property of the goods is 
 vested.^ Which action of the officer may be given in evidence 
 to prove that he acted without malice,^ and will mitigate dam- 
 ages in an action against him for taking the goods of a third 
 person. And as it is not a proceeding immediately from the 
 tribunal from which the process issues, but merely to indem- 
 nify the officer in making his return to the writ, the court will 
 not set aside the inquisition of a jury summoned by an officer 
 to inquire in whom the property of the goods seized by him 
 under an execution is vested.^ But this proceeding is not con- 
 clusive in any case, for inquests of office are always traversable, 
 and the verdict is admissible neither for a claimant nor the 
 officer in action against him for trespass.* While an officer 
 may exonerate himself, the creditor directing the levy cannot.^ 
 Where the property claimed is exempt, it will be no protection 
 to the officer.* In Pennsylvania a verdict and judgment in an 
 issue under a sheriff's interpleader is final and conclusive, that 
 being the judgment of a court.'^ In Missouri the verdict of a 
 jury summoned by a constable to try the right of property is 
 conclusive.^ In Kansas, Ohio, and Indiana, a trial of this kind 
 can be had only on writs issued from justices of the peace, and 
 the claimant must file his complaint before the same justice 
 
 ' Farr v. Newman, 4 T. R. 633. ' Roberts v. Thomas, 6 T. R. 88. 
 
 Roberts v. Thomas, 6 T. R. 88. Smith * Latkow v. Earmer, 2 H. Bl. 437. 
 
 V. Cicotte, II Mich. 383. Piatt v. Cassellv. Williams, 12 111. 387. Glos- 
 
 Sherry, 7 Wend. 286. Strong v. sop v. Poole, 3 M. & S. 175. Ibid., 
 
 Patterson, 6 Cal. 156. Townsend Note I. Rowe v. Bowen, 28 111. 1 16. 
 
 V. Phillips, 10 Wend. 98. Vancleef ' Sanders v. Hamilton, 3 Dana, 
 
 V. Fleet, 15 John. 147. Bailey v. 550. Rowe v. Bowen, 28 111. 116. 
 
 Bates, 8 John. 143. Perkins v. Bessy v. Wyndham, 8 Jur. 824. 
 
 Thornburg, 10 Cal. 189. Sheldon ' Preuitt v. Walker, 7 J. J. Marsh. 
 
 V. Loomis, 28 Cal. 122. Phillips v. 332. 
 
 Harris, 3 J. J. Marsh. 121. ' Barrie v. Lyle, 68 Penn. 60. 
 
 ' Glossop V. Poole, 3 M. & S. 175. • Carnifax v. Chapman, 7 Mo. 175. 
 
284 MATTERS ARISING FROM [Chap. IX. 
 
 who issues the writ.^ A cestui que trust of personal property 
 cannot interpose a claim to try the right of property.^ A 
 debtor may show that the property taken is owned by an- 
 other, and, as his agent, may assert the owner's rights.^ A 
 claimant of an undivided interest may interpose his title, and 
 defeat the execution.* Where an officer has an execution 
 against A, and levies it upon property claimed by B, he can- 
 not require these persons to interplead, for, if B's claim is just, 
 he is a wrong-doer as to him.^ A stranger may either inter- 
 pose his claim, or resort to his common law remedy.^ A 
 claimant of property seized on execution has an adequate rem- 
 edy at law, and equity will not interfere to restrain proceedings 
 on the writ.'^ Claim laws are cumulative, permissive, and not 
 mandatory, and do not deprive the owner of his right to try 
 title by trespass or other proceeding.^ In the trial of the right 
 of property, the plaintiff has the burden of proof, if it is taken 
 from the claimant, and the claimant when taken from any 
 other person.^ All that is in issue is whether or not the prop- 
 erty belongs to the claimant, He is bound to show that it is, 
 and not liable to the levy.^" Where he has not the right to the 
 immediate possession, his claim will not be sustained. ^^ He 
 cannot show that he is entitled to it as lessee, as it may be 
 sold subject to his rights.^^ Nor can he object to the validity 
 of the execution ; his action admits its validity.^^ He is con- 
 fined to his own right ; he cannot set up an outstanding or 
 
 ' Matlock V. Strange, 8 Ind. 57. • Whittington v. Wright, 9 Ga. 
 
 Armstrong v. Harvey, 11 Ohio S. 231. 
 
 527- ' Roe V. Neal, Dud. (Ga.) 168. 
 
 » King V. Hill, 20 Ala. 133. Miller v. Storm, 36 Tex. 291. Thorn- 
 
 ' Walmsley v. Hubbard, 24 Tex. hill v. Gilmer, 12 Miss. 153. 
 
 612. '» Marshall v. Cunningham, 13 111. 
 
 * Gotten V. Thompson, 21 Ala. 20. McCoy v. Odon, 20 Ala. 502. 
 574- " Hamilton V.Mitchell, 6 Blackfd. 
 
 ' Dewey V. White, 65 N. C. 225. 131. Philbrick v. Goodwin, 7 Black- 
 
 • Moore v. Gammell, 13 Tex. 120. ford, 18. 
 
 ' Miller v. Crews, 2 Leigh. 570. " Myers v. Prentzell, 33 Penn. 
 Sevier v. Ross, I Free. Ch. 519. 482. 
 Rowe V. Cockerell, I Bailey, 126. " Harrison v. Singleton, 3 111. 21. 
 
Chap. IX.] LEVIES ON PERSONAL PROPERTY. 285 
 
 paramount title in a third person to defeat the levy.^ A claim- 
 ant must file a bond before he can proceed.^ After a verdict 
 against the claimant, he cannot bring an action against the 
 officer for the same property.^ During the pendency of such 
 action, the property is not subject to a seizure under a junior 
 execution.* The trial does not destroy the lien of the execu- 
 tion.5 Where, by statute, before taking the property under 
 his claim against the officer, a claimant is required to give 
 bond, the execution of the bond and commencement of 
 proceedings do not change the title to the property. It 
 simply suspends all proceedings on the part of the officer 
 until the right of property is determined ; the title to it re- 
 mains where it is until such determination. When the trial 
 is ended, and the verdict is against the claimant, the officer is 
 entitled to the possession of the property, and may repossess 
 himself of it wherever he can find it, except as against an inno- 
 cent purchaser.® In Oregon the property is released, the bond 
 is substituted for it, and the property may be taken under 
 ■other writs.^ Judgment for the execution plaintiff must be in 
 the alternative for the specific property or its assessed value.* 
 A creditor need only show the execution without the judgment.' 
 The claimant must show that he has some title adverse to the 
 
 Taylor v. Branch Bank, &c., 14 Ala. ' Doremus v. Walker, 8 Ala.' 194. 
 
 623. Portis V. Parker, 22 Tex. 699. * Williams v. Jones, 2 Ala. 314. 
 
 Brown v. Hunt, 31 Ala. 136. Price Lock wood v. Perry, 9 Met. 444. Bur- 
 
 V. Sanchez, 8 Fla. 136. Huff v. Cox, kle v. Luce, i N. Y. i6j. Badlam 
 
 2 Ala. 310. V. Tucker, i Pick. 284. Parker v. 
 
 ' Forsyth v. Marbury, R. M. Simonds, 8 Met. 298. Smith v. Mc- 
 
 Charlt. 324. McGrew v. Hart, i Gregor, 10 Ohio S. 461. Gimbee v. 
 
 Port. 175. Frow v. Downman, 11 Ackley, 12 la. 27. Bush v. Seguin, 
 
 Ala. 880. Foster v. Smith, 16 Ala. 24 111. 254. Hagan v. Lucas, 10 
 
 192. Thomas v. De GrafFenreid, 17 Pet. 400. 
 
 Ala. 602. Robinson v. Schley, 6 Ga. ' Duncan v. Thomas, I Or. 314. 
 
 515. Beers v. Dawson, 8 Ga. 556. Acker v. White, 25 Wend. 614. 
 
 Dent V. Smith, 15 Ala. 286. ° Thomas v. Estes, 10 Miss. 
 
 » Carter v. Carter, 36 Tex. 693. 439. 
 
 » Patty V. Mansfield, 8 Ohio, 369. ' Bettis v. Taylor, 8 Port. 564, 
 
 * Hobson V. Kissam, 8 Ala. 357. Deloach v. Myrick, 6 Ga. 410. 
 McLemore v. Benbow, 19 Ala. 76. 
 
286 MATTERS ARISING FROM LEVIES. [Chap. IX. 
 
 execution debtor.^ The property cannot be sold, in case of a 
 finding against the claimant, to pay the costs of the trial for 
 the right of property .^ The officer may proceed to complete 
 the execution of the writ where no verdict is found against 
 him.^ But he is not bound to if he ascertains the property 
 belongs to a stranger ; he should return those facts, and the 
 verdict will justify him.* Where a levy is made under several 
 writs, and a claimant gives bond to a junior execution cred- 
 itor, and he alone contests the title, and succeeds in condemn- 
 ing the property, the other creditors have no right to claim 
 the money which he receives from the claimant in discharge 
 of the bond.^ Where goods are replevied by a third person, 
 they cannot be again seized as the debtor's property, if he is 
 permitted to repossess them, during the pendency of the 
 action.® But if, during the pendency of the action, the' party 
 who replevies the goods dies, it abates the suit, and it cannot 
 be revived. The officer in such case may retake the goods, 
 and sell them on execution, unless the fights of third persons 
 have intervened, " for the reason that the officer is justly en- 
 titled to the goods for the satisfaction of the execution in his 
 hands, under which he first seized them, and he has no rem- 
 edy, either by judgment or upon the bond. If his lien does not 
 thereby revive, by which he can retake, or sue for, the goods, 
 in case they are withheld from him by the representatives 
 of the plaintiff in the replevin action, he will, although he has 
 an indisputable right to the goods, be without any remedy."^ 
 
 ' Ogden V. Powell, 7 Ala. 243. » Burnett v. Handly, 8 Ala. 685. 
 
 ' Fryer v. Dennis, 2 Ala. 144. « Acker v. White, 25 Wend. 614. 
 
 Undsay v. King, 3 Port. 406. Burkle v. Luce, 1 N. Y. 163. Ibid., 
 
 ' Mitchell V. Vance, s Mon. 528. Note 6, preceding page. 
 
 * Brown v. Booker, 6 Dana, 441. ' Burkle v. Luce, i N. Y. 163. 
 
Chap. X.] THE LEVY ON REAL ESTATE. 287 
 
 CHAPTER X. 
 
 OF THE LEVY ON REAL ESTATE. 
 
 Of the Levy on Land. — When it may be taken. — How made. — 
 What is a good Levy. — An Invalid Levy. — Levies that are 
 void. — Effect of a Levy. — The Mode of Procedure in the 
 New England States, by Extent, (&c. — Practice in Virginia 
 by Elegit. — West Virginia. — Practice in the other States. 
 — Of the Appraisement, in the New England and other 
 States. — Qualifications, Selection of Appraisers, Validity 
 of Appraisement. — Of the Notice of Sale, and Advertise- 
 ment. — Place of Sale. 
 
 § 190. Of the Levy on Land ; how made. What is a 
 GOOD Levy. Effect of Levy, &c. — Having in the pre- 
 ceding pages disposed of the various matters relating to the 
 levy or seizure of personal or movable property, and all matters 
 appertaining thereto, we are now brought to an entirely dif- 
 ferent species of property liable to be taken in execution by 
 proceedings as varied from those governing personal property 
 as personal property differs from real property. The form of 
 proceeding in the various states of this country is by no 
 means uniform, the subjecting of real property to satisfy debts 
 being purely a statutory proceeding unknown to the common 
 law. The statutes rendering it liable prescribe the mode or 
 process by which it can be taken. The great diversity in the 
 practice renders it impossible to give the statutory regulations 
 of each state ; but, notwithstanding this great diversity, there 
 is upon many matters relating to this proceeding a great uni- 
 formity in the adjudications of the courts of last resort, upon 
 points which are generally applicable to the vital and important 
 
288 THE LEVY ON [Chap. X. 
 
 Steps in the execution of final process upon the real property 
 of the debtor. The right to levy an execution upon real estate 
 is, in general, subject to the restrictions that it cannot be taken 
 except in default of personal estate ; that being the primary 
 fund for the satisfaction of all debts, as we have already ob- 
 served ; and is the rule in Rhode Island, Delaware, Pennsyl- 
 vania, Ohio, Indiana, Kansas, New York, Massachusetts, Mis- 
 souri, Nevada, California, Michigan, Illinois, Kentucky, Missis- 
 sippi, North Carolina, Oregon, Texas, and Tennessee. In 
 Alabama, Louisiana, South Carolina, and Minnesota, unless 
 the judgment be a lien upon real estate. In Connecticut and 
 Vermont, the officer may levy upon the real estate of the 
 debtor, unless he tenders sufficient personal estate to satisfy 
 the execution. In Alabama, the debtor, on the day of sale, 
 may substitute other property of equal value, not covered by 
 any lien, in lieu of the land levied upon. In Arkansas, he may 
 select what part shall be first sold, or may require a sale of the 
 whole tract or lot. In Florida, any property which has been 
 levied upon may be released by surrendering other property, 
 of a value sufficient to satisfy the execution. In Georgia and 
 Indiana, he may designate what property shall be first levied 
 upon ; and the principal messuage, lands, or tenements of the 
 debtor shall not be levied upon, unless other property sufficient 
 to satisfy the execution cannot be found. In Kentucky, Mis- 
 souri, New Jersey, and Texas, he may elect what property shall 
 first be levied upon. Where the execution is against the goods 
 and chattels, lands and tenements of the debtor, all the goods 
 and chattels, or personal and movable property of the debtor, 
 in the county liable to execution, must first be levied upon and 
 sold before the real estate of such debtor can be advertised or 
 sold,^ except where the personal property is so encumbered 
 that it will produce nothing on the execution.^ 
 
 § 191. The usual mode of making a levy on real estate is to 
 describe the land which has been seized under the execution, 
 by metes and bounds, as in a deed of conveyance. A formal 
 
 » Bartholmew v. Hook, 33 Cal. ' Detrichv. StateBank,6Ind.439. 
 279- Williams v. Reynolds, 7 Ind. 622. 
 
Chap. X.] REAL ESTATE. 289 
 
 levy is not necessary.^ Where a statute declares that until a 
 levy property is not affected by an execution, it means personal 
 property, as the general rule is, that the judgment itself affects 
 and binds real estate, and the execution is the means of en- 
 forcing the lien acquired by the judgment. Giving notice of 
 sale, as required by statute, under the execution, is all that is 
 necessar)' in those states where a sale is the result of the levy. 
 It may be made by the entry of a levy upon the execution ; ^ 
 or, as against the debtor, by any act, on the part of the officer, 
 showing the intent to sell the specific land, and subject it to 
 the satisfaction of the judgment.^ In Louisiana, the officer 
 must take actual corporeal pfissession in order that the pur- 
 chaser may recover the property.* In Maryland, a seizure is 
 indispensable.^ In the New England States the practice will 
 be hereafter explained. A levy on real estate, like one on per- 
 sonal property, must be completed within the life of the exe- 
 cution, or it is wholly inoperative.^ The rule that the absolute 
 owner of property has the right to transfer it by any descrip- 
 tion which, together with parol evidence, may ascertain the 
 property conveyed, applies only to sales and transfers by the 
 absolute owner, and not to sales in invitum of his property ; 
 such as execution sales, where the property levied upon must 
 be described with such certainty as will enable any one to 
 know the property taken in execution, and to give purchasers 
 notice of what they are buying, and that the debtor's property 
 may not be unnecessarily sacrificed.'' Any description suffi- 
 
 ' Bidwell V. Coleman, il Minn. • Russell v. Brook 27 Vt. 640. 
 
 78. Lockwood V. Bigelow, 11 Minn. Downer v. Hazen, 10 Vt. 418. 
 
 113. Folsom V. Carli, j Minn. 333. ' Smith v. Low, 2 Ired. 457. Ma- 
 
 Tullis V. Brawley, 3 Minn. 277. son v. White, 11 Barb. 173. State 
 
 Wood V. Colvin, 5 Hill, 228. Fitch v. Keeler, 49 Mo. 548. Gault v. 
 
 V. Tyler, 34 Me. 463. Woodbridge, 4 McLean, 329. Judge 
 
 ^ Isam V. Hooks, 46 Ga. 309. v. Houston, 12 Ired. 108. Shields 
 
 ' Blood V. Light, 38 Cal. 649. v. Bates, S J. J. Marsh. 13. William- 
 
 * Corse V. Stafford, 24 La. 262. son v. Perkins, i H. &. J. 449. 
 
 * Waters V. Duval, II G. & J. 37. Briggs v. Blue, 5 McLean, 148. 
 Elliott V. Knott, u Md. 21. Proud v. Pullen, 3 Yerg. 388. Mc- 
 
 37 
 
290 THE LEVY ON [Chap. X. 
 
 cient to fix jts bounds is enough ; ^ or where it can be fully- 
 identified and distinguished ; ^ and is good if it distinguishes 
 the land levied on from all the other land owned by the 
 debtor ; ^ and may refer for a proper description to the deed 
 of the debtor's grantor, or to a will recorded in the probate 
 court, or the certificate of the appraisers, for particulars of 
 description,* although the levy does not state that the deed is 
 of record.^ The land which the debtor could have conveyed 
 will be sufficiently described by including all he owns within, 
 the description, and it will be good for what he does own.® It 
 should be upon the land itselfj not on the right, title, and in- 
 terest, &c., of the debtor in the land.^ But a levy on the right, 
 title, and interest of a debtor in land is equivalent to a levy on 
 the land itself.^ Where the property is ascertained and iden- 
 tified, the levy is complete without an actual entry on the land,* 
 if correctly described. A misdescription in the return of the 
 appraisers, or of the officer, will not vitiate it.^" Nor that it is 
 upon an undivided third of an estate in reversion, of which the 
 
 Lean v. Paul, 5 Ired. 22. LafFerty ■• French v. Allen, 50 Me. 437. 
 
 V. Conn, 3 Sneed, 221. Dearmond Maeck v. Sinclear, 10 Vt. 103. Gil- 
 
 V. Courtney, 12 La. 251. Sartor v. man v. Thompson, 11 Vt. 643. 
 
 Mcjunkin, 8 Rich. 451. Glenn v. Cowan v. Wheeler, 31 Me. 439. Al- 
 
 Mallory, 4 la. 413. Summers v. len v. Taft, 6 Gray, 554. Solomon 
 
 Moore, 2 McLean, 59. Huddlestone v. Brazeal, 27 Ga. 200. Vogt v. 
 
 V. Garrett, 3 Humph. 629. Huggins Ticknor, 48 N. H. 242. Hyde v. 
 
 V. Ketchum, 4 D. & B. 414. Bos- Barney, 17 Vt. 280. Jenks v. Ward, 
 
 worth V. Farenholtz, 3 la. 84. Borden 4 Met. 404. 
 
 V. Smith, 3 D. & B. 34. Murphy v. ' Jenks v. Ward, 4 Met. 404. 
 
 Cord, 12 G. & J. 182. « Grover v. Howard, 31 Me. 546. 
 
 ' Lyford v. Thurston, 16 N. H. Glidden v. Philbrick, 56 Me. 222. 
 
 399. Colburn v. Pomeroy, 44 N. H. ' Arms v. Burt, i Vt. 310. 
 
 19- ' Brown v. Smith, 7 B. Mon. 366. 
 
 • Chappell V. Hunt, 8 Gray, 427. Swan v. Parker, 7 Yerg. 490. 
 
 Forbes v. Hall, 51 Me. 368. Jones » Duncan v. Matney, 29 Mo. 368. 
 
 V. Austin, 10 Ired. 20. Alexander Fenno v. Coulter, 14 Ark. 38. 
 
 V. Miller, 18 Tex. 893. Jones v. "> Steel v. Steel, 4 Allen, 417. 
 
 Buck, 54 Me, 341. Young v. Mc- Cook v. Chicago, 51 lU- 268. Strib- 
 
 Gown, 59 Me. 349. ling v. Prettyman, ji 111. 371. Swig- 
 
 ' Vance v. McNairy, 3 Yerg. 171. gett v. KoUock, 3 Houst. 326. 
 
Chap. X.] REAL ESTATE. 291 
 
 debtor owns one half, if no more is taken than will satisfy the 
 debt.^ Or that it embraces too much property ; or that it is 
 named as one tract, when it ought to be several ; or that the 
 improvements are not sufficiently described.^ Where the de- 
 scription does not clearly show which of two pieces was levied 
 on, an election by the debtor may, in connection with other 
 facts, be considered in determining upon which tract the levy 
 was made.^ A return describing the property as that of A 
 and B. husband and wife, embraces the interest of both par- 
 ties.* Where an extent incorporates and adopts the appraise- 
 ment in the return, the whole must be taken togetherin con- 
 struing the description of the premisfes.^ 
 
 § 192. Levies that are void for Uncertainty of De- 
 scription, &c. — Where some of the particulars are erro- 
 neous, and there is not sufficient from the whole description 
 to ascertain or identify the premises, or extrinsic evidence is 
 required to identify the land, it is void.^ For instance, " on 
 195^ acres of land in Henderson County, part of a tract of 
 2500 acres located by Daniel Gilchrist.'"^ Or "on 350 acres 
 of land, the property of E. C." ^ On five hundred acres, to be 
 taken off the most northerly side of a widow's dower lands.* 
 Or by reference to a newspaper advertisement of the notice of 
 sale, for full particulars of the description, newspaper advertise- 
 ments constituting no part of a record.^" A levy on land must 
 be upon the whole estate that the debtor has in the premises. 
 If a less estate is carved out, leaving a reversion in the debtor, 
 
 ' Rawson v. Clarke, 38 Me. 223. Dorsey, 28 Md. 388. Helms v. Al- 
 
 ' Grover v. Howard, 31 Me. 546. exander, 10 Humph. 44. Chasteen 
 
 Donaldson v. Bank, &c., 20 Penn. v. Phillips, 4 Jones, 459. Gault v. 
 
 245. Woodbridge, 4 McLean, 329. Por- 
 
 ' St. Clair v. Shale, 20 Penn. 105. ter v. Byrne, 10 Ind. 146. 
 
 * Moore v. Richardson, 37 • Me. ' Brigand v. Erwin, i Swan, 373. 
 438. ' Lafferty v. Conn, 3 Sneed, 221. 
 
 ° Voght V. Ticknor, 48 N". H. 242. Huddlestone v. Garrett, 3 Humph. 
 
 • Forbes v. Hall, jl Me. 568. 629. 
 
 Fitch V. Pinckard, 5 111. 69. Stout ' Shields v. Bates, j J. J. Marsh. 
 
 V. Cook, 37 111. 283. Chadbourne v. 13. 
 
 Mason, 48 Me. 389. Dorsey v. '" Taylpr v. Cozart, 4 Humph. 433. 
 
292 THE LEVY ON [Chap. X. 
 
 it is void.^ Or an undivided portion of property owned en- 
 tirely by the debtor.^ Or a levy on one half of a lot, without 
 designating which half.^ Or a levy upon the entire interest of 
 one tenant in common upon a portion of the' estate described 
 by metes and bounds,* unless the proportional share held by 
 the debtor is stated.^ Upon the undivided interest of a tenant 
 in common in part of the land held in common.^ Or upon a 
 portion of mortgaged premises.' Or on the estate of an in- 
 testate upon service made upon a foreign administrator, who 
 is not liable in any action except in the state of his appoint- 
 ment.^ Or upon land of a debtor where he has been pre- 
 viously committed and discharged for the same debt.® A levy 
 upon the defendant's lands, without further specification.^" A 
 levy upon land and a mill privilege, excluding the mill," on the 
 ground that it is personalty.-'^ Or where the term "appur- 
 tenances " is used in a levy, it is too indefinite to pass any 
 personal property.^^ In New Jersey, every execution against 
 real estate must be recorded before delivery to the officer. A 
 memorandum of the style of action, names of parties, amount 
 to be raised, leaving a blank to be filled afterwards, is insuffi- 
 cient, and gives no authority to the officer. The want of re- 
 cording cannot be subsequently cured.'* A levy on land held 
 by a debtor by an unrecorded deed cannot be defeated by the 
 subsequent surrender of the deed to his grantor, and the can- 
 
 ' Howe V. Blanden, 21 Vt. 315. » Borden v. Borden, 5 Mass. 67. 
 
 ' Brown v. Clifford, 38 Me. 210. ' Loomis v. Storrs, 4 Conn. 440. 
 
 Edwards v. Allen, 27 Vt. 381. Nye '° Pound v. PuUen, 3 Yerg. 338. 
 
 V. Drake, 9 Pick. 35. Snyder v. Borden v. Smith, 3 D. & B. 34. 
 
 Castor, 2 Binn. 216. Huggins v. Ketchum, 4 D. & B. 414. 
 
 ^ Gault V. Woodbridge, 4 McL. Brown v. Dickson, 2 Humph. 395. 
 
 329. Porter v. Byrne, 10 Ind. 146. Morrissey v. Lave, 4 Ired. 38. , 
 
 * Smith V. Benson, 9 Vt. 138. " Jewett v. Whitney, Ji Me. 233. 
 
 Soutter V. Porter, 27 Me. 405. "-Hemenway v. Cutler, 51 Me. 
 
 ' Rawson v. Lowell, 34 Me. 201. 507. 
 
 « Melville v. Brown, 15 Mass. 82. " Mimroe v. Thomas, 5 Cal. 470. 
 
 Bartlett v. Harlow, 12 Mass. 348. " Voorhees v. Chaffers, 4 Zabr. 
 
 Baldwin v. Whiting, 13 Mass. 571. 507. Vandeveere v. Gaston, 4 Zabr. 
 
 Atkins v. Bean, 14 Mass. 404. 818. 
 
 ' Swift V. Dean, 1 1 Vt. 323. 
 
Chap. X.] REAL ESTATE. 293 
 
 cellation of it.^ Where a levy is free from all ambiguity, ami 
 exempt from any alleged fraud or misrepresentation, it cannot 
 be invalidated by parol evidence.^ A void levy may be cured 
 by a correct description in the appraisement, or in the officer's 
 deed.^ Facts merely collateral to the description in a levy, 
 indorsed on an execution, cannot be adduced to extend or help 
 out an insufficient description of the land levied on.* 
 
 § 193. Effect of a Levy, &c. — A judgment lien on land 
 'constitutes no right or property in the land itself A creditor 
 has no jus in re, but a mere power conferred by law upon him 
 to make his lien effectual. It confers a right to levy on the 
 land to the exclusion of other adverse interests subsequent to 
 the judgment ; and when a levy is actually made on the land, 
 the title of the creditor for this purpose relates back to the 
 time of the judgment, so as to cut out all intermediate incum- 
 brances. Subject to this, the debtor may convey the land.* 
 It creates no new lien.^ If valid as to the debtor, it is as to 
 all subsequent attaching creditors.'^ And if on the land of a 
 stranger, does not affect it.* In Kentucky, after a levy and 
 return of the writ without sale, no other writ can issue until 
 the land has been sold or released.^ Where a levy is made 
 upon land the title of which is in a fraudulent grantee, resort 
 may be had to a court of equity to perfect and clear the title.^" 
 Where a judgment has been rendered against several persons, 
 none of them being sureties, and execution is issued on the 
 judgment, the personal property of all the defendants is not 
 bound to be exhausted before levying on the real estate of any 
 
 ' Howe V. Willis, 51 Me. 226. ' Rogers v. Druppel, 46 Cal. 654. 
 
 ' McCIennahan v. Humes, 25 Bagley v. Ward, 37 Cal. 121. 
 
 Penn. 85. ' Barnard v. Russell, 19 Vt. 334. 
 
 ' Summers v. Moore, 2 McLean, Wood v. Doane, 20 Vt. 612. 
 
 59. Hopping V. Burnham, 2 Green, ' Howeth v. Mills, 19 Tex. 295. 
 
 (la.) 39. ' Chambers v. Lewis, 28 N. Y. 454. 
 
 ■* Chasteen v. Phillips, 4 Jones's Freeman v. Thayer, 33 Me. 76. 
 
 L. 459. Howesly v. Hogue, 4 Jones's L. 481. 
 
 ' Conard v. Ins. Co., I Pet. 387. * Hopkins v. Chambers, 7 Mon. 
 
 Rodgers v. Bonner, 45 N. Y. 319. 257. 
 
 '• McLean v. Johnson, 43 Vt. 48. 
 
294 THE LEVY ON [Chap. X. 
 
 one of them. When any one of such debtors has no personal 
 property, a levy may be made on his real estate.-^ A levy may 
 be on the land of one of the sureties at the request of all the 
 other parties plaintiff and defendant.^ The levy controls all 
 the subsequent proceedings, and no more passes than what is 
 levied on.^ A levy preserves a lien upon the land levied on, 
 if no scire facias is had to revive the judgment.* 
 
 § 194. The Mode of Pkoceeding in the Execution of 
 Final Process against Real Estate in the New Eng-. 
 LAND States, — The mode of procedure in regard to the exe- 
 cution of final process in the New England states is in the 
 nature of proceedings on a writ of extent, and one in use only 
 in those states, the particulars of which are not appHcable to 
 any other portion of this country, and therefore, as far as they 
 are special to that portion of the United States, will be treated 
 of in this place. There are, however, under this mode of pro- 
 cedure matters which are applicable to the proceedings under 
 execution in the rest of the states, and, so far as they are gen- 
 erally applicable, will be treated of in their regular order. In 
 Maine, Massachusetts, New Hampshire, Vermont, and Con- 
 necticut, execution is levied on land by setting off the land 
 itself to the creditor in satisfaction of such execution, with the 
 fees, costs, and interest up to the time of the completion of the 
 proceedings." By "setting off" is simply meant the separation 
 and assignment of the land for the purpose of satisfying the 
 execution and officer's fees, so far as the appraised value of the 
 land will go.^ All the debtor's title passes to the creditor ; 
 the judgment creditor acquires the absolute ownership of the 
 premises levied upon, defeasible upon the performance of a 
 condition subsequent, and he receives the rents and profits of 
 such premises during his occupation of them under the levy, 
 
 ' Drake v. Murphy, 42 Ind. 82. •• Brown v. Campbell, I Watts, 
 
 Starry V. Johnson, 32 Ind. 438. See 41. 
 
 ante, § 160. » Taylor v. Robinson, 2 Allen, 
 
 * Taylor v. Vandeusen, 3 Gray, 562. 
 
 498- ' Brackett v. McKinney, n Me. 
 
 ' Sheafer V. Fisher, i Rawle, 155. 504. 
 
Chap. X.] REAL ESTATE. 295 
 
 as incident to such ownership, to his sole and exclusive use 
 and enjoyment, in the absence of any statute provision to the 
 •contrary.^ In order that no greater amount of a debtor's prop- 
 erty shall be taken to satisfy an- execution, the land is appraised 
 by three men, under, oath, appointed by the parties and the 
 officer. The appraisement will be treated of hereafter. In 
 the levy of an execution, a demand on the debtor for payment 
 personally, or at his usual place of abode, is made an essential 
 prerequisite by the statutes ; and if there be more than one 
 ■debtor, the demand must be made upon them all.^ (And in 
 other states.^) And a demand upon the person who is treas- 
 urer of a town, but not in his official capacity, is sufficient de- 
 mand of payment before levy.* Where the debtor is sole owner 
 of the land, which can be divided without injury, a levy upon it 
 must be made by metes and bounds.* And where no reason 
 is given for not setting it off by metes and bounds, such levy 
 cannot be sustained.^ Where more is set off than the debtor 
 owns, it is valid as to what he owns, and passes a less estate.'' 
 But where it has been appraised and set off at more than the 
 amount due on the writ, including fees and costs, it is invalid.* 
 As a dollar more ; ® or fourteen cents less.^" And the amounts 
 range from one cent and three mills upwards.^^ While four- 
 teen cents was held to come within the maxim of De minimis 
 non curat lex, in Connecticut.^ And a levy held good as to an 
 •excess of seventy-seven cents after seventeen years.^^ Where 
 
 ' Russell V. Dyer, 33 N. H. 186. 546. Glidden v. Philbrick, 56 Me. 
 
 ' Button V. Tracy, 4 Conn. 365. 222. 
 ■Galusha v. Sinclear, 3 Vt. 394. ' Beach v. Walker, 6 Conn. 190. 
 
 ' Heydrick v. Eaton, 2 Binn. 215. Boyd v. Page, yi Me. 460. Picket 
 
 ♦ Walter v. Dennison, 24 Vt. 551. v. Breckenridge, 22 Pick. 297. 
 
 ' Hilton V. Hanson, 18 Me. 397. • Webster v. Hill, 38 Me. 78. 
 Titch V. Tyler, 34 Me. 463. Mat- '» Glidden v. Chase, 35 Me. 90. 
 tocks V. Stearns, 9 Vt. 326. " Dwinnell v. Soper, 32 Me. 119. 
 
 ° Merrill v. Burbank, 23 Me. 538. Grosvenor v. Chesley, 48 Me. 369. 
 
 Gregory v. Tozier, 24 Me. 308. Chenery v. Stevens, 97 Mass. 77. 
 Mansfield v. Jack, 24 Me. 98. " Spencei- v. Champion, 9 Conn. 
 
 ' Swanston v. Crocker, 49 Me. 536. 
 455. Grover v. Howard, 31 Me. " Avery v. Bowman, 40 N. H.4S> 
 
296 THE LEVY ON [Chap. X. 
 
 eighteen rods more of land in a tract than was set off, the 
 creditor was bound to relinquish.^ Where real estate and 
 personal property is set oiF on one writ, the real estate passes.^ 
 By a legal levy of the execution, and its being recorded, actual 
 possession is vested in the creditor.^ In Vermont, the title 
 vests after the expiration of the six months given for redemp- 
 tion, when the debtor is entitled to possession.* But a levy on 
 land which does not belong to the debtor does not vest seisin 
 in the creditor.^ By the acceptance of seisin from the officer 
 of the land taken, the creditor acquires a vested title as be- 
 tween him and the debtor.^ Acceptance by an agent, which 
 is afterwards ratified, is a sufficient acceptance.'^ In the levy 
 of an execution upon real property, the appraisement and spe- 
 cial designation of the estate must necessarily precede the 
 delivery of possession and seisin thereof by the officer to the- 
 creditor ; and any attempt to deliver seisin before the appraise- 
 ment can be of no validity.' It is the duty of the officer wha 
 is directed to levy an execution upon land after appraisement,. 
 to deliver seisin and possession to the creditor, and if tl^ 
 creditor declines to accept or receive it, to return that fact on 
 the execution, and that it is in no part satisfied. The creditor 
 
 ' Hathaway v. Hemingway, 20 Burnell, 9 Mass. 96. S. C. iiMass. 
 
 Conn. 191. ^ 163. 
 
 ' Camp V. Smith, 5 Conn. 80. • Gorham v. Blazo, 2 Me. 232. 
 
 ' Gore V. Brazier, 3 Mass. 523. ' Bank v. Eastman, 44 N. H. 431. 
 
 Blood V. Wood, I Met. 528. Munroe ' Banister v. Higginson, 15 Me. 
 
 V. Lulce, I Met. 459. Langdon v. 73. Russ v. Gilman, 16 Me. 29^. 
 
 Potter, 3 Mass. 215. Wymarf v. Munroe v. Redding, 15 Me. 193.. 
 
 Brigden, 4 Mass. 150. Lyford v. Bradley v. Uassett, 2 Cush. 417.. 
 
 Dunn, 32N. H. 81. Proctor v. New- Coggswell v. Mason, 9 N. H. 48.. 
 
 hall, 17 Mass. 81. Barrett v. Porter, Whittier v. Varney, 10 N. H. 291.. 
 
 14 Mass. 143. Bigelow v. Jones, 4 Chamberlain v. Doty, 18 Pick. 495. 
 
 Mass. 512. Bartlett v. Perkins, 13 Darling v. Robbins, 18 Me. 405. 
 
 Me. 87. Bell V. Ham, 16 N. H. 302. Sleeper v. Newbury Seminary, 19 
 
 Nickerson V. Whittier, 20 Me. 223. Vt. 451. Pierce v. Strickland, 26 
 
 * Aldis V. Burdick, 8 Vt. 25. Me. 277. Harriman v. Cummings, 
 
 » Blood V. Wood, I Met. 528. 45 Me. 351. Avery v. Bowman, 3^ 
 
 Howe V. Bishop, 3 Meti 26. Gore N. H. 393. 
 V. Biazier, 3 Mass. 353. Bott v. 
 
Chap. X.] REAL ESTATE. 297 
 
 will then be entitled to an alias writ, but the original cannot 
 be superseded.^ The delivery of seisin must be shown by the 
 return of the officer. If the land of a debtor was attached 
 upon the original writ, by the levy of his execution, the cred- 
 itor gains the same seisin as if the debtor had given him a 
 deed at the time of attachment.^ By such levy the debtor 
 becomes a tenant at will ; and, if he resists the creditor's entry, 
 may be treated as a disseisor at his election. In Connecticut, 
 an attaching creditor has four months, after final judgment, in 
 which to enforce his attachment lien by levying an execution, 
 and each subsequent attaching creditor has the same period 
 of time after the preceding attaching creditor, or his time has 
 expired.^ If an execution is levied upon an undivided portion 
 of the debtor's land, without any statement in the return of 
 the existence of a mortgage, or other reason for not setting off 
 the estate in severalty, such levy is void.* Or if the value of 
 an incumbrance is over-estimated ; ^ or if not returned within 
 it^life.* Where the officer delivers seisin and possession of 
 Jhe property set off to the creditor forthwith, the debtor is 
 allowed to redeem the land, by payment of the appraised value 
 and interest, in one year from the levy. In Maine and Massa- 
 chusetts, the amount due for redemption may be ascertained 
 by three justices of the peace. In Vermont, the rents, issues, 
 and profits of an estate leased for life or years, may be set off, 
 if the value is certain, for a period sufficient to satisfy the exe- 
 cution. In Maine and Massachusetts, when the execution is 
 levied upon an estate for life, the rents and profits of the 
 premises may be set off to the creditor for a term sufficient to 
 satisfy the execution, or the value of the estate may be esti- 
 mated by the appraisers, and the same may be taken and set 
 off to the creditor at the appraised value, as with real estate. 
 In Connecticut, the execution with the appraisement, and the 
 
 ' Darling V. Robbins, 18 Me. 405. * Morgan v. Armington, 33 Vt. 
 
 Jackson v. Woodman, 29 Me. 266. 13. 
 
 » Bryart v. Tucker, 19 Me. 383. ' McGregor v. Williams, 10 Cush. 
 
 Nason v. Grant, 22 Me. 160. 526. 
 
 • Beers v. Place, 36 Conn. 578. * Russell v. Brooks, 27 Vt. 640. 
 
 38 
 
298 " THE LEVY ON [Chap. X. 
 
 official return thereon, is recorded in the records of the town 
 clerk where the land lies, and is returned into the office of the 
 clerk of the court from whence it issued whereupon a com- 
 plete title vests in the creditor. In Maine, Massachusetts, 
 New Hampshire, and Vermont, the officer is required to make 
 his return, when a return is to be made, into the clerk's office, 
 and to cause the execution, together with the certificate con- 
 taining a description of the premises, to be recorded in the 
 registry of deeds for the county or district in which the land 
 lies ; or before the return day. If this is not done, it passes 
 no title except as against the debtor and his heirs.^ Where 
 several creditors levy on the whole' of a debtor's land, and it is 
 set off to them, they take as tenants in common.^ Where all 
 the steps prescribed by law have been followed, and the prop- 
 erty of a debtor has been taken and finally applied under the 
 law to the payment of his debts, all the property of the debtor 
 in the thing so appropriated has passed to the creditor against 
 all the world, and any conflicting claim to the property must 
 be interposed before the debt has been satisfied by the levy 
 and the lapse of a year afterwards. The statutes provide that 
 all a debtor's interest shall pass by levy as against all persons.^ 
 A levy upon land held in common, upon which more land is 
 taken than is held in common, passes the actual interest held 
 by the debtor.* Where an execution is extended upon mort- 
 gaged real estate, and in the appraisal no deduction made for 
 the mortgage, the creditor acquires a good title as against the 
 debtor and those claiming under him.^ But to render such 
 extent valid, it must -distinctly appear in the return that the 
 mortgage was disregarded in the appraisal.^ An appraisal of 
 
 ' Riddle v. Fellows, 42 N. H. 430. = Bowker v. Smith, 48 N. H. in. 
 
 Perrin v. Reed, 33 Vt. 62. Little v. * Burnham v. Persons, 40 Me. 
 
 Sleeper, 37 Vt. 105. Russell v. 565. 
 
 Brook, 27 Vt. 640. Law v. Ireson, ' White v. Bond, 16 Mass. 400. 
 
 I Allen, 61. Hovey v. Bartlett, 34 N. H. 278. 
 
 ^ Lee V. Hinman, 6 Conn. 165. " Litchfield v. Cudworth, 15 Pick. 
 
 Jessup V. Batterson, ; Conn. 368. 23. 
 Smith V. Starkweather, 5 Conn. 207. 
 
Chap. X.] REAL ESTATE. 299 
 
 the estate necessarily implies that no deduction was made for 
 the mortgage.^ 
 
 § 195. Practice in Virginia, by Elegit and Extent. — 
 Virginia is also an exception to the general practice of selling 
 land on execution. The English practice of elegit and extent 
 is still in use, as well as the ordinary fieri facias ; but in spe- 
 cial cases the lands are sold, as in the case of judgments in 
 favor of the commonwealth against public debtors. The com- 
 mon-law remedy, by writ of capias pro fine, has not been abol- 
 ished. When the judgment is in favor of the commonwealth 
 for fine and costs, it is the proper remedy ; but for costs with- 
 out a fine it is not.^ After a return of a fieri facias issued on 
 a judgment or decree partially satisfied, the creditor may sue 
 out an elegit, or any other form of writ in use there.^ There 
 is no statute in Virginia which expressly makes a judgment a 
 lien on the lands of the debtor ; such lien is in consequence 
 of the right of the creditor to sue out an elegit, and exists as 
 long as the right exists.* The right to sue out an elegit is not 
 suspended by the suing out of a fi.fa., and the lien therefore 
 continues during the proceedings on that writ.^ A judgment, 
 in Virginia, is a lien upon a- reversion after a life estate in land 
 which has descended to the heirs of the judgment debtor.^ 
 The right to have an elegit issue on a judgment constitutes it 
 a lien on land, in Virginia ; it is not necessary that an elegit 
 should have actually issued.^ The execution of an elegit gives 
 the creditor only a legal possession, which he may enforce by 
 ejectment to recover the actual possession of the land ; and in 
 case possession is withheld by the owner of the land, without 
 the fault of the tenant, by elegit he may hqjd over after he has 
 acquired" actual possession for a period equal to that during 
 ■which possession was withheld by the debtor. But where, by 
 the act of the creditor himself, or that of a third party, he does 
 
 ' Mechanics', &c., v. Williams, 17 ' United States v. Morrison, 4 
 
 Pick. 438. Pet. 124. 
 
 " Webster's Case, 8 Gratt. 702. • Burton v. Smith, 13 Pet. 464. 
 
 ' Coleman v. Cocke, 6 Rand, 618. ' Scriba v. Deanes, I Brock. 166. 
 
 * United States v. Morrison, 4 
 Pet. 124. 
 
300 THE LEVY ON [Chap. X. 
 
 not receive the rents and profits of the extended lands, he can- 
 not hold over, but his estate will expire when his debt might 
 have been satisfied. An ejectment brought by the elegit 
 creditor within a reasonable time affords prima facie evidence 
 that the debtor originally withheld the possession of the prem- 
 ises ; but where the ejectment was not brought until five years 
 after the extent of the elegit, it was held that the acquiescence 
 of the creditor in the possession of the debtor must be pre- 
 sumed. And where, in such case, the land is sold under a 
 decree subject to the elegit, for the benefit of other creditors 
 of the debtors, the purchasers are not liable for the profits of 
 the land while held by the debtors with the acquiescence of 
 the elegit creditors, but only for the profits accruing during 
 the unexpired term under the elegit.^ Or if a reference is had, 
 and the debt has been satisfied from the rents and profits, 
 possession is restored to the defendant.^ The officer is not 
 bound to deliver a moiety of each particular tenement and 
 farm, but only certain tenements equal in value to the whole.* 
 His return should show that he has delivered an equal moiety, 
 and should also set out the moiety by metes and bounds.* 
 Upon an extent under an elegit, the creditor stands as if he 
 had taken a lease for years in satisfaction of his debt, and ac- 
 quires a title in the premises which may be adjudicated, as a 
 controversy concerning the title to land.^ A recent law as to 
 judicial sales of real estate for debts contracted prior to April 
 lo, 1865, provides that a sale at first or second exposure of the 
 property cannot be made (except where the debtor consents) 
 unless the real estate brings three fourths of its assessed value, 
 and a credit to be ^iven of not less than three nor more than 
 six annual instalments. When a writ of fieri facias is a lien 
 on real estate, the judgment debtor may be compelled to dis- 
 cover and surrender his estate, and the court in which judg- 
 ment was taken may make any order which it may deem right 
 
 ' Ronald v. Barkley, I Brock. 356. Monroe v. Tracy, I Al. & Nap. 302. 
 
 » Price V. Varney, 5 D. & R. 612. Ante, §§ 30-32. 
 
 ' Doe V. Abingdon, 2 Doug. 474. ' Lyons v. McGuire, 22 Gratt. 
 
 * Fenny v. Durant, i B. & A. 40. 202. 
 
Chap. X.] REAL ESTATE. 301 
 
 for the sale and proper application of the debtor's estate. In 
 West Virginia, unless the rents and profits of the lands will 
 satisfy the debt in five years, it is error to sell the land.^ 
 
 § 196. In order that the generar principles herein pointed 
 out, which are applicable to the proceedings upon execution 
 so far as the same relate to the conversion of real estate into 
 money, by virtue of final process for the enforcement and satis- 
 faction of judgments, a brief synopsis of the statutory provis- 
 ions, and the rights of debtors thereunder, is given, so that the 
 necessary steps in the execution of final process may be thor- 
 oughly understood. As the practice in the New England 
 states, Virginia, and West Virginia are exceptions to the gen- 
 eral mode of proceeding, the peculiar points have been referred 
 to ; and as the mode of procedure in the rest of the United 
 States is in a great measure uniform as to the final result, the 
 sale of the property for the satisfaction of the debt, the pro- 
 ceedings will be treated step by step, until the execution is 
 complete by its return to the court from which it issued. The 
 method of executing final process on real estate in the rest of 
 the United States is by an absolute sale of the land, or of the 
 rents and profits, by the sheriflF. The mode of proceeding is 
 far from uniform. The intended sale is required to be adver- 
 tised for a certain length of time, and must be made at the 
 county court-house, or in the county town, or made in certain 
 months of the year, or within certain hours of the day. Upon 
 a sale of real estate, if there is no redemption, the officer exe- 
 cutes to the purchaser a deed which immediately vests in the 
 purchaser all the debtor's right and title. Where a certain 
 time is allowed for redemption, the officer makes out certifi- 
 cates of sale, one of which is filed in the office of the clerk or 
 registry of the county, and the other is delivered to the pur- 
 chaser. The legal estate does not vest in the purchaser until 
 the time of redemption has expired ; if the premises have not 
 been redeemed, the officer executes a deed thereof 10 the pur- 
 chaser. After satisfying the execution, the surplus, if there be 
 
 ' Conaway v. Odbert, 2 West Virginia, 25. Coal, &c., Co. v. Webb, 
 3 West Virginia, 438. 
 
302 THE LEVY ON [Chap. X. 
 
 any, is paid to the defendant, or into court for his use. In 
 many states an appraisement of the land is made by disinter- 
 ested persons appointed either by the parties or by them and 
 the officer ; and no sale of the property can be made for less 
 than two thirds of the value thereof, as determined by the 
 appraisers. In Louisiana, if no sale is effected at two thirds 
 of the appraised value, the sheriff adjourns the sale for fifteen 
 days, and then sells it, on a credit of twelve months, for the 
 most it will bring. In Indiana, the land is not to be sold until 
 the rents and profits have first been appraised, and set up for 
 sale for a term not exceeding seven years, to satisfy the exe- 
 cution. In Pennsylvania, an inquest is summoned for the pur- 
 pose of ascertaining whether the rents and profits, beyond all 
 repairs, will be sufficient to satisfy within seven years the exe- 
 cution with costs. If the clear rents and profits of the estate 
 are found sufficient upon the return of writ to court, the plain- 
 tiff may have a writ of liberari facias to obtain possession, as 
 practised upon the elegit in England. The defendant may 
 waive an inquisition, when the estate will be sold upon a writ 
 oi fieri facias. If the inquest finds that the clear profits will 
 not satisfy the debt within seven years, the plaintiff may have 
 a writ of venditioni exponas to sell such real estate for the 
 satisfaction of his judgment ; and the sheriff delivers posses- 
 sion upon the sale, and executes a deed reciting the judgment 
 and process, which is recorded, — there being no redemption. 
 In Delaware, lands yielding no yearly profit may be sold on a 
 levari facias ; and if the sheriff returns no sale for want of 
 purchasers, so much of the lands as will satisfy the judgment 
 may be set off to the creditor under a writ of liberari facias y 
 according to the valuation of appraisers. When lands are 
 taken on execution, the officer has an inquisition to ascertain 
 whether the yearly rents and profits will be sufficient to satisfy 
 the execution in seven years ; if found sufficient, all such lands 
 are delivered to the creditor to hold until he is satisfied upon 
 a writ of elegit. In Maryland, lands and tenements may be 
 sold on execution after due notice of sale. The officer is re- 
 quired to make return of the writ, with all his proceedings* 
 
Chap. X.] REAL ESTATE. 303 
 
 under the same, setting forth the notice of the sale, and the 
 times and places of publication, to the justice authorized ■ to 
 receive the return, who delivers the same, with his warrant and 
 proceedings, to the clerk of the Circuit Court of the county, or 
 of the Superior Court of Baltimore city. No title or interest 
 passes until the sale is ratified and confirmed by the court, 
 which may examine into any allegations of fraud or surprise 
 in obtaining the judgment, and into all the circumstances of 
 the sale. Ratification of the sale is conclusive evidence of its 
 regularity, and the return and proceedings are recorded. 
 
 § 197. The Appraisement of Real Estate. — In those 
 states where the appraisement or valuation laws are in 
 force, the first step taken by the officer, after indorsement 
 of the time of its reception by him, and the levy, upon the 
 writ, is that of obtaining and making the appraisement 
 of the property in the manner provided by the statutes 
 relating to the sale of real estate upon execution. An ap- 
 praisement is supposed to be a just valuation, and constitutes 
 a necessary part of a levy upon real estate where required by 
 statute. The appraisement laws are for the protection of the 
 debtor, in preventing the sacrifice of his property, and, also, in 
 a measure to prevent creditors from being harassed by their 
 debtors after a sale has been made, in having them set aside 
 for gross inadequacy. The manner of conducting and making 
 an appraisement is governed by statute. In the New England 
 states they are strictly construed, and must be literally com- 
 plied with, or the levy is void ; ^ in other states they are con- 
 sidered as directory only, and may be waived by the debtor.^ 
 The general rule is, that a sale without appraisement is void,^ 
 unless waived, and only the absolute owner can waive it.* The 
 practice in the states where an appraisement is required by 
 statute is far from uniform. In the New England states, 
 under their practice, the debtor must have notice to choose 
 
 ' Russell V. Dyer, 40 N. H. 173. 337. Stockwell v. Byrne, 22 Ind. 6. 
 
 Ellison V. Wilson, 36 Vt. 160. Wray v. Miller, 20 Penn. iii. Les- 
 
 ' Crowell V. McConkey, 5 Penn see v. Parish, 3 Ohio, 187. 
 168. McCleary v. Faber, 6 Penn. " Wray v. Miller, 20 Penn. ill. 
 476. Overton v. Tozier, 7 Watts, * Pepper v. Copeland, 2 Miles, 419. 
 
304 
 
 APPRAISEMENT OF 
 
 [Chap. X. 
 
 one within a reasonable time, and if he neglects or refuses to 
 appoint one, the officer must appoint one for him.^ They must 
 be residents of the 'county or town where the land lies.^ The 
 return of the officer must show that he duly notified the debtor 
 to choose an appraiser, and of his refusal and neglect to ap- 
 point one, and by whom the appraisers were appointed, or the 
 levy is void.^ If the debtor is absent, the wife may appoint 
 one.* Where the debtor is a non-resident of the county, no 
 notice is necessary to him.^ The officer's return is conclusive 
 of every fact therein stated in regard to the appraisers and 
 their appointment.^ In New England, where a levy is sus- 
 pended by a prior attachment, and such attachment is dis- 
 solved, appraisers previously appointed may complete the ap- 
 praisement without any new notice to the judgment debtor 
 to appoint an appraiser, though neither was appointed by him.' 
 A delay of one month after levy and before appraisement does 
 not avoid it.* The parties to be selected and act in the ap- 
 
 ' Briggs V. Green, 33 Vt. 565. 
 Fitch V. Tyler, 34 Me. 43. Howe v. 
 Wildes, 34 Me. 566. Whittier v. 
 Varney, 10 N. H. 291. Harriman 
 V. Cummings, 45 Me. 351. 
 
 ' Chapman v. Griffin, i Root, 196. 
 Mather v. Chapman, 6 Conn. 54. 
 Libbey v. Copp, 3 N. H. 45. Rich- 
 mond V. Marston, ij Ind. 134. 
 
 ' Stanton v. Bannister, 2 Vt. 464. 
 Herring v. Polley, 8 Mass. 1 1 3. Stur- 
 divant V. Sweetzer, 12 Me. 520. Whit- 
 man V. Tyler, 8 Mass. 284. Blanchard 
 V. Brooks, 12 Pick. 47. Parish v. 
 Harriman, 3 N. H. 317. Rix v. 
 Johnson, 5 N. H. 320. Bannister v. 
 Higginson, 15 Me. 72- Allen v. 
 Thayer, 17 Mass. 299. Cogswell 
 V. Mason, 9 N. H. 48. Thompson 
 V. Oakes, 13 Me. 407. Roop v. 
 Thompson, 24 Me. 335. Odiorne 
 V. Mason, 9 N. H. 24. Johnson v. 
 Huntington, 13 Conn. 47. Smith v. 
 
 Keene, 26 Me. 41 1. Pierce v. Strick- 
 land, 26 Me. 277. Gault v. Hall, 26 
 Me. 561. Brignon v. Howes, 13 Me. 
 154. Ware v. Barker, 39 Me. 358. 
 Dooley v. Wolcott, 4 Allen, 406. 
 Leonard v. Bryant, 2 Cush. 32. Far- 
 rell V. Klurap, 13 La. 311. Randall 
 V. Wyman, 16 Gray, 334. Keen v. 
 Briggs, 46 Me. 467. Harriman v. 
 Cummings, 45 Me. 351. Whittier 
 V. Varney, 10 N. H. 291. Aldis v. 
 Burdick, 8 Vt. 23. Shields v. Hast- 
 ings, 10 Cush. 247. 
 
 * Russell V. Hook, 4 Me. 372. 
 
 ' Howe V. Reed, 12 Me. 515. Ga- 
 lusha V. Sinclair, 3 Vt. 394. Gilman 
 V. Thompson, 1 1 Vt. 643. 
 
 « Dooley v. Wolcott, 4 Allen, .406. 
 Grover v. Howard, 31 Me. 546. Mc- 
 Keen v. Gammon, 33 Me. 187. 
 
 ' Wadsworth v. Williams, 100 
 Mass. 126. 
 
 " Inman v. Mead, 97 Mass. 310. 
 
Chap. X.] REAL ESTATE. 305 
 
 « 
 
 praisement of property must be householders or freeholders ^ 
 (but it does not vitiate the proceedings, in other states^), and 
 disinterested and discreet men.^ In Maine and Massachusetts 
 they need not be residents of the county where the land lies.* 
 The statutes prescribe who may be appraisers, and also the 
 qualifications necessary. Interested parties or relatives of 
 the parties cannot be chosen.® As to who are interested 
 parties so as to disqualify them from being appraisers by rea- 
 son of relationship with eithef party, are a brother of the plain- 
 tiff,® one whose wife is mother of the creditor,^ a son-in-law of 
 the debtor.* In New Hampshire, where the relationship is 
 only by affinity, they are competent.® But where a debtor ap- 
 points an interested party with the consent of the creditors, 
 they cannot object to the appraisement.-"* The return of the 
 officer is conclusive evidence of the competency and identity 
 of the appraisers,^-* and must show that they possessed the stat- 
 utory qualifications.^ They must be duly sworn. The word 
 duly, in a return where the appraisers were " duly sworn " to 
 appraise, covers all the requirements of the law,^^ to appraise 
 the property fairly and impartially upon actual view thereof. 
 For this purpose it is not necessary that they actually go upon 
 
 ' Eddy V. Knapp, 2 Mass. 154. * McGough v. Wellington, 6 AI- 
 
 Whitman v. Tyler, 8 Mass. 284. len, 505. 
 
 Kutter V. Buckout, 4 Kan. 120. ' Johnson v. Huntington, 13 
 
 ' Hill V. Baker, 31 la. 302. Conn. 47. 
 
 ' Glidden v. Philbrick, 56 Me. 222. » Wolcott v. Ely, 2 Allen, 338. 
 
 Bradley v. Bassett, 2 Cush. 417. ' Baker v. Davis, 19 N. H. 325. 
 
 Grover v. Howard, 31 Me. 546. Mc- '■'' Cutting v. Rockwood, 2 Pick. 
 
 Keen v. Gammon, 33 Me. 187. Day 443. Cheesebrough v. Clark, I 
 
 V. Roberts, 8 Vt. 413. Rollins v. Root, 141. 
 
 Moers, 25 Me. 192. Russ v. Gil- " Rollins v. Rich, 27 Me. 557, 
 
 man, 16 Me. 209. Campbell v. Webster, 15 Gray, 28, 
 
 ■• Fitchv. Tyler, 34Me.43. Wood- '« Pierce v. Strickland, 26 Me. 271 
 
 man v. Smith, 37 Me. 21. Campbell " Paine v. Spratley, 5 Kan. S43' 
 
 V. Webster, 15 Gray, 28. Sturdivant v. Sweetzer, 12 Me. 520, 
 
 ' Tweedy v. Picket, i Day. 109. Fitch v. Tyler, 34 Me. 43. Barnard 
 
 Fox V. Hills, I Conn. 295. Mitchell v. Fisher, 7 Mass. 71. Leonard v. 
 
 V. Kirtland, 7 Conn. 229. Bryant, 2 Cush. 32. 
 39 
 
306 APPRAISEMENT OF [Chap. X. 
 
 the land, so they view it, and then appraise it.^ In New- 
 England they are sworn by a justice of the peace, as the officer 
 executing the writ cannot administer the oath to them ; ^ while 
 in other states the officer appointing them administers the 
 oath. In the New England and other states the return must 
 show how they were sworn, and that the statutory form of the 
 oath was pursued.* 
 
 § 198. The statutory provisions require that there shall be 
 three persons appointed as appjraisers, and, to make a valid 
 appraisement, all the appraisers must ordinarily agree.* Under 
 the New England practice, all of them must act ; if they all 
 act, and only two of them sign the appraisement, it is valid." 
 Where land is set off as subject to an encumbrance, and a de- 
 duction is made in the appraisement on account of it, when no- 
 such encumbrance exists, it is void.^ Where there are several 
 executions levied on the same property, an appraisal under 
 one writ is valid as to the others, as the surplus is all that they 
 are entitled to.' Several parcels may be appraised in one esti- 
 mate,* or a distinct set may be chosen to appraise each parcel.* 
 
 ' Pendleton v. Button, 3 Conn. 2 Met. (Ky.) 514. Bell v. Clark, a 
 
 412. Bond V. Bond, 2 Pick. 382. Met. (Ky.) 573. Patterson v. State,. 
 
 Hammatt v. Bassett, 2 Pick. 564. 7 Ark. 59. Warren v. State, i G. 
 
 • Phillips V. Williams, 14 Me. 411. Greene, 106. Harriman v. State, 2 
 Chambers v. Doty, 18 Pick. 495. G. Greene, 270. Dixon v. State, 4 
 Howard v. Turner, 6 Me. 106. Bam- G. Greene, 381. Sandford v. State, 
 ford V. Melvin, 7 Me. 14. 1 1 Ark. 328. Bivers v. State, 1 1 
 
 * Kellenberger v. Sturdevant, 1 1 Ark. 455. 
 
 Cush. 160. Inhabitants, &c., v. ♦ Evans v. Landon, 6 111. 307. 
 
 Pope, I Mass. 86. Lessee v. Oster- » Whitman v. Tyler, 8 Mass. 284. 
 
 hout, I Ohio, 27. Purrington v. Phillips v. Williams, 14 Me. 411. 
 
 Loring, 7 Mass. 388. Chamberlain Munroe v. Reding, 15 Me. 153. Mc- 
 
 V. Doty, 18 Pick. 495. Henry v. Lellan v. Nelson, 37 Me. 129. Bar- 
 
 Tilson, i9Vt. 447. Sleeper v. Trus- rett v. Porter, 14 Mass. 143. Moffatt 
 
 tees, 19 Vt. 451. Ainsworth v. Dean, v. Jaquins, 2 Pick. 331. Hopkins v. 
 
 21 N. H. 400. State v. Rollins, 22 Haywood, 36 Vt. 318. 
 
 N. H. 528. Gibson v. Bailey, 9 N. « Root v. Colton, i Met. 345. 
 
 H. 177, Atkins V. Kinnan, 20 Wend. ' Douglas v. Meloy, 5 Ohio, 522. 
 
 240. Woodcock V. Bowman, 4 Met. » Barnard v. Fisher, 7 Mass. 71. 
 
 (Ky.) 40. Wells v. Cowherd, &c., • Boylston v. Carver, 11 Mass. 515. 
 
Chap. X.] REAL ESTATE. 307 
 
 The interest of two joint debtors in land held by them in com- 
 mon may be sold under one appraisement ; ^ but where the 
 writ is against several defendants, the land of each must be 
 separately appraised.^ Everything so annexed to the freehold 
 as to pass by the levy of an execution upon the land must be 
 presumed to have been taken into consideration by the ap- 
 praisers in estimating the value.* An appraisement of more 
 land than the debtor owns is valid, if the creditor so elect* 
 Where a sale has been enjoined on account of irregularity in 
 the appraisement, a new appraisement may be ordered, and 
 the injunction dissolved ; ^ and if reviewed by the appraisers in 
 good faith, before delivery to the officer, it does not avoid it.® 
 A failure to appraise is a fatal objection to a levy.'^ The ap- 
 praisement laws apply to judgments in rem, as well as in 
 personam? An appraisement will not be set aside in the 
 absence of fraud or mistake other than mere error of judg- 
 ment ; it is conclusive.^ In Pennsylvania, when personal 
 property is taken on execution, the sheriff summons three 
 freeholders to appraise, and the valuation is to be annexed to 
 the writ ; and if the sale amounts to two thirds only of the 
 appraised value, it is to be stayed for a year, on due security. 
 An estate for life, belonging to the debtor, is not within the 
 statute, and it may be sold on execution without an inquest on 
 its value.-"* So, if the property be woodland, the parties may 
 by consent waive the inquisition, and have the lands sold on 
 fieri facias without it.^^ In Illinois and Missouri land is sold 
 without appraisement. There is no particular form of appraise- 
 ment necessary ; any memorandum in writing, under their 
 hands, giving the officer the correct information of the esti- 
 mated value, is sufficient.^^ Where the record or return fairly 
 
 ' Dwinnell v. Soper, 33 Me. 119. ' Ind. R. R. Co. v. Bradley, 15 
 
 * Burnham v. Auken, 6 N. H. 306. Ind. 23. 
 
 ' Payne v. Farmers', &c., Bank, ' Crow v. State, 23 Ark. 634. 
 
 29 Conn. 41 5. ' Lawrence v. Edelen, 6 Bush. 55. 
 
 * Patterson V. Chandler, 55 Me. 53. '" Howell v. Woolfort, 2 Dall. 75. 
 ' Thompson v. Bragg, 32 Ind. 482. " Overton v. Tozer, 7 Watts, 331. 
 
 * Camp V. Bates, 13 Conn. i. " Peck v. Wallace, 9 Conn. 453. 
 
308 APPRAISEMENT OF [Chap. X. 
 
 shows that there was a substantial compliance with the spirit 
 of the law requiring an appraisement of the property taken 
 upon execution to be made, and in each successive step there- 
 in, and also that the rights of the parties in respect thereof 
 were carefully guarded, an appraisement so made is sufificient.^ 
 The date of the contract upon which the judgment is founded 
 governs the sale, if the contract is made while the statute 
 requiring an appraisement of real property is in force. It 
 becomes part of the contract, and the proceedings under the 
 execution must conform to its requirements, notwithstanding 
 its repeal, before it is merged into the judgment, or the issue 
 of the execution.^ But where it does not appear when the 
 contract was made, or the contract was made out of the state, 
 the judgment controls.^ In those states where the appraise- 
 ment laws are in force, and sales of real estate under execu- 
 tion are governed by it, an officer is positively prohibited by 
 statute from selling property for less than the limited propor- 
 tion of the appraised value thereof, whether it be two thirds, 
 three fourths, or any amount of the appraisement ; * but not in 
 Texas.^ Laws requiring an appraisement are not merely 
 directory, and a sale without appraisement is void.^ 
 
 ' Paine v. Spratley, 5 Kan. 525. Collier v. Stanbrough, 6 How. 414. 
 
 ' Bronson v. Kinzie, i How. 311. Hefferlin v. Sinsindorfer, 2 Kan. 
 
 Collier v. Stanbrough, 6 How. 14. 401. Curtis v. Doe, i 111. 139. Evans 
 
 McCracken v. Hayward, 2 How. v. Landon, 6 111. 309. Harrison v. 
 
 608. Rew V. Wood, 3 McLean, 575. Rapp, 2 Blackfd. i. Tyler v. Wil- 
 
 Moss V. O'Neal, 2 Ind. 6;. Smith kinson, 27 Ind. 450. Holman v. 
 
 V. Ely, 9 Ind. 177. Law v. Smith, 4 Collins, i Ind. 24. Morse v. Neal, 
 
 Ind. 56. Tevis v. Doe, 3 Ind. 129. 2 Ind. 65. Vail v. Craft, 2 Ind. 359. 
 
 Rawleyv. Hooker, 21 Ind. 144. Har- Spratt v. Reid, 3 la. 489. Babcock 
 
 rison v. Sipp, 8 Blackf. 455. Hobson v. Doe, 8 Ind. 1 10. Lessee v. Os- 
 
 V. Doe, 4 Blackf. 487. Lane v. Fox, terhout, i Ohio, 27. Daniels v. Mc- 
 
 8 Blackf. 508. BurtoA v. Emerson, Bain, 2 Ohio S. 408. Baird v. Lent, 
 
 4 G. Greene, 393. Corriel v. Ham, 8 Watts, 422. Pepper v. Copeland. 
 
 4 G. Greene, 455. Willard v. Long- 2 Miles, 419. Succession of Hillis- 
 
 street, 2 Doug. 172. berg, i La. 340. Wray v. Miller, 20 
 
 ' Ind. R. R. V. Bradley, 15 Ind. Penn. in. 
 23. Hutchins v. Barnett, 19 Ind. 15. ' Sydnor v. Roberts, 13 Tex. 598. 
 
 « Gantleyv. Ewing, 3 How. 707. • Gantley v. E wing, 3 How. 713. 
 
Chap. X.] REAL ESTATE. 30& 
 
 § 199. Of the Notice of Sale. Advertisement, Suffi- 
 ciency OF. — The next proceeding under the execution, after 
 making a levy, and the completion of the appraisement (in 
 the states where an appraisement is required, and a writ is ex- 
 ecuted by a sale of the land), is to publish or give notice of the 
 time and place of sale, and a description of the property which 
 is to be offered for sale, and the terms of such sale, which 
 must be at public auction, that being the only legal manner in 
 which execution sales can be made. ^ The length of time and 
 the manner in which such notice shall be given is provided for 
 by statute in each of the various states in which such sales are 
 made. Being a purely statutory regulation, the time is varied 
 in the different states. The object in requiring this notice to 
 be given is for the benefit of the debtor, to protect his rights, 
 and to create competition, and obtain the best price for the 
 property ; if he waives that provision, and consents to a sale 
 without advertisement, the sale will be legal.^ In some states 
 it is regarded as merely directory, and a sale without adver- 
 tisement will not be void.^ It deprives it of its character of a 
 formal sale.^ Publication cannot legally be made until the 
 appraisement is returned, or deposited in the clerk's office, in 
 those states where the statutes provide for the appraisement 
 first.* It is the duty of the officer, in advertising property 
 levied on by him to be sold under execution, to give as full 
 and complete a description thereof in his advertisement as, in 
 the exercise of ordinary diligence, it is possible for him to give, 
 in view of its character, condition, and location, so that the 
 public may best understand what particular property is to be 
 
 Collier v. Stanbrough, 6 How. 414. Ind. 450. Ind. R. R. v. Bradley, 15 
 
 Erwinv. Lowry, 7 How. 178. Smith Ind. 23. Babcock v. Doe, 8 Ind. 
 
 V. Cockrell, 6 Wall. 756. Fletcher 110. Maples v. Nelson, 31 la. 322. 
 
 V. Holmes, 25 Ind. 458. Morse v. ' Burroughs v^ Wright, 16 Vt. 619. 
 
 Doe, 2 Ind. 65. Eddy v. Knapp, 2 ' Hendrick v. Davis, 27 Ga. 167. 
 
 Mass. 154. Spratt v. Reid, 3 G. Johnson v. Reese, 28 Ga. 353. Smith 
 
 Greene, 489. Cornell v. Ham, 4 G. v. Randall, 6 Cal. 47. Harvey v. 
 
 Greene, 455. Burton v. Emerson, Fisk, 9 Cal. 93. 
 
 4 G. Greene, 393. Evan.', v. Ashley, ' Esnault v. Cooley, 16 La. 165. 
 
 22 Ind. 15. Tyler V. Wilkinson, 27 * Merritt v. Borden, 2 Disney, 503. 
 
310 ADVERTISEMENT OF [Chap. X. 
 
 sold.^ Where a statute requires that the property taken shall , 
 be advertised at some "public place" to be sold, a "public 
 place " is such a place that an advertisement posted in it would 
 be likely to attract general attention, so that its contents might 
 reasonably be expected to become a rnatter of notoriety in the 
 vicinity.^ Where an insufficient description is given, as, "all 
 the land of the debtor in a certain county," a sale cannot be 
 sustained.^ The omission to name the county in which the 
 land is situated will not avoid the levy.* In Tennessee publi- 
 cation need not be made after the issue of an alias vendi!' 
 Where there are executions on several judgments, one adver- 
 tisement is sufficient.^ Where a sale is stayed after its being 
 advertised, a new advertisement is necessary when the revoca- 
 tion is made, if made after the time advertised for the sale.'^ 
 A re-advertisement where the sale day is discovered to come 
 on Sunday does not avoid the sale as to the debtor.^ In Ten- 
 nessee, if the defendant be in actual possession, the sheriff 
 must give, him twenty days' notice, in writing, of the time and 
 place of sale, and if the defendant be not in possession, the 
 sheriff must advertise the sale in a public paper three different 
 times, or the sale will be absolutely void.® Equivalent infor- 
 mation will do.^" In Delaware, on a sale of real estate by the 
 sheriff, he must be prepared to show at least one advertise- 
 ment posted in each hundred ten days before the sale, and it 
 seems this is not exclusive of both the day of posting and the 
 day of sale.^^ The sheriff is bound to prove notice of the sale 
 of lands strictly.^ In computing the length of time an advei- 
 
 ' Harrison v. Cachelin, 37 Mo. 79. « Arnold v. Dinsmore, 3 Cold. 235. 
 
 Merwin v. Smith, i Green Ch. 162. ' Humphries v. Brown, 19 La. 158. 
 
 Allen V. Cole, i Stockt. 286. Collier Patten v. Stewart, 26 Ind. 395. 
 
 V. Vason, 12 Ga. 440. ' Banning v. Armstrong, 7 Minn. 
 
 ' Austin V. Soule, 36 Vt. 645. 46. 
 
 ' Merwin v. Smith, i Green Ch. ' Trott v. McGavock, 1 Yerg. 469. 
 
 182. Frazer v. Steerod, 7 la. 339. '" Lloyd v. Anglin, 7 Yerg. 428. 
 
 Reynolds v. Wilson, 15 111. 394. >' Underwood v. Jeans, 4 Harring. 
 
 ' Duncan v. Matney, 29 Mo. 368. 201. 
 
 ' Luther v. McMichael, 6 Humph. " Burton v. Wolfe, 4 Harring. 221. 
 
 298. Wolf V. Heathers, 4 Harring. 325. 
 
Chap. X.] REAL ESTATE 311 
 
 'tisement is published, the day it was published and the day of 
 the sale may both be counted.^ In Illinois "for three suc- 
 cessive weeks" means simply three successive publications.' 
 Where a publication is required to be during " three succes- 
 sive weeks previous to sale," it must be three full weeks, or 
 twenty-one days, between the date of the first advertisement 
 and the sale.* Where " six weeks successively " is required, a 
 publication for six weeks, the first being but thirty-nine days 
 before the sale, is insufficient.* It is sufficiently proved by a 
 printer's affidavit,^ or by parol by the advertisement that the 
 sale was advertised according to law.^ Where a statute au- 
 thorizes a publication in a newspaper published in the county, 
 •or in three public places in the county, it is not necessary to 
 advertise that sale in three of the most public places in order to 
 make the advertisement legal.'' Notice of an execution sale is 
 virtually notice of the deed conveying the property.* 
 
 § 2CHD. Of the Place of Sale. — The statutes make special 
 provision as to the place where real property is to be sold. 
 The general rule is, that the sale must be made at the court- 
 house door in the county where the land is situated ; in Lou- 
 isiana at the seat of justice in the parish, and on the plantation, 
 if the sale be in the country.* The provisions of state statutes 
 fixing the place of sale are imperative and mandatory, and a 
 sale at any other place is void.^'' In Missouri a sale made at 
 the court-house door of the Circuit Court, in another town 
 from that where the judgment is rendered, is vahd ; ^^ or if 
 made at another place than that required by statute, with the 
 ■consent of the debtor, it is good.^ 
 
 • ' Manning v. Dove, lo Rich. L. ' Shumate v. Reavis, 49 Mo. 333. 
 
 39J. ' Smith V. Morse, 2 Cal. 524. 
 
 • Pearson v. Bradley, 48 111. 520. Raun v. Reynolds, 11 Cal. 14. Smith 
 ' Francis v. Norris, 2 Miles, 150. v. Randall, 6 Cal. 47. Tuolumne, 
 
 /» re Wallace, 2 Pitt's R. 145. &c., Co. v. Sedgwick, 15 Cal. 515. 
 
 • Olcottv. Robinson, 20 Barb. 148. Sessions v. Pear, 23 Ark. 39. 
 
 ' Sexton V. Rhames, 13 Wis. 99. '" DryfoQs v. Dridges, 45 Miss. 
 
 • Doe V. Lane, 11 Miss. 763. 247. 
 
 Uoyd V. Anglin, 7 Yerg. 428. " Mers v. Bell, 45 Mo. 333. 
 
 ' Mapp V. Thompson, 9 Ga. 42. " Briggs v. Brickell, 68 N. C. 239. 
 
312 THE LEVY ON REAL ESTATE. [Chap. X. 
 
 § 201. Having made a levy, an appraisement, and given 
 notice of the time and place of sale as required by law, the 
 next step in the execution of final process upon real estate i& 
 the sale of the property on which the levy is made, which will 
 be treated of in a subsequent chapter. 
 
Chap. XI.] OF THE SALE. 313 
 
 CHAPTER XI. 
 
 OF THE SALE. 
 
 What is a sale. — By whom to be made. — Essentials of a sale. 
 How made. — For what made. — A mount of property to be 
 sold. — Bidding at sales. — Proceedings under several writs. — 
 Who may purchase. — Who may not purchase. — Proceedings 
 in case of sacrifice. — Postponement of sale. — Resale, when 
 allowed. — Sale after return day. — After death of party. — 
 Rule of caveat emptor, when applicable. — When pur- 
 chaser may obtain relief. — Sale under a writ of Vendi- 
 tioni exponas.^Sale of personal property. — Time and 
 place of sale. — Personal property, how sold. — Of the title 
 that passes by sale. — Fraudulent sales. — Sale of crops. — 
 Sale of mortgaged personal property. 
 
 § 204. A sale by virtue of the authority and power con- 
 ferred on a ministerial officer of a court by an execution is 
 what is known as a forced or involuntary sale, spmetimes 
 called a judicial sale. It is made without the consent of 
 the owner, and in obedience to the mandate of a tribunal 
 of competent jurisdiction. An officer has no authority to sell 
 but what he derives from the writ : viz., to sell goods, chat- 
 tels, lands, and tenements. The right to receive the dis- 
 tributive share of an estate is neither of these.' A sale 
 thus made transfers all the rights, title, and interest of the 
 owner of the property (the debtor or defendant). It does 
 not, as we shall see, guarantee the title to the property 
 sold, but merely transfers the rights of the party to the 
 thing sold, subject, as a matter of course, to all prior 
 claims or liens, defects, &c. In treating of the sale under 
 ' Colvard v. Coxe, Dud. 99. 
 
314 ON EXECUTIONS. [Chap. XI. 
 
 executions, the general principles applicable to all of this 
 class of sales will be examined, — the sale of personal or 
 movable property, and then the sale of real property. 
 Sales under execution are made by the officer of the lay 
 who is required by law, as well for the benefit of all the 
 parties to the action as others who may be injured by his 
 official defalcations, to give bond and good security for the 
 faithful discharge of his duties. The statutes governing 
 proceedings upon final process are the only guides of such 
 officers, and as a general rule their sales are perfect, and a 
 title passes to the purchaser without confirmation by the 
 court, unless otherwise specially provided.* The sale 
 must be made in obedience to the mandate of a writ. 
 Where a cause is settled by agreement, part of which 
 agreement is that the property shall be sold by an officer, 
 and such settlement is made the judgment of the court, 
 a sale made by an officer under such agreement is not 
 a judicial sale.' One of the essentials of a sale under an 
 execution is that there must be a previous levy.' It must 
 follow the advertisement or it may be set aside,* and must 
 be made by the same officer who makes the levy, though 
 his term of office expires before the day of sale.' While 
 the sheriff or constable is the proper person to sell, a court 
 has discretionary power to appoint any fit er proper person 
 to make the sale.* An officer, having a. number of sales to 
 make in a few hours, can not be expected to stop selling 
 after one item of property is sold, until the money is paid 
 for it, and if not paid, set it up again for sale. His duty 
 
 ' Foreman v. Hunt, 3 Dana, 621. v. Hirsch, 17 Wis. 403. Colyer v. 
 
 ' Doyle V. A. M. Church, 43 Geo. Higgins, i Duval, 6. Bank, &c. v. 
 
 400. Bealty, 3 Sneed. 305. Clarke v. 
 
 » Hamblen v. Hamblen, 33 Miss. Pratt, 55 Me. 546. U. S. v. Bank, &c., 
 
 455. Kellogg V. Buckler, 17 Geo. i Hemp. 460. State v. Parkman, 3 
 
 187. Bond V. Willett, 31 N. Y. 102. Head. 609. Sanderson v. Rogers, 3 
 
 S. C, 3 Keyes. Cook V. Wood, I Harr. Dev, 38. Ballard v. Whitelock,. 18 
 
 254. Berry v. GrieSth, i G. & J. 37. Gratt. 235. Chicago v, R. R. Co., 20 
 
 * Jarboe v. Colvin, 4 Bush. 70. 111. 286. 
 
 » Clark y. Withers, i Salk. 223. • Meetz v. Padgett, i S. C. 127. 
 
 Devoe v. Elliott, 2 Caines, 243, Cord Adams v, Kleckly, Id. 142. 
 
Chap. XI.] OF THE SALE. 316 
 
 must be performed in reference to all interests entrusted to 
 his care, and he will not be chargeable with official neglect 
 if he had not time enough to resell.' He can not sell on a 
 levy that has been set aside.' Where a sale is to be made, 
 it must be at public auction ; the policy o.f the law is that 
 the unfortunate debtor may realize as much as possible for 
 his property, and that as little of it as necessary shall be 
 sold. A sale at public auction creates competition, which 
 could not be had at private sale. A sale must be for cash, 
 unless the parties consent to a sale on credit,' and to the 
 highest bidder.* Whatever the owner himself can sell, may 
 be sold on execution against him, if there be no law to the 
 contrary.' An offer by one who refuses to pay his bid, 
 is no sale." Execution sales are exceptions to the general 
 rule requiring a visible and substantial change of possession 
 in order to perfect them as against the creditors of the 
 vendors ; and it does not affect the character of such 
 sales, that the creditor is himself the purchaser, or that 
 the sale is made by a person specially deputed to levy the 
 execution ; nor does it depend on anything after the sale 
 for its validity.' It may be made on any day of the week, 
 except Sunday ; that day is dies non juridicus. It may 
 be made on any holiday or election day ;' it must be made 
 before sunset ;' a defendant can not object if made, after 
 sunset at his request.'" Real estate and personal property 
 can not be sold together." Whether real or personal prop- 
 erty, each parcel should be put up and sold specifically 
 
 ' State V. Borden, 15 Ark. 611. Thompson, 2 How. 244. Williamson 
 
 ' Kellogg V. Buckler, 17 Geo. v. Berry, 8 Id. 544. 
 
 187. * Chapman v. Harwood, 8 Blackf. 
 
 ' Kilgore v. Pedan, i Strobh. 18. 82. Swartell v. Martin, 16 Iowa, 519. 
 
 Chase v. Moore, 20 N. H. 427. State ' Coombs v. Jordan, 3 Bland. Ch. 
 
 V. State Bank, in re, 15 Ark. 563. Al- 39. Carpenter's Case, 3 Id. 640. 
 
 dred v. Constable, 8 Jur. 956. Mun- • State v. Borden, 15 Ark. 611. 
 
 ford V. Armstrong, 4 Cow. 533. ' Gates v. Gaines, 10 Vt. 346. 
 
 Swope V. Ardery, 5 Ind. 213. Sauer " King v. Piatt, 37 N. Y. 155. 
 
 V. Steinheimer, 14 Wis. 70. Biglcy • Carnich v. Meyer, 14 Barb. 9. 
 
 V. Risher, 63 Penn. 52. Huscbmacher " Russell v. Stinson, 3 Hey. I. 
 
 T. Harris, 38 Id. 498. Griffin v. " Cresson v. Stout, 17 Johns. I16. 
 
316 ON EXECUTIONS. [Chap. XI, 
 
 and separately, or m such lots as will be best calculated to 
 realize the greatest amount for the property.' An officer 
 is bound to exercise reasonable care and judgment in 
 the management of his sales, so that the property levied 
 on may be sold to the best advantage to make the money,* 
 and he should sell as small an amouut of the property 
 as possible, just enough to satisfy the judgment, and then 
 stop the sale,' unless the parties consent that a sale may 
 be made in a different way. The officer should designate 
 the nature of the right which he has levied on and which 
 he offers for sale.* If he sell more property than will 
 satisfy the writ in his hands, he is a trespasser as to the 
 excess.' An error of judgment or a mistaken exercise ot 
 discretion, in the absence of fraud or unfairness, affords 
 no ground for equitable relief.' It is the duty of an officer 
 in the execution of final process, after a levy has been 
 made upon real or personal property, to take the necessary 
 steps to convert the property into current money, for the 
 purpose of satisfying the judgment. If the debtor refuses 
 or neglects to pay the same. All the preliminary steps 
 prior to the sale of the property should be performed in 
 strict accordance with the requirements of the statute, 
 the formalities of the law may be waived by either party, as 
 far they affect his personal interests ' — "Quilibet potest re- 
 nunciare juri pro se inducto." 
 
 ' McLean Co. Bank v. Flagg, 31 111. « Stead v. Gascoigne, 8 Taunt. 527. 
 
 290. Piel V. Brayer, 30 Ind. 332. Cook v. Palmer, 6 B. & C. 739. 
 
 Wright V. Yates, Id. 185. Tyler v. Mevey's Appeal, 4 Penn. 80. Van 
 
 Wilkinson, 27 Id. 450. Sheldon v. Duyne v. Van Duyne, i Green (N. J.) 
 
 Soper, 14 Johns. 352. White v. 93. State v. Morgan, 7 Ired. 397. 
 
 Watts, 18 Iowa, 74. Conway v. Nolte, Harrison v. Soles, 5 Penn. 393. Jones 
 
 II Mo. 74. Cunningham v. Cassidy, v. Lewis, 8 Ired. 70. 
 
 17 N. Y. 276. McLeod v. Price, 2 * Wickliffe v.Bascom, 7 B.Monr.68i. 
 
 Hawks, no. Den v. Twitty, 3 Id. Commonwealth v. Dickinson, 5 Id. 506. 
 
 44. Den V. Hodges, Id. 51. Cresson ' Aldred v. Constable, 6 Q. B. 370. 
 
 V. Stout, 17 Johns. 116. Mason v. Batchelor v. Vyse, 4 M. & S. 552. 
 
 White, II Barb. 173. Waring v. Woods v. Mo n ell, i Johns. Ch. 502. 
 
 Loomis, 4 Id. 484. • Van Duyne v. Van Duyne, i 
 
 ' Todd V. Hoagland, 36 N. J. L. Green (N. J.) 93. 
 
 352' ' Mullen v. Harding, 12 La. 271. 
 
Chap. XI.] OF THE SALE. 317 
 
 § 205. Of the bidding at execution sales. As al- 
 ready stated, all sales are to be at public auction and to 
 the highest bidder. The law requires this in order that the 
 unfortunate debtor may receive the benefit of the competition 
 at public sales in public places, and it is against public policy 
 and the requirements of justice for parties to combine and 
 defeat the object which the law is intended for — competition. 
 Agreements whereby parties for the purpose of preventing 
 competition at an auction, and of depressing the value of 
 the property below its market price, engage not to bid 
 against each other, operate as a fraud upon third parties.' 
 The law does not tolerate any influence likely to prevent 
 competition at judicial sales, and it accords to every debtor 
 the chances for a fair sale and full price.' But if the pur- 
 poses of the agreement be to enable each of the parties to 
 become a purchaser of the property offered for sale, not 
 •desiring the whole, or if the agreement be for any other 
 honest or reasonable purpose, it is not void.' An agreement 
 between creditors, for whose benefit an assignment in trust 
 of a chattel mortgage has been made, and the assignee, that 
 at the sale at auction, under the mortgage of the property 
 •covered thereby, the assignee shall bid the same in, and if 
 any of the creditors bid on any of the articles sold, the 
 
 Vilas V. Reynolds, 6 Wis. 214. Sowlc 508. Slingluff v. Eckell, 24 Penn. 
 f. Pollard, 14 La. 28y. Alexander v. 472. Piatt v. Oliver, i McClenn. 295. 
 Miller, 18 Tex. 893. Chambers v. Gulick v. Ward, 5 Halst. 87. Phip- 
 Hays, 6 B. Monr. 115. Richardson v. pen v. Stickney, 3 Met. 384. Martin 
 Ingilby, 13 Rich. Eq. 59. Casey v. v. Blight, 4 J. J. Marsh. 491. Gard- 
 •Gregory, 13 B. Monr. 509. New Or- ner v. Morse, 25 Me. 140. Jones ■!. 
 leans v. Bagley, 19 La. 158. Russell Caswell, 3 Johns. 29. Doolin v. Ward, 
 V. Stinson, 3 Hey. I. 6 Id. 194. Wilbur v. How, 8 Id. 
 ' Packard v. Bird, 40 Cal. 378. 444. Hawley v. Cramer, 4 Cow 717. 
 Edsall V. Hamburg Manuf. Co., i Brisbane v. Adams, 3 N. Y. 129. 
 Halst. Ch. 658. Troup v. Wood, 4 Fuller v. Abrahams, 6 Mo. 316. Ham- 
 Johns. Ch. 228. Carson v. Law, 2 ilton v. Hamilton, 2 Rich. Eq. 365. 
 Rich. Eq. 296. Grant v. Lloyd, 20 ' Cocks v. Izard, 7 Wall. 559. 
 Miss. 191. Martin v. Raulett, 5 Rich.. ' Phippen v. Stickney, 3 Mete. 384. 
 541. Hamburg Manuf. Co. v. Edsall, Young r. Snyder, 3 Grant Cas. 151. 
 I Halst. Ch. 249. Wooten v. Hinkle, Buckner v. Chambliss, 30 Geo 
 .20 Mo. 290. Dudley v. Little 2 Ohio, 653. 
 
318 ON EXECUTIONS. [Chap. XI. 
 
 assignee shall assume their bids and hold all the property so 
 purchased, and apply it to the payment of debts, is not 
 contrary to public policy as intending to prevent competi- 
 tion at a public sale." The employment of a puffer, or 
 underbidder, at a sale by auction of the property, is at law 
 a fraud upon bona fide bidders." A purchaser who uses 
 unfair means to prevent competition can not hold the 
 property.' It is no fraud for a purchaser to declare that he 
 intends to give the property to the debtor, or let him 
 redeem, when such is really his intention. To make a 
 purchase void, it must be proved that the property was 
 obtained at an undue value and by a false representation.' 
 
 § 206. The highest bidder at an execution^ sale acquires an 
 independent right to have the sale completed ; when the 
 bid is accepted the contract of sale is complete, and the 
 bidder becomes liable for the purchase money ;' and if an 
 officer refuses" to take a bid, the party can enforce a renewal 
 of the sale at the point of his bid ; " but the bid of an 
 infant, or an irresponsible person, or any other bid which 
 would embarrass the sale, may be refused.' But to render 
 a sale void on account of the property not being sold to 
 the highest bidder, it is necessary to show that an officer 
 acted fraudulently, and that the person offering to bid 
 higher was responsible.' Where a bid is made by letter 
 and the officer announces it, and there is no higher one, he 
 may accept and sell on it.' If a bidder reduces his bid to 
 
 ' Bradley v. Kingsley, 43 N. Y. 534. Brown v. Lynch, i Id. 147. Dick v. 
 
 ' Smith V. Clark, 12 Ves. 477. Lindsay, 2 Grant Cas. 431. Carson v. 
 
 Woodward v. Miller, 2 Coll. 279. Law, 2 Rich. Eq. 296. 
 
 Robinson V. Wall, 2 Ph. 372. Flint » Gray v. Case, 51 Mo. 463. Hand 
 
 V. Woodin, 9 Ha. 618. v. Grant, 13 Miss. 508. Williams v. 
 
 ' Newman v. Meek, i Freeman's Millington, i H. Bl. 8. Armstrong 
 
 Ch. 441. Johnstone v. LaMotte, 6 v. Vrooman, 11 Minn. 220. 
 
 Rich. Eq. 347. Plaster v. Burger, 5 • Duffy v. Rutherford, 20 Geo. 363. 
 
 Ind. 232. Hoffman v Strohecker, 7 ' Hobb.s v. Beavers, 2 Ind. 142. 
 
 Watts, 552. Carson v Law, 2 Rick. Merwin .r. Smith, i Green Ch. 182. 
 
 Eq. 296. Kinney v. Showdy, i Hill, 544. 
 
 * Dick V- Cooper, 24 Penn. 217. » Hobbs v. Beavers, 2 Ind. 142. 
 
 Benedict v. Oilman, 4 Paige, 58. » Dickerman v. Burgess, 20 111. 266. 
 
Chap. XI.] OF THE SALE. 319 
 
 writing before the completion of the sale, it is a waiver of 
 all his prior bids.' A bid is withdrawn by an adjournment 
 of the sale,' and may be until the property is actually struck 
 off, and if a bid is withdrawn before the property is struck 
 off to the bidder, it is no sale.' It may be transferred to 
 another,' and failure to pay the price bid deprives the party 
 of the benefit of his purchase.* In some states the English 
 practice of receiving bids, subject to the approval of the 
 court, is in use. Where this method prevails, the bids may 
 be opened at any time before the sale is completed, by the 
 court, if there be a more advantageous offer.' The appli- 
 cation to re-open the sale should state the amount of the 
 proposed bid. An advance of ten per cent, has been held 
 sufficient.' If by the acts of the officer in the conduct of 
 the sale, purchasers are put to unnecessary trouble, causing 
 a sale of the property at less than a reasonable price, it is 
 an abuse of power for which the officer is censurable." 
 
 § 207. Proceedings where there are two or more 
 writs in the officer's hands at the same time for exe- 
 CUTION. Where different creditors obtain judgments against 
 the same party, and they cause executions to issue which are 
 both delivered to the officer on the same day, and he executes 
 the writ which was delivered last, but afterwards, apprehend- 
 ing that he ought to have executed the writ first delivered, he 
 takes the same property on the first writ, the second one is 
 void, for, while he should have executed the writ first deliv- 
 ered, the party who purchased the property under the second 
 execution is entitled to and must keep the property. So 
 where writs are delivered on alternate days, and the writ 
 last delivered is executed, and a sale made under it, the 
 purchaser will hold the property against the creditor whose 
 writ first issued, such creditor being remitted to his remedy 
 
 ' Faunce v. Sedgwick, 8 Penn. 407. Hay's Appeal, 51 Penn. 5(5. Wright 
 
 • Donaldson v. Kerr, 6 Penn. 486. v. Cautzon, 31 Miss. 514. 
 
 • Fisher v. Seltzer, ,23 Penn. 308. ' Horton y. Horton, 2 Brad. 200. 
 
 * Carter v. Spencer, 7 Ired. 14. Wright v. Cautzon, 31 Miss. 514. 
 State V. Lawton, 14 Ark. 114. ' McDonald v. Neilson, 2 Cow. 139. 
 
 * Childress v. Hurst, 2 Swan, 487. Ex parte Board, 4 Id. 420. 
 
320 ON EXECUTIONS. |Chap. XI. 
 
 against the officer, a remedy to which he is not entitled if 
 the non-execution of his writ has proceeded from his own 
 negligence," on the ground that, for the peace and pro- 
 tection of purchasers under sales on executions, if other- 
 wise, it would be dangerous to purchase at such sales 
 which might make writs of execution of no effect, 
 and if the property, is only liable on one writ, or one 
 only is valid, and is sold on several, it passes the title, 
 but not in other states ;* or if there are several executions 
 against the same party, the prior writ, in the absence of 
 fraud, passes the title ;' or if there is a valid levy upon one 
 writ, if advertised upon all, a sale may be made upon all,' 
 but not if he advertises on one only. Where there are two 
 writs for the debt of the testator and the debt of the 
 executor, a sale under the latter writ is void until the 
 former is satisfied.' Where an officer has several writs in 
 bis hands which govern him as to the terms upon which 
 the property taken is to be sold, and he can not comply with 
 the requirements of each writ at one sale, he may, if the 
 property is divisible, sell enough of it under each writ to 
 satisfy it ; he must commence with the writ first delivered 
 to him, and sell enough under the law of the contract to 
 satisfy that writ, and then proceed to sell under the other 
 writs in the same manner, until each writ is satisfied or the 
 property is exhausted. In cases where the property is not 
 susceptible of division, this can not be done ; and in £ases of 
 
 ' Payne v. Drewe, 4 East. 523. Brown v. McKay, 16 Ind. 484. 
 
 Van Duyne v. Van Duyne, I Green Hutchins v. Doe, 3 Id. 528. Clark v. 
 
 (N. J.), 193. Watson, 2 Id. 400. Harrison v. Sipp, 
 
 ' Smalcomb v. Buckingham, Carth. 8 Blackf. 455. 
 
 +19. ' McFee v. Harris, 25 Penn. 102. 
 
 ' Hand v. Grant, 13 Miss. 514. Buck v. Fox, 23 Barb. 259. 
 
 Brace V. Shaw, 16 B. Monr. 43. • Southard v. Pope, 9 B. Monr. 
 
 Richards y. Allen, 3 E. D. Smith, 263. Lock v. Coleman, 4 Mon. 317. 
 
 399. Herrick v. Graves, i5 Wis. Marsh v. Lawrence, 4 Cow. 461. 
 
 157. Bailey v. Morgan, Busb. Law, Mascraft v. Van Antwerp, 3 Id. 
 
 352. 334- 
 
 « Dudley v. Cole, i D. & B. Ch. ' Jones v. McNeU, i HUl (S. C), 
 
 429. Banks v. Evans, 18 Miss. 35, 84. 
 
Chap. XI.] OF THE SALE. 321 
 
 this character he must sell upon the first execution, or for 
 the payment of the debt which is entitled to be first satis- 
 fied, and if under such prior writ the whole of the property 
 seized by him is exhausted, in the satisfaction of such execu- 
 tion, there is nothing more to be sold.' 
 
 § 208. Who may purchase at an execution sale. 
 There is no objection to either party to the action purchasing 
 at a sale made under final process. An execution-creditor 
 may purchase ;° and if he is the only party interested in the 
 proceeds of the sale, may have his bid applied to the satis- 
 faction of his judgment. So one of two defendants on a sale 
 ■on a joint execution.' Tenants in common, or partners,* or a 
 stockholder, may purchase corporate property for his own 
 benefit.* 
 
 § 209. Who may not purchase at an execution 
 SALE. A person can not act as agent for another and him- 
 self be the buyer. He can not be both buyer and seller at 
 the same time, — " Emptor emit quam mininto potest ; vendi- 
 tor vendit, quam maxiino potest^ This rule is founded on 
 the danger of imposition, and the presumption of the ex- 
 istence of fraud inaccessible to the eye of the court. "-The 
 policy of the rule is to shut the door against temptation. 
 An officer selling can not purchase ; neither can any 
 person concerned or employed in the sale of the property. 
 This rule of law embraces every relation in which there 
 may arise a conflict of duty which the vendor or vendee 
 owes to the person with whom he is dealing, or on whose 
 account he is acting, and his own individual interest. 
 " This general rule rests upon our great moral obligation 
 to refrain from placing ourselves in relations which ordi- 
 narily excite a conflict between self-interest and integrity. 
 It restrains all agents, public and private ; it, therefore, 
 
 ' Harrison v. Sipp, 8 Blackf. 455. ' Kilgo v. Castlebery, 38 Geo. 512. 
 
 Bronson v. Kinzie, l How. 311. Gibson v. Winslow, 38 Penn. 49. 
 
 » Stratford v. Twynam, Jacob. 418. * Gunter v. Laffan, 7 Cal. 588. 
 
 Robinson v. Clarke, 7 Jones (N. C), ' Robinson v. Parker, 11 Miss. 114. 
 
 562. Nichols V. Ketchum, 19 Johns. Mickles v. Rochester Bank, it Paige, 
 
 84 • 118. 
 
 21 
 
322 ON EXECUTIONS. [Chap. XI. 
 
 prohibits a party from purchasing on his own account that 
 which his duty requires him to sell to another. He is not 
 allowed to unite the two antagonistic characters of buyer 
 and seller, for the reason that his interests, when he is 
 buying or selling on his own account, are in direct conflict 
 with thpse of the person for whose account he buys or 
 sells " ; ' therefore the law wisely prohibits an officer, in 
 the execution of final process, froni becoming a purchaser 
 either directly or indirectly. It is in many, if not in all,^ 
 states expressly prohibited by statute, and a sale made 
 by an officer to himself or deputy is absolutely void; as 
 against the policy of the law.' By some courts, it is held 
 that such sales are voidable -only.' If there is no fraud, 
 the owner may disaffirm by refunding the money.* This 
 rule has been held inapplicable to an officer who is not a 
 deputy ;" or when the sale is made by some other than the 
 one purchasing, in a case where a deputy was compelled to- 
 buy in order to save his own debt.' 
 
 ' Michoud V. Girod, 4 How. 555. 333. Prevost v. Gratz, 6 Wheat. 481. 
 
 ' Smith V. Pope, 5 B. Monr. 337. Kruse v. Stephens, 47 111. 114. Milei 
 Stapp'v. Toler, 3. Bibb. 450. Carter v. Wheeler, 43 Id. 123. Robbins v.. 
 V. Harris, 4 Rand. Igg. Perkins y. Butler, 24 Id. 387. Dennis v. Mc- 
 Thompson, 3 N. H. 144. White v. Cagg, 32 Id. 429. Pensonneau v. 
 Trotter, 22 Miss. 30. Lewis v. Brown, Blakely, 14 Id. 15. McConnell v. 
 4 Strobh. 293. Matheny v. Mc- Gibson T2 Id. 128. Thorp v. Mc- 
 Donald, 5 Id. 77. Harrison v. Mc- Cullum, 6 Id. 627. Remick v. Butter 
 Henry, 9 Geo. 164. Cook v. Williams, field, 31 N. H. 70. Rice v. Cleghorn, 
 20 Penn. 342. Stewart v. Rutherford, 20 Ind. 80. Harris v. Parker, 41 Ala. 
 4 Jones L. 483. Wickliff v. Robinson, 604. Haddix v. Haddix, 5 Litt. 202. 
 18 111. 145. Robinson v. Clarke, 7 McLeod v. McCall, 3 Jones L. 87. 
 Jones L. 562. Riner v. Stacy, 8 Wilson v. Troup, 2 Cow. 196. Davoue 
 Humph. 288. Chambers v. Thomas, v. Fanning, 2 Johns. Ch. 252. Lessee 
 
 3 A. K. Marsh. 536. May v. Waters, v. Lazarus, 3 Binn. 54. 
 
 I McCord, 470. Moorland v. Kim- ' Creagh v. Savage, 9 Ala. 959. 
 
 berlin, 6 B. Monr. 608. Pierce v. Isaacs v. Clarke, 2 Gill. I. Moorland 
 
 Benjamin, 14 Pick. 359. Mills v. v. Kimberlin, 6 B. Monr. 608. 
 
 Goodsell, i Conn. 475. Woodbury v. * Jackson v. McGinness, 14 Penn. 
 
 Parker, 19 Vt. 353. Michoud v. Girod, 331. 
 
 4 How. 555. Wormsley v. Wormsley, ' Jackson v. Anderson, 4 Wend 
 Wheat. 421. Ringo v. Binns, 10 474. 
 
 Pet. 269. Oliver v. Piatt, 3 How. « Jackson v. Collins, 3 Cow. 39. 
 
Chap. XI.] OF THE SALE. 323 
 
 § 2IO. Of the proceeding in case of a sacrifice 
 
 OF THE PROPERTY AT, A SALE, AND OF THE POSTPONE- 
 MENT OF SALES. Where an officer, on exposing property 
 for sale on execution, finds that it will be sacrificed, it is 
 his duty to return that it was not sold for want of bidders, 
 and await the issue of venditioni exponas, the execution 
 h^.w\r\^\ie.zom& functus officio by the return to the court from 
 whence it issued.' By statutory enactment in many states, in 
 cases where a sale would be attended with a sacrifice of the 
 property offered, or by reason of a lack of bidders, the officer 
 is vested with the power of postponing or adjourning a sale 
 advertised to take place on a day certain. Where the 
 statute gives this right to the officer conducting the sale, he 
 may postpone a sale of property on execution for such 
 length of time as he may deem proper. But he can not, for 
 his own gain, bind himself not to sell for such a period of 
 time as will prevent him from obeying the command of his 
 process. He is bound, without compensation, to give every 
 indulgence consistent with obedience to his process ;' he 
 must not adjourn the sale beyond, the return day of the 
 writ, and he is bound to exercise this power with regard to 
 the best interests of all the parties interested.' It may be 
 postponed,' if advertised to take place on election day.' It 
 need not' be advertised; notice given at the time it is post- 
 poned is sufficient.' But where the officer re-advertises the 
 sale, but fails to give the necessary advertisement for the 
 
 ' Reynolds v. Nye, I Free. Ch. 462. Leland, 9 Mass. 265. Phelps v. Con- 
 
 U. S. V. Drennen, I Hemp. 320. over, 25 111. 309. Kelly v. Green, 63 
 
 Keightley v. Birch, 3 Camp. 521. Penn. 299. Lantz v. Worthington, 4 
 
 Young V. Smith, 23 Tex. 598. Mc- Penn. 153. Collier v. "Whipple, 13 
 
 Donald v. Neilson, 2 Cow. 139. Wend 229. Tinkum v. Purdy, 5 
 
 ' Perkins v. Proud, 62 Barb. Johns. 345. Swartzell v. Martin, 16 
 
 420. Iowa, 519. Payne V. Bellingham, 10 
 
 * Todd V. Hoagland, 36 N. J. L. Id. 360. Brown v. Redwine, it Geo. 
 
 352. Thornton v. Boyden, 31 111. 67. Richards v. Holmes, . 18 How. 
 
 200. Wade V. Saunders, 70 N. C. 147. Blossom v. R. R. Co., 3 Wall. 
 
 270. Jewett V. Guyer, 38 Vt. 209. 209. 
 
 Hall V. Ray, 40 Vt. 576. Russell v. * Pope v. Bradley, 3 Hawks. 16. 
 
 Richards, 11 Me. 371. Warren v. ' Allen v. Cole, i Stockt. 268. 
 
324 ON EXECUTIONS. [Chap. XI. 
 
 full length of time required by law, the sale will be illegal, 
 and a purchaser with notice acquires no title.' If adjourned 
 to a place where a sale can be legally held, and the officer 
 acts openly, publicly, and in good faith, and in the exercise 
 of a sound and reasonable discretion, the sale is valid on 
 such adjourned day." Without special statutory authority 
 a sale can not be postponed,' If made at the request of the 
 debtor he can not object to it.' No one but the officer can 
 adjourn the sale ; the law vests the discretionary power in 
 him only.* In Missouri, where a sale of land is rendered 
 impossible without the fault of the officer making the levy, 
 the execution and lien created by it are continued from 
 term to term until the land is sold. No vendi is necessary, 
 and when sold the purchaser's title is good.' But where 
 there are no statutory regulations of the kind to control an 
 officer at a sale, the general practice is for the officer to sell 
 for whatever can be realized ; and if no sale is made, then the 
 return is made. In making sales of real estate under the 
 provisions of the statutes providing for the appraisement of 
 property prior to sale, where they specify the amount or 
 proportion of the appraised value, for less than which the 
 property can not be sold, it is a matter of constant prac- 
 tice for the officer to return an execution " not sold, for 
 want of bidders," and after other attempts to sell with a 
 like result, a new appraisement may be ordered, in order to 
 make the writ effective. 
 
 §211. When an officer may re-sell the same 
 PROPERTY. It is a matter of special importance in the pro- 
 ceedings under an execution and the sale of the debtor's 
 property, that the'terms of the sale be promptly complied 
 with, and that the purchaser pays the money for the prop- 
 
 • Enloe V. Miles, 20 Miss. 147. 
 Cash V. Tozier, i W. & S. 519. 
 
 '■ Wilton, &c. Co. V. Butler, 34 Me. 
 431. Payne v. Billingham, 10 Iowa, 
 360. 
 
 ' Wolf V. Van Metre, 27 Iowa, 348 
 
 * Wood V. Messerly, 46 Mo. 255. 
 
 ' Enloe V. Miles, 20 Miss. 
 
 147- 
 
 Thornton v. Boyden, 31 111. 
 
 200. 
 
 Montgomery v. Barrow, 19 
 
 La. 
 
 169. 
 
 
 'Jewett V. Guyer, 38 Vt. 
 
 209. 
 
 Wade V. .Saunders, 70 N. 
 
 C. 
 
 870. 
 
 
Chap. XI.] OF THE SALE. 325 
 
 erty bid in by him. In case of a refusal by the purchaser to 
 comply with his bid, the officer may bring an action for 
 the purchase-money, for the amount bid upon a tender of 
 a deed or certificate of sale, The relation of debtor and 
 creditor exists between the officer and purchaser by force of 
 contract of sale, and he is left to enforce his rights by the 
 . usual remedy, unless he elects to rescind the contract of 
 sale, and sell the property again.' The officer may re-sell 
 the property." In the case of personal property, the officer 
 should sell to the highest bidder who will pay; if the 
 highest bidder does not pay, he may re-sell or take the next 
 highest bid,' but after an unconditional delivery of the 
 property, the sale is complete, and he can not re-sell.* But 
 in the case of a sale of real estate, if a purchaser refuses to 
 comply with his bid, it is not proper, in the first instance, 
 to order a re-sale of the land, and that the delinquent 
 bidder pay the difference between the former and the later 
 sales. The proper course is to report the facts to the court, 
 and for the bidder to be put under a rule to show cause 
 why he should not comply with his bid,* and after an order 
 made upon him by the court to pay the money, execution 
 should issue against him for the amount, to be made out of 
 his property ;' and in such a case there is no equitable lien 
 in favor of the plaintiff, in the execution for the purchase- 
 
 ' McKee v. Lineberger, 69 N. C. ley, 291. Wright's Appeal, 25 Penn. 
 
 217. WoodhuU V. Neafie, i Green Ch. 373. Hand v. Grant, 13 Miss. 508 
 
 409. Williams v. Millington, I Blackf. Sweezy v. Hawthorne, 6 Nev. 129. 
 
 81. Elfe V. Gadsden, l Strabh. Armstrong v. Vrooman, ii Minn. 220. 
 
 225. Conway v. Noke, II Mo. 74. 
 
 ' Isler V. Andrews, 66 N. C. 552. ' Downing v. Brown, Hard. 181. 
 
 New Orleans v.Pellerin, 12 La. 92. Cummings v. McGill, 2 Murph. 
 
 Illingsworth v. Miltenberger, II Mo. 3S7. 
 
 81. Winslow V. Loring, 7 Mass. 392. * Cochran v. Roundtree, 3 Strobh. 
 
 Haynes v. Breaux, 16 La. 142. Sauer 317. 
 
 V. Steinbauer, 14 Wis. 7. Gaskill v. ' Harding v. Yarborough, 6 Jones 
 
 Morris, 7 W. & S. 32. Bigley v. Eq. 215. In re Yates, Id. 306. Hill 
 
 Risher, 63 Penn. 152. Russell v. v. Hill, 58 111. 239. 
 
 Gibbs, 5 Cow. 390. Scott v. Wilson, • Atkinson v. Richardson, 18 Wis. 
 
 I McC. 194. Minter v. Dent, 2 Bai- 244. 
 
326 ON EXECUTIONS. [Chap. XI 
 
 money.' If the officer re-sell the property, and the result 
 of a re-sale is that a less amount is realized for the property 
 than was bid for it at the first sale, the officer may recover 
 the difference or loss from such bidder at the first sale.' He. 
 must make a return of a sale on the execution before bring- 
 ing his action.' Ke is not bound to give the first purchaser 
 notice of the time and place of the re-sale; it is sufficient if 
 he notify him that he will re-sell unless he pays,* but he can 
 not recover the difference between the amounts unless he 
 states that it is a re-sale, and must show that the directions 
 of the law in regard to re-sales have been complied with." 
 Where a purchaser transfers his bid to another by the con- 
 sent of the officer, and he returns the sale as made to the 
 latter, who refuses to take the property, such latter pur- 
 chaser is not liable in case of a re-sale ;' or where the re-sale 
 takes place on a new execution, the bidder at the first sale 
 need not pay the difference,' unless the same property was 
 re-sold as the property of the identical parties as whose 
 property it has been bid off by him.' But a subsequent 
 levy on property of another defendant which is of sufficient 
 value to satisfy the judgment, does not excuse the pur- 
 chaser at a sale from paying the creditor, though the debtor 
 consents to the rescinding of the sale.' If in the re-sale 
 there is enough realized to pay off the judgment and costs, 
 the debtor will be entitled to maintain a suit in equity for 
 the difference in the bids.'" A condition that a certain 
 amount shall be paid down or else the property be re-sold, 
 
 ' Day V. Vallette, 25 Ind. 42. " McKee v. Linberger, 69 N. C. 
 
 " Fulton V. Davidson, 3 Heisk. 217. 
 614. Minter v. Dent, 2 Bailey, 291. * Gaskell v. Morris, 7 W. & S. 32. 
 
 Spang V. Schneider, 10 Penn. 193. ' Tongue v. Catlicart, 2 Strobh. 
 
 Stephens v. McGruder, 31 Md. 168. 221. Tongue v. Aikin, 4 Rich. 15. 
 
 MuUin V. MuUin, i Bland, 541. Tongue v. Cathcart, 3 Strobh. 304. 
 Graham v. Bleakie, 2 Daly, 55. ' Winner v. Obear, 23 Mo. 242. 
 
 Armstrong v. Vrooman. 11 Minn. ' Grier v. Youtz, 5 Jones L. 371. 
 
 220. Williams v. Millington, I H. ' Hendricks v. Davis, 27 Geo. 567 
 
 Black, 81. Hand v. Grant, 13 Miss. ' Jones v. Grant, 34 Miss. 592. 
 
 508. Lambkin v. Crawford, 8 Ala. "I Strawbridge v. Clark, 52 Mo. 
 
 153- 21. 
 
Chap. XI.] OF THE SALE. 337 
 
 ■does not relieve a delinquent purchaser for the difference.' 
 A re-sale to a purchaser with notice, without an advertise- 
 tnent, is void." A re-sale on a venditioni exponas is gov 
 «rned by the same rules as one under an execution.' The 
 duties of an officer in the sale of property are merely 
 ministerial ; he has no power to set aside a sale, and within 
 a few minutes offer the same property then sold.* Where 
 the same property is sold a second time, the creditor caus- 
 ing it to be sold has a right to show, if he can, that the 
 "first sale was a fraudulent one." The neglect of the officer 
 to bind a bidder at his sale by re-selling within the time 
 prescribed by law, is not a matter which a creditor can com- 
 plain of whose judgment is afterwards recovered.' 
 
 § 212. Sales after the return day of the execu- 
 tion. Where an execution .has been levied on personal 
 property, it may be sold after the return, day without 
 further process.' In case of a levy on land, a sale can not 
 be made after the return day without a vendi, or it is void.' 
 The rule is by no means uniform, some courts holding, 
 
 ' Forster v. Hayman, 26 Peiin. Severance, 43 Mo. 322. Barney v. 
 
 .266. Patterson, 6 H. & J. 204. Stein v, 
 
 ' Givan v. Doe, 5 Blackf. 260. Chambliss, 18 Iowa, 474. Wood v. 
 
 * Lockridge v. Baldwin, 20 Tex. Colvin, 5 Hill, 231. Childs v. Mc- 
 303. Chesney, 20 Iowa, 341. Butterfield v. 
 
 * Paquin v. Bradley, 10 Minn. 379. Walsh, 21 Id. 97. Thorington v. Al- 
 " McMichael v. McDermott, 17 len. Id. 291. Mooney v. Mass. 22 Id. 
 
 Penn. 353. 380. Mordecai v. Speight, 3 Dev. 428. 
 
 ' State V. Tongue, 6 Rich. 323. Wright v. Howell, 35 Iowa, 289. 
 
 ' Overton v. Perkins, 10 Yerg. 329. ' Overton v. Perkins, 10 Yerg. 329. 
 
 •Gibbs v. Mitchell, 2 Bay. 120. Irwin Sims v. Randall, 2 Bay. 524. Doe v. 
 
 v. Pickett, 3 Bibb. 343. Bryant v. McKinne, 4 Hawks, 279. Cash v. 
 
 Dana, 8 111. 343. Bellingall v. Dun- Tozer, I W. & S. 519. Sims v. Ran- 
 
 ■can, Id. 477. Lanier v. Stone, i dall, i Brev. 226. Lackey v. Lauke, 
 
 Hawks, 329. Lester's Case, 4 36 Mo. 115. Bank of Mo. v. Bray, 37 
 
 Humph. 383. Le^vitt v. Smith, 7 Mo. 194. State v. Borden, 15 Ark. 
 
 Ala. 175. Nichols V. McCall, 13 La. 611. Jacob v. Humphrey, 4 Tyr. 272. 
 
 215. Brown v. Allen, 3 Head. 429. Carlisle v. Perkins, 3 Stark. 163. 
 
 Savings Inst. v. Chinn, 7 Bush. 539. Rogers v. Carwood, I Swan, 142. 
 
 Phillips v. Dana, 4 111. 551. Wheaton Kane v. Preston, 24 Miss. 133. Smith 
 
 -V. Sexton, 4 Wlieat. 503. Remington v. Munday, 18 Ala. 182. Petit v. 
 
 Linthicum, 14 Pet. 84. Stewart v. Johnson, 15 Ark. 55. 
 
328 ON EXECUTIONS. [Chap. Xf„ 
 
 that as the officer derives his authority to sell from the 
 judgment and the writ, when that is returned, the power to 
 sell is revoked, and a sale made after the return day is void» 
 Others that, after a levy, it is his duty to sell and bring the 
 money into court, no matter what becomes of the writ.. 
 In the case of real property, the judgment protects it. 
 With -personal property, the levy holds it, and after seizure 
 the sale should be made, unless the debt is paid, or the writ 
 ordered returned by the plaintiff. The writ must be exe- 
 cuted and the proceedings completed, if they are com- 
 menced by levy, and, therefore, may be completed after the 
 return day ; it is an entire thing.' Or a sale of land may be 
 made after the return day ; by consent of the defendant" it 
 may be made on the return day.' 
 
 § 213. The rule in regard to sales after the. 
 death of either of the parties ; death of plaintiff: 
 defendant. At common law no execution could legally 
 issue after the death of either of the parties, unless the 
 judgment was revived in favor of the representatives of the 
 deceased party. But if a judgment is rendered, and an 
 execution issue upon it, under which proceedings have 
 been commenced, and either party dies before the comple-^ 
 tion of the proceedings, the death of such party does not; 
 abate the writ, nor make the proceedings either void or 
 voidable, for the reason, that after the commencement of 
 proceedings the officer has nothing to do with either party ;. 
 he is commanded by his writ out of the property to make 
 the money. After seizure the death of either party in no. 
 way hinders ; and an execution, being an entire thing, cam 
 not be superseded after it has begun. It does not, there- 
 fore, necessitate the revival of the judgment ; the officer 
 may proceed as though the parties were living.* A writ of 
 
 ' Pettingill v. Moss, 3 Minn. 222. Aycock v. Harrison, 65 N. C. 8. 
 
 Ewing V. Hatfield, 17 Ind. 513. Becker v. Becker, 47 Barb. 497.^ 
 
 ' Picard v. Peters, 3 Ala. 493. Wood v. Morehouse, 45 N. Y. 368. 
 
 ' Taylor v. Gaskins, 1 Dev. 295. S. C, I Lans. 405. Doe v. Hayes, 4 
 
 * Neil V. Gantt, i Cold. 396. Ind. 117. Wolf v. Heath, 7 BlackC 
 
 Gregory v. Shadwell, 3 Id. 390. 154. Davis v. Oswalt, 18 Ark. 414.. 
 
Chap. XI.] OF THE SALE. 329 
 
 vendi can not issue after a levy on real estate without 
 revival.' In Kentucky the defendant's death abates the 
 execution, but does not dissolve its lien, which may be 
 enforced in equity.' If either party dies before the delivery 
 of the writ to the oiificer, a revival is necessary,' or the pro- 
 ceedings are absolutely void. But where the judgment is 
 in rem, and it simply orders a sale of the attached property, 
 it may be made without revival.* Where real and personal 
 property can be sold on execution, and the whole title to 
 each passes by sale, and an execution issues against two, 
 and one dies after its issue, the land of the survivor may be 
 sold. An execution may be issued against the survivor 
 after the death of his co-defendant, but can only be served 
 upon, or executed against, the property of the survivor, just 
 as an execution could be issued at common law against the 
 personalty.' But where otherwise provided by statute, 
 the judgment should be revived against the deceased 
 defendant." 
 §214. Rule of caveat emptor applies to all exe- 
 
 Dodge V. Mack, 22 111. 73. Wheaton v. McNamara, 5 Iowa, 125. State 
 
 y. Sexton, 4 Wheat. 503. Taylor v. Bank v. Etter, 15 Ark. 268. Davis v. 
 
 Miller, 13 How. 287. Bleeker v. Young, 2 Mon. 60. Abercrombie v, 
 
 Bond, 4 Wash. 6. Summer v. Moore, Hall, 6 Ala. 657. Hildreth v. Thomp. 
 
 2 McLean, 59. Gamble v. Woods. 53 son, 16 Mass. 191. Sty mats v. Brooks, 
 
 Penn. 158. Speer v. Semple, 4 Watts. 10 Wend. 237. State v. Pool, 6 Ired. 
 
 367. Butler V. Haynes, 3 N. H. 21. 288. State v. Michaels, 8 Blackf. 
 
 Harrington v. Reilly, 16 Miss. 216. 436. Weber v. Kenny, I A. K. Marsh. 
 
 Drake v. Collins, 5 Id. 253. Smith v. 345. Gwin v. Latmer, 4 Yerg. 22. 
 
 Montgomery, 3 Id. 601. / Butterfield Erwin v. Dundas, 4 How. 58. 
 
 V. Walsh, 21 Iowa, 97. Spratt v. * James v. Marcus, 18 Ark. 421. 
 
 Reed, 3 Greene (Iowa) 489. ' Hardin v. McCanse, 53 Mo. 255. 
 
 ' Wood V. Colweil, 34 Penn. 92. Bowdoin v. Jordan, 9 Mass. 154. 
 
 ' Holeman v. Holeman, 2 Bush. Johnston v. Lynch, 3 Bibb. 334. 
 
 514. Burge V. Brown, 5 Id. 535. Shelton v. Hamilton, 23 Miss. 496. 
 
 • People V. Bradley, 17 111. 485. Hodge v. Mitchell, 27 Id. 560. Wade 
 
 Brown v. Parker, 15 Id. 317. Honnor v. Watt, 41 Id. 248. Coleman v. Mc- 
 
 •r. Hawks, 22 Ark. 572. Gregory v. Anulty, 16 Mo. 173. Warden v, 
 
 Shadwell, 3 Cold. 390. Neil v. Gantt, Taintor, 4 Watts, 278. Day v. Sharp, 
 
 I Id. 396. Turner v. Young, 22 111. 4 Whart. 339. Douglass v. Massie, 
 
 253. Cartney v. Reed, 5 Ohio, 221. 16 Ohio, 271. 
 
 Massie v. Long, 2 Id. 287. Lepage • Erwin v. Dundas, 4 How. 59. 
 
330 
 
 ON EXECUTIONS. 
 
 [Chap. XI. 
 
 CUTION SALES. In the sale of real or personal property by an 
 officer .under an execution, there is neither an express nor 
 implied warranty of title or soundness ; no ministerial 
 officer has any power to make any terms different from 
 those presented by law ; a purchaser takes just such title as 
 the debtor has ; the officer sells the debtor's property in the 
 thing, whatever that may be.' The rule that there is no im- 
 plied warranty in a sheriff's sale applies only to the quality 
 
 ' Bassett v. Lockett, 60 111. 164. 
 Coyne v. Souther, 61 Penn. 457. 
 Griffith V. Fowler, 18 Vt. 390. Poples- 
 toii V. Skinner, 4 D. & B. 160. Mc- 
 Gee V. Ellis, 4 Litt. 244. Austin v. 
 Tilden, 14 Vt. 325. Boggs v. Ha'r- 
 grave, 16 Cal. 559. Johns v. Trick, 
 22 Id. 511. Harvey v. Fisk, g Id. 93. 
 Webster v. Harworth, 8 Id. 21. 
 Williams v. Smith, 6 Id. 91. Freeman 
 V. Caldwell, 10 Watts, 9. England v. 
 Clark, 6 111. 486. Bostwick v. Winton, 
 I Sneed. 524. Bolgiano v. Cooke, 19 
 Md. 370. Walbridge v. Day, 31 111. 
 379. Parker v. Partlow, 12 Rich. L. 
 679. Brown v. Wallace, 2 Bland. 
 585. Slowthower v. Gordon, 23 Md. 
 I. Storm V. Smith, . 43 Miss. 497. 
 Mellen v. Boarman, 21 Id. 100. Weed 
 V. Edmonds, 4 Ind. 168. Rogers v. 
 Smith, 2 Id. 526. Dunn v. Frazier, 
 8 Blackf. 432. Smith v. Allen, I Id. 
 22. Shirk V. Wilson, 13 Ind. 129. 
 Mason v. Wait, Id. 129. Bing- 
 ham V. Maxey, 15 Id. 295. Wal- 
 den V. Gridley, 36 Id. 523. Reed's 
 Appeal, 13 Penn. 476. Lewis v. 
 Smith, 2 S. & R. 157. Fox v. 
 Mensch, 3 W. & S. 444. Vande- 
 ver V. Baker, 13 Penn. 124. 
 Buckley v. Biddle, 33 Id. 276. 
 Owsley V. Smith, 14 Md. 153. Ander- 
 son V. Foulk, 2 H. & G. 346. Boyd 
 V. Longworth, 11 Ohio, 235. Creps 
 ». Baird, 3 Ohio S. 277. Corwin v. 
 
 Benham, 2 Id. 361. Phillips v. John- 
 son, 14 B. Mon. 172. McLain v. 
 Upchurch, 2 Murph. 353.. Worth- 
 ington V. McRoberts, 9 Ala. 297. 
 Harth v. Gibbs, 3 Rich. 316. Avant 
 V. Reed, 2 Stew. 488. Wheatley 
 V. Tutt, 4 Kans. 195. The Monte 
 Allegro, 9 Wheat. 616. Rockwell 
 V. Allen, 3 McLean, 357. Ham- 
 smith V. Epsey, 19 Iowa, 444. Cam- 
 den V. Logan, 8 Id. 434. ^ Ritter 
 V. Henshaw 7 Id. 97. Frazier v. 
 Steenrod, Id. 340. Dean v. Morris, 
 4 Greene (Iowa) 312. Miller v. Finn, 
 I Neb. 255. Sanders v. Pate, 4 
 Rand, 8. Whitmore v. Parks, 3 
 Humph. 95. Strouse v. Drennan, 41 
 Mo. 289. Hensley v. Baker, 10 Id. 
 157. Goodwin v. Floyd, 10 Yerg, 
 520. Danley V. Rector, 10 Ark. 211. 
 Wood V. Lewis, 14 Penn. 9. Kim- 
 brough V. Benton, 3 Humph, no. 
 Jones V. Burr, 5 Strobh. 147. Mc- 
 Whorter v. Beavers, 8 Geo. 300. 
 Mervine y. Vanlier, 3 Halst. Ch. 34. 
 Stafford v. Williams, 12 Barb. 240. 
 O'Neil V. Wilson, 21 Ala. 288. Lang 
 V. Waring, 25 Id. 625. Farmers', &c. 
 Bank v. Martin, 7 Md. 342. Hutch- 
 man's Appeal, 27 Penn. 20Q. Aran- 
 dale V. Morgan, 5 Sneed, 703. Wingo 
 V. Brown, 14 Rich. L. 103. Oberthier 
 V. Stroud, 33 Tex. 522. Thompsoa 
 V. Munger, 15 Id. 523. Lynch v. 
 Baxter, 4 Id. 431. 
 
Chap. XI.] OF THE SALE. 331 
 
 and property of the thing sold ; and there is in every case 
 an implied covenant, that he has authority to sell, especially 
 where such authority is recited in his deed to the purchaser.' 
 In case of a failure of, the creditor is not bound to refund 
 the purchase money, and the purchaser has no remedy 
 against him," except in case the property had been previ- 
 ously sold.' Where the execution-creditor is the purchaser, 
 he stands on the same footing as a stranger.* But an in- 
 nocent purchaser, where he gets nothing by the sale, may in 
 equity have redress against the execution-debtorwhose debt 
 he has paid." Where a stranger's property is sold, and he 
 recovers it from the purchaser, the purchaser may recover 
 the money from the plaintiff, and the plaintiff may have the 
 return and levy quashed.' 
 
 § 215. Sale under a writ of venditioni exponas. 
 A vendi confers no power or authority on an officer which he 
 did not possess under the execution ; it only commands him 
 to do what he could have done under the execution; the 
 execution is the effective writ, and the officer may sell under 
 it without a vendi. The return to the vendi relates to and 
 in legal effect becomes part of the return on the execution.' 
 It is an order directing the officer to sell property already 
 levied on. Where a sale is not made on the first execution, 
 a writ ol venditioni exponas may be sued out, and it may be 
 issued in all cases where the property remains unsold,' or 
 
 ' Stonfey v. Shultz, I Hill Ch. 465. 26 Ind. 220. Hawkins v. Miller, Id. 
 
 ' Whitraore v. Parks, 3 Humph. 95. 173. 
 
 McGhee v. Ellis, 4 Litt. 244. England ♦ Sanders v. Hamilton, 3 Dana, 550. 
 
 V. Clarke, 5 111. 486. U. S. v. Dun- Richardson v. McDougal, 19 Wend, 
 
 can, 4 McLean, 607. Dunn v. Frazier, 80. Maguire v. Marks, 28 Mo. 193. 
 
 8 Blackf. 432. ' Keith T. Wilson, 3 Mete. (Ky.) 
 
 " Ritter v. Henshaw, 7 Iowa, 97. 201. Mannahan v. Sammon, 3 Md. 
 
 ' Kimbrough v. Benton, 3 Humph. 463. Buehler v. Rogers, 68 Penn. 9. 
 
 no. Vattier v. Lyttle, 6 Ohio, 477. Colyer v. Higgins, i Duval, 6. Young 
 
 Perry v. Williams, Dud. (S. C.) 44. v. Smith, 23 Tex. 598. Taylor v. 
 
 Jones V. Burr, 5 Strobh. 147. Mumford, 3 Humph, 66. Webb v. 
 
 'McGhee v. Ellis, 4 Litt. 241. Armstrong, 5 Id. 365 . 
 
 Price V. Boyd, I Dana, 434. Dunn v. • Smith v. Spencer, 3 Ired. Ch. 256. 
 
 Frazier, 8 Blackf. 482. Julian v. Beal, Bouton v. Lord, 10 Ohio S. 454. 
 
332 ON EXECUTIONS. [Chap. XI. 
 
 where the officer refuses, neglects, or omits to sell according 
 to law, as it is the legal and proper remedy of compelling a 
 sale.' It may be issued by a clerk, without an order of 
 court.' But not after one has issued, and the land sold on 
 it. An execution must issue for the balance, if there was not 
 enough made to satisfy the judgment.' In case of levy on 
 land, the vendi may issue either to the officer who made the 
 levy, or to the sneriff in office ; but in case of personal 
 property it must go to the officer who made the levy.' It 
 is the proper writ to enforce a judgment where an execu- 
 cution has been suspended by a writ of supersedeas or in- 
 junction," or to authorize a sale of land after the return day.* 
 If not issued in conformity to law, it will be quashed.' 
 It relates to the levy of the execution upon which it has 
 issued, and takes precedence over an execution issued at the 
 same time,' and is an execution within the meaning of the 
 statute creating liabilities for failure to return.' Under 
 the vendi, the only power the officer has is to sell the prop- 
 erty therein described ; he hiust obey the command of this 
 writ, even if he knows there is a mistake in the description 
 of the property described in the return to the execution \ 
 and if other property is sold by him no title passes." The 
 officer must sell the debtor's whole interest, without reser- 
 vation or restriction." Writs of vendi sometimes have a 
 special 7?. y«. clause, for the purpose of making an additional 
 levy and sale, if necessary to satisfy the judgment after the 
 sale. A vendi with such fi. fa. clause has not the force and 
 
 Cannaday V. Nuttall, 2 Ired. Ch. 265. ' Doe v. Cunningham, 6 Blackf. 
 
 Biasfield v. Whittaker, 4 Hawks, 6. 430. Doe Y. McKinne, 4 Hawks, 
 
 ' Cummins v. Webb, 4 Ark. 229. 279. Overton v. Perkins, Mart. & Y. 
 
 Cameron v. Reynolds, Cowp. 406. 329. 
 
 ' Holmes v. Mclndoe, 20 Wis. 657. ' U. S. v. Conway, I Hemp. 313. 
 
 ' Smith V. Fore, 10 Ired. 37. 'Taylor v. Mumford, 3 Hemp. 
 
 < Holmes v. Mclndoe, 20 Wis. 657. 66. 
 Purl V. Duval, 5 Har. & J. 69. • Webb v. Armstrong, 5 Humph. 
 
 ' Overton v. Perkins, Mart. & Yerg. 365. 
 329. Charter v. Peetor, Cro. Eliz. " Fenno v. Coulter, 14 Ark. 3& 
 
 597. Tocock v. Honyman, Yelv. 9. Young v. Smith, 23 Tex. 598. 
 State v. Hammett, 7 Ark, 493. " Fretz v. Heller, 2 W. & S. 397. 
 
Chap. XI.] OF THE SALE. 833 
 
 effect of an alias execution, but is dependent upon the re- 
 sult of the sale under the vendi ex. to which it is annexed. 
 If the sale is insufficient to satisfy the debt, then for the 
 first time the special fi. fa. becomes operative.' A vendt 
 without a _/?. /d!. clause does not authorize the sale of any 
 othei property than that named in it,' nor is it void without 
 such clause ; ' but a return to a vendi that the officer had 
 levied and sold by virtue of the writ, would not vitiate a 
 sale, there being a previous valid levy under the execution." 
 In Louisiana there is no definite period of time prescribed 
 for the return of writs of seizure and sale ; they are not, 
 like writs of execution, required to be returned in seventy 
 days.' Where a statute requires notice to a defendant' of 
 the levy, the issue of a vendi is sufficient evidence of notice.' 
 Land and personal property levied on by attachment, may 
 be sold on a vendi or ordinary execution, as the plaintiff 
 may elect.' 
 
 § 216. Sale of personal property. After making a 
 levy upon personal property by virtue of final process-, 
 the officer must, in order to convert such property into 
 money, give public notice, in accordance with the statutory 
 requirements, of the time and place rff sale, and the nature 
 of the property to be sold. The notice should state 
 whether the sale is made by virtue of the power conferred 
 on him by one or more executions ; for if he gives notice 
 of a sale under one execution, and another one is deliv- 
 ered to him, he can not sell under the latter.' The time 
 and place of sale are matters resting in the discretion of 
 the officer. It must appear that he exercised ordinary 
 care, prudence, and judgment. The length of time notice 
 is to be given is regulated by statute. In Pennsylvania, 
 it is six days ; in Colorado and Kansas, ten days ; in Ken- 
 tucky, twenty, days' notice is required ;° in Massachusetts 
 
 ' Dan V. Nichols, 63 N. C. 107. • Ward v. Sanders, 6 Ired. 382. 
 
 ' Quinn v. Wiswall, 7 Ala. 645, ' Autry v. Waters, 46 Ala. 476. 
 
 ' Zug V. Laughlin, 23 Ind. 170. ' Mascraft v. Van Antwerp, 3 Cow. 
 
 * Welch V. Sullivan, 8 Cal. 165. 334. 
 ' Taylor v. Graham, 18 La. 656. • Sanders v. Norton, 4 Mon. 464. 
 
334 ON EXECUTIONS. [Chap. XI. 
 
 and other New England States, it must be advertised in 
 two days, and sold in four days, or the officer loses his 
 special ownership in the property, and it is liable to be 
 taken on other executions.' If not sold within such time, 
 they must be re-advertised." Sunday is not reckoned as 
 one of the four days.' California, in five days ; Connec- 
 ticut, twenty-one days. In Arkansas, if personal prop- 
 erty is levied on, the debtor has the right to retain possession 
 of it by giving a bond with two good securities conditioned 
 that the property seized will be delivered on the day 
 appointed for the sale. If the property is not delivered, 
 the bond becomes a judgment, and execution then issues 
 upon it against the principal and sureties. When an exe- 
 cution issues on such a bond, no further stay can be 
 taken. If not stayed, sales under the execution shall be 
 on a credit of three months, the purchaser giving bond and 
 good security to the creditor in the execution for the sale 
 money, with interest from date. In Virginia, the officer 
 levying an execution may take from debtor a " forthcoming 
 bond " conditioned that the property shall be forthcoming 
 on day and at place fixed for sale — the property left in pos- 
 session, and at risk of debtor. The officer is required tO' 
 take good security on this bond. If property is not 
 " forthcoming," the officer returns bqnd to court, and it 
 has the force of a judgment against principal and surety. 
 No execution issues until notice (ten days) is given the 
 parties that application will be made to court for award of 
 execution. On this execution no security is to be taken. 
 Executions issued on judgments obtained upon debts, 
 &c., contracted or incurred prior to the tenth day of April, 
 1865, and levied on personal property, are subject to the 
 following Act of Assembly : " Until the first day of April, 
 1874, in all cases of sales of personal property levied on 
 ' Caldwell v. Eaton, 5 Mass. 399. ford, 45 N. H. 416. Poole v. Symonds,. 
 Warren v. Leiand, 9 Id. 265. Lane v. I Id. 289. 
 
 Jackson, 5 Id. 157. Howe v. Stark- * Titcomb v. Union Ins. Co., 8 Mass, 
 weather, 17 Id. 240. Sumner v. Craw- 326. 
 
 ' Tuttle V. Gates, 24 Me. 395. 
 
Chap. XI.] OF THE SALt. 335 
 
 under judgments, warrants, or decrees upon obligations, 
 . liabilities, or debts, which were contracted or incurred prior 
 to the tenth day of April, 1865, the officer making said 
 sale shall, when so 'required by the debtor, at any time 
 before the sale, sell the said personal property on a credit 
 of twelve months, except as to the costs and the expenses 
 of sale, which may be required in cash, taking from the 
 purchaser's bonds, with sufficient surety, for the balance 
 of the purchase money. The purchasers shall give their 
 said bonds, payable to the creditor, provided that, for any 
 excess of purchase money over and above the claim of said 
 creditor, the said bonds shall be made payable to debtor. 
 Whenever the property is sold under more than one pro- 
 cess, the bonds, made payable to the respective creditors, 
 shall be given according to their respective rights and priori- 
 ties." Where by statute a speedy sale of perishable personal 
 property may be made, only such property as is subject 
 to natural and speedy decay is meant." After giving due 
 and legal notice of the time and place of sale, it is the 
 duty of the officer, in default of payment by the debtor, to 
 proceed and sell the property levied upon. The officer can 
 not deliver the goods of the defendant to the plaintiff in sat- 
 isfaction of his debt, but the goods must be sold,' and the 
 money in strictness is to be brought into court. • It is not 
 a part of the duty of the officer to execute a bill of sale to 
 the plaintiff at an appraised value, nor is he compellable to 
 do so ; for it might be very inconvenient and highly inju- 
 rious, if it were allowed. The legal and proper mode of 
 compelling a sale, where the officer delays or refuses, is by a 
 writ of venditioni exponas, upon which he must return the 
 money into court.' If the officer seizes goods, he is bound 
 to find buyers ;* he is bound to sell where he receives 
 a bond of indemnity, whether the goods are the debtor's or 
 not ; if he refuses, he is liable to the value of the property ;' 
 
 ' Webster v. Peck. 31 Conn. 495. ' Cameron v. Reynolds, Cowp. 406. 
 
 » Thorpe v. Wheeler, 23 111. * Clafk v. Withers, 6 Mod. 293. 
 
 544. ' Stone V. Pointer, 5 Munf. 287. 
 
336 ON EXECUTIONS. [Chap. XI 
 
 andwherehesummonsa jury to try the right of property, and 
 they fail to agree ;' or in case of a judgment by default against 
 the claimant ; in some states, where there is only one bidder 
 present." Where he seizes property on a writ issued on a 
 fraudulent judgment,and while the goods remain in his hands, 
 he is bound to seize and sell them under subsequent writ 
 founded on a valid judgment.' The officer should conform as 
 nearly as possible, in selling personal property taken in exe- 
 cution, to such rules as a prudent man would observe in selling 
 his own property for the purpose of obtaining the best price ; 
 he can not lawfully sell goods en masse or in bulk, or with- 
 out designating the articles to be sold, which consist of various 
 specific articles.' The sale must be at public auction to the 
 highest bidder,' and for cash.' Cash does not necessarily 
 mean coin, but ready money in contradistinction to credit.' 
 And he is not justified, after he has sold as much as will ap- 
 parently satisfy the writ, in selling any more.' When the 
 sheriff has taken goods in execution under a fi. fa., he may 
 sell them without other direction, though his office be deter- 
 mined before the sale.' In order that the officer may sell 
 property, it is necessary that it be levied on prior to the sale, 
 as property not previously levied upon can not be sold." 
 
 Connelly v. Walker, 45 Penn. 449. 82. Swortzell v. Martin, 16 Iowa, 519. 
 
 Corson v. Hunt, 4 Id. 510. 'Aldredv.Constable,8 Jur. 956. Mun- 
 
 ' Commonwealth v Herndon, 2 ford v. Armstrong, 4 Cow. 533. Swope 
 
 Dana, 429. Potts v. Commonwealth, v. Ardery, 5 Ind. 213. Sauer v. Stein- 
 
 4 J. J. Marsh. 202. bauer, 14 Wis. 70. Bigley v. Risher, 63 
 
 » State V. Joyce. I Hay. 43. State Penn. 152. Hushmacher v. Harris, 38 
 
 V. Johnson, 2 Id. 243. Penn. 498. Griffin V.Thompson, 2 How. 
 
 » Imray v. Magnay,2 Dowl. N.S. 531. 244. Williamson v. Berry, 8 Id. 544. 
 
 * McLeod V. Pierce, 2 Hawks, no. ' Meng v. Houser, 13 Rich. Eq. 210. 
 
 Den V. Twitty, 3 Id. 44. Den v. "Aldred v. Constable, 8 Jur. 956. Day 
 
 Hodges, Id. 51. Cresson v. Stout, 17 v. Graham, 6 111. 435. Hewson v. Dy- 
 
 Johns. 116. McLean Co. Bank v. gert, 8 Johns. 333. Meeker v. Evans, 25 
 
 Flagg,3llll. 290. Sheldon V. Soper, 14 111. 322. Wheeler v. Kennedy, t Ala. 
 
 Johns. 352. Mason v. White, 11 Barb. 292. Davis v. Abbott, 3 Ind. 137. 
 
 173. Waring v. Loomis, 4 Id. 484. » Clark v. Withers, i Balk. 223. 
 
 ' Swope v. Ardery, 5 Ind. 213. Devoe v. Elliott, 2 Caines, 243. 
 
 Chapman v. Harwood, 8 Blackf. '» Cook v. Wood, i Harr. 254. Berry 
 
Chap. XI.] OF THE SALE. 337 
 
 § 217. Personal property, how sold. It is the 
 almost universal rule that all personal property must be 
 sold in presence of the purchaser, and in the power of the 
 officer to deliver possession to the purchaser.' Public sales 
 ■of personal property not within the view of the bidders, 
 are void, on the plainest principles of public policy," but 
 not if there is no fraud in the sale in Missouri," or the debtor 
 waives the necessity of its presence.* If only a portion of 
 the property is present, the sale of that portion is valid ; " in 
 other states it is merely voidable.' No one but the parties 
 can take advantage of it.' Where the situation of personal 
 property upon which a levy is made, and the interest of the 
 parties require it, the officer may, in his sound discretion 
 and in good faith, advertise and sell it at more than one 
 place.' A sale need not be evidenced by a bill of sale, but 
 may be proved by parol.' If a bill- of sale is made, it need 
 not contain all the formalities of a regular certificate." A 
 delivery of a bill of sale is a delivery of the thing sold, 
 there being no adverse possession." Where the plaintiff in 
 the execution is the purchaser, the officer may deliver the 
 property without receiving the money ; the amount for 
 "which the sale is made to such creditor may be applied as a 
 
 V. Griffith, I G. & J. 37. Bond v. 352. LinendoU v. Doe, 14 Id. 222, 
 
 Willett, 31 N. Y. 102. Hazard v. Burton, 4 Harring. 62. Gift 
 
 ' Smith V. Morse, 2 Cal. 524. Raun v. Anderson, 5 Humph. 577. Ainswoith 
 
 V. Reynolds, 11 Cal. 14. Smith v. v. Greenlee, 3 Murph. 470 Collins v. 
 
 Randall, 6 Id. 47. Toulumne, &c. Co. Montgomery, 2 N. & M. 391.. Bostwick 
 
 V. Sedgwick, 15 Id. 515. Burns v. Ray, v. Keizer,4 J. J. Marsh. 597. 
 18 B. Monr, 392. Gaskell v. Aldrich, ' Kean v. Newell, I Mo. 754. 
 
 40 Ind. 338. Blanton v. Morrow, 7 * Ainsworth v. Greenlee, 3 M jrph. 
 
 Ired. Eq. 47. Herod v. Bartley.lS 470. 
 
 111. 58. . Skinner v. Skinner, 4 Ired. ' LinendoU v. Doe, 14 Johns. 222. 
 
 175. McNeely v. Hart, 8 Id. 492. ' Foster v. Mabe, 4 Ala. 402. Haz- 
 
 Ainsworth v. Greenlee, 3 Murph. 470. zard v. Burton, 4 Harring. 62. 
 Cresson v. Stout, 17 Johns. 116. War- ' Stephens v. Baird, 9 Cow. 274. 
 
 ing V. Loomls, 4 Barb. 484. ' Drake v. Mooney, 31 Vt. 617. 
 
 ' Tibbetts v. Jageman, 58 IH. 43. • Evans v. Rogers, 2 W. & M, 563. 
 
 Newman V. Hook, 37 Mo. 207. Stiefv. '" Lay v. Neville, 25 Cal. 551. 
 Hart, I N. Y. 20. Cresson v. Stout, 17 " Cummings v. McGill, 2 Murph. 
 
 Johns. 116. Sheldon v. Soper, 14 Id. 357. 
 
 22 
 
338 ON EXECUTIONS. [Chap. XL 
 
 satisfaction to the amount of the bid on the judgment on 
 which the execution issues.' In the sale of personal prop- 
 erty, no title vests in the purchaser until the purchase- 
 money is paid; the officer can not dispense with actual 
 payment by charging himself with the amount bid ;' unless 
 it be in the case where the creditor is the purchaser. A sale 
 between the debtor, creditor, and officer, by consent of 
 parties, is valid." The purchaser of a chattel at an execution 
 sale has the legal property.' A sale made by an officer on 
 execution must be regarded as a lei|^al transfer of the prop- 
 erty, though the officer may not have conformed to the re- 
 quirements of the statute in making the sale." This may 
 not apply to any description of personal property not tan- 
 gible, and represented only by documentary evidence of 
 title." 
 
 § 218. Of the title that passes by sale. Where 
 the sale is of the entire property in a chattel on execution, 
 it is purchased with all its legal incidents, but if the sale is 
 only of the debtor's interest in the property, the purchaser 
 will then only stand in the debtor's place, with only such 
 rights as the debtor could enforce.' The title which a debtor 
 has in the goods at the time the lien attaches passes by 
 the sale.' While an interested party may have power to sell 
 the whole of a chattel, an officer levying an execution on 
 such chattel against such party and the other owners, can 
 sell only their interest, whatever that may be, and not the 
 whole chattel ; " but where there are several defendants inter- 
 ested, their united interests may be sold together," and the 
 buyer takes the thing sold." The title can not antedate the 
 
 ' Burroughs v. Wright, 19 Vt. 510. ^ True v. Congdon, 44 N. H. 48. 
 
 Nichols V. Ketchum, 19 Johns. 84. " Boggs v. Hargrave, 16 Cal. 559. 
 
 Russell V. Gibbs, 5 Cow. 390. Fuller v. Allen, 16 How. P. 247. 
 ' State V. Lawson, 14 Ark. 114. * Hopkins v. Forsyth, 14 Penn. 34 
 
 ' Burroughs v. Wright, ig Vt. 510. '" Neilson v. Neilson, 5 Barb. 565. 
 
 * Storm V. Livingston, 6 Johns. 44. " Foster v. Cockburn, Parker's Excl 
 
 ' Tuttle Y. Gates, 24 Me. 395. 70. Jennings v. Carson, 4 Cranch. 26. 
 
 Richardson v. Kimball, 28 Me. 463. Grant v. McLaughlin, 4 Johns. 34 
 ' Tuttle V. Gates, 24 Me. 395. The Tilton, 5 Mason, 465. 
 
Chap. XI.] OF THE SALE. 339 
 
 date of sale as against bond fide purchasers, where the seizure 
 is made only on the day of sale." An unconditional delivery 
 of the property to the purchaser renders the sale complete ; ' 
 by receipting to the officer for the property purchased, a 
 party becomes the owner.' 
 
 If the property is pledged or mortgaged, he acquires the 
 rights of the pledgor or mortgagor, therein, on his com- 
 pliance with the conditions of such pledge or mortgage. 
 Where a term in goods is sold, the purchaser may use 
 them during the remainder of the term. A purchaser will 
 acquire no title to property sold at an execution sale, if 
 the property is owned by a person not a party to the action. 
 The sale of A's property, on judgment and execution issued 
 against B, will not pass any title to B's property. The 
 English law in regard to sales in market overt does not 
 apply in this country ;* or- if subject to the lien of a prior 
 attachment ;° or where the officer never took possession 
 of it, or delivered it to the purchaser, and did not 
 have it at the place of sale.' A sale of all the debtor's 
 right, title, and interest in notes and judgments is null 
 and void, where no actual seizure is made by the offi- 
 cer,' if a sale takes place without due authority of law ;' 
 where one of two joint-debtors, in fraud of the rights of his 
 co-debtor, allows judgment to be taken against both, and 
 then causes a sale of such debtor's property, he becoming 
 the purchaser, when it is his duty to satisfy the judgment ;' 
 or if made before the time specified in the notice, if the 
 property is sacrificed." An indication of a void or fraudu- 
 lent sale is where the debtor is allowed to retain possession 
 
 ' AUentowii Bank v. Beck, 49 Penn. Vanalstyne, 15 Barb. 568. Hewson 
 
 409. V. Dygert, 8 Johns. 333. 
 
 ' Cochran v. Roundtree, 3 Strobh. ' Fuller v. Field, 39 Me. 297. 
 
 217. • Newman v. Hook, 37 Mo. 207. 
 
 ' Freeman v. Morse, 20 111. 429. ' Anderson v. Valentine, 15 La. 
 
 * Symonds v. Hall, 37 Me. 354. 379. 
 
 Smith V. State, 21 Miss. 140. Chambers • Carter v. Simpson, 7 Johns. 535. 
 
 V. Lewis, 88 N. Y. 454. Bryant v. * Ehrman v. Kramer, 26 Ind. 400. 
 
 Whicher, 52 N. H. 159. Catlin v. '" Williams v. Jones, I Bush. 621. 
 
 Jackson, 8 Johns. 406. Hoyt v. King v. Gushman, 41 111. 31. 
 
340 ON EXECUTIONS. [Chap. XI. 
 
 of the property for a long time after the sale ;' but where a 
 stranger to the action becomes the purchaser of the prop- 
 erty, it may be left in the possession of the debtor without 
 any presumption of fraud." In order to constitute a valid 
 sale as against the creditors of the debtor without a change 
 of possession, the proceeding must be under the authority 
 and precept of law, and the right to make the sale not 
 rest upon the consent of the debtor.' Such a sale being 
 made against the will of the defendant, he has no con- 
 trol of the direction the title is to take, and if there is 
 no fraud practiced, he can only obtain title by re-purchase.' 
 While an officer is not required to sell goods in the same 
 manher a retail merchant does, he should offer the prop- 
 erty in such a way as will be most advantageous to all the 
 parties interested and also the purchaser. The property to 
 be sold must be designated by the officer. A sale of a lot 
 hay in a stack, without being separated therefrom, or fifteen 
 horses out of a drove of one hundred, is void.' The sale 
 of a number of brick in a kiln, implies the right of the 
 purchaser, on the kiln being opened, to take that number 
 indiscriminately, in the usual manner of selling them.' A 
 purchaser has the right to enter upvon the premises where 
 the sale takes place, and remain long enough to remove 
 the property purchased.' A sale made pending an action 
 in trover is absolutely void, and vests no title either in the 
 execution-plaintiff, or the plaintiff in the trover suit.' 
 
 § 219. Sale of growing crops. If a crop is mature, — 
 as, for instance, a crop of potatoes, — the sale of it in the 
 ground, to be gathered immediately, is not within the 
 
 ' Stover V. F. & M. Bank, 15 Miss. Garland v. Chambers, 19 Miss. 337. 
 
 305. Taylor v. Mills, 2 Edw. Ch. Coleman v. Bank, 2 Strobh. Eq. 285. 
 318. Gardiner v. Tubbs, 21 Wend. * Kelly v. Hart, 14 Vt. 50. 
 
 169. Schott V. Chancellor, 20 Penn. * Kistler's Appeal, 73 Penn. 393. 
 
 195. ' Sheldon v. Soper, 14 Johns. 352.' 
 
 'Gates V. Gaines, 10 Vt. 346. Mason v. White, 11 Barb. 173. Waring 
 
 Andrews v. Brook, n Ala. 953. v. Loomis, 4 Id. 484. 
 Floyd V. Goodwin, 8 Yerg. 484. ' Hill v. Harris, 10 B. Monr. 120. 
 
 Abney v. Kingsland, 10 Ala. 335. ' People v. Hopson, i Denio, 574. 
 Simerson v. Bank, &c. 12 Id. 205 ' McLin v. Williams, 28 Geo. 482. 
 
Chap. XI.] OF THE SALE. 341 
 
 Statute of frauds ; the ground is a mere warehouse till the 
 crop can be removed, or if the crop is still growing." Grow- 
 ing crops, if taken in execution, may be sold at once, or 
 they may be allowed to mature, and the purchaser has the 
 right to enter and take the crops away, or to secure harvest, 
 and preserve it.' But if an officer seize a tenant's growing 
 crops under an execution, and before he makes a sale under 
 the writ, a writ of habere facias possessionem is delivered to 
 him founded on a judgment in ejectment at the suit of the 
 landlord ; the demise being laid before the issue of the _/?./«., 
 the officer can not sell the growing crops under the. fi. fa., 
 for the tenant is a mere trespasser from the time of the 
 demise.' Where a levy is made upon a lot of corn un- 
 shucked, it may be divided and sold in piles.* A sale of 
 growing crops, after the land on which it has been growing 
 is sold on a prior execution, passes no title.' A sale of 
 growing crops two miles from the farm is void.' 
 
 § 220. Sale of mortgaged property, leases, &c. 
 Where a stock of goods subject to a mortgage is sold, it 
 may be sold in bulk,' so that the purchaser may be enabled 
 to become the owner of the property by payment of the 
 mortgage debt ; if the property is used for agricultural pur- 
 poses, and from its situation and use can not be all brought 
 to the place of sale, though on the premises, if the bidders 
 are informed by the officer what property is to be sold, and 
 they have it pointed out tp them, a sale of it will be valid.' 
 A sale only passes such title as the debtor has in the 
 property. If the goods are duly mortgaged, and the debtor 
 
 ' Parker v. Staniland, II East. 362. ' Hodgson v Gascoyne, 5 B. & A. 88. 
 
 Warwick v. Bruce, 2 M. & S. 205. ■• Bevan v. Byrd, 3 Jones I. 397. 
 
 Evans v. Roberts, 5 B. & C. 829. • Bear v. Bitzer, 16 Penn. 175. 
 
 Austin V. Sawyer, 9 Cow. 42. Carring- • Smith v. Fritt, i D. & B. 241. 
 
 ton V. Roots, 2 Mees. & W. 248. ' Tifft v. Barton, I Denio, 171. 
 
 Jones V. Flint, 10 Ad. & Ell. 753. Carpenter v. Simmons, I Rob. (N. Y.) 
 
 Northern v. State, i Ind. 133. 360. 
 
 ' Terril v. Thompson, 3 Bibb. 273. » Tifft v. Barton^ Denio, 171. Bake- 
 
 Hartwell v. Bissell, 17 Johns. 128. well v. Ellsworth, 6 Hill, 484. Car- 
 
 "Whipple V. Foot, 2 Id. 418, penter v. Simmons, i Rob. (N. Y.) 360. 
 
S42 EXECUTIONS. [Chap. XI 
 
 under the mortgage has the right of possession, a purchaser 
 at an execution sale acquires the debtor's right of possession 
 as well as the debtor's right to redeem the property from 
 such lien ; as regards the rights of the mortgagee, the sale 
 in no way affects them.' A levy on and a sale of personal 
 property by a creditor has priority over a mortgage of the 
 same property, if the mortgage is defective and invalid, to 
 creditors without notice.'' An officer is authorized to seize 
 and convey a tenant's interest in fixed articles leased 
 together with the premises to which they are attached, 
 althoiigh he can not sell the articles as divided chattels in 
 separation from the freehold,' and where he takes a lease 
 and fixtures, he may sell the fixtures separately, if he can 
 . not find a purchaser for the whole.' 
 
 ' Hull v.Garnley, ii N. V. 501. « Ryall v. RoUe, i Atk. 165. Gor- 
 
 ' Piper V. Hilliard, 52 N. H. 2og. don v. Harpur, 7 T. R. II. 
 
 Carpenter v. Simmons, r Rob. (N. Y.) * Barnard v. Leigh, I Stark. 
 
 360, 43. 
 
Chap. XII.] SALE OF REAL PROPERTY. ' 843 
 
 CHAPTER XII. 
 
 OF THE SALE OF REAL PROPERTY. 
 
 Principles Governing Sales of Real Estate. — How to be 
 made. — Who may Waive the Statutory Requirements. — 
 How it should be Sold. — Sale in Parcels, When to be 
 made. — Sales en masse, when Voidable. — When they will 
 be Sustained. — Sale of Property conveyed prior to issue of 
 Execution. — Sale in Inverse Order. — Sale of Equity of 
 Redemption. — Effect of Sale. — Title which Purchaser ob- 
 tains, in the various States, by Sale of Equitable Interests, 
 .&-C. — Application of the Statute of Frauds to Sales on 
 Execution. — When they are taken out of the Statute. — 
 Application of Estoppels to Sales. — How and When 
 ■ Applied. 
 
 % 221. The practice of selling real estate under execu- 
 tion being unknown at common law, the principles 
 governing the sale thereof are expressly defined by statute. 
 The right of subjecting real property to the satisfaction of 
 •debts by legal process having been given by statute in 
 England, and made applicable to the English Colonies, in 
 the American States has been firmly established by various 
 -acts of the State Legislatures under certain statutory regu- 
 lations in order to prevent abuses and unnecessary sacrifices. 
 Being special statutory proceedings, the requirements of 
 the law, under which proceedings are instituted to change 
 the title to real property, must be strictly pursued.' 
 
 
 
 ' Thacher v. Powell, 6 Wheat. Ii8. son, 2 How. 256. Voss v. Johnson, 
 
 /Sloom V. Burdick, I Hill, 130. Jackson 40 Ind. Ig. Stead's Executors v. 
 
 ■V. Esty, a Wend, 151^ Benson v. Course, 4 Cranch, 403. Collier v. 
 
 Smith, 42 Me. 414. Griffin v. Thomp- Stanbrough, 6 How. 14. Erwin » 
 
344 ON EXECUTIONS. fCHAP. XII. 
 
 Sales made under an execution are made under the naked 
 authority of the writ. They must conform in all respects 
 with the rules which the law lays down for the protection 
 of the debtor. If not so made, they may be held irregular 
 and void. The power of an officer to sell lands being a 
 naked statutory power, not coupled with an interest, if the 
 performance of all the statutory prerequisites to the exer- 
 cise of such power do not appear in the deed or aliunde,. 
 the sale will be void.' Everj'thing essential to a title ought 
 to appear of record. The mode in which final process is to 
 be executed is regulated by statute. The seizure of prop- 
 erty is necessary to make the sale legal. Subsequent 
 proceedings %o vest the title in the purchaser have reference 
 to the time of seizure, and depend upon the state of the 
 title as it then was.' If a sale is made under a decree of 
 foreclosure it must be sold in conformity with the decree, 
 if not authorized by its terms it can not stand.' An officer 
 has no authority to make a sale upon a decree unless an 
 order of sale or special execution issued upon the decree is. 
 placed in his hands.* An officer has no power to impose 
 conditions by which the estate sold is to be incumbered irt 
 the hands of the purchasers.' The sale must be made 
 according to the law in force at the time of sale ; not at the 
 time of judgment, except in cases specially provided, or 
 
 Lowry, 7 How. 172, 181. Castler v. 40 N. H. 173. Whittier v. Vamey, 
 
 Symonds, i Minn. 427. Atkins v. 10 N. H. 2g6. Husted v. Dakin, 17- 
 
 Kinnan, 20 Wend. 240. Carpenter Abb. Pr. 137. Tiffany v. Glover, 3. 
 
 V. Stilwell, II N. Y. 61. Olcott v. Greene (la.) 387. Heirs of Gridley 
 
 Robinson, 20 Barb. 148. Corwin v. v. Phillips, 5 Kas. 349. Lassell v. 
 
 Merritt, 3 Barb. 341. Board Co. Powell, 7 Cold. 277. 
 
 Comm. V. Carter, 2 Kas. 115. Wei- ' Todd v. Philhower, 4 Zab. 796. 
 
 lington V. Gale, 13 Mass. 482. Eddy ' Benson v. Smith, 42 Me.' 414. 
 
 V. Knap, 2 Mass. 154. Ware v. Bar- ' Langsdale v. Mills, 32 Ind. 380. 
 
 ker, 49 Me. 358. Crafts v. Elliotts- * Heyman v. Babcock, 30 CaL 
 
 ville, 47 Me. 141. Culvert v. Hay- 367. 
 
 den, I Vt. 359. Fitch v. Smith, 9 ' Umbehauer v. Alenbaugh, 3 W. & 
 
 Conn. 42. Todd v. Philhower, 4 S. 259. Alenbaugh v. Umbehauer, & 
 
 Zabr. 796. Woodcock v. Bowman, 4 Watts, 48. Cochran v. Roundtree, y 
 
 Mete. (Ky.) 40. Wells v. Cowherds, Strobh. 217. Dallam v. Bowman, ift 
 
 a Mete. (Ky.) 514. Russell v. Dyer, Mo. 225. 
 
Chap. XIIJ SALE OF REAL PROPERTY. 345 
 
 where the contract of the parties would be impaired.' 
 Conditional or defeasible sales are not recognized by law.' 
 A sale under final process being a forced sale, and made 
 against the will of the defendant, he has no control of the 
 direction the title is to take, and, if there is no fraud prac- 
 ticed, can only obtain title by re-purchase.' It is the duty 
 of the officer to sell the property of the debtor regardless 
 of the rights of parties obtained pendente lite /' but he is 
 under no obligation to sell the defendant's real estate if 
 it is incumbered to an amount exceeding its value.* The 
 statutory requirements in regard to sales under execution 
 and the formalities to be observed in conducting them, are 
 designed for the benefit and protection of those interested 
 in the property, and may be waived by their common con- 
 sent.' Being present and not objecting thereto is not a 
 waiver.' The due advertisement of the sale of real estate 
 by the sheriff is a condition precedent to the exercise of 
 the power to sell, which must be complied with.' An 
 officer has no authority to make sale of mortgaged premises 
 under a judgment of foreclosure and sale, unless an order 
 of sale is issued upon the judgment and placed in his 
 hands." If the first order of .sale on a foreclosure decree 
 be not executed, a second order may issue." Or an execu- 
 tion may issue on personal property of defendant where a 
 personal judgment is also taken." 
 
 § 222. How REAL ESTATE TO BE SOLD. — SALE IN PARCELS. 
 
 ' Crane v. Hardy, I Mich. 56. Rue La. 271. Vilas v. Reynolds, 6 Wis. 
 
 V. Decker, 3 McLean, 575. 214. Sowle v. Pollard, 14 La. 287, 
 
 » Webster V. Dennison, 20 Vt. 493. Alexander v. Miller, 18 Tex. 893. 
 
 ' Kistler's Appeal, 73 Penn. 393. Casey v. Gregory, 13 B. Mon. 505. 
 
 * Blackman v. R. R. Co., 45 Geo. Chase v. Monroe, 30 N. H. 427. 
 
 292. Kilgore v. Redan, i Strobh. 18. 
 
 ' People V. Ames, 35 N. Y. 482. ' Humphreys v. Brown, 19 La, 
 
 Champenois v. White, I Wend. 92. 158. 
 
 ' Richardson v. Ingilbjr, 13 Rich. ' Olcott v. Robinson, 20 Barb. 148. 
 
 Eq. 59. New Orleans Ins. Co. v. • Heyman v. Babcock,30 Cal. 367. 
 Bagley, 19 La. 89. Russell v. Stin- "' Shores v. Scott River Water Co., 
 
 son, 3 Hey. i. Chambers v. Hays, 6 17 Cal. 626. 
 B. Mon. 115. Mullen v. Hardinc 12 " Englund v. Lewis, 35 Cal. 357. 
 
346 ON EXECUTIONS. [Chap. XII. 
 
 —Sales en masse.— When voidable. — Void. In some 
 of the States the officer is required to divide the property, 
 if susceptible of division, and sell only so much as will be 
 sufficient to satisfy the execution ; or when the real 
 estate levied upon consists of several lots or parcels they 
 must be sold separately. In other States the defendant 
 may deliver to the officer a plan of division of the lands levied, 
 in which case it is the duty of the officer to sell, according 
 to the plan, so much of the land as may satisfy the execution. 
 When several distinct parcels, tracts or lots of land, are 
 levied on, it is the duty of the officer to offijr the same for 
 sale separately, in order that no greater amount shall be 
 sold than is necessary to satisfy the execution, and for the 
 reason, that it increases competition: many persons may 
 desire to purchase one lot or parcel who would not or 
 could not purchase several or the whole quantity levied 
 on, and where by statute a debtor is allowed a certain time 
 for redemption by selHng in parcels the price of each lot is 
 definitely fixed, thereby enabling him to redeem any portion 
 of the property sold. Sales made otherwise are sometimes 
 set alside by courts of law on motion of the judgment debtor, 
 or other person injured thereby, if application is made in due 
 time to the court, from which the execution issued, and by 
 a court of chancery upon a bill filed on the grounds of fraud 
 and abuse of power.' 
 
 ' Drake v. Murphy, 42 Ind. 82. Louis, &c., 30 Mo. 166. Mohawk 
 Baker v. Chester, &c., Co., 73 Penn. Bank v. Atwater, 2 Paige, 54. Till- 
 u6. Osgood V. Blackmore, 59 111. man v. Jackson, 1 Minn. 183. Penn. 
 261. Rigney v. Small, 60 111. 416. v. Craig, i Green Ch. 495. San Fran- 
 Williams y. Allison, 33 Iowa, 278. cisco v. Pixley, 21 Cal. 56. Prather 
 Johnson v. Hovey, 9 Kan. 61. Lough- v. Hill, 36 111. 402. Raymond v. Par- 
 lin"v. Schuyler, i Neb. 409. Brad- lin, 21 Wis. 531. Griswoldv. Stough- 
 ford V. Limpus, 13 Iowa, 424. Lay v. ton, 2 Oregon, 61. Boyd v. Ellis, n 
 Gibbons, 14 Iowa, 377. White v. Iowa, 97. Patton v. Stewart, Iq Ind. 
 Watts, 18 Iowa, 74. Cunningham v. 233. Griffith v. Hadley, 10 Bosw. 
 Cassidy, 17 N. Y. 276. Bunker v. 587. Catlett v. Gilbert, 23 Ind. 614. 
 Rand, 19 Wis. 253. Jackson v. New- Piel v. Brayer, 30 Id. 332. Whitney 
 ton, 18 Johns. 362. Tiernan v. Wil- v. Armstrong, 32 Iowa, 9. Winchellv. 
 son, 6 Johns. Ch. 411. Ryerson v. Edwards, 111. (unreported). Walker v. 
 Nicholson, 2 Yates, 517. Pine v. St. Sohum, 42 Id. 462. Fergus v. Wood*. 
 
Chap. XII.] SALE OF REAL PROPERTY. 347 
 
 An irregular sale of several parcels at once is not ipso facto 
 void, so that no title can pass by the sheriffs conveyance, 
 nor is the question one involving the power of the sheriff so 
 to sell, being merely directory.' 
 
 "The rule that a statute authority whereby a title may 
 be divested, must be strictly followed in all the requisites 
 which appear to be beneficial to the owner, applies in those 
 cases where the authority is special and in derogation of the 
 common law ; and has little or no application to the regular 
 judgments of courts and the processes issued to enforce such 
 judgments. Before the judgment can be rendered, the 
 party has his day in court, and when it is rendered the 
 execution becomes a matter of right. These constitute the 
 power to sell ; a power against which no defect can be al- 
 leged if the judgment is duly rendered and the execution 
 duly issued. The process is under the control of the court 
 from which it issues, and so is the sheriff's sale. If the 
 directions of the statute are not strictly followed, or if 
 there be any otherf irregularity, the party aggrieved can be 
 hf ard in a summary way by moving to set the sale aside. 
 These circumstances distinguish these cases from those 
 in which the rule previously mentioned has been so often 
 applied. 
 
 If the statutory directions are to be regarded so funda- 
 
 worth, 44 Id. 377. V^Tood v. Morell, Coates v. Lashley, 2 McCarter, 116. 
 I Johns. Ch. 505. Rowley v. Webb, Raun v. Reynolds, 11 Gal. 14. Phelps 
 I Binn. 61. Am. Ins.' Co. v. Oakley, v. Conover, 25 111. 313. Kiser v. 
 9 Paige, 259. Runyon y. N. J. R. Ruddick, 8 Blackf. 382. McLean 
 Co., 4 Zabriskie, 273. Meeker v. Co. Bank v. Flagg, 31 111. 290. Win- 
 Evans, 25 111. 322. Stead's Exrs. v. ters v. Buford, 6 Coldw. 328. French 
 Course, 4 Cranch, 309. King v. v. Edwards, 13 Wall. 506. Klopp v. 
 Piatt, 37 N. Y. 155. Cauffman v. Witmoyer, 43 Penn. 219. McDonald 
 Sayre, 2 B. Monr. 309. Collier v, v. Neilson, 2 Cow. 139. Stephens v. 
 Whipple, 13 Wend. 22g. Conway v. Baird, 9 Id. 274. Groff v. Jones, 6 
 Nolte, II Mo. 74. Sheldon v. Soper, Wend. 522. Kinney v. Noble, 51 111. 
 14 Johns. 352. May v. Thomas, 48 I12. Berry v. Griffith, 2 Halst. 337. 
 Me. 397. Merwin v. Smith, I Green Hewson v. Dygert, 8 Johns. 333. 
 Ch. 172. Coxe V. Halstead, Id. 319. ' Tillman v. Jackson, I Minn. 183. 
 Johnson v. Garrett, I C. E. Green 31. Cunningham v. Cassidy, 17 N. Y. 
 Vanduyne v. Vanduyne, Id. 03. 276. 
 
348 ON EXECUTIONS. [Chap. XII. 
 
 mental as to impeach titles where there has been no attempt 
 to correct the irregularity, the consequences can hardly fail 
 to be disastrous. A great number of titles would be open 
 to question and doubt, and it is difficult to foresee where the 
 mischief would stop." 
 
 " The very inquiry whether the land sold existed in ' sep- 
 arate lots, tracts or parcels,' would often be attended with 
 great difficulty. It might be a known block in a city, sub- 
 divided by arbitrary lines into contiguous lots, or a single 
 farm composed of parcels from different lots, or a known lot 
 occupied in separate farms by different tenants. Many em- 
 barrassing questions will arise, and many titles endangered 
 which ought not to be disturbed. 
 
 " Where a party, directly interested in the price which the 
 property to be sold at a judicial sale shall bring, makes a 
 reasonable request as to the order in which the parcels shall 
 be sold, with a view to enhancing the firice it may bring, 
 which requests are disregarded without any apparent good 
 cause, and the plaintiff bids in the property, the court will 
 be justified in setting aside the proceedings and ordering, a 
 new sale. Occupying a position of advantage^ it behooves- 
 the plaintiff to pursue. his remedy with scrupulous care, not 
 to inflict unnecessary injury on the party within his power ; 
 and it is the duty of a court to see that its process is not 
 made unnecessarily oppressive. 
 
 "While the law secures to the creditor his just demand, 
 and sequestrates the property of the debtor to satisfy it, it 
 still sedulously guards his interests in all the various steps 
 taken leading to a sale of his property. The unfortunate 
 debtor is not beneath its protection. It will not tolerate the 
 slightest undue advantage over him, even by pursuing the 
 strict forms of the law, or positive rules." ' 
 
 Where a statute requires an officer to divide real estate 
 taken on execution, if it may be done, and sell enough to 
 satisfy the judgment, it is his duty to do so without its being 
 demanded of him." A sale in parcels must be made if any 
 
 ' King V. Piatt, 37 N. Y. 155 » State v. Leach, 10 Ind. 308 
 
Chap. XII.] SALE OF REAL PROPERTY. 349 
 
 one will agree to purchase a portion of the tract for the 
 amount of the debt and costs.' Where the order of the 
 court is that the property be sold in one lot, that order must 
 be followed.' After offering each tract separately, and fail- 
 ing to sell in such way, he should add the subdivisions to- 
 gether one by one. If he can not sell in this way, he will be 
 justified in selling all the property together on a reasonable 
 bid, if he make a full return of the facts.' Where the land 
 sold is held in common by several defendants it should be 
 sold together, unless some one claiming the right to redeem 
 demands that such portion be separately sold.* But if the 
 debtor subdivide the property into lots after a levy has been 
 made, the officer need not sell it in lots unless, in his judg- 
 ment, it will result to the best advantage of all concerned.' 
 A sale of land need not be by government subdivisions, nor 
 by the subdivisions set down in the mortgage.' 
 
 § 223. Sale en masse. The selling under execution of 
 several parcels of land at one bid, and of putting up for sale 
 a whole tract, when some portion of it could be sold to sat- 
 isfy the judgment, is uniformly condemned by courts as 
 tending to the sacrifice of property and the oppression of the 
 •debtor.' A sale so made is prima facie void, whether on 
 ordinary judgment or on a decree of foreclosure.' He who 
 
 ' Ellsworth V. Lockwood, 42 N. Y. ' Worley v. Naylor, 6 Minn. 192. 
 
 89. ' Smith V. Randall, 6 Cal. 51. Mc- 
 
 * Babcock v. Perry, 8 Wis. 277. Laughlin v. Scott, i Binn. 61. Wheeler 
 ' Phelps V. Connover, 25 111. 309. v. Kennedy, I Ala. 292. Adams v. 
 
 Martin v. Hagadine, 46 Id. 322. Kiser, 7 Dana, 208. Garrett v. Moss, 
 
 Burmeister v. Dewey, 27 Iowa, 408. 20 111. 549. Stewart v. Gay, 10 Id. 
 
 Barnard v. Leigh, I Stark. N. P. C. 442. Phelps v. Connover, 25 Id. 309. 
 
 41. Anderson v. Austin, 34 Barb. 319. Meeker v. Evans, 25 Ind. 322. Win- 
 
 * Neilson v. Neilson, 5 Barb. 565. ters v. Buford, 6 Cold. 328. Day v. 
 Martin v. Hagadine, 46 111. 322. Graham, 6 111. 435. Ross v. Mead, 10 
 Talman v. Jackson, I Minn. 183. 111. 171. 
 
 White v. Watts, 18 Iowa, 74. Tyler « Vilas v. Reynolds, 6 Wis. 214. 
 
 V. Wilkinson, 27 Ind. 450. Wright v. Mevey's Appeal, 4 Penn. 80. Harri- 
 
 Yetts, 30 Id. 185. Benton v. Wood, son v. Button, 2 Yeates, 518. Nesbitt 
 
 12 Id. 260. Sowle y. Champion, 16 v. Dallam, 7 Gill & J. 494. Sherry v. 
 
 Id. 165. Lockwood, I Ind. 575. Cowen v. 
 
 ' Kiser v. Ruddick, 8 Blackf. 382. Underwood, 16 111. 22. Smith v. 
 
350 ON EXECUTIONS. [Chap. XII. 
 
 seeks to sustain such a sale must show its justice and expedi- 
 ency.' It should be made to appear, before such sale is inter- 
 fered with, that a larger sum would be realized from the sale 
 if sold in parcels, or else that a less amount of property would 
 have realized enough to satisfy the execution, in order to 
 warrant a court in setting it aside." In some courts the 
 debtor must show that he vainly demanded a sale in parcels.' 
 A stranger has no right to object to the sale. The debtor is 
 the only one who can, as he is the only one who would or 
 could be benefited by a sale in parcels ; ' and he may waive 
 the right to so sell if he desires. A sale will be good if the 
 land is held under distinct titles,' or if adjoining each other,' 
 or if the debtor surrenders lands to the officer to be sold to 
 satisfy the execution, and gives the officer parol au- 
 thority, it will cure the irregularity,' tholigh it sells for 
 less than it would if it were divided.' A sale may be 
 set aside by the court, with proper directions to the officer 
 as to the manner in which the lands should be sold.' 
 If the officer sells more than what, in the exercise of a 
 sound discretion, will appear necessary to satisfy the exe- 
 cution, if it can be separated the sale will be set aside ; and 
 if there is any abuse of power the officer will be compelled 
 to pay costs." 
 
 Randall, 6 Cal. 47. Lee v. Mason, Mintry, 2 J. J. Marsh. 68. Morris v. 
 
 10 Mich. 403. Piel v. Brayer, 30 Bruce, g Dana, 211. Raun v. Rey- 
 
 Ind. 332. Reed v. Diven, 7 Id. 189. nolds, 11 Cal. 14. 
 
 Banks v. Bales, l6 Id. 243. Tyler v. ' Nesbitt v. Dallam, 7 Gill & J. 494. 
 
 Wilkinson, 27 Id. 450. Wright v. ' Wallace v. Berger, 25 Iowa, 456. 
 
 Yetts, 30 Id. 185. Catlett v. Gilbert, Cunningham v. Felker, 26 Id. 117. 
 
 23 Id. 614. Gregory v. Perdue, 32 Wright v. Yetts, 30 Ind. 185. 
 
 Id. 453. West V. Cooper, 19 Id. 1. ' Taylor v. Graham, 18 La. 656. 
 
 Harris v. Makepeace, 13 Id. 560. * Stephens v. Baird, 9 Cow. 274. 
 
 Smith y. Pierce, 15 Id. 210. Benton ' Wilson v. Twitty, 3 Hawks, 44. 
 
 V. Wood, 17 Id. 260. San Francisco ' Thompson v. Hodges, 3 Hawks, 51. 
 
 V. Pixley, 21 Cal. 56. Henry v. ' Williamson v. Logan, i B. Monr. 
 
 Mitchell, 32 Mo. 512. Shropshire v. 237. 
 
 PuUen, 3 Bush, 512. Stover v. Bos- ' Greenup v. Stoker, 12 111. 24. 
 
 well, 3 Dana, 232. Adams v. Kiser, • Donaldson v. Bank, 20 Penn. 245. 
 
 7 Id. 208. Patterson v. Corneal, 3 A. '» Tiernan v. Wilson, 6 Johns. Ch. 
 
 K. Marsh. 618. Davidson v. Mc- 411. 
 
chap. xii.] sale. of real property. 351 
 
 § 224. Sale of property conveyed before the issue 
 OF AN execution. Among matters connected with the sale 
 of real estate upon execution is one affecting the rights of 
 third parties or strangers to the action in which the judgment 
 is rendered, who have purchased of the debtor portions or the 
 whole of his property, or where it has been sold and con- 
 veyed to more than one party, during the pendency of the 
 suit or prior to the issue of the execution, where the prop- 
 erty conveyed is subject to the lien of a judgment. The 
 mode of practice is not uniform. Where a debtor conveys a 
 portion of his property, the execution is levied upon the 
 remainder, and that is exhausted ; if there still remains an 
 amount due upon the execution, the officer must proceed 
 and sell the residue of the .property, commencing with the 
 several orders of "conveyance, with the the tract last sold, and 
 so on until the whole amount due is realized or all the prop- 
 erty is exhausted, which is subject to the payment of debts. 
 As for instance, if a judgment is rendered against A., who 
 owns five acres of land at the time of its rendition, or when 
 the lien of a judgment attaches, and he, before the issue of 
 an execution against him, sells and conveys one acre to B., 
 subsequently he sells another to C, and after that, one to D. 
 The property which *A. has undisposed of at the time the 
 plaintiff's execution is issued is first taken and sold, whether 
 it be in the hands of the debtor or his heirs. If the amount 
 realized from the sale is insufficient to satisfy the execution, 
 the officer then seizes and sells the property conveyed to D., 
 it being chargeable in the first instance as against him as well 
 as against others, and then the property sold to C, and finally, if 
 necessary to satisfy the writ, the property first sold to A. is 
 subjected to levy and sale, for the reason that when D. pur- 
 chased he took his land chargeable with the debt in the 
 hands pf the debtor, in prefefence to land sold to C, and C. 
 takes his chargeable with the debt in preference to the land 
 sold to B. Each takes the land with all its equitable burdens. 
 The sale of it by the debtor cannot compel the prior pur- 
 chasers to pay a pro rata proportion of the judgment. The 
 
352 
 
 ON EXECUTIONS. 
 
 [Chap. XII 
 
 portions sold and conveyed are to be subjected to execution 
 in the inverse order of their sale and alienation by the judg- 
 ment debtor.' 
 
 This principle of selling in the inverse order of alienation 
 when a portion of the debtor's property is sold by him, 
 results from the debtor's property being primarily liable for 
 the judgment ; if sold after the rendition of the judgment, the 
 purchaser takes subject to such judgment lien, a purchaser 
 can take no better title than his vendor has.' It would be 
 unjust to the parties purchasing if they should be compelled 
 to pay his debts when he has sufficient property to satisfy 
 them with,' it is analogous, if not part of the general rule of 
 equity, that where a party has a resort to two funds for the 
 pay of his judgment, he can not so employ them as to 
 injure a subsequent creditor who can resort to but one of 
 
 ' Mount V. Potter, 23 N. J. Eq. 188. 
 Agricultural Bank v. Fallen, 16 Miss. 
 357. Carpenter v. Koons, 20 Penn. 
 222. Succession of Rosseau, 23 La. I. 
 Briggs V. Kaufman, 2 Mich. N. P. 160. 
 Sibley v. Baker, 23 Mich. 312. Mc- 
 CuUum V. Turpie, 32 Ind. 146. Lock 
 V. Tilford, 52 111. 166. Barney v. 
 Myers, 28 Iowa, 172. Payne v. 
 Avery, 21 Mich. 524. Warren v. 
 Foreman, ig Wis. 35. McWilliams 
 V. Myers, 10 Iowa, 325. Bank, &c. 
 V. Howard, i Strobh. Eq. 173. Allen 
 V. Clarke, 17 Pick. 47. Chase v. Wood- 
 bury, 6 Cush. 143. Stuyvesant v. Hall, 
 2 Barb. Ch. 113. N. Y. Life Ins. Co. 
 V. Milnor, i Id. 353. Schryver v. 
 Teller, 9 Paige, 173. Mersservy v. 
 Barrelli, 2 Hill Ch. 567. Clowes v. 
 Dickinson, 5 Johns. Ch. 235. Har- 
 bet's Case, 3 Co. 11. James v. 
 Hubbard, 1 Paige, 228. Gouverneur 
 V. L^nch, 2 Id. 300. Jenkins v. 
 Fryer, 4 Id. 47. Guion v. Knapp, 6 
 Id. 35. Patty V. Pease, 8 Id. 279. 
 Skeel V. Spraker, Id. 182. Chapman 
 V. West, 17 N. Y. 125. Thompson 
 
 V. Murray, 2 Hill Ch. 204. Storey v 
 Schultz, I Id. 465. Wright v. Atkin- 
 son, 3 Sneed, 585. Conrad v. Har- 
 rison, 3 Leigh. 532. Bank v. Dundas, 
 II Ala. 661. Cummings v. Cum- 
 mings, 3 Geo. 460. Blair v. Ward, 2 
 Stockt. Ch. iig. Com. Bank v. West- 
 ern, &c. Bank, 11 Ohio, 444. Shan- 
 non V. Marsellis, Saxt. 413. Holden 
 V. Pike, 24 Me. 427. Gushing v. 
 Ayer, 25 Id. 383. Shepherd ». 
 Adams, 32 Id. 63. Massie v. Wilson, 
 16 Iowa, 391. Hurd v. Eaton, 28 111. 
 122. Bates V. Ruddick, 3 Iowa, 423. 
 Wisconsin v. Titus, 17 Wis. 241. 
 Marshall v. Moore, 36 111. 321. Carey 
 V. Folson, 14 Ohio, 365. Rathbone 
 V. Clark, 9 Paige, 648. Ogden v. 
 Glidden, 9 Wis. 46. Aiken v. Bruen, 
 21 Ind. 137. Gill V. Lyon, i Johns. 
 Ch. 440. Ins. Co. V. Bell, 22 Barb. 
 54. Relfe V. Bibb, 43 Ala. 519. Sny- 
 der v. Stafford, n Paige, 71. PuUen 
 V. Agricultural Bank, 7 Free. Ch. 419. 
 
 ' Mason v. Payne, Walk. Ch. 459. 
 
 " U. S. V. Duncan, 4 McLean, 
 624. 
 
Ohap. XII.] 
 
 SALE OF REAL PROPERTY. 
 
 353 
 
 them, and therefore, when a debtor whose land is incum- 
 bered with a judgment lien sells and conveys a portion 
 ■of such land, the creditor who has a lien, by virtue of such 
 judgment, upon the land in the possession of the debtor 
 which is undisposed of, and also upon the land which has 
 been sold and transferred to a purchaser, is compelled in 
 •equity to take his satisfaction out of that property which 
 belongs to the debtor, in order that the creditor and the 
 purchaser may escape without injury.' Where a judgment 
 <iebtor aliens his lands to different persons, they being all 
 alike liable to the judgment,. and the sales are of the same 
 date, the lands in the hands of the different alienees may be 
 compelled to contribute an equal or pro rata amount of the 
 debt, in proportion to the value of their respective interests 
 in the land, that is, the land of each party is chargeable 
 only with so much of the lien as would fall to its share, if 
 the debt were equally proportioned among the whole of 
 the land, and this is the rule in some states instead of sell- 
 ing in the inverse order of alienation.' 
 
 ' Rollins V. Thompson, 21 Miss. 
 522. Ramsay's Appeal, 2 Watts, 228. 
 Bruen's Appeal, 7 W. & S. 269. Beesly 
 V. Lawrence, 11 Paige, 581. Hurd v. 
 Eaton, 28 111. 122. Ingalls v. Morgan, 
 10 N. Y. 178. Wright v. Nutt, I H. 
 Black. 136. Cheesbrough v. Millard, I 
 Johns. Ch. 40g. Stevens v. Coope, Id. 
 425. Hayes V.Ward, 4 Id. 123. Watson 
 V. Booth, 19 Johns. 486. James v. 
 Hubbard, i Paige, 235. Gouverneur v. 
 Lynch, 2 Id. 300. Hannegan v. Han- 
 nah, 7 Blackf. 353. Applegate v. Ma- 
 son, 13 Ind. 75. Hanley v. Mancius, 
 7 Johns. Ch. 174. Findlay v. U. S. 
 Bank, 2 McLean, 41. Lanoy v. Duke, 
 &c., 2 Atk. 440. Mogg V. Hodges, 2 
 Ves. 52. Alston v. Mumford, I Brock. 
 266. Geller v. Hoyt, 7 How. Pr. 265. 
 Johnson v. Tuttle, I Stock. 365. Jones 
 V. Dow, 18 Wis. 241. Sagitary v. Hyde, 
 I Vem. 405. Mills v. Eden, 10 Mod. 
 
 23. 
 
 488. Attorney-General v. Tyndall, 
 Amb. 614. Aldrich v. Cooper, 8 Ves. 
 388. Trimmer v. Bayne, 9 Id. 209. 
 Mechanics' Bank v. Edwards, I Barb. 
 271. Avery v. Pallen, I Free. 419. 
 Barnes v. Williams, 18 Miss. 113. 
 Henshall v. Wells, 9 Humph., 568. 
 Bennett v. Moorehouse, 42 N. Y. 189. 
 ' Fisher v. Clyde, I W. & S. 544. 
 Stillman v. Stillman, 22 N. J. Eq. 126. 
 Carpenter v. Koons, 20 Penn. 224. 
 Beverly v. Brooke, 2 Leigh, 425. Bar- 
 ney V. Myers, 28 Iowa, 472. Parkman 
 V. Welsh, 19 Pick. 241. Massie v. 
 Wilson, 16 Iowa, 391. Dickenson v. 
 Thompson, 8 B. Monr. 321. Job v. 
 O'Brien, 2 Humph. 34. Green v. Ram- 
 age, 18 Ohio, 428. Hughes v. Graves, 
 I Litt. 319. Morrison v. Beckwith, 4 
 Monr. 76. Burke v. Chrisman, 3 B. 
 Monr. 50. Po'storn v. Eubank, 3 J. J. 
 M. 445. 
 
354 ON EXECUTIONS. [Chap. XII. 
 
 So where there are several judgments wnich are liens, 
 upon property, and a levy and sale is made of a portion 
 of the property upon an execution issued upon a junior 
 j d g m ent, the unsold portion remaining will then be lia- 
 ble to the satisfaction of such senior judgments, and only in. 
 case there is not enough realized to satisfy such prior lien will 
 the land first sold be taken, when purchased in good faith.' 
 Where two purchase at an execution sale subject to a mort- 
 gage which is a common incumbrance on the land of both, 
 they stand on a level and must pay off the mortgage in pro- 
 portion to the value of their respective lots." 
 
 § 225. Sale of equity of redemption. The liability to a 
 sale under and by virtue of a writ of execution, of a mortgag- 
 or's right to redeem his property from the lien of a mortgage, 
 is the necessary result of the principles of law generally appli- 
 cable to mortgages in the United States, that the mortgagor, 
 until foreclosure, and as regards third persons, is the owner 
 of the land. That the mortgage is a mere lien which is not 
 subject to legal process. Mortgaged property is made sub- 
 ject to execution for the reason that it is generally mort- 
 gaged for less than its value, and", the right of redeeming 
 therefore is a valuable interest. Where an equity of redemp- 
 tion is levied on, the whole estate of the debtor is taken. The 
 practice of levying and selling equities of redemption is gen- 
 eral in the United States, but is only generally followed in the 
 New England States, where by far the greatest number of 
 cases are found. Under their practice, where a levy gives pos- 
 session and vests title in the creditor, a levy on an equity 
 gives the levying creditor an irredeemable estate, discharges 
 the debt, and annihilates the relation between the par- 
 ties as debtor and creditor to the extent of the amount 
 taken by the execution.' The levying creditor can not sus- 
 tain a petition for the sale of the mortgaged premises and 
 obtain a division of the proceeds among the interested par- 
 
 ' Wise V. Shepherd, 13 111. 41. ' Carpenter v. Koons, 20 Penn. 
 Hurd V. Eaton, 28 Id. 122. Marshall 222. 
 V. Moore, 36 Id. 321 ' Allen v. Burbank, 9 Conn. 151. 
 
Chap. XII.J SALE OF REAL PROPERTY. 355 
 
 ties. The mortgagee has a right to the whole of the mort- 
 gaged premises as security for his debt, and can not be com- 
 pelled to take a portion of the premises, either as security or 
 payment, nor submit to the uncertain result of a sale made 
 by order of court. The only remedy of any person holding or 
 interested in the equity of redemption is to redeem by pay- 
 ing the mortgagee the full amount of his debt in money.' 
 The right to seize and sell an equity, of redemption being a 
 right conferred by statute. Two or more equities can not be 
 legally sold together on one execution, for the debtor has the 
 right of redeeming one without the other. The equities are 
 several, the sales must be several.' 
 
 If the debtor does not redeem the equity of redemption 
 sold on execution within a year, his whole interest is lost, 
 and he can not redeerh the mortgage, though the purchaser 
 may.' The purchaser of an equity of redemption sold on 
 execution, has no attachable interest during the time given 
 by law during which it may be redeemed by the debtor.* In 
 selling a debtor's equity of redemption upon execution, the 
 sheriff acts in place of the debtor, and can not, therefore, sell it 
 to the debtor's wife, any more than the debtor himself could.' 
 The purchaser takes only such an interest in the property as 
 the debtor himself had.' If a judgment creditor levy on an 
 equity of redemption, as being expressly subject to a certain 
 mortgage, the creditor can not redeem other valid mortgages 
 and hold the land free from that mortgage, although it was 
 
 ' Spencer v. Waterman, 36 Conn. * Thornton v. Wood, 42 Me. 282. 
 
 342. ' Stetson V. O'SuUivan, 8 Allen, 
 
 ' Smith V. Dow, 51 Me. 21. Stone 322. 
 
 V. Bartlett, 46 Id. 438. Webster v. ' Crow v. Tinsley, 6 Dana, 402. 
 
 Foster, 15 Gray, 31. Fletcher v. Hartshorne v. Hartshorne, I Green 
 
 Stone, 2 Pick. 250. Johnson v. Ste- Ch. 348. Lloyd v. Lee, 45 111. 277. 
 
 yens, 7 Cush. 435. Lynch v. Gibson, N. C. T. R. 244. 
 
 ' IngersoU v. Sawyar, 2 Pick. 276. Deaton v. Gaines, 2 Car. L. 620. Bry- 
 
 Thornton v. Wood, 42 Me. 282. Dunn ant v. Morrison, 44 N. H. 288. Fos. 
 
 V. Rodgers, 43 111. 260. Lamb v. ter v. Mellen, 10 Mass. 421. Thorpe 
 
 Richardson, Id. 312. Farrell v. v. Ricks, i D. & B. Ch. 613. Dunbar 
 
 Parker, 50 Id. 274. Gushing v. v. Starkey, Ig N. H. 160. In re 
 
 Thompson, 34 Me. 496. Scrugham, Hopk. 88. 
 
356 ON EXECUTIONS. [Chap. XII. 
 
 fraudulent and void as to creditors.' Nor can he contest the 
 validity of the mortgage ; " but where there are two mort- 
 gages he is not estopped from contesting the validity of the 
 second.' Nor can the purchaser deprive other creditors 
 from levying upon the land itself.' Where the same equity 
 of redemption is simultaneously levied on by two creditors, 
 both executions may be levied on it, and each creditor will 
 be entitled to a moiety of the proceeds, without reference to 
 the relative amount of the debts. They hold not in shares 
 or proportion, but /J^r my et per tout. If the moiety which 
 can be held on either execution is more than sufficient to 
 ' satisfy one of the judgments, the surplus will go to the 
 other,' or after the sale of an equity on one execution, the 
 officer is bound to pay over the surplus money arising from 
 the sale to another officer having an execution against the 
 same debtor." 
 
 In Kentucky an equity can not be legally sold pending an 
 action of foreclosure on the mortgage ; if sold, the mortgagee's 
 title has priority.' 
 
 In Maine the creditor may require the mortgagee to state 
 the amount of his claim. The mode of levy upon an equity 
 must be determined by the nature of the debtor's title at 
 the time,' it is void and passes no title if there is no mort- 
 gage upon the land, or the mortgage debt paid, or the land 
 sold under the mortgage,' or if two equities are sold to- 
 gether," or where separate tracts are included in one mort- 
 
 ' Lord V. Sill, 23 Conn. 319. 144. Pillsbury v. Smith, 25 Me. 427. 
 
 ' Russell V. Dudley, 3 Mete. 47. Abbott v. Sturtevant, 30 Id. 40. 
 
 Taylor v. Dean, 7 Allen, 251. Goodal y. Rowell, 15 N. H. 572. 
 
 ' Stebbins v. Miller, 12 Allen, 591. Mechanics', &c. v. Williams, 17 Pick. 
 
 * Ballard v. Hinkley, 6 Me. 289. 438. Litchfield v. Cudworth, 15 Id. 
 
 Perry v. Hayward, 12 Cush. 344. 23. Freeman v. McGraw, Id. 83. 
 
 Very v. Richardson, 5 Allen, 107. ' Gardner v. Barnes, 106 Mass. 505. 
 
 Gerrish v. Mace, 9 Gray, 235. Pillsbury v. Smith, 25 Me. 427. 
 
 ' Durant v. Johnson, 19 Pick. 544. Dougherty v. Linthicum, 8 Dana, 194. 
 
 Sigourney v. Eaton, 14 Id. 414. Tufts v. Hayes, 31 N. H. 138. Perry 
 
 « Denney v. Hamilton, 16 Mass.402. v. Hayward, 12 Cush. 344. Brown v. 
 
 ' Addison v. Crow, 5 Dana. 279. Snell, 46 Me. 490. 
 
 •Dougherty v. Linthicum, 8 Dana, " Smithy. Dow. 51 Me. 51. Stone 
 
CH4.P. Xll.] SALE OF REAL PROPERTY. 357 
 
 gage, and a levy and sale is made, of the equity ol redemp- 
 tion on one tract only." 
 
 Where a mortgagor conveys his equity to a third person, 
 and it is afterwards sold on execution for a larger sum than 
 the amount of the execution, as the surplus belonged to the 
 mortgagor the purchaser from him can not redeem without 
 paying the whole of the purchase-money to the officer.' It may 
 be recovered by the mortgagor if the purchaser refuses to re- 
 lease upon tender of the amount made to him.' Where a judg- 
 ment is recovered on the mortgage note, the officer can sell 
 only the equity of redemption,' and such a sale extinguishes 
 the mortgage debt, no matter who is the purchaser. A pur- 
 chaser at a foreclosure sale of mortgaged premises, takes a 
 perfect title to the equity of redemption, subject to be de- 
 feated by a redemption according to statute.' If the mortgagor 
 is seized at the time of sale on execution, the sheriff's deed con- 
 veys to the purchaser the mortgagor's actual seizin or posses- 
 sion, in the same manner as though the mortgagor conveyed 
 his equity of redemption by a regular deed of conveyance, sub- 
 ject to the prior mortgage ; but if the mortgagor is not seized, 
 then the sheriff's deed passes, not seizin, but a right of entry. 
 Where the deed simply conveys or passes the right of entry, 
 it is not invaHd on account of adverse possession by a 
 stranger; if it were, creditors would have no power to take 
 the equity of redemption in payment of their debts where 
 the mortgagor is disseized. The entry of the sheriff could 
 not purge the disseizin, no entry being necessary to a sale. 
 The judgment creditor could not enter, having no right 
 before the levy ; and the purchaser has no interest after the 
 sale. The mortgagor could not be expected to enter for 
 the purpose of having the land taken from him by execution. 
 Therefore the deed of the officer must pass a seizin in law. 
 
 V. Bartlett, 49 Id. 438. Webster v. ' Hooker v. Hudson, 19 Pick. 
 
 Foster, 15 Gray, 31. 467- 
 
 ' ViTebster v. Foster, 15 Gray, 31. * McLure v. Wheeler, 6 Rich. Eq 
 
 Johnson v. Stevens, 7 Gush. 435. 343- 
 
 ' Gilbert v. Merrill, 8 Me. 295. ' In re Scrugham, Hopk. 88 
 
358 ON EXECUTIONS. [Chap. XII. 
 
 The purchaser may enter and then bring a writ of entry 
 •upon his own seizin ; or perhaps before entry he might bring 
 an action, founded upon the seizin of the mortgagor to 
 whose rights he has succeeded. The sale will not operate 
 as an ouster of the mortgagee who has previously entered 
 under his mortgage. It simply, passes all the rights of the 
 mortgagor ; and the entry for the purpose of seizing and 
 levying upon such right is no trespass.' The purchaser of 
 an equity can aver no seizin of title against any other per- 
 son than the execution debtor or his immediate tenants or 
 assigns," A sale of the equity of redemption and assign- 
 ment of the rents and profits thereof until foreclosure and 
 sale to a creditor, can not operate as a fraud upon the mort- 
 gagee, whose rights are secured, and may be enforced by 
 foreclosure.^ Where an officer conveys an equity sold on 
 execution, he covenants only for the regularity of his own 
 proceedings. 
 
 § 226. The effect of a sale of real property. In some 
 States, a sale of land, in the absence of an express stipula- 
 tion to the contrary, discharges all prior liens against the 
 title of the former owner. This is the general rule, founded 
 upon the universal practice of courts, but if the sale be made 
 with an express condition that the purchaser shall take, 
 subject to the lien of a mortgage which would otherwise 
 be discharged, the courts will enforce the contract.* It di- 
 vests all liens definite and certain in their amount, whether 
 general or specific, except in peculiar cases, and with the 
 exception of prior mortgages. The proceeds are to be 
 fairly and faithfully applied to the discharge of liens, accord- 
 ing to priority. By the sale the money is substituted for 
 the property ; it discharges all prior judgment liens, and the 
 proceeds are applied to judgments in the order of their pre- 
 ference; it divests all junior and subsequent liens, and a 
 lien creditor who fails to assert his claim to the proceeds of 
 
 ' Shepard v. Pratt, 15 Pick. 32. » Dewey v. Latson, 6 Cal. 609. 
 
 ' Bryant v. Morrison, 44 N. H. * Schall's Appeal, 40 Penn. 170. 
 
 288. Forster v. Mellen, 10 Mass. 288. Zeigler's Appeal, 35 Id. 173. 
 
Chap. XII.] SALE OF REAL PROPERTY. 359 
 
 the sale loses his right to resort to the land,' but does not 
 divest them as to the equitable liens on the surplus, if there 
 is any ; ' it does not divest the lien gf a judgment against 
 thQ debtor, unless the purchase money is paid;° it carries 
 all the appurtenances with it,* and satisfies the judgment to 
 the amount realized on it ; ° if the plaintiff is the purchaser 
 it extinguishes his specific lien." The rule that an after-ac- 
 quired title shall enure to grantee, does not apply to sales 
 on execution.' A sale by a bankrupt court does not divest 
 the lien of a prior judgment, and a sale under such prior 
 judgment vests a superior title in the purchaser to that of a 
 purchaser from the assignee ; ' it converts a trust into a 
 legal estate ; ° it substitutes the purchaser in place of the 
 judgment debtor, not only at the time of sale, but as to his 
 title and interest at the date of the judgment." 
 
 § 227. What title a purchaser obtains. A sale on an 
 ordinary execution issued upon a judgment which is a general 
 lien on all the property of a debtor, vests only the interest 
 of the debtor and all his interest at the time the judgment 
 lien attaches, or such as the debtor might have conveyed 
 hy a suitable instrument for a valuable consideration. It is 
 limited to and can rise no higher than that of the debtor 
 
 ' Branner v. Handy, 18 La. 537. Smith, 2 Binn. 146. Reed v. Reed, I 
 
 Fernandez v. -Bein, i Id. 32. Willis W. & S. 235. Custer v. Detterer, 3 Id. 
 
 V. Willis, 22 Id. 447. Anschutz v. 28. Presbyterian, &c. v. Wallace, 3 
 
 McCIellan, 5 Watts, 487. Matlack v. Rawle, 109. Mode's Appeal, 6 W. & 
 
 Deal, I Miles, 254. Sauvinet v. Land- S. 280. 
 
 .reaiix, i La. 2ig. Steamboat v. Smith, ' Stebbins v. Walker, 2 Green, 90. 
 
 10 Mo. 527. Schmidt v. Gatewood, 2 ' Creigh v. Shalla, 9 W. & S. 82. 
 
 Rich. Eq. 162. Stewartson v. Watts, * Wright v. Chestnut, &c. Co., 45 
 
 r8 Watts, 392. Spoor v. Phillips, 27 Penn. 475. 
 
 Ala. 193. In re Elwood, i Denio, 633. " Hughes v. Streeter, 24 111. 647. 
 
 Stoever v. Rice, 3 Whart. 21. Farm- ' Chavener v. Wood, 2 OregOH, 
 
 firs' Bank v. Wallace, 3 Harr. 370. 82. 
 
 Finney v. Pennsylvania, I Penn. 240. ■" Kenyon v. Quinn, 41 Cal. 325. 
 
 McGrew v. McLanahan, Id 144. Mc- ' Galbraith v. Fisher, 22 Penn. 406. 
 
 Lanahan v. Wyant, Id. 96. Milliken McCanre v. Taylor, 10 Gratt. 580. 
 
 V. Kendig, 2 Id. 477. Willard v. Nor- ' Nelson v. Hughes, 2 Jones Eq. 
 
 ris, 2 Rawle, 56. Miller v. Mussel- 33. 
 
 man, 6 Whart. 35/. Bantleon v. " Martin v. Martin, 7 Md. 368. 
 
360 ON EXECUTIONS. [Chap. XII, 
 
 a stream can not rise higher than its fountain ; a greater 
 estate than the debtor owns can not be conveyed, and what 
 a debtor can not selLor convey, an officer acting under au- 
 thority of law can not sell or convey for him, and the title 
 passes subject to all prior existing claims which by law are 
 liens on the property. A purchaser under an execution 
 takes all that belongs to the debtor, and nothing more. 
 Unless the lienholders are parties to the action, their interest 
 can not be sold, but the land as a matter of course is sold 
 subject to their claims, or they must be first paid in order 
 to vest a good title in the purchaser.' The judgment 
 operates as a charge upon the beneficial interest of the 
 debtor, and only attaches upon what is at the time, or 
 afterwards becomes, his property. He takes the property 
 subject to every incumbrance to which it was subject in 
 the hands of the debtor. If the debtor has a legal estate 
 subject to an equity, the judgment will be a charge upon 
 the estate subject to the same equity. In the case of 
 an equitable estate it will be a charge upon the equitable 
 estate," and takes it discharged of every claim and title, 
 
 ' Ilelfiich V. Weaver, 6l Penn. lace v. Bartle, 21 Iowa, 346. Leporli 
 
 385- , V. Todd, 3 Vroom, 124. Moraii v.. 
 
 " Helfrich v. Weaver, 61 Penn. 385. Shaw, 23 La. 379. McCann v. White, 
 
 Riddle v. Bryan, 5 Ohio, 55. Camp- 49 Mo. 96. Miller v. Wilson, 32 Md. 
 
 bell v. Woohidge, 6 Bush, 321. Wat- 297. Miller v. Finn, I Neb. 254. 
 
 kins V. Wassell, 15 Ark. 73. Lloyd v. Walke v. Moody, _ 65 N. C. 599.. 
 
 Connover, I Dutch. 47. Hersey v. Johnson v. Payne, I Hill S. C. in. 
 
 Turbett, 27 Penn. 418. Campbell v. Wilkerson v. Burr, 10 Geo. 117. Mc- 
 
 Lawe, 9 Md. 500. Hornesley V. Hogue, Lovith v. Rathbone, ig Ohio, 21.. 
 
 4 Jones L. 481. Arendale v. Morgan, Dudley v. Cole, I D. & B. Ch. 429. 
 
 5 Sneed, 703. Smith v. Knight, 20 Flynn v. Williams, i Ired. 509. Reed 
 N. H. 9. West, &c. Bank v. Arm- v. Kinnaman, 8 Id. 13. Coos Bank v. 
 strong, 40 Penn. 278. The Gazelle, X Brooks, 2 N. H. 148. Andrews v„ 
 Sprague, 378. Patterson v. Anderson, Murphy, 12 Geo. 431. Martin v. Mar- 
 40 Penn. 359. Ball v. Pratt, 36 tin, 7 Md. 368. Bartlett v. Harlow^ 
 Barb. 402. Johnson v. Crawley, 25 12 Mass. 348. Starke v. Harrison, 
 Geo. 316. Harper v. Tapley, 35 Miss. 5 Rich. 7. Lull v. Mathews, 19 Vt. 
 506. Horton v. Davis, 26 N. H. 495. 322. Stevens v. King, 21 Ala. 429. 
 Hoffman's Appeal, 44 Penn. 5. Mor- McClelland v. Herron, 4 Penn. 63. 
 Ion V. Welborn, 21 Tex. 772. Wal- Coleman v. Hair, 22 Ala. 596. San- 
 
Chap. XII.] SALE OF REAL PROPERTY. 361 
 
 whether under an unrecorded deed or a mere equity of 
 which he had no notice at the time of purchase, and which 
 would be invalid as against ordinary purchasers.' In fore- 
 closure cases the general rule is to make every claimant and ' 
 lienholder interested in the property a party to the action. A 
 sale upon a decree is made on a special execution, specially 
 commanding the officer to sell the property specified in the 
 decree ; and on such a sale, if all the parties interested, having 
 claims or liens on the mortgaged premises are made parties 
 the property is sold and the purchaser obtains a good title, the 
 proceeds are substituted for the property, and applied in ac- 
 cordance with the liens, as set forth in the judgment or 
 decree. A sale is not made subject to liens unless so ordered 
 by the court. A purchaser obtains not only such title as the 
 debtor bad, but such as he had when divested of all incum- 
 brances ' Where persons have in good faith acquired liens 
 upon property prior to a levy, there is no such privity 
 between them and the execution debtor at the time of levy, 
 as can in any respect make his rights the measure of theirs, as 
 
 born V. Kittredge, 20 Vt. 63a. Tay- Brown, 2 Blackf. 295. Gray v. Tap- 
 lor V. Eckford, 19 Miss. 21. Islay v. pan, Wright (O.) 117. Price v. Sykes, 
 Stewart, 4 D. & B. 160. Brown v. I Hawks, 87. Kellam v. Janson, 17 
 Wood, 6 Rich. Eq. 155. Daniel v. Penn. 467. Mickles v. Haskins, is 
 HoUingshead, 16 Geo. 196. Shiras v. Ala. 619. Fosdick v. Risk, 15 Ohio, 
 Craig, 7 Cranch, 48. Pensonneau v. 84. Pierce -t. Potter, 7 Watts, 475. 
 Bleakley, 14 111. 15. Harsh v. Morgan, Hutchins v. Ebeler, 46 Cal. 557. 
 I Kans. 302. Oberthier v. Stroud, 33 ' Wood v. Chapin, 13 N. Y. 509. 
 Tex. 522. Rakestraw v. Hamilton, 14 Waldo v. Russell, 5 Mo. 387. Den 
 Iowa, 147. Lloyd v. Lee, 45 111. 277. v. Rickman, i Green N. J. 43. Scrib- 
 Dunb^r v. Starkey, 19 N. H. 160. ner v. Lockwood, 9 Ohio, 184. Ohio, 
 Thorp V. Ricks, l D. & B. Ch. 613. &c. Co. v. Ledyard, 8 Ala. 866. Jack- 
 Deaton v. Gaines, 2 Car. L. 620. son v. Town, 4 Cow. 599. Jackson 
 Lynch v. Gibson, N. C. T. R. 244. v. Post, 9 Id. 120. Jackson v. Cham- 
 Crow V. Tinsley, 6 Dana, 402. Harts- berlain, 8 Wend. 620. Orth v. Jen- 
 horne v. Hartshorne, i Green Ch. 348. nings, 8 Blaokf. 420. Heistner v. 
 Gittens v. Lowry, 15 Geo. 336. Giles Fortner, 2 Biiln. 45. Marin's Appeal, 
 V. Palmer, 4 Jones L. 386. Hart v. I Penn. 24. Kellam v. Janson, 17 Id. 
 Lindsay, l Walk. Ch. 144. Garretson 467. 
 
 r. Call, r H. & J. 370. Sands v.Hil- ' Walton v. Hargroves, 42 Miss. 18. 
 
 dxeth, 14 Johns. 493. Frakes v. McGee v. Smith, i Green (N. J.) 462. 
 
363 ON EXECUTIONS. [Chap. XII. 
 
 between them and a purchaser under an execution.' A pur- 
 chaser and his privies have no title at all as against a pur- 
 chaser at an execution sale under a prior judgment against 
 the vendor, for it is wholly divested by the sale." Where 
 there 'are several judgments and a levy is made on an execu- 
 tion which is issued on a junior judgment, and afterwards a 
 levy and sale is made on an execution issued on the oldest 
 judgment, the sale conveys the title as it was at the rendi- 
 tion of the first judgment.' In Iowa a judgment is a lien for 
 ten years, while execution may issue in twenty years. If an 
 execution issue upon the judgment within the ten years, it 
 passes the title as it was at the date of the judgment ; but 
 if the execution does not issue until after a lapse of ten 
 years, a sale passes title as it is at the date of the levy ; * and 
 this is the rule in all cases where a judgment is a lien for a 
 specified time. A sale made on one of several installments of 
 a judgment payable in installments, discharges the lien of th<; 
 subsequent installments, and vests title in the purchaser. The 
 presumption of law is, that being the highest bidder, he has 
 paid full price for the land.' Where there is a mistaken 
 entry of satisfaction upon a senior judgment, and a sale is 
 made under a junior execution, the purchaser takes the 
 property free from the senior judgment, the record being as 
 to the purchaser conclusive.' On a judgment equal in point 
 of time with a mortgage which is an existing lien on the 
 land, and the purchaser has no proof of the entire payment, 
 the estate will pass discharged of the mortgage lien.' So 
 where two mortgages are given on the same day their equi- 
 ties are equal and a sale on either extinguishes the other.' 
 A levy and sale of a tract of land as being in the possession 
 
 ' ' Nail V. Granger, 8 Mich. 450. McLean, 3 Green (Iowa) 363. Rogers 
 
 Gittens v. Lowry, 15 Geo. 336. Rake- v. Dickey, 6 111. 636. 
 
 straw V. Hamilton, 14 Iowa, 147. 4 Stahl v. Roost, 34 Iowa, 475. 
 
 ' Kellam-v. Janson, 17 Penn. 467. Hewson v. Dygert, 8 Johns. 333. 
 
 Nickles v. Haskins, 15 Ala. 6ig. » Coyne v. Souther, 6i Penn. 455. 
 
 2 Roberts v. Boylan, 24 Geo. 40. ' Magaw v. Garrett, 25 Penn. 319. 
 
 Rankin v. Scott, 12 Wheat. 177. Kirk ' Duncan v. A., &c. Co., 52 Pena 
 
 V. Vonberg, 34 111. 440. Marshall v. 253. 
 
Chap. XII.] SALE OF REAL PROPERTY. 363 
 
 of a certain person, containing a particular number of acres, 
 vests the whole tract in the purchaser, though containing a 
 much greater number of acres.' A levy and sale of an un- 
 divided moiety passes only that quantity, though the debtor 
 owns the whole.^ 
 
 § 228. Title which passes where the redemption 
 LAWS are in force. While a purchaser at an execution sale 
 is subrogated to the rights of the debtor, he does not, in those 
 States where the redemption laws are in force, obtain the 
 debtor's title at the time of the sale. The estate of the pur- 
 chaser is an' equitable conditional estate; which continues 
 until the expiration of the statutory time allowed for redemp- 
 tion has expired. Until the delivery of the deed he has only 
 .a lien upon the property, in the nature of a mortgage lien. 
 Until such conveyance, the title of the purchaser is inchoate. 
 By the simple purchase he acquires no estate in the land, 
 but a right to an estate which may be perfected by convey- 
 ance ; the legal estate remains in the debtor, who, prior to 
 the execution 6f the deed is entitled to possession, and to 
 the rents and profits. After the expiration of the time for re- 
 demption, the judgment debtor then has but a barren legal 
 title, liable to be divested at any time by the execution and 
 delivery to the purchaser of a conveyance by the officer who 
 made the sale. Upon failure to redeem within the statutory 
 period, the title becomes absolute.' . 
 
 A mortgagor, after the sale, has the right to the use and 
 possession of the mortgaged premises until the execution of 
 the sheriff's deed ; but no right to despoil the property of 
 its fixtures. The deed of the sheriff takes effect by relation 
 at the date of the mortgage, and passes fixtures subsequently 
 annexed by the mortgagor.* 
 
 ' Zeigler v. Houts, 1 W. & S. 533. mings v. Coe, 10 Id. 529. Curtis v. 
 
 Buckholder v. Sigler, 7 Id. 154. Millard, 14 Iowa, 128. Smith v. Col- 
 
 ' McCormick v. Harvey, 9 Watts, vin, 17 Barb. 157. Schermerhorn v. 
 
 482. Merrill, I Id. 511. Vaugh v. Eli, 4 
 
 » Chandler v. Sawtelle, 22 Vt. 318. Id. 157. Blanco v. Foote, 32 Id. 535. 
 
 Page V. R 3gers, 31 Cal. 293. Cum- * Sands v. Pfeiffer, 10 Cal. 258. 
 
364 ON EXECUTIONS [Chap. XII. 
 
 While a purchaser may pay no money or take no deed, he 
 has an insurable interest in the property;" and such an 
 inchoate right as to make him a necessary party to a suit 
 of foreclosure.^ A right of dower is not affected by the sale 
 of a husband's interest in lands.' "A debtor's life estate in 
 land belonging to his wife, passes to the creditor in the New 
 England States by a levy of the fee." If the land is in the- 
 adverse possession of a debtor, it passes by sale.' The inter- 
 est of a debtor in the premises on which a building is erected is 
 covered by a mechanics' lien, and may be sold by virtue of it 
 on execution against the debtor in favor of the mechanic, and 
 in case the debtor has no interest in the land, the purchaser 
 may enter on the land and remove the building." Where it 
 is sold as the property of the purchaser, it does not divest 
 the lien of a judgment against the debtor, unless the pur- 
 chase money is paid and a deed executed.' Where a trust 
 estate is sold it is converted into a legal estate in the hands 
 of the purchaser.' Where a judgment is rendered for the 
 unpaid purchase money of real estate in favor of the original 
 owner, and he causes execution to issue, and a sale made of 
 the property, it is sold clear of and free from any claim of his 
 for the purchase money. By his proceedings he elects to 
 sell just such a title as his grantee or vendee would have ob- 
 tained from him on compliance with his contract and the 
 payment of the purchase money. Having elected to sell the 
 property, he is bound by it, and the purchaser at the execu- 
 tion sale takes all the title to the property, both legal and 
 equitable.' Where the property is incumbered by a vendor's 
 
 ' iEtna Ins. Co. v. Miers, 5 Sneed, ' Nelson v. Hughes, 2 Jones Eq. 33. 
 
 139' ' Fosdick v. Risk, 15 Ohio, 84. 
 
 " N. Y. &c. Co. V. Bailey 3 Edw. Simons v. Estall, 19 Penn. 439. Mc- 
 
 Ch. 416. Gee v. Mellon, 23 Miss. 585. Maho- 
 
 ' Nance v. Hooper, 11 Ala. 552. ney v. Horan, 53 Barb. 29. Freeby v. 
 
 * McKeen v. Gammon, 3 Me. 187. Tupper, 15 Ohio, 467. Bradley v. 
 
 Howe V. Wildes, 34 Me. 566. O'Donnell, 32 Penn. 281. Horbach 
 
 ' Scheetz v. Fitzwater, 5 Penn. 126. v. Riley, 7 Id. 81. Love v. Jones, 4 
 
 ' Dean v. Pyncheon, 3 Chand. Watts, 465. P., &c. Co. v. Jones, 59 
 
 (Wis.) 9. Penn. 433. Kurtz's Appeal, 26 Penn. 
 
 ' Creigh v. Shatto, 9 W. & S. 82. 465. 
 
■Chap. XII. SALE OF REAL PROPERTY. 365 
 
 lien for the purchase money, the purchaser does not take the 
 defendant's interest, but only a lien for the purchase money, 
 and the interest thereon, which he may convert into a good le- 
 gal title by removing such incumbrance or lien." A sale of land 
 in possession of the debtor's tenant operates as an assignment 
 ■of the lease, so far as the vendee's rights to the rents are 
 concerned.' A levy and sale of the, interest of a tenant in 
 common, as specified by metes and bounds, passes his indi- 
 vidual interest in the property specified.' But does not in 
 the New England States under an extent." Although a 
 sale of the lands of a tenant in tail does not pass the heir's 
 title, yet such sale divests the wife's title to dower." A sale 
 of the right, title and interest of a debtor in mortgaged 
 premises passes his right of redemption, not the fee.' A sale 
 under an execution on a judgment against an executor de 
 bonis testatoris conveys a good title to the purchaser ; the 
 title of the heirs is divested.' If a valid lease is made prior 
 to the judgment and sale thereon, the purchaser takes sub- 
 ject to the lease." If the debtor holds by a certificate of loca- 
 tion and survey, it precludes his heirs from claiming an in- 
 terest therein, upon the issue of a patent upon the same 
 certificate." The patent does not create any additional title. 
 An after-acquired legal title does not enure if subsequently 
 acquired." Where land bounded on a highway is sold, it 
 carries the fee in the land to the center of it, if the debtor is 
 the owner of the land, and there is no controlling language in 
 the description." The debtor has but a life estate in the land 
 — the purchaser holds in subordination, not in hostility to the 
 reversioner." Where the judgment is obtained before the 
 
 ' Hinton v. Mitchell, I Duvall, 382. ' Rumball v. Murray, 3 T. & R. 298. 
 
 ' Reynolds v. Lathrop, 7 Cal. 43. Etter v. Smith, 5 Ark. 90. Field v. 
 
 ' Treon v. Emerick, 6 Ohio, 391. Howell, 6 Geo. 423. 
 
 * French v. Lund, i N. H. 42. • Morton v. Welborn, 21 Tex. 772. 
 
 ' Elliott V. Pearshall, 3 Pa. L. J. " Pratt v. Phillips, I Sneed, 543. 
 
 R. 157. " Winslow V. Allen, 48 Me. 249. 
 
 ' Coggswell V. Warren, i Curt. C. C. " Swift v. Agnes, 33 Wis. 228. 
 
 223. Burhans v. Van Zandt, 7 N. Y. 523, 
 
 ' Worthy v. Hawes, 8 Geo. 234. Jackson v. Scott, 18 Johns. 94. 
 
366 ON EXECUTIONS. [Chap. XII. 
 
 marriage of the debtor, but the sale does not take place 
 until afterwards, the purchaser takes it free from the right 
 of dower, as it was at the time when the lien of the judg- 
 ment attached." Where the sale is made on two executions, 
 one on a junior and one on a senior execution, although the 
 sale on the junior judgment was made first, the purchaser 
 at a sale on the oldest judgment holds the land in prefer- 
 ence to the purchaser on the junior judgment.' So where 
 a sale is privately made by judgment creditors, and the pro- 
 ceeds thereof are distributed among them, it does not 
 divest the lien of a judgment, and a junior creditor may levy 
 on it and sell it, notwithstanding such private sale.* In 
 Louisiana the purchaser, in order to compel the officer to 
 make a good title, must either pay the purchase money, or 
 offer to comply with his bid ; if his bid is insufficient to dis- 
 charge prior liens on the property, there can be no sale ; * 
 or if the party entitled to the proceeds is insolvent, the 
 purchaser may retain enough of the purchase money to 
 satisfy the prior claims.' 
 
 § 229. Execution. — Sales as affected by the 
 STATUTE OF FRAUDS. Sales made by officers under final 
 process, in the absence of any memorandum made by the 
 officer, are within the statute of frauds.' The proper mode 
 of procedure is for the officer to indorse on the execution, 
 or make a memorandum of the date of sale, the amount of 
 the sale, and the name or names of the purchasers. 
 ■ An officer's return of the sale on execution is a sufficient 
 
 ' Sandford v. McLean, 3 Paige, 117. " Remington v'. Linthicum, 14 Pet. 
 
 In re Howe, I Id, 125. g2. Hart v. Rector, 13 Mo. 497. 
 
 ' Hall V. Jones, 21 Md. 439. Simonds v. Catlin, i Caines, 61. 
 
 2 Ramsay v. Sims, 12 Rich. Eq. Jackson v. Catlin. 8 Johns. 520.* 
 
 43°. Chapman v. Harwood, 8 Blackf. 82. 
 
 * Branner v. Hardy, 18 La. 337. Hadden v. Johnson, 7 Ind. 394. Bar- 
 Fernandez V. Bein, i La. Ann. 32. ney v. Patterson, 6 H. & J. 182. 
 Passebon v. Prieur, Id, 10. Theard Spencer v. Pease, 10 G, & J. 294. 
 V. Prieur, Id, 16. Estep v. Weems, 6 Id. 303. Ennis v. 
 
 ' Sauvinet v. Landreaux, I La. Ann. Waller, 3 Blackf, 472, 
 319. 
 
Chap. XII.] SALE OF REAL PROPERTY. 367 
 
 memorandum thereof in writing to bind the purchaser 
 under the statute of frauds.' 
 
 A sale before any person authorized under the decree of a 
 court of equity, will be carried into execution, although the 
 purchaser did not subscribe any agreement. The judgment 
 of the court in confirming the purchase takes it out of the 
 statute." 
 
 Although lands are sold by authority of law, the statute re- 
 quires that a contract of sale, or some memorandum or note 
 thereof, should be in writing, and signed by the party to be 
 charged, or by some person lawfully authorized to sign it in 
 his behalf.' But the memorandum necessary to take- the 
 case out of the statute may be signed by an authorized 
 agent, after as well as at the time of the sale.' The officer's 
 return upon an execution, in the performance of his official 
 duty, in a matter in which he has no personal interest, and 
 which would by statute be valid even if made after the 
 return, day, is such a memorandum.* 
 
 The sheriff is the agent of the purchaser, and may sign 
 his name to a memorandum of the sale, so as to satisfy the 
 statute.' 
 
 The judicial sale takes it out of the statute.' The execu- 
 
 ' Sanborn v. Chamberlin, loi Mass. • Sanborn v. Chamberlin, loi Mass. 
 
 4og. Remington v. Linthicum, 14 409. Wiley v. Roberts, 31 Mo. 212 
 
 Pet. 92. Hanson v. Barnes, 3 Gill & Stewart v. Garvin, 31 Id. 36. Endi- 
 
 J. 359. Barney v. Patterson, 6 Harr. cott v. Perry, 22 Miss. 144. Hage- 
 
 & J. 204. Hand v. Grant, 13 Miss, man v. Johnson, 35 Barb. 200. Rein- 
 
 508. Robinson v. Garth, 6 Ala. 204. ington v. Linthicum, 14 Pet. 92. 
 
 ^ Att,-Gen. v. Day, l Ves. 218. Hand v. Grant, 13 Miss. 508. 
 
 Sanborn v. Chamberlin, loi Mass. Christie v. Simpson, I Rich. 407. 
 
 413. Fulton V. Moore, 25 Penn. Secrist v. Twitty, I McMuUan, 255. 
 
 468. ' Robinson v. Garth, 6 Ala. 204. 
 
 ' Bent V. Cobb, 9 Gray, 397. Simpson v. Pettus, 7 Id. 453. Wiley 
 
 Simonds v. Catlin, 3 Caines, 61. v. Robert, 31 Miss. 212. Endicott v. 
 
 Jackson v. Catlin, 2 Johns. 248. Perry, 22 Miss. 144. 
 
 Robinson v. Garth, 6 Ala. 204. ' Hutton v. Williams, 35 Ala. 503. 
 
 Evans v. Ashley, 8 Mo. 177. Att.-Gen. v. Day, i Ves. Sen. 218. 
 
 * Lerned v. Wannemacher, 9 Allen, Emley v. Drum, 36 Penn. 123. King. 
 
 416. y. Gunnison, 4 Penn. 171. Boykin v. 
 
368 ON EXECUTIONS. [Chap. XII. 
 
 tion of the certificate of sale is sufficient to take it out of 
 the statute in some States,' a confirmation of the sale in 
 others.' 
 
 A deed is necessary to divest the debtor's title.' The 
 officer cannot be made liable without the proper entry in his 
 sale book, or such a clear and explicit admission in writing 
 as will stand in place of such entry.' 
 
 § 230. The application of the doctrine of estoppel 
 TO sales. Equitable estoppels apply where the proceeds 
 received arise from a sale by authority of law, as well as 
 where they spring from the act of the party ; and the applica- 
 tion.of this principle does not depend upon any supposed dis- 
 tinction between a void and a voidable sale. As where a 
 party receives his share of the proceeds of a sale, when by 
 -statute his title is not affected, he affirms the sale and cannot 
 dispute the title of the purchaser,' or where an officer allows 
 property to be sold and receives the proceeds, he cannot re- 
 levy on the property sold, on another writ.' Where a debtor 
 stands by and permits an officer to sell his property on execu- 
 tion as the property of another,' or allows a sale to be made on 
 a dormant judgment,' or induces a stranger to purchase, and 
 
 Smith, 3 Munfd. 102. Trice v. Pratt, * Daniel v. Hailey, 3 Strobh. 231. 
 
 I D. & B. Eq. 626. Fulton v. Moore, Chapman v. Harwood, 8 Blackf. 682. 
 
 -25 Penn. 468. Smith v. Arnold, 5 Ma- ' Smith v. Warden, Ig Penn. 424. 
 
 -son, 420. Nichol v. Ridley, 5 Yerg. * Thurley v. O'Connell, 48 Mo. 27. 
 
 63. Pennington v. Chandler, 5 Har- ' Reed v. Heasley, 2 B. Mon. 254. 
 ring. 394. Simonds v. Catlin, 2 Caines, Epley v. Withero-w, 7 Watts, 163. 
 
 64. Hallock V. Guy, 9 Cal. 181. Carr v. Wallace, 7 Watts, 394. Mayor 
 Jenkins i. Hogg, 2 Cons. R. (S. C.) v. Deer, 4 J. J. Marsh, 585. Wood v. 
 821. Tate V. Greenlee, 4 Dev. 149. Colvin, 2 Hill, 556. Jackson v. Cald- 
 
 ' Armstrong v. Vrooman, 11 Minn. well, i Cow. 622, Sanderson v. Bal- 
 
 220. Nat. &c. Co. V. Loomis. ii lance, 2 Jones Eq. 322. Wendell v. 
 
 Paige, 433. Hand v. Grant, 13 Miss. Van Rensselaer, i Johns. Ch. 354. 
 
 508. Gaskill V. Morris, 7 W. & S. 39. Herm. on Estoppel, ch. xv. p. 409. et 
 
 ' King V. Gunnispn, 4 Penn. 171. seq. 
 
 Arnold v. Smith, 5 Mason, 420. Hut- » Summers v. Moore, 2 McLean, 
 
 ton V. Williams, 35 Ala. 503. Bozza 59. Armstrong v. Jackson, I Blackf. 
 
 V. Rowe, 30 111. 198. 310. Childs v. McChesney, 20 Iowa, 
 
 « Hawley v. Cramer, 4 Cow. 717. 943. Willard v. Whipple, 40 Vt. 
 
 Hadden v. Johnson, 7 Ind. 394. 219. 
 
Chap. XII.] SALE OF REAL PROPERTY. 369 
 
 the proceeds are applied to the payment of his debt,' or 
 when he can avoid a sale but consents to it," or the officer 
 acts without authority and he consents to it," or where the 
 debtor himself points out the property to be levied on 
 and sold,' or executes a deed to the purchaser wherein- 
 he conveys and recognizes the sheriff's sale," estops the 
 debtor from setting up any claim to the property or from 
 disputing the purchaser's title. The least act of waiver by 
 the debtor of the irregularity of an execution issued after 
 the statutory period, or acquiescence or action on his part, 
 under it, as a valid and regular process, is sufficient to pre- 
 clude him from afterwards objecting to it as irregular.' Nor 
 can he object to a want of appraisement when he refuses to 
 •choose one and tells the officer that there is no appraise- 
 ment necessary.' Where a party uses property as her own, 
 afterwards marries and treats the property as her husband's, 
 she can not object to its being taken for her husband's 
 debts ■' nor can a debtor set up an outstanding title to defeat 
 that of the purchaser." A creditor who has a levy and sale 
 set aside on the ground that the debtor has no title to the 
 property can not claim it thereafter by virtue of such seizure 
 and sale ; " nor can a purchaser question the validity of the 
 decree," or quash for irregularity of the sale," or failing to 
 
 ' Spragg V. Shriver, 23 Penn. 282. 38. Dunlap v. Cook, 18 Penn. 404. 
 
 ' McClure V. McCormick, 5 Blackf. Massey v. Thompson, 2 N. & Mc. T05. 
 
 I2g. Ness v. Van Swearingen, 10 S. Harris v. Doe, 3 Ind. 494. Richards 
 
 & R. 144. Crawford v. Ginn, 35 Iowa, v. Alden, i Grant C. 347. Jackson v. 
 
 543. Busch, 10 Johns., ' 223. O'Neal v. 
 
 ' Lay V. Neville, 25 Cal. 545. Duncan, 4 MoCord, 246. Cooper v. 
 
 * Cornelius v. Buford, 28 Tex. 202. Galbraith, 3 Wash. 500. McDonald 
 
 * Draper v. Draper, 5 Harring. 358. v. Badger, 23 Cal. 399. Farnum v. 
 » Callin V. Merchants' Bank, 36 Vt. Perry, 43 Vt. 473. Hale v. Miller, 5 
 
 572. Mariner v. Coon, 16 Wis. 465. Vt. 211. Snavely v. Wagner, 3 Penn. 
 
 Gillett V. Edgar, 22 Iowa, 293. 275. Hubbert v. McCuUum, 6 Ala. 
 
 ' Desplate v. St. Martin, 17 La. 91. 221. Hailey v. Cuney, 3 Strobh. 49. 
 
 * Quick V. Staines, i B. & B. 263. Jannson v. Tudor, 3 B. Monr. 355. 
 
 ' Strickey v. Crosswell, 12 Rich. Eq. '" Bacon v. Kimmell, 14 Mich. 201. 
 
 273. Miller v. Wilson, 32 Md. 297. " Howe v. Whited, 21 La. 495. 
 
 McKnight v. Gordon, 13 Rich. Eq. Thomas v. McKay, 5 Bush, 475. 
 
 222. Sumner v. Palmer, 10 Rich. L. " McKinneys v. Scott, i Bibb, 155. 
 
 24 
 
370 , ON EXECUTIONS. [Chap. IXI. 
 
 object to the confirmation of the sale by the court can not 
 complain of the sale nor resist payment of the purchase- 
 money ; ' nor deny the validity of an incumbrance if the sale 
 is made subject to it ;" or where a purchaser is informed, by 
 the attorney of a party interested, that the property will be 
 sold free from such party's claims, he can not afterwards levy 
 on the property, and the officer levying is a trespasser.' But 
 where the writ is void, and confers no power whatever upon 
 the officer, there is no estoppel.' Filing a bill of injunction 
 waives any irregularity.' Where a vendor selling property 
 brings suit to recover the purchase-money, and recovers a 
 judgment for the amount due, issues execution and causes a 
 levy and sale to be made of the property, the officer sells it 
 free from any claim of his for the purchase-money, he elects 
 to sell just such a title as his purchaser would have obtained 
 from him had he complied with his contract of purchase. 
 Having thus made his election to sell the property he is 
 bound by it." 
 
 §231. How THE QUANTITY SOLD IS ASCERTAINED. There 
 is a difference between the sale of the property itself and an 
 interest therein, in the sale of the property it is purchased 
 with all its legal incidents, in the sale of the defendant's 
 interest only the interest that the debtor could enforce 
 passes by the sale.' In order that the quantity of land which 
 passes to a purchaser at an execution sale may be ascertained, 
 reference must be had to levy ; the extent of the levy is the 
 quantity ; when the return is intelligible, and ascertains with 
 reasonable precision the tract taken, no evidence in contra- 
 diction is admissible, the construction of the return and the 
 
 ' Huber V. Armstrong, 7 Bush, 590. ' Love v. Jones. 4 Watts, 465. P., 
 
 Lassell v. Powell, 7 Coldw. 277. &c. Co. v. Jones, 59 Penn. 433. Hor- 
 
 * Horton v. Davis, 26 N. Y. 495. bach v. Riley, 7 Id. 81. Bradley v. 
 ' McElrath v. Kintzing, 5 Penn. O'Donnell, 32 Id. 281. Simon's Estate, 
 
 '336- 19 Id. 439. Freeby v. Tapper, 15 
 
 * Bennett v. Gamble, i Tex. 124. Ohio, 467. Fosdick v. Risk, i Id. 
 Howe V. Blandin, 21 Vt. 375. Goghe- 84. McGee v. Mellon, 23 Miss. 585 
 gan V. Ditto, 2 Mete. (Ky.) 433. Mahoney v. Horan, 53 Barb. 29. 
 
 ' Overton v. Perkins, 10 Yerg. 328. ' True v. Congdon, 44 N. H. 48. 
 
Chap. XII.] . SALE OF REAL PROPERTY. 371 
 
 quantity of land passing by the sale is to be determined ex- 
 clusively by the court.' Where a tract of land contains 
 more land than the parties suppose it does, the purchaser 
 will be compelled to pay for the surplus at the same rate 
 per acre as for that purchased in gross, or upon refusal, the 
 court will say at which side or end of it the surplus may 
 be laid off.' 
 
 Practice in Indiana. After offering the rents and 
 profits, and upon failure to sell the same, the officer may 
 then sell the fee simple in order to realize the amount 
 necessary to satisfy the execution.' 
 
 Sales of real estate on judgments of justices 
 OF THE PEACE. In regard to sales made upon judgments 
 rendered in courts held by j'ustices of the peace, the 
 general rule is to file an abstract of the judgment or a 
 transcript or record of the proceedings in an appellate 
 court or court of general jurisdiction, and cause a general 
 execution to issue from such court, in the same manner as 
 though the judgment had been rendered by such court.* 
 
 Having traced the proceedings on execution from the 
 issue thereof, the levy arid the sale, the next and final pro- 
 ceeding thereon is its return, which will be treated of in the 
 succeeding chapter. 
 
 ' Hoffman v. Danner, 14 Penn. 25.' Barnes, 10 Id. 289. Brownfield v. 
 
 ' Horn V. Denton, 2 Sneed. 125. Wright, g Id. 394. Davis v. Campbell, 
 
 Dawson v. Goodwin, 15 B. Monr. 12 Id. 192. Adlerv. Sewell, 29 Id. 59S. 
 
 439. * Stanley v. Nelson, 4 Humph. 484. 
 
 • Piel V. Watson, 44 Ind. 447. Ind. Hall y. Heffiy, 6 Id. 444. Smith 
 
 &c. Co. V. Bradley, 15 Id. 23. Law v. Buck, 22 Wis. 577. Campbell v. 
 
 V. Smith, 4 Id. 56. Thurston v. Wickware, 19 Cal. 145. 
 
372 ON EXECUTIONS. [Chap. XTIT. 
 
 CHAPTER XIII. 
 
 OF THE RETURN. 
 
 What a Return is. — Return day. — Returns to Writs of Exe- 
 cution. — When an Execution is Returnable. — Who to make 
 a Return. — What a Return should state. — What is a 
 sufficient Return. — Insufficient Returns. — How a Return 
 should be construed. — Nulla Bona, when a proper Return. 
 — False Return. — Return as Evidence of proceedings. — 
 Conclusiveness of Return.-^ When not conclusive. — When it 
 may be contradicted by the officer. — When and where it is 
 prima facie evidence. — Of the Date of the Return. — Lost 
 Return. — When a Return will be quashed. — Amendment 
 of Return. — When allowed. — When not. — Effect of 
 amendment, 
 
 § 232. Of the return. After the issue and execution 
 of final process, and the collection of the amount due 
 thereon, or a failure to find property out of which to make 
 the amount of the judgment, the next and last step is the 
 return of the writ to the court from whence it issued. Exe- 
 cutions, after stating the parties, the amount and recovery 
 of judgment, and mandate to the officer to collect the amount 
 therein specified, also command the officer to have the writ 
 itself in court on a certain day. 
 
 On that day the execution is said to be returnable, and it is 
 called the return day of the writ. It is the day when the officer 
 is required to make his return to the court.' On the return 
 day, the officer is to file or deposit the execution with the court 
 or the clerk thereof with his return, that is, a short account in 
 writing, made by the sheriff or other ministerial officer, of 
 
 ' Bank v. Tome, i Speers, 501. 
 
Chap. XIII.] OF THE RETURN. 373 
 
 the mariner in which he has executed the writ.' It is the 
 officer's answer touching the service of the execution of such 
 final process. It is usually made in the form of a certificate, 
 and is indorsed on the writ, process or paper ; it must be 
 signed by the officer making the return, and is that only to 
 which he signs his naftie when he returns the writ.' 
 
 A return may be considered as the certificate of the officer, 
 to whom any process is directed, stating what he has done in 
 obedience to the ccmrriands therein given, or the reason of 
 his neglect in not fulfilling them, and is a material part of 
 his duty ; as the return should be both in form and sub- 
 stance, according to law, otherwise the officer may be sub- 
 jected to punishment, and the party employing him to dam- 
 ages. All that the officer is commanded by the writ to do, 
 he must perform, and no more, or show a sufficient reason 
 for his neglect ; and make return of his precept to the 
 proper court on or before the day mentioned in it for its 
 return. The return must always be attested by the officer, 
 and must be certain to every intent. A return by the 
 deputy, in his own name, as deputy, is not a return by the 
 officer. It is not, in pursuance of the statute, a return by 
 the officer to whom the writ was directed. When a man acts 
 in contemplation of law, by the authority and in the name 
 of another, if he does an act in his own name, although 
 alleged to be done by him as attorney, it is void. 
 
 Whatever proceedings are had on the writ must be accu- 
 rately returned by the officer ; and with respect to the return 
 of judicial process, in general, it has always been regarded 
 that all writs of execution to be executed by the sole au- 
 thority of the officer, such as a capias ad satisfaciendum, ha- 
 bere facias possessionem, &c., are good when duly executed, 
 but never returned, by the officer ; for the plaintiff has the 
 effect of his suit. But if a party apprehends himself to be 
 injured he may apply to the officer to return such writ, and 
 if the officer refuses an action lies against him. At common 
 law an action did not lie against the officer. The practice 
 
 ' State v. Melton, 8 Mo. 417. ' Windle v. Ricardo, i B. & B. 17. 
 
374 ON EXECUTIONS. [Chap. XIII. 
 
 was to compel a return, and if that was false the party had 
 his remedy on that ; ' or the officer may be ruled to return 
 an execution, and a defendant as well as a plaintiff may rule 
 the officer to return a writ." Until the return is delivered to 
 the proper officer or court it is not complete." It is nec- 
 essary to file it in order to complete "it." Filing it in the 
 clerk's office constitutes the return in law. It can not be said 
 to be filed until it reaches its place of final deposit ; ' and 
 until actually filed in the clerk's office it does not actually 
 become a matter of record.' Where a writ is required to be 
 returned within a specified time, any time within or at the end 
 of such time is meant.' Where a due return of process is 
 necessary, it is a proper return made in proper time.* 
 
 § 233. Returns to an execution. The returns com- 
 monly made to an execution are the following: When the 
 officer has failed to discover any property whatever belong- 
 ing to the defendant liable to levy and sale, he returns that 
 fact in the common formula "nulla bona" or after diligent 
 search in my county or bailiwick, I am unable to find any 
 goods, chattels, or other property of the defendant on 
 which to levy or satisfy the within execution. When he 
 causes to be made out of the defendant's property, the 
 whole or any part of the money, which he is ready to pay, 
 or has paid, to the plaintiff, he returns fieri feci, " I have 
 caused to be made." The name fieri feci is given to the 
 return to the writ of execution where the officer has col- 
 lected the whole or part of the sum directed to be levied. 
 
 When the officer makes this return a rule may be obtained 
 upon him after the return day, to pay the money into court. 
 
 ' Moreland v. Leigh, i Stark. 388. * Nelson v. Cook, 19 111. 440. 
 
 Commonwealth v. McCoy, 8 Wattii, ' Garlick v. Sangster, 9 Bing. 46. 
 
 153. Pardee v. Robinson, 6 Hill, Rex v. Wade, I B. & A. 861. White 
 
 550. V. Willard, i Watts, 42. Eager v. 
 
 ^ Edmunds v. Watson, 7 Taunt. 5. Campbell, 5 Id. 288. 
 
 Richardson v. Trundle, 8 C. B. N. S. « Welsh v. Joy, 13 Pick. 482. 
 
 447. Frances v. Clarkson, 2 Dowl. ' Adams v. Cumiskey, 4 Cush. 420. 
 
 P- C. 532. » Waugh v. Brittain, 4 Jones, 
 
 ' State V. Melton, 8 Mo. 417. 470. 
 
Chap. XIII.] oF THE RETURN. 375 
 
 and if he withholds the payment an action of debt may be 
 had on the return, or assumpsit for money had and received 
 may be sustained against him. He becomes liable to the 
 plaintiff for the money he has made. 
 
 That he has taken goods of the defendant to a certain 
 amount which remain in his hands for want of buyers. In 
 this case he should be careful to specify what goods he has 
 levied upon, for a general levy may render him responsible 
 for the whole debt. 
 
 When he has levied upon lands, he should so return, and 
 state what lands he has seized, by metes and bounds, so that 
 when they are sold' by him he may make a definite deed for 
 the same. He should also return what further proceedings, 
 if any, have taken place since the levy. 
 
 When the officer returns nulla bona to a fieri facias, that 
 the defendant has no goods within his bailiwick, the plairitiff 
 may sue out, or cause to be issued, an alias fieri facias, and 
 after that, when required, if the same return be made to the 
 ^lias, Sipluries into the same county, or he may have a testa- 
 tum fieri facias into a different county, suggesting that the 
 ■defendant has goods there ; but the testatum can not go into 
 another state, because the laws under which it issues do not 
 ■extend there, with this one exception : in the case of the 
 United States in certain cases by act of congress, it may 
 run into any state of the Union ; and where the use of the 
 .capias ad Satisfaciendum is not prohibited by statute, the 
 plaintiff may issue a ca. sa. in place of a fieri facias, or on 
 return of nulla bona to a fi. fa. 
 
 When the sheriff returns _/?i?r/ feci, and part of the money 
 be levied, and the officer has made his return to that effect, 
 the plaintiff may have 2l fieri facias or capias ad satisfacien- 
 dum for the residue ; but, as a general thing, the first execu- 
 tion mu«t be returned before a second writ can issue, for the 
 reason that the second is founded on the return of "the first, 
 and it usually recites the execution and return. 
 
 § 234. When an execution is returnable. The stat- 
 utes of the various states regulating proceedings upon execu 
 
376 ON EXECUTIONS. [Chap. XIIL 
 
 tion fix the time in which an execution is to be returned. In 
 many states it is sixty days ;' in other states seventy days, jus- 
 tices' executions ;' ninety days ;' six months ;* not more than 
 six and not less than three months;' at the next succeeding 
 term f first Tuesday ;' first Monday of following month ;' 
 when satisfied ;' thirty, sixty, and ninety days ;" justices' ex- 
 ecutions generally in thirty days; The writ being made 
 returnable; at a particular time after its issue, a party can not 
 cause an execution to issue for a shorter period of time than 
 that given by law. The time given by statute is for the 
 benefit of the officer executing the writ. He may execute it 
 and return it as much earlier as he sees fit." In some states 
 it must be made on the return da}' ;'" but it may be made on 
 any part of the return day, as the officer has the whole of 
 that day to return it in." 
 
 Where it is required to be returned in days from 
 
 the time of rendering judgment, the day the judgment was. 
 rendered is to be excluded, even though the execution was 
 issued on the same day." It need not be returned within 
 its life in Vermont, and no action can be sustained by reason 
 of not returning it.'° It is not necessary in North Carolina 
 that it be made returnable to the next term after which it 
 
 ' Arkansas, Connecticut, Kansas, Tyler v. Willis, 33 Barb. 327. Spencer 
 
 Nebraska, Massacbusetts, New York, v. Cuyler, 17 How. Pr. 157. Shindler 
 
 Ohio, Oregon, Utah, Vermont, South v. Blunt, i Sandf. 633. Livingston v.. 
 
 Carolina, and usually in Kentucky. Cleveland, 5 How. Pr. 396. Evans v. 
 
 ' Illinois, Louisiana. Parker, 20 Wend. 622. Ross v. Klus- 
 
 ' Colorado, Illinois, Kentucky, man, 3 Sandf. 678. 
 Maine. " Wallis v. Berg, 16 La. 176. Hy- 
 
 * Indiana,. atte v. Allison, 3 Jones, 533. Stat& 
 ' Delaware. v. Records, 5 Harring. 260. Brashears. 
 ' Alabama, Georgia, Mississippi, v. Warner, 5 Sneed, 676. Dillon v. 
 
 Supreme Court of New Hampshire, Rash, 27 Mo. 243. 
 New Jersey, North Carolina, Rhode " Bull v. Clarke, 2 Mete. 587 
 
 Island, Tennessee, Texas, Virginia. Hiraman v. Borden, 10 Wend. 369. 
 
 ' Michigan. Rex v. Berks, 5 East, 386. Brockway 
 
 * Pennsylvania, Virginia. v. Wilber, 5 Johns. 356. Homan v. 
 » Florida. Liswell, 6 Conn. 659. 
 
 '» West Virginia. " Muzzy v. Howard, 42 Vt. 23. 
 
 " Reynaud v. O'Brien, 35 N. Y. 29 '» Fletcher v. Bradley, 12 Id. 22. 
 
Chap. XIII.] OF THE RETURN. - 377 
 
 is tested.' The time in which the return is made neither 
 affectsthe validity of the writ or a sale under it." In practice it 
 is often made after the return day, and is sometimes allowed 
 to be made several years after its execution, to avoid appa- 
 rent irregularities.' In England the practice is to grant an 
 extension of time wherein to make a return under special 
 circumstances.* Where the return day is on Sunday, the 
 return may be made on the preceding Saturday or on the 
 succeeding Monday.' Where an execution is made return- 
 able in thirty days, when it should have been made return- 
 able in sixty days, and it is returned satisfied, the return is 
 void.' The officer can not return the process to any one 
 but the clerk or his deputies.' 
 
 § 235. Who to make the return. The officer executing 
 the writ makes the return ; if the deputy executes it he makes 
 the return, and signs it for his principal by himself as deputy. 
 Courts, as a general rule, do not know any one but the officer 
 to whom the writ is directed, whether sheriff or constable, 
 and a return by a deputy in his own name is a nullity.' 
 
 In Michigan and Texas the return made by a deputy in 
 his own name is held good.' If the officer's term of office 
 expires before the return day, and he has executed the writ, 
 he must make due return of the same. In the absence of 
 sufficient proof the law presumes that the officer makes his 
 return on the back of the execution ; " but if the return oc- 
 
 ' State V. Ferrell, 63 N. C. 640. Dutch v. "Edwards, 2 111. 127. Row- 
 
 ' Cloud V. Eldorado, 12 Cal. 128. ley v. Howard, 23 Cal. 401. State v. 
 
 Low V. Adams, 6 Id. 227. Small v. Johnson, I Hajrw. 293. Joyce v. 
 
 Mickey, i S. & R. 95. Joyce, 5 Cal. 449. Ferguson v. Lee, 
 
 ' West V. Nixon, 3 Grant Cas. 9 Wend. 258. Simmons v. Catlin, 2 
 
 236. Cai, 61. Emley v. Drum, 36 Pem. 
 
 • Parker v. Booth, 8 Bing. 85. Rex 123. 
 
 V. Sheriff, I Chit. 643. Barnard v. ' Miller v. Alexander, 13 Tex. 497. 
 
 Leigh, I Stark. 43. Ledbury v. Smith, Callender v. Olcott, i Mich. 344. 
 
 I Chit. 294. Towns v. Harris, 13 Tex. 507. East- 
 
 ' Williams v. State, 3 Ind. 235. man v. Curtis, 4 Vt. 616. Villiers v. 
 
 • Fifield V. Richardson, 34 Vt. 410. Ford, 2 McCord. 144. Mathewson v. 
 ' Casky v. Haviland, 13 Ala. 314. Moore, 2 Id. 315. 
 
 • Ryan v. Edwards, i 111. 163. '" Brackett v. Ridlon, 54 Me. 426. 
 
3'78 - ON EXECUTIONS. [Chap. XIII 
 
 cupies more space than there is on the writ the officer may- 
 make it on a separate sheet of paper and annex or attach it 
 to the execution in such manner as to make it part thereof. 
 He must return proper process, whether it is executed or 
 not.' But he is not bound to return a void writ," nor is 
 he excused from returning an execution by an agreement 
 between, the parties to suspend proceedings and make an 
 amicable settlement.' If a writ is sent to an officer of 
 another county than 'that in which the judgment is ren- 
 dered, if it is deposited in the post-office, properly directed, 
 in time to reach the clerk by the return day, it is sufficient.'' 
 § 236. What a return should state. The return of the 
 officer must be in writing," and should state that the officer 
 has performed what the mandatory process required of him. 
 And when the law prescribes any particular forms or pro- 
 ceedings in the execution thereof, the return should show 
 that they were specifically complied with, and set them forth 
 as fully and circumstantially as if they had been specially re- 
 quired in the mandatory part of the writ. Additions, while 
 they are no part of the return, do not vitiate it. The facts 
 essential to a return are taken as conclusively proven, if 
 stated in it, except where express provision to the contrary 
 is made by statute, and in actions against the officer for 
 false return. His return is the only proper evidence to prove 
 those facts ; other facts in the return are to be rejected. The 
 return is no proper evidence of their truth. Returning offi- 
 cers are ministerial officers, and are bound to set forth all 
 acts done by them that the court may judge of their suffi- 
 ciency.' It should show that all the requirements of the 
 
 ' Brown v. Baker, 9 Port. 503. Winslow v.. Loring, Id. 392. Wei- 
 
 '•" Brown v. McMillan, 8 M. & W. lington v. Gale, 13 Id. 483. 
 
 ig8. Holloway v. Johnson, 7 Ala. ' Perry v. Dover, 12 Pick. 206. 
 
 660. Davis V. Maynard, g Mass. 242. Mer- 
 
 ' Morrow v. Allison, 11 Ired. 217. ritt v. White, 31 Miss. 438. Gardner 
 
 * Underwood V. Russell, 4 Tex. 175. v. Hosmer, 6 Mass. 325. Wellington 
 
 ■» Shover v. Funk, 5 W. & S. 457. v. Gale, 13 Id. 483. Henry v. Tfl- 
 
 Purrington v. Loring, 7 Mass. 388. ton, 19 Vt. 447. 
 
Chap. XIII.] oF THE RETURN. 379 
 
 law have been complied with.' Where a levy is made on 
 land the officer should show by his return on the execution 
 how he proceeded under it, stating the purchaser's name, 
 and giving some general description of the larid in the 
 return." The description should be specific enough to ena- 
 ble t]ie purchaser to identify the land.^ If the description is 
 defective the defect may be supplied by parol evidence ; the 
 date of sale is not material, and may be contradicted by parol 
 evidence.'' The return in the New England States to an 
 extent must expressly state every fact essential to its valid- 
 ity, or every fact must be necessarily implied in what is 
 stated or else the title will not pass thereby.' In New Jer- 
 sey, the officer on a return to 2. fieri facias must particularly 
 specify the different articles upon which he has levied.' 
 Courts will not compel an officer to give a specific return of 
 the particulars and proceeds of goods sold under a fi.fa? 
 Where he delivers possession under a lease he should return 
 that fact ; a return that " he has delivered possession," with- 
 out more, renders him liable.' Where the officer makes a 
 levy and is prevented from selling the property taken on ex- 
 ecution he should set forth in his return the cause by which 
 he was so prevented." Where he collects only part of the 
 amount due he must so state in his return, and return the 
 execution unsatisfied for the balance ; if, however, he makes 
 the entire amount due on the execution he may make the 
 single indorsement of " satisfied," and sign his name to it, 
 which will be sufficient. 
 
 Moneys collected in execution are usually paid over by 
 
 ' Russ V. Oilman, 16 Me. 209. v. Griffith, 2 H. & J. 337. Rollins v. 
 
 "Williams v. Armory, 14 Mass. 20. Mooers, 25 Me. 192. 
 
 Goodright v. Gilbert, l Yea'tes, 300. * Goodtitle v. Cummings, 8 Blackf. 
 
 Deleplaine v. Hitchcock, 6 Hill, 179. 
 
 14. Mefcalf V. Gillett, 5 Conn. ' Avery v. Bowman, 39 N. H. 393. 
 
 400. ' Watson V. Hoel, Coxe, 136. Hus- 
 
 " Reid V. Heasley, g Dana, 324. tick v. Allen, Id. 168. 
 
 ' Payne v. Billingham, 10 Iowa, ' Willett v. Sparrow, 2 Marsh. 393. 
 
 360. Mathews v. Thompson, 3 Ohio, ' Cooper v. Borrall, 10 Penn. 49I. 
 
 272. Ogle V. Coppee, 2 111. 239. Berry ' State v. Nelson, i Ind. 522. 
 
380 ON EXECUTIONS. [Chap. XIII 
 
 the officei before the return of the writ, and the fact of such 
 payment constitutes a part of the return, and if paid, the 
 amount collected and paid over can not be the measure of 
 damages for a subsequent failure to return the writ, where 
 the gravamen of the action is the failure to return an execu- 
 tion within the prescribed time.' When real estate is sold on 
 execution, it is not necessary to specify in the return how 
 the money is made, whether on the sale of the particular 
 lands or not, and if no return is made, the purchaser's title 
 is not affected by it, as his title does not depend upon the 
 return." 
 
 Nor can an officer be compelled to make a further return, 
 in order to enable the defendant to sue him. If the officer 
 is prevented from taking the debtor's property by reason of 
 the defendant taking an appeal, that fact should be set forth 
 in his return, and not " Nulla bona." ° A return need not, 
 as a matter of necessity, show anything about the form of 
 oath administered to the appraisers ; itissufificientif it states 
 that they were duly sworn ; * nor that an attachment was 
 levied upon mesne process,' nor that he executed a deed to 
 the purchaser ; the deed speaks fpr itself.' If an execution 
 is returned not levied it is functus officio.'' 
 
 § 237. What is a sufficient return. A sufficient return 
 is one which shows upon the face of it that the command of 
 the writ has been fully complied with, or if not, the exist- 
 ence of such a state of facts as, without fault or negligence 
 on. the part of the officer, prevented a compliance therewith. 
 It must be complete in itself, for a court can not look at any 
 
 ' Hoag V. Warden, 37 Cal. 522. Cloud v. Eldorado, 12 Id. 128. Hop- 
 
 ' Low V. Adams, 6 Cal. 227. Cloud ping v. Burnham, 2 G. Greene, 39. 
 
 V. Eldorado, 12 Id. 128. Small v. Evans v. Davis, 2 B. Monr. 344. 
 
 Mickey, i S. & R. 95. Simonds v. Thurston v. Barnes, 10 Ind. 289. 
 
 Catlin, 2 Cal. 61. Jackson v. Stein- Doe v. Heath, 7 Blackf. 54. Paine v. 
 
 bergh, i Johns. 153. Wheaton v. Spratley, 5 Kas. 525. Symonds v. 
 
 Sexton, 4 Wheat. 508. Oviat v. Vyner, Harris, 51 Me. 14. 
 
 Salk. 318, § 343, /w/, and cases there ' Derry Bank v. Webster, 44 N. H. 
 
 cited. 264. 
 
 ' People V. Allen, 9 Wend. 224. » Whittier v. Vaugh, 27 Me. 301. 
 
 * Clark V. Lockwood, 21 Cal. 220. ^ Garner v. Willis, r 111. 290. 
 
Chap. XIII.] OF THE RETURN. 381 
 
 other document to make it complete.' The mere inaccuracy 
 of expression in the officer should not defeat a lawful return, 
 when enough appears to have been done to show that all 
 the requirements of the statute have been complied with.'' 
 A return that the officer " levied upon " is sufficient ; the 
 particulars need not be stated.' A return that he has 
 seized all the stock, of every kind, particularly describing it." 
 No goods found in my county." No property except what has 
 been heretofore levied on.' Stopped by order of the plain- 
 tiff.' " Enjoined." ' A return omitting the place of sale, 
 where both parties were present.' 
 
 If the return of the .sheriff on an execution levied upon 
 lands, in effect shows that there were no goods or chattels 
 belonging to the defendant, it is good. The sheriff's return 
 's not essential to the title of the purchaser. Such title is 
 ot created by, nor dependent upon the return, but is de- 
 ived from the previous sale made by the sheriff, by virtue 
 ;f his writ. It is sufficient for the purchaser that the sheriff 
 nas competent authority, and sells and executes a deed to 
 him. Among returns that have been held sufficient are the 
 following : " Levied on one tract of land adjoining lands of 
 E., C. and D., containing two hundred acres more or less." '° 
 
 ' MuCraiy V. Chaffin, I Swan, 307. Rhorer v. Terrill, 4 Minn. 407. Fol- 
 
 Jnion Bank v, Barnes, 10 Humph, som v. Carli, 5 Id. 333. TuUis v. 
 
 244. Brawley, 3 Id. 277. Wheaton v. 
 
 ' Pond V. Pond, 14 Mass. 405. Sexton, 4 Wheat. 508. Jackson v. 
 
 Pratt V. Putnam, 13 Id. 361. Herring Sternbergh, I John. 153. Simonds v. 
 
 V. PoUey, 8 Id. 113. Waterhouse v. Catlin, i Cai. 61. 
 
 White, II Id. 207. Boylston v. * Ela v. Shepard, 32 N. H. 277. 
 
 Carver, 11 Id. 575. Cowles v. Hast- Chambers v. Coleman, 9 Dowl. P. C. 
 
 iiigs, 9 Met. 476. Cam^p v. Bates, 13 588. 
 
 Conn. I. Orvis v. Isle La Motte, 12 ' Peeble's Case, Peck, ig6. 
 
 Vt. 195. Munroe v. Redding, 15 Me. * McDonnell v. Robinson, 3 Jones 
 
 153. Swift V. Cobb, 10 Vt. 282. L. 535. 
 
 Childs V. Barrows, 9 Met. 413. Bis- ' State v. McDonald, 9 Humph, 
 
 ^ell V. Mooney, 33 Conn. 411. Rey- 606. Levy v. Abbott, 7 D. & L. 185. 
 
 nolds V. Barford, 13 L. J. N. S. C. P. ' Patton v. Marr, Busb. Law, 377. 
 
 177. Merritt v. White, 37 Miss. 438. Elliott v. Dougherty, 7 Blackf. 199. 
 
 Huntress v. Tiney, 39 Me. 237. " Beattie v. Robbins, 2 Vt. 181. 
 
 2 Byer v. Elmire, 2 Gill. 150. '" Randolph v. Carlton, 8 Ala. 606, 
 
382 ON EXECUTIONS. [Chap. XIXI. 
 
 " Levy on defendant's lands where lie now resides." ' 
 " Levied this and other executions on lots four and five, in 
 square one, south of Main Street, Columbus ; sold the same 
 according to law, i6 March, 184-, to (naming the purchaser).'"' 
 " The north-west fractional quarter of section 35, township 
 49, range 17."° The most important part of the return to 
 an execution where land has been levied on and sold, is 
 to give such a description of it that it can be identified, or 
 would pass by a deed, or that there could be no mistake in 
 its location.* In the New England states the levy gives 
 seizin, and the requirements of the. statute must be strictly 
 complied with, there being no sale of the property. The 
 duties of an officer in regard to an appraisement must be 
 faithfully discharged, his return must show that the ap- 
 praisers were properly appointed by the debtor and himself, 
 or the reason why they were not ; ' that they were good and 
 lawful freeholders ; ° that they were residents of the county ; ' 
 that they viewed the premises.' If by necessary implication 
 an appraisal is shown, it is sufficient.' 
 
 An omission to state the price at which the property sold, 
 or state affirmatively that he gave legal notice of the sale, 
 does not impair the validity of the return,'" if copied from a 
 memorandum made by the officer at the time on a separate 
 piece of paper, and dated as of the hour and day when 
 made," or that he has delivered seizin to one of two judg- 
 ment creditors,'" or that he advertised three weeks succes- 
 sively before the " time " (in place of day)." " Levied per 
 schedule, and properly sold, resold, and sale not complied 
 
 ' Bratton v. Garrison, 2 Rich. 146. ' Libbey v. Copp, 3 N. H. 451. 
 
 ^ Hand v. Grant, 13 Miss. 508. * Huntress v. Tiney, 39 Me 
 
 " Rector v. Hart, 8 Mo. 448. 237. 
 
 ' Howard v. Daniels, 2 N. H. 137. ' Peck v. Wallace, 9 Conn. 
 
 Berry v. Griffith, 2 H. & J. 337. Buck 453. 
 
 V. Hardy, 6 Me. 162. Duvall v. "" Miller v. Wilson, 32 Md. 297. 
 
 Waters, I Bland, 569. Filler v. Patton, 8 W. & S. 455. 
 
 ' Young V. Judd, Brayt, 151. " Hall v. Crocker, 2 Mete. 245. 
 
 • Day V. Roberts, 8 Vt. 417. Aldis '^ Smith v. Smith, 11 N. H. 459. 
 
 V. Burdick, 8 Vt. 21. Lobdell v. Stur- '* Chase v. Merrimack Bank, 19 
 
 tevant, 4 Pick. 243. Pick. 564. 
 
Chap. XIII.]' OF THE RETURN. 383 
 
 with, and of course on hand." ' A return in the name of 
 the officer and signed by the deputy.'' " A bond taken and 
 forfeited" upon an execution, is sufficient return of forfeit- 
 ure.' Where a deed recites a levy and sale, but the execu- 
 tion does not show one, it will be sufficient;' it must, in 
 England, state the value of the goods taken." Upon ca. sa. 
 non est, though there be more than one defendant,' or cepi^ 
 " executed," signed by the officer." What is a proper return, 
 is a question of law for the court.' 
 
 § 238. Insufficient returns, what are. Unless the re- 
 turn to an execution purports something capable of being un- 
 derstood with evidence aliunde, it is insufficient ; " and being 
 insufficient is no return at all ; an officer who makes one is lia- 
 ble to attachment." An argumentative return with reference 
 to facts, is bad." So is one not signed by the officer ;" or a re- 
 turn made on apiece of paper separate from the execution ;" 
 or that the writ was received, and nothing made for want of 
 time ;" or " no sale on account of stay law ;" " or that he seized 
 property of " the value to him unknown, which remains in 
 his hands for want of buyers " — some value must be stated ;" 
 a return on a vendi not sold for want of bidders ;" a return 
 to a writ against a boat that does not show a seizure of the 
 boat ;■' " levied on goods subject to older executions," with- 
 
 ' Scott V. Bruce, 2 H. & G. 262. '* Master v. Cooper, I Price P. C 
 
 » Emley v. Drum, 36 Penn. 123. 8. 
 
 ' Wanzer v. Baker, 5 Miss. 363. " Bennett v. Vinyard, 34 Mo. 46. 
 
 ■* Bettison v. Budd, 17 Ark. 546. Sheppard v. Hill, 5 Ark. 308. Ste- 
 
 ' Barton v. Gill, I Dowl. & L. 593. vens v. Bachelder, 28 Me. 218. 
 
 • Patterson v. Parker, 2 Hill, 598. " Dickson v. Peppers, 7 Ired. 
 ' State V. Lawspn, 2 Gill, 62. 429. 
 
 * Washington v. Vinson, 4 Jones " Harman v. Childress, 3 Yerg. 327. 
 L. 380. McCrary v. Chaffin, i Swan, 307 
 
 ' Waagh V. Brittain, 4 Jones L. Eaken v. Boyd, 5 Sneed, 204. 
 470. " Aycock V. Harrison, 63 N. C. 
 
 '" Parker v. Grayson, I N. & M. 145. 
 171. Ogle V. Coffee, 2 111. 239. " Barton v. Gill, 12 M. & W. 315. 
 
 " Charles v. , Marney, I Mo. 537. " Mahoney v. Blake, I All. & Nap. 
 
 Wilson V. Greathouse, 2 111. 175. 115. 
 
 Clemson v. Hamm, Id. 177. In re " Blaisdell v. Steamboat, &c., 19 
 
 Stacy, 10 Johns. 328. Mo. 157. 
 
384 ON EXECUTIONS. [Chap. XIII. 
 
 out saying whether he had sold it, or still had the property 
 on hand, and if on hand why it was not sold ;' or a return of 
 seizure under that and another execution ;' on an execution 
 wholly or partially unsatisfied, which does not show that 
 there was no other property out of which the execution 
 could be made ;* a return of a levy on part of a tract of 
 land supposed to contain, &c. ;* or specifying the quantity 
 without pointing out its location, or describing it by definite 
 boundaries;' "not satisfied for want of buyers," as it;^ shows 
 no levy;' on a writ against several defendants, a return no 
 property of one only;' "levied on a small remnant of 
 goods, date of sale ;"" " executed as commanded within ; '" 
 that he was committed for levying.'" Where there is an 
 excess over the amount due on the judgment, and the return 
 states that the officer retains it for costs, it is neither legal 
 or proper ; it is the duty of the officer to state in his report 
 the particular items of costs for which, the money arising 
 from the sale was appropriated ;" or that he retains the money 
 collected to discharge damages he had sustained by a judg- 
 ment against him, in which the creditor furnishes an indemni- 
 fying bond ;" or that he did not levy because no indemifying 
 bond was given ;" " case arranged in bank," or " debtor has 
 creditors' receipt ; " " a return not responsive to the mandate 
 of the writ ;" a return made on an execution by an officer 
 against himself ;'° or made on Sunday;" when the officer 
 takes a note in place of the money he is commanded to 
 
 ' Buckly V. Hampton, i Ired. 322. ' Ogle v. Coffee, 2 111. 239. 
 
 » Wintle V. Chetwynd, 7 Dowl. P. '» Stockdale v. Hansard, 11 A. & E. 
 
 C. 554. 253. 
 
 ' Casky v. Haviland, 13 Ala. 314. " Harrison v. Thompson, g Geo. 310. 
 
 McDowell V. Clark, 68 N. C. 118. " Hinkle v. Blake, 2 Humph. 574. 
 
 * Clarke v. Belmear, I G. & J. 443. " Bosley v. Farquhar, 2 Blackf. 61. 
 Waters v. Duval, 6 Id. 76. Fitzhugh " McKeag.v. CoUehan, 13 Ala. 828. 
 V. Hellen, 3 H. & J. 206. Gilchrist v. B^nk, &c., II Ala. 408. 
 
 ' Eells V. Day, 4 Conn. 95. Abercrombie v. Chandler, 9 Ala. 625. 
 
 • Bowman v. Mallory, 14 Ind. 424. " Anderson v. Cunningham, Minor, 
 ' Hassell V. Southern Bank, 2 48. 
 
 Head, 381. " Cauble v. Hoke, I Speers, 168. 
 
 ' Mullins V. Johnson, 3 Humph. 393. " Peck v. Cavell, 16 Mich. 9. 
 
Chap. XIII ] OF THE RETURN. ;ia6 
 
 make ;' a return made by one, a former sheriff, on a writ 
 directed to his successor ;" or made by a deputy in his own 
 name." A return that the debtor's premises are so barri- 
 caded that the officer is unable to ascertain whether the 
 debtor has goods within bis bailiwick on which a levy can be 
 made ; it should state the debtor has goods or he has none.' 
 Where the description of some of the property is defective, 
 it does not vitiate as to that correctly described.' Filing the 
 writ with no indorsement of the proceedings thereunder, is 
 no return ; but a return may be made by leave of court, 
 nunc pro tunc, on payment of costs.' " Not to be found," on 
 a ca. saJ " No inhabitant." ' 
 
 §238. How A RETURN SHOULD BE CONSTRUED. In constru- 
 ing the return of an officer the words used by him in describ- 
 ing an act done by him should not be closely criticised. It 
 should be held sufficient when it may be fairly inferred 
 therefrom that the requirements of the law have been met.' 
 Where it is susceptible of different meanings, that should be 
 adopted which is most conformable to his duty.* If it can 
 be fairly construed as to be sufficient in law it is the duty of 
 the court so to construe it.'° In giving the construction to the 
 language used by an officer in his return of a sale, and in 
 his deed thereof, the whole description of the land should be 
 taken together, and effect should be given to every clause 
 and word, if possible, in order to ascertain the intended 
 meaning." On an execution against two, a return that said 
 persons have no property on which execution can be levied 
 is equivalent to a return that neither of them has such prop- 
 erty." Where a return states that the officer has sold real 
 
 ' Tiffany v. Johnson, 27 Miss. 227. ' Bacon v. Bevan, 44 Miss. 393. 
 
 ' Spruil V. Bateman, 4 D. & B. 489. » Whittlesly v. Starr, 8 Conn. 
 
 ' Joyce V. Joyce, 5 Cal. 449. 134- 
 
 * Munk V. Cass, 9 Dowl. P. C. 332. '" Coggswell v. Warren, i Curt. C. 
 
 » Cleveland v. Allen, 4 Vt. 176. C. 223. 
 
 •Hale V. Ayer, ig How. Pr. 91. " Franklin Bank v. Blossom, 23 Me. 
 
 Nelson v. Brown, 23 Mo. 13. 546. 
 
 ' Rex V. Kent, 5 Dowl. P. C. " Austin v. Figuera, 7 Paige, 
 
 451. ^ 56. 
 
 35 
 
336 ■ ON EXECUTIONS. fCHAP-XIII. 
 
 estate, the presumption is that it was the fee simple.' The 
 quantity of land which passes to a purchaser is to be ascer- 
 tained by the extent of the levy. When the return is intel- 
 ligible, and ascertains, with reasonable precision, the tract 
 taken, no evidence in contradiction is admissible ; the con- 
 struction of the return and the quantity of land passing is 
 to be determined exclusively by the court." 
 
 § 240. Nulla bona. — No goods. — When a proper re- 
 turn. It is the duty of an officer in the execution of final pro- 
 cess to make a thorough and diligent search for property, 
 either real or personal, of the debtor, on which to levy, and 
 out of which to satisfy the execution. If, after reasonable dili- 
 gence, he fails to discover any goods or chattels, lands or 
 tenements of the party against whom the execution issues, 
 within his county, subject to the execution, he must return 
 that fact, and in making a return he may use the words 
 " nulla bona " and sign his name thereto, or may indorse on 
 the writ that after diligent search within his county he failed 
 to find any property of the party on which to levy." The 
 return of nulla bona means that there is no property appli- 
 cable to the party's writ,* and is a good return, though prop- 
 erty is seized, if it is not liable to execution.' It is the 
 proper return, and the officer will be justified in making it, 
 if, after a levy, he ascertains that the property levied on 
 is subject to prior liens sufficient to exhaust it ;° but the 
 execution creating such lien must be actually levied ; ' or 
 where the officer has paid the proceeds of an execution in 
 discharge of a prior lien ; ° or where the property is subject 
 to seizure for violation of the revenue laws ;° or where the 
 
 Winchester v. Crandall, i Clark, 371. ' Wintle v. Freeman, 11 A. & E. 
 
 Conant v. Sparks, 3 Ed. Ch. 104. 539. Heenan v. Evans, 3 M. & G. 398. 
 
 ' Doe V. Laine, 11 Miss. 763. ' Champenois v. White, i Wend. 
 
 ' Hoffman v. Danner, 14 Penn. 25. 92. Shindler v. Blunt, i Sand. 583. 
 
 ' Barnes v. Thompson, 2 Swan, ' Bell v. King, 8 Port. 147. 
 
 313. Russell V. Lawton, 14 Wis. 202. * Wintle v. Freeman, 11 A. & E. 
 
 * Shattuck V. Garden, 2 Prac. R. 539. Heenan v. Evans, 3 M. & G. 
 
 466. Waterman v. Merrill, 33 N. J. 389. 
 
 Law, 78. ' Grove v. Aldrich, 9 Bing. 428. 
 
Chap. XIII.J qf THE RETURN. 387 
 
 creditor adjourns the s^le and the property sold is exhausted 
 under other liens ; ' or an execution received after an assign- 
 ment for the benefit of creditors ; ' or where the writ issues 
 to protect the defendant ; ' or where the property is claimed 
 by another, and after a trial of the right of property and a 
 verdict in favor of the claimant, and the plaintiff refuses to 
 give the officer a bond of indemnity/ Where an officer has 
 been sued, and a judgment is recovered against him for an 
 amount equal to the money realized from the sale of the 
 property, nulla bona is a good return.' An officer has no 
 right to make the return without having made an effort to 
 find any of the property of the defendant. A general 
 report that the defendant has no goods will not excuse such 
 a return.' It may be made after one thorough search.' It 
 is no defense to show a prior writ returned nulla bona also." 
 It is not necessary in some states that the officer keep the 
 writ in his possession until the return day ; he may return it 
 at any time, but at his own risk.' In order that the officer 
 may make diligent search during the life of the execution it 
 can not be legally returned before the return day." A 
 return of " not to be found in my county " implies that the 
 person to be reached was not to be found after due search." 
 It does not give the creditor a lien upon the equitable prop- 
 erty of the debtor ; '" but is sufficient to entitle the creditor 
 to the aid of a court of equity to satisfy the judgment." 
 It will not in New York justify proceedings in aid of execu- 
 
 ' Bank, &c. v. PuUen, 4 Dev. 297. ' Towne v. Crowder. 2 C. & P. 356. 
 
 ' Watt V. Johnson, 4 Jones L. Igo. . ' Morange v. Edwards, I E. D. 
 
 ' Doker v. Hasler, 2 Bing. 479. Smith, 414. Tyler v. Willis, 33 Barb. 
 
 * Bayley v. Bates, 8 Johns. 143. 327. 
 
 Townsend v. Phillips, 10 Id. 98. Van '" Chalmers v. Moore, 22 111. 359. 
 
 Cleef V. Fleet, 15 Johns. 147. Curtis Stewart v. Stevens, Harr. Ch. 196. 
 
 V. Patterson, 8 Cow. 65. Piatt v. Smith v. Thompson, Walk. Ch. i. 
 
 Sherry, 7 Wend. 236. Williams v. Thornton v. Lane, 11 Geo. 459. 
 
 Lowndes, I Hall, 579. " Tomlinson v. Long, 8 Jones L. 
 
 ' Newland v. Baker. 21 Wend. 264. 469. 
 
 ' Parks V. Alexander, 7 Ired. 412. " Weed v. Pierce, 9 Cow. 722. 
 
 ' Wilcox V. Radclifie, 5 Blackf. " Randolph y. Daly, I Greeu (N 
 
 .561. J.)"3." 
 
388 ON EXECUTIONS. [Chap. XIII. 
 
 tion if returned before the return day, or to reach the equit- 
 able property of the debtor.' 
 
 § 410. False return. Whenever the facts stated in the 
 return of an officer to an execution are untrue, the return is 
 false," and will subject him to a penalty or action for false 
 return, though made through mistake ; ' even if the writ is 
 returnable after the expiration of his term.' Neither the 
 statute of limitations nor the insolvency of the execution 
 defendant can be pleaded by an officer in an action for false 
 return.' Where- the . return is not false in fact, but only 
 draws an incorrect legal inference, and the facts are truly 
 stated, the officer is not liable.' Where the plaintiff consents 
 to and approves of the return, he can not bring an action for 
 false return.' Accepting money under a levy will not bar an 
 action for false return.' But no action lies if the plaintiff does 
 not suffer actual damage ;° or if he receives the sum returned 
 as made." In action of false return, a plea that the officer did 
 not " seize," the word " seize " is to be understood in its 
 sense as attaching to the circumstances of the defendant, 
 namely, that it means such goods as might be levied on." 
 Where an officer makes a return of non est inventus after a 
 writ has run out in his hands, it is a false return." The cause 
 , of action for false return arises only on actual return of the 
 writ ; but it relates back to the return day, and the false re- 
 turn is properly alleged to be on that day." 
 
 § 241. Effect of return as evidence of the proceed- 
 ings. A return when made is a matter of record, and is admis- 
 sible in all cases where the execution is." The rule allowing 
 
 ' Cassidy v. Meacham, 3 Paige, • Lemit v. Moring, 8 Ired. 312. 
 
 311. Williams v. Hogeboom, 8 Id. ' Hayes v. Lusby, 5 H. & J. 485. _ 
 
 469. Piatt V. Caldwell, 9 Id. 386. ' Holmes v. Clifton, 10 A. & E. 
 
 Smith V. Thompson, Walk. Ch. I. 673. 
 
 " Tomlinson v. Long, 8 Jones L. • Wylie v. Birch, 4 Q. B. 566. Levy 
 
 469. V. Hall, 29 L. J. C. P. 127. 
 
 » Albright v. Tapscott, 8 Jones L. '" Beynon v. Garratt, i C. & P. 154. 
 
 473. Houser v. Hampton, 7 Ired. " Heenan v. Evans, 4 Scott N. R. 2. 
 
 333. Stenson v. Snovf, 13 Me. 263. " Cooper v. Ingalls, 5 Vt. 508. 
 
 * Jervis v. Sidney, 3 O. & R. 483. " Michaels v. Shaw, 12 Wend. 587. 
 
 * Stevens r. Beckes, 3 Blackf. 88. '* Hardy v. Gascoignes, 6 Port. 447. 
 
Chap. XIII.] OF THE RETURN. 339 
 
 returns of officers to be read in evidence, is based upon their 
 res'^onsibility for the truth or falsity of such returns,' and is 
 sufficient evidence of all the proceedings under the writ.' 
 In a proceeding to recover the purchase money, it is compe- 
 tent evidence." It may be used as evidence by the purchaser 
 in showing his title.* It is evidence both for and against the 
 officer, and is to be most strongly construed against him ;* 
 but is only evidence against him to the extent of his duty 
 under it.' It is not evidence in his favor to excuse any 
 neglect of duty.' When it is used as evidence against the 
 officer, the whole return, so far as it is a legal proper return, 
 must be taken together. 
 
 § 242. Conclusiveness of the return. It is the policy 
 of the law to uphold execution sales, were it other- 
 .wise, parties could not be induced to purchase. And 
 if, after confirmation, and the issuing of the deed, a party 
 should be liable to have property, purchased in good faith, 
 taken from him for the neglect or omission of the officer 
 making the sale, there would be no security in titles ; there- 
 fore courts have wisely decided that such irregularities as 
 may have been good cause for setting aside a sale before its 
 confirmation,. or before the rights of third parties have be- 
 come vested, will not be allowed to vitiate a sale or deprive 
 a party of his rights. If a purchaser's title were to depend 
 
 ' GyfFord v. Woodgate, 11 East, v. Brawley, 3 Minn. 277. Morris v. 
 
 299. Hathaway v. Goodrich, 5 Trustees, 13 111. 269. Johnson /. 
 
 Vern. 65. Davis v. Clements, 2 NI Donnell, Id. 100. Moore v. Titman, 
 
 H. 390. 33 Id. 359. Gay V. Caldwell, I Hard. 63. 
 
 » Ufford V. Dickinson, 12 Allen, 543. Bevins v. State, n Ark. 455. 
 
 Wagoner v. Lessee, 19 Ohio, 67. • Hensley v. Baker, 10 Mo. 157. 
 
 Pratt V. Pratt, g Id. 37. Stanton * Pigot v. Davis, 3 Hawks, 25. 
 
 V. Hodges, 6 Vt. 64. Childs v. Nichol v. Ridley, 5 Yerg. 65. 
 
 Barrows, 9 Mete. 413. Cowls v. Hast- ' Smith v. Emerson, 43 Penn. 450. 
 
 ings. Id. 476. Eastman v. Curtis, 4 Blatch v. Artcher, CoWp. 65. Tildar 
 
 Vt. 616. Day V. Roberts, 8 Id. 413. v. Sutton, Bull. N. P. 66. Faiilie v. 
 
 Simonds v. Harris, 51 Me. 14. Hanly Birch, 3 Camp. N. P. C. 397. Car. 
 
 V. Sidelinger, 32 Id. 138. Boynton v. lisle v. Parkins, 3 Stark. N. P. C. 167. 
 
 Grant, 52 Id. 220. Stinson v. Rouse, ' Hill v. Middlesex, Holt, 217. 
 
 Id. 261. Lunt V. Hall, 26 Id. 561. ' Holdermao v. Brasfield, Litt SeL 
 
 Gunn V. Howell, 35 Ala. 144. TuUis Cas. 271. 
 
390 
 
 ON EXECUTIONS. 
 
 [Chap. XIII. 
 
 upon such questions as the selection of appraisers, or publica- 
 tion for a specified time, and courts were to permit evidence 
 to be introduced, aliundt, to show irregularities of this kind, 
 in contradiction of an officer's return on an execution, a 
 purchaser would be at the constant risk of having his title de- 
 feated by parol evidence ; therefore, a return of the proceed- 
 ings of an officer under an execution, as between the parties 
 to the action and their privies, is conclusive, and can not be 
 traversed ; nor can it be collaterally impeached, even if the 
 officer is shown to have been guilty of fraud and collusion. 
 This rule is necessary to secure the rights of parties, and 
 give validity and effect to the acts of ministerial officers, and 
 giving parties injured by such return redress only in actions 
 against the officer for false return.' 
 
 ' Rovvell V. Klein, 44 Incl. 290. Ham- 
 ilton V. Matlocks, 5 Blackf. 421. Rem- 
 ington V. Henry, 6 Id. 63.- Smith v. 
 Noe, 30 Ind. 117. Storrs v. Kelsey, 2 
 Paige, 418. Cozine V. Walter, 55 N.Y. 
 304. Egery v. Buchanan, 5 Cal. 56. 
 Campbell v. Webster, 15 Gray, 28. 
 Phillips V. Elwell, 14 Ohio S. 240. Carr 
 V. Commercial Bank, 16 Wis. 30. Belles 
 V. Bowen, 45 N. H. 124. Faxon's Ap- 
 peal, 49 Fenn. 195. Hill v. Grant, Id. 
 200. McArthur v. Pease, 46 Barb. 423. 
 Ayres v. Duprey, 27 Tex. 593. Stewart 
 Stringer, 41 Mo. 400. Rivard v. Gar- 
 diner, 39 111. 125. Rice V. GrofF, 58 
 Penn. 116. Boyd v. Murray, Phil. (N. 
 C.) Eq. 238. Susquehanna, &c. Co. v. 
 Finney, 58 Penn. 200. Allen v. Martin, 
 10 Wend. 300. Boomer v. Lane, id. 
 525. Stimson v. Snow, 10 Me. 263. 
 Hill V. Kling, 6 Ohio, 135. Case v. 
 Redfield, 7 Wend. 398. Ins. Co. v. 
 Force, 8 How. 353. Barrett v. Cope- 
 land, 18 Vt. 67. Conner v. Silver, 26 
 Tex. 606. Smith v. Hornback, 3 A. 
 K. Marsh. 392. Dooley v. Woolcott, 4 
 Allen, 606. Wilson v. Hurst, I Pet. C. 
 C. 441. Diller v. Roberts, 13 S. & R.' 
 
 60. Bott V. Burnell, 11 Mass. 163' 
 Whittaker y. Sumner, 7 Pick. 551. 
 Lawrence v. Pond, 17 Mass. 433. 
 Reeves v. Reeves, 33 Mo. 28. Tullis v. 
 Brawley, 3 Minn. 277. Hotchkiss v. 
 Hunt, 56 Me. 252. Stiles v. Knapp, 2 
 Geo. 36. Polleyv Lenox, 4 Allen, 329. 
 Folsom V. Carli, 5 Minn. 333. McDon- 
 ald V. Leewright, 31 Mo. 29. Rhorer 
 V. Terrill, 4 Minn. 407. McGough t. 
 Wellington, 6 Allen, 505, Morford v. 
 Thomas, i Ky. (Dec.) 251. Rollins v. 
 Mooers, 25 Me. 192. Haynes v. Wheat, 
 9 Ala. 239. McBee v. State, I Meigs, 
 122. Sawyer v. Curtis, 2 Ash. 127. 
 Mentz V. Hanman, 5 Whart. 150. 
 Sample v. Coulson, 9 W. & S. 62. 
 Brown V. Davis, 9 N. H. 76. Zion 
 Church V. St. Peter's Church, 5 W. & S. 
 215. Burr V. Moody, Wright (0.),449. 
 Burger v. Beckett, 6 Blackf. 61. Houser 
 V. Hampton, 7 Ired. 333. Daniel v. 
 Justices, Dudley (Ga.) 2. Wood v. 
 Doane, 20 Vt. 612. Ringold v. Ed- 
 wards, 7 Ark. 86. Doe v. IngersoU, 
 19 Miss. 249. Humphries v. Lawson 
 7 Ark. 341. Palmer v. Clarke, 2 Dev. 
 354. Dodge V. Farnsworth, 19 Ma 
 
Chap. XIII.] 
 
 OF THE RETURN. 
 
 391 
 
 Nor can the officer be made to contradict it.' He is 
 bound by it, and can not impeach it, being intrusted bylaw 
 -with the performance of a duty of which a record has been 
 made, and it imports absolute verity.' If incorrect he must 
 
 -278. Lothrop V. Abbott, 16 Me. 421, 
 Holmes v, Baldwin, 17 Id. 391. 
 ■Chase v. Hazelton, 7 N. H. 171. Ty- 
 ler V. Smith, 8 Mete. 599. Flick v. 
 Troxell, 7 W. & S. 65. Kicksey v. 
 Bates, I Ala. 303. Hoffman v. Dauner, 
 14 Penn. 25. Grover v. Howard, 31 Me. 
 546. Shortwell v. Hamblin, 23 Miss. 
 156. Martin v. Barney, 20 Ala. 369. 
 31ayton v. Chester, 4 Mass. 478. Ester- 
 brook V. Hapgood, 10 Id. 313. Bean v. 
 Parker, 17 Id. 591. Hawks v. Baldwin, 
 Brayt. 85. Boston v. Gileston, 11 Mass. 
 468. Lewis V.Blair, i N.H.68. Wil- 
 liams V. Lownds, I Hall, 579. Trigg v. 
 Lewis, 3 Litt. 129. Shottenkirk v. 
 Wheeler, 2 Johns. (C. R.) 275. Albany 
 City Bank v. Dorr, Walker Ch. 317. 
 •Goubot V. DeCrouy, I C. & M. 772. 
 -Stevens v. Brown, 3 Vt. 420. . 
 Bamford 1. Melville, 17 Me. 14. 
 :Sraall v. Hogden, i Litt. 16. Slade v. 
 Inhabitants, &c., 4 Mass. 179. Cald- 
 -wells V. Harlan, 3 Monr. 351. Boyn- 
 ton V. Willard, 10 Pick. 169. Whiting 
 v. Bradley, 2 N. H. 79. Sergeant, &c. 
 V. George, 5 Litt. 198. McConnell v. 
 Bowdry, 4 Monr. 392. Tribble v. 
 Frame, 3 Id. 51. AUender v. Riston, 
 2 G. & S. 86. Putman v. Man, 3 
 Wend. 202. Sias v. Badger, 6 N. H. 
 392. Phillips v. Demoss, 14 111. 410. 
 Castner v. Styer, 3 Zabr. 236. With- 
 ■erell v. Goss, 26 Vt. 748. Angler v. 
 Ash, 26 N. H. 99. Newton v. State 
 Bank, 14 Ark. 9. Fenwick v. Fenwick, 
 -2 W. Black, 788. Gardner v. Covey, i 
 ■Gale, 45. Carlile v. Parkins, 3 Stark. 
 'J63. Anon. Loft, 371. Huntress v. 
 Tiney, 39 Me. 237. Wendell v. Mug- 
 
 ridge, 19 N, H. rog. Angell v. Bow- 
 ler, 3 R. I. 77. Packard v. Wood, 4 
 Gray, 307. Crow v. Hudson, 21 Ala. 
 560. Bunker v. Gilmore, 40 Me. 88. 
 Halowell v. Page, 24 Mo. 490. Mes- 
 ser V. Bailey, 31 N. H. 9. State v. 
 Clerk, &c. i Dutch. 209. Knowlton 
 V. Ray, 4 Wis. 288. Clough v. Moore, 
 34 N. H. 381. Ladd v. Wiggin, 35 
 Id. 421. White River Bank v. Dow- 
 ner, 29 Vt. 332. Sellinger v. Higgins, 
 26 Mo. 180: Pratt V. Phillips, i Sneed, 
 543. Hinckley v. Buchanan, 5 Cal. 
 53. Zimmerman v. Mer. Nat. Bank, 
 
 I Mich. (N. P.) 14. Grandy v. Mac- 
 pherson, 7 Jones L. 347. Mueller v. 
 Bates, 2 Disney, 318. Bowen v. Park- 
 hurst, 24 111. 257. PuUen V. Haynes, 
 
 II Gray, 379. Bank v. Eastman, 44 
 N. H. 431. 
 
 ' Washington, &c. Co. v. Kinnear, 
 
 I Wash. Ter. R. 116. 
 
 ' Micken v. Commonwealth, 58 
 Penn. 203. Mildmay v. Smith, 2 
 W. Saund. 343. Butler v. State, 
 20 Ind. 169. Vilas v. Reynolds, 6 
 Wis. 214. Planters' Bank v. Walker, 
 
 II Miss. 409. Benjamin v. Hatha- 
 way, 3 Conn. 528. Cluley v. Lock- 
 hart, 59 Penn. 376. Sheldon v. Payne, 
 7 N. Y. 453. Huntress v. Tiney, 39 
 Me. 237. Sutton v. Allison, 2 Jones 
 L. 339. Heffner v. Reed, 3 Grant, 
 245. Hurlburt v. Mayo, I Chitt. 300. 
 Cowan V. Wheeler, 31 I^le. 439. Hus- 
 tick V. Allen, Coxe, 168. Martin v. 
 Barney, 20 Ala. 369. Blue v. Com- 
 monwealth, 2 J. J. Marsh. 26. Phelps 
 V. Parks, 4 Vt. 488. Commonwealth 
 V. Fuqua, 3 Litt. 41. Field v. Smith. 
 
392 
 
 ON EXECUTIONS. 
 
 [Chap. XIII. 
 
 obtain leave to amend.' It is conclusive evidence of the 
 competency of the appraisers." It is conclusive to 
 show that the property belonged to the defendants,' 
 and conclusive that he received the amount of the exe- 
 cution, but no evidence whatever that he has paid the 
 .money to the party entitled thereto.' Even though no 
 money was received by him, as where he takes a note,' if he 
 returns a levy made, it is conclusive that he has seized the 
 property and taken it into his possession ; " and his indorse- 
 ment on the execution of the time of its reception is con- 
 clusive that it was in his hands at that time.' And this 
 whether the return be made by himself or deputy," for in 
 law the officer and his deputy are one and the same. But 
 they may prove facts dehors their returns not inconsistent 
 therewith,' he may, after seizure, show that the goods were 
 not the debtor's." While an officer can not be permitted to 
 contradict his own return, if he sells property for a sum 
 
 2 M. & W. 388. Foster v. Cookson, 
 I Q. B. 419. Lawson v. Main, 4 Ark. 
 184. Hayne.s v. .Small, 23 Me. 14. 
 Wager v. Andrews, 13 Id. 168. Wells 
 V. Bennefield, Wright (O.), 20i. Mur- 
 rell V. Smith, 3 Dana, 462. Welsh v. 
 Bell, 32 Penn. 12. Trigg v. Lewis, 
 
 3 Litt. 129. 
 
 ' Henry v. Stone, 2 RaiifL 455. 
 
 'Campbell v. Webster, 15' Gray, 
 28, Dooley v. Wolcott, 4 Allen, 406. 
 
 ' Kicksey v. Bates, I Ala. 303. 
 Thornton v. Winter, g Id. 613. 
 
 * Sheldon v. Payne, 7 N. Y. 453. 
 Cator V. Stokes, i M. & G. 599. Bar- 
 ney V. Weeks, 4 Vt. 146. Sanborn v. 
 Baker, I Allen, 526. First v. Miller, 
 
 4 Bibb, 311. Williams v. Chees- 
 hough, 4 Conn. 356. Hopkins v. For- 
 sythe, 14 Penn. .34. Gardner v. Hos- 
 rer, 6 Mass. 235. Scott v. Seller, 5 
 Watts, 235. Meredith v. Shewell, i 
 Penn. 496. Shewell v. Fell, 3 Yates, 
 14. Armstrong v. Garrow, 6 Cow. 
 
 465. Denton v. Livingston, 9 Johns.. 
 98. Townsend v. Olin, 5 Wend. 207. 
 
 ' Eastman v. Bennett, 16 Wis. 232. 
 Holt V. Robinson, 21 Ala. 106. Tif- 
 fany V. Johnson, 27 Miss. 227. Fieldl 
 V. Smith,^Dowl. P. C. 735. Sutton v. 
 Allison, 2 Jones L. 339. Doty v. Tur- 
 ner, 8 Johns. 20. 
 
 ' Welsh V. Bell, 32 Penn. 12. 
 
 ' Williams v. Lowndes, I Hall, 579.. 
 
 » Sheldon v. Payne, ^ N. Y. ISS- 
 Townsend v. Olin, 5 Wend. 207. 
 Paxton V. Stickel, 2 Penn. 93. Pur- 
 rington v. Loring, 7 Mass. 392. 
 Doty V. Turner, 8 Johns. 20. Haynes. 
 V. Small, 22 Me. 14. Barrett v. Cope- 
 land, 18 Vt. 69. Gardner v. Hosmer,. 
 6 Mass. 327. 
 
 ' Evans v. Davis, 3 B. Monr. 344. 
 
 '» Remmett v. Lawrence, 15 Q. B., 
 1004. Fuller v. Holden, 4 Mass. 498. 
 Leonard v. Bryant, 13 Id. 224. 
 Tyler v. Ulmer, 12 Id. 163. Whiting 
 V. Bradley, 2 N. H. 83. 
 
Chap. XIII.] OF THE RETURN. 3G3 
 
 specified in his return, and does not actually receive the 
 money, but the execution creditor, who is himself the pur- 
 chaser, receipts for the whole or part of his bid as money, 
 the parties at the time regarding that as payment, the 
 officer will be allowed to prove what the facts really were, 
 in a contest between himself and the purchaser. Especially 
 will this be the case where the return does not set forth a 
 payment of money.' 
 
 A return by an officer that he has sold the land taken in 
 execution, and received a statutory bond, is conclusive of the 
 fact of sale, the execution of the bond, and who were the 
 purchasers and sureties, unless falsified by a judicial sen- 
 tence in a proceeding in which the officer was a party." 
 The legal effect of a return may be inquired into.' A return 
 of an authorized officer has the same force and effect as is 
 given to the return of a known officer.' Courts are governed 
 by the officer's return.' The return of the officer being a 
 matter of record, and being, therefore, conclusive, no other 
 court, in collateral actions, can inquire into the matters set 
 forth therein. If the return is false, the officer is answerable 
 for it to the proper party in a proper action, but its truth or 
 falsity can not be inquired into in an action between other 
 parties.' Nor is a stranger permitted to inquire into any 
 defects in the return.' In opposition to the uniform and 
 almost universal course of decisions in regard to the conclu- 
 sive effect of an officer's return, and the well-settled principles 
 governing the effect of a return, there are two states that hold 
 
 ' Shotwell V. Hamblin, 23 Miss. 156. v. Parker, 26 Wend. 622. Story v. 
 
 Langdon y. Summers, 10 Ohio St. Kelly, 2 Paige, 418. Learned v. An- 
 
 77. denburg, 7 How. Pr. 397. ' 
 
 ' T"Sg ^- Lewis, 5 Litt. 129. ' Terrill v. Anschauer, 14 Ohio St. 
 
 • Doe V. IngersoU, 19 Miss. 249. 80. Rhonemuss v. Corwin, 9 Id. 366. 
 
 • Downer v. Buck, 25 Vt. 259. Davis v. Campbell, 12 Ind. 192. 
 ' Wilson V. Gannon, 54 Me. 384. Phillips v. Coffee, 17 111. 154. Moore 
 
 • Stewart v. Stockton, 13 S. & R. v. Titman, 33 Id. 359. Holbern v. 
 199. Armstrong v. Rickey, 2 B. Murphy, 20 Mo. 447. McFee v. Har- 
 R. 150. In re Winn, I Id. 131. ris, 25 Penn. 103. Swiggert v. Har- 
 Mueller v. Bates, 2 Disney, 318. Per- ber, 5 111. 364. Gunn v. Howell, 35 
 rin V. Everett, 13 Mass. 128. Evans Ala. 144. 
 
394 ON EXECUTIONS. [Chap. XII^ 
 
 a doctrine contrary to that herein set forth, and in those states, 
 the return, of the officer is merely prima facie evidence of 
 the facts stated therein.' An officer may contradict his return 
 as against a person who fraudulently procures him to make 
 it." Where the acts of the officer constituting the return 
 are mala fides, or in violation of law, or beyond the scope of 
 official duty, it may be collaterally impeached.' 
 
 § 243. When it is prima facie evidence. In certain cases 
 a return is but prima facie evidence of the matters therein 
 contained. In actions between third parties, where the 
 matters returned come collaterally in issue, and where the 
 interests of such parties are not connected with the action in 
 which the return was made.* In actions of trover or tres- 
 pass, by an officer, for goods levied upon by him, or for an in- 
 jury thereto, his return is pri^na facie evidence of the levy 
 and possession, and to identify the property levied upon,' 
 and is evidence that the writ was directed to him ;' or in a 
 collateral issue to try the right to the proceeds of the sale ;' 
 or when made on a writ in the officer's hands for years ;' 
 and in actions to recover the purchase price of lands sold 
 under an execution by him, the return is prima facie that 
 
 ' Butts Y. Francis, 4 Conn. 424. v. Oldham, 2 Burr. 22. Alworth v. 
 
 Watson V. Watson, 6 Id. 234. Sand- Kemp, I Doug. 40. Kendall v. White, 
 
 ford V. Nichols, 14 Id. 324. Palmer 3 Me. 245. Lawrence v. Young, i 
 
 >. Thayer. 28 Id. 237. Waddell v. La. Ann. 297. Pailhes v. Thirlen, Id. 
 
 Judson, 12 La. Ann. 13. Grant v. 34. Gyfford v. Woodgate, 11 East, 
 
 Harris, 16 La. 323. 297. Cockerell v. Smith, I La. Ann. 
 
 ' Evaiis V. Matson, 51 Penn. 366. i. Patterson v. Britt, 11 Ired. 383. 
 
 ' Wood V. Chilcoat, i Cold. 243. Burrows v. Wright, 19 Vt. 510. 
 
 * Allen V. Gray, II Conn. 95. Dut- ' Loftin v. Huggins, 2 Dev. 10. 
 
 ton V. Tracy, 4 Id. 94. Caldwell v. Stanton v. Hodges, 6 Vt. 64. Lowry 
 
 Harlan, 3 Monr. 349. Baker v. Mc- v. Cady, 4 Id. 504. Cornell v. Cook, 
 
 Duffie, 23 Wend. 289. Russell v. 7 Cow. 310. Spoor v. Holland, 8 
 
 Gray, II Barb. 541. Bott v. Burnell, Wend. 445. Earl v. Camp, 16 Wend. 
 
 9 Mass. 96. Field v. U. S., 9 Peters, 562. 
 
 183. Whiting V. Bradley, 2 N. H. » Slack v. Loudon, I Esp. 42. 
 
 82. Henderson V. Evans, 14 Barb. 15. ' Lowry v. Coulter, 9 Penn. 349. 
 
 Hyskell v. Gwiri, 7 S. & R. 371. Mes- « Williams v. Carr, i Rawle, 
 
 ser V. Bailey, 31 N. H. 9. Bloxham 420. 
 
Chap. XIII.] OF THE RETURN. 395 
 
 the defendant was the purchaser.' A return that he deliv- 
 ered seizin and possession to the creditor's attorney, is prima 
 facie evidence that the person named was attorney, and re- 
 ceived possession." So in an action for his fees, it will be 
 prima facie evidencethat the services were rendered. In 
 actions against officers of acts done under the writ, which 
 they were bound to perform.' Of the capacity of the 
 returning officer.* A return that he has delivered a deed to 
 the purchaser does not prevent the purchaser from showing 
 that he has received none, this being no contradiction.' As 
 to the particular tract of land sold.' As to the application 
 of part of the proceeds in payment of a prior lien.' Or that 
 it was satisfied in accordance with special directions of the 
 creditor." Satisfaction where he acts in violation of his duty, 
 as taking a note in place of making the money as command- 
 ed by the writ." Of any official act under the execution 
 which will be a legal excuse for not completing the proceed- 
 ings thereunder, when it is in his favor, and sets forth a valid 
 excuse for not having sold goods, such as, that they were 
 destroyed by fire, or that the proceedings were stayed by 
 order of the court or the creditor." Where a sale is void by 
 reason of a failure to comply with certain statutory require- 
 ments, parol evidence has been admitted to contradict the 
 officer's return." In actions of false return against the offi- 
 
 ' Wyatt V. Stewart, 34. Ala. 716. Mumford v. Armstrong, 4 Id. 553. 
 
 Hyskill V. Given, 7 S. & R. 369. Bank v. Wakeman, i Id. 46. 
 
 '^Wilson V. Gannon, 54 Me. 384. "> Andress v. Crawford, 11 Ala. 853. 
 
 ' Browning v. Hanford, 5 Den. Whitehead v. Keyes, 3 Allen, 495. 
 
 580. Owens V. Ranstand, 22 111. Briggs v. Green, 33, Vt 565. Kings- 
 
 161. bury V. Buchanan, 11 Iowa, 387. Fos- 
 
 * Taylor v. Duke of Leeds, 3 Stark, ter v. Dryfus, 16 Ind. 158. PoUey 
 
 N. P. C. 2i8. V. Lenox, &c. Works, 4 Allen, 
 
 ' Gregg V. Strange, 3 Ind. 366. 329. Browning v. Hanford, 7 Hill, 
 
 ' Jackson v, Jackson, 13 Ired. 159. 120. 
 
 Tucker v. Bond, 23 Ark. 268. " Lloyd v. Angling, 7 Yerg. 428. 
 
 ' GrifiSth V. Ketcham, 12 Johns. Trott v. Gordon, i Id. 469. Rogers 
 
 378. V. Jennings, 3 Id. 308. Mitchell v. 
 
 ' Townsend v. Olin, 5 Wend. 207. Lipe, 8 Id. 179. Delogny v. Smith, 
 
 ' Armstrong v. Garrow, 6 Cow. 465. 3 Milh. (La.) 418. 
 
396 ON EXECUTIONS. [Chap. XIII. 
 
 cer,' it may be contradicted by the officer, where he brings 
 an action against his deputy for money which he has been 
 compelled to pay, by reason of the deputy's neglect of 
 duty. 
 
 § 244. Of the date of the, return. The date of the 
 return is not conclusive as to the time actually filed by him 
 in court, that filing being the return required by law.' It is 
 a matter in pais, and may be proved by parol.' If it has 
 been returned without date, the law will presume it was re- 
 turned in due time,' It refers to the return day of the writ.*^ 
 If a return has two dates, one inconsistent with the other, 
 one will be rejected in order to sustain it." A return found 
 in the office of the sheriff must be taken to have been regu- 
 larly made ; it can not be disproved.' 
 
 § 245. Effect of return. A receipt for costs indorsed 
 on it by the officer prevents a judgment from becoming 
 dormant, no matter which party to the action pays them.' 
 The fact of a return appearing on an execution sufficiently 
 shows that he was an officer holding the same, and that he 
 held it for the purpose of its legal enforcement.* A return 
 " satisfied " raises the presumption that the money due on 
 it was paid before the return day, and the mere fact that 
 the date of the return was after the return day does not 
 rebut that presumption." 
 
 §246. Lost RETURN; how proven. A sheriff's return on 
 an order of sale, showing that he had collected money there- 
 on, is a part of the record of the proceedings. And it is com- 
 
 ' Barrett v. Copeland, 18 Vt. 67. * Thornton v. Lane, II Geo. 459. 
 
 Bott V. Burnell, 11 Mass. 103. Sus- Irod v. Addison, 6 Miss. 432. Hale's 
 
 . quehanna, &c. Co. v. Finney, 58. Appeal, 44 Penn. 438. 
 
 Penn. 200. Miller v. Moses, 56 Me. •* Maury v. Cooper,3 J. J. Marsh. 224. 
 
 129. Hinckley v. Buchanan, 5 Cal. 53. " Price v. Cloud, 6 Ala. 248. 
 
 Bean v. Parker, 17 Mass. 591. Whit- • Shove v. Dow, 13 Mass. 529. 
 
 taker v. Sumnev, 7 Pick. 551. Reeves ' Sample v. Coulson, 9 W. & S. 62. 
 
 V. Reeves, 33 Miss. 28. Butts v. ' Thrasher v. Foster, 42 Ga. 212. 
 
 Francis, 4 Conn. 424. Magne v. Sey- Clark v. Fagan, Id. 269. 
 
 mnur, 5 Wend. 309. ' Cawe v. Brigham, 39 Me. 33. 
 
 • Conklin v. Parker, l Ohio S. 28. '» Barton v. Lockhart, 2 Stew. & P. 
 
 Hale's Appeal, 44 Penn. 438. log. 
 
Chap. XIII.] OF THE RETURN. 397 
 
 patent to show hy parol evidence the contents of a sheriff's 
 return as a lost record." 
 
 § 247. When a return will be quashed. Where the 
 levy and return are not made in accordance with law, or 
 ■where the facts stated in the return show that there was no 
 levy, it will be quashed ;' or where there is no data to amend 
 by, and the officer who executed the writ is dead.' It will 
 not be quashed because the appraisement is too high.* It 
 does not per se set aside the sale if the return is quashed. 
 An order setting it aside should be made.' Before any 
 proceedings are taken to quash or set aside a return, notice 
 should be given to the defendant; if none is given, the order 
 of the court is absolutely void.' 
 
 § 248. Amendment of returns. The general rule is that 
 -where an officer makes an official return of his proceedings 
 upon final process, which is incorrect or erroneous as to facts, 
 he may within his term of office, and even after the expira- 
 tion of his term of office, and within the limits necessary for 
 the protection of any intervening rights, amend his return 
 so as to state the truth and conform to the facts of the case.' 
 Courts should exercise great liberality in allowing officers to 
 amend their returns, so as to make them conform to the 
 true state of facts, and to correct errors and mistakes,' where 
 the rights of third persons are not affected thereby.' Until 
 the execution and return is actually filed in the proper office, 
 the return is not complete, and is subject to the control of 
 
 ' Ferguson v. Tutt, 8 Kans. 370. v. State, 2 Greene (Iowa), 492. Green 
 
 ' Bryan v. Bridge, 6 Tex. 137. v. Glassbrooke, 2 Scott, 261. Webster v. 
 
 " Jarboe v. Hall, 37 Md. 345. Blount, 39 Mo. 500. Dunn v. Rogers, 
 
 * Stuart V. Russum, 3 Harr. 483. 43 111. 260. Johnson v. Addleman, 35 
 
 ' Schobee V. Dedman, 2 Litt. 116. Id. 265. Fitzgerald v. Garvin, T. U. 
 
 ' Parks V. Person, I S. & M. Ch. P. Charlt. 284. Hopkins v. Bunch, 3 
 
 76. Geo. 222. Freeman v. Carhart, 17 
 
 ' Mayer v. Chattahoochee Bank, 46 Id. 348. Jay v. Carthage, 48 Me. 353. 
 
 •Geo 606. Atkinson v. Rhea, 7 Humph. Thomason v. Bishop, 24 Tex. 302. 
 
 59. Montgomery v. Brown, 7 111. Spoor v. Holland, 8 Wend. 445. 
 
 581. Johnson v. Stone, 40 N. H. 197. » G9.vitt v. Doub, 23 Cal. 78. 
 
 Vastine v. Fury, 2 S. & R. 426. Wood- • Baker v. Duffie, 23 Wend. 489. 
 
 •ward V. Harbin, 4 Ala. 534. Patterson Adams v. Smith. 5 Cow. 280. 
 
898 
 
 ON EXECUTIONS. 
 
 [Chap. XIII. 
 
 the officer executing the writ, and may be amended by him 
 without permission o£ the court.' But after it has been filed 
 it then becomes a matter of record, and cannot be amended 
 without leave of court, which upon proper showing by the 
 officer, either party," or a purchaser,' may be amended,* and 
 is allowed as a matter of course," and without giving notice 
 to the opposite party.' But no amendment should be per- 
 mitted without notice to the adverse party.' The power of 
 the courts in permitting and allowing amendments is to be 
 exercised liberally, for the purpose of sustaining proceedings 
 pending therein, against technical objections, whenever new 
 rights founded on such return have not arisen, or innocent 
 parties will not thereby suffer or be prejudiced. It is solely in 
 the interests of justice that this power is to be used, to prevent 
 wrong and to guard against the errors of the ministerial officers 
 of the court. Every court is bound to protect parties from 
 the negligence, mistakes and errors of its officers.' Being 
 
 ' Welsh V. Joy, 13 Pick. 477. Spoor 
 V. Holland, 8 Wend. 445. 
 
 ' Williams v. Rogers, 5 Johns. 162. 
 
 ' Fowble Y. Rayberg, 4 Ohio, 45. 
 Clark v.. Belmear, i G. & J. 443. 
 
 * Corby v. Burns, 36 Mo. 194. Bar- 
 ker v. Bininger, u N. Y. 270. Rex 
 V. Monmouth, i Marsh. 344. Patter- 
 son V. State, &c., 2 Greene (Iowa) 
 575. Symonds v. Harris, 51 Me. 14. 
 Hawley v. Sidelinger, 52 Me. 138. 
 Bacon v. Eassett, ig Wis. 45. Baker 
 V. McDufEe, 23 Wend. 289. Governor 
 V. Bancroft, 16 Ala. 605. 
 
 ' Avery v. Bowman, 39 N. H. 393. 
 Thomas v. Browden, 33 Tex. 783. 
 Turney v. Organ, i6 111. 43. Messner 
 v. Lewis, 20 Tex. 221. Wright's Ap- 
 peal, 25 Penn. 373. Walter v. Palmer, 
 18 Ind. 279. Hart v. Adams, 7 Gray, 
 581. Jackson v. Ohio R. R. Co., 15 
 Ind. 192. 
 
 • Dunn v. Rodgers, 43 111. 260. 
 Kitchen v. Reinsky, 42 Mo. 427. 
 
 Walker v. Commonwealth, 18 Gratt. 
 13. Hammond v. Eaton, 15 Gray, 
 186. Morris v. Trustees, &c., 15 111. 
 266. 
 
 ' Williams v.* Doe, g Miss. 559. 
 Wilkie v. Hall, 15 Conn. 32. Hess v. 
 Cole, 3 Zab. 116. Jordan v. Hyatt, 3 
 Barb. 275. Owners, &c. v. Mayor, 
 &c., 15 Wend, 374. Chase v. Hatha- 
 way, 14 Mass. 224, Copwood v. 
 Morgan, 34 Miss. 368. 
 
 ' Close V. Gillespie, 3 Johns. 526. 
 Neele v. Berryhill, 4 How. Pr. 16; 
 Humphries v. Lawson, 7 Ark. 341. 
 Clayton v. State, 24 Id. 16. Gavitt v. 
 Doub, 23 Cal. 78. Dunn v. Rogers, 
 43 111. 260. Turney v. Organ, i6 Id. 
 43. Walter v. Palmer, 18 Ind. 279. 
 Jackson v. R. R. Co., 15 Id. 192. 
 Patterson v. State, &c., 2 Greene 
 (Iowa) 492. Whittier v. Vaughn, 27 Me. 
 301. Symonds v. Harris, 51 Id. 14. 
 Pratt V. Wheeler, 6 Gray, 520. Corby 
 V. Burns, 36 Mo. 194. Avery v. Bow- 
 
Chap. XIII.] qF THE RETURN. 399 
 
 a matter of •judicial discretion it will not be granted 
 where injustice would be caused by the amendment ; ' 
 or whenever third persons may have acquired rights in con- 
 sequence of an error in an officer's return, an amendment 
 ought not to be allowed ; if it is permitted, it should be ac- 
 companied by such restrictions and reservations as will protect 
 those rights ;" and where, after a long lapse of time, the offi- 
 cer asks for leave to amend in respect to the omission of 
 a material fact, which might have rendered him liable in an 
 action, he will not be permitted to amend, for the reason 
 that it will be unsafe to expose officers to so much tempta- 
 tion.' There being no fixed rule as to time in which amend- 
 ments are allowed, they have been allowed several years 
 ^fter their date ;* and, upon proper showing, after the 
 filing of the motion or the commencement of an action 
 against him, upon such return, for the purpose of relieving 
 him from the liability which his original" but erroneous re- 
 turn has exposed him to ;' or after the return has been 
 
 man, 39 N. H. 393. Harper v. Miller, bert v. Hill, 41 Me. 275. Webber v. 
 4 Ired. 34. Sheldon v. Comstock, 3 Hutchins, 8 M. & W. 319. Freeman 
 R. I. 84. Broughton v. Allen, 6 v. Paul, 3 Me. 260. 
 Humph. 96. Messner v. Lewis, 20 ' Thacher v. Miller, 13 Mass. 270. 
 Tex. 221. Porter v. Miller, 7 Id. Emerson v. Upton, g Pick. 167. Kit- 
 468. Walker v. Commonwealth, 18 tredge v. Bellows. 4 N. H. 431. 
 Gratt. 13. Dawson v. Moons, 4 Means v. Osgood, 7 Me. 146. Wol- 
 Munf. 535. Hammond V. Eaton, 15 cott v.Ely, ^ Allen, 338. 
 Gray, 186. Parker v. Warren, 2 * Oilman v. Stetson, 16 Me. 124. 
 Allen, 187. Scruggs v. Scruggs, 46 Mo. 271. Fow- 
 ' Miller v. Shackleford, 4 Dana, 264. ble v. Rayberg, 4 Ohio, 45. Rucker 
 ' Webster v. Haworth, 8 Cal. 25. v. Harrison, 6 Munf. 181. Smith v. 
 Newhall V. Provost, 6 Id. 85. Means Daniel, 3 Murph. 128. Scott v. Seller, 
 V. Osgood, 7 Me. 146. Bear^ v. Spear, 5 Watts, 235. Planters' Bank v. 
 13 Id. 187. Bannister V. Higginson, Walker, II Miss. 409. Johnson v. 
 15 Id. 73. Fairfield v. Paine, 23 Id. Day, 17 Pick. 196. Whittier v. Var- 
 498. Putnam v. Hall, 3 Pick. 445. ney, 10 N. H. 291. Adams v. Rob- 
 Williams V. Brackett, 8 Mass. 240. inson, i Pick. 461. Wilson v. Ray, 
 Emerson v. Upton, 9 Pick. 167. Bow- T. U. P. Charlt. 109. Moreland t. 
 man v. Stark, 6 N. H. 459. Davidson Ruffin, Minor, 18. Woodward v. Har- 
 V. Cowan, i Dev. 304. Ohio, &c. Co. bin, 4 Ala. 534. 
 
 V. Urbana, &c. Co., 13 Ohio, 220. ' Broughton v. Allen, 6 Humph. 96. 
 
 Baker v. Davis, 22 N. H. 27. Lam- Hodges v. Laird, 10 Ala. 678. Bucs 
 
400 ON EXECUTIONS. [Chap. XIII. 
 
 quashed ;' any time after the return day, even when important 
 consequences may be pi-oduced, when there is anything, 
 according to the facts, to amend by." But where there is 
 nothing appearing of record to amend by, and the officer has 
 become an interested party after the expiration of his term, 
 it will not be allowed f nor after the officer's death ;* nor upon 
 the motion or request of a stranger.' But where -the re- 
 turn contains sufficient to indicate' that all the statutory 
 requirements have been complied with, an amendment may 
 be made, notwithstanding any intervening interest of a subse- 
 quent purchaser or creditor ;' or where the party intervening 
 could not have misunderstood on looking at the original 
 return, that the proceedings were substantially what the 
 amended return shows them to have been.' But not where 
 the whole return, if amended to conform to the truth, 
 would show an invalid levy.' An officer can not be com- 
 pelled to amend f but it is his duty to so amend his return, 
 upon leave granted by the court, as to make it correspond 
 to the facts in the case." Where a larger sum was returned 
 than was levied," so as to make the levy good." Or a fact 
 
 V, Hardy, 6 Me. 162. Trotter v. v. Wetster, 44 N. H. 264. Hunting- 
 Parker, 38 Miss. 473. Smith v. ton v. Burt, 18 Id. 276. 
 Knight, 20 N. H. 9. Thomas v. ' Smith v. Moore, 17 N. H. 380. 
 Browden, 33 Tex. 783. Gorham v. Pierce v. Strickland, 26 Me. 277. 
 Hood, 27 Geo. 299.- Niolin v. Ham- Fairfield v. Paine, 24 Id. 498. 
 nier, 22 Ala. 578. People v. Ames, 35 * Wilson v. Greathouse, 2 111. 174. 
 N. Y. 482. Wadsworth v. Miller, 4 ' Cawthorne v. Knight, 11 Ala. 268. 
 Gratt. 99. Brinckley v. Mooney, g • Glidden v. Philbrick, 56 Me. 22. 
 Ark. 445. Cody v. Quinn, 6 Ired. 191. Avery v. Bowman, 39 N. H. 393. 
 Stone V. Wilson, 10 Gratt. 529. ' Whittier v. Vaughn, 27. Me. 301. 
 
 ' Porter v. Miller, 7 Tex. 468. • Wolcott v. Ely, 2 Allen, 338. 
 
 ' Ladd V. Dudley, 45 N. H. 61. ' Humphries v. Lawson, 7 Ark. 341. 
 
 Trotter v. Parker, 38 Miss. 473. Vastine v. Fury, 2 S. & R. 426. 
 
 Avery v. Bowman, 39 N. H. 393. Sawyer v. Curtis, 2 Ashmead, 127. 
 Atkinson v. Rhea, 7 Humph. 59. "> Thornton v. Miskimmon, 48 Mo. 
 
 Smith v. Daniel, 3 Murph. 128. Ma- 219. Webster v. Blount, 39 Id. 500, 
 
 hurin v. Brackett, 5 N. H. 9. Bullitt Alexander v. Merry, 9 Id. 514. Crow, 
 
 v. Winston, i Munf. 269. Whittier ley v. Wallace, 12 Id. 143. 
 v. Varney, 10 N. H. 291. Farming. " Green v. Glassbrooke, 2 B. N. C. 
 
 ton T. Somersworth, 44 Id. 389. Pratt 143. 
 V. Wheeler, 6 Gray, 520. Derry Bank " Morrell v. Cook, 31 Me. 190. 
 
Chap. XIII.] (JF THE RETURN. 401 
 
 necessary to the validity of a sale under execution.' By affix- 
 ing his signature to the return." Where it is argumentative as 
 to facts,' or defective on its face.* Where the description is 
 inaccurate, if the deed minutely describes the land sold.' 
 Where there is an olnission of one of several parcels of land 
 sold.' Omitting to indorse a return, — it may be done, nunc 
 pro tunc, upon payment of costs ; ' by stating that the same 
 property had been levied on, and is subject to prior execu- 
 tions,' or that a prior levy had been released by plaintiff's at- 
 torney." Omitting to state that the debtor had no other prop- 
 erty." By striking out a levy and sale, and returning nulla bo- 
 na^' or to show a levy when sued in trespass, so as to obtain the 
 protection of the process." Notice to a debtor under the N. E. 
 appraisement laws." Inaccuracies in stating the return, or in 
 the return." By adding his certificate of Jtulla bona after re- 
 turn day." But is not allowed after the death of the deputy 
 who executed the process, when the sheriff or any other dis- 
 interested person is not cognizant of the facts." Or after many 
 years," to show a larger levy than returned." Nor after the 
 expiration of his office, so as to release himself from responsi- 
 bility for having made an insufficient or no return." Or pend- 
 
 ' Hopkins v. Burch, 3 Geo. 222. ' McArthur v. Carrie, 32 Ala. 175. 
 
 ' Glidden v. Philbrick, 56 Me. 222. '" Broughton v. Allen, 6 Humph. 96. 
 
 Wilton, &c. Co. V. Butler, 34 Me. 430. " Dickinson v. Lippitt, 5 Ired. 560. 
 
 Child V. Burrows, g Met. 413. Veal Morrill v. Fitzgerald, 36 Tex. 275. 
 
 V. Perkinson, 47 Ga. 97. Dervolt v. Mallett, 3 Dana, 214. 
 
 ' Master v. Cooper, I Price P. C. 8. "* Gorham v. Hood. 27 Ga. 299. 
 
 ^ Zion Church v. St. Peter's Church, " Buck v. Hardy, 6 Me. 162. 
 
 5 W. & S. 115. " Williams v. Rogers, 5 Johns. 163. 
 
 ' Spear v. Sturdevant, 14 Me. 263. Hart v. Adams, 7 Gray, 581. Rapin 
 
 Scruggs V. Scruggs, 46 Mo. 271. Hun- v. Dealy, i Miles, 339. 
 tington V. Burt, 18 N. H. 276. War- " Woods v. Cooke, 61 Me. 215. 
 
 ren v. Ireland, 29 Me. 62. Douglas Austin v. Goodale, 58 Me. log. 
 V. McCoy, 5 Ohio, 522. " Jarboe v. Hall, 37 Md. 345. 
 
 ' Smith V. Hudson, I Cow. 430. " Libbey v. Copp, 3 N. H. 45. Da 
 
 Gansevoort v. Gilleland, Id. 218. vidson v. Cowan, i Dev. 304. Russ 
 
 ' Ingram v. Belk, 2 Strobh. 207. v. Oilman, ]6 Me. 209. 
 Nelson V. Brown, 23 Mo. 13. Hale v. '* Williams v. Houston, 71 N. C. 
 
 Ayer, 19 How. P. 91. 163. Phillipse v. Higdon, Busb. 
 
 ' Adams v. Smith, 5 Cow. 280. 380. 
 Cody V. Quinn, 6 Ired. igi. " MuUins v. Johnson, 3 Humph. 
 
 26 
 
402 ON EXECUTIONS. [Chap. XIII. 
 
 ing an action of trespass against him.' Or in an appellate 
 court.'' Nor a return of non est inventus, after the expiration of 
 the life of the writ.' A constable can not, after the expiration 
 of his term of office, amend or alter a levy made by him while 
 in office.* Where leave is given to amend, the return is bind- 
 ing upon all the parties,' and it relates back to the time 
 when the original should have been made; ° the original and 
 amendment constitute but one refurn.' The amendment 
 does not change the facts, but simply the evidence of facts; 
 if false as amended the officer liable for false return.' The 
 insertion of an untruth will not be allowed.' The amend- 
 ment does not eg'ect its credibility or competency," and is 
 valid though made after the expiration of the officer's term." 
 Where leave is given to amend a return, and an amended 
 copy is filed, and afterwards the amended copy is permitted 
 to be withdrawn, it leaves the original to stand without 
 amendment." Where an alias is issued, and tested as of a 
 day previous to the return day of the original, it is not void, 
 but voidable only for irregularity, and if necessary to make 
 it regular, the return of the original execution may be 
 amended so as to make it of the same date." 
 
 § 326; Who may and may not contest the regular- 
 ity of-officer's proceedings on execution. Proceed- 
 
 396. Howard v. Union Bank, 7 Id. 26. Monr. 295. Webster v.'Blunt, 39 Mo. 
 
 State V. Wylie, 2 McMillan, I. 500. Kitchen v. Reinsky,42 Id. 427. 
 
 ' McEhath v. Kintzing, 5 Penn. 336. Havens v. Snow, 14 Pick, 28. 
 
 = Piljcey V. Gleason, i Iowa, 85. ' Lyman v. Beam, 6 Whart. 181. 
 
 3 Orvis V. Isle La Motte, 12 Vt. 195. 8 Dunn v. Rogers, 43 111. 260. 
 
 * Jessup >r. Gragg, 12 Geo. 261. » Seatton v. Johnson, 4 Hayw. 199. 
 
 Hicks V. Ross, n Barb. 481. Johnson '» Smith v. Knight, 20 N. H. 9. 
 
 V. Donnell, 15 111. 97. Thomas v. Browden, 33 Tex. 783. 
 
 ' Symonds v. Harris, 51 Me. 14. Gorham v. Hood, 27 Geo. 279. Trot- 
 
 « Milliken v. Bailey, 61 Me. '316. ter v. Parker, 38 Miss. 473. 
 McArthurv. Currie, 32 Ala. 75. New- " Miles v. Davis. 19 Mo. 408. New- 
 ton V. Prather, 1 Duval, 100. Smith ton v. Prather, i Duval, 100. Cuah- 
 V. Leavitt, 10 Ala. 92. Brandon v. ing v. Land, 4 Ben. 70. Keen v. 
 Snows, 2 Stew. 255. Potts v. Ward, i Briggs, 46 Me. 467. 
 Marsh. 366. Hodges v. Laird, 10 Ala. 'i* Harnley v. Sidelinger, 52 Me. 138. 
 678. Malone v. Samuel, 3 A. K. '» Rammell v. Watson, 2 Vroom. 
 Marsh. 350. Mason v. Anderson, 3 281. 
 
Chap. XIII.] OF THE RETURN. 403 
 
 ings on execution as a general rule relate entirely to the inter- 
 ests and rights of the parties to the action — the plaintiff and 
 defendant. Third parties or strangers to the action have no 
 interest in the matter, except when an officer may levy on 
 their property, and in such cases the law provides a remedy for 
 any wrong inflicted upon them. In regard to the regularity or 
 irregularity of any of the proceedings under an execution, a 
 St: anger can not raise any question, nor can they be im- 
 peached or assailed in collateral actions.' Nor even a co-de- 
 fendant, when the property of his co-defendant is sold." A 
 fraudulent purchaser can not, where the property is seized 
 as that of the debtor.' Nor a claimant c>f goods in a suit 
 wherein he was not a party.* In an action against the pur- 
 chaser, the defendant in the execution can not take advan- 
 tage of any irregularities.' Nor can the defendant, after an 
 irregular sale, and the payment of the purchase-money, 
 defeat the purchaser's title, by paying off the judgment, set 
 aside the sale, and compel the purchaser to look to the officer 
 for reimbursement.' Nor can the titlfe of a purchaser be 
 
 ' Pugh V. Calloway, 10 Ohio S. 488. Houston, 16 Ala. iii. Pollard v. 
 
 Durham v. Heaton, 28 111. 264. Ful- Cocke, 19 Id. 188. State v. Young, 
 
 lerton's App., 46 Penn. 144. Ayres 6 Rich. 223. Russell v. Houston, 5 
 
 IT. Duprey, 27 Tex. 593. McCormick Ind. 180. Wray v. Miller, 20 Penn. 
 
 V. Wheeler, 36 111. 114. Smith v. Mc- iil. Hodges v. Mitchell, 27 Miss. 
 
 Gowan, 3 Barb. 404. Whittaker v. 560. Earle v. Thomas, 14 Tex. 583. 
 
 Petway, 4 Ired. 182. Mordecai v. Johnson v. Carson, 3 Iowa, 499. 
 
 Parker, 3 Dev. 425. Swirggart v. Hitchcock v. Rooney, 17 111. 231. 
 
 Harber, 5 111. 364. Berry v. Riley, Brown v. Hurt, 31 Ala. 146. Nixon 
 
 2 Barb. 307. Toombs' Appeal, 9 v. Cobleigh, 52 111. 387. Kelly v. 
 
 Penn. 6r. Howlowell v. Skinner, 4 Wiseman, 14 La. 661. Johnson v. 
 
 Ired. 165. Savage v. Forward, 7 Reese, 28 Geo. 353. Hendricks v. 
 
 Ala. 463. Fournier v. Curry, 4 Id. Davis, 27 Id. 167. Tyler v. Willis, 33 
 
 321. Riland v. Eckert, 23 Penn, 215. Barb. 327. Meeker v. Williams, I 
 
 Mosely v. Edwards, 2 Fla. 429. Gall. 419. 
 
 Landes v. Perkins, 12 Mo. 238. ' Hicks v. Perry, 7 Mo. 346. 
 
 Landes v. Brant, lO How. 348. ' Dagget v. Adams, I Me. 198. 
 
 Commonwealth v. Lelar, 13 Penn. * Glassells v. Wilson, 4 Wash. C. C. 
 
 22. Crawford v. Boyer, 14 Id. 380. 59. 
 
 Bennett v. Gamble, l Tex. 124. ' Emley v. Dunn, 36 Penn. 123. 
 
 Stephens v. Baird, 9 Cow. 274. Cooler Boyd v. Jones, 49 Mo. 202. 
 
 r. Harter, I Ind. 427. Smit' v. ' Fleming v. Maddox, 32 Iowa, 495 
 
404 ON EXECUTIONS. [Cha'P. XIII. 
 
 impeached in a collateral action for irregularities in the sale.' 
 The execution, if issued upon a valid judgment, can not be 
 impeached collaterally ; it is good until set aside." Nor can 
 the leviable quantity of property be inquired into on pro- 
 ceedings for mandamus against the officer for a deed where 
 the defendant is not a party." It is held that a grantee, in 
 an action by a purchaser to recover land, fraudulently con- 
 veyed, may show that the execution is void for some defect 
 therein.' 
 
 ' Burton v. Lies, 21 Cal. 88. Hayes ' Durham v. Heaton, 23 111. 264. 
 
 V. Shattuck, Id. 51. Boggs v. Har- Stewart v. Stoker, 13 S. & R. 199. 
 
 grave, 16 Id. 566. Nagfle v. Macy, 9 ' Searle v. Doane, 17 Cal. 476. 
 
 Id. 426. Aldeison v. Bell, Id. 321. * Leonard v. Bryant, 3 Gush. 33. 
 
PART III. 
 CHAPTER XIV. 
 
 PROCEEDINGS AFTER RETURN. 
 
 Protection to Parties in Cases of Irregularity. — Setting aside 
 Saks. — How set aside. — Causes for fetting aside Sales. 
 Inadequacy of Price as a Cause for setting aside Sales. — 
 — When no C^use. — Fraudulent Sales. — Eff^ect of setting 
 aside Sales. — When a Sale is void, and no Title passes to 
 a Purchaser. — Sales void for Want of Jurisdiction ; Vari- 
 ous Causes rendering Sales void. — Sales made in other 
 Modes than prescribed by Statute. — Sales void for Uncer- 
 tainty of Description. — When Sales will be sustained. 
 
 % 249. After the officer has performed the duties required 
 of him in the execution of final process, and made due and 
 legal return thereof, there are certain other matters arising 
 from and relating to the execution of final process, which we 
 ^2X\termproceedi?igs after return. While great discretionary- 
 power must necessarily be vested in all ministerial officers 
 in the discharge of their duties, and while the law secures to 
 a creditor his just demand, and subjects his debtor's proper- 
 ty to its satisfaction, it sedulously guards the debtor's inter- 
 est in all the various steps leading to a sale of his property. 
 The unfortunate debtor is not beneath its protection. It 
 will not tolerate the slightest undue advantage over him, 
 even by pursuing the strict forms of the law or positive rules. 
 Among the matters to be treated of in such proceedings are 
 the setting aside of sales ; the confirmation and sustaining 
 of sales ; the application and distribution of proceeds ; satis- 
 
406 ON EXECUTIONS. [Chap. XIV. 
 
 faction of the writ ; redemption of property from sale; title 
 of purchasers ; of the deed, and other matters of a kindred 
 nature. Until a return is made of the proceedings of the 
 officer under the writ, there is nothing but a stay of execu- 
 tion, as provided by statute ; by appeal; by writ of error ; oi 
 stay bond ; or by enjoining proceedings that can in any way 
 interfere with the officer's action in regard to the writ. The 
 process is a whole thing of itself, and when its execution is 
 once commenced, it must be completed by the same hand 
 that began it ; therefore no irregularities or omissions by 
 the officer can be complained of, or brought to the atten- 
 tion of the court, until a return is made of his proceedings, 
 as required by law, so as to enable the court to judge of 
 the sufficiency or insufficiency thereof, and either allow the 
 return to be amended, or the whole proceedings to be set 
 aside, and commenced de novo. 
 
 In each of the states of the union there are statutory 
 provisions governing the manner of executing final pro- 
 cess and the sale of real estate thereunder. In selling 
 property by virtue of the power conferred upon him by an 
 execution, the officer should strictly conform to the re- 
 quirements of the law from the time of the delivery of the 
 writ to him until the return to the court from whence it 
 emanated. The mode of levy, the appraisement, advertise- 
 ment and notice of sale, and the sale, as well as the return of 
 his proceedings, should be just as the law requires, in order 
 that the creditor may, as speedily as possible, realize the 
 fruits of his judgment, the debtor satisfy his debt legally, 
 and with as little expense and sacrifice as possible, and the 
 purchaser protected. It is the duty of all courts, when sat- 
 isfied that sales made under their process are affected with 
 fraud, irregularity, or error, willful disregard of the statutory 
 regulations by the officer, whereby the rights of either of 
 the parties interested are seriously affected, to set aside 
 such sale upon a proper showing to the court under whose 
 process the sale was made, and order a resale of the property.' 
 
 ' Brown v. Gilmore, 8 Md. 322. King v. Piatt, 37 N. Y. 155. Ins. 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 
 
 407 
 
 The general mode of obtaining relief in cases of tliis kind 
 is upon motion to set aside the sale ; and such motion must 
 be made within a reasonable time.' It may be made at any- 
 time before the purchaser obtains possession;" but should 
 in all cases be made before a sale is confirmed by the court, 
 where that practice is followed. By acquiescing in an im- 
 proper sale for a>long time the injured party will be denied 
 relief.^ A party may confirm an invalid sale so that he 
 can not afterward have it set aside.* But to constitute a 
 vahd confirmation a person must be aware that the act he is 
 doing will have the effect of confirming an impeachable 
 transaction.' The motion should specify in what the irregu- 
 
 Co. V. Oakley, 9 Paige, 259. Veeder 
 V. Fonda. 3 Id. 97. . Lefevre v. Lara- 
 way, 22 Barb. 167. Miller v. Cherry, 
 2 Nev. 165. Hastings v. Burning, 
 Ac. Co., 2 Id. 100. Bay v. Gilleland, i 
 ■Cow. 220. Strong v. Catton, I Wis. 
 .47. Anderson v. Foulk, 2 N. & G. 
 343. Gordon v. Sims, 2 McCord Ch. 
 157. Bentz V. Hines, 3 Kas. 390. 
 "White Crow v. White Wing, 3 Id. 
 276. Reed v. Carlet, 3 Blackf. 376. 
 "Vantrees v. Hyatt, 5 Ind. 487. Lash- 
 Jey V. Cassell, 23 Id. 600. Cattell v. 
 -Gilbert, Id. 614. Hamilton v. 
 Burch, 28 Id. 233. Mobile, &c. v. 
 Moore, 9 Port. 679. Drain v. Smelzer, 
 15 Ala. 423. Meyers v. Sanders, 7 
 Dana, 506. Dougherty v. Linthicum, 
 ■8 Id. 194. Rector v. Hart, 8 Mo. 448. 
 Hapten v. Hinkle, 20 Id. 290. Niel 
 V, Hone, Id. 296. Stewart v. Nel- 
 son, 25 Id. 309. Stewart v. Severance, 
 43 Id. 322. Bethell v. Sharp, 25 111. 
 173. Wiggins V. Chance, 54 Id. 175. 
 Hayden v. Dunlap, 3 Bibb, 216. 
 Hutchins v. Moses, I Browne, 187. 
 Abbey v. Dewey, 25 Penn. 176. 
 
 ' Spafford v. Beach, 2 Doug. 150. 
 McKjnney v. Scott, i Bibb, 155. 
 Jngranj v. Belk, 2 Strobh. 207. 
 
 Buslow V. Payton, 2 Monr. 91. Pra- 
 ther V. Hill, 36 111. 202. Hancock v. 
 Metz, 15 Tex. 205. Goodair v. Burrs, 
 21 Mich. 211. Noyes v. True, 23 111. 
 503. .Stewart v. Marshall, 4 Greene, 
 75. Vanduyne v. Vanduyne, I 
 Green (N. J.) 93. Cunningham v. 
 Felker, 26 Iowa, 117. Wood v. 
 Moorhouse, I Lans. 405. 
 
 ^ Abercrombie v. Conner, 10 Ala. 
 293- 
 
 ' Campbell v. Walker, 5 Ves. 681. 
 Morse v. Royal, 12 Ves. 335. Cham- 
 pion V. Rigby, I Russ. & My. 539. 
 Beaden v. King, 9 Hare, 499. Daniels 
 V. Nodawell, 22 Ala. 365. Wood v. 
 Moorhouse, i Lans. 405. Baker v. 
 Read, 18 Beav. 398, 
 
 * More V. Hilton, 12 Leigh, 2. 
 Williams v. Marshall, 4 G. & J. 377. 
 Morse v. Royal, 12 Ves. 335. Field 
 V. Arrowsmith, 3 Humph. 442. Roche 
 V. O'Brien, i B. & B. 353. Lessee, 
 &c. V. Bryson, 3 Binn. 54.. Pamlee 
 V. Henderson, 7 Penn. 48. Mussle- 
 man v. Eshleman, 10 Id. 394. 
 Harrington v. Brown, 5 Pihk. 519. 
 Scott V. Freeland, 15 Miss. 410 
 A.ndrews v. Holson, 25 Ala. 219. 
 
 ' Murray v. Palmer, 2 S. & L. 486. 
 
408 ON EXECUTIONS. [Chap. XIV. 
 
 larity consists in order to be sufficient.' The purchaser 
 should be made a party, and notice given to all the parties 
 of the application to set the sale aside." Every court out of 
 which an order issues, for the sale of property, or an execu- 
 tion issues, has under its control all sales made under its 
 orders, or process, until final disposition is made of the 
 same, and may exercise such control in a^summary man- 
 ner. The sale may be set aside, a resale ordered, or it may 
 be confirmed, as in the judgment of the court may be just 
 and beneficial.' But no other court, than that out of which 
 the process issues, can set it aside.* 
 
 § 250. Causes for which sales will be set aside. 
 Sales made at improper times, or under circumstances such as 
 would ordinarily prevent the property from bringing a fair 
 price, or where a portion would be sufficient, if .sold as re- 
 quested by the debtor, to satisfy the judgment, and the 
 officer neglects to subdivide the property, but sells en 
 masse." A sale made on a day not named in the notice of 
 sale, and where property is sold not described in the notice.' 
 
 Dunbar v. Tredennick, 2 B. & B. 317. v. Diven, 7 Ind. 189. Nelson v. Bowen, 
 
 Maloney v. L'Estrange,- i Beav. 413. 23 Mo. 13. Cumming's Appeal, 23. 
 
 Adams v. Clifton, i Russ. 297. Cock- Penn. 509. Jones v. R. R. Co., 32 
 
 rell V. Cholmley, i Russ. & M. 425. N. H. 544. Davis v. Campbell, 12- 
 
 Chalmer v. Bradley, I J. & W. 51. De Ind. 192. Hayden v. Dunlap, 3 Bibb. 
 
 Montmorency v. Devereux, 2 C. & F. 216. McLean Co. Bank v. Flagg, 31 
 
 188. Salmon V. Cutts, 4 DeG. &S. 129. 111. 295. 
 
 Stump V. Gaby, 2 DeG., M. & G. 623. " State v. Baker, 9 Ricli. Eq. 521.. 
 
 Waters v. Thorn, 22 Beav. 547. Ran- March v. Ludlum, 3 Sandf. Ch. 35. 
 dall V. Errington, 10 Ves. 428. Tre- ' King v. Piatt, 37' N. Y. 155. Col- 
 
 velyan v, Chartet, 9 Beav. 140. Sweeny lier v. Whipple, 13 Wend. 224. Brown 
 
 V. King, 5 H. L. Cas. 627. v. Frost, 10 Paige, 243. Nesbitt v. 
 
 ' Lane V. White, 14 Wis. 585. Dallam, 7 G. & J. 494. Carlisle v. 
 
 ' Clive v. Green, i Blackf. 53. Sears Carlisle, 7 J. J. Marsh. 625. Swope- 
 
 V. Low, 7 111. 281. Jewitt V. Marshall, v. Ardeiy, 5 Ind. 213. Griffith v. 
 
 3 A. K. Marsh. 151. Parks v. Pierson, Hadley, 10 Bosw. 587. Ringold v. 
 
 I S. & M. Ch. 76. Linn v. Hamilton, 34 Patterson, 5 Ark. 209. Ante, chapter 
 
 N. J. L. 305. Good V. Coombs, 28 Tex. XII., §§ 222, 223. 
 34. Eckstein v. Calderwood, 34 Cal. ' Wheatley v. Terry, 6 Kan. 427^ 
 
 658. Osborn v. Cloud, 21 Iowa, 238. King v. Cushman, 41 111. 31. Haydon 
 
 ' Loomis V. Lane, 29 Penn. 242. v. Dunlap, 3 Bibb. 216. Williams v. 
 
 Deadrick v. Smith, 6 Humph. 146. Woodruff, i Duval, 257. Miller v. 
 
 Draine v. Smelzer, 15 Ala. 423. Reed Hull, 4 Den. 104. State v. Byrd, 42: 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 409 
 
 A sale made under an order omitting a description of the 
 land, and not directed to any officer ; ' or by a party other 
 than the one named in the decree." Where a debtor is re- 
 quired to be furnished with notice of the levy, and none is 
 given him before sale ; ' or where the party has the right to 
 elect what property shall be taken, or the order in which it 
 shall be taken, and is not allowed to exercise that right.* A 
 sale made after stay of proceedings,' or after an appeal and 
 bond filed." On an execution which issues for a less amount 
 than the judgment and costs.' On an execution issued 
 after the debtor's death, without revival.' At the instance 
 of the purchaser, on account of a serious mistake in the 
 representation of the lands." Because the property was 
 knocked off to the purchaser prematurely, by a mistake of 
 the officer, who did not hear a higher bid," or refuses to re- 
 ceive a higher bid." So when there has been surprise," or 
 where a bid is privately received and accepted, with- 
 out giving notice of it at the sale." So where the party 
 conducting the sale had been guilty of misrepresentations." 
 
 Ga.62g, Mechanics' Bank v. Pitt, 44 Mo. ,Speer v. Sample, 4 Watts, 367. Lucas 
 
 364. Moreland v. Bowling, 3 Gill. 500. v. Doe, 4 Ala. 679. Abercrombie v. 
 
 ' Rhonemus v.Corwin.g Ohio St. 366. Hall, 6 Id. 657. Woodcock v. Ben- 
 
 ' Yates V. Woodruff, 4 Ed. Ch. 700. nett, I Cow. 711. 
 
 ' Fleming v. Maddox, 30 Iowa, 239. ' Mulks v. Allen, 12 Wend. 253. 
 
 * Evans v. Langdon, 6 111. 307. Gordon v. Sims, 2 McCord Ch. 159. 
 
 Wiggins V. Chance, 54 Id. 175. Ontario Bank v. Lansing, 2 Wend. 
 
 Stevenson v. Marony, 29 Id. 534. 260. Laight v. Pell, i Edw. Ch. 577. 
 
 ' Swiggart v. Harber, 5 111. 365. "• Cohen v. Wagner, 6 Gill. 236. Gor- 
 
 Campbell v. Smith, g Wis. 305. donv. Sims, 2 McCord Ch. 159. Ander- 
 
 ' Simmons v. Johnson, I Chit. 135. son v. Foulke, 2 Harr. &G. 346. Camp- 
 
 Baasen v. Eilers, 11 Wis. 277. Kauf- bell v. Gardner, 3 Stockt. (N. J.) 423. 
 
 man v. Walker, 9 Md. 229. " Parker v. Pratt, 4 Halst. Ch. 104. 
 
 ' Trotter v. Nelson, I Swan. 7. " Williamson v. Dale,3johns.Ch.2go. 
 
 Davie v. Long, 4 Bush. 574. " Dickinson v. Burge, 20 111. 266. 
 
 ' Bentley v. Cummings, g Ark. 487. " Vaugh v. Myers, 2 Dana, 113. 
 
 James v. Marcus, 18 Id. 421. Conk- Lee v. Davis, 16 Ala. 516. Griffith v. 
 
 rite V. Hart, 10 Tex. 140. Shrively v. Hadley, 10 Bosw. 587. Lachlan v. 
 
 Jones, 6 B. Monr. 274. Mundy v. Reynolds, Kay, 52. Strongv. Caton, 1 
 
 Bryan, 18 Mo. 29. Harper v. Hill, 35 Wis. 471. Williamson v. Dale, 3 Johns. 
 
 Miss. 63. Doe v. Hamilton, 23 Id. Ch. 200. Culver v. Godfrey, 6 Beav. g7 
 
 4g6. Butler v. Haynes, 3 N. H. 21. Grissell v. Peto, 2 Sm. & G. 39. 
 
410 ON EXECUTIONS. [Chap. XIV. 
 
 Where land sold under a decree has been sacrificed by the 
 neglect or mistake of the officer, the parties injured are en- 
 titled to a resale, or such other relief as can be given, with- 
 out doing injustice to bond fide purchasers.' A sale made 
 where the plaintiff's brother is one of the appraisers." • 
 
 § 251. The statutes are directory, so far as they deal 
 with the manner in which the officer is required to execute 
 the writ," and hence, although the failure to comply 
 with its provisions may be sufficient cause to set a 
 sale aside, upon the application of the parties to the 
 writ, yet it does not render the sale void." If a sale is 
 merely irregular, or made on irregular process, it is voidable 
 on a proper showing by the parties interested ; but if it is 
 made without authority, it is void." In a sale^on a special 
 execution for the enforcement of a mechanic's lien, the 
 execution must conform to the judgment establishing the 
 lien, and a sale of both building and lot, when the judgment 
 is against the building only, is void.° So when a sale is 
 made by agreement of the parties, and another person than 
 the highest bidder is returned as the purchaser, without 
 resale ;' or where the officer takes the note of the purchaser 
 in payment for the property sold, instead of making the 
 money as he is commanded, it shows an act unauthorized 
 by law, unless by consent of the plaintiff, and such sale and 
 return are void.' Where the injury complained of is in the 
 execution of the process and not for the defect in the 
 process itself, it is competent for any person, whose inter- 
 
 ' Latrobev. Herbert, 5 Md. Ch. 375. 'Church v. Wood, 6i Penn. 96. 
 
 Amer. Ins. Co. v. Oakley, 9 Paige, Wolf v. Payne, 35 Id. 97. McFee v. 
 
 259. Harris, 25 Id. 102. Shoemaker v. Bal- 
 
 ' McGough V. Wellington, 6 Allen, lard, 15 Id. 94. Shields v. Miltenber- 
 
 505. ger, 14 Id. 78. McLaughlin v. Shields, 
 
 ' Smith V. Randall, 6 Cal. 50, Web- 12 Id. 289. David v. Lent, 8 Watts, 
 
 ber V. Cox, 6 Monr. no. Hayden 422. 
 
 V. Dunlap, 3 Bibb. 216. • Wilsoft v. Reuter, 29 Iowa, 176. 
 
 ■* San Francisco v. Pixley, 21 Cal. 'i Thompson v. McNamara, 2 Dis- 
 
 59. Blood V. Light, 31 Id. 115. ney, 213. 
 
 Grapengether v. Ferjeveray, 9 Iowa, « Tiffany v. Johnson, 87 Miss. 
 
 163. 227. 
 
Chap XIV.] PROCEEDINGS AFTER RETURN. 4H 
 
 ests are thereby prejudiced, to move to set the sale aside.' 
 A sale that can not be collaterally impeached, may be set 
 aside in a direct proceeding.'' A sale made on an altered 
 execution, where the plaintiff is the purchaser.' A sale 
 will be set aside, and a resale ordered, when there is surprise 
 upon any party in interest, created by the conduct of 
 the purchaser, or person directing the sale ; so when the 
 interests of infants are concerned in setting aside the sale, or 
 where a guarantor has misunderstood his liability.* But in 
 case of surprise, the court will not generally interfere, where 
 it is owing to the negligence of the party complaining, and 
 might have been avoided by ordinary prudence and attention 
 on his part.' A sale will not be opened for a party who 
 has notice of a suit, on any ground which might have been 
 interposed as a defense, unless the party was prevented 
 making it. by fraud or mistake.' But where a levy is made 
 upon land in a distant county, when the defendant has suf- 
 ficient leviable property in the county where the judgment 
 is rendered to satisfy the judgment and costs, and a sale is had 
 without his knowledge, it will be set aside.' A sale of 
 .personal property in another state has been set aside for 
 fraud in a state where the property has been removed.' A sale 
 has been set aside where the inclemency of the weather was 
 such that there was only one bidder present, and he was the 
 purchaser.' This case would not apply where the apprai.sement 
 laws are in force, as in many cases no one but the plaintiff is 
 present, who purchases if willing to pay the amount re- 
 quired by law. So a sale will be set aside for error in the 
 return when there is no data to amend by," 
 § 252. Inadequacy of price as a cause for setting 
 
 ' Lee V. Davis, 16 Ala. 516. Boyd v. Academical Soc, 24 N. J. Eq. 
 
 ' Davis V. Campbell, 12 Ind. ig2. 349. Warfield v. Ross, 38 Md. 85. 
 
 ' Trigg V. Ross, 35 Mo. 165. Horsey v. Hough, Id. 130. Pickering • 
 
 * Lefevre v. Laraway, 22 Barb. 167. v. Daggers, 59 111. 65 . 
 Gardner V. Schermerhorn, i Clark, lOl. • Hall v. Urquhart, 3 Stockt. 318. 
 
 Francis v. Church, Id. 475. Curtis y. ' Hamilton v. Quimby, 46 111. go. 
 Ballagh, 4 Ed. Ch. 630. • White v. Trotter, 22 Miss. 30. 
 
 ' Gibl)ous V. Bressler, 61 111. no. • Roberts v. Roberts, 13 Gratt. 369. 
 
 Paikhurst v. Cory, 3 Stockt. 233. '" Jarboe v. Hall, 37 Md. 3:^5. 
 
412 
 
 ON EXECUTIONS. 
 
 [Chap. XIV. 
 
 ASIDE SALES. Courts will not in general set aside sales 
 made under its process for mer^ inadequacy of price, in the 
 absence of fraud and collusion.' 
 
 " Inadequacy of price within itself, and disconnected from' 
 all other facts, can not be a ground for setting aside a con- 
 tract, or affording relief against it. What this something 
 besides inadequacy should be, perhaps no court ought to 
 say, lest the cunning and the wary, by employing other 
 means than those named, should escape with their fraudu- 
 lent gains. It ought, however, in connection with the in- 
 
 ' Ashbee v. Cowell, I Busb. Eq. 158. 
 House V. Walker, 4 Md. Ch. 62. 
 Sowle V. Champion, 16 Ind. 165. 
 Glenn v. Clapp, n G. & J. 11. Boyd 
 V. Academical Society, 24 N. J. Eq. 
 349. Riddle v. Bush, 21 Tex. 675. 
 Hart V. Bleight, 3 Monr. 273. Williams 
 V. Berger, 25 Iowa, 456. Mercereau 
 V. Prest, 2 Greene Ch. 460. Fergus v. 
 Woodworth, 44 111. 374. Tripp v. 
 Cook, 26 Wend. 142. Simmons v. 
 Vandegrift, Saxt. 55. Bank v. Has- 
 sutt, Id. 1. Stockdale v. Young, 
 Rice Ch. 3. Carson's Sale, 6 Watts, 
 470. Meir v. Zelle, 31 Mo. 331. 
 Hansford v. Barfour, 3 A. K. Marsh. 
 515. Swires v. Brotherton, 41 Penn. 
 135. Clement v. Reed, 17 Miss. 535. 
 Bedell v. Loomis, 11 N. H. 9. Cow- 
 ens V. Stevens, 3 Harring. 494. Lit- 
 tle V. Luntz, 2 Ala. 256. Gut y. 
 Frazier, 5 Litt. 118. Greenup v. 
 Stoker, 12 111. 24. Weirrick v. Ross, 2 
 Ind. 99. Cushwa v. Cushwa, 5 Md. 55 
 Hill V. Whitfield, 3 Jones L. 120. 
 Bank v. Taylor, 5 Cranch C. C. 314. 
 Betienshaw v. Moffatt, 6 Ind. 464. 
 Brittin v. Handy, 20 Ark. 381. Cav- 
 ender v . Smith, i Clark (Iowa) 306. 
 Noyes v. True, 23 111. 505. Miller v. 
 Fraly, 21 Ark. 22. Aldrich v. Mait- 
 land, 4 Mich. 205. Gilbert v. Carter, 
 10 Ind. 16. Benton v. Shreve, 4 Id. 
 
 66. Booth V. Webster, 5 Harring. I2g. 
 Bullard v. Green, 10 Mich. 268. Eber- 
 hart V. Gilchrist, Stockt. 167. Park- 
 hurst V. Cony, 3 Id. 233. Jackson v. 
 Warren, 32 111. 331. AUis v. Sabin, 
 16 Wis. 526. Bridgen v. Atkins, 25 
 Tex. 388. Baker v. Clepper, Id. 
 629. Newton v. State Bank, 22 Ark. 
 19. Warren v Foreman, 19 Wis. 35. 
 Strong v.. Caton, i Id. 47. Ayres v. 
 Baumgartner, 15 111. 444. Boyd v. 
 Ellis, II Iowa, 47. McMuUan v. Gable, 
 47 111. 67. Comstock V. Purple, 49 Id. ■ 
 158. Duncan v. Sanders, 50 Id. 475. 
 Smith V. Duncan, I Green (N. J.) 240. 
 H. & St. Joe R. R. V. Brown, 43 Mo. 
 524. Coffin V. Corruth, i Cold, 194. 
 Van Duyne v'. Van Duyne, i Green 
 (N. J.) 93. Randolph v. Thomas, 23 
 Ark. 69. Allen v. Stephanes, 18 Tex. 
 658. White V. Floyd, Spears Ch. 351. 
 Farmer's Bank v. Clark, 28 Md. 145. 
 Daniel v. McHenry, 4 Bush. 277. 
 Campau v. Godfrey, 18 Mich. 27. 
 Harnickle v. Orndoff, 36 Md. 341. 
 Mixer v. Sible, 53 111. 61. Coleman 
 V. Bank, 2 Strobh. Eq. 285. Reed v. 
 Brooks, 3 Litt. 127. King v. Thorp, 
 26 Iowa, 283. Am. Ins. Co. v. Oak- 
 ly, 9 Paige, 259. West v. Davis, 4 
 McL. 241. Cohen v. Wagner, 6 Gill. 
 236. Lefevre v. Laraway, 22 Barb. 
 167. 
 
•Chap. XIV.] PROCEEDINGS AFTER RETURN. 413 
 
 .adequacy of consideration, to induce the belief that there 
 has been either a suppression of the truth, the suggestion of 
 falsehood, abuse of confidence, or violation of duty arising 
 out of some fiduciary relation between the parties, the ex- 
 ercise of undue influence, or the taking of an unjust or 
 inequitable advantage of one whose peculiar situation at the 
 time would be calculated to render him an easy prey for the 
 cunning and artful. But if no one of these appear, or if no 
 fact is proved, that will lead the mind to the conclusion that 
 the party against whom relief is sought has suppressed some 
 fact that he ought to have disclosed, or that he has sug- 
 gested some falsehood, or abused in some manner the con- 
 fidence reposed in him, or that some fiduciary relation ex- 
 isted between the parties, or that the party complaining was 
 under his influence, or at the time of the transaction was in 
 a condition, from any cause, to be an easy victim to the 
 unconscientious, then relief can not be afforded." ' 
 
 Nor can a court of chancery set aside a public sale, regu- 
 larly made by an officer not acting under the direction of 
 such court, notwithstanding the price was grossly inade- 
 quate, and the party chiefly interested did not know that it 
 was to take place." 
 
 An agreement to pay an increase of one-fifth, if the land 
 is piit up and resold, is not sufficient ;' or where there is an 
 action pending in regird to title.* A court must be satisfied 
 by evidence that the sale was injudicious, and that the proper- 
 ty could have been advantageously divided and sold.' But it 
 may in equity be sufficient ground for refusing aid to the pur- 
 chaser.' Courts have a wide discretion as to the terms on 
 which they will set aside sales made for inadequacy of price. 
 The English chancery rule is not in general use in this 
 country,' while it is in some states.' A sale of twelve hun- 
 
 ' tampan v. Godfrey, 1 8 Mich. 27. ' Greenup v. Stoker, 12 111. 24. 
 
 Judge V. Wilkins, 19 Ala. 765. * Smith v. Freeland, I Green (N. J.) 
 
 ' State V. Baker, 9 Rich. Eq. 198. 
 
 521. March v. Ludlum, 3 Sandf. Ch. ' Adams v. Haskell, 10 Wis. 123. 
 
 35. ' Childress v. Hurst, 2 Swan, 487. 
 
 ' Allis V. Sabin, 17 Wis. 626. Hay's Appeal, 51 Penn. 58. Wright v. 
 
 ' Cushwa V. Cushwa, 5 Md. 55. Cantzon, 31 Miss. 514. 
 
414 ON EXECUTIONS. [Chap. XIV. 
 
 dred dollars' worth of property for one hundred and eleven 
 dollars, was held, not sufficient to set the sale aside.' 
 Where there has been no fraud, when there is gross inade- 
 quacy of price, and the parties interested, by reason of mis- 
 take or misapprehension, did not attend the sale, and the 
 sacrifice was caused by such mistake or misapprehension, the 
 sale will be set aside.' Or where the inadequacy is such as 
 to indicate fraud, or with such other circumstances as to shock 
 the moral sense, when surrounded by indicia of hardship and 
 unfairness, it will be set aside. When a sale is attacked as 
 fraudulent, gross inadequacy of consideration is one of the 
 badges of fraud, and becomes controlling when coupled with 
 other circumstances tending to show the fraud.' Among 
 the adjudications as to what may be considered grossly in- 
 adequate, are the following cases : a sale of thirteen thou- 
 sand dollars' worth of property for three hundred and seven- 
 ty-five dollars;' a sale of five thousand dollars' worth of prop- 
 erty on an execution for twelve, and sold for ten dollars ;' 
 a sale of twelve hundred and eighty acres of land worth twenty 
 thousand dollars, for seventy-five dollars ;' a sale of seventeen 
 
 ' Weirrick v. Ross, 2 Ind. 99. McLean, 281. May v. May, II Paige, 
 
 '' Kloepping v. Stellmacher, 21 N. J. loi. Cohen v. Wagner, 6 Gill, 238. 
 
 Eq. 328. Seaman v. Riggins, i 'Green Fowler v. Stoneman, 6 Tex. 260. 
 
 Ch. 214. Howell V. Hester, 18 N. J. O'Brien v. Hilburn, 22 Id. 616. Lee 
 
 Eq. 266. Hazard V. Hodges, 2 C. E. v. Davis,^l6 Ala. 516. Williamson v. 
 
 Green, 123. Eberhart v. Gilchrist, 3 Dale, 3 Johns. Ch. 290. Strong v. 
 
 Stockt. 170. Campbell v. Gardner, Caton, i Wis. 471. 
 
 Id. 423. Griffith V. Hadley, 10 Bosw. ? Curd v. Lackland, 49 Mo. 451. 
 
 587. Sowle V. Champion, 16 Ind. 165. Mechanic's Bank v. Pitt, 44 Id. 364. 
 
 Cook V. Jenkins, 30 Iowa, 152. Nes- Chesapeake Bank v McClelland, I Md. 
 
 bitt V. Allen, 7 G. & J. 494. Swope v. Ch. 328. Williams v. Woodruff, 1 
 
 Ardery, 5 Ind. 213. H., &c. R. R. ,r. Duval, 257. San Francisco v. Pix- 
 
 Brown, 43 Mo. 294. Bethel v. Sharp, cley, 21 Cal. J6. King v. Thorp, 26 
 
 25 111. 173. Vantress v. Hyatt, 5 Ind. Iowa, 283. Blight v. Tobin, 7 Monr 
 
 \%^. Bouts V. Cole, 7 Blackf. 265. 616. Howell v. Baker, 4 Johns. Ch 
 
 Mechanics' Bank v. Pitt, 44 Mo. 364. 119. Boyd v. Ellis, II Iowa, 97. 
 
 Chesapeake Bank v. McClelland, i ■> Voss v. Johnson, 40 Ind. 19. 
 
 Md. Ch. 328. Metzlen v. Shauman, 24 » Reynolds v. Nye, I Free. Ch. 462 
 
 N. J. Eq. 60. Tripp ,. Cook, 26 Bixby v. Mead, 18 Wend. 611. 
 
 Wend. 143. Westover v. Davis, 4 « Sherry v. Lockwood, i Ind. 289. 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 416 
 
 hundred acres of land for less than five thousand dollars, 
 when ten persons swear that the actual value is twice or 
 thrice that sum ; ' a sale of nine thousand acres, with an in- 
 cumbrance of forty-eight hundred dollars on it, for eighty 
 dollars and forty-one cents ;' a sale ofa whole league of land, 
 worth three and a half dollars per acre, for forty dollars, with 
 the fact that it was bid in by a nominal purchaser, who con- 
 veyed it to parties litigating with the defendant in regard to 
 the title to the same land ; ° a sale of six thousand dollars' 
 worth of real and personal property, subject to a mortgage 
 of fifteen hundred dollars, sold for fifty-one dollars ;* where 
 four hundred and forty-four acres were sold for thirteen dol- 
 lars, which were worth eight hundred, and the debtor 
 only owned a portion thereof;" where ten thousand dollars' 
 worth of property was sold to satisfy a judgment of one 
 hundred,where the property was so situated that a portion of 
 it could be sold, and would have satisfied the debt." A sale 
 of real property by an officer for one-fifth of its value furnishes 
 intrinsic evidence of irregularity, impropriety and unfairness 
 of the sale, and when taken in connection with the want of 
 ordinary prudence and judgment on the part of the officer, 
 of the time and notice of sale, is sufficient to vacate it on 
 motion.' A sale of twelve thousand dollars' worth of prop- 
 erty for four hundred dollars, is strong ground for relief, es- 
 pecially' where the advertisement contains an imperfect 
 description of the property. The fact that the advertise- 
 ment was so framed as to mislead, so that no one, not 
 acquainted with the premises, could have conjectured from 
 ■the advertisement what the property was, that was intended 
 to be sold, in connection with the fact that there were no 
 bidders at the sale but the purchaser, and the property was 
 
 ' Sinnett v. Cralle, 4 W. Va. 600. Mohawk Bank v. Atwater, 2 Paige, 
 
 ' Cummins V. Little, I Green (N. J.) 54. Woods v. Monell, i Johns. Ch. 
 
 48. 502. 
 
 ' Johnson v. Shaw, 33 Tex. 585. ' Groff v. Jones, 6 Wend. 522. 
 
 * Ballard V.Anderson, 18 Tex, 377. ■■ Cowgill v. Cahoon, 3 Harriiig. 
 
 • Treman v. Wilson, 6 Johns. Ch. 23. Nesbitt v. Dallam, 7 G. & J. 
 411. Stead V. Course, 5 Cranch, 403. 494. 
 
416 ON EXECUTIONS. [Chap. XIV. 
 
 sold at a very inadequate price, makes a sale constructively 
 fraudulent against a defendant and others having liens on 
 the property, and constitutes a ground for equitable relief, 
 although the advertisement may have been a technical com- 
 pliance with the statute, so as to vest a valid title in the pur- 
 chaser.' Where it is sacrificed, through the interference of 
 bidders, the purchase of property by persons so interfering is 
 such a fraud as to vitiate the title acquired thereby." Inad- 
 equacy, together with irregularity and notice to the pur- 
 chaser that the title is not in the judgment-debtor, is suffi- 
 cient ground for setting aside a sale.' Or where a guardian 
 fraudulently or negligently allows the property of minors to 
 be sacrificed on a foreclosure sale.* While a court may set 
 aside a sale made for an inadequate consideration, it can not 
 accept a higher and advance bid, and decree a sale to such 
 bidder at his advance price.' When a stranger to the action is 
 the purchaser at the execution sale, it should not be set 
 aside for mere inadequacy of consideration, or should there 
 be an apparent sacrifice, unless some unfair practice or un- 
 less the interested parties are without fault or laches, and 
 the purchaser is guilty of fraud in the prevention of com- 
 petition, or other matters whereby he reaps the benefit 
 of the sale, and which is unknown to the parties at the 
 time confirmation is asked to be made by the court." So 
 where no fraud or unfair practice be used by the plaintiff, his 
 purchase under his own execution will be as much protected 
 as that of a stranger, though the sale be made at a great 
 depreciation.' 
 
 § 253. Fraudulent sales. The principle that fraud viti- 
 ates all proceedings is applied to all proceedings under final 
 process, and sales made by virtue thereof. Whenever a sale is 
 
 ' Hodgson V. Farrell, 2 McCarter, " Wood v. Parker, 63 N. C. 379. 
 
 88. « Little V. Luntz, 2 Ala. 260. King 
 
 '' Grififith v. Judge, 49 Mo. 536. v. Masterdon, 16 N. Y. 174. Mills v. 
 
 ' Miller v. Colville, 21 Iowa, 135. Rogers, 2 Litt. 21.7. Hutchinson v. 
 
 * Curtis V. Ballagh, 4 Edw. Ch. Moses, i Browne, 187. Am. Ins. Co. v. 
 
 635. Lefevre v. Laraway, 22 Barb. Oakley, 9 Paige, ^59. 
 
 167. ' Ingram v. Belk, 2 Strobh. 207. 
 
Chap. XIV.] , PROCEEDINGS AFTER RETURN. 417 
 
 tainted with fraud it wslll be set aside.' Where a bargain is 
 one which no man in his senses would make, and that no 
 lionest and fair man would accept, and there are circum- 
 stances attending a sale on execution which may have pre- 
 vented the property from bringing a higher price, although 
 unknown at the time to the purchaser, it is a fraudulent 
 sale." Fraud practiced by the purchaser, which prevents 
 fair competition, vitiates the sale ; as where he fraudulently 
 represents at the sale that he is buying for the debtor to 
 redeem, and obtains it far below its value, the title he obtains 
 is utterly worthless.' A sale made for the purpose of 
 hindering, delaying or defrauding creditors.* A sale of land 
 for costs for a grossly and shockingly inadequate considera- 
 tion, made to the attorney himself, he drawing all the papers 
 and exercising exclusive supervision over the proceedings.' 
 A sale made on a judgment for the unpaid purchase-money, 
 which is made for the purpose of defrauding the vendee out 
 of the money paid. Misrepresentations by the plaintiff and 
 his attorney, whereby the property is sold for less than one- 
 third its value, leaving a large deficiency.' Fraudulent col- 
 lusion between the sheriff and the purchaser.' Where a 
 
 ' Reynolds v. Nye, i Free. Ch. 462. Mich. 205. Hughes v. Streeter, 
 
 Hoit V. Holcomb, 23 N. H. 554. 24 111. 647. Beekman's Appeal, 
 
 Michoud V. Girod, 4 How. 503. 38 Fenn, 385. Fowler v. Stone- 
 
 ' Chamblee v. Tarbox, 27 Tex. man, 6 Tex. 60. Wooton v. 
 
 t3g. Wheeler, 22 Id. 377. Allen v. 
 
 ' Forelander v. Hicks, 6 Ind. 448. Stephanes, 18 Id. 658. Bethel v. 
 
 Neal V. Stone, 20 Mo. 294. Patter- Sharp, 25 111. 173. Hawley y. 
 
 son V. Joslyn, 43 Miss. 373. Turner Cramer, 4 Cow. 417. 
 
 V. Adams, 46 Mo. 95. Faust v. Haas, ■• Duncan v. Forsythe, 3 Dana, 229. 
 
 73 Penn. Dick V. Lindsay, 2 Grant Byer v. Fowler, 72 Ark. 2i8. Ste- 
 
 Cas. 431. Walter v. Gernandt, 13 phens v. Barrett, 7 Dana, 259. Corlies 
 
 Penn. 515. Hogg v. Wilkins, I Grant v. Standbridge, 5 Rawle, 286. Yoder 
 
 Cas. 67. Vantfees v. Hyatt, 5 Ind. v. Staniford, 7 Monr. 485. 
 
 487. Bunts V. Cole, 7 Blackf. 265. ' Surjet v. Byers, i Hemp. 715. 
 
 Devlin v. Ward, 6 Johns. 194. Wil- • Wiggins v. Silverthorn, 10 Wis. 
 
 bur V. Home, 8 Id. 444. Jackson ^^2. 
 
 V. Crofts, 18 Id. no. Thomas v. ' Hoppock v. Conklin, 4 Sandf. Ch. 
 
 Hite, 5 B. Monr. 497. Sharp v. Long, 582. 
 
 28 Penn. 423. Aldrich v. Maitland, 4 s Xruebner v. Moller, 12 Mo. 528. 
 
 27 
 
418 ON EXECUTIONS. [Chap. XIV. 
 
 purchaser has knowledge that would have influenced others.' 
 If puffers are employed to bid it is a fraud on the bidders.' 
 Where the party selling is the purchaser." Where the officer 
 and purchaser act fraudulently in the disposal of the property.* 
 Where a deputy sheriff purchases at an inadequate price, 
 after having forbid the sale at the instance of the exectuion 
 defendant, if application is made therefor in a reasonable 
 time.* 
 
 Where a purchaser of lands, sold at sheriff's sale, buys with 
 the knowledge that the judgment upon which the execution 
 was issued was procured through fraud and imposition, and 
 without the fault or negligence of the defendant, the sheriff's 
 deed will be annulled and canceled, and the title evidenced 
 thereby will be extinguished, in a proper action instituted 
 for such purpose.' 
 
 A fraud which will authorize a court to set aside a sale 
 must exist at the time of sale; nothing arising after that time 
 can be considered ; ' and must be affirmatively established.' 
 When such fraudulent practices vitiate a sale, and the acts 
 of the officer under the writ, such sales are set aside by 
 courts upon a showing made by the injured party, and the 
 proceedings must be commenced de novo' The rule of law 
 that continued possession by a vendor is ipso facto a fraud 
 does not apply to a sale on execution." 
 
 ' Blight V. Tobin, 7 Monr. 612. ' Daniel v. Nodawell, 22 Ala. 365. 
 
 Hutchinson v. Tobin, i Browne, 187. ' Adams v. Secor, 6 Kans. 542. 
 
 ^ Donaldson v. McRoy, I Browne, ' McCullum v. Hubbert, 13 Ala. 
 
 346. Aldrich v. Maitland, 4 Mich. 206. 289. 
 
 ' White V. Trotter, 22 Miss. 30. ' Williams v. Berger, 25 Iowa, 456. 
 Bussey v. Hardin, 2 B. Monr. 407. « Neal v. Stone, 20 Mo. 294. Lloyd 
 Wormsley v. Wormsley, 8 Wheat. 421. v. Malone, 23 111. 43. Michoud v. 
 S\yazey v. Burke, 12 Pet, ii. Michoud Girod, 4 How. 503. Concord Bank v, 
 y. Girod, 4 How. 503. Miles v. Gregg, 14 N. H. 331. Davou v. Fan- 
 Wheeler, 43 111. 123. Harris v. Par- ning, 2 Johns. Ch; 252. King v. 
 ker, 41 Ala. 123. Boraasen v. Wells, Piatt, 37 N. Y. 155. Billington v, 
 4 Green (N.J.) 87. Davou v. Fan- Forbes, 26 111. 549. May v. May, ii 
 ning, 2 Johns. Ch. 252. Paige, 201. Garrett v. Moss, 20 111. 
 
 * Inskeep v. Lacony, Coxe, 39. 549. Johnson v. Johnson, 41 Ala. 247 
 
 Barnes v. Meeds, 8 Ired. 292. Howery Anderson v. Foulke, 3 H. & G. 346. 
 
 V. Helms, 20 Gratt. I. "> Haggatt v. Hunt, i Miss. 217. 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 419 
 
 § 254. Effect of setting aside sales. When a sale is 
 set aside by the court for any of the causes rnentioned herein, 
 the proceedings and the execution are as though no execu- 
 tion had been issued in the case, and remits the creditor to 
 his judgment unaffected by his levy.' The execution having 
 been returned into court, it becomes functus officio, and a 
 new execution must necessarily issue in order to protect the 
 officer in making a levy and sale. A resale follows as a mat- 
 ter of course, but not until the creditor shall see fit to cause, 
 one by the issue of an alias or other execution, unless the 
 judgment is paid or satisfied." 
 
 § 255. When a sale is void and passes no title to a 
 purchaser. An officer making the sale of property underthe 
 process of a court, acts under a naked statutory power, and if 
 no power exists, no title passes to the purchaser. A purchaser 
 under a power is bound to see that it exists. He who buys un- 
 der a power buys at his peril, and acquires no title unless he 
 can show a valid subsisting power.' The mere fact that the 
 purchaser pays a valuable consideration does not help him 
 any more than it would if he purchased from a stranger to the 
 title. The ofificer who sells under a judgment and execution 
 exercises a statutory power by virtue of which alone his 
 deed can operate upon the title to the land sold. When the 
 judgment is satisfied the power to sell is gone. The debt 
 being paid, the power to sell under the execution ceases, and 
 as the process will not protect the officer, so no title can pass 
 to the purchaser of property under it. The sheriff, in 
 making sale of property under process of the court, acts 
 
 ' Wilson V. Percival, I Dana, 419. 61. Jackson v. Morse, 18 Johns. 441. 
 
 ^ King V. Piatt, 37 N. Y. 155. Wood v. Colvin, 2 Hill. 566. Cam- 
 
 Hay's Appeal, 51 Penn. 58. Coffey eron v. Irwin, 5 Id. 272. Deyo v. 
 
 V. Coffey, 16 lU. 141. Roberts v. Van Valkenburgh, Id. 242. Swan 
 
 Roberts, 13 Gratt. 369. Stephens v. v. Saddlemire, 8 Wend. 676. Dela 
 
 McGruder, 3t Md. 168. Deaderickv. plaine v. Hitchcock, 6 Hill, 14. 
 
 Smith, 6 Humph. 139. Post v. Leet, Todd v. Pillhower, 4 Zabr. 796. Hol- 
 
 8 Paige, 337. Brown v. Frost, 10 Id. man v. Collins, i Ind. 28. Gantlcy 
 
 243. Am. Ins. Co. v. Oakley, 9 Id. v. Ewing, 3 How. 417. Russell v. 
 
 259. Lefevre v. Laraway, 22 Barb. 167. Dyer, 33 N. H. 186. Chapman v. Har- 
 
 3 Carpenter v. Stillwell, II N. Y. wood, 8 Blackf. 83. 
 
420 
 
 ON EXECUTIONS. 
 
 [Chap. XIV.. 
 
 under a power, and if the power does not exist no title 
 passes, even to an innocent purchaser. He who buys under 
 a power buys at his peril, and acquires no title without 
 showing a valid subsisting power.' So when there is no 
 judgment or legal process authorizing him to sell." If the 
 judgment is absolutely void the purchaser is liable for rents 
 and damages.' If the property is exempt no title passes, as 
 a homestead ;' or after the defendant's death, without reviv- 
 al.' A sale on a judgment against the representatives of a de- 
 
 ' Lane v. Soulard, 15 111. 124. 
 Green v. Marks, 25 Id. 221. Thacher 
 V. Powell, 6 Wheat. 125. Johnson v. 
 Mcintosh, 8 Id. 543. Lessee v. Cor- 
 win, 5 Ohio, 398. Corwin v. Benham, 
 
 2 Ohio S. 336. Lessee, &c. v. Zercher, 
 12 Ohio, 364. Piatt V. Phillips, 37 Tex. 
 Q. St. Bartholomew V. Wood, 61 Penn. 
 96. David V. Lent, 8 Watts, 422. Wolf 
 V. Payne, 35 Penn. 97. McLaugh- 
 lin V. Shields, 12 Id. 289. Shoemaker 
 V. Ballard, 15 Id. 94. McFee v. Harris, 
 25 Id. 102. Shields v. Miltenberger, 
 14 Id. 78. Howard v. North, 5 Tex. 
 290. Watson V. Tindall, 24 Geo. 494. 
 Bell V. Chandler, 23 Id. 356, Avery 
 V. Rose, 4 Dev. 459. Jackson v. An- 
 derson, 4 Wend. 474. Neilson v. Neil- 
 son, 5 Barb. 565. Hammatt v. Wyman, 
 9 Mass. 138. Sherman v. Boyce, 15 
 Johns. 443. Lewis v. Paluier, 6 
 Wend. 368. 
 
 ' Craft V. Merrill, 14 N. Y. 430. 
 Crawford v. Dalrymple, 70 N. C. 156. 
 Cartel v. Simpson, 7 Johns. 535. 
 State V. Salyers, 19 Ind. 432. Reed v. 
 Austin, 9 Mo. 722. Simmons v. Van- 
 degriff, Saxton, 55. Chiles v. Bernard, 
 
 3 Dana, 96. Laval v. Rowley, 17 
 Ind. 36. Hunter v. Stevenson, i Hill 
 (S. C.) 410. King v. Goodwin, 16 
 Mass. 63, 
 
 • Walworth t, Stevenson, 24 La. 
 357. 
 
 * Beecher v. Baldy, 7 Mich. 509. 
 Hamblin v. Worneke, 31 Tex. 681. 
 Kendall V. Clark, 10 Cal. 71. Ackley 
 v. Chamberlin, 3 Paige, 219. Bigelow 
 V. Finch, II Barb. 49S. GriiSn v. 
 Spencer, 6 Hill, 225. Hewson v. 
 Dygert, 8 Johns. 333. Morris v. Ward, 
 
 5 Kans. 239. Lamb v. Shay, 14 Iowa, 
 567. Revalk V. Kramer, 8. Cal. 66. 
 Wiggins V. Chance, 54 111. 175. Green 
 V. Marks, 25 Id. 221. Fishback v. 
 Lane, 36 Id. 437. Bliss v. Clark, 39 
 Id. 590. Cummins v. Long, 16 Iowa, 
 41. Paxton V. Freeman, 6 J. J. Marsh. 
 234. Parkerson v. Wightman, 4 
 Strobh. 363. Johnson v. Babcock, 8 
 Allen, 583. 
 
 ' Hurst V, Weathers, 15 Ala. 417. 
 Bentley v. Cummins, 9 Ark. 487. 
 Emmons v. Williams, 28 Tex. 776. 
 Swink V. Snodgrass, 17 Ala. 653. 
 James v. Marcus, 14 Ark. 421. State 
 v. Michaels, 8 Blackf. 436. Stymet v. 
 Brooks, 10 Wend. 207. State v. Pool, 
 
 6 Ired. 188. Gwin v. Latimer, 4 
 Yerg. 22. Davis v. Young, 2 Monr. 
 60. Cartney v. Reed, 5 Ohio, 221. 
 State Bank v. Etter, 15 Ark. 268. 
 Turney v. Young, 22 111. 253. Le 
 Page V. McNamara, 5 Iowa, 125. Hil- 
 dreth v. Thompson, 16 Mass. 191. 
 Surji v. Colmer, 22 La. 20. Conkrite 
 V. Hart, 10 Tex. 140. Erwin v. Dun 
 das, 4 How. 58. Abercrombie V. Hall, 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 421 
 
 ceased party,' where the defendant has no interest in the land, 
 so that a party can take nothing by his purchase.' Where 
 ' by mistake the lands of the plaintiff are included in the levy 
 of, the defendant's land.' Where a sale is set aside.' Where 
 a party claims title by a fraudulent purchase, and his interest 
 is sold, the purchaser of such fraudulent interest acquires no 
 title.' Where a non-resident debtor conveys his property 
 by deed duly acknowledged in accordance with the laws of 
 the state where such property is, before the rendition of 
 judgment in said state, and the deed is recorded before that 
 of the sheriff." Where the debtor's interest is sold as that 
 of a tenant by curtesy when he has the fee.' Where a sale 
 is made, but pending confirmation an appeal is perfected.' 
 Where an execution does not state that the amount is due 
 from the intestate on a judgment against the administrator, 
 nor show in what manner the sum required to be raised is to 
 be levied, it will not warrant a sale of the property of the 
 intestate." After the revocation of an executor's authority, 
 a sale upon a judgment against him of his testator's land is 
 unwarranted.'" Where the judgment is no lien — on land in 
 which the debtor has but an equitable title to be perfected 
 on payment of the purchase-money." In an action com- 
 menced by attachment and publication, where the necessary 
 steps were not taken to confer jurisdiction.'" Where a sale 
 
 6 Ala. 657. Webber v. Kenney, l v. Streeter, 24 III. 647. Watson v. 
 
 A. K. Marsh. 340. Nichols v. Chap- Reissigg, Id. 281. Mason v. Thomas, 
 
 man, 9 Wend. 452. Lieper v. Thomp- Id. 285. Henry v. Keys, 5 Sneed 
 
 son, 60 Penn. 177. Harrison v. Wood, 488. Riter v. Henshaw, Iowa, 97. 
 
 1 D. & B. 437. Sample v. Barr, 25 Chambers v. Cochran, 18 Id. 159. 
 Penn. 457. Scammon v. Swartout, 35 * Hunter v. Hulings, 37 Penn. 307. 
 111. 326. Stockhard v. Pinkhard, 6 * McKeown v. Craig, 20 Penn. 170. 
 Humph. 119. Ranson v. Williams, ' Taylor v. Eckford, 19 Miss. 21. 
 
 2 Wall. 313. Pickett v. Harstock, 15 ' Hulfz v. Hackley, 63 Penn. 142. 
 111. 279. Finch V. Martin, ig Id. III. ' Laughlin v. Shields, 12 Penn. 283. 
 Brown v. Parker, 15 Id. 307. • Bassett v. Daniels, 10 Ohio S. 617. 
 
 ' Honnor v. Hanks, 22 Ark. 'McCuUoughv.Tidwell, I Brev. 479. 
 
 572. "• Thompson v. Knight, 23 Geo. 399. 
 
 ' Lansing V. Quackenbush, 5 Cow. " Jeffries v. Sherburn, 21 Ind. 112. 
 
 38. Adams v. Smith, Id. 280. On- " Hodson v. Tibbits, 16 Iowa 97. 
 
 lario Bank v. Lansing, 2 Wend. 260. Bias v. Vance, 32 Miss. 198. Abbott 
 
 Tador v. Taylor, 26 Vt. 444. Hughes v. Shepperd, 44 Mo. 233. Smith v. 
 
422 ON EXECUTIONS. [Chap. XIV. 
 
 of the same property is made on a junior execution, it having 
 been sold on a prior execution, which passed all the debtor's 
 title.' Where the plaintiff is the purchaser on an execution 
 which. is void or voidable.' The levy upon and sale of a 
 road, by virtue of an execution, gives the purchaser no right 
 or title to the same ; for, being the property of the public, the 
 defendant in the execution has no interest therein which can 
 be conveyed by the officer.' A sale made after the return 
 day of the writ.* On an execution issued while the debtor 
 is in prison under commitment on a prior execution on the 
 same judgment is void, and a sale under it, even after the 
 release of the debtor, to a purchaser without notice, carries 
 no title." 
 
 § 256. Sales void for want of jurisdiction, &c. A saie 
 ordered by a court, in a case where it had not jurisdiction, 
 must be considered as inadvertently done, or as an unau- 
 thorized proceeding, and is a nullity,' as where no service, 
 either actual or constructive, is obtained upon the parties, by 
 reason of the failure of the plaintiff to take the necessary 
 legal measures to constitute legal service;' or if the execu- 
 
 McCutchen, 38 Id. 415. Latimer v. ' Albe v. Wood, 8 Mass. 79. Falk- 
 
 U. P. R. R., 43 Id. 105. McGaher v. ner v. Guild, 10 Wis. 563. Towsley 
 
 Carr, 6 Iowa, 231. Shriver's Lessee v. McDonald, 32 Barb. 604. Wilson 
 
 V. Lynn, 2 How. 43. Broghill v. Lash, v. Arnold, 5 Mich. 98. Clark v. Fow- 
 
 3 Greene (Iowa) 357. ler, 5 Allen, 45. Webster v. Reid, 11 
 
 ' Horton v. Davis, 26 N. Y. 495. How. 437. Wright v. Boone. 2 Greene 
 
 - Keeling v. Heard, 3 Head. 592. (Iowa) 457. Harshay v. Blackman, 
 
 King V. Cushman, 41 111. 31. 20 Iowa, 161. Johnson v. Baker, 38 
 
 ' Wood V. Truckee Turnpike Co., 111. 98. Shelton v. Tiffin, 6 How, 
 
 24 Cal. 474. 163. Bias v. Vance, 32 Miss, i 
 
 •• Smith V. Mundy, 18 Ala. 182. Abbott v. Shepperd, 44 Mo. 233 
 
 Petit V.Johnson, 15 Ark. 55; Rogers Smith v. McCutchen, 38 Id. 415 
 
 V. Cawood, I Swan. 142. Kane v. Latimer v. U. P. R. R., 43 Id. 105 
 
 Preston,' 24 Miss. 133. Bank of Mo. Hodson v. Tibbets, 16 Iowa, 97 
 
 V. Bray, 37 Mo. 194. Lackey v. Broghill v. Lash, 3 Greene (Iowa 
 
 Lubke, 36 Id. 115. Sims v. Randall, 357. McGaher v. Carr, 6 Iowa, 331 
 
 I Brev. 226. • Wiseman v, McNulty, 25 Cal. 230- 
 
 ' Kennedy v. Duncklee, i Gray, 65. Lawrence v. Jenney, i Speers 
 
 ' Shriver's Lessee v. Lynn, 2 How. 356.' 
 
Chap. XIV.J 
 
 PROCEEDINGS AFTER RETURN. 
 
 42b 
 
 tion issues upon a void judgment ;' or a dormant judgment ;" 
 or on a personal judgment against a married woman where 
 such judgments are void;' or under a void execution;* or 
 on a forged execution ; * or if made under an execution 
 without the seal of the court where the statute requires 
 process to be under seal ; ° or an altered execution where the 
 plaintiff is the purchaser;' or omits the name of one of the 
 ■defendants.' 
 
 § 257. Various matters which render sales void. 
 Sales made without appraisement where the law requires one, 
 are void, unless waived by the defendant ;° or for less than 
 the amount of the appraised value required ;" where a greater 
 amount of property is sold than is necessary to satisfy the 
 execution, unless the excess is so slight as to come under 
 the rule of de minimis non curat lexT' Whether an excessive 
 ■quantity of land has been sold is to be determined by the facts 
 
 ' Woodcock V. Bennett, i Cow. 10 Cal. 411. Beazley v. Dunn, 8 Rich. 
 
 711. Conrad v. McGee, 9 Yerg. 428. 
 Sanders v. Rains, 10 Mo. 770. Gray 
 V. Hawes, 8 Cal. 562. 
 
 ' Welch V. Butler. 24 Geo. 445. 
 
 ' Higgins V. Peltzer, 49 Mo. 
 
 ■* Geoghan v. Ditto, 2 Mete. (Ky.) 
 433. Watson V. Fuller, 6 Johns. 282. 
 French v. Eaton, 15 N. H. 337. 
 Slaughter v. Fisher, 2 J. J. Marsh. 
 137. Dennis v. McLeod, 8 Ired. 221. 
 Palmer v. Palmer, 2 Conn. 462. Gush- 
 man V. Carpenter, 8 Cush. 3S8. Ditto 
 V. Geoghan, i Mete. (Ky.) i6g. Towns 
 V. Harris, 13 Tex. 507. Elliott v. 
 Armstrong, 2 Blackf. ig8. Newson 
 "v.. Newson, 4 Ired. 381. Smith v. 
 Knight, ,11 Ala. 618. Walker v. 
 Knight, 15 B. Monr. 476. Johnson 
 V. Baker, 38 111. 98. Hamilton v. 
 Shrewsbury, 4 Rand. 427. Overton 
 V. Perkins, 10 Yerg. 328. Woodcock 
 V. Bennett, i Cow. 711. Cooper v. 
 Harter, 2 Ind. 252. Cutter v. Wads- 
 worth, 7 Conn. 6. Davis v. Robinson, 
 
 345- 
 
 ' Silvan v. Coffee, 20 Tex. 4. 
 
 « Ins. Co. V. Halleck, 6 Wall. 556. 
 Beal V. King, 6 Ohio, 11. 
 
 ' Trigg V. Ross, 35 Mo. 163. 
 
 * Brem v. Johnson, 70 N. C. 566. 
 
 ' Evans v. Ashby, 22 Ind. 15. 
 Tyler v. Wilkinson, 27 Ind. 450. 
 Gardner v. Lisk, 54 Penn. 506. Col- 
 lier V. Stanbrough, 6 How. 14. 
 Fletcher v. Holmes, 25 Ind. 458. 
 Holman v. Collins, i Id. 24. Wolf 
 V. Payne, 35 Penn. 97. 
 
 '" Maple V. Nelson, 322. 
 
 " Hastings v. Johnson, i Nev. 603. 
 Shropshire v. ■ PuUen, 3 Bush. 512. 
 Isaacs V. Gearhart, 12 B. Mon. 231. 
 Addison v. Crow, 5 Dana, 277. 
 Stovei V. Boswell, 3 Id. 235. Adams 
 V. Kiser, 7 Id. 209. Davidson v. Mc- 
 Murty, 2 J. J. Marsh. 66. Carlisle v. 
 Carlisle, 7 Id. 625. Pepper v. Com- 
 monwealth, 6 Mon. 20. Gearhart v. 
 Thorp, 9 B. Mon. 35. Patterson v. 
 Carneal, 3 A. K. Marsh. 618. 
 
424 ON EXECUTIONS. [Chap. XIV. 
 
 of each particular case. It is indispensable that a certain- 
 amount of discretion should be irtrusted to the officer ; if it 
 is the result of miscalculation, or unintentional, it will not be 
 set aside, if the excess is but slight ; ' or where the purchase 
 is made on the behalf of the debtor, so that he loses nothing- 
 by the sale." The provisions of state statutes, fixing the 
 place of sale, are imperative and mandatory, and a sale at any 
 other place is void.' Where property is sold under several 
 executions, and only one is valid if sold to the plaintiffs,* if 
 sold to a stranger, he will take title under the valid writ.' 
 A sale on an execution which varies from the judgment, is 
 void, and passes no title ; ' or on a valid execution which has 
 been enjoined ; ' or where the officer at the time of sale has 
 money in his hands belonging to the debtor sufficient to 
 satisfy the execution.' So a sale of property in another 
 county than that in which the execution issues to the 
 sheriff, as if an execution issue to a sheriff of B county,, 
 and he under such writ, sells land in A county.' A 
 sale made on execution for the whole amount, of the orig- 
 ilial judgment when one-half of the judgment was paid 
 prior to the issue of the writ." It seems an execution will not 
 
 ' Cornelius v. Buford, 29 Tex. 202. v. Robinson, 19 Cal. 411, Beazley v. 
 
 Morrison v. Eunce, 9 Dana, 216. Dunn, 8 Rich. 345. Palmer v. Palmer, 
 
 Adams v. Kiser, 7 Id. 208, Southard 2 Conn. 462. Cushman v. Carpenter,. 
 
 V. Pope, 9 B. Monr. 263. 8 Cush. 388. Cutter v. Wadsworth,^ 
 
 ' Tankersley v. Anderson, 4 Dess. 7 Conn. 6. Rider v. Alexander, I 
 
 44. Chip. 274. Butler v. Haynes, 3 N. H. , 
 
 ' Dryfus v. Bridges, 45 Miss. 247, 21. Newson v. Newson, 4 Ired. 381. 
 
 * Banks v. Evans, 18 Miss. 35. Smith v. Knight, 11 Ala. 618. Walker 
 
 Dudley v. Cole, I D. & B. Ch. 429. v. Knight, 15 B. Monr. 476. Maxwell, 
 
 Brown v. McKay, 16 Ihd. 484. Hot- v. King, 3 Yerg. 460. 
 chins V. Doe, 3 Id. 528. Clark v. Wat- ''Morris v. Bradford, 19 Geo. 527 
 
 son, 2 Id. 400. Harrison v. Sapp, 8 ' Zylstra v. Keith, 2 Dessau. 140. 
 
 Black, 455. • Hanby v. Tucker, 23 Geo. 132. 
 
 ' Herrick v. Graves, 16 Wis. 157. Menges v. Oyster, 4 W. & S. 20. 
 
 ' Brem v. j'ohnson, 70 N. C. 566. Kinter v. Jenks, 43 Penn. 445. Ste- 
 Watson Y. Fuller, 6 Johns. 282. phenson v. Doe, 8 Blackf. 508. King, 
 French v. Eaton, 15 N. H. 337. v. Carlee, i Penn. 147. Bybee v. Ash- 
 Slaughter V. Fisher, 2 J. J. Marsh. 137. by, 7 111. 151. 
 Dennis v. McLeod,8 Ired. 221. Davis '" Knight v. A.pplegate, 3 Monr. 33s 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. 495 
 
 be void, though issued for too much. It may be amended 
 or set aside on motion. If that be not done, and a sale 
 take place, the sale will be wrongful for any amount beyond 
 the sum actually due.' 
 
 § 258. Sales made in other ways than those pre- 
 scribed BY statute, a sale of property in any other manner 
 than that prescribed by law, vests no title in the vendee ;' as, 
 for instance, a sale where no notice is given, and there is no 
 one present but the plaintiff, who is the purchaser ; ' or at a 
 private sale, not at auction ;* or if made in one or two days less 
 than required by statute," to a purchaser with notice ;' or a sale 
 under an execution for costs, where there is no judgment for 
 costs',' a sale for the officer's fees ;' or if a levy and sale is made 
 by an officer after his removal from office, or the expiration of 
 his term," but not where it is made before his office termi- 
 nates ;'° sales made to the party selling or conducting the 
 sale ;" or where a stranger's land is sold ;" a sale of real estate 
 and personal property, in gross." A sale made on the foreclos- 
 ure of the mortgage payable by installments, upon non-pay- 
 ment of the first installment, is void in Minnesota." A sale of 
 
 ' Peck V. Tiffany, 2 N. Y. 451. Washington v. Irving, Mart.& Yerg.45. 
 
 ' Piel V. Brayer, 30 Ind. 332. Stew- • Bank of Tenn. v. Beatty, 3 Sneed. 
 
 art V. Houston, 25 Ark. 311. Cable 305. U. S. Bank v. Bank of Ark., i 
 
 V. Martin, 2 Miss. 558. Merwin v. Hemp. 460. Merchants' Bank v. 
 
 Smith, I Green Ch. 182. Reynolds Harrison, 39 Mo. 433. 
 
 V. Wilson, 15 111. 394. Frazer v. '" Wheaton v. Sexton, 4 Wheat. 503. 
 
 Steenrod, 7 Iowa, 339. Lee v. Fel- Ferguson v. Lee, 9 Wend. 258. Stew- 
 
 lowes, 10 B. Monr. 117. art v. Hamilton, 4 McLean, 534, 
 
 ' McMichael v. McDennott, 17 .Lamed v. Allen, 13 Mass. 295. 
 
 Penn. 353. " Man v. McDonald, 10 Humph. 
 
 * Rickets v. Unangst, 15 Penn. go. 275. Blood v. Hayman, 13 Mete. 
 Hutchinson V. Cassidy, 46 Mo. 431. 231. Scott v. Freeland, 14 Miss. 409. 
 Reamer's Appeal, 18 Penn. 510. Mor- Shaw v. Swift, I Ind. 565. Hoskins 
 ris V. Allen, 10 Ired. 203. v. Wilson, 4 D. & B. 243. Michoud 
 
 ' Keen v. Preston, 24 Ind. 395. v. Girod, 4 How. 503. 
 
 Gibbs V. Neely, 7 Watts, 305. " Hewson v. Dygert,_§ Johns. 333. 
 
 • King V. Cushman, 41 111. 31. Chambers v. Lewis, 28 N. Y. 454, 
 Waite V. Dolby, 8 Humph. 406. Dewolf v. Mallett, 4 Dana, 214. 
 
 ' Criswell v. Ragsdale, 18 Tex. 443. " Lee v. Fellowes, 10 B. Monr. 117 
 ' Craft V. Merrill 14 N. Y. 456. " Shorts v. Cheadle, 8 Minn. 67. 
 
426 ON EXECUTIONS. [Chap. XIV. 
 
 a debtor's interest in an estate before it is ascertained ;' a 
 sale made pending a suit of trover ;" a sale and conveyance 
 by an officer, without making a return as required by law,* 
 a sale of land under execution for the purchase-money, in 
 favor of the vendor against the vendee, where the vendee has 
 only a bond for a title, and the vendor, prior to the levy, fails 
 to record the deed to his vendee.* A vendor who has not 
 parted with the legal title to land who brings an action for the 
 unpaid portion of the purchase-money, and after judgment, 
 sells the equitable interest of the vendee in possession, such 
 sale is void ; the land itself should be sold.* The issuing of 
 an alias writ is an abandonment of the original, and unless a 
 relevy is made under the alias, there is no foundation for a 
 vendi, and a purchaser at such sale acquires no title." So a 
 sale to the adhiinistrator of a judgment-debtor, who pays no 
 money, but purchases in trust for creditors, is void and fraud- 
 ulent as to creditors.' A sale under an execution against an 
 executor de bonis propriis' on a judgment against an infant, 
 and the execution issues against the estate of the next friend.' 
 § 259. Sales void for uncertainty in description of 
 LAND SOLD. Another ground upon which sales of real estate 
 under execution -are declared void by courts, is the vague- 
 ness and indefiniteness of the description of the property 
 sold. Where the officer's return of a levy upon the land of 
 an execution-debtor, and the notices and advertisements of 
 the sale under the levy are wholly uncertain in their descrip- 
 tion of the location, extent and quantity of the land levied 
 upon and sold (except by reference to a deed on record, and 
 there is no such deed on record), the levy and sale are void, 
 and the purchaser at a sale need not accept the deed of the 
 officer or pay the price bid, notwithstanding he knew at the 
 time of his bid the locality, extent and quantity of the land 
 
 ' Penn v. Spencer, 17 Gratt. 85. ' Gaston v. White, 46 Mo. 486. 
 
 ' McLin V. Williams, 28 Geo. 482. • Alley v. Carroll, 3 Sneed. 110. 
 
 ' Payne v. Pollard, 3 Bush. 127. ' Hays v. Heidelberg, 9 Penn. 203. 
 
 * Bailey v. Bailey, 22 Geo. 116. ' Thomas v. Tanner, 6 Monr. 52. 
 
 Hawille v. Smith, 47 Geo. 214. Bum- ' Wilson v. McGee, 2 A. K. Marsh. 
 
 «on V. Grant, 48 Id. 394. 600. 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. ■ 427 
 
 levied on and sold. The policy of the law requires for the 
 protection of the interests of the execution debtor, and of 
 his creditors, that his land should not be sacrificed by a sale 
 in invitum, from want of the appointed notice to the public 
 of what is to be sold, and therefore the means of judging 
 what they may reasonably bid for, and that both he and 
 they should have the sure and appointed means of ascertain- 
 ing what property of his has been sold under the levy.' 
 Wh?re the description of the land levied on and sold under 
 execution is so defective that the particular piece of land 
 can not be located, the levy and sale and entry of satisfaction 
 should be set aside on the ground that the levy and sale is 
 void for vagueness and indefiniteness ;" as for instance, "all 
 the unsold land ; " ' or, " all the land and tenements of the 
 defendant being in such a locality ; " * or one hundred and 
 ninety acres part of a tract of six hundred acres." Where 
 there is no description or other means of distinguishing the 
 land sold from the residue of the tract. The following was 
 held sufficiently certain : " The undivided third parts of 
 
 ' Childs V. Ballou, 5 R. I. 537. Ma- Frazer v. Steenrod, 7 Iowa, 333. 
 
 son V. White, II Barb. 173. Glenn v. Sumner v. Lyon, 7 Conn. 281. Fish 
 
 Mahoney, 4 Iowa, 314. Boswell v. v. Sawyer, 11 Id. 545. Borden v. 
 
 Farenholtz, 3 Id. 84. Smith, 3 D. & B. 34. Brown v. Dick- 
 
 ^ Hughes- V. Streeter, 24 111. 647. son, 2 Humph. 395. Marmaduke v. 
 Clemens v. Rannels, 34 Mo. 579. Tennant, 4 B. Mon. 210. Lan- 
 Deloach v. State Bank, 27 Ala. 437. dreaux v. Foley, 13 La. 114. Jack- 
 Kendal V. Clark, 10 Cal. 17. Bell v. son v. Rosevelt, 13 Johns. 97. Hud- 
 Dawson, 32 Mo. 79. Merwin v. dleston v. Garrett, 3 Humph. 629. 
 Smith, 1 Green Oh. 182. Head v. Pound v. Pullen, 3 Yerg. 338. Hart 
 Jame, 13 Wis. 643. Ballance v. For- v. Rector, 7 Mo. 531. Chesapeake 
 «yth, 13 How. 18. Raymond's Lessee Bank v. McClellan, i Md. Ch. 328. 
 y. Longworth, 14 Id. 70. Ronken- ' Huddleston v. Garret, 3 Humph, 
 ■dorf V. Taylor, 4- Peters, 379. Lessee 629. Pound v. Pullen, 3 Yerg. 338. 
 •of Massie v. Long, 2 Ohio, 412. Laf- Clemens v. Reynolds, 34 Mo. 579. 
 ferty's Lessee v. Byers, 5 Id. 458. Hart v. Rector, 7 Id. 531. 
 .Spellman v. Curtenius, 12 111. 409. * Jackson v. Rosevelt, 13 Johns. 
 Winkler v. Higgins, g Ohio S. 599. 97. 
 
 Richardson v. State, 5 Blackf. 51. ' Marmaduke v. Tennant, 4 B. Mon. 
 
 McPherson v. Foster, 4 Wash. 45. 210. Deloach v. State Bank, 27 AJa. 
 
 Reynolds v. Wilson, 15 111. 394. 437. 
 
428 ON EXECUTIONS. [Chap. XIV. 
 
 the lots which were not sold by said L. in the addition to 
 the then city of St. Louis, laid out by L. S. & B., on the 
 river," &c., it was proven that the location was well known, 
 and that only one lot had been sold.' 
 
 § 260. Irregularities which will not avoid sales. 
 Having shown how and for what causes sales made under 
 execution may be set aside, and when void, we now pro- 
 ceed to ascertain when they will be sustained by courts, 
 though there be slight errors and irregularities in the officer's 
 proceedings. It makes but little difference to a purchaser 
 whether a return is made by the officer of his proceedings 
 upon execution or not; his title does not depend upon the 
 return, but upon the authority and power of the officer to 
 sell. This rule is applicable in all cases ; for if no return 
 is made, the sale may be proved by parol ;" except under the 
 New England practice, where the purchaser derives his title of 
 record, when every essential requirement of the statute must 
 be complied with, in order to vest title in the creditor ; there 
 being no sale, but a setting off of the property in satisfaction 
 of the debt, the return becomes the evidence of title." There 
 the rule could not apply ; it is applicable only in cases of sales. 
 Where the execution correctly describes the parties, and 
 bears the correct number of the case, it will be presumed to- 
 have issued upon a judgment rendered in such case between 
 the parties in question ; and in the absence of proof of other 
 
 ' Lisa V. Lindell, 27 Mo. 127. ' Eastman v. Curtis, 4 Vt. 616. 
 
 * Hill V. Kendall, 25 Vt. 528. Cloud Williams v. Armory, 14 Mass. 28. 
 
 V. Eldorado, 12 Cal. 128. Small v. Ladd v. Blunt, 4 Id. 402. Met- 
 
 Mickey, 1 S. & R. 95. Low v. Adams, calf v. Gillett, 5 Conn. 400. Pendle- 
 
 6 Cal. 227. Wolf V. Heath, 7 Blackf. ton v. Button, 4 Id. 28. Williams 
 
 154. Farrar v. Hamilton, i Tay, 10. v. Brackett, 8 Mass. 240. Davis y. 
 
 Gates V. Gaines, 10 Vt. 436. Lynn v. Maynard, 9 Id. 242. Wellington v. 
 
 Sisk, 9 B. Monr. 135. Brooks v. Gale, 13 Id. 483. Boody v. York, 8 
 
 Rooney, 11 Geo. 43. Gibson v. Wins- Me. 272. Pitts v. Clark, 2 Root, 221. 
 
 low, 38 Penn. 49. Hutchins v. Car- Purrington v. Loring, 7 Mass. 246. 
 
 ver Co., 16 Minn. 13. Blood v. Light, Emerson v. Towle, 5 Me. 197. U. S. 
 
 31 Cal. 115. Clarke v. Lockwood, 21 v. Slade, 2 Mason, 71. Welsh v. Joy, 
 
 Id. 224. Wheaton v. Sexton, 4 Wheat. 13 Pick. 577. Prescott v. Pettee, 3 Id. 
 
 503. Mitchell V. Lipe, 8 Yerg. 179. 331. IngersoU v. Sawyer, 2 Id. 276, 
 
 Jackson v. Sternljergh, I Johns. 153. Ten Eyck v. Walker, 4 Wend. 162. 
 
■Chap. XIV.] PROCEEDINGS AFTER RETURN. 429 
 
 judgments, all proceedings thereunder will be held to be 
 valid, and a sale sustained,' even though there is a slight \a- 
 riance from the judgment ; ' or the execution is irregular ; " 
 or a voidable execution.* Where the proceedings are com- 
 menced upon a defective affidavit in attachment, if personal 
 service is made upon the defendant ; ° or where a general 
 execution issues upon a judgment in rem, and only the 
 attached property is sold,' though the return be irreg- 
 ular.' Where the officer sells land when there is sufficient 
 personal property ;' or where, by agreement of the par- 
 ties, he surrenders the personal property to the debtor.' 
 a sale of a less interest than the debtor has ;'° an error in com- 
 puting the amount of the purchase-money ;" a sale made on 
 z. judgment by confession, in order to give a creditor a pref- 
 erence, confessed by the debtor intending to take the bene- 
 fit of the bankrupt act, if the creditor who purchases is no 
 party to the fraud ;" on an erroneous judgment ;'° a sale by 
 one officer for another, the proceedings being recognized 
 and returned by him ;" a sale on a judgment rendered on a 
 
 ' Durham v. Heaton, 28 111. 264. ■* Mace v. Dutton, 2 Ind. 309. El- 
 
 Phillips V. Coffee, 17 Id. 154. Shaffer liott v. Knott, 14 Md. 128. Harper 
 
 V. Bolander, 4 G.Greene, 201. Wilson v. Hill, 35 Miss. 63. Hughes v. Wil. 
 
 y. Campbell, 33 Ala. 249. Abels v. kinson, 37 Id. 482. Beard v. Sinnott, 
 
 Westervelt, 15 Abb. Pr. 230. Hen- 35 N. Y. Superior Ct. R. 51. 
 drick V. Davis, 27 Ga. 167. Johnson ' Harvey v. Wickham, 23 Mo. 112. 
 
 V. Rees, 28 Id. 353. Coffee v. Silvan, • Booth v. Estes, 16 Ark. 104. 
 
 15 Tex. 354. Peck v. Tiffany, 2 N. ' Hutchinson v. Carver, 16 Minn. 13. 
 
 Y. 451. Brace v. Shaw, 16 B. Mon. ' U. S. v. Dennen, i Hemp. 320. 
 
 43. Little V. Sinnett, 7 Iowa, 324. ' Jones v. Lusk, 2 Met. (Ky.) 356. 
 
 Bradley v. Keese, 3 Cold. 223. Eakin Cavender v. Smith, I Clarke (Iowa) 
 
 V, Burger, I Sneed, 418. Sprott v. 306. 
 Reid, 3 Greene (Iowa) 489. '" O'Connor v. Youngblood, l6 Ala. 
 
 '^ Williams v. Brown, 28 Iowa, 247. 718. Martin v. CoUister, 38 N. H. 
 
 Hunt V. Loucks, 38 Cal. 372. 455. 
 
 ' Worke v. Hunter, C. & N. 527. " Cowan v. Anderson, 7 Coldw. 284. 
 
 Mitchell v, Evans, 6 Miss. 548. Wil- " Fenelon v. Lonergan, 2g Penn. 
 
 -son v. Nance, n Humph. 189. Mace 491. 
 
 V. Dutton, 2 Ind. 309. Sowles v. Har- " Piatt v. Piatt, 9 Ohio, 37. Van 
 
 vey, 20 Id. 217. Culbertson v. Mil- Bussum v. Maloney, 2 Met. (Ky.) 550. 
 
 hollin, 22 Id. 362. C irwith v. State Doughty v. Moss, i Bush, 161. 
 kBank, 18 Wis. 560. " Pruitt v. Lowry, I Port. loi. 
 
430 ON EXECUTIONS. [Chap. XIV. 
 
 lien after the appointment of a receiver ;' or where the pur- 
 poses of the receivership ceased before the conapletion of the 
 title f where certain lands are specifically ordered sold, 
 and by a division of the county between the date of the exe- 
 cution and the sale, the land is in the new county ;" where a 
 change is made in the terms of sale more favorable to the debt- 
 or, thepresemption being that it was made at his instance and 
 request, and he will be estopped from contesting it.' Where 
 a debtor, by his acts and declarations, sanctions and confirms 
 a sale set aside for irregularity, the officer becomes the 
 authorized agent of the debtor.' That the property did not 
 belong to the debtor, but to the creditor in the execution. 
 A person can not sell the property of another, but he cer- 
 tainly can sell his own property in any manner he sees fit, 
 provided no law is violated, and no person is injured there- 
 by.' By errors in the record, when the purchaser has 
 obtained no unfair advantage f or by agreement to reconvey ;* 
 a sale made for a greater amount than is due on the judg- 
 ment.' Where, after return of nu//a bona, the execution is 
 withdrawn by consent of plaintiff's attorney, the return 
 erased, and a sale made, the officer must account for the 
 proceeds." An agreement with the plaintiff not to pay the 
 purchase-money unless the title is good ;" a sale upon a levy 
 made on a junior execution ;" after confirmation and distribu- 
 tion of the proceeds, and third parties have acquired rights 
 in the property ;" a sale pending a writ of error ;" a sale where 
 the appraisement was made without seeing the land ;" but 
 these rules do not apply where a sale is made of something 
 
 ' Southern Bank v. Ohio, &c. Co., ' Tipton v . Grubb, 2 B. Monr. 83. 
 
 22 Ind. 181. Morrison V. Bunce, 9 Dana, 211. 
 
 ' Montgomery v. Merrick, 18 Mich. '" James v. Gurley, 48 N. Y. 163. 
 
 338. " Goodwin v. Floyd, 10 Yerg. 520. 
 
 » Tyrell v. Rountree, 7 Pet. 464. " Lambert v. Paulding.iS Johns. 311. 
 
 * Nichols V. Mercier, 15 La. 370. " Leonard v. Taylor, 12 Mich. 398.. 
 ' Klopp V. Witmoyer, 43 Penn. 226. Am. Ins. Co. v. Oakly, 9 Paige, 258. 
 
 • Mcllhenny v. Barbin, 15 La. 348. " Mosely v. Gamier, lo Tex. 393. 
 ' Lusk V. Salter, 2 Bush, 207. Swiggart v. Harber, 5 111. 364. 
 
 ' Lenox v. Notrebe, 1 Humph. " Jackson v. Vanderheyden, 17 
 251. Johns. 167. 
 
Chap. XIV.] PROCEEDINGS AFTER RETURN. '431 
 
 that the officer has no authority to sell, and the attempt to 
 take possession may be resisted by showing that there was 
 no authority for making the sale, this being a want of juris- 
 diction." Where an execution issues against two, a sale will 
 not be set aside on the application of one only.' 
 
 ' Harris v. Murray, ?8 N. Y. 574. ' Stark v. Mitchell, 2 A. K. Marsh. 10. 
 
432 ON EXECUTIONS. [Chap. XV. 
 
 CHAPTER XV. 
 
 Of THE CONFIRMATION OF SALES. — CERTIFICATE OF SALE 
 AND REDEMPTION FROM SALE. 
 
 Confirmation of Sale. — How made. — When to be Confirmed. — 
 When not. — Effect of Confirmation. — Of the Certificate of 
 Sale. — When to be made. — To whom to be made. — Effect of 
 not executing Certificate. — Of the Assignment of the Cer- 
 tificate. — Redemption from Sale. — Who entitled to Redeem.. 
 — What necessary to effect Redemption. — Statutory Provi- 
 sions relating to Redemption of Real Estate after Sale on 
 Execution. 
 
 § 261. Of the confirmation of sales. In those 
 states where the proceedings are required to be returned 
 into court for the purpose of passing upon the legality of 
 the officer's transactions, the next step after seeking to 
 set the sale aside for causes mentioned in the preceding 
 chapter, is the confirmation of the sale by the court, from 
 which the power and authority of the officer to sell is 
 derived. No valid sale can be made without a confirma- 
 tion, nor a deed or certificate of sale, unless ordered by the 
 court.' After the sale the whole matter is /« _/f^r? and un- 
 der the control of the court until the sale is confirmed.' 
 A sale may be confirmed at any time after the officer has 
 
 ' Curtis V. Norton, i Ohio, 278. Jones, 18 Id. 164. Young v. Keogh, 
 
 Taylor v. Gilpin, 3 Mete. (Ky.) 544. 11 111. 642. Wallace v. Hall, 19 Ala. 
 
 Rawlings v. Bailey, 15 111. 178. Bios- 367. Koehler v. Ball, 2 Kans. 160. 
 
 som V. R. R. Co., 3 Wall. 207. Chil- Ayres v. Baumgartner, 15 111. 444. 
 
 dress v. Hurst, 2 Swan, 487. William- Lieshey v. Gardiner, 3 W. & S. 314. 
 
 son V. Berry, 8 How. 496. Vallee v. Erb v. Erb, 9 Id. 147. Dickenson v. 
 
 Fleming, 19 Mo. 454. Webster v. Talbot, 14 B. Monr. 60. Townsend 
 
 Hill, 3 Sneed. 333. Henderson v. ». Tallant, 33 Cal. 45. 
 
 Herrod, 23 Miss. 434. Gowan v. ■• Mitchell t. Harris, 43 Miss. 314. 
 
Chap. XV.] CONFIRMATION OF SALES. 433 
 
 made his return, on motion of any party interested therein, 
 or on the court's own motion, and without the consent of 
 the officer.' The process under which real estate is sold 
 must conform with the order commanding its sale ; the offi- 
 cer executing such process must proceed according to its 
 terms — all the proceedings in each successive step must be 
 in harmony with each other, and must be authorized by 
 law.' In confirming a sale, the court decides on its legality,* 
 It is the duty of the court to see that the proceedings have 
 been in conformity with the law ; it can not go behind the 
 sale, and receive evidence except as to the regularity of the 
 .sale. The order of confirmation is an adjudication merely 
 that the proceedings of the officer, as they appear of record, 
 are regular, and a direction to the officer to complete the 
 sale.* The court should confine itself to an examination of 
 the return of the officer, and if that ^ov; prima facie that 
 all the requirements of the statute have been complied with 
 the sale should be confirmed." Where the premises ordered 
 appraised, advertised and sold, consist of a single lot, and 
 the process conforms thereto, if the officer sells only an un- 
 divided portion thereof, the court should refuse confirma- 
 tion, such sale being erroneous ;* or by reason of fraud, 
 
 ' Ferguson v. Tutt, 8 Kans. Kans. 276. Challis v. Wise, 2 Id. 193. 
 
 370. Koehler v. Ball, Id. 160. 
 
 ' Wheatley v. Tutt, 4 Kans, 195. ' Sleeper v. Newbery Seminary, 19 
 
 2 Terrill V. Anschutz, 14 Ohio S. -So. Vt. 451. Helton v. Hanson, 18 Me. 
 
 Bolgianio v, Cook, 19 Md. 375. Jenn- 397. Porter v. Byrne, 10 Ind. 146. 
 
 son V. Gaston, 21 Tex. 237. Brown v. Benson v. Smith, 42 Me. 414. Howe 
 
 Gilmor, 8 Md. 322. Todd v. Dowd's v. Starkweather, 17 Mass. 240. Davis 
 
 Heirs, I Mete. (Ky.) 281. Williamson v. Maynard, 9 Id. 242. Williams v. 
 
 V. Berry, 8 How. 554. Voorhees v. Amory, 14 Id. 20. Wellington v. 
 
 Bank, 10 Pet. 469. Jackson v. Bart- Gale, 13 Id. 483. Curtis v. Norton, 
 
 lett, 8 Johns. 361. Jackson v. Rose- I Ohio, 278. Goodright v. Gilbert, i 
 
 velt, 13 Id. 96. McCleary v. Faber, Yeates, 300. Hinson v. Hinson, 5 
 
 6 Penn. 476. Crowell v. McConkey, Sneed, 322. Breese v. Baftge, 2 E. D. 
 
 5 Id. 168. Smalley v. Payne, 5 Kans. Smith, 474. Lessee, &c. v. Gibson, 
 
 525. ,4 Yeates, III. Gantley v. Ewing, 3 
 
 * Challis V. Wise, 2 Kans. 193. How. 707. Chapman v. Harwood, 8 
 
 Koehler v. Ball, Id. 160. Blackf. 83. Hefferlin v. Sinsinderfer 
 
 ' White Crow v. White Wing, 3 2 Kans. 401. 
 
 28 
 
434 ON EXECUTIONS. [Chap. XV. 
 
 accident, or circumstances prejudicial to either party;' or 
 where the execution under which real estate has been sold 
 shows no indorsement of " no goods," and where there was 
 no evidence in the return of the officer that the debtor had 
 not sufficient goods and chattels to satisfy the debt, the 
 sale ought not to be confirmed." The confirmation of the 
 sale by the court supplies all defects in the proceedings ex- 
 cept questions of jurisdiction and fraud,' and if there is 
 no jurisdiction in the court making the sale, it is void after, 
 as well as before, such confirmation.* The court must 
 either confirm or set aside the sale ; it has no power to> 
 modify its terms nor substitute another bid." The confirma- 
 tion of the sale relates back to the date of the writ.' The 
 ratification of a judicial sale is final and conclusive, unless 
 irregularly made by the court, or unless the purchaser was 
 prevented by misrepresentation, surprise or fraud, from 
 making his objection to the confirmation in due time, and it 
 must appear that such misrepresentation, fraud or surprise 
 resulted from some act or conduct on the part of those in- 
 terested in the proceedings,' and where, with a reasonable 
 degree of diligence, such sale might have been avoided, it 
 will not be set aside.' The confirmation has the effect of a 
 judgment, and until vacated or set aside by a direct pro- 
 ceeding in the action, can not be collaterally called in ques- 
 tion.' A purchaser obtains no title until after confirmation.'" 
 
 ' Cohen V. Wagner, 6 Gill, 236. Wotten, 3 Id. 514. Andrews v. Scot- 
 
 Latrobe v. Herbert, 3 Md. Ch. 375. ten, 2 Bland, 643. Cunningham v. 
 
 2 Koehler v. Ball, 2 Kans. 161. Schley, 6 Gill, 207. 
 
 ' Harrison v. Harrison, I Md. Ch. ' Evans v. Spurgeon, 6 Gratt. 107. 
 
 331. Koehler v. Ball, 2 Kans. 161. Wagner v. Cohen, 6 Gill, 97. 
 
 Williamson V. Berry, 8 How. 546. ' Brown v. Gilmor, 8 Md. 322. 
 
 * Townsend v. Tallant, 33 Cal. 45. Hunting v. Walter, 33 Md. 60. 
 
 R. R. Co. V. St. Paul, 2 Wall. 609. « Kaufman v. Walker, 9 Md. 229. 
 
 Shriver's Lessee v. Lynn, 2 How. 43. Stiner's Appeal, 56 Penn. g. 
 
 '■ Kinnear v. Lee, 28 Md. 4S8. ' Hotchkiss v. Cutting, 14 Minn. 
 
 Benz V. Hines, 3 Kans. 390. Ohio, &c. 537. Cockey v. Cole, 28 Md. 276. 
 
 Co. V. Goodin, 10 Ohio S. 557. Davis Willis v. Nelson, 24 La. 545. 
 
 V. Stewart, 4 Tex. 223. Harrison v. '" Taylor v. Gilpin, 3 Mete. (K.y.) 
 
 Harrison, I Md. Ch. 331. Glenn v. 544. Hunting v. Walter, 33 Md. 60. 
 
Chap. XV.] CONFIRMATION OF SALES. 435 
 
 A fair and open sale of land under a decree of judgment; 
 the execution and delivery of a deed, and the purchaser 
 going into possession and enjoying the rents and profits for 
 several years, amounts to a confirmation in pais as far as the 
 parties in interest are concerned.' 
 
 § 262. Certificate of sale. In states where, by statutory 
 provision, a period of time therein specified is given to the ex- 
 ecution debtor to redeem the real estate sold under execution, 
 the officer gives to the purchaser a certificate of sale, contain- 
 ing a particular description of the real property sold, the 
 price bid for each distinct lot or parcel, the sum paid, and 
 the time when the. purchaser shall be entitled to a deed. 
 The time allowed for redemption varies in the different 
 states. A certificate of the sale is to be delivered by the 
 officer to the purchaser, and another certificate filed in the 
 clerk's office of the county within a specified time. The 
 filing of the officer's certificate is equivalent to a deed taken 
 and recorded, so far as respects the purchaser's security 
 from any intervening claim, other than the right of redemp- 
 tion. A party receiving a certificate dies seized, though he 
 has never taken a deed.' The neglect of the officer to give 
 the purchaser his certificate, or to file the duplicate, will not 
 vitiate the sale. The remedy is not to be sought by undo- 
 ing what has been done, but by supplying the defects by 
 other proof, and compelling the officer to do his duty.* A 
 certificate will not be avoided by reason of part of the prem- 
 ises sold being the homestead ; the purchaser may have 
 a deed for the residue.' Nor for any amendable defect in 
 the execution.' But where a certificate of sale is given to 
 any person other than the one shown by the return of the 
 officer to be entitled to it, it is a void act.' The certificate 
 of sale is competent evidence of the facts and circumstances 
 attending such sale stated therein.' Ifthe levy and certificate 
 
 ' Redus V. Hayden, 43 Miss. 614. • Barnes v. Kerlinger, 7 Minn. 82. 
 Confirmation is an order that can only * Bennett v. Child, 19 Wis. 362. 
 
 be reversed by the court making it, ' Sabin v. Austin, 19 Wis. 21. 
 
 after the term at which it was made. • Dickerman v. Burgess, 20 111. 
 
 Livingston v. Lamb, i Kans. 221. 286. 
 
 « English V. Helmuth, 3 N. Y. 294. ' Birdwell v. Coleman, II Minn. ^i. 
 
436 ON EXECUTIONS. [Chap. XV. 
 
 correctly describe- the property and there is an error in the 
 return, the error will not vitiate the sale," unless the certifi- 
 cate of sale is recorded, it is void as against subsequent pur- 
 chasers, where their deed is first recorded." An assignee of 
 a sale certificate is bound by whatever binds the assignor.' 
 An innocent assignee for value of a sale certificate can not 
 be compelled to surrender his title to a third party, who is 
 the equitable owner of the judgment, who allowed the -as- 
 signor wrongfully to recover judgment.* An assignee's title 
 is not affected by a failure to prove and fill the certificate, 
 if the deed is made to him. The object of the proof and 
 filing is for the protection of the officer making the sale.' 
 
 § 263. Of redemption from sale. The word redemption 
 means to repurchase or purchase back ; and right of redemp- 
 tion given by statute is a right to repurchase property sold 
 on execution. In many of the states, where land is sold on 
 execution, a debtor is allowed a certain time after the 
 levy and sale, in which he may redeem the land sold 
 upon payment of the purchase-money and a specified rate 
 of interest. So that the estate which a creditor acquires in 
 the lands of his debtor in satisfaction of his debt, is gener- 
 ally subjected to redemption. Where a statute provides for 
 redemption, it also provides for the issue of a certificate 
 of sale, which is in force until the statutory time for redemp- 
 tion has expired, when the purchaser is entitled to a deed if 
 not redeemed from the execution sale. A statute authoriz- 
 ing without limitation the sale of a debtor's property, real or 
 personal, to satisfy debts, passes his whole interest at the 
 time of sale, and the privilege or right of redemption does 
 not change the character of the estate sold, but simply 
 creates a defeasance by which others interested in the 
 land may become subrogated to the rights of the pur- 
 
 ' Cook V. Chicago, 61 111. 268. ,» Reynolds v. Harris, 14 Cal. 667. 
 
 Stribbing v. Prettyman, Id. 371. Ayres v. Campell, 9 Iowa, 213. 
 Swiggett V. Kollock, 3 Houst. 326. " Mansfield v. Hoagland, 46 111. 
 
 ' Bowers v. Arnoux, 33 N. Y. Sup. 359. 
 Court, 530. e Phillips v. Schiffer, 7 Lans. 347. 
 
Chap. XV.] REDEMPTION FROM SALES. 437 
 
 chaser, and the debtor finally defeat them all, and be re- 
 stored to his estate.' The right to redeem land after a sale 
 on execution is not perfect, and can not be enforced in 
 equity, until there has either been a full performance by 
 the defendant of all the statutory requirements, or a valid 
 and sufficient excuse for non-performance, without any 
 fault or neglect on his part, and where such excuse is al- 
 leged, the excuse must be accompanied with an offer to 
 perform all that the statute requires. The statute being 
 peremptory, it can not be disobeyed or disregarded, but 
 all its requirements must be strictly complied with, as the 
 right to redeem is the creature of the statute." 
 
 § 264. Who entitled to redeem. The debtor may,' by 
 statutory provision ; also judgment-creditors.' Where a stat- 
 ute provides that a debtor or his creditors may redeem, 
 only such creditors are intended as have ascertained the 
 bona fides of their debts, by obtaining judgments ;' not cred- 
 itors at large. So the assignee of such- judgment-creditor 
 may ; in contemplation of law he is a judgment-creditor ; ' 
 or the assignee of an equity of redemption ; ' the grantor 
 and grantee of land which was conveyed while subject to a 
 judgment-lien ;° a mortgagee;' the purchaser of an equity 
 
 ' Dickinson V. Kinney, 5 Minn. 409. ■• Sweezy v. Chandler, II 111, 745. 
 
 ' Hill V. Walker, 6 Coldw. 424. Niantic Bank v. Dennis, 37 Id. 381. 
 Walker v. Ball, 39 Ala. 298. Walker Pollard v. Taylor, 13 Ala. 604. Free- 
 V. Harris, 7 Paige, 167. Gilchrist v. man v. Jordan, 17 Id. 500. In re 
 Comfort, 34 N. Y. 235. Spoor v. Peru Iron Co., 7 Cow. 540. Couth- 
 Phillips, 27 Ala. 193. Silliman v. way v. Berghaus, 25 Ala. 393. 
 Wing, 7 Hill, 159. In re Bank of 'Woods v. McGavock, 10 Yerg.- 
 Monroe, Id. 177. Waller v. Har- 133. Thomason v. Scales, 12 Ala. 
 ris, 20 Wend. 555. People v. Covell, 309. Hopkins v. Webb, 9 Humph. 
 l8 Id. 98. People v. Collier, 19 Id. 87. 519. 
 
 * Southard V. Pope, 9 B. Monr. 264. ' Sweezy v. Chandler, 11 111. 445. 
 
 Lillard v. Casey, 2 Bibb. 459. Griffin In re Raymond, I Den. 272. Stein 
 
 V. Coffee, g B. Monr. 453. Wallace v. v. Chambless, 18 Iowa, 474. 
 
 Wilson, 34 Miss. 357. Warren v. ' Hepburn v. Kerr, 9 Humph. 726. 
 
 Fish, 7 Minn. 432. Vandyke v. Her- Gushing v. Thompson, 34 Me. 496. 
 
 man, 3 Cal. 295. Kelly v. AlJbott, 13 ' Harvey v. Spaulding, 16 Iowa, 397. 
 
 Id. 609. Harvy v. Spalding, 16 Iowa, ' Crossen w. White, 19 Iowa, 109. 
 
 397. Merry v. Bostwick, 13 111. 398. Smith v. Randall, 6 Cal. 47. 
 
438 ON EXECUTIONS. [Chap. XV. 
 
 of redemption, though he paid an inadequate price.' In case 
 of a sale of property of a corporation, where no steps are 
 taken by the corporation to redeem, a stockholder may in- 
 terpose and redeem for the corporation, and hold the prop- 
 erty liable for the money advanced for that purpose ; he 
 becomes the equitable assignee of the certificate, and is 
 subrogated to all the rights of the original purchaser." 
 One under whose execution the land was sold is not enti- 
 tled to redeem.' A judgment-creditor who has a lien on 
 part only, can not redeem the whole.'' 
 
 § 265. What necessary to effect redemption. The 
 party redeeming must pay the necessary amount required in 
 money. A bank-check is not money.' Nor a certificate, of 
 deposit.' Nor certified checks.' It must be tendered to the 
 officer who made the sale, whether in or out of ofifice.' It 
 may be paid to the officer, his deputy, or the administra- 
 tors of the officer making the sale, or the purchaser.' In 
 other states, to the clerk of the court." In Alabama, a 
 creditor need only tender to the purchaser an offer to 
 credit the debtor with the amount fixed by statute." The 
 money must be paid and the statutory requirements complied 
 with within the time allowed bylaw to redeem, "bythe close 
 of business, on the last day allowed for that purpose." The 
 day of sale is to be excluded in the computation of time," 
 and the time can not be extended by any act of the party 
 
 ' Stockett V. Taylor, 3 Md. Ch. 537. v. Simon, 34 Ala. 120. Williams v 
 
 ^ Wright V. Oroville, &c. Co., 40 Lash, 8 Minn. 406. 
 
 Cal. 20. '" Roth well v. Gettys, 11 Humph. 
 
 ' In re Paddock, 4 Hill, 544. 135. Webb v. Watson, 18 Iowa, 537. 
 
 * Huntington v. Forkson, 6 Hill, Armstrong, v. Piersons, 5 Id. 317. 
 149. Hawkins v. Vinyard, 14 111. 26. " Moore v. Gore, 35 Ala. 701. 
 
 ' Lyttle V. Etherly, 10 Yerg. 389. " Mitchell v. Brown, 6 Coldw. 505. 
 
 • Dougherty v. Hughes, 3 Iowa, 92. Russell v. Allen, 10 Paige, 249. 
 ' Thome v. San Francisco, 4 Cal. Loury v. McGhee, 8 Yerg. 242. 
 
 27. " In re Bank of Monroe, 7 Hill, 177. 
 
 ' Elkin V. People, 8 111. 207. People " Tencher v. Hiatt, 23 Iowa, 527. 
 
 V. Baker, 20 Wend. 602. Jones v. Planters' Bank, 5 Humph. 
 
 • ' Stone V. Gardiner, 20 IU. 304. 619. Snyder v. Warren, 2 Cow. 518. 
 
 Robertson v. Dennis, Id. 313. Camp Dickinson v. Gilleland, i Id. 481. 
 
€hap. XV.J redemption FROM SALES. 439 
 
 ■during the right.' But there is nothing to prevent a pur- 
 chaser from agreeing with the owner that he shall be per- 
 mitted to redeem, and he is entitled to a reconveyance on 
 payment of the amount due the purchaser,' and the time 
 fixed is,not of the essence of the contract, but it may be made 
 so.' An agreement to extend the time is ijnerely a waiver of 
 the forfeiture, but does not convert the purchase into a 
 mere lien to secure the repayment of the purchase-money.' 
 ■Giving a receipt by the purchaser after the time for redemp- 
 tion has expired for the amount of his claim vacates his title 
 where the debtor gives him a note for the claim.' In Iowa a 
 failure to give notice by the debtor to have his land sold 
 subject to redemption, is a waiver of the right to redeem.' 
 Inducing a party to purchase under the assurance that he 
 will not redeem will estop the party from his right.' A sale 
 will be set aside in equity upon a bill filed by a debtor, where 
 the debtor sets forth that such sale was fraudulently con- 
 •cealed by the officer, and the debtor allowed to redeem 
 within the statutory time, after making the papers evidenc- 
 ing the sale, although more than that time had elapsed since 
 the sale." In some states the party claiming the right to 
 ■redeem must tender certain specified proofs of certain requi- 
 ■site facts.' The due production of those proofs are as much 
 a pre-requisite to the debtor's right to redeem as the exist- 
 -ence of the facts proved. Their production can not be 
 waived, but may be in Michigan." The return, certificate 
 and sale should be based upon the execution under which 
 the notice is given, and the amount at which the sale is 
 
 ' Hughes V. Feeter, 23 Iowa, 547. ■* Ferguson v. Smith, 7 Bush, 76. 
 
 ' Miller v. Lewis, 4 N. Y. 553. ' Randall v. Farnham, 36 Me. 86. 
 
 "Wallis V. Wilson, 34 Miss. 357. Gwin ' Gillett v. Edgar, 22 Iowa, 293. 
 
 ■V. Locke, I Head, no. Marlatt v. ' Woods v. McGavock, 10 Yerg. 133 
 
 Warwick, 3 Green (N. J.) 108. Turner * Briscoe v. York, 53 111. 484. 
 
 ■V. King, 2 Ired. Ch. 132. Greenup v. ' People v. Sheriff, 19 Wend. 87. 
 Porter, 4 111. 64. Wright v. Douglass, , People v. Baker, 20 Id. 60. People 
 
 10 Barb. 97. Bank v. Warren, 7 Hill, v. Covell, 18 Id. 598. Haskell v. 
 
 *)l. Peru. &c. Co. 7 Cow. 540. Manlove, 14 Cal. 54. 
 
 ' Halstead v.Tyng,3 Green (N.J.) 375. " People v. Fralick, 12 Mich. 234. 
 
440 ON EXECUTIONS. [Chap. XV, 
 
 made should be correctly stated in order that the party enti- 
 tled to redeem may know the amount paid,' and an objec- 
 tion that the amount paid is less than the actual , debt is 
 made too late after the officer has accepted it.'' Where for- 
 eign currency is tendered and accepted a deficit of a few- 
 cents is not ma1;erial.' A creditor, who, after redeeming, 
 causes the property to be sold on his execution, and bids it 
 in at a price less than that paid for its redemption, will hold 
 title under his execution, not as a redemptioner." If a party 
 advances his bid after a sale made to him, the debtor need 
 only pay the amount of his original bid, the advance after 
 sale being a fraud on the debtor's right to redeem.' Where 
 the officer making the sale receives depreciated currency, 
 the redemptioner can not tender the value of the currency, 
 but must pay the full amount of the claim." The debtor's 
 right to redeem can not be defeated by selling the same prop- 
 erty on a second execution.' A junior creditor who purchases- 
 and takes the assignment of the certificate of sale holds it sub- 
 ject to redemption by subsequent creditors.' There is no con- 
 current redemption ; the party first redeeming takes the land."' 
 Nor is there a right of redemption from sales on mechanics' 
 liens." The legal owner of the judgment is entitled on re- 
 demption to the deed irrespective of the equities of others 
 in the judgment under which he redeems." When a judg- 
 ment is utterly void, a sale under it is equally void, and it is 
 not such a sale as will entitle a creditor to redeem.'" The 
 debtor's title is not divested until after the expiration of the 
 time to redeem ; '^ but by failure to redeem the title becomes- 
 
 ' Mascroft v. Van Antwerp, 3 Cow. '° Link v. Architectural, &c. Works,. 
 
 334- 24 111. 551- 
 
 ' Karnes V. Lloyd, 52 111. 113. " Beekman v. Bunn, Hill & D, 
 
 ' In re Becker, 4 Hill, 69. 265. 
 
 * Oliver V. Crosswell, 42 111. 41. " Johnson v. Baker, 38 111. 98. 
 
 ' Wood V. Chilcoat, i Coldw. 423. " Schemerhorn v. Merrill, i Barb.. 
 
 ' Schofield V. Bessenden, 15 III. 78. 511. Smith v. Colvin, 17 Barb. 157.. 
 
 "> Merry v. Bostwick, 13 111. 398. Curtis v. Millard, 14 Iowa, 128. 
 
 ' Wilson V. Conklin, 22 Iowa. 452. Cummings v. Coe, 10 Cal. 529. Page 
 
 • In re Ives, I Hill, 639. v. Rogers, 31 Cal. 293. 
 
Chap. XV.] REDEMPTION FROM SALES. 441 
 
 absolute.' Having shown the general principle governing 
 the right of redemption of property from sale under execu- 
 tion a synopsis of some of the statutory provisions will be 
 given so that the principles herein set forth may be applied 
 to the redemption laws. 
 
 § 266. In Alabama, in case of a sale of Jand on. execu- 
 tion, the mortgagor, his executor, administrator, or judg- 
 ment-creditor, may redeem the land of the purchaser or 
 his vendee within two years thereafter, on payment of the 
 purchase-money, with ten per cent, interest, together with 
 the value of all permanent improvements made by the oc- 
 cupant. In California, when the estate is less than a lease- 
 hold of two years' unexpired term, the sale is a:bsolute. 
 In all other cases subject to redemption by the judgment- 
 debtor, or his successor in interest, or by a creditor hav- 
 ing a lien by judgment or mortgage on the property sold, or 
 any part thereof, subsequent to that on which the property 
 was sold, within six months after the sale, on paying the pur- 
 chaser the amount of the purchase-money and interest, with- 
 in eighteen /^r t^«^. thereon, and the amount of any prior 
 lien held by the purchaser. The property may be re- 
 deemed again by another party having the right to redeem, 
 within sixty days after the last redemption. In Oregon, 
 redemption is to be made within sixty days, on payment of 
 the purchase-money, and interest at two per cent per month. 
 In Iowa, if the estate levied upon is less than a leasehold 
 having two years of an unexpired term, the sale is absolute. 
 Otherwise it redeemable by the defendant within a year 
 from the sale. For the first six months of such time, his 
 right to redeem is exclusive ; after which time his creditors 
 may redeem within nine months of the sale. 
 
 In Kentucky, whjere land is sold under execution, it is the 
 sheriff's duty to show, by his return on the execution, how 
 he proceeded under it, stating the purchaser's name, and 
 giving some general description of the land in the return. 
 It is also his duty to procure the part sold to be valued 
 • Chandler v. Sawtelle, 22 Vt. 318. 
 
442 ON EXECUTIONS. [Chap. XV. 
 
 after the sale, and to make return thereof with the execu- 
 tion, that the debtor may be furnished with the evidence 
 of his right to redeem, in case such right exists. The 
 omission of these duties, however, will not vitiate the sale, 
 or affect the legal rights of the purchaser. 
 
 The legal right to redeem depends upon the valuation be- 
 ing made and returned in due form by the sheriff on the ex- 
 ecution. And where he has omitted to make such return, the 
 debtor has no legal right to redeem, and can not resist a 
 recovery in ejectment, on the ground that the land sold 
 under two-thirds of its value, and the time for its redemp- 
 tion has not expired. If the debtor has any remedy it is in 
 chancery.' If the land does not bring two-thirds of the 
 valuation, the defendant or his representatives may redeem 
 within a year, by paying the purchase-money, and ten per 
 cent, interest thereon. In Michigan, it may be redeemed 
 within one year, and the right and title of the person 
 against whom the execution issued, shall not be divested 
 until the expiration of fifteen months from the time of such 
 sale. In Minnesota, the sale of an estate less than a lease- 
 hold of two years' unexpired term is absolute. In other 
 cases, the debtor or his creditors may redeem within three 
 years from the time of sale upon execution, upon payment 
 of the purchase-money, with interest thereon at the rate of 
 seven per cent., and the judgment-debtor, or any one claim- 
 ing under him, is entitled to the possession of the premises, 
 upon condition that he pay the interest as above provided. 
 In Rhode Island, notifications of a levy upon real estate 
 must be made for the space of three months after such 
 levy, and before the same shall be exposed to sale, that 
 the owner thereof may have an opportunity to redeem. In 
 Tennessee, the debtor may redeem within two years of sale 
 on execution, on payment of the amount bid or paid by 
 the purchaser, with six per cent, interest. In Wisconsin, 
 the estate may be redeemed within two years of sale on 
 execution, upon payment of the purchase-money, with ten 
 
 ' Reid V. Heasley, g Dana, 324. Lawrence v. Edelen, 6 Bush. 55. 
 
Chap. XV.] REDEMPTION FROM SALES. 443 
 
 per cent, interest. In New York and Illinois, redemption 
 of the land sold may be made by the debtor or his repre- 
 sentative within one year, on paying the amount of the 
 bid, with ten per cent interest. Any joint tenant or tenant 
 in common may redeem his ratable share of the land by 
 paying a due proportion of the purchase-money. On de- 
 fault of the debtor, any creditor, by judgment of law or 
 decree in equity, and in his own/'' right, or as a trustee, 
 within three months after the expiration of the year, may 
 redeem the land on paying the purchaser-money, with seven 
 per cent, interest. So any other judgment creditor may 
 redeem from such prior creditor, on refunding his purchase- 
 money, with interest, and also the amount due on his judg- 
 ment or decree, if the same be a prior lien on the land. 
 The redemption is allowed to be carried further, and is 
 given to a thifd or any other creditor, who may redeem 
 from the creditor standing prior to him, on the same terms. 
 But aJl these subsequent redemptions must be within the 
 fifteen months from the time of the sale ; for the officer 
 is then to execute a deed to the person entitled, and the 
 title so acquired becomes absolute in law. In Maine, New 
 Hampshire, Massachusetts, and Connecticut, redemption may 
 be made in one year with lawful interest. In Vermont, six 
 months is allowed. In Mississippi, with ten per cent, in- 
 terest.' 
 
 ' Walker v. Brown, 45 Miss. 615. 
 
444 ON EXECUTIONS. [Chap. XVI 
 
 CHAPTER XVI. 
 
 OF THE PROCEEDS OF THE SALE, AND SATISFACTION OF 
 THE EXECUTION. 
 
 Duty of Officer to Pay. — To whom to be Paid. — Who entitled 
 to the Proceeds. — Duty of Officer with respect to the Pur- 
 chase-money. — When *he Senior Writ is entitled to the Pro- 
 ceeds. — When the Junior Writ is entitled thereto. — Appli- 
 cation in case of a Dormant Judgment . — When the Proceeds 
 will be equally distributed. — Assignees' Right to Proceeds. — 
 Surety's Right to proceeds. — Proceeds in Cases where In- 
 demnity is Furnished. — What claims are entitled to a prior 
 distribution of Proceeds. — Of the Distribution of the Sur- 
 plus. — When their Application will and will not be directed 
 by the Court. — Satisfaction of Execution. — What is. — What 
 is not. — Entering and vacating Satisfaction, 
 
 % 267. Having completed the proceedings under the exe- 
 cution, made a valid sale of the property levied upon, and 
 made the return as required by law, the next proceeding is 
 the disposal or application of the proceeds arising from the 
 sale. Many questions relating thereto have already been dis- 
 posed of in the chapter relating to matters arising from a levy, 
 ante, chapter IX, and we shall now consider, in connection 
 therewith, the question of their application. As soon as the 
 proceeds of the sale are paid to the officer, it is money had 
 and received for the use of the creditor, and if not other- 
 wise ordered, he is compelled to pay it to such creditor on 
 the return day of the writ under which it was collected, 
 without any demand by such creditor for the money,' and 
 
 ' Canterbury v. Commonwealth, i Johns. 133. Dale v. Birch, 3 Campb. 
 Dana, 415. Brewster v. Van Ness, 18 347. State v. Mann, 13 Ired. 444- 
 
Chap. XVI.] PROCEEDS OF SALE. 445 
 
 earlier, if demanded." The law does raise a promise on the 
 part of an officer to pay until demand is made.' In New 
 Hampshire the officer may retain it until demanded.' 
 Money collected colore officii by an officer, can not be with- 
 held ; having treated the process valid to collect it, he can 
 not treat it as invalid, and refuse to pay it to the plaintiff.' 
 Nor can he apply it to satisfy a debt due him in his private 
 capacity.' Where the officer asserts a right to retain the 
 money in opposition to the plaintiff's claim, no demand is 
 necessary.' But if the officer retain the money without any 
 valid excuse after the return day, he will be liable to pay in- 
 terest from the return day until the money is actually paid 
 to the party entitled to it.' 
 
 § 268. To WHOM THE PROCEEDS ARE TO BE PAID. Pay- 
 ment is to be made to the party in whose favor the execu- 
 tion issues, of his attorney. The sheriff need not go out of his 
 county to find him. If instructions are given to the officer to 
 forward the proceeds realized by mail, he must follow the 
 instructions, for if the money should be lost, or there be 
 serious delays in its receipt, the officer w;ll be liable. But 
 where no instructions have been given in regard to the pay- 
 ment of the money, and neither the party nor his attorney call 
 for the money, after the return of the execution, with the 
 
 Dunn V. Vannerson, 8 Miss. 579. Garrow, 6 Cow. 465. Lillie v. Hoyt, 
 
 Atkinson v. Cooper, 2 Humph. 361. 5 Hill, 395. Crane v. Dygert, I 
 
 Langley v. Warner, 3 N. Y. 327. Wend. 534. Brewster v. Van Ness, 
 
 Chenault v. Walker, 22 Ala. 275. 18 Johns. 193. People v. Dunning, i 
 
 Paige V. Willett, 38 N. Y. 28. Hutch- Wend. 161. 
 
 :man's Appeal, 27 Penn. 209. ' Jeffries v. Shepard, 3 B. & A. 696. 
 
 ' Rogers v, Sumner, 16 Pick. 387. Church v. Clark, I Root, 303. 
 
 Wakefield v. Lithgow, 3 Mass. 249. ' Moody v. Mahurin, 4 N. H. 296. 
 
 Wilder v. Bailey, Id. 289. Graydon v. * Graydon v. Stone, i Edm. Sel. 
 
 Stone, I Edm. Sel. Cas. 221. Newland Cas. 221. James v. Gurley, 48 N. Y. 
 
 V. Pellett, 8 B. & C. 722. Walker v. 163. 
 
 McKnight, 15 B. Monr. 467. Long- ' Prewett v. Marsh, I Stew. & P. 17. 
 
 ■dill V. Jones, I Stark, 346. Nelms v. ' Sims v. Anderson, i Hill (S. C.) 
 
 Williams, 18 Ala. 605. Tiffany v. 394. 
 
 Johnson, 27 Miss. 227. Green v. ' Crane v. Dygert, 4 Wend. 675. 
 
 XoWell, 3 Me. 373. Armstrong v. Slingerland v. Swart, 13 Johns. 255. 
 
446 ON EXECUTIONS. [Chap. XVI. 
 
 proper indorsements thereon, the party must then call for 
 the money.' Where the money is stolen from the sheriff, or 
 he deposits it in a bank, and the bank fails, this will not re- 
 lieve the officer from his liability for not paying it over.' 
 But where the money is stayed in the sheriffs hands by 
 legal process, or the party does not call for it when collected, 
 the party is not entitled to any more than the amount 
 and interest up to the time of payment to the officer.' 
 
 § 269. Who entitled to proceeds. The execution or 
 judgment-creditors are entitled to it in preference to other 
 claimants. The debt or lien must subsist prior to the sale.' 
 Courts can not order money in an officer's hands to be paid to 
 another creditor than the one at whose instance a rule against 
 the officer is granted ;' nor can the proceeds be distributed 
 without the assent of all the creditors before it is paid into 
 court.' Whenever the term creditors is used herein, only those 
 parties who have proved the bona fides of their debts by ob- 
 taining Judgment, are intended. The law, not the will of the 
 debtor regulates the priority of creditor's liens in the distribu- 
 tion of proceeds.' In some states the landlord's claim for rent 
 is entitled to priority of payment in distribution of proceeds.' 
 As between the officer and the execution-creditor, the general 
 rule is that the first writ delivered to the officer will be entitled 
 to priority.' Where several demands are joined in one action, 
 some of which are secured, and some not, and the execution is 
 only partly satisfied, the proceeds will be applied to payment 
 
 ' De La Garza v. Booth, 28 Tex. ' Caskey v. McMuUin, 3 3. C. 106. 
 
 479. Commonwealth v. Barnett, 7 J. « Kauffman's Appeal, 70 Penn. 
 
 J. Marsh. 162. Canterbury v. Com- 261. 
 
 monwealth, i Dana, 417. Paige v. ' Thomas's Appeal, 6g Penn. 120. 
 
 Willett, 38 N. Y. 28. 8 Wickey ,. Eyster, 58 Penn. 50. 
 
 ' Phillips V. Lamar, 27 Geo. 328. Yates v. Rutledge, 5 Hurl. & N. 249. 
 
 Gilmore v. Moore, 30 Id. 628. Rowland v. Goldsmith, 2 Grant, 378. 
 
 ' Brewster v. Van Ness, 18 Johns. Wellner's Appeal, 63 Penn. 302. 
 133- Crane v. Dygert, 4 Wend. 675. » Smallcomb v. Cross, I Ld. Raym> 
 
 Shepard v. Hoit, 7 Hill, 198. Gray y. 251. Kempland v. Macaulay. Peake^ 
 
 Griswold, 7 How. P. 44. Acker v. N. P. C. 296. McMahon v. Hall, 36. 
 
 Ledyard, 8 N. Y. 62. Tex. 59. Hutchman's Appeal, 27 
 
 * Dentler's Appeal, 23 Penn. 505. Penn. 209. 
 
Chap. XVI.] " PROCEEDS OF SALE. 447 
 
 of the claims not secured.' Where the execution issues for 
 the purchase-money, the vendor takes his money first without 
 regard to the judgment of others." The judgment-creditors 
 of the vendee in possession, under part payment of the 
 purchase-money, who has received no deed, are entitled 
 to the proceeds in preference to the vendor.' An' attach- 
 ing creditor, whose lien accrues before the rendition of 
 judgment against the same debtor, is entitled to priority in 
 the distribution.* Whether machinery in a building is 
 realty or personalty, is immaterial, the creditor who levies 
 on it and sells it, is entitled to the proceeds of the sale.' 
 In those states where the homestead exemption is limited 
 to a certain amount, as not to exceed five hundred or a thou- 
 sand dollars, if the debtor's homestead is worth more than 
 the amount allowed as exempt under such homestead laws, 
 the property can be sold, provided the debtor has no other 
 property subject to execution, and of the proceeds of such 
 sale the officer must first pay over to such debtor the 
 amount in cash allowed by law as the value of the homestead.' 
 § 270. Duty of officer with respect to money real- 
 ized FROM sales. Where an officer returns an execution as 
 satisfied, he is bound by his return, and although he has taken 
 a note for the purchase-money, he is liable just the same as 
 though he had sold for cash, and the proceeds are to be distri- 
 buted accordingly.' After a sale of real estate has been made 
 by a sheriff on execution, or order of sale, and the sale con- 
 firmed by the court, the sheriff can not be allowed to show 
 
 ' Ante, § 130, p. 172. Williams v. Thomas, 25 Geo. 233. Fogg v. Fogg, 
 
 Reed, 3 Mason, 405. 40 N. H. 282. Pittsfield Bank v. 
 
 ' Zeigler's Appeal, 6g Penn. 471. Hawks, 4 Allen, 347. Bennett v. 
 
 ' Wilkerson v. Burr, 10 Geo. 117. Child, 10 Wis. 362. Maxey v. Loyall, 
 
 * Straley's Appeal, 43 Penn. 8g. 38 Geo. 531. 
 
 Dentler's Appeal, 23 Id. 503. ' Serzinger v. Steinberg, 12 Penn. 
 
 ' Hutchman's Appeal, 27 Penn. 209. 379. Eastman v. Bennett, 16 Wis. 
 
 • Walsh V. Horine, 36 111. 238. 232. Holt v. Robinson, 21 Ala. 106. 
 Morgan v. Stearns, 41 Vt. 398. Mc- Tiffany v. Johnson, 27 Miss. 227. 
 Donald v. Crandall, 43 111. 231. Field v. Smith, 5 Dowl. P. C. 735 
 Hume V. Gossett, Id. 231. Dealing v. Sutton v. Allison, 2 Jones L. 339. 
 
448 ON EXECUTIONS. [Chap. XVI. 
 
 that he has not received the purchase-money on the sale. 
 It is hi,5 duty to receive it when the sale is made. He then 
 holds it until the sale is confirmed by the court, and then 
 without waiting till a deed for the premises shall be exe- 
 cuted, he pays it over to the person or persons entitled 
 thereto.' So, where a sale is made after an execution is 
 returned nulla bona, and withdrawn by consent of the plain- 
 tiff's attorney, and the return is erased while it is irregular, 
 the officer is bound to account for the proceeds of the sale. ' 
 If he is notified that the execution is fraudulent, he should 
 retain the money in his hands.' If he seizes property, and 
 sells it under one of several executions, but has not paid 
 over the proceeds of the sale, he may apply the proceeds of 
 the sale in satisfaction of the oldest execution in his hands.* 
 He can not pay the proceeds to a nominal plaintiff, after a 
 notice indorsed on the writ, for whose use the action is 
 brought ; ' but he may, at his peril, apply the proceeds raised 
 upon final process, to any writ in his hands.' If, by mistake, he 
 applies the proceeds in satisfaction of a junior execution, he 
 may claim the amount paid, and when returned, the junior 
 execution-creditor has his judgment unsatisfied.' If the 
 officer holds the money until several creditors have their 
 rights decided, he does not hold it as the officer of the law, 
 but as trustee of the creditors, and if their claims are de- 
 cided, the money paid over ; but if an appeal is taken, of which 
 notice is given to the officer before payment, and the appeal 
 is sustained, the officer and the creditor are liable for the 
 amount, and must refund.' Where an execution does not 
 reach his hands until after a sale by him on other executions 
 against the same defendant, he can not apply any of the 
 proceeds to such execution unless there is enough realized 
 
 ' Ferguson v. Tutt, 8 Kans. 370. ' Zantzinger v. Old, 2 Dall. 265. 
 
 ' James v. Gurley, 48 N. Y. 163. ' Washington v. Saunders, 2 Dev. 
 
 ' WarmoU v. Young, 5 B. & C. 660. 343. Yarborough v. State Bank, 2 
 
 ' Pdck V. Tiffany, 2 N. Y.- 541. Dev. 23. 
 
 Marsh v. Lawrence, 4 Cow. 461. ' Stokes v. Cane, 6 Rich. 513. 
 
 Paine v. Drewe, 4 East, 528. Lam- • Gay v. Edwards, 30 Miss. 
 
 bert V. Paulding, 18 Johns. 311. 218. 
 
Chap. XVI,] PROCEEDS OF JjALE. 449 
 
 from the sale to satisfy the others in his hands." The amount 
 realized must be credited to the defendant, whether obtained 
 at public or private sale." Where the debtor acquires prop- 
 erty after levy and before the sale, the proceeds thereof 
 may be applied by the officer in satisfaction of the execu- 
 tion," the officer should, in all cases, for his own prptection, 
 after making a sale and paying the proceeds thereof to the 
 plaintiff, take his receipt therefor." 
 
 §271. When the senior or oldest writ is entitled 
 TO proceeds. Where there are several writs, some of which 
 ■are issued on judgments that are liens, and others on judg- 
 ments that are not liens, the lien judgments are first paid 
 off, in the order of their priority.'* Among several writs, the 
 judgment-creditor whose execution iirst reaches the sheriff's 
 hand, is entitled to priority, where the judgments are of 
 the same character, anc^ though the executions reach him 
 ■on the same day.' This principle is closely adhered to by 
 all courts, and in a case where the property has been re- 
 moved by a debtor to another county, and while in such 
 county was levied on under another writ, and sold, while 
 the purchaser got a good title, the proceeds were ordered 
 applied in satisfaction of the first execution ;' and so 
 when several creditors cause execution to issue on their 
 
 ' Allen V. Flummer, 63 N. C. 307. Arbery v. Noland, 2 J. J. M. 426. 
 
 2 Young V.Stone, 4 W.&S. 45. Shafner v. Gilmore, 3 W. & S. 438. 
 
 ' Wilson's Appeal, 13 Penn. 426. Green v. Johnson, 2 Hawks, 309. 
 
 * Browning v. Hanford, 5 Denio, Dunn v. Nichols, 63 N. C. 107. Trap- 
 586. nail V. Jordan, 7 Ark. 435. Ricks v. 
 
 ° Hutchinson v. Johnson, i T. R. 729. Blount, 4 Dev. 128. Lynch v Hanra- 
 
 Statev. Salyers, 17 Ind. 432. M'Mahon han, 9 Rich. L. i86. Schuylkill Co.'s 
 
 V. Thompson, 2 Id. 114. Ashworth v. Appeal, 30 Penn. 358. Ulrich v. 
 
 Uxbridge, z Dowl. N. S. 377. Steele Dreyer, 2 Watts, 303. Irwin v. Sloan, 
 
 V. Hannah, 8 Blackf. 326. Newton v. 2 Dev. 349. Huger v. Dawson, 3 
 
 Nunally, 4 Geo. 356. Jennings v. Den- Rich. 328. Jones v. Atherton, 7 
 
 nis, 14 Miss. 379. Thompson v. Taunt. 56. Sawle v. Painter, I D. & 
 
 McCord, 27 Geo. 273. Bagley v. R. 307. Furman v. Christy, 3 Rich. i. 
 
 Reeves, 20 Ala. 427. Lawson v. Jor- Million v. Commonwealth, I B. Monr. 
 
 dan, 19 Ark. 297. Lemmond v. Short, 310. 
 3 Strobh. 313. ' Lambert v. Paulding, 18 Johns. 
 
 • Rogers v. Edmunds, 6 N. H. 70. 311. 
 
 29 
 
450 ON "EXECUTIONS. [Chap. XV I. 
 
 judgments against the same defendant, and the debtor's 
 property is sold under one of such executions, it matters- 
 not which one of them, the proceeds of the sale must be 
 applied to the oldest execution, whether the property was 
 sold under it or not.' So where a party is the owner of 
 two judgments against the same party, and the executions 
 are issued, and a sale made of the debtor's property, if he 
 purchase under the junior writ, he is bound to give the 
 credit to the senior execution." 
 
 An execution can not be settled or discharged by the 
 officer without actual payment of the amount, directed to 
 be collected thereon, unless it is executed in the due course 
 of law. A payment in the usual currency of the commu- 
 nity is good, and will sustain an entry of satisfaction, unless 
 the execution creditor is shown to have notified the officer 
 not to receive such currency ;° or in such currency as he has 
 authorized the officer to- accept.' And if the officer returns 
 it satisfied, upon receiving the defendant's note, instead of 
 the money, it is no satisfaction of the execution.' While, if 
 the plaintiff directs the sheriff to take the note or other 
 property, or he ratifies the officer's action, it will be 
 a good discharge.' Where the money is tendered to 
 the sheriff upon any execution in his hands, it is his 
 duty to receive it, and forbear to levy and sell ; and 
 if he does levy and sell after a valid tender of the full 
 amount of debt and costs, he is a trespasser.' There can be 
 but one satisfaction.' Money in court, on a rule for its dis- 
 
 ' Parkerson v. Sessions, 40 Geo. 171. Atkins v. Mooney, Phill. (N. C.) J.. 
 
 State ■/. Ferrell, 63 N. C. 640. Gar- 31. 
 
 ner's Admr. v. Culler's Admr. 28 Tex. * McKay v. Smitherman, 64 N. C. 47. 
 
 175. Peck V. Tiffany, 2 N. Y. 451. ' Bank of Orange Co. v. Waterman, 
 
 Rollins V. Thompson, 21 Miss. 522. i Cow. 46. Mumford v. Armstrong, 
 
 AUemong v. Allison, I Hawks. 325. 4 Id. 553. Sherman v. Boyce, 15 
 
 Shafner v. Gilmore, 3 W. & S. 381. Johns. 443. 
 
 Girard Bank v. Phil., &c. Co., 2 Miles, ' Baldwin v. Merrill, 8 Humph. 132. 
 
 447. * Bright V. Ross, 19 Miss. 289. Ringold 
 
 ' Brown v. Hamlin, 23 Miss. 392. v. Edwards, 7 Ark. 86. 
 
 Newton v. Nunally, 4 Geo. 356. ' Jackson v. Law, 5. Cow. 248. 
 
 'Boyd V. Sales, 39 Geo. 72. ' Poor v. Deavey.l Ired. 391. Lock- 
 
Chap. XVI.] PROCEEDS OF SALE. 451 
 
 tribution, must be applied, as far as it goes, to the oldest 
 valid lien on the property which produced the money.' The 
 law determines the right to the proceeds.' In Georgia, an 
 execution for taxes is entitled to priority over other writs.' 
 In Mississippi, where several judgments are rendered on the 
 ■same day, and in the same court, in the order of their ren- 
 dition,, the judgment first rendered is entitled to priority in 
 the distribution of the. proceeds of a sale under all the judg- 
 ments.* So where a levy is made on a junior writ, and 
 before a sale another execution comes to the officer's hands, 
 with a prior lien, the last execution received is entitled to 
 the prior satisfaction.' So an alias relates back to the origi- 
 nal, and takes precedence over a junior writ.' But where 
 executions are' issued from different courts, as one from a 
 state and one from a national court, the execution which is 
 first levied is entitled to the priority in the application of 
 the proceeds.' 
 
 § 272. When junior creditors are entitled to the 
 PROCEEDS. As a general rule, where judgments are liens on 
 land, a sale made on any other execution than that issued on 
 the oldest judgment, is made subject to such judgment liens ; 
 and, therefore, a sale made on an execution issued on such 
 junior judgment is entitled to the proceeds of such sale.' In 
 cases where an execution issued creates priority, a junior 
 creditor is entitled to the proceeds of a sale under his writ, 
 in preference to other creditors who have not issued or 
 made levies.' So where an officer sells land on an execution 
 purporting to be satisfied, and has at the time in his office 
 
 hart V. McElroy, 4 Ala. 572. Planters' ' Allen v. Plummer, 63 N. C. 307. 
 
 Bankv. Spencer, 11 Miss. 271. Stam- ' Schaller v. Wickersham, 7 Coldw. 
 
 per V. Hodson, 8 Mod. 303. 376. Ante, Chapter IX. 
 
 ' Thompson v. McCordel, 27 Geo. ' Hanauer v. Casey, 26 Ark. 362. 
 
 273. Grand Gulf Bank v. Henderson, Colmers v. Ford, 14 Miss. Igo. Com. 
 
 6 Miss. 292. Bank v. Conover, 7 Id. 530. Com. 
 
 ' Winegardner v. Hafer, 15 Penn. Bank v. Helderbrum, Id. 536. Goode 
 
 144. V. Mayson, Id. 543. Andrews v. 
 
 » State v.Pemberton, Dud. (Geo.) 15. Wilkes, Id. 554. Bibb. v. Jones, 8 Id. 
 
 * Reed v. Haviland, 38 Miss. 323., 397. 
 
 • AUemong v, Allison, I Hawks. 325. ' Perkins v. Mayfield, 5 Port. i8a. 
 
452 ON EXECUTIONS. [Chap. XVI. 
 
 a subsisting execution, such sale is not void, but the plain- 
 tiffin the subsisting execution is entitled to the proceeds of 
 the sale.' In Florida, if the officer has two executions in 
 his hands, and he executes the junior writ first, he must pay 
 the proceeds to such junior creditor, and the creditor legally 
 entitled to the proceeds is compelled to bring an action 
 against the officer for false return in not levying under his 
 writ." Where there are two writs, and the officer is ordered 
 to release his levy and make restitution on the first writ to 
 the debtor, he should notify the court of the second execu- 
 tion, or the creditor in whose favor it is : if he makes restitu- 
 tion without notifying the court or creditor, he makes him- 
 self liable.' Where a surety has a senior lien on property 
 of the debtor and the debtor is insolvent, a junior execution 
 has the right to have the proceeds applied on his writ, if the 
 judgment is rendered for a debt for which such senior cred- 
 itor is surety.* 
 
 § 273. Application of proceeds where judgment 
 BECOMES dormant AS TO ITS LIEN. The laws of each state 
 provide for what length of time a judgment shall be a prior 
 lien on real estate, so as to become entitled to a prior satisfac- 
 tion out of the proceeds of a sale. In some states the issue of 
 an execution within a certain time preserves this priority ; 
 in others a specified time is fixed wherein its priority is re- 
 tained. In cases of this kind, as long as the judgment ranks 
 as a lien, an execution issued thereon is entitled to the pro- 
 ceeds of a sale ; but in case of several judgments and exe- 
 cutions issued thereon after the prior lien of the oldest 
 judgment is gone, it is postponed to subsequent judgments 
 whose priority has not been lost, and the proceeds of a 
 
 Mobile, &c. Co. v Grotter, 36 Miss. ' Gist v. Mcjunkin, i McMuU. 342. 
 416. Dilley v. Dickens, 2 Hawks. 341. ' Love v. Williams, 4 Fla. 126. 
 Yarborough v. Bank, 2 Dev. 23. Stamp ' Saunders v. Bridges, 3 B. & A. 95. 
 V. Irvine, 2 Hawks. 232. McClellan v. * Worrall's Appeal, 41 Penn: 524. 
 SlinglupfF, 7 W. & S. 134. Palmer v. Collin's Appeal, 35 Id. 83. Moss's 
 Clark, 2 Dev. 354. Darson v. Shep- Appeal, Id. 162. Rowland v. Gold- 
 herd, 4 Id. 797. Carey v. Gregg, 3 smith, 2 Grant Cas. 378. In re Con- 
 Stew. 433. McBrown V. Rives, i Id. 72. ner, 12 Rich. L. 349. 
 
Chap. XVI.] PROCEEDS OF SALE. 453 
 
 sale under several judgments will be distributed to the 
 junior creditors ; if their claims are satisfied, then to the 
 older judgment-creditors.' 
 
 § 274. When proceeds will be equally distributed 
 AMONG creditors. Where property is simultaneously levied 
 on under several executions, and the property is not sufficient 
 in value to discharge all the executions thus levied, the liens 
 being equal, irrespective of the amounts of the several claims, 
 the proceeds must be equally applied and distributed to the 
 several debts or judgments, unless a surplus remains after a 
 payment of one or more of the claims ; and if there is a 
 surplus, that must be applied equally to the balance of the 
 unpaid judgments." But not in Missouri and Mississippi." 
 
 § 275. Assignee's right to proceeds. Where a judg- 
 ment is assigned after its rendition, or the execution after 
 it is delivered to the officer to be executed, the assignee of 
 such judgment or execution is entitled to the same rights 
 as the original plaintiff in the distribution of the proceeds 
 of the sale, and to the moneys collected on the execution.* 
 
 § 276. Right of surety to proceeds. A surety may 
 pay the judgment, and take an assignment of it, and will be 
 subrogated to the rights of the creditor, and be entitled to 
 
 ■ Roe V. Stuart, 5 Cow. 294. Cro- bell v. Rutger, i Cow. 215. Jones v. 
 
 sier V. Acer, 7 Paige, 137. Little v. Edmunds, 3 Muiph. 43. Bizzell v. 
 
 Harvey, 9 Wend. 157. Tufts v. Tufts, Hardaway, 42 Ala. 471. Rutledge, 
 
 18 Id. 621. Petit V. Shepard, 5 Paige, Admr. v. Townsend, 38 Ala. 706. 
 
 493. Graff V. Kepp, i Edw. Ch. 619. Wilcox v. May, 19 Ohio, 408. Doe v. 
 
 Davis V. Ehrman, 20 Penn. 258. Creed, 5 Bing. 327. Hagan v. Lucas, 
 
 Beirne v. Mower, 21 Miss. 427. Ru- 10 Pet. 400. Mathews v. Warne, 6 
 
 pert v. Dantzler, 20 Id. 697. Bridwell Halst. 297. Lawson v. Jordan, 19 
 
 v. Cain, I Coldw. 302. Dickenson v. Ark. 297. Butcher v. Dew, 39 111. 40. 
 
 Collins, I Swan, 516. Trapnall v. Warner v. Community, 16 Id. 114. 
 Richardson, 13 Ark. 543. Shepard v. " Friar v. Ray, 5 Mo. 510. Reed v. 
 
 Barteul, 3 Tex. 26. Bagley v. Ward, Haviland, 38 Miss. 323. 
 37 Cal. 121. Isaac v. Swift, 10 Id. 81. * Price v. Bradford, 5 Geo. 364. 
 
 ' Johnson v. Sedberry, 65 N. C. I People v. Muzzy, I Denio, 239. In 
 
 Janney v. Stephen, 2 P. & H. II. re Raymond, Id. 272. Sumner v. 
 
 McAfoose's Appeal, 32 Penn. 276. Palmer, 10 Rich. L. 38. Gerrish v. 
 
 Bridenbecker v. Lowell, 32 Barb. 9. Clough, 36 N. H. 519. McKenna v 
 
 In re Stagg, I N. & M. 405. Camp- Secrest, 4 Strobh. Eq. 160. 
 
454 ON EXECUTIONS. [Cuap. XVI. 
 
 the proceeds of a sale in preference to a subsequent judgment- 
 creditor.' But where a judgment is confessed by a debtor in 
 favor of his sureties, to indemnify them to the amount of their 
 liability, if a sale is made and the property bid in by such 
 sureties, the surplus above the specified amount for which 
 they are liable belongs to junior judgment-creditors." 
 
 § 277. Proceeds, how applied, in cases where in- 
 demnity IS furnished to the officer to levy and 
 SELL. In cases where a claim to the property is made 
 by a stranger to the action, or the officer is in doubt as 
 to its ownership, he may demand a bond of indemnity 
 from the creditor before executing process. Where in such 
 cases, there are two or more writs, the creditor who gives 
 the bond is entitled to the proceeds.^ Where all of the cred- 
 itors furnish indemnity, it goes to the prior writ." In Penn- 
 sylvania, it is held that though the junior creditor furnishes it, 
 the proceeds must be applied to the prior writ, where the offi- 
 cer returns a sale on all of the writs in his hands.' If a creditor 
 who is afraid to indemnify is to receive the benefits of another 
 creditor's efforts to secure his debt, or the proceeds of a sale are 
 to be applied on an execution on which no levy is made, when 
 the parties have the same opportunity to realize the fruits 
 of their judgment, and one fails to do, is a doctrine strong-- 
 ly repugnant of all principles of right and justice. Of what 
 benefit would vigilance be in pursumg the fruits of a judgment, 
 if one who lays by and lets another creditor levy and sell prop- 
 erty, is entitled to the proceeds ? If a senior creditor refuses 
 to indemnify the officer before the execution of final process, 
 it is the duty of the officer to return the writ unsatisfied. If he 
 holds the writ until return day, and in the meantime a junior 
 
 ' McClung V. Beirne, 10 Leigh. * Schuylkill Co.' s Appeal, 30 Penn. 
 
 394. Hartman's Appeal, 7 Penn. 358. 
 
 78. Colgrove v. Cox, 22 Ind. ' Giraid Bank v. Phil., &c. Co., 2 
 
 143. Miles, 447. In this case all of the writs 
 
 - Pringle v. Sizer, 2 S. C. 59. Charles were returned executed, and the court 
 
 V. Cohen, Id. 122. could not go behind the sheriff's re- 
 
 ' Townsend v. Henry, 26 Miss, turn, and thus made the application of 
 
 203. the proceeds to the oldest execution. 
 
Chap. XVI.] PROCEEDS OF SALE. 455 
 
 ■creditor gives the officer the necessary bond, and directs 
 him to levy, such creditor is entitled in law and equity to 
 the proceeds of his levy. In cases where all of the credit- 
 ors give the bond, the action of one creditor may be the 
 principal inducement to the others to give bond, and in 
 such cases the application of'the doctrine of qui prior, &c., 
 works no injury. There might be cases where the doctrine 
 laid down in Pennsylvania would seemingly apply: as, for 
 instance, where the senior creditor is unable to furnish the 
 bond, and a junior one, better situated, may have no diffi- 
 culty in complying with the officer's demand. In such 
 •cases the rule in Mississippi would be a harsh one. 
 
 § 278. What claims are entitled to pi^ior distribu- 
 tion OF proceeds. The courts, in order to protect their own 
 officers, as a general rule, will allow or direct that the pro- 
 ceeds, or such part of the proceeds as may be necessary, be 
 applied in payment of all court costs and the fees of the 
 officers.' In Pennsylvania, the claims of miners, mechanics, 
 and laborers, where the claims are not over fifty dollars, 
 Tiave precedence in the distribution of the proceeds," and all 
 mechanics' liens before a debtor can claim any of the pro- 
 ceeds under the exemption law.' B.etween mechanics' liens 
 and a mortgage, the proceeds are so apportioned as to give 
 the mechanic's lien the benefit of the increased value 
 caused by the improvements.* If the execution is on a 
 judgment for the purchase-money, it takes precedence over 
 a mechanic's lien of a subsequent date to the purchase by the 
 mechanics' lien debtor.' Where, in decrees of foreclosure, 
 it is so provided, the taxes due by the person whose proper- 
 ty is sold should be first satisfied out of the proceeds ; ° where 
 there is such an order, and the officer deducts the amount 
 -of such tax lien, that does not authorize him to pay such 
 
 ' McNiel V. Bean, 32 Vt. 429. Shel- Dingledine v. Hartsman, 53 Id. 280. 
 
 liy's Appeal, 38 Penn. 210. Howell v. Selby, 54 Id. 151. 
 
 ' Vastine's Appeal, 38 Peiin. 164. ' O'Connor v. Warner, 4. W. & S. 
 
 • Lauck's .\ppeal, 24 Penn. 426. S23. Stone v. Neff, 50 Penn. 258. 
 
 -• Crosby v. N. W. Co., 49 111. 481. • Tuck v. Calvert, 33 Md. 209. 
 
466 ON EXECUTIONS. [Chap. XVI 
 
 lien.' The proceeds can not be applied in payment of the 
 claim of a prior purchaser at a tax sale, if such a purchaser 
 is not a party to the action, without the consent of the 
 plaintiff.' On a sale of mortgaged premises upon a judg- 
 ment for the interest due upon the mortgage debt, which is 
 a debt payable infuturo, it effects a virtual foreclosure of the 
 mortgage, extinguishes the equity' of redemption in the 
 mortgagor, and transfers the legal estate still in him, and. 
 divests.the lien of the mortgage. The money raised by such 
 sale is brought into court subject to that lien, and the mort- 
 gagee is entitled to it to the extent of the mortgage debt 
 and interest, notwithstanding his judgment, in preference tO' 
 creditors whose liens intervene between the mortgage and. 
 the judgment for interest thereon.' Where, however, the 
 lands levied upon are delivered to the party at an annual 
 rental, it does not satisfy a prior lien, and such lien holder 
 is not entitled to proceeds.* In Louisiana, where the pur- 
 chaser obtains a clear title, and land and the improvements- 
 thereon are separately appraised, the costs and taxes- 
 are to be paid proportionately out of the proceeds from the 
 sale of each.' 
 
 § 279. Of the distribution of the surplus proceeds- 
 after SATISFYING THE LIEN OR JUDGMENT TO WHICH THEY 
 ARE SPECIALLY APPLICABLE. In cases where, upon sale of 
 property, a larger amount is realized than is required to pa3r 
 or satisfy the claim upon which it was sold, questions arise 
 as to the disposition of the surplus remaining after the claim 
 is paid, and who is entitled thereto. The surplus remaining, 
 after a sale of land on foreclosure of a mortgage stands in 
 place of the land, in respect to those having liens or vested! 
 rights therein.' So that those who having liens upon 
 
 ' Cord V. Southwell, 15 Wis. 2il. ^ Mathews v. Duryee, 45 Barb. 6g_ 
 
 ' Ke':cham v. Fitch, 13 Ohio S. Mills v. Van Voorhies, 20 N. Y. 412. 
 
 201. Mathews v. Duryee, 4 Keyes, 525^ 
 
 » West, &c. V. Chester, 11 Penn. Tarbell v. Tarbell, I Johns. Ch. 44. 
 
 a82. Winter v. Garrard, 7 Geo. 183. Denton v. Nanny, 18 Barb. 618. 
 
 * Bank V. Patterson, 9 Penn. 311. Vartie v. Underwood, Id. 561. Mills 
 
 • Jameson v. Barrelli, 20 La. 452. v. Van Voorhies, 23 Id. 125. 
 
Chap. XVI.] PROCEEDS OF SALE. 457 
 
 the land sold have the same liens upon the surplus moneys 
 which they had upon the lands previous to such sale,' and 
 such surplus is subject to the order of the court, which will 
 direct how it shall be applied.' The sale does not affect 
 the lien of a junior execution upon such surplus.' It will be 
 applied by the court to such junior executions against the 
 same defendant,* except in cases where the property sold is 
 the homestead, that being exempt, the surplus proceeds, aftef 
 satisfying the lien thereon, are exempt from judgments 
 which are not liens thereon, so long as the owner expects to 
 use the surplus in purchasing another homestead, or in re- 
 deeming the homestead from such sale." The officer making 
 the sale can not set up any claim to the surplus by reason 
 of a debt due him by the defendant.' A purchaser of the 
 property from the debtor, before the sale, is entitled to it, after 
 satisfying the judgments rendered before the sale,' the exe- 
 cution-plaintiffs are in preference to a stranger, who has an 
 order from the mortgagor for the surplus, after satisfying the 
 mortgage debt,' where it is sold on a lien prior to a mort- 
 gage-Hen upon the same property ; if the officer has notice of 
 the incumbrance, he has no right to pay the surplus to the 
 mortgagor.' The proceeds of the sale of one who died in- 
 testate, after satisfaction of the liens entered in the lifetime 
 of the intestate, must be paid to the administrator." In 
 some of the states it is held that an excess of the proceeds of 
 property sold on execution, remaining in the officer's hands, 
 
 ' Averill v. Loucks, 6 Barb. 470. v. McBride, 28 Id. 386. Marshall v. 
 
 ' Van Ness v. Yeomans, 1 Wend. Ruddick, Id. 487. 
 
 87. 'Fitch's Appeal, 10 Penn. 461, 
 
 • Stebbins v. Walker, 2 Green, 90. Harwell v. Worsham, 2 Humph. 524. 
 
 * Ball V. Ryles, 3 Caines, 84. Peo- ' Bittings' Appeal, 17 Penn. 211. 
 pie V.' Ulster Co., 18 Wend. 628. Siter, James & Co.'s Appeal, 27 Id. 
 Wheeler V. Smith, II Barb. 345. Lit- 178. 
 
 tlefield V. Kimball, 17 Me. 313. ' Harbison v. Harrell, ig Ala. 753. 
 
 'Mitchell V. Milhoan, 11 Kans. ' Bartlett v. Gale, 4 Paige, 503. 
 
 628. Keyes v. Rines, 37 Vt. 260. '" Morrison's Case, 9 W. & S. n6. 
 
 Pearson v. Minturn, 18 Iowa, 36. Robinson v. Robinson, 3 Harring, 
 
 Sargent v. Chubbuck, 19 Id. 37. Robb 291. 
 
458 ON EXECUTIONS. [Chap. XVI. 
 
 is not in the custody of the law ; but the officer is bound to 
 pay it over to the execution debtor.' 
 § 280. When a court will, and will not, direct the 
 
 APPLICATION AND DISTRIBUTION OF PROCEEDS. In many 
 cases where there is a sale of property on one of several execu- 
 tions, the proceeds are claimed by various creditors, and it is 
 in such cases proper to bring matters before the court, out of 
 which the execution issued, upon which such proceeds were 
 realized, in order to ascertain the rights of the various claim- 
 ants to such fund. The court, out of which such process 
 issued, has exclusive jurisdiction to determine the applica- 
 tion of such proceeds." Where there are several executions 
 against the same debtor, and the money is claimed by one 
 creditor to the exclusion of the others, such creditor may, 
 for the purpose of ascertaining his claim, obtain a rule 
 against the officer, and cause the other creditors to be 
 brought in by notice, and then upon the answer of the offi- 
 cer the court may proceed to adjudicate upon the rights of 
 the parties, and in so doing will be bound by the officer's 
 return." The officer need not necessarily be a party to such 
 adjudication. Where the parties state an agreed case,* 
 the allowance of one claim is a rejection of the others," the 
 order of distribution may be made without all the writs 
 being returned, where the fund is in court." It is the duty 
 of the court to determine the ownership of the proceeds at 
 the instigation of either party, where there are conflicting 
 claims.' In Pennsylvania, where there are disputed facts, 
 the creditors are entitled to an isSue for the trial thereof by 
 jury, if their demand is in time.' Only such creditors as 
 have reduced their claims to judgnient will be heard in such 
 
 ' Dickinson v. Palmer, 2 Rich. Eq. ' Willis v. Shepard, 2 Fla. 397. 
 
 407. Barker v. Grelier, i8 La. Ann. ' Atkins's Appeal, 58 Penn. 86. 
 
 671. ' Pennybacker's Appeal, 57 Penn. 
 
 ' Heinselt v Smith, 34 N. J. L. 114. Wiley v. Bridgman, i Head, 68. 
 
 2ii. Dewey v. White, 65 N. C. 225. Turner v. Tindall, i Cranch, 117. 
 
 ' Palmer V. Clarke, 2 Dev. 354. Robinson's Appeal, ff2 Penn. 217. 
 
 * Turner v. Lawrence, II Ala. » Benson's Appeal, 48 Penn. 159. 
 
 426. Reigart's Appeal, 7 W. & S. 267. 
 
Chap. XVI.] PROCEEDS OF SALE. • 459 
 
 proceeding." In such distribution the court will apply it to 
 the payment of the claim entitled to it, whether the creditor 
 be a party to the motion or not." The rights of the claim- 
 ants must be determined as they were at the time of the 
 sale, the liens being divested by the sale, the lien-holders 
 are turned over to the proceeds, and no lien or right thereto 
 can be afterwards acquired.' In directing the distribution 
 of the proceeds, the court should not, on mere motion of 
 the officer, order its application, to the discharge of the 
 liens of laborers, who are neither parties to the suit, nor 
 judgment creditors, and then to the satisfaction of the 
 judgment. The debtor is entitled to be heard against such 
 claims.* Where it is claimed by different parties, as the 
 owners of the judgment, it then becomes a mere questioaof 
 ownership, and not priority." In the adjudication, the title 
 to the land may be so far examined as to ascertain what in- 
 terest was sold, and what judgments were liens upon it, so 
 as to be discharged by the sale, but not to investigate al- 
 leged fraud in the title." An order of court omitting to 
 specify the amounts to be paid to several creditors is not in- 
 sufficient where the creditors themselves agree to ^. pro rata 
 distribution.' Where the decision of the court is appealed 
 from, and an adjudication is had in a court of last resort, 
 such adjudication on the respective rights of the execution- 
 creditors will be conclusive of their rights to proceeds on 
 subsequent executions issued on the same judgments.' A 
 mere dispute between creditors for the possession of a fund 
 does not constitute such case as may be submitted to a judge, 
 without a suit between the adverse claimants, in North Caro- 
 lina.' Where the officer is in doubt, he may apply to the 
 court for advice as to the proper application of the funds 
 
 ' Smith V. Reiff, 20 Penu. 364. * Leoijard v. Johnson, 43 Ala. 596. 
 
 Edwards v. Toomer, 22 Miss. 75. ' Souder's Appeal, 57 Penn. 498. 
 
 Helfrich's Appeal, 15 Penn. 382. • Beekman's Appeal, 38 Penn. 385. 
 
 ' Herzer v. Fisher, 21 Miss. 672. ' Linford v. Linford, 4 Dutch. 1 13. 
 
 Van Dike's Appeal, 17 Penn. 271. ' Martin v. Lofland, ]8 Miss. 317. 
 
 • Douglas's Appeal, 48 Penn. 223. • Bates v. Lilly, 65 N. C. 232. 
 
460 • ON EXECUTIONS. [Chap. XVI. 
 
 which he holds, as the officer of the court, under legal pro- 
 cess — this being a mere custom, independent of the statute 
 or common law.' 
 
 The manner in which courts, generally, act upon such 
 questions is upon motion." The order protects the officer,' 
 and does not affect the rights of strangers not parties to the 
 suit.^ One claiming adversely to a mortgage, or disclaiming 
 title to the property sold, can not claim any of the proceeds 
 of the sale.' In Arkansas, a court has no authority to 
 order a distribution of the proceeds of an execution sale.' 
 
 The English rule is that a court will not interfere or give 
 directions how to dispose of the surplus proceeds, where 
 there is a dispute as to the amount of their shares ;' and 
 where a sale is made by consent of the debtor and creditor,^ 
 without observing the formalities of the law, it not being an 
 execution sale, the officer is the agent of the parties, and 
 the court has no power to treat the amount so raised as the 
 proceeds of the debtor's property, and distribute it among 
 the creditors ;' nor to order money paid over which is 
 alleged to have been collected, unless it is made to appear 
 that it is actually collected;' after a return, of satisfied and 
 paid to plaintiff, no motion will lie for money levied on ex- 
 ecutions." On a voluntary payment by the defendant to an 
 officer holding several executions in his hands, the procee'ds 
 must be applied as the debtor directs. When the payment 
 is made, the law does not apply as it would if the money 
 were made at an execution sale." The surplus proceeds 
 of land is to be disposed of as real estate, and it is not to be 
 considered as converted into personality." 
 
 ' Bates V. Lilly, 65 N. C. 232. ' Hartley v. Stead, 8 Mo. 466. Rex 
 
 ' Chittenden v. Rogers, 42 111. 95. v. Carlisle, I D. and R. 484. 
 
 » Noble V. Cope, 50 Penn. 171. « Davies v. Collier, 13 Geo. 485. 
 
 * In re Howard, 9 Wall, if 5. » McLeod v. Ward, 9 Fla. 18. 
 
 'Housekeeper's Appeal, 49 Penn. '" Morford v. Thomas, Ky. Dec. 251. 
 
 141. Barada V. Inhabitants, 16 Mo. " Adamsv.Crumacher.iMcMull.sog. 
 
 123- Rudy V. Commonwealth, 35 Penn. 166. 
 
 « Trapnall v. Jordan, 7 Ark. 430. Miss.&c. Co. v. Hardness,32 Miss. 203. 
 
 Ransom v. Young, 4 Ired. 133. " Jones v. Jones, i Bland, 443. 
 
Chap. XVI.] PROCEEDS OF SALE. 461 
 
 § 281. A party may withdraw an execution from the par- 
 ticipation in the proceeds ; if he does, and the rights of a 
 bona fide purchaser are affected, he can not subsequently 
 enforce it.' Where there is a sale of the property of an indi- 
 vidual party upon an execution against him and his late co- 
 partner, the creditor levying upon the individual property 
 is entitled to the proceeds in preference to a creditor of the 
 late firm.' In a decree ascertaining the amount and priori- 
 ties of liens, where statute penalties, consequent upon ap- 
 peal, are allowed, such penalty, so allowed on a prior lien, is 
 not entitled to a preference on distribution over the amounts 
 •due on subsequent liens.' A party who has received pay- 
 ment of his execution bona fide, from the officer, out of 
 funds belonging to another creditor, is not liable to refund 
 either to the sheriff or the creditor.' A party purchasing 
 land, and having the deed made to another in trust for him- 
 self, the proceeds of the sale of such land are to be applied 
 to the payment of such purchaser's debts, not the trustee's.* 
 Where an execution is enjoined, and the officer has other 
 writs in his hands, the proceeds are to be applied to the other 
 writs.' 
 
 § 282. Satisfaction op executions, what is. The offi- 
 cer's return to an execution of the levy and sale is conclusive 
 of satisfaction to the extent of the amount realized, even 
 though the purchaser's title should prove defective.^ Pay- 
 ment is the only act by which the defendant can discharge 
 ■or avoid an execution. It is the duty of the officer having 
 an execution, to receive payment of the amount, if a 
 
 ' Byers v. Bancroft, 22 Geo. 34. Penn. 373. Atkinson v. Farmer, 2 
 
 ' Roberts v. Roberts, 8 Rich. 15. Murph. 391. Freeman v. Caldwell, 10 
 
 ' McBride v. Longworth, 14 Ohio S. Vi^atts, 9. Alexander v. Polk, 39 Miss. 
 
 349' 737- Rutledge, Admr. v. Townsend, 
 
 ■* Diechman v. Northampton Bank, 38 Ala. 706. Moore v. Barclay, 18 Id. 
 
 I Rawle, 54. 672. Covington Co. v. Walker, 2 Du- 
 
 » Reed's Appeal, 13 Penn. 476. vail, 150. England v. Clark, 5 111, 
 
 • Newlin v. Murray, 63 N. C. 486. Bostick v. Wimon, l Sneed, 524, 
 
 •566. Thomasson v. Kennedy, 3 Rich. Eq 
 
 ' McDevitt and Hay's Appeal, 70 440. 
 
462 ON EXECUTIONS. [Chap; XVI, 
 
 tender of the amount due be made to him," or payment to 
 the officer after a levy has been made, or to the plantiff of 
 record ;' bidding in the property by the plaintiff,' even 
 though he has to pay for it again upon his bond for indem- 
 nity. Where two executions issue against different defend- 
 ants, a levy and sale on one extinguishes the other.' The pur- 
 chase-money paid by an ordinary vendee at an execution 
 sale, operates as a pro tanto satisfaction of the judgment, 
 and hence he can not be substituted to the rights of the 
 judgment plaintiff, if the sale should prove to have been 
 void.' So a judgment by one of two co-defendants therein, 
 operates as payment and discharge against both, whether 
 or not applied and indorsed thereon ;° or where a surety 
 pays any portion of his principal's debt, by way of a trade 
 with the officer ;' payment by the officer ;° a return of satis- 
 fied, though all the costs have not been paid." 
 
 When money is collected on an execution, the law pre- 
 sumes that the plaintiff has got it ; he might have got it, and 
 it is for him to show why he did not get it.'° Where a return 
 shows that the defendant has settled with plaintiff's attor- 
 ney, and paid costs and fees to the officer, while it may not 
 be a satisfaction, no further execution can issue without the 
 
 ' Murrell v. Roberts, II Ired. 424. Ala. 572. McNutt v. Wilcox, I 
 
 Phillips V. Dana, 4 111. 551. Slusher Free. Ch. 116. 
 
 V. Washington Co., 27 Pemn. 205. ' Richmond v. Marston, 15 Ind. 134. 
 
 Gregory v. Cotterell, I E. & B. ' Adams v. Drake, II Cush. 504. 
 
 360. Stevens v. Morse, 7 Me. 36. Stanley v. Miller, 16 N. H. 22. 
 
 O'Neal V. Lusk, I Baily, 220. Worth- Adams v. Keeler, 30 Geo. 86. 
 
 ington V. Hosmer, i Root, 192. ' Banta v. Snapp, 2 Duvall, g8. 
 
 ' Atkinson v. Cooper, 2 Humph. ° Armont v. Cloud, 2 Geo. 53. 
 
 301. Shelly V. Lash, 14 Minn. Boren v. McGehee, 6 Port. 432. Har- 
 
 498. well V. Worsham, 2 Humph. 524. Car- 
 
 ' Covington, v. Walker, 2 Duvall, penter v. Stillvvell, 11 N. Y. 61. 
 
 150. Smith V. Godbold, 4 Strobh. Eq. Houston v. Crutchfield, 22 Ala. 76. 
 
 l86. Jones v. Barr, 5 Id. 147. Perry Crutchfield v. Haynes, 14 Ala. 49. 
 
 V. Williams, Dud. (S. C.) 44. Weaver ' Poor v. Deaver, i Ired. 391. 
 
 V. Twogood, I Barb. 238. '° Gilmore v. Johnson, 29 Geo. 67. 
 
 'Planters' Bank v. Spencer, ii Peck v. Barnes, 12 Vt. 72. Johnson v. 
 
 Miss. 271. Lockhart v. McElroy, 4 Tuttle, I Stockt. 365. 
 
Chap. XVI. ' SATISFACTION. 463 
 
 order of court." Where an execution is directed to be 
 levied for a sum less than the judgment and costs, another 
 can not be issued for the balance.'' 
 
 As the forfeiture of a forthcoming bond is a satisfaction 
 of the original judgment, the lien of that judgment is also 
 extinguished, and a new lien commences with the forfeiture 
 of the bond, on new parties." So a note given for a former 
 judgment, which, collected prior to a sale on the judgment 
 for which it is given,* after a partial satisfaction, the re- 
 ceipt can not be canceled so as to revive the execution to 
 the original amount, to the prejudice of other creditors.' 
 In some states, any one indebted to the execution debtor 
 may pay any execution against the property of his creditor, 
 in the hands of an officer, or apply the amount of his in- 
 debtedness thereon, and the officer's receipt will be a suffi- 
 cient receipt of the amount paid ; but, after the notice 
 of the assignment of his indebtedness, it can not be made." 
 A commitment to prison, or taking the body of the debtor, 
 is a satisfaction, . even if discharged by the creditor.' A 
 party may prove an execution satisfied, though not returned,' 
 and it may be shown that the word satisfied was indorsed 
 by mistake.' In satisfying an execution against property, 
 the officer can act in no other capacity than the agent of 
 both parties, under direction and authority of law." 
 
 § 283. What is Nb satisfaction. A payment to an officer 
 in anything but legal currency is no .satisfaction ; an officer 
 has no authority to receive anything else ;" or by payment 
 
 • Hadden v. Walker, 5 Ala. 86. ■■ Tanner v. Hague, 7 T. R. 420. 
 ' People V. Onondaga, 3 Wend. Blackburn v. Stupart, 2 East. 243. 
 
 331. Horn V. Horn, Amb. 7g. Ex pa,rte 
 
 ' Witherspoon v. Spring, 4 Miss. 60. Knowell, 13 Ves. Jr. 193. Magniac v 
 
 Douglas V. Twombly, 25 Ark. 124. Thompson, 13 How. 281. Boswell v. 
 
 McComb V. Ellett, 16 Id. 613. Chil- Zigler, 19 Ohio, 362. Dodge v. Doane, 
 
 ton V. Cox, 15 Miss. 791. Joyce v. 3 Cush. 460. McCullis v. Sisson, I 
 
 Farquahar, i A. K. Marsh. 20. R. 1. 143- 
 
 • Craft V. Merrill, 14 N. Y. 456. ' Johnson v. Ramsay, 16 S. & R. 115. 
 » Caldwell v. Fifield, 4 Zabr. 150. ' Moore v. Edwards, I Bail. 23. 
 
 • Countryman V. Boyer, 3 Sow. P. "> WickliiT v.' Robinson, 18 111. 145 
 ^86. " Taylor v. Newkirk, 6 Jones L. 
 
464 ON EXECUTIONS. [Chap. XVI. 
 
 to the officer after the return day of the writ has passed. 
 It is not binding on the creditor, nor will it exonerate the 
 creditor. The officer has then no authority to collect the 
 debt ; his act is unofficial, and the plaintiff may affirm it, 
 and recover the money of him in his private capacity, or he 
 may disaffirm it ;' or payment to the officer, during the pen- 
 dency of the action, before execution can issue, as he has 
 no authority to collect it f a levy on property not sold for 
 a sufficient sum to satisfy the debt ;" a levy upon a debtor's 
 interest in property, if he has no interest therein.* In those 
 states where land is set off or delivered to the creditor, a 
 levy is a satisfaction ;' but where the statutes require an 
 officer to levy and sell the debtor's property in order to 
 satisfy the judgment, the mere fact of the officer levying on 
 real estate is no satisfaction ; a creditor acquires no property 
 in the land, either absolute or conditional, by the mere act 
 of levying.' All that a creditor can obtain from a levy is 
 the proceeds realized at the sale, and which are paid and 
 
 32i. Dibble v. Briggs, 28 111. 48. ' Coming v. Burdick, 4 McLean, 135. 
 
 Randolph v. Ringgold, 10 Ark. 279. * Parlin v. Churchill, 30 Me. 187. 
 
 Haynes v. Wheat, 9 Ala. 239. Prewett Niolin v. Hammer, Z2 Ala. 578. 
 
 V. Standifer, 16 Miss. 493. Ankettell " Blumfield's Case, 5 Co. 87. Hir- 
 
 V. Torrey, 15 Id. 467. Heald v. Ben- nesly v. Hunn, 5 Han. 236. Pratt v. 
 
 nett, I Doug. 513. Wood v. Robinson, Jones, 22 Vt. 341. Thomas v. Piatt, 
 
 II Miss. 271. Catlett v. Alexander, 5 43 N. H. 629. 
 
 Id. 548. Tutt V. Fulgham, 6 Id. 521. ' Gold v. Johnson, 59 111. 62. Jones 
 
 Morton v. Walker, 8 Id. 554. Wil- v. Grant, 34 Miss. 592. Wylie v. 
 
 liams V. Charles, 7 Ala. 202. . Standford, 22 Geo. 385. Troutman's 
 
 ' Chapman v. Harrison, 4 Rand. Appeal, 23 Penn. 491. Beale v. Bol- 
 
 336. Craig V, Graves, 4 J. J. Marsh, ton, 24 Miss. 630. Hammond v 
 
 603. Barton v. Lockhart, 2 Stew. & P. Myrick, 14 Geo. 77. Fry v. Branch 
 
 log. Stephana v. Boswell, 2 J. J. Bank, 16 Ala. 282. Ladd v. Blunt, 4 
 
 Marsh. 29. Bobo v. Thompson, 3 Mass. 402. Shepard v. Rowe, 14 
 
 Stew. & P. 109. Porter V. Ingraham, Wend. 260. White v. Graves, 15 Tex. 
 
 10 Mass. 88. Hardesty v. Wilson, 2 183.. Chandler v. Furbish, 8 Me. 408. 
 
 Gill, 481. McFarland v. Wilson, 10 Gro v. Huntington Bank, i Penn, 425. 
 
 Miss. 269. Wood V. Robinson, II Smith v. Walker, 18 Miss. 584. 
 
 Id. 278. Edwards v. Ingraham, 31 Gregory v. Stark, 4 111. 611. Spafford 
 
 Id. 232. Dubberly v. Black, 38 Ala. v. Beach, 2 Doug. 150. Hogshead v. 
 
 193. Carruth, 5 Yerg. 227. Carroll v. 
 
 ' Irwin V. McKee, 25 Geo. 626. Fields, 6 Id. 305. 
 
Chap. XVI.] "SATISFACTION. 465 
 
 applied in satisfaction of the debt ; and no more of the 
 judgment is satisfied than is paid over by the officer. 
 So an apparent satisfaction by reason of a mistaken or 
 fruitless levy ;' or it is proved that no satisfaction was 
 made ;" property restored to the debtor after levy, because 
 it does not sell for two-thirds of its appraised value ;' a for- 
 feited delivery bond taken without authority of law ;* a 
 void promise to give time;' a levy and sale of exempt 
 property, for which the debtor recovers judgment against 
 the parties for the taking ;' a writ returned levied, but not 
 sold for want of time ;' payment to an officer who has 
 <:aused his name to be inserted in it ;' selling the property 
 to an insolvent purchaser unable to pay his bid, in case of 
 resale, is not satisfied to the amount of the first bid, unless 
 the property brings the same price ;° a levy which is stayed, 
 and the debtor sells the property, and the creditor levies on 
 the land ; by selling the property the debtor consents to the 
 stay, and thus leaves the execution in force against him." 
 neglecting to demand and sell property delivered to a re- 
 ceiptor ;'' where a debtor conveys land to the officer, who 
 agrees to satisfy the execution, unless the creditor con- 
 sents;'" payment to the clerk of a court, upon an execution 
 issued to the officer as against the creditor ;" as against a 
 purchaser at a sale, there is no presumption of satisfaction of 
 of the execution on which the sale was made;" a memoran-' 
 
 dum on an execution — " execution paid by , prove by 
 
 him " without proof that it was written by the creditor 
 
 ' Cowles V. Bacon, 21 Conn. 451. ' Stephenson v. Browning, 48 111. 
 
 Tate V. Anderson, g Mass. 92, Gooch 78. 
 
 V. Atkins, 14 Id. 379. Tarkington v. ' Piper v. Ellwood, 4 Denio, 165. 
 
 Guyther, 13 Ired. 100. Ladd v. Blunt, ' David v. Harris, 9 Penn. 507. 
 
 4 Mass. 402. Townsend v. Smith, 20 ' Brier v. Woodbury, I Pick. 362. 
 
 Tex. 465. Weddes v. Edsall, 2 ' Lewis v. Richardson, 6 Rich. 382. 
 
 McLean, 366. '" Cams v. Pickett, 2 Sneed, 655. 
 
 ' Hutchinson v. Greenbush, 30 Me. " Brown v. Cook, 9 Johns. 361. 
 
 450. " Hood V. Moore, 9 111. 99. 
 
 ' Caudle v. Dare, 7 Ark. 46. " Bank, &c. v. Ault, 31 Geo. 357. 
 
 * Lester's Case, 4 Humph. 383. '* Webb v. Camp, 26 Geo. 354. 
 30 
 
466 ON EXECUTIONS. [Chap. XVI. 
 
 or some one acting for him ;' negligently injuring of personal 
 property to the extent of the damage ;' the forfeiture of a 
 claim bond ;' an officer holding an execution is not bound 
 to receive the amount of the execution and interest, unless 
 his fees are also tendered ;* an indorsement on the execu- 
 tion by the creditor's attorney, acknowledging the receipts 
 of notes, which are to be in full satisfaction of the execu- 
 tion.' 
 
 § 284. Entering and vacating satisfaction. Satisfaction 
 can not be entered on motion without notice to the plaintiff;* 
 but it may be made on motion if it is attempted to enforce 
 a satisfied execution.' Where a statute provides for vacating 
 satisfaction " where the property is afterwards recovered by 
 a third person from the plaintiff, the plaintiff may have sat- 
 isfaction set aside ; " the failure of the title acquired by the 
 plaintiff, should be first judicially ascertained in a suit 
 brought for that purpose.' 
 
 In the New England states, after a return of an execution, 
 satisfied in full, by levy on the debtor's land, and it appears 
 afterwards that if there was a recorded mortgage on it, un- 
 known to the creditor, for more than the value of the land, 
 the creditor may have the levy and satisfaction set aside and 
 an alias issue for the full amount of his debt.' A return of 
 satisfied may be quashed, and an alias writ issue when the 
 execution has not been satisfied." 
 
 ' Bartlett v. Sawyer, 46 Me. 317. ' Soule v. Buck, 55 Me. 30. 
 
 " People V. Hopson, i Den. 574. '» Moore v. Edwards, i 'Bailey, 23. 
 
 ' Patten v. Hammer, 33 Ala. 307, Newman v. Hazelrigg, i Bush, 412. 
 
 * Joslyn V. Tracy, 19 Vt. 569. Cowles v. Bacon, 21 Conn. 451. Tate 
 
 ' Hart V. Waterhouse, i Mass. 433. v. Anderson, 9 Mass. 92. Goveh v. 
 
 Langdon v. Potter, 13 Id. 319. Atkins, 14 Id. 379. Tarkington v. 
 
 « Haley ■>. Williams, 16 Miss. 487. Guyther, 13 Ired. 100. Ladd v. 
 
 ' Marsh v. Haywood, 6 Humph. Blunt, 4 Mass. 402. Townsend v. 
 
 210. Smith, 20 Tex. 465. Weddes v. Edsal, 
 
 ' Swaggerty v. Smith, i Heisk. 403. 4 McLean, 366. 
 
Chap. XVII.l oF THE DEED. i'M 
 
 CHAPTER XVII. 
 
 OF THE DEED. 
 
 Duty of Officer to make Deed. — When to be made. — Power to 
 ■make, how derived. — Title vests when Deed is made. — 
 Who to Execute the Deed. — Who, after expiration of Officer's 
 term. — Death of Officer. — To whom a Deed is to be mad-e.-^ 
 Of the Recitals in the Deed. — Acknowledgment of the 
 Deed. — Validity of the Deed. — When the Deed is Irregular 
 and Void. — Void for Uncertainty in Description. — Variance. 
 — Construction of the Deed. — Capacity in which Officer acts 
 in Executing the Deed. — Effect of the Deed. — As to the 
 time which the Deed relates. — Deeds as Evidence. — Impeach- 
 ing Deed. 
 
 § 285. After the completion of proceedings under the ex- 
 ecution, the confirmation of the sale, where that is required, 
 or the expiration of the statutory period of time allowed 
 for redemption, where a statute gives a debtor, or his judg- 
 ment-creditors, the right to redeem his property from a sale 
 made under final process against him, and in cases where 
 there is neither redemption nor confirmation, in those states 
 in which land is sold, instead of extending it to the creditor, 
 it is the duty of the ofificer making the sale (except as herein 
 set forth), to execute a deed conveying the property sold 
 by him to the purchaser thereof. An officer making sale of 
 lands, under the process of a court, acts under a naked 
 statutory power, not coupled with an interest. If the per- 
 formance of all the statutory pre-requisites to the exercise 
 of such power, do not appear in the deed or aliunde, the 
 sale will be vitiated ; ' or, if no power exists, no title passes 
 ' Todd V. Pillhower, 4 Zab. 796. 
 
468 ON EXECUTIONS. [Chap. XVII. 
 
 to the purchaser. A purchaser under a power is bound to 
 see that it exists. He- who buys under a power buys at his 
 peril, and acquires no title unless he can show a valid sub- 
 sisting power.' The mere fact of paying a valuable considera- 
 tion does not help the purchaser any more than it would if 
 he purchases from a stranger to the title. The officer who 
 sells under a judgment and execution exercises a statutory 
 power, by virtue of which alone his deed can operate upon 
 the title to the land sold. When the judgment is paid, the 
 authority to sell under it is gone." The title of the debtor, 
 in those states where the redemption laws are in force, is 
 not divested until after the expiration of the time to redeem, 
 and a deed is necessary to divest his title.' 
 
 § 286. When a deed is to be made. Where there is 
 no provision made for redemption, the deed should be 
 made as soon as possible after the sale and return ; but 
 where the redemption is given by statute, no valid deed 
 can be made until after that time has expired,* or until after 
 a confirmation of the sale by the court, where that is 
 necessary.' In some states, when the sale is made,' but the 
 
 ' Jackson v. Morse, 18 Johns. 441. Anthony v. Wessel, 9 Ind. 103. War- 
 Wood V. Colvin, 2 Hill, 566. Cam- field v. Woodward, 4 Greene (Iowa) 
 eron v. Irwin, 5 Hill, 272. Deyo v. 386. Crutzinger v. Catron, 10 Humph. 
 Van Valkenburgh, Id. 246. Swan v. 24. Spoor v. Phillips, 27 Ala. 193. 
 Saddlemire, 8 Wend. 675. Delaplaine Childress v. Allen, 17 La. Ann. 37. 
 V. Hitchcock, 7 Johns. 135. Dufour v. Camfrac, 11 Mart. 607. 
 
 ' Carpenter V. Stillwell, n N. Y. Dumford v. Dequys, 8 Id. 222. Leger 
 
 61. V. Doyle, 11 Rich. L. 109. Holmes v. 
 
 ' Thorn v. Ingram, 25 Ark. 52. McMaster, I Rich. Ch. 340. Lichey 
 Sowards v. Pritchett, 37 111. 517. v. Gardner, 3 W. & S. 314. William- 
 Campbell V. Johnson, 4 Dana, 186. son v. Berry, 8 How. 547. Moore v. 
 Freeman v. Hunt, 3 Id. 622. Haw- Schultze, 53 Penn. 102. Bussey v. 
 ley V. Cramer, 4 Cow. 717. Hadden Hardin, 2 B. Monr. 407. 
 V. Johnson, 7 Ind. 394. Chandler v. * Bernal v. Glein, 33 Cal. 668. 
 Sawtelle, 22 Vt. 318. Schermerhorn v. Gross v. Fowler, 21 Id. 392. Graham 
 Merrill, 1 Barb. 511. Smith v. Col- v. Wing, 10 Mich. 486. 
 vin, 17 Barb. 157. Curtis y. Millard, ' McBain v. McBain, 15 Ohio S. 
 14 Iowa, 128. Cummings v. Coe, 10 387. 
 
 Cal. 529. Page v. Rogers, 31 Id. • Burk v. Bank of Tenn., 3 Head. 
 
 293. Sullivan v. Davis, 4 Id. 291. 3S6. 
 
Chap. XVII.] OF THE DEED. 469 
 
 officer is not bound to make it until the purchase-money is 
 all paid." Upon a motion to set aside an execution, a 
 court will examine the previous proceedings to ascertain 
 whether there has been any irregularity in the orders of the 
 court, or in the proceedings of the clerk ; but on motion for 
 an order on the officer to make the deed, the court will 
 look no further than to ascertain whether the officer in 
 n:aking the sale, has pursued the law.* 
 
 § 287. Who to execute the deed, The officer making 
 the sale, or his deputy acting in his official capacity, should 
 make and execute the deed to the purchaser at the sale.' 
 But a deputy can not execute it in his own name. The law 
 does not recognize any such officer.' 
 
 § 288. Who may make a deed after the death, remov- 
 al, OR EXPIRATION OF TERM OF OFFICER. In cases where an 
 officer's term has expired, or for other reasons, such as 
 death, or his removal from office, the various statutory pro- 
 visions regulating execution sales provide that in cases of 
 this kind (in many states), the successor of the officer 
 making the sale may execute the deed. This power to exe- 
 cute a deed, being derived solely from the statute, is gener- 
 ally restricted to those cases where the officer goes out of 
 office without having executed deeds for lands sold while in 
 office ; ° and the record should show the existence of the 
 facts which justify the action of the court in ordering 
 he deed made.' In order that the successor may make 
 ne deed, the certificate of sale should show on its face 
 everything necessary for the court to make the order ; 
 and the deed made under the order of the court should 
 
 ' Davis V. Pryor, 14 Miss. 114. Monr. 293. Glasgow v. Smith, I 
 
 ' Backingham v. G. A. Society, 2 Overt. 144. Keller v. Blanchard, 21 
 
 Ohio, 360. Whiting v. Lawson, 6 La. 38. Haines v. Lindsay, 4 Ohio, 
 
 Ark. 425. 88. 
 
 • Porter v. Mariner, 50 Mo. 364. * Lewis v. Thompson, 3 Cal. 266. 
 
 Jackson V. Bush, 10 Johns. 223. Jack- Anderson v. Brown, 9 Ohio, 151. 
 
 son V. Randall, 18 Id. 7. Tillotson v. Ogden v. Walters, 12 Kans. 282. 
 
 Cheatham, 2 Id. 63. Carr v. Hunt, ' Wortham v. Cherry, 3 Head. 468. 
 
 14 Iowa, 206. Young v. Smith, 10 B. • Thornton v. Boyd, 25 Miss. 598 
 
470 ON EXECUTIONS. [Chap. XVII. 
 
 contain every requisite of a sheriff's deed ; it should, there- 
 fore, recite the execution upon which the sale was made, 
 and there must be proof aliunde of the death or incapacity 
 of the officer, the payment of the money, the legality of the 
 sale, and that no deed was given by the officer who made 
 the sale.' The death of the officer after making a sale 
 and receiving the purchase-money, before inaking the 
 deed, is an accident which a court of equity will relieve 
 against, where are there no statutory provisions, by decreeing 
 a divestiture of title out of the execution defendant." In 
 Missouri, the officer may make a deed without an order of 
 court.' In some states the sheriff in office, at the time the 
 certificate is produced, should execute the deed.* But if 
 the officer who makes the sale is alive at the time the deed 
 is due, he executes the deed when required by statute.* A 
 deputy may, after the expiration of the term of office of his 
 principal, and in the absence of such principal from the 
 state, execute a deed for land sold by his principal while 
 in office." 
 
 § 289. To WHOM THE DEED IS TO BE MADE. A deed 
 should be made to the purchaser.' It may be made to any 
 assignee of the bidder or purchaser at the sale; and if so 
 made, it must appear on its face to have been made by the 
 express authority of the purchaser;' and it will be valid, 
 
 ' Den V. Mulford, i N. J. 500, Har- ' People v. Boring, 8 Cal. 406. 
 
 ris V. Irwin, 7 Ired. 432. Anthony v. 'Wessel,9 Id. 103, Lemon 
 
 " Stewart v. Stokes, 33 Ala. 494. v. Craddocks, 6 Litt. 251. 
 
 * Porter v. Mariner, 50 Mo. 364. * Mills v. Tukey, 22 Cal. 373. 
 
 * Conger v. Converse, g Iowa, 554. ' Fowler v. Pearce, 7 Ark. 28. Rice 
 Wortham v. Cherry, 3 Head. 468. v. Smith, 18 N. H. 369. Johnson v. 
 Fretwell y. Morrow, I Geo. 264. Addleman, 35 III. 265. 
 
 Thornton v. Boyd, 25 Miss. 598. 'Morgan v. Hannah, 11 Humph. 
 
 Harris v. Irwin, 7 Ired. 432. Mc- 122. Trotter v. Nelson, I Swan, 7. 
 
 Elmurry V. Ardis, 3 Strobh. 212. Peo- Brooks v. Ratcliffe, II Ired. 321. 
 
 pie V. Boring, 8 Cal. 406, Prescott Bank of Vergennes v. Warren, 7 Hill, 
 
 V. Everts, 4 Wis. 314. Woods v. gi. Carter v. Spencer, g Ired. 14. 
 
 Lane, 2 S. & R. 53. Fowble v. Ray- Voorhees v. Bank, 10 Pet. 478. Ewing 
 
 berg, 4 Ohio, 45. Phillips v. Jame- v. Higby, 7 Ohio, 178. Pearce v. 
 
 son, 14 B. Mour. 571. Pearce, 7 Sim. 738. Campbell v. 
 
Chaj-. XVII.] OF THE DEED. 471 
 
 though the assignment has neither been proved, acknowl- 
 edged, nor filed;' but the officer cannot be compelled to 
 make a deed until such assignment is filed," but after filing, 
 the assignee may enforce its execution and delivery ; ' 
 or in case of the death of the purchaser, to his legal repre- 
 sentatives, heirs, or devisees;* or to a redemption if he has 
 paid the officer.' 
 
 § 290. Of the recitals in the deed. It is not abso- 
 lutely essential to the validity of a deed that the execution 
 and the proceedings thereunder be minutely described 
 therein, where a deed sets out fully certain judgments and cer- 
 tain executions, but fails to connect the executions with the 
 judgments; but the names of the parties and the amounts 
 are identical ; the inference is, that the executions were issued 
 on the judgments, and such omissions do not avoid the 
 ■deed, as they can not mislead any one, nor will mere misre- 
 citals invalidate it, if there is enough in the record to iden- 
 tify, and prove the facts and circumstances under which the 
 deed was made ; it is the policy of the law to uphold sales of 
 this kind.' Recitals are inadmissible to prove the power to 
 
 Baker, 6 Jones L. 255. David v. Mc- " In re Newell, 4 Hill, 589. 
 
 "Vickers, 11 111. 327. McClure v. • Allen v. Sales, 56 Mo. 28. Wack 
 
 Engleheart, 17 Id. 47. McCready v. v. Stevenson, 54 Id. 481. Waddell v. 
 
 ■Brisbane, i N. & M. 104. In re Williams, 50 Id. 216. Perkins v. 
 
 Smith, 4 Nev. 254. Blount v. Davis, Dibble, lO Ohio, 433. Sneed v. Rear- 
 
 12 Dev. jg. Small v. Hogden, i Litt. don, I A. K. Marsh. 217. Natchez v. 
 
 16. Frizzle v. Veatch, I Dana, 211. Minor, 18 Miss. . 246. * H^ndy v. 
 
 Mathews, v. Clifton, 21 Miss. 330. Heard, 15 Ark. 184. Howard v. 
 
 Elleringer v. Moriarty, 10 Iowa, 78. North, 5 Tex. 290. Foulk v. Colburn, 
 
 -Summers v. Palmer, 10 Rich. g8. 48 Mo. 225. Hunter v. Miller, 36 Id. 
 
 ' Bank of Vergennes v. Warren, 7 143. Buchanan v. Tracy, 45 Id. 437. 
 
 Hill, 91. U. S. Bank v. Voorhees, I Union Bank v. McWhorter, 52 Id. 34. 
 
 McLean, 221. Jackson v. Roberts, 7 Wend. 83. 
 
 ■ * People v. Ransom, 4 Den. 145. U. Jackson v. Pratt, 10 Johns. 381. Jack- 
 
 S. Bank v. Voorhees, i McLean, 221. son v. Streeter, 5 Cow. 529. Jackson 
 
 ^ Whipple v.Farrar, 3 Mich. 436. v. Jones, 9 Id. 182. Phillips v. Coffee 
 
 * Davis V. McVickers, ir 111. 327. 17 111. 154. Loomis v. Riley, 24 Id. 
 
 Swink V. Thompson, 31 Mo. 336. 307. Cherry v. Woolard, i Ired. 43 
 
 Summers v. Palmer,' 10 Rich L. 3S. Huggins v. Ketchum, 4 D. & B. 41^. 
 
 WcElmurry v. Ardis, 3 Strobh. 212. Welsh v. Joy, 13 Pick. 477. Wing v. 
 
472 ON EXECUTIONS. [Chap. X.VII, 
 
 sell; but after production of the judgment and execution^ 
 such recitals are entitled to the same effect as the official 
 return on the execution, and are evidence of the officer's 
 acts under the power.' After a lapse of many years, recitals 
 and the entries in the officer's book, are sufficient evidence." 
 The date in a deed prevails over the return on the writ f 
 but where no authority is shown for the recitals of facts,, 
 they are no evidence.' They may be put in issue by a plea 
 for the purpose of impeaching the deed,' and where it re- 
 cites the acts of a third person, as in the transfer of a certi- 
 ficate of sale, it is onXy prima facie , and may be contradicted 
 by parol.' The recitals in a deed can not bind a party 
 whose land has been improperly sold — the recitals are to be 
 regarded only as an inducement to sell.' The recitals are 
 conclusive upon the purchaser, and all claiming under him 
 and against the party whose land is sold.' In Louisiana the 
 statute requires that the judgment on which the execution 
 issues, should be recited in the deed of sale, and the omis- 
 sion of that recital prevents the transfer of the title." 
 
 §291. Of acknowledgment of the deed. There is 
 no uniformity in the adjudications in regard to the acknowl- 
 edgment of the officer's deed. In Pennsylvania the deed is 
 
 Burgess, 13 Me. III. Wilson v. Camp- Swan, 329. Jones v. Putney, 3 Murph.. 
 
 bell, 33 Ala. 259. Carmichael v. Strawn, 562. Ogden v. Walters, 12 Kans. 283.- 
 
 27 Geo. 341. Hines v. Scott, 11 Penn. ' Hihn v. Peck, 30 Cal. 280. 
 
 19. Armstrong v. McCoy, 8 Ohio, = Phillips v. Schiffer, 14 Abb. P. R.. 
 
 128. Humphrey v. Beeson, i Greene, N. S. loi. 
 
 (Iowa) igg. McGuire v. Koons, 7 ' Rogers v. Garwood, i Swan, 142.. 
 
 Monr. 386. Read v. Heasley, g Dana, * Doe v. Roe, 20 Geo. 68g. 
 
 324. Harrison v. Maxwell, 2 N. & ' Hughes v. Watt, 26 Ark. 228. 
 
 Mc. 347. Craig v. Vance, i Overt. ' Stafford v. Williams, 12 Barb. 240^ 
 
 129. Driver v. Spence, I Ala. 450. ' Leland v. Wilson, 34 Tex. 7g. 
 Thomas v. Le Barron, 8 Mete. (Ky.) * Gall v. Lewis, Const. R. 160.. 
 385. Sheldon v. Wright, 5 N. Y. 497. McPherson v. Hussey, 2 Dev. Ch^ 
 James v. Taylor, 7 Tex. 240. Salton- 324. French v. Edwards, 13 Wall. 
 stall v. Riley, 28 Ala. 104. Den v. 506. Durette v. Briggs, 47 Mo. 356^ 
 Dnwnman, I Green (N. J.) 135. Zabriskie v. Mead, 2 Nev. 283. 
 
 Doe V. Rue, 4 Blackf. 263. Stinson 'Dufour v. Camfrac, II Mart. 607.- 
 
 T. Ross, 51 Me. 556. Stow v. Dumford v. Dequeys, 8 Id. 222. Chil- 
 Steel, 45 111. 328. Hughes v. Dice, I dress t. Allen, 17 La. Ann. 37. 
 
Chap. XVII.] OF THE DEED. 473 
 
 required to be executed in open court,' and after such 
 acknowledgment, the purchaser car. not be affected by mere 
 irregularities ; ' and if acknowledged in another court than 
 that out of which the process issues, it is void.' In Missouri 
 it is essential to its validity that it be legally acknowledged. 
 The property is conveyed against the will of the judgment- 
 debtor. The conveyance not being his act, but the act of 
 the law, must be strictly complied with.' The certificate of 
 acknowledgment must be within, and of itself complete, 
 and no extrinsic evidence can be evoked to eke out its reci- 
 tals.' In Arkansas the certificate may be appended to it 
 at any time — it having been acknowledged and recorded ; ' 
 or when its execution is proved ; ' and good between the 
 officer and purchaser, if officially made, though defectively 
 acknowledged.' As a general rule, the same principles are 
 applicable to the acknowledgment of this class of deeds, as 
 are applied to private deeds, and they are governed by the 
 same principles in regard to the parties before whom they may 
 be acknowledged. In Kansas, if not acknowledged, is valid.* 
 § 292. Of the validity of the deed. A deed is not void 
 by reason of any irregularity in the sale, as by an adjourn- 
 ment of the sale, from day to day, at the request of the plain- 
 tiff's attorney; the omission to specify the hour of sale; or 
 by failing to advertise according to few ; or want of a proper 
 advertisement ; " or, if executed by the sheriff, in his official 
 capacity in satisfaction of the debt, at the request of the 
 
 •Murphyv. McCleary, sYeates, 405. 369. Swiggart v. Harber, 5 III 364. 
 
 ' McFee v. Harris, 25 Penn. 103. Phillips v. Coffee, 17 Id. 154. Wimber- 
 
 • DeHaven's Appeal, 38 Penn. 378. ly v. Hunt, 33 Id. 166. Fergus v. 
 
 • Ryan v. Carr, 46 Mo. 483. Woodworth, 44 Id. 374. Hamilton v. 
 
 • McClure v. McClurg, 53 Mo. 173. Quimby, 46 Id. 90. Nixon v. Cobleigh, 
 Samuels v. Shelton, 48 Mo. 444. 52 Id. 387. McConnell v. Gibson,i2 Id. 
 
 • Hutchinson v. Kelly, 10 Ark. 178. X28. Trustees v. Snell, igld. 156. Mc- 
 ' Stephenson V.Thompson, 13 111. Cormick v.Wheeler, 36Id. 114. Ham- 
 
 186. Morehead v. Pearce, 2 Yeates, ilton v.Subbaka, 51 Id.415. Hayden v. 
 
 456. Duncan v. Robeson, Id. 454. - Dunlap, 3 Bibb, 216. Osborn v. Wood- 
 
 ' In re Smith, 4 Nev. 254. son, I Hay, 241. Turner v. McCrea, 1 
 
 • Ogden V. Walters, 12 Kans. 291. N.& M.il. Jones v. Fulgham,2 Murph. 
 "Jackson v.Spink,4 Chi. Leg. News, 364. Griffith v. Bogert, 18 How. 158 
 
474 ON EXECUTIONS. [Chap. XVIL 
 
 defendant ; ' or if made to a purchaser before the expiration 
 of the time for redemption, with the consent of the debtor ; ' 
 or if it fail to recite the judgment, as that fact can be proved 
 aliunde;' or if made after the expiration of his term of 
 office for land sold by him on execution ; ■■ or where it con- 
 veys less land than is sold ; ° or where the description can 
 be identified by parol evidence ; " or where more land is sold 
 than is necessary to satisfy the judgment ; where there is no 
 statute requiring the officer to sell just enough, and no 
 more ; or, by reason of a fraudulently suppressing compe- 
 tition, and thereby purchasing at an undervalue, if there is 
 no collusion between him and the officer ; ' or, if unrecorded, 
 as against the debtor ; ' or if no return is made by the offi- 
 cer, the deed does not depend on the return, nor does a 
 purchaser's title. Where a party purchases at an execution 
 sale, and pays the amount bid by him for the property, it is a 
 matter of little consequence to him whether the return is 
 imperfect or not made at all. If he has a deed, his title is 
 derived from the judgment and execution." 
 
 § 293. Wehn a deed is irregular and void. Where there 
 is a time given for redemption, a deed executed by the sheriff 
 immediately after the sale, without waiting the statutory time 
 is void ;'° when there is no subsisting power in the officer to 
 
 ' Sliamberger v. Kennedy, i Dev., I. Gaines, 10 Vt. 346. Lynn v. Bisk, 9 
 
 ' Evans V. Wilder, 5 Mo. 313. B. Monr. 135. Low v. Adams, 6 Cal. 
 
 " Jordan v. Eradshaw, 17 Ark. 106. 227. Brooks v. Rooney, 11 Geo. 424. 
 
 Bettison v. Budd, Id. 546. Gates v. Francis, 10 Vt. 346. Gibson 
 
 ■* Bearfield v. Stevens, i Harp. Ch. v. Winslow, 38 Penn. 49. Hutchins v. 
 
 52. Allen V. Trimble, 4 Bibb, 21. Carver Co., 16 Minn, 13. Cloud v. 
 
 ' Jennings v. Monks, 4 Mete. (Ky.) Eldorado Co.,' 12 Cal. 128. Hill v. 
 
 103. Kendall, 25 Vt. 528. Draper v. Bryan, 
 
 « Bank of Mo. v. Bates, 17 Mo. 583. 17 Mo. 83. Stewart v. Croes, 10 111. 
 
 Dygert v. Pletts, 25 Wend. 402. 442. Doe v. Heath, 7 Blackf. 154. 
 
 ' Hill V. Whitfield, 3 Jones L. Jackson v. Sternbergh, i Johns. 153. 
 
 120. Mitchell V. Lipe, 8 Yerg. 179. 
 
 8 Smith V. Whiting, 10 Mo. 394. '» Gross v. Fowler, 21 Cal. 392. 
 
 » Wheaton v. Sexton, 4 Wheat. 503. S. & L. Society v. Thompson, 32 Id. 
 
 Wolf V. Heath, 7 Blackf. 154- Farrar 347. Bernal v. Glein, 33 Id. 668. 
 
 V. Hamilton, I Tayl. 10. Gates v. Gorham v. Wing, 10 Mich. 486. 
 
Chap. XVIL] OF THE DEED. 475 
 
 make it ;' a deed by one professing to be a deputy, whose 
 term of office has expired ;' if executed without a seal, where 
 one is required;' nor can the defects be cured in equity 
 courts, equity does not carr)' into effect the incomplete ex- 
 ecutions of statutory powers ;* a deed reciting that the land 
 
 was sold at term of the court of , for the 
 
 year 184 — ;' if made pending a motion to set aside the 
 sale, and if the sale is afterwards set aside, no title passes ; ' 
 if issued twenty years after a sale, after it had passed 
 into the hands of a purchaser without notice ; ' or where it 
 appears on the face of the deed, or is shown aliunde that 
 portions of the premises were sold by virtue of one or 
 more executions, after such executions were satisfied by 
 the sale of other property, the deed to the premises so 
 subsequently sold is void and inoperative.' 
 
 § 294. Deeds void for uncertainty in the description 
 OF THE LANDS SOLD. If the land granted be so inadequately 
 described as t-o render its identity wholly uncertain, the 
 grant is void ;' as of the northwest part of S. E. 1-4 T. 4, R. 
 12 acres, 50;'° or seventy acres of land belonging to de- 
 
 ' Leland v. Wilson, 34 Tex. 79. v. Pond, 10 Conn. 255. Pound v. 
 
 Rogers v. Marshall, 38 How. P. PuUen, 3 Yerg. 338. Hart v. Rector, 
 
 43.* - 7 Mo. 531. Clemens v. Reynolds, 34 
 
 * Cloud v." Eldorado Co., 12 Cal. Id. 579. Hunt v. Gist, 2 H. & J. 498. 
 
 128. Huddleston v. Garrett, 3 Humph. 629. 
 
 ' Morlan v. Branham, 27 Mo. 351. Worthington v. Hyles, 4 Mass. ig5. 
 
 Moreau v. Detchmandry, II Id. 431. Thomas v. Thomas, 6 T. R. 671. 
 
 ' Moreau v. Detchmandry, 18 Mo. Bell v. Dawson, 32 Mo. 79. Mar- 
 
 ?22. shall V. Greenfield. 8 G. & J. 349. 
 
 ' Tanner v. Stine, 18 Mo. 580. "> Head v. James, 13 V\'is. 641. 
 
 ' MctCeown v. Craig, 20 Penn. Ronkendorf v. Taylor, 4 Pet. 349. 
 
 170- Ballance v. Forsythe, 13 How. 18. 
 
 ' Rucker v. Dooler, 49 111. 377. Raymond's Lessee v. Longworth, 14 
 
 ' Durette v. Briggs, 47 Mo. 356. Id. 761. Lessee, &c. y. Long, 2 Ohio, 
 
 ' Boardman v. Reed's Lessee, 6 Pet. 412. Treon v. Emerick, 6 Id. 391. 
 
 328. Evans v. Ashley, 8 Mo. 179. Lafferty v. Byers, 5 Id. 458. Lessee 
 
 Throckmorton v. Moon, 10 Ohio, 42. v. Smith, 15 Id. 134. Winkler v. Hig- 
 
 Jackson v. Rosevelt, 13 Johns. 97. gins, 9 Ohio S. 599. Richardson v, 
 
 Jackson v. Delaney, Id. 557. Jack- State, 5 Blackf. 51. Spelm»a v. 
 
 son V. Ramson, 18 Johns. 107. Wright Curterius, 12 111. 409. 
 
476 ON EXECUTIONS. [Chap. XVII, 
 
 fer.dant, lying on the waters of Stone's river;' "the de- 
 fendant a lots at Nahunta Depot ; " ' where the land con- 
 veyed does not correspond with the order of seizure, either 
 in quantity or boundary ;' a deed .if an unassigned right of 
 dower;* a deed of" the unsold pews of said Roman Catholic 
 church of St. Patrick's, — say ninety, more or less. ' But 
 parol evidence is admissible to identify the land, andsh'^w 
 that in the community where the sale t3oi; ^^:;i»,c, tnaz it 
 was known by the description given.' 
 
 § 295. Of variances in the deed. If an officer sell land 
 under an execution authorizing him to sell, his deed is good,, 
 and passes the title, although in his deed to the purchaser 
 he make an erroneous recital of the power under which he 
 sells, and that he sold under a particular execution must be 
 presumed until the contrary is shown. So if he had the 
 execution in his hands at the time, and sold the lands there- 
 by directed to be sold ;' or if there be a variance between 
 the levy and the deed;' or in the name of the plaintiff;* 
 or clerical errors,;" or because of failure to recite the original 
 levy ;" or a variance in the sum named in the return and the 
 consideration in the deed ;" or if there is enough in the deed 
 to ascertain the execution." But an unexplained variance 
 as to the amount and date of the judgment, avoids the 
 deed ; or if issued after many years without notice to the 
 
 ' Parker v. Swan, I Humph. 80. ' Wilson v. Campbell, 33 Ala. 249. - 
 
 ' Edmundsonv. Hooks, II Ired. 363. Matthews v. Thompson, 3 Ohio 
 
 ' Landreaux v. Foley, 13 La. 114. 272. 
 
 * Shields v. Batt, 5 J. J. Marsh. 13. ' Hughes v. Dice, I Swan, 329. 
 ' McGarry v. Dunn, i La. Ann. 338. " Stow v. Steel, 45 111. 328. 
 
 • McPike V. AUman, 53 Mo. 551. " Foulk v. Colburn, 48 Mo. 225. 
 Hart V. Rector, 7 Id. 531. Bates v. " Carmichael v. Strawn, 27 Geo. 
 Bank, 15 Id. 309. Lisa v. Lindell, 341. 
 
 21 Id. 127. Webster v. Blount, 39 " Sngg^ y Rg^fdon, I A. K. Marsh, 
 
 id. 500. And see ante, § 259. Sales 217. Jackson v. Streeter, 5 Cow. 529. 
 
 void for unesrtainty of descriftion. Jackson v. Jones, 9 Id. 182. Harrison 
 
 ' Jones V. Putney, 3 Murph. 562. v. Maxwell, 2 N. & M. 347. Howard 
 
 Cherry v. Woolard, l Ired. 438. v. North, 5 Tex. 290. Loomis v. Riley 
 
 Huggins V. Ketcham, 4 D. & B. 24 111. 307. Henly v. Branch Bank, 
 
 414. &c., 16 Ala. 552. 
 
Chap. XVII.] OF THE DEED. 477 
 
 parties ; ' or where the description does not correspond with 
 that in the return on the writ ;' nor is a defect in the levy 
 on part of a tract of land cured by a recital in the deed 
 that the levy was on the whole tract.' So a deed to two 
 for land sold to one as a nominal purchaser, is ineffectual 
 to pass title to both.' There should be an entire uniformity 
 in the return, certificate, and deed ; if not, they are invalid.' 
 Whenever it may be necessary to make a deed effectual, it 
 should be amended.' 
 
 § 296. Construction of a deed. A deed being but the 
 mere execution of a power conferred by statute, in which 
 the grantor does not assume to have or convey any estate, 
 title, or interest of his own, the words " give and grant " 
 imply no warranty.' There is no difference between a con- 
 veyance by execution and one by deed, in the rules of con- 
 struction, to be applied to them.' A conveyance of the 
 right, title and interest of the debtor, conveys the land itself.' 
 In regard to the construction of the description of the prem- 
 ises in a deed, the rule is one of the utmost liberality. The 
 intent of the parties, if it can by any possibility be gathered 
 from the language employed, will be effectuated. To this 
 «nd, parts of the description may be rejected, though upon 
 the face of the deed they seem as material as the parts 
 v/hich are left. This only is requisite, that after subjecting 
 the description to every modification which the actual con- 
 dition of the premises may require, there must be left some 
 substantial designation of the thing to be conveyed, so that 
 a court can see, looking at the property in the condition which 
 it was at the time of the deed, that the description can be 
 fitted to it, and was intended by the parties to relate to it. 
 Every part of the description must be read and satisfied 
 
 ' Hannon v. Lamed, 58 111. 167. • Thornton v. Miskimmon, 48 Mo. 
 
 » Whiting V. Hadley, 3 Allen, 357. 219. 
 
 " Langley v. Jones, 33 Mo. 171. ' Dow v. Lewis, 4 Gray, 468. 
 
 * Frizzle v.Veatch, I Dana. 211. • Bartlett v. Judd, 21 N. Y. 200. 
 
 ' Dickerman v. Burgess, 20 111. Pride v. Lunt, 19 Me. 115. 
 
 ■266. " Durell V. New Orleans, 13 La. 335. 
 
478 ON EXECUTIONS. [Chap. XVII. 
 
 wiih reasonable certainty, that no part could be rejected for 
 its falsity.' If there are certain particulars once sufficiently 
 ascertained which designate the thing intended to be granted, 
 the addition of a circumstance, false or mistaken, will not 
 vitiate the grant. But when the description of the estate 
 intended to be conveyed, includes several particulars, all of 
 which are necessary to ascertain the estate to be conveyed, 
 no estate will pass, except as will agree to every part of the 
 description." Where an extent incorporates and adopts the 
 appraisement in the return, the whole must be taken to- 
 gether in construing the description of the premises.' 
 
 § 297. In what capacity the officer acts in exe- 
 cuting A DEED. A ministerial officer, in the execution of 
 final process, is in a qualified sense the agent of the plaintiff in 
 the execution ; he is also the agent of the law, which points 
 out his duties, and defines his power,* and his acts, where there 
 is no improper interference on the part of the creditor, are at 
 the risk of the defendant in the execution, who has it in his 
 power to dispense with the services of the officer, by paying 
 the debt.' The plaintiff in the execution is not responsible 
 to the purchaser for a mistake of the officer, or for any 
 misrepresentations, unless such officer acts under the plain- 
 tiff's directions.' In the sale and conveyance of land, he 
 acts as the defendant's attorney, appointed by law, and is by 
 law empowered to convey to the purchaser, under an exe- 
 cution, all the right, title, interest, and estate of the defend- 
 ant, as fully as the debtor himself could.' It is the deed 
 of the execution-debtor. He has received the considera- 
 tion, which has been applied by the officer to the payment 
 
 ' Mason v. White, II Barb. 173. 'Weidler v. Farmers' Bank, 11 S. 
 
 Loomis V. Jackson. 19 Johns. 449. & R. 134. 
 
 RoUin V. Picket, 2 Hill, 552. Jack- ^ Cooper v. Galbraith, 3 Wash. C. C. 
 
 son V. Marsh, 6 Cow. 281. Peck v. 546. Den v. Winans, 2 Green (N. J.) 
 
 Mallams, 10 N. Y. 532. I. Massey v. Thompson, 2 N. & M. 
 
 ' Jackson V. Clark, 7 Johns. 223. 105. McKnight v. Gordon, 13 Rich> 
 
 • Vogt V. Ticknor, 48 N. H. 242. Eq. 222. Kilgore v. Pedan, i Strobh. 
 
 • Osgood V. Brown, i Free. Ch. 392. Eq. 19. Conway v. Nolte, ix Mo. 
 
 • Baham v. Lanfield, 16 La. 165. 74. Swartzell v. Martin, 16 Iowa, 519. 
 
Chap. XVII.] OF THE DEED. 479 
 
 of his debts, and for this reason he is not allowed to con- 
 trovert the title of the purchaser, nor has he such an interest 
 as to enable him to move to quash a deed made for the 
 property." 
 
 § 298. Effect of the deed. The officer's deed iz prima 
 facie evidence that the grantee holds all the title and interest 
 in the land that was held by the judgment-debtor, at the time 
 of the rendition of the judgment upon the execution issued, 
 and under which the sale was made, or at any time thereafter 
 and of the validity of the judgment itself Where the 
 deed conveys the interest of the debtor on the day of 
 the rendition of judgment, it does not convey the dower 
 right of the debtor's wife before that day." Where an offi- 
 cer, in a deed of property sold on execution, conveys with 
 warranty, he binds himself,* and if he covenants that his 
 proceedings have been according to law, a subsequent 
 neglect to return the execution is a breach of such cove- 
 nant.' A deed is translative of property, and the title and 
 possession under it can not be treated as a nullity by third 
 persons,' while it passes all the title of the debtor at the 
 time of the judgment. The rule that an after-acquired 
 title shall inure to the grantee, does not apply to sales 
 on execution.' Not only the land passes by the deed, if 
 valid, but also such covenants as run with the land ; the pur- 
 chaser obtains the benefits of such covenants.' If the levy 
 is upon the land, the deed conveys the land, notwithstand- 
 
 ' Snavely v. Wagner, 3 Penn. 275. ' Porafiet v. Ricroft, Vent. 26, 
 
 Hartley V. Curry, 3 Strobh. gg. Dun- Wade v. Merriam, 11 Pick. 280. 
 
 lap V. Cook, 18 Penn. 454. Hubbert Brandt v. Foster, 5 Clarke, 287. 
 
 V. McCoUum, 6 Ala. 221. Jamison Sampson v. Somerset, 6 Gray, 120. 
 
 V.Tudor, 3 B. Monr. 355. Hale v. ' Brown v. Kendall, 12 La. 347. 
 
 Miller, 15 Vt. 211. Strickey Y. ' Kenyon v. Quinn, 41 Cal. 325 
 
 Cresswell, 12 Rich. L. 273. ' Carter v. Denman, 3 Zabr. 270, 
 
 ' Union Bank v. Menard, 51 Mo. Laport v. Todd, 3 Vroom. 124. 
 
 548. White V. Davis, 50 Id. 333. McCrady v. Brisbane, i N. & M. 104. 
 
 Shields v. Miller, 9 Kans. 390. Lewis v. Cook, 13 Ired. 196. Mark- 
 
 ' Cowan V. Lindsay, 30 Wis. 586. land v. Crump, I D. & B. g4 Red- 
 
 * Rockwell V. Allen, 3 McLean, 357. wine v. Brown, 10 Geo 320. White 
 
 The Monte Allegro, 9 Wheat. 616. v. Whitney, 3 Mete. 81. 
 
480 ON EXECUTIONS. [Chap. XVII. 
 
 ing an error in the advertisement.' If the action be one of 
 foreclosure, the title conveyed by the sale and the deed is 
 that of the mortgagor, mortgagee, and all the parties to the 
 action ; " but not as against subsisting equities of those 
 not parties to the action.' Nothing can be conveyed, except 
 the title vested in the parties.* The deed will pass no title 
 if made after payment of the execution debt, where the 
 land is redeemable prior to the execution of the deed.' If 
 a lease be made between the time of the sale and execution 
 . of the deed, the deed extinguishes the lease." It passes no 
 more than is described by the officer, whatever be the title 
 of the debtor.' 
 
 § 299. As TO THE TIME TO WHICH A DEED RELATES. A 
 deed being translative of property, it becomes important in 
 many cases to ascertain to what particular time the transfer 
 of title relates to. The title passes by operation of law,' upon 
 payment of the purchase-money and the confirmation of 
 the sale, where that is requisite, by the execution and 
 delivery of the deed.' The deed being evidence of title, 
 the title must vest in the purchaser at some particular 
 time, so as to prevent other rights or liens attaching. The 
 deed, therefore, as far as necessary to protect purchasers, 
 has relation back to such time as will protect him. In this 
 country, the time is not by any means uniform. Where the 
 proceedings are by levy and seizure under an attachment, 
 they relate back to the time of such seizure ;'° and as regards 
 
 ' Ward V. Cohen, 3 S. C. 338. don v. Newton, 3 Ohio S. 494. Hol- 
 
 ' Carter v. Walker, 2 Ohio, 339. loway v. Richardson, 13 111. 171. 
 
 ' Haynes v. Beach, 3 Johns. Ch. ' Lischey v. Gardner, 3 W. & S. 314. 
 
 459. Moore v. ShuUz, 13 Penn. 102. Camp- 
 
 ■* Allen V. Garult, 27 Penn. 43. bell v. Johnson, 4 Dana, 186. Fore- 
 
 ^ Sweeney v. Craddocks, 6 B. Monr. man v. Hunt, 3 Id. 622. Bussey v. 
 
 570. Hardin, 2 B. Monr. 407. Thorn v. 
 
 * Wilson V. Davoe, 5 Bosw. 619. Ingram, 25 Ark. 52. Sowards v. 
 
 ' Sheppard v. Simpson, i Dev. 237. Pritchett, 37 111. 517. Williamson v. 
 
 Carpenter v. Cameron, 7 Watts, 51. Berry, 8 How. 547. 
 
 ' Stump V. Henry, 6 Md. 201. '" Fehley v. Barr, 66 Penn. 196. 
 
 McPherson v. Cunliff, 11 S. & R. 428. Bank of Mo. v. Wells, 12 Miss. 361. 
 
 Grignon v. Astor, 2 How. 338. Shel- Shirk v. Wilson, 13 Ind. 129. Cock- 
 
Chap. XVII.] 
 
 OF THE DEED. 
 
 481 
 
 the rights of other parties, the questions of notice, either 
 actual or constructive, becomes an important element, and 
 be treated of hereafter. In other states, it relates back to 
 the judgment ;' as against third persons, and not from the 
 date of any pretended or statutory levy, cutting off all 
 liens and incumbrances subsequent to its rendition, upon 
 a foreclosure to the date of the mortgage." The time to 
 which the deed has relation, and rights of the purchaser as 
 to title, dates from the sale under the execution." In 
 others, and especially where the statutes allow a specified 
 time for redemption, the title does not vest until the ex- 
 piration of such time, and passes only from the date or 
 execution of the deed. Until such time it is defeasible or 
 conditional, liable to be revested in the debtor upon payment 
 of the necessary amount required bylaw to redeem.* In the 
 New England states, with the exception of Rhode Island, 
 the sheriff's official return of the proceedings under the 
 
 ney v. Milne, l5 Md. 200. Lacky v. 
 Liberty/2'3 Mo. 85. Brackett v. Rid- 
 ion, 54 Me. 426.' ' Blown v. Maine 
 Bank, 11 Mass. 153. Heywood y. Hil- 
 dreth, 9 Id. 393. McMillan v. Parsons, 
 7 Jones L. 163. Shove v. Dow, 13 
 Mass. 529. Reichart v. McClure, 23 
 ill. 516. McClure "v. Engleheart, 17 
 Id. 47. 
 
 ' Smith y. Allen, i Blackf. 22. Hutch- 
 inson V. Horn, I Ind. 363. McCor- 
 mick V. McMurtrie, 4 Watts, 192. 
 Martin v. Martin, 7 Md. 368. Blood 
 V. Light, 38 Cal. 649. Riddle v. 
 Bryan, 5 Ohio, 48. Kirk v. Vonberg, 
 34 111. 440. 
 
 ^ DeHaven v. Landell, 31 Penn. 
 120. McMillan v. Richards, 9 Cal. 365. 
 
 * Wright V. Douglass, 2 N. Y. 373. 
 Richardson v. Thornton, 7 Jones L. 
 458. Thomas v. Crofut, 14 N. Y. 414. 
 Winston v. Affalter, 49 Mo. 263. 
 Strain v. Murphy, Id. 337. Alexander 
 V. Merry, 9 Mo. 514. Hunt v. Koons, 19 
 
 31 
 
 Penn. 277. Cane v. Mackin, 17 Miss 
 387. Wood V. Turner, 7 Humph. 517. 
 Kingman v. Glover, 3 Rich. 27. Fell 
 V. Price, 18 III. 186. Miles v. Wilson, 
 3 Harr. 383. Robinson v. Robinson, 
 Id. 391. Crowley v. Wallace, 12 Mo. 
 143. Presnell +. Rawson^ 8 Ired. 505. 
 Oviatt v; Browii, 14 Ohio, 285. Fos- 
 dick V, Barr, 3 Ohio S. 471. Stewart 
 v. Freeman, 22 Penn. 120. Duvall v. 
 Waters, I Blaiid, 569. Million v. 
 Riley, i Dana, 359. 
 
 * Leger v. Doyle, II Rich. L. tog. 
 Holmes v. McMaster, i Rich. Ch. 340 
 Johnson v. Bantock, 38 111. ill. War- 
 field V. Woodward, 4 Greene (Iowa) 
 380. Carson v. Smart, 12 Ired. 369. 
 Smith v. Cplvin, 17 Barb. 157. Sulli- 
 van V. Davis, 4 Cal. 291. Anthony v. 
 Wessel, 9 Ind. 163. Crutzinger v. 
 Catron, 10 Humph. 24. Catlin v. 
 Jackson, 8 Johns. 520. Evertsen v. 
 Sawyer, 2 Wend. 507. In re Peru Iron 
 Co., 7 Cow. 540. 
 
482 ON EXECUTIONS. [Chap. XVII. 
 
 execution constitutes the title of the creditor, and operates 
 as a statute conveyanee of land set off on execution, as 
 does the sheriff's return of the inquisition upon the elegit 
 in England,' and no deed is executed, for the title rests 
 upon a matter of record, and relates back to the commence- 
 ment of the proceedings under the execution." When the 
 execution is returned into the office of the clerk of the 
 court whence it issued, the title vests in the creditor,' and 
 the execution recorded in the town clerk's office ;* in 
 New Hampshire, in the office of the register of deeds ;° to 
 acquire title to a pew, the execution must be recorded.' In 
 Tennessee and North Carolina, on justice's executions, from 
 the date of levy ;' and where the judgment is no lien, from 
 the levy, test, or delivery to the officer, as provided by 
 statute.' And where an execution is sent into another 
 county than that where the judgment is rendered, in order 
 to reach property there situated, and it is necessary to file 
 a certificate of the levy, the deed dates from the filing of 
 such certificate." While this relation of the deed to a time 
 anterior to its execution is for the purpose of protecting a 
 purchaser, it is not the object of the law to vest the title 
 as it is at the date of the deed ; the title vests as it is at the 
 date of the judgment, where there are liens, and may reach 
 back to the commencement of the action, under the appli- 
 cation of the doctrine of lis pendens. 
 
 § 300. Deeds as evidence. A deed containing the recitals 
 in compliance with the statute '\s prima facie evidence of the 
 
 ' Den V. Abingdon, Doug. 473. Ellen v. Ray, 2 Hawks. 568. Parish 
 
 ' Benson v. Smith, 42 Me. 414. v. Turner, 5 Ired. 279. 
 
 Howard v. Daniels, 2 N. H. 137. ' Savage v. Best, 3 How. ill. Bank 
 
 ' Kellogg V. Wadhams, 9 Conn. 201. v. Tyler, 4 Pet. 366. Million v. Riley, 
 
 Pope V. Cutler, 23 Me. 100. i Dana, 360. Winstead v. Winstead, 
 
 ^ Willard v. Lull, 20 Vt. 373. Finch I Hayw. 243. McLain v. Upchurch, 
 
 1. Bishop, 13 Conn. 576. 2 Murph. 353. Gilky v. Dickenson, 
 
 ' Morse v. Childs, 7 N. H. 2 Hawks, 341. Lewis v. Smith, 2 
 
 581. S & R. 157. Reichart v. McClure, 23 
 
 ' Sargent v. Pierce. 2 Mete. 80. 111. 516. McClure v. Engleheart, 17 
 
 ' Parker v. Swan, i Humph. 80. Id. 47. 
 
 Huggins V. Ketchum, 4 D. & B. 414. ' McClure v. Engleheart, 17 111. 47. 
 
Chap. XVII.] 
 
 OF THE DEED. 
 
 483 
 
 judgment and execution, and other facts therein stated,' and 
 of the legality of the sale," is conclusive of the purchaser's 
 right to possession ' but is no eyidence of a regular and legal 
 foreclosure,'' and may be used to identify the property sold, 
 when the execution is lost.* Misrecitals will not authorize 
 its rejection ; it is adnaissible in evidence as color of title in 
 aid of possession ;' but is inadmissible in Missouri without the 
 clerk's certificate of acknowlegment indorsed upon it.' In 
 California, as against strangers, they are no evidence.' 
 
 § 301. Impeaching DEED. An ofScer's deed, if regular on 
 its face, made to a purchaser in good faith, can not be im- 
 peached in collateral proceedings for mere irregularities in the 
 execution of the process, orin the judgmentand return, orfor 
 neglect to return the execution if the judgment is valid, and 
 the execution issued thereon is warranted by the judgment." 
 
 • McCorinick v. Fitzmorris, 39 Mo. 
 24. Merchants' Bank v. Harrison, Id. 
 433. Carpenter v. King, 42 Id. 219. 
 Stephenson v. Thompson, 13 111. 186. 
 Stuckey v. Croswell, 12 Rich. L. 273. 
 Simmons v! McKissock, 6 Humph.269. 
 Gaugh V. Henderson, 2 Head, 628. 
 
 » Thompson v. Leinard.Wright (O.) 
 223. Kelly V. Green, 53 Penn. 302. 
 Hardin v. Cheek, 3 Jones L. 155. Os- 
 torne v. Tunis, I Dutch, 633. Jordan 
 V. Bradshaw, 17 Ark. 106. Bettison v. 
 Budd, Id. 546. 
 
 ' Dean v. Connelly, 6 Penn. 239. 
 
 • Barman v. Carhartt, 10 Mich. 358. 
 ' Wovels" V. Halsey, 9 Penn. 144. 
 
 • Henley v. Branch Bank, &c., 16 
 Ala. 552. Newton v. State Bank. 15 
 Ark. 9. Burkhalter v. Edwards, 16 
 Geo. 593. Hamilton v. Moreland, 14 
 Id. 343. Beverley v. Burke, 14 Id. 70. 
 
 ' Adams v. Buchanan, 49 Mo. 64. 
 
 ' Donahue v. McNulty, 24 Cal. 411.- 
 
 ' Pollard V. Cocke, 19 Ala. 188. 
 
 Wheaton v, Sexton, 4 Wheat. 503. 
 
 Landes v. Brant, 10 How. 371. Landes 
 
 V. -Perkins, 12 Mo. 254. Jackson v. 
 
 Bartlett, 8 Johns. 361. Ware v. Brad- 
 ford, 2 Ala. 676. Jackson v. Rosevelc. 
 13 Johns. 97. Lowell V. Powell, 5 Ala. 
 58. Cockerell v. Wynn, 20 Miss. 117. 
 Hubbert v. McCuUum, 6 Ala. 221. Hu- 
 luph V. Beeson, i Iowa, 199. Davis v. 
 Wornack, 8 B. Monr. 383. Draper v. 
 Bryson, 17 Monr. 26t. Thompson v. 
 Phillips, I Bald. C. C. 246. Ashby v. 
 Abney, i ' Hill (S. C.) 380. Hines v. 
 Scott, u Penn. 19. Mariner v. Coon, 
 16 Wis. 465. Bowen v. Bell, 20 Johns 
 '338. Wilson V. McVeigh, 2 Yates, 86. 
 Wilson v. Conine, 2 Johns. 280. Vance 
 V. Reardon, 2 N. & M. 299. Morrison 
 V. Dent, I Mo. 246. Den v. Despaux, 7 
 Halst. 182. Weyland v. Tipton, 5 S. 
 & R. 332. Den V. Farley, 7 Halst. 326. 
 Clark V. Lockwood, 21 Cal. 220. Den 
 V. Moore, 7 Halst. 338. Hendrickson 
 V. R. R. Co., 34 Mo. 188. Cox V. Join- 
 er, 4 Bibb. 94. Ferguson v. Miles, 8 
 111. 358. Durham v. Heaton, 28 Id. 264. 
 Stow V. Steel, 45 Id. 328. Kinney v. 
 Knoebel, 47 Id. 417. Armstrong v. 
 Jackson, i Blackf. 210. Anderson v. 
 Clark, 2 Swan, 156. Dunn v. Merri' 
 
484 ON EXECUTIONS. [Chap. XVII. 
 
 The proposition that a sheriff's deed for property sold under 
 a' valid judgment of a court of competent jurisdiction 
 passes the legal title, is a matter of course subject to the 
 qualification that all the proceedings are regular and bona 
 fide, and free from all taint of fraud. If fraud be shown, 
 either in the proceedings or sale, or in the judgment con- 
 firming the sale, the whole proceedings are vitiated. The 
 proceedings of a court of justice establishing rights or fixing 
 liabilities, must always be founded upon the fact that they 
 are carried out bona fide, and wjthout the taint of fraud. If 
 fraud be shown, the very fountain is poisoned, and all the 
 proceedings are null and void. Courts of law and courts of 
 equity have concurrent jurisdiction to suppress and relieve 
 against fraud. If a case of fraud be established, the courts 
 will set aside all transactions founded upon it by whatever 
 machinery they may have been effected, and notwithstand- 
 ing any contrivance by which it may have been attempted 
 to protect them. It is immaterial whether such machinery 
 or contrivance consists of a decree in eqtiity, or a purchase 
 under it, or a judgment at law.' 
 
 wether, l A. K. Marsh. 158. Martin v. son v. Tolmic, 2 Pet. 157. Henry v. 
 
 McCargo, 5 Litt. 293. Smith v. Mor- Ferguson, i Bailey, 512. Barkley v. 
 
 -nson, I Monr. 154. Riggs. v. Dooley, Screvent, i N. & Mc. 408. Hubbard 
 
 7 B. Mbnr. 239. Wilson v. McGee, 2 v. Barnes, 29 Iowa, 289. Lawrence 
 
 Marsh. 602. Childs v. McChesney, 20 v. Speed, 2 Bibb, loi. Donahoe v. 
 
 III. 431. Willard V. Whipple, 40 Vt. McNulty, 24 Cal. 411. 
 219. Phillips V. Coffee, 17 111. 454. ' Underwood v. McVeigh, 23 Gratt. 
 
 Bunton v. Emerson, 46 Greene, 397. 425. Slater v. Maxwell, 6 Wall. 208. 
 
 Hubbard v. Barnes, 29 Iowa, 239. Cocks v. Izard, 7 Wall. 559. Newman 
 
 Nichols V. Disner, 5 Dutch. 293. Har- v. Meek, t Treech, 441. Johnston v. 
 
 per V. Hill, 35 Miss. 63. Landrum v. La Motte, 6 Rich. Eq. 347. Dutcher 
 
 Hatcher, 11 Rich. L. 54. Jackson v. v. Leake, 44 111. 398. 
 Vanderheyden, 17 Johns. 165. Thomp- 
 
Chap XVIII.l RIGHTS OF PURCHASERS. 485 
 
 CHAPTER XVIII. 
 
 OF THE RIGHTS OF PURCHASERS, WITH AND WITHOUT 
 
 NOTICE. 
 
 Purchasers, how they submit to the Jurisdiction of the Court. 
 
 — Who are Purchasers in good faith, or bona fide Pur- 
 chasers, and Purchasers with or without Notice, or inno- 
 cent Purchasers. ; — Of Notice, what is : what is not. — 
 Actual Notice. — Constructive Notice. — Lis Pendens as 
 Notice. — What is equivalent to Notice. — Occupation or 
 Possession as Notice. — Recording and Registration of In- 
 struments as Notice. — When not Notice. — Judgments as 
 Notice, and prior Claims. — Purchaser with Notice, how 
 affected. — Effect where a Purchaser has no Notice. — Effect 
 of failure to record a Deed, as to subsequent Purchaser at 
 Execution Sales. — Of the Right of Purchasers to Relief. 
 
 — Rights of Purchasers. — Of Irregularities in the Pro- 
 ceedings, and how they affect Purchasers. — Of the Effect 
 of the Return upon a Purchaser s Title, and a Failure to 
 Return the Writ. — Rule in regard to Returns in the. New 
 England States on Extent. — Of the Presumptions in favor 
 of the Regularity of the Proceedings of an Officer ; Omnia 
 prcesum.untur rite et sol'enniter esse acta. — Where a Pur- 
 chaser becomes a Trustee. — What passes at a Sale of Land 
 on Execution. — What constitutes a Purchaser" s Title. — 
 Rights of Debtor after Sale. 
 
 § 327. In treating of the rights of purchasers under exe- 
 cutions, the same distinction will be made as to their 
 rights as the law makes. That is, as between bona fide 
 purchasers, or purchasers in good faith, and purchasers not 
 
486 ON EXECUTIONS. [Chap. XVllI. 
 
 so regarded ; and of purchasers with and without notice, 
 and the distinctions between strangers and third parties 
 who purchase, and creditors, or other parties to the action, 
 who bid in and become purchasers, in order to secure their 
 claims ; of the title of purchasers, and what constitutes their 
 title; of the presumptions the law makes in order to pro- 
 tect their title,- and what irregularities are, and are not. 
 sufficient to avoid or nullify their title to property pur- 
 chased. Where a person purchases under a decree or judg- 
 ment of a court, he submits himself to the jurisdiction of 
 the court in that action, as to all matters connected with 
 the-sale, or relating to him in the character of purchaser.' By 
 becoming a quasi party to the proceeding, he becomes liable 
 for the purchase-money, or the amount of his bid ; and where 
 he neglects to make a payment according to his contract, he 
 may be compelled, by an attachment, to complete his pur- 
 chase, and should, as a matter of right, upon refusal, be com- 
 pelled to pay interest upon the bid." A purchaser at a sale 
 of this kind is not bound by any terms or conditions im- 
 posed by the officer conducting the sale unless they are 
 imposed by the law.' But succeeding to the right, title, 
 and interest of the debtor in the land, under a process 
 issued at the instance of the creditor to subject the 
 property to the satisfaction of his judgment, he has the 
 same right to obtain relief against a fraudulent disposi- 
 tion of the property that the creditor had.* In regard 
 to the laws relating to fraudulent conveyances, such 
 purchaser must be one who has acquired the legal title 
 
 'Atkinson v. Richardson, 14 Wis. ' Howell v. Schenck, 4 Zabr. 8g. Ste- 
 
 157. Requa v. Rea, 2 Paige, 339. venson v. Black, Saxt. 388. Loomis's 
 
 Clarkson v. Read, 15 Gratt. 288. Appeal, 22 Penn. 312. 
 
 Gross V. Pearcey, 2 P. & H. 483. * Mays v. Rose, i Free. Ch. 703. 
 
 Blackmore v. Barker, 2 Swan, Baker v. Dobyns, 4 Dana, 226. Scott 
 
 340. Stinson v. Meade, 2 R. I. 511. v. Purcell, 7 Blackf. 66. Baker v. 
 
 Spaun /. Jones, 4 C. E. Green, 251. Cooper, 57 Me. 388. Eastman v. 
 
 "^ Atkinson v. Richardson, 15 Wis. Schettler, 13 Wis. 324. Raines v. 
 
 594. Wood V. Mann, 3 Sumn. 318. Dunning, 41 Geo. bV}. Morse v. 
 
 Gordon v. Sims, 2 McCord Ch. 151. Sleeper, 58 Me. 329. 
 Cowell V. Lippit, 3 R. I. 92. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 487 
 
 by a valid deed of conveyance,' and succeeds to all the rights 
 which the debtor had, to sue the original grantor for specific 
 performance or reformation of the deed ;' but is not pt-ivy to 
 the defendant ;' but he has the right to an order from the court 
 directing the ofiScer to make him a deed ;■* and, in cases where 
 granted by statute, to a writ in the nature of a habere facias pos- 
 scssionem, to obtain possession,' but acquires no right of entry 
 until he has a deed ;° and unless granted possession by the de- 
 cree, or by statute, has no right to enter on the premises un- 
 less they are vacant.' The rights and liablilities of the parties 
 depend entirely upon statute law.' As against the officer, a 
 stranger to the action, who is the purchaser, acquires no 
 right in the property sold unless he pays down in cash the 
 whole of the purchase-money.' When the money is paid his 
 right is complete, and a deed is merely evidence of that right." 
 
 § 328. Who are purchasers in good faith, or bona 
 fide purchasers and innocent purchasers, and who ; 
 ,ARE NOT. A purchaser who has advanced the consideration 
 for the purchase is deemed a bona fide purchaser," unless he; 
 is shown to have notice of irregularities or other matters ' 
 which will avoid his purchase ; and in order to constitute a 
 person such a purchaser without notice, so as to entitle him ; 
 to protection against a prior legal or equitable right, of 
 which he had no notice, he must have parted with some- 1 
 thing. that was valuable, upon the faith of his purchase, and 1 
 before he had notice of such prior right or equity." 
 
 An execution-creditor who bids off the property at a sale 
 
 ' Hopkins v. Webb, g Humph. 519. " Ayres v. Diiprez, 27 Tex. 593. 
 
 * Morgan v. Bouse, 53 Mo. 219. Miller v. Finley, 26 Mich. 249. 
 Miller v Jameson, 24 N. J. Eq. 41. " Hutchings v.Chapman,37 Tex. 612. 
 
 ' Brily v. Cherry, 2 Dev. 2. How v.Weldon, 2Ves. 516. In re Howe, 
 
 * Phillips V. Dawley, I Neb. 320. I Paige, 125. Lawless v. Kinney, i H. 
 ' Dorsey v. Campbell, i Bland, 357. & B. 400. Churchill v. Grove, I Chan. 
 
 McMehcen v. Marman, 8 G. & J. 57. Cas. 35. Story v. Lord Wi^idsor, 2 Atk. 
 
 • Young V. Withers, 8 Dana, 165. 630. Molony v. Kernan, 2 Dr. & War. 
 ' People V. Nelson, 13 Johns. 340. 31. Borell v. Dann, 2 Ha. 440. Jackson 
 ' Russell V. Dyer, 33 N. H. 186. v. Rowe, 2 S. & S. 472. Jackson v. 
 
 • People V. Hays, 5 Cal. 66. Campbell,i9 Johns. 282. Coddington v. 
 '" Miller v. Alexander, 8 Tex. 36. Bay, 20 Id. 637. Williams v. HoUings- 
 
488 
 
 ON EXECUTIONS. 
 
 [Chap. XVIIl. 
 
 1 on his own execution, and applies the bid on his judgment, is 
 ' not regarded as a bona fide or innocent purchaser; he takes 
 for a pre-existing debt, and the consideration is not advanced 
 on the faith of the purchase;' a plaintiff purchasing under a 
 voidable execution ; ' or purchasing under his own writ goods 
 fraudulently purchased by his debtor.' Under the class of pur- 
 chasers who are not innocent, that is, purchasers without no- 
 tice, are the credit or or plaintiff in the action. The law pre- 
 sumes that he has notice of every fact and step in the proceed- 
 ing, from the commencement of the action until after the 
 completion of the proceedings under execution, and the cred- 
 itor is bound to kno w that all the proceedings are legal up to 
 the sale. This rule applies to the attorneys in the case.* 
 
 A person purchasing, knowing that the judgment on 
 which the execution issued has been satisfied", or that the 
 claim was false on which judgment by default was taken,' 
 
 worth, I Strobh. Eq. 103. Rayne v. 
 Baker, i Giff.245. Wormley v. Worm- 
 ley, 8 Wheat: 421. Freeman v. Hill, I 
 D. & B. Eq. 389. Wood v. Mann, 1 
 Sumner, 506. Keitcrease v. Levinz, 36 
 Miss. 569. Dugan v. Vattier, 3 Blaclcf. 
 245. Polk V. Gallant, I D. & B. Eq. 
 395. Rutherford v. Greed, 5 Ired. Eq. 
 122. Freeman v. Mehane, 2 Jones, 44. 
 Boswell V. Buchanan, 3 Leigh, 365. 
 Gouse V. Martin, 3 S. & R. 430. 
 Blight V. Banks, 6 Monr. 192. Jackson 
 V. Summerville, 13 Penn. 359. 
 
 ' Swazey v. Burke, 12 Pet. i. Ayres 
 V. Duprez, 27 Tex. 593. Pettingill v. 
 Moss, 2 Minn. 222. Wright v. Doug- 
 lass, 10 Barb. 97. Orme v. Roberts, 33 
 Tex. 768. Baze v. Arper, 6 Minn. 226. 
 Stephens v. Dennison, i Oreg. 19. Har- 
 rison V. Rapp, 2 Blackf. i. Hefferlein v. 
 Sinsindorfer, 2 Kans. 401. Collier v. 
 Stanbrough,6 How. 14. Curtis v. Swear- 
 ingen, i 111. 141. Doe v. Collins, i Ind. 
 24. Winston v. Otley, 25 Miss. 451. 
 
 ' Trotter v. Nelson, i Swan, 7. 
 
 ' Devoe v. Brandt, 53 N. Y, 463. 
 
 Nichols V. Michael, 23 Id. 264. Henne- 
 quin V. Naylor, 24 Id. 139. Earl, &c. v. 
 Winsmore, i B. & C. 514. 
 
 * WoodvufT V. Hoard, 9 Ind. 186. 
 Swazey v. Burke, 12 Pet. H. Harrison 
 V. Doe, 2 Blackf. i. Ayres v. Duprez, 
 27 Tex. 503. Simonds v. Catlin, 2 
 Caines, 61. Pettingill v. Moss, i Minn. 
 222. Hayden v. Dunlap, 3 Bibb, 26i> 
 Wright V. Douglass, 10 Barb. 97. Ste- 
 phens V. Dennison, i Or. 19. Orme 
 V. Roberts, 33 Tex. 768. McLean Co. 
 Bank v. Flagg, 31 III. 290. Baze v. 
 Arper, 6 Minn. 220. Keeling v. 
 ■Heard, 3 Head. 592. Hefferlein v. 
 Sinsindorfer, 2 Kans. 401. Piel v. 
 Brayer, 30 Ind. 232. Collier v. 
 Stanbrough, 6 How. 14.. Twogood 
 V. Franklin, 27 Iowa, 239. Curtis v. 
 Swearingen, i 111. 141. Corinth v. 
 State Bank, 18 Wis. 561. Doe v. Col- 
 lins, I Ind. 24. Hughes v. Streeter, 24 
 111. 647. Stroud V. Casey, 25 Tex. 
 740. 
 
 ' Morton v. Granada Academies, 16 
 Miss. 773. Reed v. Austin, 9 Mo» 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 489 
 
 or who is notified that the judgment is paid, and refuses the 
 officer's re-tender of the purchase-money ;' a trustee pur- 
 chasing for the benefit of creditors ;" a plaintiff who bids on 
 the property in the name of another, but applies the amount 
 due on his judgment in payment of his bid, and is him- 
 self the real purchaser, th^ person in whose name the 
 property is purchased is not an innocent purchaser.' A 
 person falsely representing to the parties that the sale has 
 been postponed, then combines with the officer to forestall 
 competition by selling as secretly as possible, and who buys 
 in the property at one-twentieth its value.' The proof 
 must be of a definite and unquestionable character to es- 
 tablish a resulting trust.* Where the attorney in the case 
 purchases at an inadequate price, the sale will, upon 
 sHght additional facts, be deemed fraudulent,' or in trust 
 for the debtor ;' or, if for several creditors, in trust for 
 them.' Where he purchases in his own right, and takes 
 the title in his own name, he is then a bona fide purchaser." 
 Within the recording or registration acts, a creditor who 
 purchases at an execution sale, is a purchaser for a 
 valuable consideration, although the entire purchase- 
 price is applied in payment of the debt." A bona fide pur- 
 chaser is one who purchases for an honest, legitimate pur- 
 pose, as contradistinguished from one who purchases for some 
 fraudulent or improper purpose, and hence every person 
 buying at an execution sale, for the purpose of satisfying an 
 honest debt, is a ^(?«a _/?ia?i? purchaser. One who buys and 
 pays nothing is not in any legal sense a purchaser. But 
 satisfying an execution to the extent of the bid, is such a 
 payment as constitutes a creditor a bona fide purchaser, 
 
 722. Thrower v. Vaughn, i Rich. * Howell v. McCrary, 7 Dana, 388. 
 
 18. Snow V. Hawpe, 22 Tex. 168. ^ Howell v. Baker, 4 Johns. Ch. 
 
 ' Myers v. Cochran, 29 Ind. 256. 418. ^owell v. McCrary, 7 Dana, 
 
 ' Groff V. Robbins, 33 Miss. 153. 388. Alackay v. Martin, 26 Tex. 57. 
 ' Barber v. Reynolds, 44 Cal. 520. ' Gregory v. Cover, ig 111. 608. 
 
 * Dutcher v. Leike, 44 111. 398. ' Day v. Graham, 6 111. 435, 
 
 • Crutchfield v. Thurman, 4 Bush, Chappell v. Dunn, 21 Barb. 17. 
 498. "• Vyood V. Chapin, 13 N. Y. 509. 
 
490 , ON EXECUTIONS. [Chap. XVIII. 
 
 after such a lapse of time that the lien of the judgment is 
 gone, and the debt itself is satisfied by mere lapse of time. 
 But a person to whom property is assigned in payment of a 
 pre-existing debt, is not a purchaser in good faith, and the 
 lien of an execution, though no levy is made until after the 
 assignment, is superior to the assignee's title.' 
 
 § 329. Of notice ; WHAT IS NOTICE, AND WHAT IS NOT. 
 Notice is either actual or constructive, but there is no differ- 
 ence between them in its consequences." Actual notice is 
 where knowledge is brought home to the party to be affected 
 by it ; or a knowledge of circumstances which should lead 
 him to a knowledge of such fact.' But vague reports of 
 strangers or disinterested parties, or mere general assertions 
 that some other person claims title to the property, is not 
 sufficient to affect a person with notice.* 
 
 Notice given to the purchaser at the time of sale is suffi- 
 cient to charge him. There is no distinction between execu- 
 tion and other sales." Such notice, in order to be binding, 
 must proceed from the person interested in the property,' 
 
 ' Warren v. Paine, 3 Barb. Ch. Council v. Paige, i Spears Eq. 159. 
 
 630. Birdseye v. Ray, 4 Hill, 158. Butcher v. Stapely, i Verji. 363. Tol- 
 
 Slade V. Van Vechten, 11 Paige, 21. land v. Stainbridge, 3 Ves. 478. Fry 
 
 Ray V. Birdseye, 5 Denio, 619. v. Porter, i Mod. 300. Wildgoose v. 
 
 '' Sheldon v. Cox, 2 Eden. 224. Wayland, Gouldsb. 147. Greeslade 
 
 Prosser v. Rice, 28 Beav. 68. Worn- v. Dare, 20 Beav. 284. Flagg v. 
 
 nald V. Maitland, 35 L. J. Ch. 69. Mann, 2 Sumn. 487. Cunens v. Hart, 
 
 * Mayor v. Williams, 6 Md. 235. Hardin, 27. 
 
 * MuUiken v. Graham, 72 Penn. 484. ' Williams v. Branch Bank, &c., 7 
 Ticke V. Ersicke, 2 Rawle, 166. Ala. go6. Byers v. Engles, 16 Ark. 
 Butler V. Thornton, 31 Geo. 641. 543. Shryock v. Jones, 22 Penn. 303. 
 Peebles v. Reading, 8 S. & R. 584. Roulman v. Austin, 5 S. & P. 410. 
 Wright V. Ward, 23 Penn. 120. ' Rogers v. Hoskins, 14 Geo. i66.' 
 Jacques v. Weeks, 7 Watts, 26. Lewis Nelson v. Sims, 23 Miss. 383. In- 
 V, Bradford, 10 Id. 67. Miller v. Cres- gram v. Phillips, 3 Strobh. 565. 
 son, 5 W. & S. 384. Wilson v. Buttrick v. Holden, 13 Mete. 355. 
 McCuUough, 23 Penn. 440. Butler Flagg v. Mann, 2 Sumn. 55. Meuse 
 V. Stevens, 26 Me. 484. Gill v. Mc- v. McLean, 13 Mo. 298. Bartlett v. 
 Atee, 2 Md. Ch. 255. Williamson v. Glasscock, 4 Id. 62. Barnes v. Mc- 
 Brown, 15 N. Y. 354. Jackson v. Clinton, 3 Penn. 67. Epley v. With- 
 Givens, 8 Johns. 157. Massie v. erow, 7 Watts, 163. Woods v. Far- 
 ■Greenhow, 2 P. & H. 255. City mer, Id. 382. Kerns v. Swope, 2 Id. 
 
CHAf. XVIII.J 
 
 RIGHTS OF PURCHASERS. 
 
 491 
 
 but must be in the same transaction.' In Michigan, it 
 need not from a party in interest.^ But from whatever 
 quarter it may come, it must be sufficiently definite to put the 
 purchaser on his guard, to enable him to ascertain whether 
 it is authentic' If the purchaser knows of an adverse 
 claim of title, it is not necessaryfor the claimant to proclaim 
 it at the time of sale.* Notice to the purchaser's counsel, 
 attorney, or agent, is notice to the principal or party.' But, 
 in order to be binding, it must be in the same transaction.' 
 This rule is subject to this exception : that where one trans- 
 
 7. Barnhart v. Greenshields, 28 
 Eng. L. & Eq. 77. 
 
 ' East Grimstead's Case, Duke, 640. 
 Hamilton v. Royse, 2 Sch. & L. 327. 
 Mountford v. Scott, 3 Mad. 34. 
 
 » Wilcox V. Hill, II Mich. 256. 
 
 ' Epley V. Witherow, 7 Watts, 163. 
 Curtis V. Blair, 26 Miss. 312. Butler 
 V. Stevens, 26 Me. 484. Foust v. 
 Moorman, 2 Ind. 17. Boggs v. War- 
 net*, 6 W. & S. 469. FUgg V. Mann, 
 2 Summer, 487. 
 
 •• Owens V. Myers, 20 Penn. 134. 
 
 ' Newstead v. Searles, I Atk. 265. 
 Le Neve v. Le Neve, 3 Id. 646. 
 Brotherton v. Hatt, 2 Ves. 574. Ash- 
 ley V. Baillie, Id. 36,8. Maddox v. 
 Maddox, I Id. 61. Tunstall v. Trap- 
 pes, 3 Sim. 301. Lenehan v. M'Cabe, 
 ■2 Ir. E. R. 342. Att.-Gen. v. 
 ■Gower, 2 Eq. Cas. Ab. 685. Aster v. 
 Wells, 4 Wheat. 466. Fulton Bank 
 V. New York & Sharon Canal Co., 4 
 Paige, 127. Hi-vey v. Blanchard, 13 
 N. H. 145. Jackson v. Winslow, 9 
 Cow. 13. Bank of United States v. 
 Davis, 2 Hill, 451. Jackson v. Sharp, 
 <) Johns. 163. Westervelt v. Hoff, 2 
 Sandf. 98. Barnes v. McChristie, 3 
 Penn. 67. Sutton v. Dillaye, 3 Barb. 
 529. Ross V. Houston, 25 Miss. 
 «;9I. Worden v. Williams, 24 111. 
 
 67. Allen V. McCalla, 25 Iowa. 464. 
 Miller v. Fraley, 21 Ark. 22. Law- 
 rence V. Tucker, 7 Me. 195. Griffith 
 V. Griffith, 9 Paige, 315. Champlin 
 V. Laytin, 6 Id. i8g. Jackson v. Van 
 Valkenburgh, 8 Cow. 560. Ingalls v. 
 Morgan, 10 N. Y. 178. Reed's Ap- 
 peal, 34 Penn. 207. 
 
 * McCormick v. Wheeler, 36 111. 
 114. Bracken v Miller, 4 W. & S. 
 102. Hood V. Fahnestock, 8 Watts, 
 489. Grant v. Cole, 8 Ala. 519. Law- 
 rence V. Tucker, 7 Me. 195. Boyd v. 
 Vanderkemp, I Barb. 287. Bank of 
 U. S. V. Davis, 2 Hill, 451. Win- 
 chester V. B. R. R. Co., 4 Md. 221. 
 Howard Ins. Co. v. Halsey, 8 N. Y. 
 271. Grant v. Cole, 8 Ala. 519. N. Y., 
 &c. Co. V. National, &c. Co., 20 Barb. 
 468. Willis V. Valletle, 4 Mete. (Ky.) 
 186. Jones V. Bamford, 21 Iowa, 217. 
 Fitzgerald v. Fauconbrige, Fitz. 297. 
 Warick v. Warick, 3 Atk. 291. Pres- 
 ton V. Turbin I Ves. 286. Worsley v. 
 Scarborough, 3 Atk. 292. Hiern v. 
 Mill, 13 Ves. 114. Steed v. Whittaker, 
 Barn. Ch. R. 220. Hine v. Dodd, 2 
 Atk. 275. Lowther v. Carleton, Id. 
 242. A.shley v. Bailey, 2 Ves. 368. 
 Edgecumbe v. Stranger, i Jur. 400. 
 Fuller V. Bennett, 2 Ha. 394. Tyler 
 V. Webb, 6 Beav. 552. Finch v. Shaw, 
 
492 ON EXECUTIONS. [Chap. XVIII, 
 
 action is closely followed by and connected with another, the 
 attorney or counsel is presumed to have remembered the 
 previous one. In all such case's, though not in the same 
 transaction, the notice to the attorney or counsel is notice 
 to the client, and is binding ; the presumption is that the 
 information was communicated to the client." 
 
 § 330. Of constructive notice. Constructive notice is 
 in its nature no more than evidence of notice. Whatever 
 is notice enough to excite the attention of a man of ordinary 
 prudence, and call for further inquiry, is in equity notice of 
 all facts to the knowledge of which an inquiry, suggested 
 by such notice, and prosecuted with due and reasonable 
 diligence, would have led ; or when certain acts have been 
 done of which the party interested is presumed to have 
 knowledge, if on grounds of public policy, the presumption of 
 which are so violent that the courts will not even allow of 
 its being controverted ;' and where a party charged, incau- 
 .tiously neglects to make inquiries, and designedly abtains 
 from making such inquiries for the purpose of avoiding 
 knowledge, a purpose which, if proved, would clearly show 
 that he had a suspicion of the truth, and a fraudulent or 
 
 19 Id. 500. Colyer V. Finch, 5 H. L. 10 Rich. L. 293. "Williams v. Tat- 
 
 905. Wilde V. Gibson, t Id. 614. nail, 29 111. 553. Willy v. Knight, 
 
 Twycross v. Moore, 13 Ir. Eq. 27 Ala. 396. 
 
 250. ' Maitland v. Backhouse, 17 L. J. 
 
 ' Dresser v. Norwood, 17 C. B. N. Ch. I2i. Espey v. Lake, 10 Ha. 260. 
 
 S. 466. Lenehan v. McCabe, 2 Ir. Eq. Mangles v. Dixon, 3 H. L. 702. 
 
 324. Nixon V. Hamilton, 2 Dur. & Plumb v. Flintt, 2 Aust. 438. Kenne- 
 
 Wall. 364. Perkins v. Bradley, I Hare, dy v. Greene, 3 My. & K. 719. 
 
 219. Fuller V. Bennett, 2 Id. 394. Jones v. Smith, i Hare, 55. 
 
 Gerard v. O'Reilly, 3 Dur. & War. Owen v. Homan, 4 H. L. 997. 
 
 414. Majoribanks v. Hovenden, Dm. Dawson v. Prince, 2 D. & J. 41. 
 
 TI. Toulmin v. Steere, 3 Mer. 210. Perry v. Holl, 2 D. F. & J. 38. 
 
 Hargreaves v. Bothwell, i Keen, 154. Broadbent v. Barlow, 3 Id. 570. Dett- 
 
 Fenwick v. Potts, 8 De G. M. & G. mar v. Met., &c. Bank, I H. & M. 
 
 506. Hart V. Farmers', &c.. Bank, 33 641. Freliten v. Slater, Law R. 7 Eq. 
 
 Vt. 252, Blumenthal v. Brainerd, 38 523. Wilson v. Hart, L. R. i Chan. 
 
 Id. 410. The Distilled Spirits, 11 463. Hewett v. Loosemere, 9 Hare, 
 
 Wall. 356. Murray v. Ballou, I 449. Rogers v. Jones, 8 N. H. 364. 
 
 fohns. Ch. 556. Pritchill v. Sessions, Griffith v. Griffith, i Ho£f. Ch. 153. 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 493 
 
 willful determination not to learn it.' If there is not actual 
 notice that the property is in some way affected, and no 
 fraudulent turning away from a knowledge of facts which a 
 res gest<z would suggest to a prudent mind, if mere want of 
 •caution, as distinguished from fraudulent and willful blind- 
 ness, is all that can be imputed to the purchaser, then the 
 doctrine of constructive notice will not apply ; then the 
 purchaser is a bona fide purchaser without notice." Among 
 which are recorded deeds, advertisements in newspapers 
 when authorized by statute as part of the process, public 
 .acts of government, and lis pendens. 
 
 § 331. Lis pendens as notice. Lis pendens is of itself 
 notice to a purchaser,' unless it be collusive, in which case 
 it will not bind him. 
 
 Major V. Buckley, 51 Mo. 227. Brush 
 V. Ware, 15 Pet. 93. Williamson v. 
 Brown, 15 N. Y. 354. Birdsall v. 
 Russell, 29 N. Y. 250. 
 
 ' Grafif V. Castleman, 5 Rand. 195. 
 Pendleton v. Fay, 2 Paige, 202. Pit- 
 
 :ney v. Leonard, I Id. 461. Doyle v. 
 Teas, 5 111. 202. Cook v. Garza, 13 
 Tex. 401. Tillinghast v. Champlain, 
 
 4 R. I. 73. Howard Ins. Co. v. 
 Halsey, 4 Sand. 565. Price v. Mc- 
 Donald, I Md. 414. Hories v. Carr, 
 •I Sumn. 193. Peabody v. Fenton, 3 
 Barb. Ch. 457. Blddle v. Moore, 3 
 Penn. 161. 
 
 - Jones V. Smith, i Hare, 55. Ware 
 V. Egmout, 4 D. G. M. & G. 473. 
 
 ,Atty.-Gen. v. Stephens, 6 Id. iii. 
 
 ^ Buford V. Rosenfeld, 37 Tex. 42. 
 Yeaveley v. Yeaveley, Tot. 227. 
 Thorp V. Dunlap, 4 Heisk. 674. 
 Salisbury v. Morse, 7 Lans. 359. 
 Degs V. Boys, Tot. 254. Culpepper v. 
 
 .Ashton,2 Ch. C. 116. Barnes v. Can- 
 
 jiing, I Id. 300. Sorrel v. Carpenter, 
 P. Wms. 482. Garth v. Ward, 2 Atk. 
 174. Worsley v. Ld. Scarborough, 3 
 
 -Atk. 392. Walker v. Smallwood, 
 
 Amb. 676. Hill v. Worsley, Hard. 
 320. Goldson V. Gardiner, i Ves. 459. 
 Bp. of Winchester v. Paine, 11 Id. 
 194. Going V. Farrell, Bea. 472. 
 Jackson v. Andrews, 7 Wend. 152. 
 Hopkins v. McLaren, 4 Cowen, 667. 
 Murray v. Ballou, i Johns. Ch. 566. 
 Heatley v. Finster, 2 Id. 158. Murray 
 V. Lylburn, Id. 441. Green v. Slayter, 
 4 Id. 38. Zeiter v. Bowman, 6 Barb. 
 133. Stuyvesant v. Hall, 2 Barb. Ch. 
 151. Watling V. Howley, i Desaus. 
 167. Osborn v. Taylor, 5 Paige, 515. 
 Moragne v. Le Roy Du Cereveil, 4 
 Desaus. 256. Owings. v. Meyers, 3 
 Bibb. 279. Chaudron v. Magee, 8 
 Ala. 570. Tongue v. Morton, 6 Harr. 
 & J. 21. Green v. White, 7 Blackf. 
 242. Copenheaver v. Huffaker, 6 B. 
 Monr. 18. Borrowscale v. Tuttle, 5 
 Allen, 377. Haven v. Adams, 8 Id. 
 363. Leitch V. Wells, 48 Barb. 637. 
 Baird v. Baird, Phill. (N. C.) Eq. 317. 
 Edwards v. Banksmith, 35 Geo. 213. 
 Wickliffe v. Breckenbridge, 1 Bush. 
 427. Parsons v. Hoyt, 24 Iowa, 154. 
 Haughwout V. Murphy, 7 Green (N. J.) 
 531- 
 
494 ON EXECUTIONS. [Chap. XVIII 
 
 "A suit duly prosecuted in good faith, and followed by a 
 judgment or decree, is constructive notice to every person, 
 who acquires from a defendant, pendente lite, an interest in 
 the subject-matter of the litigation, of the legal and equita- 
 ble rights of the plaintiff, as charged in the bill or com- 
 plaint, and established by the judgment or decree. This 
 effect of a successful litigation in subordinating the title of 
 a purchaser pending a litigation, to the rights of the plain- 
 tiff, as established in the suit, is not derived from legislation. 
 It is a doctrine of courts of equity, of ancient origin, and rests 
 not upon the principles of the court, with regard to notice, 
 but on the ground that it is necessary to the administration 
 of justice that the decision of the court in a suit should be 
 binding, not only on the litigant parties, but also upon 
 those who acquire title from them during the pendency of 
 the suit. Such a purchaser need not be made a party, and 
 will be bound by the decree which shall be made." Al- 
 though the maxim is '■'■pendente lite nil innovetur" the 
 maxim is not to be understood as warranting the conclusion 
 that the conveyance so made is absolutely null and void at 
 all times and for all purposes. The true interpretation of 
 the maxim is, that the conveyance does not vary the rights 
 of the parties in that suit ; and they are not bound to take 
 notice of the title acquired under it, but with regard to 
 them the title is to be taken as if it had never existed ; but, 
 in order to make lis pendens notice, it is necessary that there 
 should be a close and constructive prosecution of the lis 
 pendens, or the protection may be lost before the termination 
 of the action, by negligence in its prosecution.' It must be 
 sufficiently certain to give the means of distinct and intelli- 
 gible information of the matter to which itrelates." 
 
 " Gibler v. Trimble, 14 Ohio, 323. Whiting v. Beebe, I2 Ark. 564. Ash- 
 Trimble V. Boothby, Id. 109. Price ly v. Cunningham, 16 Id. l58. Gil- 
 V. McDonald, i Md. 403. Watson v'. man v. Hamilton, 16 111. 225. Inloe's 
 Wilson, 2 Dana, 406. Preston v. Lessee v. Hawey, 11 Md. 519. Har- 
 Turbin, i Vern. 286. rington v. Slade, 22 Barb. 166. Pratt 
 
 * Carter v. Bank, 22 Ala. 743. v. Hoag, 5 Duer, 631. Hersey v. 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 495 
 
 § 332. Whatever will put a party upon inquiry which 
 would result in the information sought, is equivalent to 
 notice ; * that is, if a man has sufficient information to lead 
 him to a fact, he is deemed cognizant of it." - 
 
 If it is evident that the purchaser had knowledge of 
 the existence of an adverse claim or title, whether obtained 
 from interested parties or third persons, it is notice,' and is 
 liable, not only for all that he actually discovers, but for all 
 that, with due diligence, he might have discovered.* 
 
 § 333- Occupation or possession as notice. The law re- 
 gards actual occupancy of land as equivalent to notice, to all 
 
 Ringold V. Wagjjoner, 14 Ark. 6g. 
 Swarthout v. Curtis, 5 N. Y. 301. 
 Smith V. Lowe, I Atk. 489. Taylor 
 V. Baker, Dan. 71. Webb v. Lugar, 
 2 Y. & C. 47. Bancroft v. Cousen, 13 
 Allen, 50. Hawkinson v. Barbour, 29 
 111. 80. Wetherel v. Boon, 17 Tex. 
 143. Moorland v. Cook, L. R. 6 Eq. 
 252. Warren v. Sweet, 31 N. H. 332. 
 Hull V. Noble, 40 Me. 480. Baker v. 
 Bliss, 39 N. Y. 70. Green v. Slayter, 
 4 Johns. Ch. 46. Sterry v. Arden, i 
 Id. 267. Pitney v. Leonard, i Paige, 
 462. Wilson V. Hill, 2 Beasl. 143. 
 Williams v. Fullerton, 20 Vt. 346. 
 Stone V. Smoot, 39 111. 409. Hatch 
 V. Bigelow, Id. 546. Powell v. Healy, 
 28 Tex. 52. Pingree v. Coffin, 12 
 Gray, 288. Smoot v. Rea, 19 Md. 
 
 398. 
 
 ' Curtis V. Mundy, 3 Mete. 405. 
 Cunens v. Hurt, Hardin, 37. Rowan 
 V. Adams, i S. & M. Ch. 45. Roberts 
 V. Stanton, 3 Mumf. 129. Lewis v. 
 Bradford, 10 Watts, 67. Phillips v. 
 Bank, &c., 28 Penn. 394. Trefts v. 
 King, Id. 157. 
 
 * Whitehead v. Jordan, I Y. & C. 
 303. Kennedy v. Greene, 3Myl. & 
 K. 699. Mabin v. Kirby, 4 Rich. Eq. 
 IP5. Center v. Bank, 22 Ala. 743. 
 McGehee v. Gindrat, 20 Id. 95. 
 
 Turbett, 27 Penn. 418. Scudder v. 
 Van Amberg, 4 Ed. Ch. 29. Boiling 
 V. Carter, 9 Ala. 770. Shelton v. 
 Johnston, 4 Sneed, 672. Lewis v. 
 Mew, I Strobh. Eq. 180. French y. 
 Loyal Co., 5 Leigh, 627. Griffith v. 
 Griffith, I Hoff. 153. Jackson v. 
 Eetcham, 8 Johns. 479. Harris v. 
 Carter's Adm's, 3 Stew. 233. Chap- 
 man V. West, 17 N. Y. 125. Walker 
 V. Butz, I Yeates, 574. 
 
 ' Angier v. Schiefielin, 72 Penn. 
 106. 
 
 2 Taylor v. Sibert, 2 Ves. Jr. 437. 
 Glidewell v. Spaugh, 26 Ind. 319. 
 Sigouiney v. Mann, 7 Conn. 324. 
 Booth V. Barnum, 2 Id. 86. Peters v. 
 Goodrich, 3 Id. 146. Pendleton v. 
 Fay, 12 Paige, 202. Hoxie v. Carr, 
 I Sumner, 193. Hawley v. Cramer, 
 
 4 Cow. 717. Pearson v. Daniel, 2 
 Dev. & Bat. Ch. 360. Doyle v. Teas, 
 
 5 111. 202. Blaisdell v. Stephens, 16 
 Vt. 179. Stafford v. Ballou, 17 Id. 
 320. McDaniels v. Flower, &c. Co., 
 22 Id. 274. Stevens v. Goodenough 
 26 Id. 676. Hinde v. Vattier, I Mc- 
 Lean, no. Bunting v. Ricks, 2 Dev. 
 
 6 Bat. Ch. 130. Bartlett v. Glassock, 
 4 Mo. 62. Gibbes v. Cobb, 7 Rich. 
 Eq. 54. Ringold v. Bryan, 3 Md. Ch. 
 488. Stockett y. Taylor, Id. 337. 
 
496 ON ^EXECUTIONS. [Chap. XVIII. 
 
 persons dealing with the title of the claim of the occupant. 
 But this is not an absolute proposition, which is to be taken 
 as true in all possible relations. The circumstances known 
 may be such that the occupancy will not suggest to a pur- 
 chaser an inquiry into the title or claim under which it may 
 be held ; and when the inquiry may be omitted in good faith, 
 and in the exercise of ordinary prudence, no one is bound 
 to make it. Possession out of the vendor, and actually in 
 another person, only suggests an inquiry into the claim of the 
 latter. Ordinarily, that inquiry should be made, because it 
 evidences bad faith, or gross neglect not to make it. But the 
 question in such cases is one of actual notice, and such no- 
 tice will be imputed to a purchaser only where it is a reason- 
 able and just inference from the visible facts. He can not 
 willfully close his eyes, and then allege good faith ; nor can 
 he pause in the examination, where the facts made known to 
 him plainly suggest a further inquiry to be pursued.' Thus, 
 if a person purchases land which he knows to be in the 
 actual possession or occupation of another than the debtor, 
 it is sufficient to put him on inquiry as to the title of 
 the occupant." Possession must be distinct and unequiv- 
 ocal, and must exist at the time of the sale, and be of such a 
 nature as to put a purchaser on his guard, and not mislead 
 him.° If a tenant in possession has entered into a contract 
 for the purchase of an estate, a purchaser will be held to 
 
 ' Jones V. Smith, t Hare, 43. Hewes 59 111. 166. Groff v. Ramsey, 19 
 V. Wiswall, 8 Me. 94. Flagg v. Mann, Minn. 44. Flint v. Lewis, 61 111. 299, 
 2 Sumn. 555. Cook v. Travis, 20 Morrison v. March, 4 Minn. 422. Bid- 
 N. Y. 400. McMechan v. Griffing, 3 well v. Coleman, 11 Id. 88. Pro- 
 Pick. 156. Scott V. Gallagher, 14 S. & peller v. Fitzhughj 12 How. 458. Hood 
 R. 333. Ware v. Lord Egmont, 4 De v. Fahnestock, i Penn. 470. Dickey 
 G. M. & G. 473. Atty.-Gen. v. v. Lyon, ig Iowa, 504. , 
 Stephens, 6 Id. 481. Butrick v. Hoi- * Buler v. Stevens, 26 Me. 484. Bell 
 den, 3 Mete. 355. Dexter v. Harris, v. Twilight, 31 N. H. 50. Wright v. 
 2 Mason, 536. Smith v. Lambeth, 15 Wood, 23 Penn. 13O. Rupert v. Merk, 
 La. 566. Montefiore v. Brown, 7 H. 15 111. 540. Boggs v. Warner, 6 W. 
 L. Cas. 241. Wilson v. Miller, 10 & S. 69. Hewes v. Wiswall, 8 Me. 
 Iowa, III. 94. Campbell v. Brackenridge, 8 
 
 2 lU. Cent. R. R. ,. McCuUough, Blackf 471. 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 497 
 
 have constructive notice, as he is bound to have made in- 
 quiry from the tenant, which would have led him to a knowl- 
 edge of it.' A notice that part of the estate is in possession 
 of a tenant is notice of a lease, or that it is in possession of 
 a person named, and his under-tenants." But where the legal 
 title is apparently in the husband, and is ostensibly as much 
 in his possession as that of the wife, a purchaser 6n an exe- 
 cution against him, will not, by her possession merely, be 
 charged with notice of any equitable interest she may have 
 in the land,' whether the notice be by lis pendens or other- 
 wise, it must be sufficiently full and explicit to give the re- 
 quisite information.* 
 
 § 334. Of recorded or registered instruments and 
 CONVEYANCES. Priority is given to conveyances first regisr 
 tered,so that a subsequent purchaser for value having the legal 
 €State, although he has not notice of an equitable estate pre- 
 viously registered, will be bound by it. The rule is the same 
 in regard to deeds made of property sold on execution.' The 
 
 ' Daniels v. Davidson, 16 Ves. 249. 
 Lewis V. Bond, 18 Beav. 85. Wilbra- 
 ham V. Livesy, 18 Id. 206. Allen v. 
 Anthony, i Mer. 282. Crofton v. 
 Ormsby, 2 S. & L. 583. Meux v. 
 Maltby, 2 Swanst. 281. Powell v. 
 Dillon, 2 Ball & B. 416. Bailey v. 
 Richardson, 9 Hare, 734. 
 
 ^ McCall V. Yard, 3 Stockt. (N. J.) 
 58. McKee v. Wilcox, 11 Mich. 358. 
 Brown v. Gaffney, 28 111. 149. Stew- 
 art V. I^cSweeney, 14 Wis. 468. 
 James v. Lichfield. L. R. 9 Eq. 51. 
 Hull V. Noble, 40 Me . 480. Dickey 
 V. Lyon, 19 Iowa, 544. 
 
 ' Thomas v. Kennedy, 24 Iowa, 
 397. 
 
 * Banks v. Ammon, 27 Penu. 172. 
 Mundy v. Vawter, 3 Gratt. 318. Lally 
 V. Holland, i Swan, 396. Dey v. 
 Dunham, 2 Johns. Ch. 112. Hen- 
 drickson's Appeal, 24 Penn. 363. 
 Friedly v. Hamilton, 17 S. & R. 70. 
 
 32 
 
 Jacques v. Weeks, 7 Watts, 261. 
 Manufacturers' Bank v. Bank of Penn., 
 7 W. & S. 335- 
 
 ' Bushell V. Bushell, I S. & L. 98. 
 Latouch V. Lord Dussany, Id. 159. 
 Drew V. Lord Norbury, 9 Ir. Eq. Rep. 
 171. Thompson v. Simpson, i Dur. 
 & War. 159. Mill v. Hill. 12 Ir. Eq. 
 Rep. 103. Ellis V. Smith, 10 Geo. 
 253. . Hunter v. Kennedy, i Ir. Ch. 
 Rep. 148, Jackson v. Chamberlain, 8 
 Wend. 620. Corbett v. De Cantillon 
 5 Ir. Ch. Rep. 126. Byers v. Wack 
 man, 16 Ohio S. 442. Massey v. 
 Thompson, 2 N. & M. 347. Jackson 
 V. Terry, 13 Johns. 471. Wallace v. 
 Lawrence, i Wash. C. C. 503. Walk- 
 er V. Green, 21 Iowa, 529. Hultz v. 
 Hackley, 63 Penn. 142. Jackson v. 
 Post, 15 Wend. 588. Hosier v. Hall, 
 2 Ind. 556. Potter v. McDowell, 4.3 
 Mo. 93. Massey v. Westcott, 40 III. 
 160. Goup V. Cartier; 35 Penn. 130. 
 
498 
 
 ON EXECUTIONS. 
 
 [Chap. XVIII. 
 
 effect of the recording acts is that unregistered deeds shall 
 be void as against creditors and subsequent purchasers, or as 
 against purchasers only.' The registration of a conveyance 
 duly executed operates as constructive notice to all subse- 
 quent purchasers claiming under the same grantor, of any 
 estate, legal or equitable, in the same property. The con- 
 veyance must be one which the law requires or authorizes to 
 to be registered." The registry of a deed, not executed or 
 acknowledged as the law prescribes, or which the law does 
 not require or authorize, is not even constructive notice to 
 third persons.' The holder of an adverse unrecorded deed, 
 
 ' Wiseman v. Westland, i Y. & S. 520. Peters v. Goodrich, 3 Conn. 
 
 117. Underwood v. Lord Comtownj 
 I S. & L. 40. Hodgson v. Dean, 2 S. 
 & S. 221. Bushell V. Bushell, i Id. 
 98. Doswell V. Buchan's Ex'rs, 3 
 Leigh, 365. 
 
 ' George v. Wood 9 Allen, 80. 
 Cook V. Kell, 13 Ind. 469. Johnson 
 V. Stagg, 2 Johns. 510. Wardwell v. 
 Wadsworth, 20 Id. 663. Parkist v. 
 Alexander, i Johns. Ch. 394. Berry v. 
 Mutual Ins. Co., 2 Id. 603. James v. 
 Morey, 2 Cow. 2i5. Schutt v. Large, 
 6 Barb. 373. Knouff v. Thompson, 
 16 Penn. 357. McMechan v. Griffing, 
 3 Pick. II. Shaw v. Poor, 6 Id. 86. 
 Gushing v. Ayer, 25 Me. 383. Irwin 
 V. Smith, 17 Ohio, 226. Martin v. 
 Sale, I Bailey Eq. i. Siter v. Mc- 
 Clanahan, 2 Gratt. 280. Raynor v. 
 Wilson, 6 Hall, 473. Stuyvesant v. 
 Hall, 2 Barb. Ch. 151. Murray v. 
 Ballou, I Johns. Ch. 556. Keller v. 
 Nutr, 5 S. & R. 246. Lightner v. 
 Mooney, 10 Watts, 412. Bates v. 
 Norcross, 14 Pick. 224. Tilton v. 
 Hunter, 24 Me. 29. Crockett v. Ma- 
 guire, 10 Mo. 34. Liehy v. Wolf, 10 
 Ohio, 83. Tyler v. Hammond, II 
 Pick. 216. Long v. Dollarhide, 24 
 Cal. 218. Vansant v. Davies, 6 Ohio 
 S. 52. Schultze V. Moore, i McLean, 
 
 146. Smith y. Prince, 14 Id. 472. 
 Hughes V. Edwards, 9 Wheat. 489. 
 Thayer v. Kramer, I McCord, 365. 
 Lasselle v. Barnett, I Blackf. 150. 
 Blake v. Graham, 6 Ohio S. 580 
 Crooks V. Douglass, 56 Penn. 51. 
 Barney v. Littell, 15 Iowa. 527. Todd 
 V. Benedict, Id. 591. Bell v. Blaney, 
 2 Murph. 171. Cain v. Jones, 5 Yerg. 
 249. Losey v. Simpson, 3 Stockt. 
 246. Glamorgan v. Lane, 9 Mo. 446. 
 Spofford V. Weston, 29 Me. 145. 
 Evans v. Jones, I Yeates, 172. 
 Heistner v. Fortner, 2 Binn. 40. 
 Frost V. Beekman, i Johns. Ch. 300. 
 Bank v. Patten, I Rob. (La.) 499. 
 McNeely v. Rucker, 6 Blackf. 391 
 Tripe v. Marcy, 39 N. H. 439. 
 vens V. Morse, 47 Id. 532. 
 
 = Blood V. Blood, 23 Pick. 
 Dewitt V. Moulton, 17 Me. 
 McNeil V. Magee, 5 Mason, 
 Sigourney . v. Lamed, 10 Pick. 
 
 Ste- 
 
 80. 
 
 418. 
 
 244. 
 
 ■72. 
 
 Tillman v. Cowan, 20 Miss. 262. 
 Kerns v. Swope, 2 Watts, 418. Cheney 
 V. Watkins, I H. & J. 527. Common- 
 wealth V. Rhodes, 6 B. Monr. 171. 
 Simon V. Brown, 3 Yeates, 187. Gould 
 V. Woodward, 4 Greene (Iowa) 82. 
 Cockey v. Milne, 16 Md. 200. Minor 
 V. Willoughby, 3 Minn. 225. James 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 499 
 
 must show that the purchaser had notice of it.' Where 
 there is a material variance between the record copy and the 
 deed, the record is not constructive notice." An invahd 
 prior attachment is not notice.' 
 
 § 335- Judgments as regards preference over unre- 
 corded CONVEYANCES. The lien of a judgment not creating 
 any interest in land, until after a sale and conveyance thereof, 
 will not have precedence over an unrecorded deed or mort- 
 gage, so as to confer a paramount title on the purchaser 
 who has either actual or constructive notice thereof; or, if 
 the instrument be recorded prior to a sale on the execution 
 issued on such judgment.* The lien of the judgment is not 
 an interest in the property ; it is neither a general nor specific 
 lien. It is merely a right to make the money -out of the 
 debtor's property. If there be sufficient personal property 
 not exempt by law from execution-sale, it must be satisfied 
 from that ; if there is no personal property, it is a general 
 lien on all the real estate of the defendant, and the only 
 
 V. Morey, 2 Cow. 246. Troup v. rell, 10 Yerg. 146. Hodgson v. Butts, 
 Haight, I Hopk. 61. Frost v. Beek- 3 Cranch, 155. Halstead v. Bank, 4 
 man, l Johns. Ch. 300. Lewis v. J. J. Marsh, 334. Choteau v. Jones, 
 Baird, 3 McLean, 56. Isham v. Ben- n 111. 300. Work v. Harper, 24 Miss, 
 nington, &c. Co., 19 Vt. 230. Thomas 424. Johns v. Rilardon, 3 Md. Ch. 57. 
 V. Grand, &c. Bank, 16 Miss. 201. ' Harper v, Tapley, 35 Miss. 50O. 
 Read v. Cole, 4 Ind. 283. Bumham v. ^ ' Frost v. Beekman, I Johns. Ch. 
 Chandly, 15 Tex. 441. Bossard v. 288. Sawyer v. Crane, 10 Vt. 553. 
 White, 9 Rich. Eq. 483. Parrett v. Baldwin v. Marshall, 2 Humph. 116 ; 
 Shaubhut, 5 Minn. 323. Villard v. Jennings v. Wood, 20 Ohio, 261. 
 Roberts, I Strobh. Eq. 393. Brown v. Miller v. Bradford, 12 Iowa, 14. 
 Budd, 2 Ind. 442. Galpin v. Abbott, * Saco v. Hopkinton, 28 Me. 268. 
 6 Mich. 17. Moore v. Auditor, 3 * Hubbell v. Vaughn, 42 Mo. 138. 
 H. & M. 235. Doswell V. Buchanan, 3 Patten v. McDowell, 43 Id. 93. 
 Leigh. 365. Harper v. Reno, I Free. Valentine v. Havener, 20 Id. igg. 
 Ch. 323. Goep V. Gartizer, 35 Penn. Miller v. Sherry, 2 Wall. 244. Chip- 
 no. Piper V. Hilliard, 52 N. H. 209. man v. Coats, 26 Iowa, 288. Hoy v. 
 Shultz V. Moore, I McLean, 521. Allen, 29 Id. 208. Thomas v. Ken- 
 Heistner v. Fortner, 2 Binn, 40. nedy, 24 Id, 397. Evans v. McGlason, 
 Strong V. Smith, 3 Id. 262. Duphey 18 Id. 151. Welton v. Tissard, 10 Id. 
 V. Frenaye, 5 S. & P. 215. Carter 495. Parker /. Pierce, 16 Id. 227. 
 V. Champion, 8 Conn. 548. Sumner v. Bell v. Evans, 10 Id. 353. Morton v. 
 Rhodes, 14 Id. 135. Gait v. Dob- Williams, 9 Id. 528. 
 
500 ON EXECUTIONS. [Chap. XVIII. 
 
 interest the execution-plaintiff has is in his lien, not in the 
 property, as property. The judgment-creditor has neither a 
 jus in re nor a Jus in rem, as regards the defendant's prop- 
 erty. He has a lien which the law gives him a right to sat- 
 isfy out" of the defendant's property.' 
 
 The question of a judgment, although without notice, is 
 not in many states regarded .as a purchase, so as to entitle 
 the creditor to a preference over prior equities and unre- 
 corded conveyances,' except where, by express statutory 
 provisions, they are entitled to such preference ; registra- 
 tion being essential to give them validity as against credi- 
 tors.' A personal judgment is notice ; ' and this principle is 
 applicable to personal property.' 
 
 § 336. Effect of notice to purchaser. Having shown 
 what is, and what is not, notice to a purchaser, we are now to 
 consider what effect notice has upon a purchaser. Where a 
 party purchases, with notice of prior incumbrances, he takes 
 subject to all prior incumbrances and equities.' A purchaser, 
 
 ' Greenmyer v. Ins. Co., 62 Penn. Mayham v. Coombs, 14 Ohio, 428. 
 
 342. Conard v. Ins. Co., i Pet. 384. Davidson v. Cowen, I Dev. Eq. 470. 
 
 Kemper v. Bailey, 5 McLean, 507. Stanley v. Reily, 5 Me. 399. Odiorne 
 
 Shaffer v. Caldwallader, 36 Penn. 126. v. Mason, 9 N. H. 24. Coflfin v. Ray, 
 
 Thellusson v. Smith, 2 Wheat. 396. I Mete. 212. McClure v. Thistle's 
 
 ' Jackson v. Town, 4 Cow. 599. Exors, 2 Gratt. 182. Hopping v. 
 
 Jackson v. Post, 9 Id. 120. White v. Burnham, 2 Iowa, 109. Hays v. Mc- 
 
 Denman, i Ohio S. 110. Coleman v. guire, 8 Yerg. 92. Miller v. Estell, 
 
 Cock, I Rand. 618. Buchan v. Sum- Id. 452. McCuUough v. Somerville, 8 
 
 ner, 2 Barb. Ch. 165. Ash v. Living- Leigh. 415. Mallory v. Stodder,. 6 
 
 ston, 2 Bay. 80. Massey v. McUvain, Ala. 801. Smith v. Lurch, 9 Id. 208. 
 
 2 Hill Ch. 426. Orth v. Jennings, 8 Center v. Bank, 22 Id. 743. Hunter 
 
 Blackf. 420. Williams v. Hollings- v. Watson, 10 Cal. 363. 
 worth, I Strobh. Eq. 103. Bank v. * Williams v. Murphy, 36 Tex. 167. 
 
 Gourdin, i Spear Eq. 20. Bank v. Hargrove v. De Lisle, 32 Id. 170. 
 Campbell, 2 Rich. Eq. 179. Jackson ' Langton v. Horton, I Hare, 549. 
 
 V. Du Bois, 4 Johns. 216, Cover v. Mitchell v. Winslow, 2 Story, 630. 
 Black, I Penn. 493. Shryock v. « Peterson's Estate, 25 Penn. 71. 
 
 Wagoner, 25 Penn. 430. Watkins v. Green v. Watrous, 17 S. & R. 393. 
 
 Wassell, 15 Ark. 73. Lewis v. Hall, 3 Halst. Ch. 107. 
 
 ' Edwards v. Brinker, 9 Dana, 69. Friedly v. Sheetz, g S. & R. 156. 
 
 Semple v. Burd, 7 S. & R. 286. Jordan v. Hudson, 11 Tex. 82. Long- 
 
 Friedly v. Hamilton, 17 Id. 70. worth v. Screven, 2 Hill (S. C.) 298. 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 501 
 
 pendente lite is subject to an eviction by a habere facias, with- 
 out being made a party.' A purchaser of the interest of a 
 tenant in common, is bound by the decree.' A purchaser with 
 notice of deed or lease is bound by all its contents ;' but a du- 
 ly registered conveyance passes no title whatever when tak- 
 en with a knowledge of the existence of a prior unregistered 
 conveyance.* This rule applies to unrecorded mortgages"." 
 
 Hart V. Homiller, 23 Penn. 39. Weid- 
 ler V. Farmers' Bank, II S, & R. 156. 
 Tunstall v. Trappes, 3 Sim. 287. 
 Smith V. Painter, 5 S. & R. 222. Goff 
 V. O'Connor, 16 111. 421. Bartlett v. 
 Gale, 4 Paige, 503. Dewalt's Appeal, 
 21 Penn. 236. Bush v. McKay, 5 Bush. 
 475. Mayer V. Hinman, 13 N.Y. 180. 
 Lloyd V. Conover, I Dutch. 47. Cole- 
 man V. Lewis, 27 Penn. 291. Byers 
 V. Engles, 16 Ark. 543. Oberthier v. 
 Stroud, 33 Tex. 522. Baldwin v. 
 Leftwitch, 12 Ala. 831. Devine's Ap- 
 peal, 30 Penn. 348. Byrod's Appeal, 
 .31 Id. 241. Bennett v. Calhoun, &c. 
 Ass. 9 Rich. Eq. 163. Choquette v. 
 Barada, 28 Mo. 491. Castleberry 1. 
 Weaver, 30 Geo. 534. Stilwell v. Mc- 
 Donald, 39 Mo. 282. Johnson v. 
 Crawley, 25 Geo. 316. Blankensip v. 
 Douglass, 26 Tex. 225. James v. 
 Jacques, Id. 321. Baker V. McLellan, 
 30 Cal. 125. Byers v. Wackman, i5 
 Ohio S. 442. Darling v. Hammer, 20 
 N. J. Eq. 220. Kilgore v. Beck, 40 
 Geo. 293. Blivins v. Johnson, Id. 
 297. Doe V. IngersoU, 19 Miss. 249. 
 
 ' Long V. Norton, 2 A. K. Marsh. 
 39. Steele v. Taylor, I Minn. 274. 
 
 ' Spring V. Sandford, 7 Paige, 550. 
 McLin V. Williams, 28 Geo. 482. 
 Denton v. Wood, 19 La. 356. 
 
 * Taylor v. Stibbert, 2 Ves. Jr. 437. 
 Hall V. Smith, 14 Ves. 426. Pope v. 
 Garland, 4 Y. & C. 394- Walter v. 
 Maunde, i J. & W. 181. ' Spinner v. 
 Walsh, 16 Ired. Eq. R. 386. Tanner 
 
 V. Florence, I Ch. Cas. 259. Lewis v. 
 Bond, 18 Beav. 85. Wilbraham v. 
 Livesey, Id. 296. Martin v. Cotter, 3 
 S. & L. 506. Vignolles v. Bowen, 12 
 Ir. Eq. Rep. 194. Vaugh v. Magill, 
 Id. 200. Stewart v. Marquis of 
 Conyngham, I Ir. Ch. Rep. 207. 
 Smith V. Capron, 7 Hare, 191. Drys- 
 dale V. Mace, 2 S. M. &G. 225. Neale 
 V. Hagthorp, 3 Bland. 531. Hagthorp 
 V. Hooks's Adm'r's, I G. & S. 270. 
 Oliver v. Piatt, 3 How. 333. Mason 
 V. Fayne, Walk. Ch. 459. Johnston 
 v. Gwathney, 4 Litt. 317. Christmas 
 V. Mitchell, 3 Ired. Eq. 535. Sigourney 
 V. Mann, 7 Conn. 324. Nelson v. 
 Allen, I Yerg. 360. Johnson v. 
 Thwaett, 18 Ala. 741. Graves v. 
 Graves, I A. K. Marsh. 165. Honore 
 V. Blakewell, 6 B. Monr. 57. Waites 
 V. Cooper, 24 Miss. 208. Harris v. Fly, 
 7 Paige, 421. McAteer V. McMuUen, 
 2 Penn. 32. Bonner v. Ware, 10 Ohio, 
 465. Brush V. Ware, 15 Peters, 93. 
 Urkett v. Coryell, 5 W. & S. 60. 
 
 * Jackson v. Sharp, 9 Johns. 163. 
 Jackson v. Leek, 19 Wend. .339. 
 Farnsworth v. Child, 4 Mass. 637. 
 Warnock v. Wightman, i Brev. 331. 
 Van Meter v. McPadden, 8 B. Monr. 
 442. Schutt V. Large, 6 Barb. 673. 
 Ohio Ins. Co. V. Ledyard, 8 Ala. 866. 
 Jackson v. Sharp, 1 Johns. 466. 
 
 ' De Vendal v. Malone, 25 Ala. 272. 
 Woodworth v. Guzman, I Cal. 203. 
 Warburton v. Lowman, 2 Iowa, 420. 
 
602 
 
 ON EXECUTIONS 
 
 [Chap. XVIIl. 
 
 § 337. A person who purchases an estate, although for a 
 valuable consideration, after notice of a prior equitable right, 
 makes himself a maid fide purchaser, and will not be enabled, 
 by obtaining the legal estate, to defeat such prior equitable 
 interest, but will be held a trustee for the benefit of the person 
 whose right he sought to defeat. Fraud or ma/d fides is the 
 true ground on which the court is governed in cases of notice.' 
 A purchaser having notice of an equitable lien for unpaid pur- 
 chase-money will be bound by it." And a purchaser with no- 
 tice of a trust will be bound by it." Where a person purchases 
 an estate which he knows to be in the occupation of another 
 I than the debtor, he is bound by all the equities which the 
 ' party in such occupation may have in the land, for possession 
 is prima facie seizin ;* and if purchased with notice of such 
 
 McRaven v. McGuire, 17 Miss. 34. 
 Ingram v. Phillips, 3 Strobh. 555. 
 Newman v. Chapman, 2 Rand. 93.- 
 Bailey v. Wilson, i Dev. & B. Ch. 32. 
 Ten Eyck v. Simpson, i Sand. Ch. 242. 
 Porter v. Cole, 4 Me. 20. Doe v. Reed, 
 5 111. 117. Rupert V. Marks, 15 Id. 540. 
 Martin v. Sale, I Bailey Eq. I. Jack- 
 son V. Paige, 4 Wend. 585. Tuttle v. 
 Tackson, 6Id. 213. Parkes v. Jackson, 
 II Id, 442. Pike V. Armstead, i Dev. 
 Kq. no. Copeland v. Copeland, 28 
 Me. 255. Fowke v. Woodward, I 
 Spears Ch. 225, Warren v. Scott, 31 
 N. H. 332. Parker v. Kane, 4 Wis. i. 
 ' Brice v. Brice, 5 Barb. 533. Pugh 
 V. tiell, I J. J. Marsh. 403. Liggett v. 
 Wall, 2 A. K. Marsh. 28. Denn v. Mc- 
 Knight, 6 Halst. 385. Duval v. Bibb, 4 
 H. & M. 119. Pierson v. Ives, i Yerg. 
 29. Massey v. Mcllvaine, 2 Hill Ch. 
 426. Le Neve v. Le Neve, Amb. 436. 
 Smith v. Daniel, 2 McCord Ch. 149. 
 Wormley v. Wormley, 8 Wheat. 421. 
 Caldwell v. Carrington, 9 Peters, 86. 
 Langdon v. Woodcock, 2 B. Monr. 105. 
 Moreland v. Lemasters, 4 Blackf. 383. 
 Murray v. Ballou, I Johns. Ch. 566, 
 
 Methodist Church v. Jaques, Id. 65. 
 Gximstone v. Carter, 3 Paige, 421. 
 Governeur v. Lynch, 2 Id. 300. Mur- 
 ray V. Finster, 2 Johns. Ch. 155. 
 
 " Mackreth v. Symmons, 15 Ves. 
 320. Grant v. Mills, 2 V. & B. 306. 
 
 * Dunbar v. Tredennick, 2 Ball & 
 B. 319. Pawlett V. Att.-Gen., Har4. 
 465. Burgess v. Wheate, I Eden. 195. 
 Bovey v. Smith, i Vern. 149. Mansell 
 V. Mansell, 2 P. Wms. 681. Phayre 
 V. Perce, 3 Dow. 129. Adair v. Shaw, 
 I S. & L. 262. Wigg V. Wigg, I Atk. 
 384. Mead v. Lord Orrey, 3 Id. 235. 
 Saunders v. Dehew, 2 Vern. 27c. 
 Mackreth v. Symmons, 15 Ves. 320. 
 Price V. McDonald, I Md. 403. Hud- 
 son v. Warner, 2 H. & G. 415. Rus- 
 sell V. Patrie, 10 B. Monr. 184. 
 
 ^ Sailor V. Hertzog, 4 Whart. 259. 
 Wood V. Turner, 7 Watts, 486. Diehl 
 V. Page, 2 Green Ch. 143. Bailey v. 
 White, 13 Tex. 114. Baldwin v. John- 
 son, Saxt. 441. Disbrow v. Jones, 
 Harring. Ch. 48. Baynard v. Norris, 
 5 Gill, 468. Webber v. Taylor, 2 
 Jones Eq. 9. Landes v. Brant, 10 
 How. 375. Bailey v. Richardson, 9 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 
 
 503 
 
 irregularities as will avoid the sale, the purchaser obtains no 
 title ;' but liens subordinate to the judgment are of no avail 
 to the prejudice of the purchaser," as the title depends upon ' 
 the lien of the judgment on which the execution was issued." 
 § 338. Effect where a purchaser has no notice. The 
 rule of law that a purchaser with notice takes subject to all 
 ■claims and equities, is almost the same in cases where he 
 has no notice, the change is but slight, and that change is 
 thaf the purchaser obtains the title and estate free from all 
 prior unrecorded conveyances and equities, of which he has 
 no notice. The principle applies to all purchasers, whether 
 at execution or private sale. The law protects their rights, 
 but he must be a bona fide purchaser, a purchaser in good 
 faith, and for a valuable consideration.* And this rule applies 
 
 Ha. 734. Leach v. Auspacher, 55 Penn. 
 85. Allen V. Anthony, I Mer. 282. Phil- 
 lips V. Coster, 40 Ala. 486. Nelson v. 
 Wade, 21 Iowa, 49. Glidewell v. 
 Spaugh, 26 Ind. 319. Aldrich v.Aldrich, 
 37 111. 32. McCaskle v. Amarine, 12 
 Ala. 17. Rogers V.Jones, 8 N. H. 270. 
 Crews V. Burchard, I Black, 352. Haw- 
 ley V. Bullock, 29 Tex. 216. Chesterman 
 V. Gardner, 5 Johns. Ch. 29. Gouver- 
 neur v. Lynch, 2 Paige, 300. Grimstone 
 -V. Carter, 3 Id. 421. Krider v. Lafferty, 
 I Whart. 303. Lightner v. Mooney, 10 
 Watts, 407. McCuUough v. Cowper, 5 
 W. & S. 427. Jacques v. Weeks, 7 Watts, 
 261. Lewis V. Bradford, 10 Id. 67. Kerr 
 V. Day, 24 Penn. 112. Macon v. Shep- 
 ard, 2 Humph. 335. Hardy v. Simmons, 
 10 G. & J. 316. Hackwith v. Damron, I 
 Monr. 235. Knox v. Thompson, I Litt. 
 350. Buck V. HoUoway, 2 J. J. Marsh. 
 163. Miller v. Shackelford, 4 Dana, 264. 
 Burt V. Cassidy, 12 Ala. 734. Scroggins 
 T. Dougal, 8 W. 382. Brice v. Brice, 5 
 Barb. 535. Dixon v. Doe, 9 Miss. 70. 
 Witter V. Hightower, 14 Miss. 345. Ar- 
 •genbright V.Campbell, 3 H. & M. 144. 
 Johnston v. Glancy, 4 Blackf. 94. Web- 
 ster V. Maddox, 6 Me. 256. Knox v. 
 
 Plummer, 7 Id. 464. McLaughlin v. 
 Shepherd, 32 Id. 143. Hanly v. Morse, 
 Id. 287. Tuttle V. Jackson, 6 Wend. 
 213. Jenkins v. Bodley, S. & IVt. Ch. 338. 
 Harris v. Carter, 3 Stew. 233. Buck- 
 ingham V. Smith, 10 Ohio, 288. Pat- 
 ten V. Hollidaysburg, 40 Penn. 206. 
 Hughes V. U. S., 4 Wall. 232. More- 
 land V. Lemaster, 4 Blackf. 383. Lea 
 V. Polk, &c. Co., 21 How. 499. Gris- 
 wold V. Smith, 10 Vt. 452. Morgan v. 
 Morgan, 3 Stew. 383. Walker v. Gil- 
 bert, I Free. Ch. 85. Smith v. Shane, 
 I McLean, 22. Brown v. Anderson, i 
 Monr. 193. Taylor v. Stibbert, 2 Ves. 
 Jr. 437. Crofton v. Ormsby, 2 Sch. & 
 L. 583. Powell V. Dillon, 2 Ba. & B. 
 416. Greenwood v. Bairstow, 5 L. J. 
 Ch. N. S. 179. Jones v. Smith, i Ha. 
 60 Atty.-Gen. V. Stephens,! K. & J.750 
 Holmes v. Powell, 8 D. M. & G. 580. 
 
 ' King v. Cushman, 41 111. 31. 
 
 » Martin v. Martin, 7 Md. 368. 
 
 ' Roberts v. Boylan, 24 Geo. 40. 
 
 * Massey v. Westcott, 40 111. 160. 
 Fosdick V. Barr, ' 3 Ohio S. 471. 
 Stewart v. Freeman, 22 Penn. 120. 
 Wood v. Chapin, 13 N. Y. 509. Kil- 
 1am v. Janson, 17 Penn. 467. Goupv. 
 
504 
 
 ON EXECUTIONS. 
 
 [gHAP. XVIII. 
 
 when the judgment-creditor becomes the purchaser, because 
 the money which he pays is used in satisfaction of the debt,, 
 and every additional bid is. an advantage to the defendant 
 in the judgment ; ' but he does not become a bona fide pur- 
 chaser at a sale upon his execution of property fraudulently 
 purchased by the judgment-debtor." A bona fide purchaser 
 for value, without notice, is a good defense, not only against 
 all prior equities, but against all adverse proceedings to 
 compel the purchaser to surrender what he has purchased,* 
 and is equally available to his grantee.* 
 
 Gartier, 35 Id. 130. McFadden v. 
 Worthington, 45 111. 368. Ins. Co. v. 
 Ledyard, 8 Ala. 866. Orth v. Jennings, 
 8 Blackf. 420. Waldo v. Russell, 5 
 Mo. 387. Parker v. Pierce, i6 Iowa, 
 227. • Butterfield v. Walsh, 21 Id. 97. 
 Jackson v. Chamberlain, 8 Wend. 620. 
 Den V. Rickman, i Green (Iowa) 43. 
 Heistner v. Fortner, 2 Binn. 40. 
 Jones V. Powles, 3 My. & K. 581. 
 Charlton v. Low, 3 P. Wms. 328. 
 Shine v. Gough, i Ball & B. 436. 
 Jackson v. Town, 4 Cow. 599. Jack- 
 son V. Post, 9 Id. 120. Scribner v. 
 Lockwood, 9 Ohio, 184. Mann's Ap- 
 peal, I Penn. 24. Walker v. Elston, 
 21 Iowa, 529. Vanice v. Beyer, 16 Id. 
 555. Evans v. Glasson, 18 Id. 150. 
 Norton v. Williams, 9 Id. 529. Hart 
 V. Felder, 4 Dess. 202. Boynton v. 
 Winslow, 37 Penn. 315. Johnson v. 
 Garrett, I Green (N. J.) 31. Ayres 
 V. Duprez, 27 Tex. 593. Irwine t. 
 Campbell, 6Binn. n8. Dewitt v. Har- 
 vey, 4 Gray, 486. Harrison v. 
 Hollis, 2 Nott. & M. 578. Draper 
 V. Bryson, 26 Mo, 108. Sevier v. 
 Ross, I Free. Ch. 519. Duval v. 
 Waggoner, 2 B.Monr. 183. Emerson 
 V. Littlefield, 12 Me. 148. Daniel v. 
 Sorrells, 9 Ala. 43^. Chambers v. 
 Stone, Id. 260. Clarke v. Campbell, 
 
 2 Rawle, 215. Connors v. Wilson, i 
 Ind. 356. 
 
 ' Wood v. Chapin, 13 N. Y. 509.. 
 Wood V. Moorhouse, 1 Lans. 405 
 Butterfield v. Walsh, 21 Iowa, 98. 
 Evans v. McGlasson, 18 Id. 150. 
 
 ' Devoe v. Brandt, 53 N. Y. 463. 
 Earl v. Wilsmore, i B. & C. 514. 
 Nichols V. Michael, 23 N. Y. 264.- 
 Hennequin v. Naylor, 24 Id. 139. 
 
 ' Brown v. Budd, 2 Ind. 442. Uere 
 <i. McKnight,6 Halst. 385. Mundine 
 V. Pitts, 14 Ala. 84. Heilnerv. Imbrie,. 
 
 6 S. & R. 401. Howell v. Ashmore,, 
 
 7 Stockt. 82. Jones v. ZoUicoffer, 2: 
 Taylor, 214. Demarest v. Wynkoop,. 
 
 3 Johns. Ch. 147. High v. Batte, 10. 
 Yerg. 335. Woodruff v. Cooke, I 
 Gill. & J. 270. Whittick v. Kane, Id.. 
 202. Owings V. Mason, 2 A. K. Marsh. 
 380. Goodtitlev. Cummings, 8. Blackf. 
 179. Varick v. Briggs, 6 Paige, 232. 
 Thompkins v. Powell, 6 Leigh. 576. 
 Hughson V. Mandeville, 4 Dess. 87. 
 Maywood v. Lubcock, i Bail. Eq. 382.. 
 
 * Fletcher v. Peck, 6 Cranch, 87. 
 Alexander v. Pendleton, 8 Id. 462. 
 Vattier v. Hinde, 7 Pet. 252. Boone 
 V. Chiles, 10 Id. 177. Dana v. New- 
 hall, 13 Mass. 498. Boynton v. Rees, 
 
 8 Pick. 329. Connecticut v. Bradish^ 
 14 Mass. 296. Filby v. Miller, 2S 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 506 
 
 § 339. Failure to record deeds as to subsequent 
 
 PURCHASES. A purchaser at an execution sale, who fails to 
 record his deed, and the same land is subsequently sold, the 
 last purchaser having no notice of the prior sale, takes a title 
 unaffected by it ;' nor is he affected by any secret or parol 
 transfer;' or where the execution is paid, and the judgment 
 satisfied before sale.° The principle that a purchaser with- 
 out notice takes a title free from unrecorded conveyances, 
 is applicable in cases of sales of personal property, where 
 there is an unregistered mortgage.* Where a senior judg- 
 ment is marked " satisfied," and a sale made on a writ of 
 execution issued on a junior judgment, the purchaser takes 
 the property free from the senior judgment, though the 
 entry of satisfaction is made by mistake, the record being as to 
 the purchaser conclusive,' a purchaser in good faith from the 
 purchaser at the execution sale, without notice, takes a good 
 title, though his vendee be chargeable with notice of an out- 
 standing unrecorded title.' But this principle that a purchaser 
 is protected by the recording acts against an outstanding title, 
 of which he has neither actual nor constructive notice, can 
 not be so applied as to convert ari equitable into a legal estate.* 
 
 Penn. 264. TruH v. Bigelow, 16 '' Boynton v. Winslow, 37 Penn 
 
 Mass. 406. Rutgers v. Kingsland, 3 315. Clark v. Campbell, 2 Rawle, 
 
 Halst. Ch. 178. Blight's Heirs v. 215. Johnson v. Garrett, I Green 
 
 Banks, 6 Monr. ig8. Halstead v. (N. J.) 31. Ayres v. Duprez, 27 Tex. 
 
 Bank of Ky., 4 J, J. Marsh. 554. Galla- 593. Daniels v. Sorrells, 9 Ala. 436. 
 
 tian V. Erwin, Hopk. 48. Bumpus v. Chambers v. Stone, Id. 260. Irvine 
 
 Plainer, i Johns. Ch. 213. Demarest v. Campbell, 6 Binn. 118. 
 
 V. Wyncoop, 3 Id. 147. Varick v. ' Bishops v. Gregory, 5 B. Monr. 
 
 Briggs, 6 Paige, 323. Lacy v. Wilson, 359. 
 
 4 Mumf. 413. Griffith v. Griffith, 9 * Gurrant v. Anderson, 4 Rand. 208. 
 
 Paige, 315. Curtis v. Larnier, 6 Jordan v. Mead, 12 Ala. 247. Raiford 
 
 Mumf. 42. Brackett v, Miller, 4 W. v. Wood, 14 La. 216. Massey v. 
 
 & S. 102. Mott V. Clark, 9 Penn. 399. Thompson, 2 N. & M. 347. Harrison 
 
 ' Dewitt V. Harvey, 4 Gray, 486. v. Kramer, 3 lovira, 543. 
 
 Harrison v HoUis, 2 Nott. & M. 578. ' Coyne v. Souther, 6l Penn. 455. 
 
 Draper v. Bryson, 26 Mo. 108. * Moore v. Curry, 36 Tex. 668, 
 
 Sevier v. Ross, i Free. Ch. 519. Parmlee v. Sloane, 37 Ind. 469. 
 
 Duvall v. Waggoner, 2 B. Monr. 183. ' Morrison v. Funk, 23 Fenn. 
 
 Emerson v. Littlefield, 12 Me. T48. 421. 
 
506 ON EXECUTIONS. [Chap. XVIII. 
 
 A purchaser for value at an execution sale, without notice 
 of the extrinsic facts which are relied upon to impeach 
 the judgment can not be affected thereby. No principle of 
 law is better settled than that a purchaser at an execution 
 sale, without notice, under proceedings regular upon their 
 face, and had in a court of competent jurisdictioi;, is not 
 affected by any mere error of the court, for which the judg- 
 ment might be reversed upon appeal, nor for any secret 
 vice in the judgment, not appearing upon the face of the 
 record, and which can be made to appear only by the pro- 
 duction of extrinsic evidence. He is bound at his peril to 
 inquire whether it sufficiently appears on the face of the 
 record that the court had jurisdiction to render the judg- 
 ment, and that it is a valid execution. But nothing more 
 is required of him. There would be no security in titles ac- 
 quired at judicial sales, if the rights of 6ona Jide purchasers, 
 without notice, could be overthrown by subsequent proof 
 that the judgment was obtained by fraud, or that the record 
 which shows due service upon the defendant, was, in fact, 
 false. The repose of titles, and, indeed, every consideration 
 of pubHc policy, demands tltat a purchaser at a judicial sale, 
 without notice, under proceedings regular upon their face, and 
 by a court of competent jurisdiction, should be protected, as 
 against mere errors of the court, and against secret vices in 
 the proceedings, founded on fraud, accident, or mistake, and 
 which can only be made to appear by the proof of extreme 
 facts not appearmg upon the face of the record. No pru- 
 dent person would purchase at an execution sale, if he in- 
 curred the hazard of losing his money in case it should be 
 made to appear that the judgment was obtained by perjury 
 or other fraudulent practices ; or that the record on which 
 he relied as proving a service on the defendant was, in fact, 
 false.' In opposition to this doctrine is that where there is 
 an unauthorized appearance by an attorney, and judgment 
 rendered, and a sale on execution issued on the judgment, 
 the defendant not being amenable to the jurisdiction of the 
 ' Hayden v. Hoyden, 46 Cal. 33. 
 
Chap. XV.III.] RIGHTS OF PURCHASERS. 507 
 
 court, no right passes to the purchaser under the sale. No 
 court can validate a judgment void for want of jurisdiction, 
 although there has been a sale under it." 
 
 § 340. Of the rights of purchasers to relief. The 
 right of a purchaser extends only so far as he has purchased 
 without notice, and when he is affected with such notice that 
 his purchase affords him no relief, he may still be entitled 
 to be subrogated to the rights of the judgment-debtor.' A 
 purchaser upon a sale under a void execution, who has paid 
 the purchase-money in good faith, without actual knowledge 
 of the invalidity of the process, to the party who procured the 
 sale the latter knowing that the sale gave no title, can 
 maintain an action against such party to recover back the 
 purchase-money. The action lies for money paid by mis- 
 take, or upon a consideration which happens to fail, or for 
 money got through imposition, or extortion, or oppression, 
 or an undue advantage taken of a party's situation, contrary 
 to laws made for the protection of persons under these cir- 
 cumstances, and a sale made with such knowledge on the 
 part of the party who causes it to take place, renders him 
 liable in an action for money had and received. Knowledge 
 will not, in such cases, be imputed to the purchaser, in order 
 to hold the payment a voluntary one;' but if such pur- 
 chaser loses his title in consequence of the neglect of the 
 officer to comply with the requirements of the law, the 
 purchaser has an action against the officer.* Where land is 
 sold subject to a vendor's lien, and it is so stated at the sale, 
 and the vendor .has no title, or it is so defective that the 
 
 ' Shelton V. TrifEn, 6 How. 163. loog. Chapman v. City, &c., 40 N. 
 
 Harshey v. Blackmar, 20 Iowa, l6l. Y. 372. Kingston Bank v. Eltinge, 
 
 Bryant v. Williams, 21 Id. 329. Rob- Id. 391. Kelly v. Solair, 9 M. & W. 
 
 erts V. Stowers, 7 Bush, 295. Leach 54. Bails v. Lloyd, 12 Q. B. 531. 
 
 V. Leach, 10 Ind. 271. Townsend v. Crowdy, 8 Com. B. (N. 
 
 ' Henderson v. Downing, 24 Miss. S.) 476. Miller v. Duncan, 6 B. & C. 
 
 106. Jacques v. Weeks, 7 Watts, 671. Rheel v. Hicks, 25 N. Y. 289. 
 
 261. Bank, &c. v. Union Bank, 3 Id. 230. 
 
 ' Schwinger v. Hickock, 53 N. Y. Howard v. North, 5 Tex. 290. 
 
 380. Moses V. McFarlane, 2 Burr. * Sexton v. Nevens, 20 Pick. 451. 
 
508 ON EXECUTIONS. [Chap. XVIII. 
 
 purchaser can take no title, relief will be granted to such 
 purchaser.' Where a party is substituted for the origi- 
 nal purchaser at an execution sale, he is investetl with all 
 the rights, remedies, and interest of the party in whose 
 stead he is substituted ; " and if his title fails, the original 
 purchaser is not liable to him,' The general rule estab- 
 lished by courts is, that a purchaser at an execution sale 
 has no claim upon the plaintiff, or the defendant, at law, for 
 the return of the purchase-money, where the sale is void or 
 no title passes ;* nor can he be subrogated to the rights of 
 the plaintiff, for the plaintiff has no rights — the application of 
 the purchase-money on the judgment extinguishes his rights 
 and the judgment to the amount paid.' The application of 
 the maxim, caveat emptor, governs such cases ; but, in equity, 
 the purchaser is entitled to recover of the debtor the 
 amount paid for his use and benefit in the satisfaction of 
 his debt." A plaintiff who becomes the purchaser upon a 
 sale made by reason of his having indemnified the officer, 
 is not entitled to relief.' Before a purchaser evicted from 
 property purchased by him can demand a reimbursement of 
 the price paid, from the plaintiff, he must have failed to 
 recover it from the debtor on execution issued for that pur- 
 pose.' In order that the debtor may recover the property 
 purchased at an invalid execution sale, he must refund the 
 price paid by such purchaser in discharge of the judgment, 
 and if the plaintiff is the purchaser, he must be reinstated 
 in his rights under the judgment discharged.' While a plain- 
 tiff would obtain no title under an erroneous execution, a 
 
 ' Horton v. Myers, 25 Geo. 8g. • McGee v. Ellis, 2 Litt. 244. 
 
 ' Winner v. Obear, 23 Mo. 242. Muir v. Craig, 3 Blackf. 293. Pres- 
 
 Cravens v. Gordon, 53 Id. 287. ton v. Harrison, g Ind. I. Penning- 
 
 « Cravens v. Gordon, 53 Mo. 287. ton v. Clifton, 10 Id. 172. Richmond 
 
 *Dunn V. Frazier, 8 Blackf. 432. v. Marston, 15 Id. 134. 
 
 Julian V. Beal, 26 Ind. 220. Haw- ^ McCartney v. King, 25 Ala. 681. 
 
 kins V. Miller, Id. 173. 8 Haynes v. Courtney, 15 La. 
 
 'Lawes v. Thompson, 4 Jones L. 630. 
 
 104. Richmond v. Marston, 15 Ind. » Andrews v. Richardson, 21 Tex. 
 
 '34- 287. Morton v. Welborn, Id. 772. 
 
CHAP.XVIII.j RIGHTS OF PURCHASERS. 509 
 
 stranger would and will be entitled to protection. A cred- 
 itor is entitled to make an application to the court to vacate 
 a levy and sale of property in which a debtor has no title or 
 interest. This is applying to the court to correct its own 
 records. A power which may be lawfully exercised by a 
 court on petition, or motion, upon a proper "showing." 
 Where, after a purchase is made, it is discovered that by 
 reason of a mistake in the description of the premises, it 
 does not cover the entire tract thereby intended to be con- 
 veyed, by reason whereof the legal title fails, the purchaser 
 is entitled to protection in the peaceable possession of the 
 land purchased.' At a sale under a decree, a purchaser will 
 not be required to complete a sale which can not be com- 
 pleted by specific performance.* A purchaser is not entitled 
 to relief where he pays more for property than it is worth, 
 unless he is influenced by fraud or artifice.' He stands as 
 he did before the sale in regard to any fraud that would 
 defeat the judgment.' 
 
 § 341. Rights of purchasers. The purchaser, upon 
 receiving the deed becomes the absolute owner, and on enter- 
 ing into possession is entitled to the rents and profits, and 
 nothing is left in the former owner or his judgment-creditor.' 
 In some states he is entitled to rents from the day of sale ;' 
 but not where the tenant has become surety for the lessor to 
 the amount of his rent.' If he gives the tenant notice to 
 quit he is entitled to rent from the time of the acknowledg- 
 ment of the deed until the date of removal." But is not en- 
 titled to possession until the deed is executed." Where a pos- 
 sessory claim of a settler is sold and he afterwards enters 
 
 ' Waite V Dolby, 8 Humph. 406. ' Clark v. Boyreau, 14 Cal. 634. 
 
 ' Tudor V. Taylor, 26 Vt. 444. Den- Bonell v. Dewalt, 37 Penti. 136. 
 
 nis V. Arnold, iz Melc. 449. Cline v. Chase, 17 Cal. 596. Andrews 
 
 ' Waldron v. Lee, 2 McCarter, 126. v. Richardson, 21 Tex. 281. Stuyton 
 
 * Laight V. Pell, i Ed. Ch. 577. Her- v. Morris, 4 Harring. 224. 
 
 nandez v. Creditors, 14 La. Ann. 337. ' FuUerton v. Shauffer, 12 Penn. 220. 
 
 ' Del., &c. Co. V. Blair, 4 Dutch. 139. " Stockton's Estate, 3 Brews, 
 
 • Leach v. Leach, 10 Ind. 271. (Penn.) 320. 
 
 ' Spoor V. Phillips, 27 Ala. 193. " Myers v. Manny, 63 111. 211. 
 
510 ON EXECUTIONS. [Chap. XVIII 
 
 the same .ana as a homestead, the purchaser is entitled to 
 the rents and issues between the time of sale, and the entry 
 of the party to homestead it.' In others he is not entitled 
 to receive, the rent as against the owner, until after confir- 
 mation." In New York, until after the delivery of the deed.' 
 At an invalid sale, he is entitled to possession until the sale 
 is set aside ;* but if between the time of sale, and the date 
 of the order annulling it, a stranger, without the knowl- 
 edge of the purchaser, takes possession of the premises^ 
 the purchaser will not be liable for waste or rent if he was 
 in no manner connected with the acts of the tenant.' If the 
 interest of the debtor in land is sold before such interest is 
 ascertained, and the purchaser takes possession of it, he will 
 be liable for it and the rents." If the purchaser makes im- 
 provements thereon after an action brought to annul the sale 
 he will not be entitled to relief;' but if lawfully in possession,, 
 and he erects temporary buildings, and the property is re- 
 deemed, he may remove the buildings ;' or if the debtor owns 
 the buildings, and not the land, and they are sold on a lien 
 against them, he may enter on the land to remove the 
 buildings.' Where confirmation is required, the purchaser 
 obtains no rights until after the sale is confirmed, and if the 
 confirmation is refused, the rights of the purchaser fall to 
 the ground." Until confirmation it is an executory contract, 
 open to objection, and should not be enforced, if the en- 
 forcement be inequitable and against good conscience." If 
 the purchaser is allowed to retain the amount of prior mort- 
 gages, as part of the price, he is bound for the interest 
 which accumulates on such mortgage debts after the sale ; " 
 
 ' Emerson v. Sansom, 41 Cal. 552. ' Geoghegan v. Ditto, 2 Mete. (Ky.) 
 
 ' Armstrong y. McClure, 4 Heisk- 433. 
 
 80. ' Tyler v. Decker, 10 Cal. 435. 
 
 ' Cheney v. Woodruff, 45 N. Y. 98. ' Dean v. Pyncheon, 3 Chand. 
 
 * Andrews v. Richardson, 21 Tex. (Wise.) 9. 
 
 287. " Taylor v. Gilpin, 3 Mete. (Ky.> 
 
 ' Vulgamore v. Stoddard, si Iowa, 544. 
 115. " Hunting v. Walter, 33 Md. 60. 
 
 • Penn v. Spencer, 17 Gratt. 85. " Yeatman v. Erwin, 14 La. 149. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 511 
 
 and if the sale is made subject to a mortgage, and he subse- 
 quently sells, his grantee takes it subject to the same mort- 
 gage, and can not deny that it was not made subject to it." 
 Where two parties purchase land subject to a mortgage, 
 which is a common incumbrance on the land of both, they 
 stand on a level, and must pay off the mortgage in propor- 
 tion to the value of their respective lots.' A purchaser, 
 though he pays no money, has an insurable interest in the 
 property.' It is held, that after acquiring title, he is not 
 entitled to the proceeds of the insurance policy, in case of 
 loss by fire.* If the debtor has been the reputed owner f6r 
 many years, and exercised acts of ownership, the purchaser 
 obtains such a title as will authorize him to redeem land 
 sold for taxes;* but under a deed of trust he does not ac- 
 quire the legal estate by the officer's deed." He holds adverse 
 possession against the former owner, and all claiming under 
 him.' Where the judgment is against an heir, his title is no 
 better than if he bought direct from the heir.' A judicial 
 sale is necessary to protact him.' As long as a sale is not 
 set aside by the court in a direct action, the purchaser may 
 invoke that title against a seizure made by the original 
 owner." After paying the full purchase-price, purchasers 
 should not thereafter be exposed to molestation by parties 
 entitled to portions of the purchase-money." The rule that 
 a prior purchaser, under a junior execution, acquires a bet- 
 ter title than a subsequent purchaser, under a senior writ, 
 applies with still greater force, where the writs are of equal 
 tested* Where an execution-creditor becomes the purchaser, 
 he is protected against the equities of other parties, unless 
 
 ' Crooks V. Douglass, 56 Penn. 51. ' Anderson v. HoUoman, I Jones L. 
 
 * Carpenter v. Koons, 20 Penn. 169. 
 
 222. ' Stils V. Jones, 4 B. Monr. 375. 
 
 ' ^tna Ins. Co. v. Miers, 5 Sneed, ' Vansickle v. Richardson, 13 III.171. 
 139. » U. S. V. Samperyac. i Hempv 
 
 * Plimpton V. Fanners', &c. Co. 43 118. 
 
 Vt. 497. '" McClendon v. Kemp, 18 La. 162. 
 
 ' Shearer v. Woodburn, 10 Penn. " Salter v. Church, 18 La. Ann, 662. 
 
 511. " Isler V. Moore, 67 N. t. 74. 
 
612 ON EXECUTIONS. [Chap. XVIII 
 
 the eg^uities of such adverse parties are so strong and per- 
 suasive as to prevent the application of the rule, which in- 
 disputably obtains as to strangers to the suit.' Where a 
 purchaser has notice of alleged incumbrances, which do not 
 exist at the time of sale, he can not be compelled to take 
 the land at his bid, and the amount of such alleged incum- 
 brances.' 
 § 342. Of irregularities in the proceedings, and 
 
 HOW THEY AFFECT PURCHASERS' TITLES. Courts of justice 
 guard and maintain, with jealous vigilance, the titles of pur- 
 chasers acquired under judicial sales.' It is the policy of the 
 law that their rights should be protected. An officer derives 
 his power to sell on execution from the judgment and execu- 
 tion, and not from the statute ; therefore a sale is valid, 
 though the statutory requirements have not been complied 
 with' — the statutory provisions being regarded as merely 
 directory. The principles upon which the adjudications of 
 courts, as to the validity of execution sales rest, are that pur- 
 chasers must have the means of knowing what property is to 
 be sold, so as to form some estimate of its value. 2nd. There 
 must be such a description as shall identify the land, and pre- 
 vent one piece from being sold, and a distinct piece conveyed.' 
 There must be a power subsisting in the officer at the time 
 he executes a deed, or no title passes. A purchaser under a 
 power purchases at his peril, and there being no subsisting 
 power of authority, no title is acquired, unless in cases where 
 the doctrine of estoppel is applicable, as where a debtor 
 stands by and permits a party in good faith to purchase his 
 
 ' Butterfield v. Walsh, 21 Iowa, 97. Wood v. Chapin, 13 N. Y. 5og. Evans 
 
 Walker v. Elston, Id. 529. v. Parker, 20 Wend. 622. Neilson v. 
 
 '^ Gregg V. Strange, 3 Ind. 366. Neilson, 5 Barb. 565. May v. Thomas, 
 
 ' Benningfield v. Reed, 8 B. Monr. 48 Me. 395. Shaffer v. Bolander, 4 
 
 102. Dorsey v. Kendall, 8 Bush. 294. Greene (Iowa) 201. Coriell v. Ham, 
 
 Elliott V. Knott, 14 Md. 421. Id. 455. Newton's Heirs v. State 
 
 * Minor v. Natchez, 18 Miss. 246. Bank, 22 Ark. 19. Blood v. Light, 38 
 
 Cavender v. Smith, I Iowa, 306. Cal. 649. 
 
 Hayden v. Dunlap, 3 Bibb, 216. « Gibbs v. Thompson, 7 Humph. 
 
 Beeler v. Bullett, 3 A. K. Marsh. 281. 179. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 613 
 
 property.' If the policy of the law were otherwise than to 
 uphold sales made by ministerial officers upon legal process, 
 no one could be induced to purchase property at execution 
 sales ; and if, after a sale has been made and ratified, where 
 this requirement is necessary, and a deed issued to the pur- 
 chaser, such purchaser should at any time be liable to have 
 the property bought in good faith taken from him for the 
 neglect or omission of the officer making the sale, there 
 would be no security in titles. The reason for this policy of 
 the law. is, therefore, a niatter of necessity and protection. 
 Courts in their adjudications haye wisely determined that 
 such omissions and irregularities as might have been good 
 cause for setting aside a sale before its confirmation upon 
 the retijrn of the officer's proceedings, and before. the rights 
 of parties would be seriously affected thereby, will not be 
 allowed to vitiate a sale or deprive a party of his rights. If 
 a purchaser's title were to depend upon mere questions of 
 the officer's compliance with the statutory requirements 
 directing him how to proceed in the execution of final pro- 
 cess, and proof aliunde admissible to show that an officer 
 neglected or omitted to perform any one of the statutory 
 directions, or if complied with, were not strictly in accord- 
 ance with the statute, a purchaser would be in constant 
 danger of having his title defeated by parol evidence. It is 
 , upon these grounds that irregularities are held not to affect a 
 a bona fide purchaser, without notice. So that, as a general 
 rule, it may be laid down, that where an officer sells prop- 
 erty by public auction on judicial process, he being authorized 
 by law, and having an official jurisdiction over the proceed- 
 ings, such sale will pass the debtor's title to a bona fide 
 purchaser, notwithstanding the directions of the law have 
 not been complied with. That is, mere irregularities of the 
 officer will not vitiate the title of such purchaser.' When 
 
 • Wood V. Colvin, 2 Hill, 566. Blood v. Light, 38 Cal. 649. May v. 
 
 Stafford v. Williams, 12 Barb. 240. Thomas, 48 Me. 395. ShafFer v. Bo- 
 
 " Oakey v. Aiken, 12 La. 11. lander, 4 Greene (Iowa) 201., Coriell 
 
 Brace v. . Shaw, 16 B. Monr. 43. v. Ham, Id. 455. NewtoTi's Heirs v. 
 
 33 
 
614 
 
 ON EXECUTIONS. 
 
 [Chap. XVIII. 
 
 not caused by the agency of the purchaser. Apurchaser is not 
 bound to show that the debtor had personal property suffi- 
 cient tosatisfy the judgment, as it makes no difference to him, 
 that being a matter between the debtor and the officer, and 
 if a sale is made of real estate when there is personal property 
 
 State Bank, 22 Ark. Ig. Allen v. 
 Portland Stage Co., 8 Me. 207. Wil- 
 liams V. Gill, 5 J. J. Marsh. 487, 
 Bearfield v. Stevens, i Harp. Ch. 52. 
 McNair v. Biddle, 8 Mo. 257. Beeler 
 V. Bullitt, 3 A. K. Marsh, 280. Giles 
 V. Pratt, I Hill (S. C.) 239. Barkley 
 V. Screven, I Nott. & M. 408. Bran- 
 don V. Snows, 2 Stew. 255. Stone v. 
 Ebberly, i Bay. 317. Small v. Mick- 
 ley, I S. & R. 95. Hamilton v. 
 Shrewsbury, 4 Rand. 427. McClure 
 V. McCormack, 5 Blackf. 129. Outcalt 
 V. Disbrough, 2 Green Ch. 114. Lam- 
 bert V. Paulding, l8 Johns. 311. 
 McElwee v. Sutton, 2 Bailey, 361. 
 Woodcock v. Bennett, I Cow. 711. 
 Wood v. Genet, 8 Wend. 9. Jackson 
 V. Rosevelt, 13 Johns. 97. Jackson v. 
 Walker," 4 Wend, 462. Jackson v. 
 Caldwell, i Cow. 622. Wood v. Moor- 
 house, I Lans. 405 ; S. C, 45 N. Y. 388. 
 Evans v. Parker, 20 Wend. 622. Neil- 
 son V. Neilson, 5 Barb. 565. Jackson 
 V. Bartlett, 8 Johns. 281. Wood v. 
 Chapin, 13 N. Y. 509. Jackson v. 
 Delaney, 13 Johns. 537. Floyd v. 
 McKinney, 10 B. Monr. 89. Allen v. 
 Parish, 3 Ohio, 187. Kinney v. 
 Knoebel, 47 111. 417. Stow v. Steele, 
 45 Id. 328. Phillips v. Coffee, 17 Id. 
 154. Durham v. Heaton, 28 Id. 264. 
 Ware v. Crawford, 2 Ala. 676. Lovell 
 V. Powell, 5 Id. 58. Stewart v. Sever- 
 ance, 43 Mo. 322. Simpson v. Simp- 
 son, 64 N. C. 427. Hinds v. Scott, II 
 Penn. 19. Armstrong v. Jackson, I 
 Blackf. 210. Dunn v.i Meriwether, I 
 I A. K. Marsh. 158. Anderson v. 
 
 Clarke, 2 Swan, 156. Willard v. 
 Whipple, 40 Vt. 219. Wheaton v. 
 Sexton, 4 Wheat, 503. Landes v. 
 Brant, 10 How. 371. Herrick v. 
 Graves, 16 Wis. 157. ManvHer v. 
 Cook, Id. 465. Burnton v. Emerson,. 
 4 Greene (Iowa) 397. Cavender v. 
 Smith, I Iowa, 306. Hopping v. 
 Burnham, 2 Greene (Iowa) 39. Stein 
 V. Chambliss, 18 Iowa, 474. Childs v. 
 McChesney, 20 Id. 431. Butterfield 
 V. Walsh, 21 Id. 97. Cunningham v. 
 Felker, 26 Id. 117. Hubbard v. 
 Barnes, 29 Id. 239. Oxley v. Mizzle, 
 3 Murph. 256. Smith v. Kelly, Id. 
 507. Thompson v. Hodges, Id. 546. 
 Ludden v. Kincaid, 45 Me. 411. 
 Lewis V. Phillips, 17 Ind. 108. How- 
 ard V. North, 5 Tex. 290. Sydnor v. 
 Roberts, 13 Id. 598. Wagner v. Du- 
 bois, 19 Ohio, 67. Whale v. Booth, 4 
 Dougl. 36. Newton v. State Bank, 
 14 Ark. 9. McFee v. Harris, 25 Penn.. 
 102. Minor v. Natchez, 12 Miss. 602. 
 Sanders v. Norton, 4 Monr. 464. -Sun- 
 ner v. Moore, 2 McLean, 59. Ran- 
 dolph v. Carlton, 8 Ala. 606. Carr v. 
 Glasscock, 3 Gratt. 343. Dean v. 
 Connelly, 6 Penn. 239. Hand v. 
 Grant, 18 Miss. 514. Natchez v. 
 Minor, Id. 246. Costillo v. Thomp- 
 son, 9 Ala. 937. Chambers v. Stone, 
 Id. 260. Miles v. Knott, 12 G. & J. 
 442. Kirkpatrick v. Black, 10 Watts, 
 329. Wood V. Doane, 20 Vt. 612. 
 Ingram v. Belk, 2 Strobh. 20^. 
 Springer v. Brown, 9 Penn, 305. 
 Spafford v. Beach, 2 Doug. 130. Cttrd 
 V. Lackland, 45 Mo. 451. 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 615 
 
 sufficient to satisfy the execution, it is not void, this being one 
 of the statute directions ;' nor is it vitiated by mere irregularity 
 in the proceedings on which the execution is founded, unless 
 the proceedings are null and void;' or upon an irregular exe- 
 cution ;' or an irregular levy ;* or by a departure from the 
 mode of advertising pointed out by statute, or omission to 
 give the requisite notice of sale ;' where the requisite notice 
 to the debtor or tenant was not given ;" nor where the 
 judgment is paid before sale where no satisfaction appeared on 
 the record ;' or where an execution is returned satisfied when 
 it really is not, a purchaser takes the property upon which the 
 judgment is a lien, discharged from such incumbrance ;' or 
 where the entry of satisfaction is set aside after return and 
 sale ;• or though the execution be subsequently quashed ;'° or 
 by refusal of the officer to set apart exempt property on de- 
 mand ;" or if made without condemnation or inquisition, as 
 ' Dice V. Penn, 2 Swan, 561. Neil- N. Y. 368. White v. Cronkhite, 35 
 
 son V. Neilson, 5 Barb. 565. Frakes 
 V. Brown, 2 Blackf. 205. Vilas v. 
 Reynolds, 6 Wis. 214. Denham v. 
 Holeman, 26 Geo. 182. Dowdell v. 
 Neal, 10 Id. 148. Cavender v. Smith, 
 I Iowa, 306. Hayden v. Dunlap, 3 
 Bibb, 216. Beeler v. Bullitt, 3 A. K. 
 Marsh. 281. 
 
 ' Anderson v. Clark, 2 Swan, 156. 
 McFee v. Harris, 25 Penn. 102. Park 
 V. Darling, 4 Cush. 197. 
 
 ' Sowles V. Harvey, 20 Ind. 217. 
 Cheesbrough v. Clark, I Root, 141. 
 Wilson V. Nance, 11 Humph. 189. 
 Hadden v. Clark, 2 Grant, 107. 
 Young V. Smith, 10 B. Monr. 293. 
 Trotter v. Nelson, i Swan, 7. 
 
 'Riddle v. Bush, 27 Tex. 675. 
 Forrest v. Camp, 16 Ala. 642. 
 
 ' Minor v. Natchez, 12 Miss. 622. 
 Jones V. Planters' Bank, 3 Humph. 76. 
 Brooks V. Rooney, II Geo. 423. An- 
 drews V. Richardson, 21 Tex. 287. 
 Hendrickson v. St. Louis, &c. Co., 34 
 Mo. 188. Wood V. Moorhouse, 45 
 
 • Ind. 483. Osgood v. Blackmore, 59 
 111. 261. Lawrence v. Speed, 2 Bibb, 
 401. Wheaton v. Sexton, 4 Wheat. 
 503. Mclntire v. Durham, 7 Ired. I51. 
 Maddox v. Sullivan, 2 Rich. Eq. 4. 
 Kilby V. Haggin, 3 J. J. Marsh. 208. 
 Whittaker v. Sumner, 7 Pick. 551. 
 Draper v. Bryson, 17 Mo. 51. Phillips 
 V. Coffee, 17 111. 154. McDonald v. 
 Cook, II Mo. 632. 
 
 • Darby v. Russell, 5 Hayw. 139. 
 Solomon v. Peters, 37 Geo. 251.. 
 Hanks v. Neal, 44 Miss. 212. Drake 
 V. Hall, 38 Mo. 346. Hobein v. 
 Murphy, 20 Mo. 447. Curd v. Lack- 
 land, 49 Id. 451. 
 
 ' Jackson v. Cadwell, i Cow. 622. 
 Dean v. Connelly, 6 Pen'n. 239. Sam- 
 mis V. Alexander, 3 Yeates, 208. 
 Nichols v. Dissler, 2 Vroom, 461. 
 
 • Sevier v. Ross, i Free. Ch. 519. 
 
 • Doughty V. Marsh, II Geo. 277. 
 
 '" Doe v. Snyder, 4 Miss. 66. Adam- 
 son V. Snyder, 10 Ark. 541. 
 
 " Hatch V. Bartle,.45 Penn. 166. 
 
5J6 ON EXECUTIONS. [Chap.XVIII. 
 
 that can be proved aliunde .•' a sale en masse of personal prop- 
 erty contrary to the intent of the statute ;" or where one sale is 
 made of property under several executions ;' selling at an ear- 
 lier hour than usual for an inadequate price, where the sale is 
 legally conducted ;* or where other land than that surren- 
 dered by the debtor is sold ;'• or where a sale is made five 
 years after a levy ;' where the defendant dies between the 
 rendition of judgment and issue of the execution;' where 
 the officer fails to file the certificate of sale ■' where there is 
 nothing to show an appearance of the debtor before a 
 justice of the peace ;' where a receiver has been appointed 
 prior to a sale of which he has no notice ;'° for errors in a 
 judgment of a court of competent jurisdiction ;" a sale made 
 on an alias before a return to the original, or a vaca- 
 tion of the levy under it ;" after the appointment of a guar- 
 dian ad litem, whether such guardian acts or not ;" on extent 
 where two pieces of property are set off, when only one 
 was necessary to satisfy the execution, no title to the 
 other is acquired ;" the interlineation of an immaterial 
 word in an execution after levy ;" or where the property 
 of a surety is sold in place of the principal ;" an amendment 
 of a clerical error in a writ after its issue ;" a variance of a 
 small amount between the execution and the judgment, if 
 the judgment is sufficiently identified, the maxim de mini- 
 mis non curat lex governs in such cases ;" or a recital that it 
 
 ' Meanor v. Hamilton, 27 Penn. • Jackson v. Young, 5 Cow. 269. 
 
 127. Spragg V. Shriver, 25 Id. 282. ' Easterday v. Joy, 14 Ind. 371. 
 
 Thurston v. Barnes, 10 Ind. 289. " Moak v. Coats, 33 Barb. 498. 
 
 ' May V. Thomas, 48 Me. 397. " Seguin v. Maverick, 24 Tex. 526. 
 
 • Locke V. Colman, 2 Monr. I2. " Mace v. Dutton, 2 Ind. 309. 
 
 ■* Reid V. Largent, 4 Jones L. 454. " Foster v. Jones, 23 Geo. 168. 
 
 Hammond v. Scott, 12 Mo. 8. " Hathaway v. Hemingway, 20 
 
 ' Tillotson V. Doe, 5 Blackf. 590. Conn. 191. 
 
 ' Gassaway v. Hale, 3 Hill (S. C.) " Cooley v. Brayton, 16 Iowa, 10. 
 
 889. Trigg V. Ross, 35 Mo. 165. 
 
 'Elliott V. Knott, 14 Md. 128. " Weisiger v. Chisholm, 28 Tex. 780. 
 Harper v. Hill, 35 Miss. 163. Hughes " Cluggage v. Duncan, i S. & R. 
 
 ■ V. Wilkinson, 37 Id. 482. Colborr v. iii. 
 Tumpey, 36 Penn. 463. " Montgomery v. Farley, 5 Mo. 233. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 517 
 
 was rendered a day later or earlier than it actually was.' A 
 purchaser is not bound to see that the court not only had 
 authority to make an order of sale, but that it has pursued 
 that authority with technical nicety, through all the intrica- 
 cies of a chancery suit. He has the right to assume that the 
 Court acted right.' A sale uncier process where it is merely 
 erroneous or voidable, the defects which render it so can 
 only be taken advantage of in a direct proceeding for the 
 purpose of having the errors corrected ; and unless reversed 
 or set aside by the court from which it issued, such process 
 will be deemed valid for all purposes, as regards strangers, 
 in collateral actions, in which no advantage can be taken by 
 reason thereof.' In case of proceedings to set aside a sale, 
 the purchaser and all claiming under him, and the defend- 
 ant are necessary parties to the proceedings.' The distinc- 
 tion between purchasers with and without notice can not 
 be applied to all cases of sales under execution called 
 irregular ;' but the general rule is that a purchaser with 
 notice is not entitled to the same degree of protection that 
 
 In re Becker, 4 Hill, 613. Cunning- Ayres v. Duprez, 27 Tex. 593. Nor- 
 
 hamv. Pelker, 26 Iowa, 117. Merrill ton v. Quimby, 45 Mo. 388. Alderson 
 
 V. Housley, 2 Litt. 277. Southard v. v. Bell, 9 Cal. 321. Hayes v. Shat- 
 
 Pope, 9 B. Monr. 261. Morrison v. tuck, 21 Id. 51. Boggs v. Hargrave, 
 
 Bunce, 9 Dana, 211. 16 Id. 566. Burton v. Lies, 21 Id. 88. 
 
 ' Stewart v. Severance, 43 Mo. 322. Goudy v. Hall, 30 111. 109. Dingle- 
 
 5 Winchester V. Winchester, I Head, dine v. Hershman, 53 Id. 288. Beau- 
 
 460. regard v. New Orleans, 18 How. 497. 
 
 ' Swiggart v. Harber, 5 111. 364. Elliott v. Piersol, I Peters, 340. Grig. 
 
 Cavan^h v. Jakeway, Walk. Ch. 344. non v. Astor, 2 How. 319. Thompson 
 
 Reed v. Austin, 9 Mo. 722. Rigg v. v. Tolmic, 2 Pet. i6g. Boswell v. 
 
 Cook, 9 111. 336. Mobile, &c. v. Sharp, 15 Ohio, 441. Walker v. 
 
 Moore, 9 Port. 679. Crawford v. . Morris, 14 Geo. 32J. Todd v. Dowd's 
 
 Boyer, 14 Penn. 380. Rider v. Mason; Heirs, i Met. (Ky.) 28. "Pursley v. 
 
 4 Sand. Ch. 351, Weir v. Clayton, 19 Hays, 22 Iowa, 128. Frazier v. 
 
 Ala. 132. Byers v. Fowler, 12 Ark. Steenrod, 7 Id. 339. Morrow v. Weed, 
 
 218. Shorter v. Nims, 18 Ala. 655. 4 Id. 77. 
 
 Plodge V. Mitchell, 27 Miss. 560. * Glamorgan v. O'Fallon, 10 Mo. 
 
 Nagle V. Macy, 9 Cal. 426. Grapen- 112. Chambers v. Hays, 6 B. Monr. 
 
 gethei V. Ferjervary, 9 Iowa, 163, 115. 
 
 McClendon v. Kemp, 18 La. 162. ' Cooper v. Hartei:, 2 Ind. 252. 
 
518 ON EXECUTIONS. [Chap. XVIII. 
 
 a purchaser without notice is allowed.' As regards some 
 irregularities, such as an omission to give the required no- 
 tice of sale, the creditor, if purchaser is protected the same 
 as a stranger.'' 
 
 § 343. Of the failure to return an execution, and 
 irregularities in the return, as affecting a pur- 
 CHASER'S Title. The validity of a purchaser's title at an 
 execution sale being unaffected by the failure of the officer to 
 make a seizure of the land in the mode or by the steps pre- 
 scribed by statute, his power to sell being derived from the 
 execution and the judgment, it is not to be measured by 
 his proceedings under the writ. If he sells land by a descrip- 
 tion sufficiently certain, the title of the debtor as against the 
 parties to the writ will pass to the purchaser. His title is de- 
 rived from the sale made by the officer previous to the return. 
 All that the purchaser need know is that the officer has au- 
 thority to sell. He does not depend, in any respect, upon the 
 return of the officer. He is only bound to see that there is a 
 judgment which is not void, and an execution which is regu- 
 lar on its face ; and the acts of the officer may be presumed 
 to be regular. The statutory requirements in regard to 
 the return of a writ being regarded as merely a direction as 
 to the mode of executing it,' it is no part of the pur- 
 
 ' Cooley V. Brayton, 16 Iowa, 10. v. Rooney, 1 1 Geo. 423. Hopping v. 
 Jackson v. Bartlett, 8 Johns. 281. Burnham, 2 Greene (Iowa) 39. State 
 Meyers v. Cochran, 29 Ind. 256. v. Salyers, 19 Ind. 432. Phillips v. 
 Wood V. Colvin, 2 Hill, 566. Coffee, 17 111. 154. Wolf v. Heath, 7 
 2 Wood V. Moorhouse, 45 N. Y. 368. Blackf. 154. Farrar v. Hamilton, i 
 " Blood V. Light, 38 Cal. 649. Tayl. 10. Lynn v. Fisk, 9 B. Monr. 
 Cloud V. Eldorado, 12 Id. 133. Clark 135. Low v. Adams, 6 Cal. 277. 
 V. Lockwood, 21 Id. 224. Smith v. Gibson v. Winslow, 38 Penn. 49. 
 Randall, 6 Id. 50. Webber v. Cox, 6 Hutchins v. Carver, 16 Minn. 13. 
 Monr. no. Hayden v. Dunlap, 3 Hill v. Kendall, 25 Vt. 528. Jackson 
 Bibb. 216. Remington v. Linthicum, v. Streeter, 5 Cow. 529. Woods v. 
 14 Pet. 84. Wheaton v. Sexton, 4 Morrell, i Johns. Ch. 502. Barnes v. 
 Wheat. 503. Stewart v. Severance, 43 Barnes, 6 Vt. 388. Bates v. Carter, 5 
 Mo. 322. Barney v. Patterson, 6 H. Id. 612. Clark v. Foxcroft, 6 Me. 296. 
 & J. 204. Hinds v. Scott, 11 Penn. 19. Ingram v. Belk, 2 Strobh. 207. Jack- 
 Gates V. Gaines, 19 Pick. 485. Brooks son v. Sternbergh. i Johns. 153. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 519 
 
 •chaser's duty to see that the officer makes a return ;' or, if it 
 is made after the execution .of the deed, or the officer's 
 term has expired ;' or is incorrect, irregular, or insufficient." 
 At a sale of personal property the purchaser may prove the 
 levy and sale to have been legal, and he will be- entitled to 
 the property whether a return is made or not, whether the 
 return be true or false, formal or informal.* 
 
 § 344. Rule in the New England States in regard 
 TO THE Return. Under the practice pecuHar to the five 
 states where land is set off in lieu of being sold on execution, 
 it is essential to a title that everything appear of record. 
 The mode in which final process is to be executed is regulated 
 iy statute, and unless substantially conformable thereto, 
 the proceedings of the officer are invalid. The seizure of 
 property is necessary to make the sale legal. Subsequent 
 proceedings to vest title in the purchaser, have reference to 
 the time of seizure, and depend upon the state of the title as 
 it then was." The return of the officer operates as a statute 
 •conveyance of land set off on execution, and his return 
 must show that all the statutory requirements have been 
 ■complied with, and must be recorded or filed in the proper 
 office." The return can neither be explained, altered, or in- 
 validated, as agahist the creditor, nor can any defects therein 
 he supplied by parol ;' but if made at any time prior to its 
 
 Mitchell V. Lipe, 8 Yerg. 179. Gibson » Pope v. Cutler, 23 Me. 105. Kel- 
 
 V. Winslow, 38 Penn. 49. Oviat v. logg v. Wadham, 9 Conn. 201. Met- 
 
 "Vyner, Salk. 318. calf v. Gillett, 5 Id. 400. Pendleton 
 
 ' State V. Salyers, 19 Ind. 432. v. Button, 4 Id. 406. Ladd v. Blunt, 
 
 ' Low V. Adams, 6 Cal. 227. Small 4 Mass. 402. Williams v. Armory, 14 
 
 T. Mickley, i S. & R. 95. Id. 28. Eastman v. Curtis, 4 Vt. 
 
 » Nutter V. Wilson, 32 Md. 297. 616. 
 
 ■Chambers v. Kelly, 12 Mo. 514. Bet- ', Boody v. York, 8 Me. 272. Pitts 
 
 tison V. Budd, 17 Ark. 546, and Note v. Clark, 2 Root, 221. Davis v. May- 
 
 I, supra. nard, 9 Mass. 243. Purrington v. 
 
 * Titcomb v. Ins. Co., 8 Mass. 335 Loring, 7 Id. 246. Wellington v. 
 
 Whiting V. Bradley, 2 N. H. 82. Gale, 13 Id. 483. Williams v. Brackett, 
 
 Borden v. McKinne, 4 Hawks. 279. 8 Mass. 240. Metcalf v. Gillett, 5 
 
 ' U. S. V. Slade, 2 Mason, 75. Ben- Conn. 400. Pendleton v. Bulton, 4 
 
 son V. Smith, 42 Me. 414. Id. 406. Ladd v. Blunt, 4 Mass. 402. 
 
520 ON EXECUTIONS. [Chap. XVI II 
 
 use as evidence of title, though long after the return day, it 
 is good." In Tennessee, a similar frrinciple prevails in regard 
 to the statutory requirements relating to the advertisement 
 of the property prior to sale, and if not in accordance with 
 the statute, parol evidence is admissible to contradict the 
 officer's return, and defeat the purchaser's title." 
 
 § 34$. Of the presumptions made in favor of pur- 
 chasers, AND OF THE APPLICATION OF THE MAXIM, OMNIA 
 PR.ESUMUNTUR RITE ET SOLENNITER ESSE ACTA. In con- 
 nection with the subject of irregularities.which will not vitiate 
 a purchaser's title, the presumptions that the law makes in 
 regard to such irregularities must be considered. The statu- 
 tory requirements regulating proceedings upon execution are 
 duties which the ministerial officerof the court executing its 
 process is required to perform. The general rule of law is that 
 there is no presumption that an officer has neglected his du- 
 ties. Whenever the omission of an act would render the officer 
 guilty of culpable neglect of duty, it ought to be presumed 
 that he has duly performed it. The familiar maxim. Omnia 
 pr'cesumuntur rite et solenniter esse acta, stands for evidence 
 of the fact, in the absence of any other evidence, or unless 
 the contrary be shown {stabit prasumptio donee probitur in 
 contrariam) ; for the presumptions are in favor of the reg- 
 ularity of the acts of the officer.* Among the pre- 
 
 ■Williams v. Armory, 14 Id. 28. East- v. Powell, 2 Cold. 19. Culbertson v. 
 
 man v. Curtis, 4 Vt. 619. MilhoUin, 22 Ind. 362. Turner v. 
 
 ' Prescott V. Peette, 3 Pick. 331. Billagram, 2 Cal. 520. Smith v. Hill,. 
 
 Welsh V. Joy, 13 Pick. 577. Ingersoll 22 Barb. 656. Van Kirk v. Wilde, 1 1 
 
 V. Sawyer, 2 Id. 276. Emerson v. Id. 520. Vaugh v. Biggers, 6 Geo. 
 
 Towle, 5 Me. 197. U. S. v. Slade, 2 188. Titus v. Kimbro, 8 Tex. 210.. 
 
 Mason, 71. Ritter v. Scannell, 11 Cal. 248. 
 
 '^ Lloyd V. Anglin, 7 Yerg. 428. Mit- Thompson v. Tolmic, 2 Pet. 157. 
 
 chell V. Lipe, 8 Id. 179. Rogers v. Jen- Parker v. Kane, 22 How. 14. Sliel- 
 
 nings. 3 Id. 308. Trott v. Gordon, I Id. don v. Wright, 7 Barb. 391. Beau- 
 
 469. Delogny v, Smith, 3 Mil. La. 418. regard v. New Orleans, 18 How. 497. 
 
 ' Jackson v. Shaffer, 11 Johns. 513. Grignon v. Astor, 2 Id. 319. Morrow- 
 Wood V. Chapin, 13 N. Y. 509. v. Weed, 4 Iowa, 77. Little v. Sen- 
 
 * Avery v. Bowman, 39 N. H. 393. nett, 7 Id. 324. Long v. Bennett, 13 
 
 Collins V. Perkins, 31 Vt. 624. Tipton Id. 28. Brooks v. Rooney, 11 Geo. 
 
Chap, XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 521 
 
 sumptions that are made in regard to proceedings relating 
 to final process are : that the issue of the writ is regular and 
 in accordance with law ;' that a levy was made in compliance 
 with the directions in the writ, or after a sale of property ;" 
 that a levy on land is made on account of a want of personal 
 property ;' that the property was advertised ;* or that notice 
 of sale was given to the debtor;' that the appraisement was 
 made ;' or a waiver thereof on a sale without ;' that the 
 appraisers took into consideration everything that would 
 pass with the land in making their appraisement ;' a return 
 that the debtor refused to appoint an appraiser ; that notice 
 was given him ; ' that the appraisers were disinterested ; 
 that they were not disqualified ; '° that a sale was conducted 
 with the necessary preliminary formalities ; " that the exe- 
 cution was regularly returned before others were issued ; '* 
 
 423. Graves v. Hayden, 2 Litt. 61. 
 Nixon V. Bynum, I Bailey, 148. 
 Crosby v. Bustard, Litt. Sel. Cas. 139. 
 Hawley v. Cramer, 4 Cow. 717. 
 Bank of U. S. v. Dandridge, 12 Wheat. 
 69. Davis V. Pratt, 17 C. B. 183. 
 State V. Westbrook, 7 Blackf. 138. 
 Maury v. Cooper, 3 J. J. Marsh. 224. 
 Hartwell v. Root, 19 Johns. 345. 
 Hanson v. Barnes, 3 G. & J. 359. 
 Cantley v. Moody, 7 Port. 443. Snel- 
 grove V. Branch Bank, 5 Ala. 295. 
 Henry v. Ward, 4 Ark. 150. Bryant 
 V. Johnson, 24 Me. 304. Essellman 
 V. Wells, 8 Humph. 482. Huggins v. 
 Ketchurn, 4 D. & B. 414. Brewster 
 V. Vail, I Spencer, 56. Hickman v. 
 Boffin, Hardin, 348. Wray v. Ho- 
 ya-pa-nubby, iS Miss. 452. Doilar- 
 hide V. Muscatine, i Iowa, 158. Rus- 
 sell V. Harris, 38 Cal. 426. Shorey v. 
 Hussey, 32 Me. 279. Houston v. 
 Perry, 3 Tex. 390. Dyson v. Slate, 
 26 Miss. 362. Holmes v. Baldwin, 17 
 Me. 391. Ward v. Burrows, 2 Ohio S. 
 241. Stewart V. Houston, 25 Ark. 311. 
 
 ' Dodge V. Chandler, 9 Minn. 97. 
 Peck V. Cavell, 16 Mich. 9. 
 
 * Evans v. Davis, 3 B. Monr. 344. 
 Hamblen v. Hamblen, 33 Miss. 455. 
 Paxon's Appeal, 49 Penn. 195. Rowan 
 v. Lamb, 4 Green (Iowa), 468. 
 
 " Jones V. Austin, 10 Ired. 20. West 
 V. Cooper, 19 Ind. I. U. S.v. Drennen, 
 I Hemp. 320. 
 
 * McLean v. Moore, 6 Jones L. 520. 
 Drake v. Mooney, 31 Vt. 617. 
 
 » Corriell v. Doolittle, a Green 
 (Iowa), 335. White v. Chestnuts' 
 Lessee, 11 Humph. 79. 
 
 • Mercer v. Doe, 6 Ind. 80. 
 ' Small V. Ely, 9 Ind. 177. 
 
 " Payne v. Farmers' Bank, 29 
 Conn. 415. 
 
 • Fitch v. Tyler, 34 Me. 463. 
 
 '"> McKeen v. Gammon, 33 Me. 187 
 " Childs v. McChesney, 20 Iowa, 
 431. Cole v. Porter, 4 Greene (Iowa), 
 510. Webber v. Webber, I Met. (Ky.) 
 18. Case V. Colston, Id. 145. Vincent 
 V. Evans, Id. 247. 
 " Sellers v. Hays, 17 Ala. 749. 
 
523 ON EXECUTIONS. [Chap. XVIII. 
 
 that a sale was made under a vendi, if the writ is lost :' 
 on a return of nulla bona, that the officer would find the 
 property if there was any ;° that goods were seized before 
 the writ was returnable ;° that alterations were made prior 
 to the return of the writ ;* that a return without any date 
 was made at the proper time ;' that the property levied on 
 was sold, and the proceeds applied to the satisfaction of the 
 execution;" that the particular tract of land described in the 
 return was sold ;' where real estate has been sold ; that it is a 
 fee simple ;' that the money was received before it was paid 
 over;' a return of satisfaction' that the proceeds were paid 
 before the return day, and the mere fact of the date of the re- 
 turn being after the return day, does not rebut the presump- 
 tion ;" thata certificate of sale was given and the considera- 
 tion therefor paid ;" that the officer was authorized to make 
 the deed to the assignee of the purchaser;" where an officer 
 retains an execution that he has collected the money;" that 
 a judgment was recorded, even against a purchaser without 
 actual notice ;" where the writ correctly describes the parties, 
 bears the correct number of the case, it will be presumed to 
 have been issued in such case, between the parties in ques- 
 tion ;" that on a sale of two or more lots, they were offered 
 
 Pollard V. Cocke, 19 Id. 188. Doug- " In re Smith, 4 Nev. 254. Trotter 
 
 lass V. Owens, 5 Rich. 534. v. Nelson, i Swan. 7. Anderson v. 
 
 ' Gaugh V. Henderson, 2 Head. 628. Clark, 2 Id. 156. 
 
 * Gunn V. Howell, 35 Ala. 144. " Conn v. McCoy, 8 Watts, \i'i. 
 
 ' Fitzler v. Patton, 8 W. & S. 455. " Dawkins v. Smith, i Hill Ch. 369. 
 
 * Miller v. Alexander, 13 Tex. 497. " Durham v. Heaton, 28 111. 264. 
 » Price V. Cloud, 6 Ala. 248. Mc- Phillips v. Coffee, 17 111. 154. Shaffer 
 
 Lellan v. Codman, 22 Me. 308. Hoi- v. Bolander, 4 Greene (Iowa), 201. 
 
 lingsworth v. Dickey, 24 Geo. 434. Wilson v. Campbell, 33 Ala. 249. 
 
 ' Johnson v. Tuttle, I Stock. 365. Abels v. Westervelt, 15 Abb. Pr. 230. 
 
 Corning v. Burdick, 4 McLean, 133. Hendrick v. Davis, 27 Ga. 167 
 
 ' Jackson v. Jackson, 13 Ired. 159. Johnson v. Reese, 28 Id. 353. Coffee 
 
 " Doe V. Lane, 11 Miss. 763. v. Silvan, 15 Tex. 354. Peck v. 
 
 ' Ex parte Hanks, 1 Chev. 203. Tiffany, 2 N. Y. 451. Brace v. Shaw, 
 
 '» Barton v. Lockhart, 2 Stew. & P. 16 B. Monr. 43. Little v. Sinnett, 7 
 
 109. Iowa, 324. Bradley v. Keese, 3 Cold. 
 
 " Jefferson Co. v. Ferguson, 13 111. 223. Eakin v. Burger, i Sneed. 418. 
 
 33. Sprott V. Reid, 3 Greene (Iowa), 489. 
 
Chak XVIII.] RIGHTS OF PURCHASERS. 523 
 
 separately." The rule of Omnia rite esse acta does not apply 
 where the fact that the sale was in violation of the statute is 
 apparent on the face of the record, through which the title 
 is claimed." 
 
 § 346. When a purchaser becomes a trustee for the 
 OWNER. If a person at a sale sees that the owner is under the 
 impression that he is purchasing for the owner's benefit, and 
 by means of that impression induces the owner to co-operate 
 with him in purchasing at an inadequate price, he will be 
 deemed a purchaser in trust for the owner ;' or where the 
 bidders stop, knowing that a party has agreed to buy the 
 land for the defendant, and such part)' buys it ;' or by 
 acquiring and holding the legal title under a parol agreement 
 between the owner and purchaser that the land shall be held 
 as security for the money and interest thereon, allowing the 
 owner the right to redeem, creates a trust which will be 
 enforced.' Under an agreement not to bid against one 
 another, being fraudulent when one is to purchase for the 
 benefit of all, and void as contrary to public policy, the 
 purchaser becomes trustee for debtor and creditors ■' where 
 artifice or trick is resorted to to procure property at an ex- 
 ecution sale, the purchaser takes as trustee for the person 
 misled.' So where a tenant for life buys the reversioner's 
 interest he is regarded as a purchaser for the benefit of the 
 reversioner, as well as himself.' But where such purchaser 
 buys without fraud or express trust, pays his own money, 
 and is compelled to buy to save his own title, he can, in no 
 sense, be a trustee of the land of the debtor in the execu- 
 tion, whether that debtor be his own vendor, or any other.' 
 
 ' Love V. Cherry, 24 Iowa, 204. v. Edsall, Id. 249. Hawley v. Cramer, 
 
 ' Piel V. Brayer, 30 Ind. 332. 4 Cow. 717. Packard v. Bird, 40 Cal. 
 
 * Marlatt v. Warwick, 3 Green. 108. 378. 
 
 Brannin v. firannin, Id. 212. ' Faust v. Haas, 73 Penn. Turner 
 
 * Cook V. Cook, 69 Penn. 443. v. Adams, 46 Mo. 95. Sharp v. Long, 
 ' Williams v. Williams, 8 Bush. 241. 28 Penn. 433. 
 
 Harrison v. Soles, 5 Penn. 393. • Daniels v. Myer, 13 B. Monr. 511. 
 
 ' Edsall V. Hamburg Mfg. Co., I ' Thompson v. Adams, 55 Penn. 
 Halst. Ch. 658. Hamburg Mfg. Co. 479^ Sharp v. Long, 28 Id. 433. 
 
524 ON EXECUTIONS. [Chap. XVIIL 
 
 § 347. What passes with the land to a purchas- 
 er AT AN EXECUTION SALE. — CROPS AND FIXTURES, 
 The rule that a purchaser of land buys all that is growing 
 on it, or issuing out of it, belonging to the seller, unless 
 specially exempted, including rent in money or in kind, 
 accruing out of an unexpired term, applies to lands sold at 
 execution sales." A purchaser at an execution sale is not, 
 as a general rule, entitled to the crops, nor the fixtures on 
 the land, if the premises be in the possession. of a tenant. 
 Such tenant has a right to gather the crops and remove his 
 fixtures." If the land is sold subject to redemption, growing 
 crops do not pass; the title, and possession is in the de- 
 fendant until the deed is made. But where they are ap- 
 praised and sold under the appraisement laws, and there is 
 no redemption, they pass to the purchaser.' In Massachu- 
 setts, if the purchaser can get peaceable possession, he is 
 entitled to them.* In other states, they pass with the land 
 if belonging to the debtor, unless specially exempted.' 
 Fixtures annexed to the land by the owner thereof become 
 part of such land, and pass to the purchaser on an execution 
 sale against him." A house on leased land subject to re- 
 moval by its owner does not pass with the land at a sale, 
 if the purchaser has notice.' An exception in a levy 
 on real estate of "buildings" includes, by implication, the 
 land underneath, and such other land as may be neces- 
 
 ' Borrell v. Dewart, 37 Penn. » Jones v. Thomas, 8 Blackf. 428. 
 
 134. * Nichols V. Dewey, 4 Allen, 386. 
 
 ' Citizens' Bank v. Knapp, 22 La. ' Craddock v. Riddlesbarger, 2 
 
 117. Bartlett v. Wood, 32 Vt. 372. Dana, 206. Parham v. Thompson, 2 
 
 Hous V. Showalter, 10 Ohio S. 124. J. J. Marsh, 159. Planteirs, &c. v. 
 
 Bittinger v. Baker, 29 Penn. 64. Walker, 11 Miss. 409. Thompson v. 
 
 Vaugh V. Haldeman, 33 Id. 522. Craignyle, 4 B. Monr. 392. Pitts v. 
 
 Harlan v. Harlan, 20 Id. 303. Parker Hendrix, 6 Geo. 452. Be^r v. Pitier, 
 
 V. Stoits, 15 Ohio S. 351. Jones v. 16 Penn. 175. Borrell v. Dewart, 37 
 
 Thomas, 8 Blackf. 428. Erb v. Erb, Id. 134. 
 
 9 W. & S. 147. Lishey v. Gardner, 3 « Trull v. Fuller, 28 Me. 545. Cor- 
 
 Id., 314. Cassily v. Rhodes, 12 Ohio, lies v. McLagin, 29 Me. 115. Rice v. 
 
 88, Waterfall v. Penniston, 37 Eng. Adams, 4 Harring. 332. 
 
 L. & Eq. 156. ' Coleman v. Lewis, 27 Penn. 291. 
 
Chap. XVIII.] RIGHTS OF PURCHASERS. 525 
 
 sary for their enjoyment, if there be nothing in the descrip- 
 tion to rebut such implication.' An easement appurtenant 
 to a mill, and to the ground on which the mill is situated 
 for the supply of water in connection with the mill and 
 premises, are subject to the lien of a judgment and of exe- 
 cution sale. The judgment covering the land, being the 
 principal thing, draws to it all its appurtenances. They con- 
 stitute one whole, and are rightfully sold together, and pass 
 to the purchaser under the general description of the prop- 
 erty by metes and bounds.' 
 
 § 348. What constitutes a purchaser's title. In 
 regard to the evidence necessary to sustain the title of the 
 purchaser at an execution sale, the adjudications are not as 
 -uniform as might be expected from the uniformity of the 
 adjudications upon other questions arising from the execu- 
 tion of final process. In the New England States, where a 
 purchaser's title is derived under a statute in the nature 
 of an extent, and the land is set off at an appraised value, 
 the purchaser's title is a matter of record, and the rule is 
 that everything essential to the title must appear of record. 
 The officer's return becomes the record, and it must show 
 that every statutory requirement has been complied with. 
 The levy, appraisement, selection of appraisers, and other 
 preliminary steps necessary to vest seizin in the creditor 
 must be shown, and if there be any apparent defect in the 
 mode of compliance, the return must show the cause there- 
 for. Ante, Chapter X. The return of the officer virtually con- 
 stitutes the title, as does the sheriff's return of the inquisi- 
 tion upon the elegit in England.' In other states the rule is 
 
 ' Grover v. Howard, 31 Me. 546. Lull, 20 Vt. 373. Morse v. Childs, 7 
 
 ' Morgan V. Mason, 20 Ohio, 401. N. H. 581. Pope v. Cutler, 23 Me. 
 
 ' Benson v. Smith, 42 Me. 414. 105. Sargent v. Pierce, 2 Mete. 80. 
 
 Williams v. Armory, 14 Mass. 28. Gilman v. Thompson, 11 Vt. 643. 
 
 Wellington v. Gale, 13 Id. 483. Prescolt v. Pettee, 3 Pick, 331. Inger- 
 
 Welsh V. Joy, 13 Pick. 577. Gros- soil v. Sawyer, 2 Pick. 276. Davis v. 
 
 -venor v. Little, 7 Me. 377. Den f. Maynard, g Mass. 242. Williams v. 
 
 Abingdon, Doug. 473. Kellogg v. Brackett, 8 Id. 240. Purrington v. 
 
 Wadhams, 9 Conn. 201. Finch v. Loring, 7 Id. 246. Ladd v. Blunt, 4 
 
 Bishop, 13 Conn. 576. Willard v. Id. 402. Boody v. York, 5 Me. 272. 
 
526 
 
 ON EXECUTIONS. 
 
 [Chap. XVIIL 
 
 that a purchaser has the right to rely upon the judgment of 
 a court of competent jurisdiction, an execution warranted 
 by the judgment, levy (where the judgment is no lien) or 
 sale, and the deed. All other matters, whether irregularly 
 performed or not, in no way affect him. The return is 
 no part of the title, and whether made or incorrect or not 
 made at all, is immaterial ; the rule stated ante, § 345, 
 of Omnia rite esse acta, being applied in such cases." While 
 in other states the application of the principle of Omnia rite 
 acta is carried still further, and only a valid judgment and 
 execution issued upon such judgment is necessary. The 
 presumption that the officer has complied with all the statu- 
 tory requirements, being sufficient evidence when the 
 judgment and execution are shown.' In others, in addi- 
 tion to the judgment, execution, and deed, a sale is nee- 
 
 Emerson V. Towie, 5 Id. igy. Met- 
 calf V. Gillett, 5 Conn. 400. Pendle- 
 ton V. Button, 4 Id. 406. Pitts v. 
 Clark, 2 Root, 221. Eastman v. Cur- 
 tis, 4 Vt. 616. U. S. V. Slade, 2 Mass. 
 
 71- 
 
 ' Jackson v. Spink, 4 Leg. News, 
 309. Kinney v. Knoebel, 47 111. 417. 
 Wheaton v. Sexton, 4 Wheat. 503. 
 Harget v. Blackshear, Tayl. (N. C.) 
 107. Wolf V. Heath, 7 Blackf. 154. 
 Phillips V. Coffee, 17 III. 154. Earl v. 
 Camp. 16 Wend. 563. Mitchell v. 
 Lipe, 8 Yerg. 179. McGuire v. Konns, 
 7 Monr. 386. Cloud v. Eldorado Co., 
 12 Cal. 128. Mayo v. Foley, 40 Id. 
 281. Clark V. Lockwood, 21 Id. 220. 
 Williamson v. Bedford, 10 Ired. igS. 
 Lyerly v. Wheeler, 11 Id. 288. Gross 
 V. Fowler, 21 Cal. 392. Bernal v. Glein, 
 33 Id. 668. Shepherd 1. Rowe, 14 
 Wend. 600. Folson v. Carli, 5 Minn. 
 333. Tullis V. Brawley, 3 Id. 277. 
 Wood V. Colvin, 5 Hill, 228. Riddle 
 V. Bush, 27 Tex. 675. McEntire v. 
 Durham, 7 Ired. 151. Jackson v. 
 
 Young, 5 Cow. 259. Carpenter v. 
 Shaffer, 2 Xnd. 465. Lanning v. 
 Dolph, 4 Wash. C. C. 624. Crane v. 
 Hardy, i Mich. 56. Allen v. Parish, 
 3 Ohio, l88. Shaffer v. Bolander, 4 
 Greene (Iowa) 201. Brooks v- Rooney, 
 II Geo. 423. Sullivan v. Herndon, 
 Id. 294. Landes v. Brant, 10 How.. 
 371. Taylor v. Thompson, 5 Pet. 
 369. GriflSth V. Bogart, 18 How. 158. 
 Remington v. Linthicum, 14 Pet. 84. 
 Summer v. Moore, 2 McLean, 59. 
 Thompson v. Phillips, Bald. 246. 
 Landes v. Perkins, 12 Mo. 254. But- 
 terfield v. Walsh, 21 Iowa, 97. Stein 
 V. Chambliss, i8 Id. 474. Evans v. 
 Davis, 3 B. Monr. 344. Hopping v. 
 Burham, 2 Greene (Iowa) 39. Yates v. 
 St. John, 12 Wend. 74. Jackson v. 
 Hasbrouck, 12 Johns. 203. Carter v. 
 Stimpson, 7 Id. 535. Doe v. Smith,. 
 2 Stark. 199. Glasier v. Eve, i Bing. 
 209. 
 
 ' Leland v. Wilson, 34 Tex. 79^ 
 Bank v. White, Wiight (O.) 51. Heath 
 V. Westervelt 2 Sand. no. Blanchard 
 
Chap. XVIII.] 
 
 RIGHTS OF PURCHASERS. 
 
 537 
 
 essary where he is the plaintiff in the execution.' Pur 
 chasers at an execution sale are not put to the same 
 strictness in proving title as a purchaser would from a pri- 
 vate individual." A stranger need only show the execution, 
 and need not look further than the decree or judgment.' 
 A purchaser of property sold under an execution may de- 
 duce his title from any part of the official proceedings of the 
 officer, and if there be in them evidence showing with cer- 
 tainty, and by a sufficient description, the actual seizure of 
 the property sold, the sale will be effectual, and the title of 
 the purchaser valid in that respect.* To recover possession 
 from a stranger, he must show title in the person against 
 whom the execution issued.' As against heirs or devisees of 
 a former owner, their relation to such owner must be shown, 
 
 V. Blanchard, 3 Ired. 105., Carson v. 
 Doe, 14 Miss. iii. Sanders v. Vance, 
 7 Monr. 209. Carpenter v. Doe, 2 
 Ind. 465. Smith v. Hill, 22 Barb. 
 656. Mercer Vi Doe, 6 Ind. 80. 
 Webster v. Smith, 6 Monr. no. Law- 
 rence V. Spied, 2 Bibb, 401. Draper 
 V. Bryson, 17 Mo. 70. McFadden v. 
 Worthington, 45 111. 362. Dunn v. 
 Merriwether, i A. K. Marsh. 158. 
 Martin v. McCargo, 5 Litt. 293. 
 Smith V. Mormon, I Monr. 154. 
 Riggs V. Dooley, 17 B. Monr. 239. 
 Wilson V. McGree, 2 A. K. Marsh. 602. 
 Cox V. Joiner, 4 Bibb. 94. Bowen v. 
 Bell, 20 Johns. 338. Ferguson v. 
 Miles, 8 111. 358. Cooper v. Galbraith, 
 3 Wash. 546. Whatley v. Newson, 10 
 Geo. 74. Townsend V. Wesson, 4 Duer; 
 342. Hogsett V. Ellis, 17 Mich. 351. 
 Taylor v. Bleight, 3 Mon. 270. 
 
 ' Dobson V. Murphy, i D. & B. 586. 
 Kinman v. Pope, 6 111. 131. Blan- 
 chard V. Blanchard, 3 Ired. 105. Jen- 
 nings V. Stafford, i Id. 464. Duncan v. 
 Duncan, 3 Id. 317. Seechrist v. Bas- 
 Icin, 7 W. & S. 403. Owen v. Barks- 
 
 dale, 8 Ired. 81. Hughes v. Watt, 26 
 Ark. 228. Jackson v. Streeter, 5 Cow. 
 529. Hyman v. Bailey, 13 La. 459. 
 Davis V. Baker, 67 N. C. 388. 
 
 ' Bowman v. Fry, i Yeates, 21. 
 Whatley y. Newsom, 10 Geo. 
 74- 
 
 ' Hopkins v. DeGraffenreid, 2 Bagy 
 441. Foust V. Ross, i W. & S. 501. 
 Hardin v. Cheek, 3 Jones L. 135. 
 Maverick v. Salinas, 13 Tex. 57. Jack- 
 son V. Streeter, 5 Cow. 52p. Bledsoe 
 V. Doe, 5 Miss. 13. Green v. Cole, 13 
 Ired. 423. Simpson v. Hiatt, Id. 40. 
 Rutherford v. Raburn, 10 Id. 144. 
 Grignon v. Astor, 2 How. 319. Bled- 
 soe v. Doe, 5 Miss. 131. Hendrickson, 
 V. St. Louis R. R. Co., 34 Mo. 188. 
 Chasteen v. Phillips, 4 Jones L. 459. 
 Etheridge v. Edwards, I Swan, 426. 
 Roberts v. Boylan, 24 Geo. 400. 
 
 * Nichol v. Ridley, 5 Yerg. 65. Ten 
 Eyck V. Walker, 4 Wend. 462. Pigot 
 v. Davis, 3 Hawks. 25. 
 
 ' Gait V. Lewis, 3 Brev. 261. What- 
 ley v. Newson, 10 Geo. 74. HattJi 
 v. Wagner, 15 111. 127. 
 
628 ON EXECUTIONS. [Chap. XVIII 
 
 and the officer's authority to sell.' A sale under an execu- 
 tion obtained against certain heirs, without naming them, 
 will convey the interest of such heirs." A purchase at an 
 execution sale and recovery of possession by ejectment con- 
 stitutes /rm«y««V a legal title in the purchaser.' After a 
 sale on an execution, a fraudulent deed is color of title.* 
 
 § 349. Rights of debtor after sale. After the com- 
 pletion of sale under an execution the debtor is regarded as 
 a mere tenant at sufferance, a mere occupant, unless he is 
 able to show that for some cause or other, the sale did not 
 pass his estate ; nor does he hold such adverse possession that 
 the purchaser can not convey the estate after he has the offi- 
 cer's deed. The doctrine of adverse possession does apply in 
 such cases, he holds under the purchaser." He can not in an 
 action against the purchaser take advantage of any irregu- 
 larities ; ' nor can he, after the payment by the purchaser of 
 the purchase-money, defeat the purchaser's title by paying 
 off the judgment, set aside the sale, and compel the pur- 
 chaser to look to the plaintiff or officer for reimbursement? 
 Nor can he controvert the purchaser's title, nor has he such 
 an interest as to enable him to move to quash a deed made 
 on the property ; ' nor can he show title in another ;° but he 
 may show that he never had such title as was subject to levy 
 and sale on execution." 
 
 ' Stevens V. Robinson, 3 Monr. 97. • Emley v. Drum, 36 Penn. 123. 
 
 Steele v. Lewis, i Id. 48. Boyd v. Jones, 49 Mo. 202. 
 
 ' Sewell V. Williams, Overt, 273. ' Fleming v. Maddox, 32 Iowa, 495. 
 
 •Clark V. Wright, 8 Humph. 528. ' Hale v. Miller, 15 Vt. 211. Snavely 
 
 Kingsbury v. Lane, 17 Mo. 261. v. Wagner, 3 Penn. 275. Hubbert v. 
 
 ■* Hoke V. Henderson, 3 Dev. 12. McCoUum, 6 Ala. 221. Hailey v. 
 
 Pickett V. Pickett, 3 Dev. 6. .Curry, 3 Strobh. 99. Dunlap v. Cook, 
 
 ' Cook V. Webb, 18 Ala. 810. 18 Penn. 454. Jamison v. Tudor, 3 
 
 Hardy v. Simpson, Busb. L. 325. B. Monr. 355. Cook v. Webb, 18 Ala. 
 
 Foust V. Moorman, 2 Ind. 17. Law ^lo. 
 
 V. Smith, 4 Id. 56. Webb v. Thomp- ' Stuckey v. Croswell, 12 Rich. L. 
 
 son, 23 Id. 428. High v. Holmes, i4Ala. 273. 
 
 350. Swift V. Agnes, 33 Wis. 228. " Cook v. Webb, 18 Ala. 810. 
 
Chap. XIX.] WRIT OF POSSESSION. 629 
 
 CHAPTER XIX. 
 
 OF THE WRIT OF POSSESSION AND ASSISTANCE. 
 
 When awarded. — Who entitled to. — Of the Execution of the 
 Writ. — When it is executed. — Of the Writ of Assistance. — 
 When it will issue. — How Executed. — Who entitled to. — Set- 
 ting it Aside. 
 
 % 3S0. When awarded. — If the plaintiff recovers in a 
 real or mixed action whereby seizin or possession of land is 
 awarded him, the writ of execution is an habere facias seisi- 
 nam, or writ of seizin of a freehold, or an habere facias pos- 
 sessionem, or writ of possession of a chattel interest. The 
 habere facias seisinam and possessionem are judicial writs, 
 which lie for the seizin and possession of lands and tene- 
 ments ; the first in real actions where the freehold is recov- 
 ered ; the last is founded on the ejectione firmcB, in which the 
 party is to be restored to the possession of his term of which 
 he was ousted ; the seizin or possession is usually performed 
 by the sheriff by delivering the party who recovers a twig, 
 bough, clod, &c., of the land ; or if it be a house, by delivery 
 of the ring of the door, &c. The name of the officer to 
 whom it is directed may be inserted after its delivery to 
 him.' The writ of possession is the process under and by 
 virtue of which the sheriff is authorized and commanded to 
 deliver to the plaintiff, in action of ejectment or in an action for 
 dower, the possession of lands recovered in such action. The 
 writ of execution in ejectment is called the writ of habere 
 facias seisinam in the old real action, for, as in the one case» 
 ' Rex V. Harris Leach C. L. 239. 
 
 34, 
 
530 AND ASSISTANCE. [Chap. XIX, 
 
 the freehold being recovered, the sheriff is ordered to give 
 the defendant seizin of the lands in question. So, also, in the 
 other case, the possession being recovered, the sheriff is com- 
 manded to give execution of the possession. The writ of 
 habere facias possessionem issues as a matter of course where 
 the plaintiff recovers judgment upon the verdict of a jury. 
 It is irregular to issue a joint habere facias upon separate 
 judgment in ejectment.' Under this writ it is the duty of 
 the sheriff to remove all persons from the premises described 
 in the writ," and of which possession is to be given, and all 
 goods and property that may be thereon. The plaintiff 
 must be put into full and complete possession of the prem- 
 ises. If there should be several tenements in the possession 
 of several defendants, it is necessary that possession should 
 be given of each, but if there be several tenements in the 
 possession of one defendant, the delivery of possession of 
 one is a good delivery of possession of the whole.'' The words 
 of the writ are quod habere facias possessionem. So that 
 there must be full and actual possession given by the sheriff, 
 and consequently all power necessary for this end must be 
 given him. If, therefore, the recovery be of a house, the 
 sheriff is justified in breaking open the door, if he be denied 
 entrance, because the writ could not otherwise be executed ; 
 the writ is not fully executed until such possession is given, 
 and the plaintiff is left in quiet possession of the premises.* 
 If there be growing crops on the premises recovered, the 
 officer must also deliver them to the plaintiff with the land, 
 and this even though the crops are severed at the time of 
 the execution of the writ, if the severance has occurred since 
 the demise in the declaration.' 
 
 §351. Of the execution of the writ. The sheriff 
 executes the writ under the direction of the plaintiff or his 
 attorney, and he may demand indemnity from the plaintiff 
 previous to the execution of the writ, and where he has to 
 
 ' Lowry v. Jenkins, 3 Bibb, 314. * Kingsdale v. Maren, 6 Mad. 27. 
 
 ' Parker v. Morse, i Leon. 144. ^ Doe v. Witherwick, 3 Bing. 11. 
 
 ' Floyd V. Bethel, 2 Rolle R. 420. Hodgson v. Gascoigne, 5 B. & A. 88. • 
 
Chap. XIX.] WRIT OF POSSESSION. 53] 
 
 deliver possession of a particular number of acres he must 
 estimate them according to the custom of the country in 
 which the lands are situated. The possession to be given by 
 the sheriff is a full and actual possession, and he is armed 
 with all the power necessary to this end. The powers and 
 the duties of the sheriff under the writ of possession are 
 more extensive than in the execution of process generally 
 in civil actions. He may, as in other cases, call to his aid 
 the power of the county in executing the process, if he fears 
 violence, and he may break open all doors necessary to 
 deliver possession, though he should, as in other cases, first 
 signify the cause of his coming, and ask that they may be 
 opened.' An execution should be issued according to the 
 right and justice of what has been really recovered. The 
 plaintiff must be careful not to take out execution for more 
 than he had the right to recover, and that the sheriff may 
 not labor under any difficulty in executing the writ of posses- 
 sion, the practice is, for the plaintiff himself not only to point 
 out to the sheriff that which, in the execution of the writ, he 
 is to deliver him possession of, but to take possession at his 
 peril of that only to which he has title; for should he take 
 possession of more than he has recovered and proved title to, 
 the court will, in a summary manner, interpose and set it 
 right. They will also, if necessary, interfere before the exe- 
 cution of the writ, and restrain the plaintiff from taking 
 possession of more than he is entitled to," and compel him 
 to make restitution of that part not included in the plain- 
 tiff's title.' But the delivery is good to the extent of the 
 recovery.* The writ of possession may be without return 
 day, so that it may be re-executed if the defendant forcibly 
 re-enter, or new process may be awarded by the court, if 
 
 ' Howe V. Butterfield, 4 Cush. 302. Camden v. Haskell, 3 Rand. 465. 
 
 Semayne's Case, 5 Coke, 92. Keith v. Roe v. Dawson, 3 Wils. 49. Doe v. 
 
 Johnson, I Dana (Ky.) 605. Wilson, 2 Stark, 477. Jackson v. Has- 
 
 ' Brooks V. Baldwyn, Barnes, 468. brouck, 5 Johns. 366. Den v. Johnson, 
 
 Jackson v. Van Bergen, I Johns. Ch. 7 Halst. 273. 
 
 loi. * Ball V. Lively, I Dana, 6a 
 
 ' Jackson v. Rathbone, 3 Cow. 2gi. 
 
632 AND ASSISTANCE. fCHAP. XIX. 
 
 the defendant, or one claiming title under him, re-enter." An 
 alias is not generally issuable after the return of the original, 
 and upon a subsequent entry- the plaintiff must f roceed by 
 warrant or other new process. But where the plaintiff is 
 put into possession under circumstances plainly intimating 
 that such possession is but formal and momentary, and he is 
 accordingly ousted oii the same day, such putting in posses- 
 sion is -insufficient, and an alias writ may issue immediately.' 
 A party can not have another execution on the same judg- 
 ment ; the execution of the writ satisfies it, where the ouster 
 occurs after the writ has been fully executed and the plain- 
 tiff has obtained complete possession under it.' Any sub- 
 sequent habere facias on the same judgment is illegal and 
 will be quashed, and parties ousted on such illegal process 
 are entitled to a writ of restitution.* 
 
 §351 A. If the officer be disturbed in the execution of 
 the writ, the court will, upon the proper showing, grant an 
 attachment against the person disturbing him, whether it be 
 the defendant or a stranger, even if it be after the execution 
 of the writ is completed. As where the officer leaves the 
 plaintiff in possession, and the defendant ejects him from 
 such possession, the court will grant an attachment against 
 the defendant. Where the writ is not made returnable, as 
 it seldom is, the officer may, under it, remove the defendant, 
 or one claiming under him, from the premises as often as he 
 intrudes upon them. But if any other person — one not 
 claiming under the defendant, but by and under a different 
 title — be in possession, the officer can not remove him from 
 the premises under such writ. No tenant who was in pos- 
 session of the premises recovered by the judgment anterior 
 to the commencement of the action, can be dispossessed 
 upon a judgment and writ of possession to which he is not 
 
 ' Jackson V. Hawley, n Wend. 182. 407. Rex v. Harris, I Ld. Raymd. 
 
 Doe V. Roe, 14 A. & E. 806. 482. 
 
 5 Gresham v. Thumb, 3 Mete. (Ky.) » Hinton v. McNiel, 5 Ohio, 509. 
 287. Molineaux v. Fulham, Palm. ■* Fowler v. Currie, 2 Dana, 5a. 
 
 289. Doe V.' Roe 2 Dowl. N. S. Dent v. Simmons, 7 J. J. Marsh. 4a. 
 
Chap. XIX.] WRIT OF POSSESSION. 533 
 
 a party. If a tenant, whose possession is distinct from that 
 for which the action was brought, be turned out, he may 
 have a writ of restitution.' Where the landlord defends 
 and pleads for his tenant, the habere facias rightfully issues 
 against the tenant in possession.' Where the premises are 
 in possession of a stranger to the action, claiming by a title 
 paramount to that of the defendant, the plaintiff must resort 
 to other proceedings to obtain possession of the land. 
 Where there is any doubt as to how or by what claim of 
 right a person intrudes upon land, the sheriff can not be 
 compelled, without the direction of the court, to remove 
 such person. In all such cases of doubt, the officer should, 
 before removing the party, require that the plaintiff first 
 apply to the court, on notice to such person, for an order 
 directing the sheriff to remove him. If such an order is 
 made, it will be a protection to the sheriff. If the writ has 
 been returned to the proper office, the duties of the sheriff 
 thereunder are at an end, unless the court direct his return 
 to be stricken out, and the writ returned to him to be 
 further executed." 
 
 § 352. When it is executed. The writ of possession 
 will not be regarded as fully executed until the sheriff and 
 his officers are gone, and tke plaintiff is left in quiet posses- 
 sion of the entire premises.* Possession may be obtained 
 without actual removal of the defendant and his effects, 
 if the defendant acquiesce in the service of the writ.* 
 Turning the defendant out of the house, and putting his 
 goods out ; putting the plaintiff" in, and giving him posses- 
 
 ' Boggs V. Thompson, 2 Ohio, 97. Bland. Ch. 163. Clark v. Parkinson, 
 
 Smith V. Pretty, 22 Wis. 655. Sey- ip Allen, 133. Bush v. Fowler, 36 
 
 mour V. Morgan, 45 Ga. 201. Ex parte 111. 53. Gilcrest v. McGill, 37 Id. 300. 
 
 Reynolds, i Car. 510. Rogers v. Brown v. Betts, 2 Ohio, 97. 
 Parrish, 35 Cal. 127. Hallenbeck v. » Grubbs v. Pickett, I A. K. Marsh. 
 
 Garner, 20 Wend. 22. Birdsall v. 253. 
 
 Phillips, 17 Id. 402. Jackson v. Haw- » Goit v. Dickerman, 20 Wis. 630. 
 ley, II Id. 182. Thomas v. Debaum, * Kingsdale v. Man, 6 Mod. 27. 
 
 1 McCart. 37. Schenck v. Conover, Fowler v. Farnsworth, i Swan, 1. 
 a Beasl. aao. McComb v. Kankey, I ' Smith v. White, 5 Dana, 376. 
 
S34 AND ASSISTANCE. LChap. XIX. 
 
 sion by acts as well as words, though the defendant's goods, 
 are not all removed, is sufficient execution of the writ.' No 
 declaration that an officer may make while executing the 
 writ, can qualify the legal effect of his act." The execution 
 may be made returnable immediately.' To a writ o{ habere 
 facias seisinam, the sheriff can not return that another tenant 
 of the land by right is in possession, for of this there can be 
 no issue taken between them. The sheriff has nothing to 
 do but execute the writ. On disclaiming, the plaintiff may 
 take out execution for the part disclaimed.* Where a sole 
 defendant in ejectment dies after judgment and before exe- 
 cution, the safer way is to sue out a scire facias, or revive 
 the judgment.' Where the judgment in ejectment is against 
 a feme sole, who marries before execution, the plaintiff 
 should issue a habere facias possessionem in the maiden 
 name of the defendant, for the land, and then proceed by 
 scire facias against the husband and wife for costs-.' Where 
 the execution also directs the collection of the costs of the 
 action, the officer's duties are the same as under ordinary 
 writs for the collection of money. 
 
 §353. Of the writ of assistance; when it will 
 issue ; how executed ; who entitled to ; setting it 
 ASIDE. It is SO reasonable a jurisdiction, that the court which 
 causes land to be sold by its judicial process should complete 
 the sale "by putting the purchaser in possession, that courts 
 of chancery will, in such cases, cause possession to be deliv- 
 ered to the purchaser by writ of assistance,' when it is with- 
 held by the defendant or any one who has come into posses- 
 sion pendente lite.' A writ of assistance is the appropriate 
 
 ' Scott V. Richardson, 2 B. Monr. ' Doe v. Butcher, 3 M. & S. 557. 
 
 507. Parker v. Morse, I Leon. 144. ' Kershaw v. Thompson, 4 Johns. 
 ' Wengert v. Zimmerman, 33 Penn. Ch. 6og. Hart v. Linsday, 1 
 
 508. Walker Ch. 144. Garretson v. Cole, 
 » Hudson V. Roe, 18 Q. B. 806. I H. & J. 370. 
 
 * Squires V. Riggs, 2 Hayn. 150. ' C»eighton v. Paine, 2 Ala. 158. 
 
 ' Withers v. Harris, Ld. Raymd. Hallenbeck v. Garner, 20 Wend. 22. 
 
 86. Nolan v. Seekright, 6 Mumf. Cowan v. Sumevalt, I G. & J. 511. 
 
 185. Bradford V.Bradford 5 Conn.127. Frelinghuyseu v. Golden, 4 Paige, 
 
i;hap. XIX.] WRIT OF POSSESSION. 535 
 
 remedy to place the purchaser of mortgaged premises under 
 a decree of foreclosure in possession, after he has obtained 
 the sheriff's deed.' But in so doing it will not interfere 
 with, nor attempt in cases of doubt, to settle the rights of 
 any party claiming possession by title paramount to that of 
 the mortgagee or other party in whose favor the decree was 
 made, or who is not a party to the suit, and who was in 
 occupation at the commencement of the action claiming by 
 an independent title." A writ of assistance is tantamount 
 to the writ o( kadere facias at law ; being a summary rem- 
 edy by which the court puts a purchaser into possession, 
 without a trial of the right, and is only allowed when the 
 case is clear, and upon notice to the persons in posses- 
 sion ;' but it may be issued without notice in Mississippi.' 
 As against a stranger to a decree of foreclosure, a writ of 
 ;assistance can issue only by order of the court.' A clerk 
 cannot issue it without the order of the court." The same 
 principles apply for obtaining possession of real estate of 
 corporations as to individuals.' 
 
 § 354. Who entitled. Prima facie plaintiff in a fore- 
 closure suit is entitled, after sale of the premise,s and the 
 sheriff's deed to him, to a writ of assistance, as against the 
 mortgagor, and those entering under him subsequent to the 
 •decree, if they refuse to surrender possession.' The pur- 
 
 204. Van Hook v. Thiogmorton, 8 Ch. 163. Clark v. Parkinson, 10 
 
 Id. 33. McGowan v. Wilkins, i Id. Allen, 133. Bush v. Fowler, 36 111. 
 
 121. Planters' Bank v. Fowlkes, 4 33. Gilcreest v. McGill, 37 Id. 300. 
 
 Sneed. 461. Oliver v. Caton, 2 Md. Smith v. Pretty, 22 Wis. 655. Beggs 
 
 'Ch. 2q7. Trabue v. Ingles, 6 B. v. Thompson, 2 Ohio, 97. Brown v. 
 
 Monr. 84. Applegate v. Russell, 25 Betts, 13 Wend. 29. Birdsall v. Phil- 
 
 Md. 317. lips, 17 Id. 464. Hallenbeck v. Gar- 
 
 ' Storch V. Carr, 28 Penn. 135. ner, 20 Id. 22. 
 
 Montgomery v. Tutt, 11 Cal. 190. ^ Blanvelt v. Smith, 92 N. J. Eq. 31. 
 
 Wolf V. Fleishacker, 5 Id. 244. Rey- * Harney v. Morton, 39 Miss. 30B. 
 
 ■nolds V. Harris, 14 Id. 677. ' Goit v. Dickerman, 20 Wis. 630. 
 
 ' Rogers v. Parrish, 35 Cal. 27. ' Bruce v. Raney, 18 111. 167. 
 
 Thomas V. DeBaum, i McCarter (N. ' Oakland R. R. Co. v. Keenan, 56 
 
 J.) 37. Schenck v. Conover, 2 Beasley, Penn. ig8. 
 
 220. McComb V. Kankey, I Bland. * Skinner v. Beatty, 16 Cal. 138. 
 
536 AND ASSISTANCE. [Chap. XIX, 
 
 chaser under a writ of foreclosure is entitled to a writ of 
 assistance.' All that is requisite to obtain a writ o assist- 
 ance, as against the parties and those claiming, with 
 notice, under them, after the commencement of the action^ 
 is to furnish to the court proper evidence of a presentation 
 of the deed to them, and a demand of the possession, and 
 their refusal to surrender it.' If delivery of possession to 
 the purchaser is directed by the decree, no preliminary 
 order will be requisite ; but upon proof of disobedience to 
 the decree, the party will be entitled to the writ as against 
 the defendant in the suit.' 
 
 When parties are entitled to it. In Tennessee, the 
 purchaser is entitled to possession as soon as he has. 
 received the legal title." Where the statutes allow a limited 
 time for redemption, the purchaser is not entitled to it until 
 the expiration of such time." A purchaser can not compel 
 possession to be delivered until after confirmation.' In 
 Pennsylvania, the vendee at sheriff's sale, or the grantee of 
 such vendee, may obtain possession by summary process 
 before tv/o justices -of the peace, on giving three months' 
 notice to ^quit.' But he is not authorized to turn out the 
 occupant by force, and put the purchaser in possession in 
 Pennsylvania ;* and he is not obliged to risk or expose his 
 person, or to proceed to a personal conflict with the defend- 
 ant ;° but can not refuse to execute a properly issued writ^ 
 solely on the ground that the party in possession has the 
 best title." The officer must deliver actual possession on 
 the execution of a writ oi liber ari facias, and it must be the 
 same kind of possession which he is bound to give to a 
 
 ' Montgomery v. Middlemiss, 21 ' Gay v. Middleton, 5 Cal. 392. 
 
 Cal. 103. « Crotwell v. Boozer, I S. C. 
 
 ' Montgomery v. Middlemiss, 21 271. 
 
 Cal. 103. ' Brown v. Gray, 5 Watts, 17. 
 
 ' Montgomery v. Tutt, ii Cal. 190. ' Pennsylvania v. Kurkplanch, Ad- 
 Wolf V. Fleishacker, 5 Id. 244. dis, 193. 
 Reynolds v. Harris, 14 Id. 677. » U. S. v. Lowry, 2 Wash. C. C. 
 
 * Lowry v. McDermott, 5 Yerg. 225. 169. 
 
 St. Clair v. Shale, 20 Penn. 105. >» State v. Giles, 10 Wis. 101. 
 
Chap. XIXJ WRIT OF ASSISTANCE. 537 
 
 successful plaintiff in ejectment, under a writ of habere 
 facias^ Possession may be obtained without actual re- 
 moval of the defendant and his effects from the land. If 
 the defendant, acquiescing in the service of the writ, gives up 
 the possession, and it is delivered to the plaintiff or his 
 attorney, it is good service ;' or from the defendant's ten- 
 ant.' If a writ of assistance be improperly issued or exe- 
 cuted, the court granting it can, on summary motion, set 
 aside the writ or the service, and restore the possession.* 
 
 ' Sawyer v. Curtis, 2 Ashmead, ' St. Clair v. Shale, 20 Penn. 105. 
 
 127. * Skinner v. Beatty, 16 Cal. 150. 
 
 ' Smith V. White, 5 Dana, 376. Chamberlain v. Choles, 35 N. Y. 477. 
 
688 ON EXECUTIONS. [Chap. XX. 
 
 CHAPTER XX. 
 
 EXECUTION OF FINAL PROCESS AGAINST PARTNERSHIPS AND 
 
 CORPORATIONS. EXECUTION BY A CREDITOR 
 
 AGAINST THE EFFECTS OF AN 
 
 INDIVIDUAL PARTNER. 
 
 What may be taken. — How taken. — How a levy is to be made. — 
 The mode of seizing, and effect thereof. — The sale, and how 
 made. — The title and interest which passes at a sale. — Rem- 
 edy of purchaser. — Of other partners. — Execution against 
 partnerships. — Final process against corporations. — Against 
 R. R. companies. — Stock or shares in corporations. — Levy, 
 how made. — How sold. — Final process against municipal 
 corporations. — Exemptions. — Executions against counties. 
 
 § 355. Rights of creditor of individual partner. 
 A creditor of any partner may, upon recovering a judgment, 
 cause execution to issue on such judgment, and the officer 
 in the execution of such writ, for the individual debt of such 
 partner, seizes that partner's interest in all the tangible prop- 
 erty of the partnership. The execution may be levied upon 
 the whole of the tangible goods and effects, or upon part 
 thereof.' The officer can not seize and sell the partnership 
 
 ' Chapman v. Koops, 3 B. & P. 289. Johns. Ch. 548. Phillips v. Cook, 24 
 Reed v. Sheppardson, 2 Vt. 120. Wend. 389. Burgess v. Atkins, 5 
 Whitney v. Ladd, 10 Id. 165. Com- Blackf. 337. Davis v. White, Houst. 
 mercial Bank v. Wilkins, 9 ^e. 28. 228. Newhall v. Buckingham, 14 111. 
 Douglass V. Winslow, 20 Me. 90. 405. White v. Jones, 38 Id. 159. 
 Morrison v. Blodgett, 8 N. H. 252. Lyndon v. Gorham, i Gall, 368. Jar- 
 Dow V. Sayward, 12 Id. 276. Allen vis v. Hyer, 4 Dev. 367. Atwood v. 
 V. Wells, 23 Pick. 450. Pierce v. Meredith, 37 Miss. 635. Andrews v. 
 Jackson, 6 Mass. 242. Reed v. How- ■ Keith, 34 Ala. 472. Jones v. Thomp- 
 ard, 2 Mete. 39. Moody v. Payne, 2 son, 12 Cal. 191. 
 
Chap. XX.] AGAINST PARTNERSHIPS, &C. 639 
 
 property on an execution against one of the partners. A 
 levy to affect the interest of a partner can not touch a 
 specific proportion of the goods, nor the whole, because 
 others have property in part, as well as the whole, coupled 
 with a right resting in contract to use them for the purposes 
 for which the partnership was instituted. The only levy that 
 can be made consistently with the relation the partners sus- 
 tain to the goods, is of the debtor's interest in the whole, and 
 that is to be measured by final account.' The levy is made 
 subject to the prior rights and liens of the other partners and 
 joint creditors therein. The officer is to sell such interest as 
 the debtor has as a partner in the property of the partner- 
 ship, and that alone he is at liberty to sell on the execution, 
 subject to the prior "liens and rights of the other partners and 
 the joint creditors therein, not for the degree of right which 
 he may have on the winding up of the affairs, or the sale 
 might be postponed an indefinite length of time. What that 
 interest is or may be it is impossible to ascertain in many 
 cases until a final adjustment of the partnership concerns.' 
 The officer must go on and sell, if so requested by the cred- 
 itor. Under the rule of law as formerly held in England, the 
 officer, under an execution against one partner, took the 
 partnership effects and sold the moiety of the debtor in the 
 partnership property, as if owned by tenants in common.' 
 
 ' Marston v. Dewbery, 21 La. 518. Sutcliffe v. Dorman, 18 Ohio, 181. 
 
 Van Dike v. Rosskam, 66 Penn. 330. Deal v. Bogue, 20 Penn. 228. Harvey 
 
 Morrison v. Blodget, 8 N. H. 258. v. Crickett, 5 M. & S. 336. Moody v. 
 
 Good V. Coombs, 28 Tex. 34. Whittier Payne, 2 Johns. Ch. 548. Knox v. 
 
 V. Whittier, 38 N. H. 127. Summers, 4 Yeates, 477. Wallace v. 
 
 ' Skipp V. Harwood, 2 Swanst. 586. Patterson, 2 H. & McH. 463- Harri- 
 
 Nicoll V. Mumford, 4 Johns. Ch. 522. son v. Starry, 5 Cranch. 289. McComb 
 
 Chapman v. Koops, 3 B. & P. 289. v. Dunch, 2 Dall. 73. Hankey v. 
 
 Dutton V. Morrison, 17 Ves. 193. In Garratt, i Ves. Jr. 239. Price v. Hunt, 
 
 re Wait, I Jac. & W. 605. Rice v. II Ired. 42. Parker v. Pistor, 3 B. & 
 
 Austin, 17 Mass. 197. Wilson v. Co- P. 288. 
 
 nine, 2 Johns. 280. Filley v. Phelps, ' Haydoh v. Haydon, i Salk. 392. 
 
 18 Conn. 294. Holmes v. Mentz, 4 Jackey v. Butler, 2 Ld. Raymd; 871. 
 
 A. & E. 131. Taylor v. Fields, 4 Ves. ' Lyndon v. Gorham, I Gall. 368. Mor- 
 
 396. Walsh V. Adams, 3 Denio, 125. risen v. Blodget, 8 N. H. 245. Pope 
 
540 
 
 ON EXECUTIONS. 
 
 [Chap. XX 
 
 § 356. What may be taken. But the principle is now 
 well settled both at law and equity that partnership effects 
 can not be taken, or sold on execution to satisfy a creditor of 
 one of the partners only, except it be to the extent of the 
 interest of such separate partner after the settlement of all 
 accounts. The sale is made subject to the partnership debts,, 
 and is of the undivided share of the debtor, and in effect only 
 a sale of the undivided surplus interest of the partner defend- 
 ant, after all the partnership debts are paid, being his share 
 upon a division of the surplus after discharging all demands 
 upon the co-partnership, his own debts due to the firm, and 
 subject to the rights of the other partners.' The general 
 
 V. Harman, Comb. 217. Marriott v. 
 Shaw, Id. 277. Fox v. Hanbury, 
 Cowp. 44g. Eddie v. Davidson, Doug. 
 650. Parker v. Pistor, 3 B. & P. 
 288. Chapman v. Koops, Id. 28g. 
 Church V. Knox, 2 Conn. 514. Brew- 
 ster V. Hammatt, 4 Id. 540. Wit- 
 ter V. Richards, 10 Id. 37. Merserau 
 V. Norton, 15 Johns. 179. In re 
 Smith, 16 Id. 106. 
 
 ' Fox V. Hanbury, Cowp. 455. Tay- 
 lor V. Fields, 4 Ves. 396. Merrill v. 
 Rurker, i Bald. 528. White v. 
 Dougherty, Mart. & Y. 309. McCarty 
 V. Emlen, 2 Yeates, 109. Doner v. 
 Stauffer, I Penn. 198. Knox v. Shep- 
 ler, 2 Hill (S. C.) 595. Knox v. Sum- 
 mers, 4 Yeates, 477. Tappan v. Blais- 
 dell, 5 N. H. 189. Lyndon v. Gor- 
 ham, I Gall. 367. Pierce v. Jackson" 
 6 Mass. 242. Fish v. Herrick, 6 Id. 
 271. Broadnax v. Thomason, I La. 
 Ann. 382. Wilder v. Keeler, 3 Paige, 
 167. Atwood V. Meredith, 37 Miss. 
 635. Jones V. Thompson, 12 Cal. igi. 
 Hayes v. Reese, 34 Barb. 151. Wil- 
 liams V. Lawrence, 53 Id. 320. Berry 
 V. Kelly, 4 Robt. 106. Waddell v. 
 Cook, 2 Hill, 47. Walsh v. Adams, 3 
 -Denio, 125. Smith v. Orser, 42 N. Y. 
 
 132. Jarvis V. Hyer, 4 Dev. 367. In 
 re Smith, 16 Johns. 102. Ex parte 
 Cook, 2 P. Wms. Ex parte Elton, 3 
 Ves. 238. Ex parte Abell, 4 Id. 837. 
 Ex parte Kensington, 14 Id.. 447. 
 Ex parte Tait, 16 Id. 193. Pitman v. 
 Robideaux, 14 La. 608. Pope v. Har 
 man. Comb. 217. Heydon v. Heydon, 
 I Salk. 393. Wilson v. Conine, 2 
 Johns; 280. Moody v Payne, 2 Johns. 
 Ch. 548. West V. Skip, i Vesey, Sr. 
 456. Woodroit v. Ward, 3 Des. Ch. 
 203. McCuUoch V. Dashiell, I H'. & 
 G. 96. Barber v. Hartford Bank, 9 
 Conn. 407. Witter v. Richards, 10 
 Id. 37. Allen v. Wells, 22 Pick. 450. 
 Lyndon v. Gorham, i Gall. 367. Fil- 
 ley V. Phelps, 18 Conn. 294. Dutton 
 V. Morrison, 17 Ves. 193. Church v. 
 Knox, 2 Conn. 523. Rice v. Austin, 
 17 Mass. 206. Com. Bank v. Wilkins, 
 9 Me. 33. Douglass v. Winslow, 20 
 Id. 89. Smith V. Barker, 10 Maine, 
 458. Gibson V. Stevens, 7 N. H. 352. 
 Morrison v. Blodget, 8 Id. 244. Wins- 
 ton V. Ewing, I Ala. 129. Scrugham 
 V. Carter, 12 Wend. 131. Brewster v. 
 Hammatt, 4 Conn. 540. Robbins v. 
 Cooper, 6 Johns. Ch. 186. Rodriguez 
 V. Hefferm.'.n, 5 Johns. Ch. 417. NicoU 
 
Chap. XX.] AGAINST PARTNERSHIPS. 541 
 
 rule of law is that partnership property must be first applied 
 to the payment of partnership debts; consequently all the 
 ■debts due from the joint fund must first be discharged before; 
 any partner can appropriate any part of it to his own use, or 
 pay any of his private debts, and a creditor of one of the 
 partners can not claim any interest but what belongs to his 
 debtor, whether his claim be founded on any contract made 
 with his debtor, or on a seizure of the goods on execution.' 
 § 3S7. How A LEVY IS TO BE MADE UPON THE INTEREST 
 ■OF AN INDIVIDUAL PARTNER. In an action against one of the 
 partners the officer must seize all the goods, because the 
 moieties are undivided, for if he seizes but a moiety and sell 
 that the other partners will have a right to a moiety of that 
 moiety. He must seize the entire leviable property of the 
 co-partnership. He must take and retain custody of the 
 property, for in no other manner can he legally execute the 
 writ, and sell as much of the interest of his judgment debtor 
 as may be sufficient to satisfy the execution.' Such seizure 
 
 V. Mumford, 4 Id. 522. Cammack v. Ind. 124. Adams v. Paige, 7 Pick. 
 
 Johnson, I Green Ch. 163. Tappan 542. Wilson v. Conine, 2 Johns. 280. 
 
 V. Blaisdell, 5 N. H. 193. Page ^r. Smith v. Baker, 10 Me. 458. Bevan 
 
 ■Carpenter, 10 Id. 181. U. S. v. v. AUee, 3 Harring. 80. King's Ap- 
 
 Hack, 8 Peters, 271. Gilmore v. N. A. peal, 9 Penn. 124. Atwood v. Impsen, 
 
 Land Co., i Id. 460. Mobley v. Lom- 25 N. J. Eq. 150. Matlock v. James, 
 
 ,bat, 8 Miss. 318. Sitler v. Walker, 2 Beasl. 126. Durham v. Hanna, 18 
 
 I Freeman Ch. 77. Greene y. Greene, Ind. 270. Dean v. Phillips, 17 Id. 
 
 I Ohio, 535. Place v. Sweetzer, 16 406. Willis v. Freeman, 35 Vt. 44. 
 
 Ohio, 142. Tredwell v. Roscoe, 3 ' Heydon v. Heydon, i Salk. 392. 
 
 Dev. 50. Burrall v. Acker, 23 Wend. Smith v. Stokes, i East. 367. Jacky 
 
 606. Philli'ps V. Cook, 24 Id. 389. v. Butler, i Ld. Raymd. 871. Johnson 
 
 Skipp V. Harwood, 2 Swanst. 586. v. Evans, 7 Man. & G. 240. Skipp v. 
 
 Islay V. Stewart, 4 D. & B. 160. John- Harwood, 2 Swanst. 586. Dutton v. 
 
 son V. Com. Bank, 20 Conn. 148. Morrison, 17 Ves. 193. Marriott v. 
 
 Leonard v. Scai-borough, 2 Geo. 73. Shaw, Comb. 277. Scruyham v. Car- 
 
 ' Crookes v. Crocker, 46 Me. 250. ter, 12 Wend. 131. Phillips v. Cook, 
 
 Pierce v. Jackson, 6 Mass. 242. Lin- 24 Id. 389. Caldwell v. Augur, 4 
 
 ford V. Linford, 4 Dutch, 113. Fisk v. Minn. 217. Atwood v. Meredith, 27 
 
 Herrick, 6 Mass. 271. Phillips v. Miss. 642. Miss v. Sample, 3 Ala. 319. 
 
 Bridge, II Id. 242. Goodwin v. Rich- Burgess v. Atkins, 5 Blackf. 337. 
 
 ardson, 11 Id. 469. Rice v. Austin, 17 Wiles v. Maddox, 6 Mo. 76. Shaver 
 
 Id. 197. Weyer v. Thornbergh, 15 v. White, 6 Munf. no. Welsh v. 
 
542 
 
 ON EXECUTIONS. 
 
 [Chap. XX. 
 
 of the whole of the co-partnership property arises from the 
 necessity of the case, just the same as if the party purchases 
 an individual interest in a chattel that is indivisible, he can 
 not in any other way take possession of the interest without 
 taking possession of the whole. But neither in the one case nor 
 in the other does such taking possession of the whole convey 
 any interest or property whatever in the other part owner's 
 share. The seizure of the whole of the partnership property, 
 which is made of necessity, leaves the property of the solveijt 
 partner, and the possession also which follows the property 
 in chattels, just where it was before, in the solvent partner." 
 The interest of an individual partner in a particular asset can 
 not be seized." The fact that an individual creditor obtains 
 judgment, issues execution an-d levies on firm property, gives 
 him no right as against firm creditors who have not obtained 
 judgment.' He can not seize the effects of the partnership 
 and exclude the other partners from possession.* The cus- 
 
 Kelly V. Brenning, 33 Barb. 123, 
 Rinchey v. Stryker, 26 How. Pr. 75, 
 Rhodes v. Wood, 41 Barb. 471. Skin- 
 ner V. Stuart, 39 Id. 206. McKay v. 
 narrower, 27 Id. 463. Remington v. 
 Cady, 10 Conn. 44. Redington v. 
 Stuart, 14 Id. 404. Reed v. Sheppard- 
 sop, 2 Vt. 120. Reed v. Howard, 2 
 Met. 36. Bradbury v. Smith, 21 Me. 
 117. Douglass V. Winslow, 20 Id. 89., 
 Morgan v. Watmough, 5 Whart. 125. 
 McCarty v. Emien, 2 Dall. 277. Bry- 
 an V. Lashley, 21 Miss. 284. Fiero v. 
 Belts, 2 Barb. 633. 
 
 ' Mersereau V. Norton, 15 Johns. 180. 
 Reed v. Howard, 2 Met. 39. Walsh. 
 V. Adams, 3 Denio, 125. Phillips v. 
 Cook, 24 Wend. 389. Morrison v. 
 Blodgett, 8 N H. 253. 
 
 ' Thomas v. Lusk, 13 La. 277. 
 
 * Conroy v. Woods, 13 Cal. 631. 
 Eldredge v. See Yup Co. 17 Id. 
 44. 
 
 * Garvin v. Paul, 47 N. H. 158. 
 
 Clark, 12 Vt. 681. Whitney v. Ladd, 
 10 yt. 165. Church V. Knox, 2 Conn. 
 514. Walsh V. Adams, 3 Denio, 125. 
 Moody V. Payne, 2 Johns. Ch. 548. 
 Mersereau v. Norton, 15 Johns. 179. 
 In re Smith, 16 Id. 102. Acker v. 
 Burrall, 21 Wend. 605. Burrall v. 
 Acker, 23 Id. 606. Waddell v. Cook, 
 2 Hill, 47. Bernard v. Hovious, 17 
 Cal. 541. Sanders v. Young, 31 Miss. 
 HI. Neary v. Cahill, 20 111. 214. 
 White V. Jones, 38 Id. 159. James v. 
 Stratton, 32 Id. 202. Hayden v. Bin- 
 ney, 7 Gray, 416. Birdseye v. Ray, 4 
 Hill, 158. Andrews v. Keith, 84 Ala. 
 722. Waldman v. Broder, 10 Cal. 378. 
 Adams v. Gorham, 6 Id. 68. Jones v. 
 Thompson, 12 Id. 191. Low v. Ad- 
 ams, 6 Id. 277. Loring v. lUsley, i Id. 
 131. GoU V. Hinton, 8 Abb. P. 120. 
 Mowbray v. Lawrence, 13 Abb. 317. 
 Collins V. Hood, 4 McLean, 186. Mc- 
 Pherson v. Pemberton, i Jones L. 378. 
 Patterson v. Perry, 10 Abb. P. 82. 
 
Chap. XX.] AGAINST PARTNERS. 543 
 
 tody of the officer is as effectual, for all the purposes of sale, 
 as if it were in the case of the seizure of individual or separ- 
 ate property.' In case of a dormant partnership a levy on 
 the stock in trade in the hands of the ostensible partner in a 
 suit against him alone, is preferred to a subsequent levy by 
 another person in an action against the partners." Separate 
 creditors of an individual partner have a preference as to the 
 separate estate of their debtor for the satisfaction of their 
 debts, until such separate estate has been actually applied in 
 payment of partnership debts.' A levy can not be defeated 
 by a dissolution of the partnership, and a settlement of their 
 joint effects in which the debtor partner is paid over for his 
 share an amount in property greater than the amount of the 
 execution and other property from that levied on.* Nor can 
 one of two partners enjoin the levy of an execution in favor 
 of a third person against the other partner and the sale of the 
 latter's interest in the partnership property for his individual 
 debt;' nor maintain trover against the officer for the sale of 
 his share under an execution against the other partner for 
 his separate debt. The officer occupies the same position as 
 the debtor would if he had made the sale." Nor will a court 
 of equity interfere to prevent the levy of an execution in a 
 case of this kind until the partnership matters have been 
 settled ; nor will they refer to inquire what was the defend- 
 ant's interest in the effects seized,' especially if the firm be 
 solvent. In some of the American States the officer will be 
 restrained until the separate interest of the partner has been 
 ascertained.' The creditor or the officer himself, by consent 
 
 ' Moore v. Sample, 3 Ala. 319. * Thompson v. Tinnin, 25 Tex. 56. 
 
 Morgan v. Watmough, 5 Whart. 125. ' Hardy v. Donnellan, 33 Ind. 501. 
 
 Scrugham v. Carter, 12 Wend. 131. • Mayhew v. Herrick, 13 Jur. 1078. 
 
 Mersereau v. Norton, 15 Johns. 175. ' Parker v. Pistor, 3 Bos. & P. 288. 
 
 Waddell v. Cook, 2 Hill, 47. Chapman v. Koops, 3 B. & P. 289. 
 
 ' Lord V. Baldwin, 6 Pick. 348. Van Phillips v. Cook, 24 Wend. 390. 
 
 Alan V. Russell, 13 Barb. 590. Cavy Moody v. Payne, 2 Johns. Ch. 548. 
 
 V. Bright, 58 Penn. 70. Thompson v. Lewis, 34 Me. 169. Set- 
 
 " Holton V. Holton, 40 N. H. 77. ler v. Walker, I Free. Ch. 77. 
 
 Treadwell v. Brown, 41 Id.12. Weyer * Place v. Sweetzer, 16 Ohio, 143. 
 
 V. Thornbergh, 15 Ind. 124. Newhall v. Buckingham, 14 111. 405. 
 
644 ON EXECUTIONS. [Chap. XX. 
 
 of the creditor, may file a bill against the other partners prior 
 to making of a sale, for the purpose of ascertaining the quan- 
 tity of the interest ' as soon as the property is taken in exe- 
 cution. The officer acquires a special property in the goods" 
 against all parties save the co-partner or tenant, and may be 
 considered as a legal agent for the sale. 
 
 § 358. Of the sale and its effcts ; position of 
 PURCHASER. While the officer is compelled, in order to 
 make a valid levy upon the interest of an individual partner 
 upon an execution against him, to take the whole of the 
 partnership property into his possession, he can only sell the 
 actual interest or share of such individual partner therein ; 
 yet he delivers to the purchaser and other partners the whole 
 of the property. The purchaser takes such property as ten- 
 ant in common with the other partners in the property of 
 the firm, so far as to entitle him to an account for the full 
 value in favor of the partnership creditors ; and the partner- 
 ship will thereupon be wholly or partially dissolved, the 
 purchaser standing in the place of the execution-creditor, 
 and the interest vested in the purchaser is that which the 
 partner himself had, the residual interest, after the settle- 
 ment of the firm accounts.' The purchaser of the interest 
 
 Kelly's Appeal, 16 Penn. 59. Deal Greene, 3 C. & P. 309. Taylor v. 
 
 V. Bogue, 20 Id. 228. Lucas v. Lawes, Fields, 4 Ves. 396. Goss v. Dufesny, 
 
 28 Id. 211. I Cook B. L. 539. Young v. Keighly, 
 
 'Nixon V. Nash, 12 Ohio S. 647. 15 Ves. 557. Pope v. Harman, Comb. 
 
 Knerr v. Hoffman, 65 Penn. 126. 217. Eddy ■" Davidson, Doug. 650. 
 
 ' Wilbraham v. Snow, 2 Saund. 47. Smith v. Stokes, I East. 367. Chap- 
 
 Ayer v. Ayer, Yelv. 44. man v. Koops, 3 B. & P. 289. Parker 
 
 ' Fox V. Hanbury, Gowp. 445. v. Pistor, 3 Id. 288. Ex parte Ham- 
 
 Skipp V. Harwood, 2 Swanst. 585. per, 17 Ves. 403. Price v. Hunt, i 
 
 Dutton V. Morrison, 17 Ves. IJ3. Gratt. 396. Renton v. Champlain, i 
 
 Waters v. Taylor, 15 Id. 10. Holroyd Stock. 62. In re Smith, 16 Johns. 102. 
 
 V. Wyatt, I D. G. & S. 125. Haberson NicoU v. Mumford, 4 Johns. Ch. 522. 
 
 V. Blurton, lo G. & S. 121. Aspinwall Clagget v. Killbourne, I Blackf. 346. 
 
 V. L. & N. R. R. Co., II Hare, 325. Phillips v. Cook, 24 Wend. 393- 
 
 Hayden v. Hayden, I Salk. 392. Gar- Latham v. Simmons, 3 Jones L. 27. 
 
 bett V. Veale, 5 A. & E. 414. Johnson Haskin v. Everett, 4 Sneed. 531. Al- 
 
 V. Evans, 7 M. & G. 240. Holmes v. len v. Wells, 22 Pick. 540. Averill v, 
 
 Mentze, 4 A. & E. 127. Burnton v. Loucks, 6 Barb. 20. Mur v. Leitch. 
 
Chap. XX.] AGAINST PARTNERS. 545 
 
 of a partnership in real estate acquires the legal title, not a 
 mere equity, and is entitled to be let into possession as a 
 tenant in common with the other owners.' In the event of 
 a sale, the purchaser at the sale is substituted to the rights 
 •of the execution partner quaod the property sold, and he 
 may file a bill, or a bill may be filed against him by the other 
 parties to ascertain the amount of interest he has acquired by 
 the sale." A partner who permits the separate creditors of 
 his co-partner to set off lands on execution to satisfy such 
 co-partner's debts, and to recover judgment in ejectment 
 for his possession, without asking, before the levy, for an 
 account of the partnership effects, can not afterwards disturb 
 the levy on the ground that the land was partnership prop- 
 erty.^ The sale does not transfer any of the joint property 
 to the purchaser so as to entitle him to take exclusive pos- 
 session, or to withhold it from the other partners ; if it were 
 •otherwise, he would be in a better position than the judg- 
 ment-debtor was before the sale. He takes it in the same 
 manner as the debtor himself had it, and subject to the 
 
 7 Barb. 341. Knox v. Summers, 4 Birdseye v. Ray, 4 Hill, 161. Burrall 
 
 Yeates, 477. Doner v. Stauffer, 1 v. Acker, 23 Wend. 606. Baker's Ap- 
 
 Penn. 198. Snodgrass' Appeal, 13 Id. peal, 21 Penn. 76. Witter v. Richards, 
 
 471. Pierce V. Jackson, 6 Mass. 242. 10 Conn. 37. Barber v. Bank, 9 Conn . 
 
 Com. Bank v. Wilkins, 9 Me. 28. 407. Scrugham v. Carter, 12 Wend. 
 
 Filley v. Phelps, 18 Conn. 2g6. Mor- 131. Winston v. Ewing, i Ala, N. S. 
 
 rison v. Blodgett, 8 N. H. 238. 129. Fisk v. Herrick, 6 Mass. 
 
 Christian v. Ellis, i Gratt. 396. White 271. 
 
 V. Woodward, 8 B. Monr. 484. Ex ' McCauley v. Fulton, 44 Cal. 356. 
 parte Stebbins, R. M. Charlt. 77. Sut- Starr v. Leavitt, 2 Conn. 243. Hin- 
 clifife V. Dorman, 18 Ohio, 181. At- man v. Lea^venworth, 2 Id. 244. Mel- 
 wood V. Meredith, 37 Miss. 656. Gib- ville v. Brown, 8 Allen, 56. Clag- 
 son V. Stevens, 7 N. H. 352. Newhall gett v. Kilbourne, i Black. 346. 
 V. Buckingham, 14 III. 400. Walsh v. ' Chapman v. Koops, 3 B. & P. 289. 
 Adams, 3 Denio, 105. Lovejoy v. Ex parte Hamper, 17 Ves. 703. Bevan 
 Bowers, II N. H. 404. Deal v. Bogue, v. Lewis, i Sinn. 376. Skipp v. Har- 
 20 Penn. 228. Aldrich v. Wallace, 8 wood, 2 Swanst. 586. Taylor v. Field, 
 Dana,. 287, Church v. Knox, 2 Conn. 4 Ves. 396. Barker v. Goodwin, II Id. 
 514. Hubbard v. Curtis, 8 Iowa, 14. 78. Knerr v. Hoffman, 65 Penn. 126. 
 Wilson V. Gibbs, 2 Johns. 282. Loth- Reinheimer v. Hemingway, 35 Id. 432. 
 rop V. Wightman, 41 Penn. 297. ' Clark v. Lyman, 8 Vt. 29, 
 
 35 
 
546 ON EXECUTIONS. [Chap. XX. 
 
 rights of the other partners.' In Georgia, the interest of an 
 individual partner is reached on. execution by process of 
 garnishment against the firm," and the party takes such in- 
 terest divested of Hens for firm debts not reduced to judg- 
 ment.' Where partnership property is sold under several 
 executions against the partners individually, the proceeds 
 represent the individual interests, and should be distributed 
 accordingly.' The debtor's co-partners may purchase at the 
 sale, but their conduct must be perfectly fair, or they will be 
 held trustees for the partner whose share is sold." A levy 
 and sale of the interest of one partner in any part of the 
 partnership property, gives the purchaser no title or interest 
 in the property sold.° On a sale of joint or community 
 property for the individual debt of the survivor does 
 not divest the undivided interest of the heirs of the de- 
 ceased owner or partner,' if there be separate executions 
 against each partner, the officer seizes the whole, and sells 
 the one moiety under one writ, and the other moiety under 
 the other.' The officer can not sill the whole property 
 under an execution against one partner, without being liable 
 to an action of trover or trespass at the suit of the other 
 partner ;° for selling the interest of the individual debtor 
 
 ' Skipp V. Harwood, Cowp. 451. Walsh v. Adams, 3 Deiiio, 125. Gibson 
 
 Church V. Knox, 2 Conn. 517. v. Stevens, 7 N. H. 352. Latham v. 
 
 ' Willis V. Hendersony 43 Geo. Simmons, 3 Jones L. 27. Fiero v. 
 
 325. Belts, 2 Barb. 633. Andrew v. Keith, 
 
 ' Green v. Ross, 24 Geo. 613. 34 Ala. 722. Atwood v. Meredith, 37 
 
 * Van Dike's Appeal, 57 Penn. g. Miss. 635. Neay v. Cahill, 20 111. 214. 
 
 ' Perens v. Johnson, 3 Sm. & G. Ch. Herod v. Bentley, 15 Id. 58. James 
 
 419. Gunter v. Laffair, 7 Cal. 588. v. Stratton, 32 Id 202. White v. 
 
 ' Whigham's Appeal, 63 Penn. 194. Jones, 38 Id. 160. Edgar v. Caldwell, 
 
 Good V. Coombs, 28 Tex. 34. Willis Morris (Iowa) 434. Jones v Thomp- 
 
 V. Freeman, 35 Vt. 44. Whittier v. son, 12 Cal. 191. Lawrence v. Burn- 
 
 Whittier, 38 N. H. 127. ham, 4 Nev. 361. Hayden v. Binney, 
 
 ' Waring v. Zeuts, 10 La. 49. 7 Allen, 416. Caldwell v. Augur, 4 
 
 ' Brinckerhoff v. Marvin, 5 Johns. Minn. 217. Lathrop v. Arnold, 25 
 
 Ch. 320. Birdseye v. Ray, 4 IJill, Me. 196. Shaw v. McDonald, 2 1 Geo. 
 
 158. 395. Wiles V. Moddax, 26 Mo. 77. 
 
 ' Backhurst v. Clinkard, I Show. Wheeler v. McFarland, 10 Wend. 
 
 169. Waddell v. Cook, 2 Hill, 47. 318. 
 
Chap. XX.] AGAINST PARTNERS. £47 
 
 partner, he is not liable to the other partners.' If there are 
 any effects of a separate partner, and the officer return 
 nulla bona, an action will lie against him." 
 § 359. Execution against partnerships when they 
 
 HAVE priority OVER EXECUTIONS AGAINST INDIVIDUAL 
 PARTNERS. The firm property being primarily liable for the 
 payment of the firm or partnership debts, it has and is entitled 
 to priority over an execution for an individual debt.' An 
 execution issued for a joint debt will bind both the legal and 
 equitable interest of all the parties, and necessarily confers 
 all the right and title of the firm on the purchaser, free from 
 all claims either of the partnership or of the individual part- 
 ners. Therefore, when a levy for an individual debt is fol- 
 lowed before a sale by an execution issued on a judgment 
 for a firm debt, there is apparently a conflict between the 
 two writs, one of which binds the whole right and title of 
 all the partners against whom it is issued, while the othei 
 execution has a prior lien or hold on the separate interest or 
 share of the individual partner. The officer in such a case 
 must sell under each writ, separately and without regard to 
 the existence of the other. The purchaser at the execution 
 sale of the individual partner's interest becomes a tenant in 
 common with the other partners, and is subject to a lien for 
 the partnership debts, and to an account in equity, while the 
 purchasers at the sale under the execution against the firm 
 will acquire the equities of the firm, as well as in additipn 
 thereto the separate shares or interest of the partners, with 
 the exception of the shares of the partner against whom the 
 execution first issued.* A levy for a debt due by the firm 
 will relate back to the equity of the partners, and thus obtain 
 precedence over executions levied for the individual debts of 
 the partners, and a sale under such circumstances, by virtue 
 of the execution against the firm, confers an absolute title on 
 
 ' McPherson v. Pemberton, i Jones N. Y. 539. Hunter v. Martin, 2 Rich. 
 
 L. 378. 541. King's Appeal, 9 Penn. 124. 
 
 » Jones V. Pemberton, 4 M. & S. 349. * Moody v. Payne, a Jolins. Ch. 548. 
 
 » Eighth Nat. Bank v. Fitch, 49 Read v. Sheppardson, 2 Vt. 120. 
 
548 ON EXECUTIONS. [Chap. XX. 
 
 the purchaser, and the proceeds applied to the satisfaction of 
 the firm debts to the exclusion of the individual debts, unless 
 there is enough realized from the sale to leave a surplus.' 
 The right of the separate creditors to obtain satisfaction out 
 of the share of their debtor in the property of the firm, stands 
 at law and in equity upon the same footing as that of joint 
 creditors to the joint title of the partners. The priority of 
 the joint creditors is a mere right to a remedy, liable to be 
 defeated by the superior diligence of the separate creditors, 
 unless asserted in due season," as the joint creditors of a 
 partnership have a prior right to have the firm property sold 
 for. their debts, a separate execution will be postponed to a 
 joint one, and, therefore, if an execution against one partner 
 is in the officer's hands and one against the firm, he will be 
 justified in returning the separate execution unsatisfied, or 
 declining to execute it, for the reason that the individual 
 creditor loses nothing by it.' Where there is a levy under 
 an execution on the interest of one member of the firm, and 
 a subsequent execution against the firm is issued to the officer, 
 it is his duty to pay the amount due on the execution against 
 the firm first. But if a sale is made on the execution against 
 the individual partner, and not on that against the firm, the 
 first execution is entitled to the amount realized.* 
 
 ' Pierce v. Jackson, 6 Mass. 242. Stauffer, i Penn. 19S. Snodgrass's 
 
 Morrison v. Blodgett, 8 N. H. 250. Appeal, 13 Id. 470. 
 
 Coover's Appeal, 2g Penn. 9. Jarvis ' 8th Nat. Bank v. Fitch, 49 N. Y. 
 
 Y. Brooks, 23 N. H. 136. Tappan v. 539. Scrugham v. Carter, 12 Wend. 
 
 Blaisdell, 5 Id. 190. Benson v. Ela, 24 131. Crawle v. French, i Id. 311. 
 
 Id. 402. Crane v. French, I Wend. Pierce v. Jackson, 6 Mass. 242. Com. 
 
 311. Dunham V. Mmdock, 2 Id. 533. Bank v. Wilkins, 9 Me. 28. Douglass 
 
 Com. Bank v. Wilkins, g Me. 28. v. Winslow, 20 Id. 89. Dunham v. 
 
 Douglass V. Winslow, 20 Id. 89. Murdock, 2 Wend. 553. Berry v. 
 
 Trowbridge v. Cushman, 24 Pick. Kelly, 4 Robt. 106. Garbett v. Veale, 
 310. Lancaster Bank v. Milly, 13 , 5 Q. B. 408. Tappan v. Blaisdell, 5 
 
 Penn. 544. Peck v. Fisher, 7 Cush. N. H. 190. In re Smith, 16 Johns. 
 
 386. Rice V. Barnard, 20 Vt. 479. 102. Jarvis v. Brooks, 23 N. H. 136. 
 
 VRuss V. Fay, 29 Vt. 381. Reed v. Cooper's Appeal, 26 Penn. 262. 
 
 Sheppardson, 2<Id. 120. Hoskins v. * Fenton v. Folger, 21 Wend. 
 
 Everett, 4 Sneed, 531. Doner v. 676. 
 
Chap. XX.] AGAINST CORPORATIONS. 549 
 
 Where a partnership is carried on by two different firm 
 names, a judgment against either firm will support an exe- 
 cution and a levy upon the partnership effects ; a sale under 
 such execution will pass the title of all the partners, includ- 
 ing dormant partners not named in the judgment.' It may 
 be levied upon the individual property of either partner, 
 without regard to whether the partnership property is sufifi- 
 cient to make the debt.' Where more is levied on than is 
 sufficient to pay partnership executions, the balance may be 
 applied to pay executions against the individual part- 
 ners.' If the officer sells the entire property under an 
 execution against one co-tenant or partner, he will be 
 a trespasser,* upon the ground that the officer, acting under 
 legal authority, an abuse of process renders him a trespasser 
 ab initio. When goods are seized by the officer, they can 
 not be again seized, and if sold under a second seizure 
 the sale is void ; yet if A and B are partners, and the 
 officer seize their joint effects for a separate debt of A, he 
 can not afterwards return nulla bona in an action for a sep- 
 arate debt of B, and if he does, an action will lie against 
 the officer making such return." Under a judgment against 
 one partner, the way in which the officer executes the writ 
 in practice is by making a bill of sale of the actual interest. 
 
 § 360. Executions against corporations. A corpo- 
 ration " is an artificial being, invisible, intangible, and exist- 
 ing only in contemplation of law. Being the mere creature 
 of the law, it possesses only those properties which the 
 charter of its creation confers upon it, either expressly or 
 incidental to its very existence. These are such as are best 
 calculated to effect that object for which it was created. 
 Among the most important of these are immortality, and if 
 
 ' Cary v. Bright, 58 Penn. 70. * Melville v. Brown, 15 Mass. 82. 
 
 ° National, &c. Bank v. Sprague, 20 Waddell v. Cook, 2 Hill, 47. Bates 
 N. J. Eq. 13. Allen v. Wells, 22 v. James, 3 Duer, 45. Walsh v. Ad- 
 Pick. 450. Newman v. Bagley, 16 Id. ams, 3 Denio, 125. 
 572. Low V. Adams, 6 Cal. 277. ' Backhurst v. Clinkard, I Show. 
 Hemes v. Jameson, 5 T. R. 566. 173. Johnson v. Evans, 7 M. & G. 250. 
 Wooley V. Kelly, I B., &c. 68. Pope v. Harman, Comb. 217. King 
 
 ' Roop V. Rogers, 3 Watts, 193. v. Manning, Id. 619. 
 
550 ON EXECUTIONS. [Chap. XX. 
 
 the expression may be allowed, individuality^ A cor- 
 poration being an artificial person, and a creature of the 
 law, is, to a great extent, governed by the same principles, 
 and rules which are applicable to natural persons. A corpo- 
 ration is liable to the same extent and under the same cir- 
 cumstances as a natural person for the consequences of its 
 wrongful acts and omissions, and is responsible to the same 
 extent, in a like manner, and under the same circumstances 
 as natural persons. They have the power to sue, and may 
 be sued like natural persons. Upon judgment and execution 
 against a corporation for its debts, its property, real and 
 personal, may be seized and sold as in the case of indi- 
 vidual defendants.' The tangible property and estate of a 
 corporation is no more exempt from execution than those 
 of an individual.' A corporation is bound to provide for its 
 just debts, whether the payment is made by the sale of its 
 property for that purpose, or with money from its vaults.* 
 After having recovered judgment, the creditor's remedy is by 
 execution." It can not shield its property from execution 
 on the ground that it is mortgaged to the State." 
 
 § 361. Executions against railroad companies. If 
 a railroad company contracts debts which it is unable to pay, 
 the wood and iron on the railroad may be taken in execution 
 and sold, and the purchaser acquires such a right of property 
 in the articles as to take possession of them and carry them 
 away, though such company may be rendered thereby unable 
 to execute its corporate purpose, and may, in consequence, 
 forfeit its charter.' A railroad company has an estate in 
 land, and not a mere easement, and the estate is subject to 
 
 ' Dartmouth College v. Woodward, ' State v. Rives, 5 Ired. 297. Arthur 
 
 4 Wheat. 636. V. C. & R. Bank, 9 Miss. 394. 
 
 "^ State of Md. v. Bank of Md., 6 * State, &c. v. Md. Bank, 6 Gill & J. 
 
 Gill & J. 219. Slee v. Bloom, 5 205. 
 
 Johns. Ch. 366 ; S. C, ig Johns. 456. ' Regina v. Victoria, &c. Co., I Q. B. 
 
 Pierce v. Partridge, 3 Met. 44. 289. 
 
 Perry v. Adams, Id. 51. Queen v. « Boyd v. Chesapeake, 17 Md. 195. 
 Victoria, &c. Co., I A. & E. (N. S.) ' State v. Rives, 5 Ired. 297. James 
 
 288. V. R. R. Co., 6 Wall. 750. 
 
Chap. XX. AGAINST CORPORATIONS. 551 
 
 ■sale under execution. This results from the necessity of the 
 •case, and it is the property estate of the corporation that is 
 sold, not its franchise. But where a statute prescribes that 
 a State may subscribe for stock in a railroad company, and 
 also that it shall have a lien upon the company's property 
 to the extent of the money advanced by the State, the 
 property of such a corporation is not liable on execution for 
 its debts till the lien of the State is extinguished.' The 
 franchise of a corporation can not be subjected to sale on 
 •execution without legislative authority, or an express pro- 
 vision to that effect in the act of incorporation ;" the rule 
 at common law being that the franchises and corporate rights 
 •of a corporation and the means vested in them which are 
 necessary to the existence and maintenance of the object 
 for which they are created, are incapable of being transferred 
 and granted away by any adverse process against them. 
 Where the statutory authority grants the power of selling a 
 ■franchise, the statutory requirements must be strictly com- 
 plied with in order to pass the franchise to the purchaser.' 
 The sale of the franchise confers no corporate power, or 
 •capacity upon the purchaser ; it confers and passes the fran- 
 chise with the rights and privileges of receiving the receipts. 
 The corporate capacity still continues in the company. Cor- 
 ■porations are not formed or created by an execution sale, 
 and until the proper and necessary steps are taken by the 
 
 ' State V. L. & M. R. R., 4 Humph. Ohio S. 21. Young v. R. R. Co., 65 
 
 488. Penn. 278. W. R. R. Co. v. Johnson, 
 
 2 Hatcher v. T. W. & W. R. R. Co., 59 Id. 295. Canal Co. v. Bonham, 9 
 
 •62 111. 477. Burfett V. G. W. R. R. W. & S. 27. Gue v. Canal Co., 24 
 
 Co., 25 Id. 353. Shaw v. N. &c. R. R. How. 263. 
 
 -Co., 5 Gray, 162. Stewart v. Jones, 41 * Titcomb v. Ins. Co., 8 Mass. 326. 
 
 Mo. 140. Thomas v. Armstrong, 7 Taylor v. Jenkins, 6 Jones L. 316. 
 
 •Cal. 280. Munroe v. Thomas, 5 Id. How v. Starkweather, 17 Mass. 240. 
 
 .470. Wood V. Turnpike Co., 24 Id. Davis v. Maynard, g Id. 242. Stam- 
 
 474. James v. Plank Road Co. 8 ford v. Ferry, 17 Conn. 259. Bank, 
 
 Mich. 91. Arthur v. Com. &c. 16 &c. v. St. John, 25 Ala. 566. Seymour 
 
 Miss. 394. Coe V. R. R. Co., 10 Ohio v. Co., 5 Ohio, 476. James v. Co, 
 
 S. 372. Seymour v. Turnpike Co., 10 8 Mich. 91. Gue v. Co. 24 How. 
 
 Ohio, 476. Atkinson v. R. R. Co., 15 257. 
 
652 ON EXECUTIONS. [Chap. XX, 
 
 State to forfeit its charter and terminate its existence, it still 
 possesses the power granted it ;' the lands, easements or works 
 appurtenant or essential to the practical use and occupa- 
 tion of the franchise can not be sold separate from the fran- 
 chise' so as to impair its value or impede its use.'' The fran- 
 chise of a turnpike or plank road company is held personal 
 property ;° but the road itself can not be levied on by execu- 
 tion upon a judgment against the company, because the 
 defendant has no tangible interest : nothing but a right to- 
 receive tolls ;' nor can the tolls or products of the franchise 
 be levied upon and sold so as to prevent the company from 
 receiving them, or divest it of its right of ownership or pos- 
 session.' Where a corporation, like a bridge or turnpike 
 company, has no tangible property that can be subjected 
 to execution, and it has nothing but a mere franchise or 
 easement from which its income and revenues are derived,, 
 there is nothing that can be levied on or taken by the officer 
 in satisfaction of the writ ; in such cases, where no levy can^ 
 be made, the equitable powers of the court in those States 
 where the codes have abolished the distinctions between law 
 and equity, and in others where the distinctions still prevail,. 
 a court of equity will grant relief to the creditor in the 
 appointment of a receiver to take possession, charge, and 
 control of the franchise and revenues, who as the officer of 
 the court accounts to it, and under its direction satisfies the 
 claim or judgment of the creditor.' 
 
 Where the power of taking property under the right of 
 eminent domain is vested in certain corporations, by virtue 
 
 1 Amant v. Co., 13 S. & R. 510. v. R. R. Co., 10 Ohio S. 372. Cue v. 
 
 Canal Co. v. Bonham, 9 W. & S. Canal Co., 24 How. 263. 
 27. Coe V. R. R. Co., 10 Ohio S. ' Denton v. Livingston, 9 Johns. 96.. 
 
 372. Atlcinson v. R. R. Co., 15 Id. ■> Amantv.T. R.Co.,i3 S. &R. 510. 
 21. Commonwealth v. Co., 5 Cush. « Seedon R. R. Co., 5 W. & S. 265. 
 
 509. Seymour v. T. Co., 10 Ohio. 479. Cue 
 
 ^ Young V. R. R. Co., 65 Fenn. 218. v. Canal Co., 24 How. 263. 
 R. R. Co. V. Caldwell, 39 Penn. 337. • Covington, &c. Co. v. Shepherd, 21 
 
 Canal Co. V. Bonham, 9 W. & S. 27. How. 112. Macon, &c. Co. v. Parker» 
 
 Amant v, T. Co., 13 S. & R. 510. Coe 9 Geo. 393. 
 
Chap. XX.] CORPORATIONS. 553 
 
 of a statute power, the requirements of the statute must 
 be strictly complied with in. order to vest a title in the 
 corporation ; taking private property for public use without 
 due compensation, is in violation of every state constitution. 
 Where the property has been taken, and the corporation 
 have failed to pay the apparent value or damages assessed, 
 no title vests in such corporation, and an execution sale 
 under a decree of foreclosure of a mortgage given upon all 
 its. property, passes no title to the purchaser of such land.' 
 Where a railroad is subject to sale, it can not be cut up in 
 parcels, and sold in the various counties along the line of its 
 location.^ Where the property and franchises of a corpora- 
 tion are sold, the surplus proceeds must be applied on the 
 next oldest execution.' In Pennsylvania, 'it is to be dis- 
 tributed among all the creditors in case of insolvency, the 
 levy creating no lien.' 
 
 § 362.^ As TO THE ROLLING STOCK OF A RAILROAD 
 COMPANY. The question as to whether property of this 
 kind is or is not personal property, or a fixture so as to pass 
 with the real estate and road bed, is a question of some im- 
 portance even at this late day, in the history of railway 
 corporations. The adjudications upon this question are 
 by no means uniform, four adjudications in the state of New 
 York, having failed to settle the question until within a 
 late period.' The adjudications pro and con as to whether 
 this species of property is a fixture so as to pass as real 
 estate, or personal property and governed by the laws re- 
 lating to the disposal of personalty, are able and inge- 
 nious. The cases wherein these questions chiefly and 
 principally arise, are those resulting from a race between 
 ordinary execution-creditors and mortgagees or trustees. As 
 a general ru|e, many conflicting questions must be deter- 
 mined by the contents of the mortgage, in determining 
 what passes with it, as there may be a mortgage of a road 
 
 ' W.,&c.Co. V.Johnson, 59 Penn. 290. ■• Bayard's Appeal, 72 Penn. 453. 
 
 « M., &c. R. R. Co., 9 Geo. 402. ' Hoyle v. P. & M. R. R. Co. 54 
 
 » Denny V. Hamilton, 16 Mass. 204. N. Y. 314. 
 
554 ON EXECUTIONS. [Chap. XX, 
 
 bed and iron, without the rolling stock. The adjudi- 
 cations wherein these questions are involved are far from 
 numerous, and that there has been any definite and sat- 
 isfactory result is also doubtful. The cases in Illinois' 
 proceed upon a theory seemingly plausible, and perhaps 
 applicable at the time the questions were raised. It has 
 been but few years since the development of the present 
 system of American railway management. When railroads 
 were incorporated under special charter, their powers care- 
 fully guarded and their privileges reluctantly granted, their 
 lines were confined to particular localities, and seldom 
 extended beyond the jurisdiction of the state wherein they 
 were organized. The building of railroads and leasing them 
 for nine hundred and 'ninety-nine years had not then been 
 originated, and it b,ecame quite a popular theory, and, in 
 fact, one of the impossibilities, to make a railroad either 
 valuable or complete unless it was well- supplied witji rolling 
 stock. The developments and changes made by the Ameri- 
 can railway managers have exploded these fallacies, and the 
 reasoning of the courts in arriving at their conclusions upon 
 the theory, that the rolling stock is necessary to make the 
 railroad complete, has but little application, in fact not more 
 than if a court were to determine that as a farm could not 
 be cultivated without farming utensils and the necessary 
 implements for husbandry, that as they were essentially 
 necessary to make the farm productive and useful, that the 
 plows, harrows, drags, &c., became part of the realty and 
 passed with the farm under a real estate mortgage ; or that 
 household furniture passed with the sale of a house and lot, 
 because the house would be of no value or income, unless it 
 was used as a dwelling and supplied with the necessary 
 housekeeping utensils, &c., to the owner. The. theory that 
 " no railroad can be complete without machinery," is shown 
 to have no application to the decision of this question. How 
 many railroads are th&re in this country and in England that 
 are not only complete but are sources of immense revenue 
 
 ' Palmer v. Forbes, 23 111. 301. Hunt v. Bullock, Id. 320. Titus v 
 Maybee, 25 111. 257. 
 
Chap. XX.] AGAINST CORPORATIONS. 555 
 
 to the lessees who do not own the road, and to its owners 
 who never invested a dollar in rolling stock and do not own 
 even a truck. The Illinois and some of the New York 
 cases rely on and extensively cite numerous and peculiar 
 cases, wherein the law applicable to fixtures has been 
 applied, and claim that the rolling stock must be a fixture 
 because they can find nothing like it (that they cite) in any 
 of the books. In regard to this species of property, there 
 are two important matters to be taken into consideration. 
 The first is, that the common law rules, as applied by courts 
 determining what are and what are not fixtures, have no 
 more applications to this species of property than they would 
 have to balloons. The common law rule, in regard to fix- 
 tures, has been adhered to and applied by courts for 
 centuries. It has been applied in almost every conceivable 
 case where the question of annexation to the freehold could 
 be imagined. But I have yet to read, or be cited, to the 
 first case where it is applied to a stage or mail coach on a 
 post route, or boat or other vessels used as ferry. That 
 there were post routes on turnpikes which cost vast sums ot 
 money to construct and operate, there can be no doubt. 
 That such turnpikes were incomplete without the necessary 
 means for the transportation of freight and passengers, has 
 never been asserted, for the road might have been leased as 
 readily as our railroads are in the present age, so that the 
 question of completeness affords no criterion. Another 
 matter : the development of the immense system of railways 
 in the greater portion of the civilized world is a matter ot 
 recent growth ; is the creation of a species of property 
 unknown to the common law, and, therefore, the common law 
 doctrines are inapplicable to this species of property. Mort- 
 gages of the franchises, real property and appurtenances of 
 such corporations were also unknown, and, therefore, the com- 
 mon law rule would not apply in construing what would pass by 
 the term appurtenances. As applied to real estate, at common 
 law, it means one thing; as applied to a railroad corporation, 
 something entirely different or antagonistic in its meaning. 
 
C56 ON EXECUTIONS. [Chaf. XX 
 
 Having shown, then, that the common-law rules of 
 construction are inapplicable to this species of property,, 
 where, then, are we to ascertain what principle of law 
 is applicable ? Shall it be said that because it is the cre- 
 tion and invention of modern times, and outside of com- 
 mon-law principles, it is to be treated as a sui generis, 
 governed by rules applicable solely to its use in connection 
 with its ownership, or by its use in connection with its sit- 
 uation or location. The later decisions in regard to the 
 questions of fixtures, and the statutory innovations and 
 changes, have enlarged the principles relating thereto, and 
 while an ordinary steam engine is personal property in the 
 manufactory, it becomes a portion of the real estate and a 
 fixture when purchased and set up in the mill of the owner, 
 if annexed to the freehold ; and in determining whether 
 annexed so as to become a fixture, reference must be had to 
 the nature of the chattel ; the position of the party placing it 
 where found ; the probable intention of putting it there ; the 
 injury that would result from its removal, and the object of 
 the party placing it on the premises.' Can this rule be applied 
 to this species of property ? If not, why not ? For the reason 
 that no such questions can arise. A railroad car is not 
 annexed to the soil; it is not stationary; if it were, it would 
 be useless. The position of the party, whether tenant or 
 mortgagor, cuts no figure in the case ; nor the intention- of 
 the parties. It is placed upon the track or road, just as a 
 plow or harrow on a farm, or a ferry-boat is on a river, to 
 make the franchise profitable to its owners, and carry all the 
 passengers and freight that are offered. It need not be of 
 peculiar construction. It is true that it is peculiarly adapted 
 to railroads, but not to one railroad only ; it may be adapted 
 to every railroad in the United States, and may be used on 
 twenty different roads, and may not be on the line of the 
 company owning it from the time of its purchase or con- 
 struction more than a week, or a day, as the case may be. 
 How, then, can the question of annexation, intention, or 
 use, cut any figure. It may be used after once off the line 
 
 • Ante, pages 162-168. 
 
Chap. XX.] AGAINST CORPORATIONS. 557 
 
 of its road, by other companies, who have no claim or title 
 to it, in the same manner as it is by its owner ; still it is 
 neither removed nor severed from the soil. It passes through 
 numerous jurisdictions and different states. Can it be a fix- 
 ture on the real estate, or a portion of such real estate be- 
 longing to- the corporation which purchased it under such 
 circumstances ? If so, where is the similarity in the appli- 
 cation of the principles? These questions at the time of the 
 rendition of the adjudications referred to would be regarded 
 as absurd as the proposition to build a railroad would in 
 Coke's time. Not only has the railroad been built, but the 
 very questions herein discussed have arisen, and been adju- 
 dicated in various modes, some of which regard this species 
 of property as a fixture,' and, therefore, passing with real 
 estate as an appurtenance ; and others as chattels personal! 
 incapable of being annexed to the freehold in such a manner 
 as to pass with it, but governed by the rules of law appli- 
 cable to personal property ; others, that it is property of a 
 sui generis nature ; a fixture when on the line of its own road ; 
 personal property when beyond it;' personal property as 
 regards taxation ; real estate as regards mortgagor and mort- 
 gagee ; and it is this question which is now to be determined. 
 That it is personal property is too plausible to doubt. In the 
 first place, while it may be an important and essential ele- 
 ment in the operation of a railroad, it is not such an essen- 
 tial part that its removal will destroy or irripair the property ; 
 while it is true that it is fitted to the tracks and held down 
 and fastened thereto by its own weight, it is by no means 
 stationary or so annexed as to become part of it. It may be 
 removed without injury. It may be used on roads thousands of 
 miles from where it is owned, without injury to the real prop- 
 erty of the company. Suppose^ for instance, that the rolling 
 stock of a railroad in Massachusetts should be considered and 
 regarded as a fixture, subject to a mortgage as real estate ; 
 that rolling stock in the course of traffic is used in such a man- 
 
 ' Titus V. Mabee, 25 111. 257. Hunt ' Page 561, note I. 
 V. Bullock, 23 Id. 320. Palmer v. ' Page 561, n«te 4. 
 -Forbes, 23 Id. 302. 
 
558 ON EXECUTIONS. [Chap. XX. 
 
 ner that it is transferred from Massachusetts by the same 
 gauge of roads to CaHfornia, or some distant state ; a creditor 
 recovers judgment against such railroad company in Cali- 
 fornia ; would it be held that such rolling stock was a fix- 
 ture, a part of the railroad in Massachusetts, and. was sub- 
 ject to a mortgage there, and could only be sold as real 
 estate and subject to the lien of such mortgage, and 
 governed by the laws of Massachusetts applicable to final 
 process on land, no matter where it is located ? or would the 
 law of the place where such rolling stock may be located 
 govern its sale under an execution ? Under the present 
 system of railroads, the rolling stock is as well adapted to 
 one road as another ; it is a matter of almost constant 
 bargain and sale between veirious corporations. One com- 
 pany may sell its rolling stock to another and replace it by 
 a new and more improved kind, and it is as applicable upon 
 one road as the other ; it is not a part of the real estate so 
 as to pass with it ; while it may be an essential element in 
 the operation and beneficial results of a franchise, a cor- 
 poration may receive the same revenues, and its franchise 
 may be just as valuable if leased and operated by some 
 foreign corporation which owns the rolling stock in use. 
 Then it can not be an essential part of the realty. Upon 
 the same principle applied in the determination that it is a 
 fixture so as to pass with the land, a ferry-boat or stage- 
 coach may be fixtures so as to pass with, a sale of ferry- 
 landings, or a turnpike company, and if a mortgage is made 
 of either, and registered as a conveyance of real property, a 
 creditor would have notice that the coach and boat were 
 included. It is not any more in the nature of a fixture 
 than a plow or any farming utensil. They are essential 
 elements in the beneficial operations of a farm. They 
 require to be used in order to make it productive. So does 
 rolling stock. They are just as essential to every farm in 
 the country as they are to one. They are in as general use 
 as rolling stock is on a railroad, and is there any question as 
 to their being personal property. Another question which 
 is by no means settled is, if in accordance with the later and 
 
Chap. XX.] AGAINST CORPORATIONS. 559 
 
 best considered cases, the rolling stock of a railroad 
 company is personal property, and a mortgage is made of 
 the entire property of the company, is it necessary in order 
 to give notice to all creditors and strangers to have such 
 mortgage recorded as a chattel mortgage, and renewed as re- 
 quired by law, in every county throughout which such road 
 may run ? or is it notice sufficient to file or record such mort- 
 gage as a real estate mortgage where the property is situ- 
 ated, that is the home or residence of the corporation, — i.e. 
 where its principal office is located. Now as to the element 
 of notice. The registry and recording acts, when applied in 
 the protection of purchasers and creditors, as far as the 
 same relates to chattel mortgages and the requirements 
 necessary to their renewal, are matters of statutory pre- 
 caution for the prevention of fraud. One of the require- 
 ments, that the mortgage be recorded at the residence of 
 the owner, or if a non-resident at the place where the 
 property is situated, is a question that is not so easily 
 disposed of as the first one. If the residence of a corpora- 
 tion is at the place of its organization, or where its principal 
 office is located for the general transaction, management, 
 and supervision of its affairs, and its property were to 
 remain there or in the county where its office is located, 
 there could be no question as to notice. And a levy and 
 sale under an execution in such county would only be of the 
 equity of redemption or right of possession until a forfeiture 
 by entry or foreclosure ; but the nature and scope of its 
 business is not such as to permit this : it may, as in case of 
 many roads, have a line extending through numerous 
 counties: it maybe located in several states; can it be said, 
 that in order to protect the mortgagee, he must follow the 
 property, file his mortgage in every county and state, and if 
 the rolling stock is, as is often the case, used on roads hun- 
 dreds of miles from the line of the company owning the 
 stock, and in other states where the execution of final 
 process is governed by other statutes, that he must follow 
 every one of the numerous portions of that rolling stock, 
 and file or record his mortgage in every town or county 
 
560 ON EXECUTIONS. [Chap. XX. 
 
 where it may happen to be. Take the case just mentioned. 
 A has a mortgage on the property of the Boston and Maine 
 railroad ; said mortgage includes the road-bed, iron, and roll- 
 ing stock ; its freight cars, to the number of a hundred, are 
 loaded, and in the ordinary course of business, the cars being ' 
 loaded with through freight, are transferred over twenty 
 different roads to San Francisco ; a creditor of the company 
 being there, and having a judgment, or commencing an 
 action by attachment, levies on the rolling stock, it being a 
 non-resident or foreign corporation, that being a cause for 
 attachment, recovers judgment and sells the property, — has 
 A to follow that rolling stock to San Francisco, and record 
 his mortgage there, and at all the intermediate points be- 
 tween Boston and that place, in order to protect his lien on 
 the property. This may seem an extreme case, but it is one 
 of daily and constant occurrence under the American system 
 of railway management. It is, therefore, necessary to adopt 
 some uniform system. Some principle that shall govern every 
 case as it arises, whether it be in different towns, counties, 
 or states, in regard to notice. The rule that personal prop- 
 erty follows thfe owner, and is taxable wherever the owner 
 is, may be a safe rule in questions of taxation, but can it be 
 in a question of this kind ? Proceedings subjecting prop- 
 erty to sale on execution upon judgments in rem, are founded 
 upon the location of the property, regardless of the domicile 
 or residence of the owner, where the auxiliary remedy 
 of attachment secures the property for the satisfaction of 
 such judgment. What, then, can be adopted as a fair and just 
 method of imparting notice to parties dealing with movable 
 property like the rolling stock of a railroad, where it travels 
 from one jurisdiction to another, with a speed only known 
 to such corporations, is a question yet to be determined. The 
 only safe mode is that of adopting the principle that regis- 
 tration must be made in every county and state on the line 
 of the road, or its place of local habitation. The former 
 rule governs in the case of real estate ; why should it not 
 as regards personal property ? Rolling stock of a rail- 
 
•Chap. XX.] AGAINST CORPORATIONS, &C. 661 
 
 road company must be considered personal property, and lia- 
 ble to execution.' But not in Illinois, where it is part of the 
 realty." The doctrine that the property of a railroad company, 
 necessary to operate its road, can not be seized, does not apply 
 where the levy is to enforce a specific Hen upon the 
 property accruing by reason of the non-payment of the 
 purchase-money ;' while in New Hampshire it is held that 
 the rolling stock can only be seized when not in use.' In 
 Pennsylvania, a demand is necessary before a levy can be 
 made on corporation property.' The mortgage bonds of a 
 railroad company before negotiation are liable.' 
 
 § 362. Or STOCK OR SHARES OF STOCK IN CORPORATIONS. 
 Shares in joint stock companies are riot, strictly speaking, 
 chattels ; they are considered as choses in action, or mere evi- 
 dences of property ; they are simply muniments and evi- 
 dence of the holder's title to a given share in the property 
 and franchises of the corporation of which he is a member ;' 
 they are mere demands for dividends as they become due, 
 and differ from movable property, which is capable of posses- 
 sion and manual apprehension.' That stock can not be con- 
 sidered in the light of a thing in possession and personal 
 estate, as distinguished from a chose in action, would appear 
 from the mere fact that at common law it could not be taken 
 
 ' Coe V. R. R. Co., 10 Ohio S. 372. ^ Fox v. Hempfield R. R,, 3 Pitts. 
 
 B. C. & M. R. R. V. Gilmore, 37 N. H. 289 
 
 410. Randall V. Elwell, 52 N.Y. 522. * Hetherington v. Hayden, 11 Iowa, 
 
 Hill V. La Crosse R. R., II Wis. 214. 335. 
 
 Pierce v. Emery, 32 N; H. 484. ■• INIechanics' Bank v. N. Y. & N. H. 
 
 Minnesota v. St. Paul Co., 2 Wall. R. R. Co., 13 N. Y. 627. N. Y. & 
 
 609. Stevens v. B. & N.Y. R. R., 31 N. H. R. R. Co. v. Schuyler, 17 Id. 
 
 Barb. 591. Beardsley v. Ontario Bank, 592. 
 
 Id. 619. Hoyle V. P. & M. R. R. Co. » Wildman v. Wildman, 9 Ves. 177. 
 
 54 N. Y., 314. Kirby v. Potter, 4 Id. 751. Planters' 
 
 " Titus V. Mabee, 25 111. 257. Hunt Bank v. Merchants' Bank, 4 Ala. 753. 
 
 V.' Bullock, 23 Id. 320. Palmer v. Denton v. Livingston, 9 Johns. 96. 
 
 Forbes, Id. 302. Union Bank v. State, 9 Yerg. 49a 
 
 » Hill v. La Crosse R. R. xi Wis. Foster v. Potter, 37 Mo, 525. Gilpin 
 
 214. Plymouth R. R. Co. v. Colwell, v. Howell, 5 Penn. 57. Slaymaker v. 
 
 39 Penn. 337. Gettysburg Bank, 10 Id. 373. Arnold 
 
 * B.C.&M.R.R.v.Gilinore,37N.H.4io. v. Ruggles, i R. I. 165. 
 36 
 
562 ON EXECUTIONS. [CHAr. XX. 
 
 in execution and sold for debts. Where property is of sa 
 intangible a nature that there can be no change of possession^ 
 as shares in a corporation, and it can not be known whether 
 they are attached or not, the sale of them on execution is a 
 mode of transfer not authorized at common law.' Shares in 
 incorporated companies being not thus at common law liable 
 to execution, they have been expressly made so in many 
 States by statute,'' where it stands in the name of the debtor,, 
 and no other person lays claim to it.' The equitable interests 
 in shares of stock can be sold on execution in the same manner 
 as a legal interest." So the interest of any judgment debtor, 
 whether in possession, remainder, or reversion, whether vested 
 or contingent, in stock standing in his name, in his own right,, 
 or in the ijame of any person in trust for him." To make a 
 good levy on stock the officer should give the defendant no- 
 tfce, if he is within his jurisdiction, that he takes the stock un- 
 der the execution, and go to the officers of the corporation 
 and require them to give him a certificate of the shares." The 
 right to subject stock in a corporation to sale on execution not 
 being given at common law, but being a statutory provision, 
 the statute in such cases directs the mode of seizure and sale 
 on execution. Where, by charter or statutory enactments, a 
 stockholder who is indebted can make no transfer until his 
 debt is discharged, there can be no levy upon such stock 
 unless it be subject to the lien of the corporation.' The 
 method prescribed in a charter or statute for the sale of such 
 
 ' Howe V. Starkweather, 17 Mass. ' Baker v.Tynte, 2 Ell. &E. 897. 
 240. Denny v. Hamilton, 16 Id. 402. ' Princeton Bank v. Crozer, 2 N. J. 
 
 Denton v. Livingston, 9 Johns. 96. 383. 
 
 Williamson v. Smoot, 7 Mart. La. ' Sewall v. Lancaster Bank, 17 S. & 
 
 31. R. 285. Rogers v. Huntington Bank, 
 
 ' Titcomb v. Ins. Co., 8 Mass. 326. 2 S. & R. 77. Grant v. Mechanics' 
 
 Taylor v. Junkin, 6 Jones L. 316. Bank, 15 S. &. R. 140. Titcomb v. 
 
 James v. P. R. Co., 8 Mich. gi. Stam- Ins, Co. 8 Mass. 326. Mechanics' 
 
 ford Bank v. Ferris, 17 Conn. 258. Bank v. Merchants' Bank, 45 Mo. 513. 
 
 ' Lex V. Potters, 16 Penn. 295. Perpet. Ins. Co. v. Goodfellow, 9 Id. 
 
 * Middletown, &c. Bank v. Jarvis, 149. Tuttle v. Walton, I Gen. 43. 
 
 33 Conn. 372. Cragg v. Taylor, Law West Branch Bank v Armstrong, 40 
 
 R. Q. Exch. 131. Penn. 278. 
 
■O.HA?. XX.l AGAINST CORPORATIONS. 663 
 
 stock must be pursued, or the sale will be void.' Where shares 
 cf stock in a corporation are made liable to levy and -sale on 
 execution, it is the interest the party has in the corporation 
 that is sold, not the mere paper certificates, and if they are sold 
 by the register number and in the name of the owner, that is 
 ^ good sale." The officer should execute a written instru- 
 ment of conveyance to the purchaser, the officer's return not 
 alone being sufficient.' Where a purchaser and the corpo- 
 ration are without notice of an unrecorded transfer, and the 
 title passes to the purchaser ;* while a purchaser with notice 
 that a party or the corporation has a lien upon the shares, 
 takes them subject to such lien, and is entitled to the surplus 
 if there be any after the satisfaction.' A sale of stock does 
 not carry with it any collateral agreements made between 
 the owner and the company.' In case of a sale on execution 
 of stock, as the officer selling can not put the party in posses- 
 sion, the proper officer of the company is substituted for the 
 officer by statute, which has made him pro hac vice, a. public 
 officer charged with this very duty, which he is required to 
 perform upon the presentation of the officer's certificate, and 
 upon refusal he may be compelled by mandamus.' The prin- 
 ciples in regard to sales of property under execution are 
 applicable to sales of stock, and inadequacy of consideration 
 and other causes which avoid other sales, are grounds for 
 setting aside sales of stock on execution.' Where one cor- 
 poration is the owner and holder of stock in another corpor- 
 ation, its stock is liable the same as that of an individual." 
 
 ' Titcomb v. Ins. Co., 8 Mass. 326. N. H. R. R. Co. v. Sphuyler, 38 Barb. 
 
 Howe Y. Starkweather, 17 Id. 240. 534. 
 
 James v. Road Co., 8 Mich. 91. Tay- • Western v. B. &c. Co., 5 Gal. 186. 
 
 lor V. Jenkins, 6 Jones L. 316. Tuttle v. Walton, I Geo. 43. " Foster 
 
 ' Stamford Bank v. Ferris, 17 Conn. v. Potter, 37 Mo. 535. W. &c. Co. v. 
 
 258. Armstrong, 40 Penn. 278. 
 
 > Morgan v. Thames Bank, 14 Gonn. ' Pittsburgh, &c. R. R. Co. v. Alle- 
 
 99. ghany Co., 63 Penn. 126. 
 
 * Blanchard v. Dedham, 3 Gray, 213. ' Bailey v. Strohecker, 38 Geo. 259. 
 
 Weaver v. R. R. Co., 50 Penn. 314. • State Bank v. Tutt, 44 Mo. 367. 
 
 Little V. Scranton, 42 Id. 500. Naglee ' Bank of U. S. v. Planters' Bank, 
 
 V. Pacific Co., 20 Cal. 529. .N. Y. & 9 Wheat. 904. 
 
564 ON EXECUTIONS. [Chap. XX 
 
 In Kentucky shares in a railroad company have been held 
 to be real estate which descends as realty, and of which a 
 widow might be endowed.' 
 
 § 364. Final process against municipal corpora- 
 tions. In regard to the enforcement of judgments against 
 municipal corporations, the general rules applicable to 
 final process on ordinary judgments are inapplicable to this 
 class of defendants or debtors. By express statutory provi- 
 sions in some of the American States, private property of 
 municipal corporations, such as they own or hold for profit, 
 and charged with public uses and trusts, are subjected to 
 levy and sale under executions issued on judgments against 
 such corporation, the same as in cases of individuals." With 
 the exception of these statutory enactments, the universal 
 and general rule in England and America, is that the prop- 
 erty acquired by a municipal corporation is not liable to exe- 
 cution.' As an execution is the end, life, and fruit of the law, 
 and is the process which commands and authorizes the 
 money due the plaintiff or creditor on a judgment recov- 
 ered by him to be made out of the property of his debtor 
 or the defendant, it is but reasonable to presume that all 
 corporations are amenable to the same compulsory method 
 of satisfying their debts. As we have shown in this chapter 
 that a corporation, like an individual, may sue and be sued, 
 and that it is, like an individual, amenable to the law, and 
 while the final results of a judgment against corporations are 
 the same as against individuals, the means by which such 
 results are obtained, are, in the case of a municipal corpora- 
 tion, exceptional and peculiar to that class of corporations. 
 In cases where judgment is rendered against this class 
 of corporations the process, though compulsory, is not 
 enforced by the ministerial officer of the court, as an execu- 
 tion is. There is no levy or seizure, no advertisement or 
 sale ; a process is issued by the court, in which judgment is 
 
 ' Price V. Smith, 9 Dana, 107. 295. Davenport v. Ins. Co., 17 Iowa, 
 
 * HoUiday v. Frisbie, 15 Cal. 130. 276. 
 Louisville v. Commonwealth, i Duval, ' Arnold v. Ridge, 13 C. B. 745, 
 
Chap. XX.] AGAINST CORPORATIONS. 565 
 
 rendered, known as a mandamus. It is the principal rem- 
 edy by which this class of debtors are made to perform their 
 duties, and satisfy the claims of their creditors. In those 
 states where its property is not subject to execution, and 
 judgment i; rendered against one of this class of corpora- 
 tions, mandamus is the appropriate remedy to enforce the 
 levy and collection of the necessary taxes whereby the money 
 is obtained to satisfy the judgment ; when a claim is re- 
 duced to judgment, the duty to provide means for its 
 payment becomes perfect, and if it can be paid in no other 
 way, its payment will be enforced by mandamus.' The writ 
 of mandamus, when so issued, is the final process of the court 
 for the enforcement of its judgment, and performs in substance 
 and effect the office of a writ of execution. It is the process 
 and means whereby the creditor realizes the fruits of his 
 judgment, and is, in such cases, to be favored. It is a 
 familiar process in federal courts in enforcing their judg- 
 ments against municipal corporations, or for the collection 
 of the principal and interest on what is known as railroad 
 aid bonds, issued by such corporations, and is of so high a 
 nature that, when issued by federal courts for the enforce- 
 ment of their own judgments, neither state courts nor state 
 legislatures can, in any manner, interfere with the exer- 
 cise of this power." 
 
 § 365. Exemption of the revenues of municipal 
 CORPORATIONS. The law, on grounds of public policy, 
 exempts from seizure under execution the taxes and pub- 
 lic revenues of such corporations. They can neither be 
 seized while in the treasury nor in transit to it.' The 
 
 ' Monaghan v. City of Phil. 28 v. Johnson Co., 6 Wall. 166. State v. 
 
 Penn. 257. Coy v. Lyons, 17 Iowa, I. Hugg, 44 Mo. 116. State v. Milwau- 
 
 Olney v. Harvey, 50 111. 453. Frank kee, 20 Wis. 87. 
 
 V. San Francisco, 21 Cal. 668. Schaf- ' Supervisors v. Durant, 9 Wall. 415. 
 
 fer V. Cadwallader, 36 Penn. 126. Amy v. Supervisors, II Id. 136. 
 
 Galena v. Amy, 5 Wall. 405. Super- Riggs v. Johnson Co., 6 Id. 166. 
 
 visors V. U. S., 4 Id, 435. Von Hoff- ' Oilman v. Contra Costa Co., 8 Cal. 
 
 man v. Quincy, 4 Wall. 535. Ran- 52. Edgerton v. Third Municipality 
 
 dolph Co. V. Ralls, 18 111. 29. Riggs of New Orleans, x La. Ann. 435. 
 
566 ON EXECUTIONS. [Chap. XX. 
 
 revenues of municipal • and public corporations are the 
 essential means by which they are enabled to perform 
 their appointed work. If they were subject to levy and 
 seizure upon execution issued against them, and thus 
 deprived of their regular and cpnstant supply of revenue 
 necessary to carry out the objects of their creation, they 
 would be in a measure useless and destroyed ; taking away 
 the revenues would result in their abolishment." 
 
 §336. Execution AGAINST A COUNTY. No execution can 
 issue upon a judgment against a county. When a judgment is 
 rendered against a county, it is the duty of the supervisors to 
 apply such funds in the treasury of the county as are not 
 otherwise appropriated, to its payment ; or if there are no 
 funds, and they possess the requisite power, they levy a tax 
 for that purpose ; and if they fail or refuse to apply the funds, 
 or to execute the power, resort may be had to a mandamus. 
 But if they have no funds, and the power to levy the tax 
 has not been delegated to them, the legislature must be 
 invoked for additional authority." The private property of 
 an inhabitaint of a county is not liable to seizure and sale on 
 execution for the satisfaction of a judgment recovered 
 against the county,* unless made so by statute, as is the 
 rule in some of the New England states.* 
 
 ' Dillon on Corp. 112. * Gaskill v. Dudley, 6 Met. 551. 
 
 ' Emerick v. Oilman, 10 Cal. 404. Brewer v. Inhabitants, &c., 14 Mass. 
 
 Randolph Co. v. Ralls, 18 111. 29. 216. Riddle v. Prop., &c., 7 Id. 187. 
 
 ' Emerick v. Oilman, 10 Cal. 404. Atwater v. Woodbridge, 6 Conn. 223. 
 
 Russell V. Men of Devon, 2 T. R. Beardsley v. Smith, 16 Id, 376. Chase 
 
 667. Wilson V. Commis, 7 W. & S. v. Merrimack Bank, 19 Pick. 568, 
 
 199. Merch. Bank v. Cook, 4. Id. 414. 
 
Chap. XXI.] CAPIAS AD SATISFACIENDUM. 567 
 
 CHAPTER XXI. 
 
 OF THE CAPIAS AD SATISFACIENDUM, OR EXECUTIONS 
 AGAINST THE PERSON OF THE DEBTOR. 
 
 When it issues. — Form of. — Upon what adjudications it wilt 
 issue. — How executed. — What is an arrest. — How made. 
 
 — Effect of an arrest. — Effect of discharge after arrest. 
 
 — When a discharge no satisfaction. — Of the escape. — Of 
 the return. — Of the writ of attachment. 
 
 § 367. The principal executions for the purpose of recov- 
 ■ering money are those which issue against the body of the 
 unsuccessful party, and those which issue against his goods 
 and chattels. The executions against the body are the capias 
 M.d satisfaciendum,, and the attachment. A capias ad satisfaci- 
 endum is a writ issuing out ofacourtof competent jurisdiction 
 in a cause where judgment has been rendered, directed to a 
 proper officer of the court, commanding him to take th,e 
 ■defendant, and him safely keep, so that he may hive his 
 body in court on the return day to satisfy, — ad satisfacien- 
 dum, — the plaintiff. At common law when a subject sued 
 •execution for debt or damages, he could not have the body 
 •of the defendant or his land in execution, unless it were in 
 special cases, but could have execution only of his goods 
 and chattels, of his corn, and other present profits of his 
 land, for which purpose the law gave him two several writs, 
 to be sued within a year, one called 2. fierj. facias, which was 
 ■only of the goods and chattels, the other a levari facias, 
 whereby the officer was commanded that of the lands and 
 •chattels of the defendant he should cause to be levied. The 
 capias ad satisfaciendum lay at common law in actions of 
 trespass vi et armis only, but has since been given in other 
 
568 ON EXECUTIONS. [Chap. XXI. 
 
 actions by a variety of statutes. Owing to the liberal and 
 humane views of the legislative bodies of the various States- 
 and the many changes that have been made, both in Eng- 
 land and the states of the United States, the statutes 
 authorizing imprisonment for debt have been so greatly 
 modified or abolished, that it is only upon allegations 
 of fraud and concealment of property in contracts and in 
 torts, that the capias is allowed. Each state has its own 
 statutory provisions regulating arrest and bail. The writ of 
 capias ad satisfaciendum, or as it will for the sake of brevity 
 be herein termed a ca. sa., is an execution of the highest: 
 nature, as it deprives a man of his liberty until he makes the 
 satisfaction awarded, and when a man is once taken, no other 
 process can be sued out against his lands or goods, except 
 where changed by statutory provisions. 
 
 § 368. Form of. In point of form, the ca. sa. must pur- 
 sue the judgment, be tested on a general test day, unless 
 otherwise provided by statutory enactments, be sealed with 
 the seal of the court, and signed like other writs by its clerk. 
 It must be for the same sum as that for which judgment is- 
 rendered, unless part of the judgment has been paid or col- 
 lected on an ordinary execution, in which case it issues for 
 the residue. If there are several defendants, it must be 
 issued against the whole of them, or it is void.' But there 
 are many persons against whom it can not be issued, on the 
 grounds of the promotion of the public good, not as a favor 
 granted to particular persons. These are ambassadors and 
 other public ministers, and their "servants ; members of con- 
 gress, and those of the state legislatures. Parties, their 
 attorneys and witnesses in court, are not liable to this process 
 eundo, morqndo, et redeundo, or going to, remaining at, or 
 returning from the places they are called by their public 
 duties. In the case of attorneys, witnesses, &c., in order 
 that they may have the freedom required to attend upon- 
 their respective obligations in court." All non-commis- 
 
 ' Clark V. Clement, 6 Term. 526. ''Brown v. Hurst, 4 Yeates, 124. 
 
 Howzer v. Dellinger, I Ired. 475. Parker v. Hotchkiss, I Wall. C. C. 368. 
 
Chap. XXI.] CAPIAS AD SATISFACIENDUM. 569 
 
 sioned officers, artificers, privates, musicians, seanaen, and 
 marines, or any officer who, at any time, may be in the 
 actual service of the United States, are exempt during their 
 term of service.' 
 
 § 369. Upon what adjudications it will issue. In 
 order to warrant the issue of a ca. sa., it is only necessary for 
 the court to adjudge the cause of action to be of the char- 
 acter designated by statute, in which execution may issue 
 against the person." In Maine, when the original demand 
 is more than ten dollars. But where no order of arrest is 
 issued before judgment, none can issue afterwards.' In case 
 of an arrest where bail has been taken, the execution may 
 issue against the property or the body of the defendant. But 
 in such cases, it can not issue against the body until an exe- 
 cution against the goods, chattels, lands, and tenements of 
 such defendants shall have been returned unsatisfied in whole 
 or in part. But if the defendant be imprisoned on execution 
 in another cause, or upon process in the same action, or 
 be surrendered in exoneration of his bail in such action, an 
 execution may issue against his body without any previous 
 execution against the property. It is the general rule of law 
 that where a defendant may be arrested in a civil action, he 
 is liable to an arrest on execution. Where a defendant 
 has been arrested on an order of arrest which is afterwards 
 vacated, he is not liable to arrest afterwards because the 
 jury have found him guilty of fraud in contracting the debt. 
 The decision vacating the order of arrest- is conclusive.' A 
 
 Grant v. Grant, 2 Wend. 257. Van Robinson, 10 Cal. 411. Barker v. 
 
 Werel v. Van Wezel, l Ed. Ch. 118. Russell, 11 Barb. 303. Eames v. Ste- 
 
 ' U. S. Statutes. vens, 26 N. H. 117. 
 
 ' Hunt V. Burdick, 42 Vt. 610. ' Wood v. Henry, 40 N. Y. 124. 
 Adams v. Ward, Id. 516. Lembke's Smith v. Knapp, 30 N. Y. 581. Car- 
 Case, II Abb. Pr. N. S. 72. Stewart penter v. Willett, 3 N. Y. go. Geno- 
 V. Levy, 36 Cal. 159. Abbott v. chio v. Figari, 4 Ed. Smith, 227. Ker- 
 Tucker, 4 Allen, 72. Whiting v. Dow, denburgh v. Morgan, 4 Bosw. 646. 
 42 Vt. 262. Webber v. Davis, 5 Allen, Norman v. Manciette, I Sawyer, 484. 
 29. Howland V. Needham, 10 Wis. Prouty v. Swift, 51 N. Y. 394. Church, 
 495. Mattoon v. Elder, 6 Cal. 37. &c. v. Crawford, 36 N. Y. Sup. Ct 307. 
 Davis V. Dorr, 30 Vt. 197. Davis v. . "■ Stelle v. Palmer, 11 Abb. 62. 
 
670 ON EXECUTIONS. [Chap. XXI. 
 
 writ can not issue against the bodies of the members of an 
 aggregate corporation.' But after a defendant has been 
 arrested, pending a suit, mere release from imprisonment by 
 the consent of the plaintiff, upon giving security, will not 
 exempt him from an execution against his person. In 
 many states, statutes have been enacted, exempting women 
 from the operation of this writ, and forbidding their im- 
 prisonment for their debts on their contracts where there is 
 no fraud. One of two joint-debtors may be imprisoned, 
 notwithstanding he offered to point out sufficient property 
 of his co-defendant to satisfy the execution." Nor is it 
 necessary to the validity of a ca. sa., that the time or place 
 of its return should appear in the writ.' 
 
 § 370. How EXECUTED ; WHAT IS AN ARREST ; HOW 
 MADE. The writ oi ca. sa. is executed by the sheriff or 
 his officer taking into custody the defendant's person, by 
 keeping him in close confinement, generally within the 
 county or public prison provided by law." But this confine- 
 ment has been rendered less rigorous than formerly, in many 
 states, by allowing certain prison bounds or jail limits ; and 
 in some states, the defendant is discharged by giving secur- 
 ity to the plaintiff. The arrest should be made by actual 
 seizure of the defendant's body. But any touching, how- 
 ever slight, is sufficient ; and if the intention to make an ar- 
 rest and the power of the officer to do so in form, co-exist 
 and are made known to the party who does not resist, 
 nothing more is required ;" no manual force or touching of 
 the body is necessary.' A sheriff may make an arrest with- 
 out showing the writ for which the arrest is made, but a 
 special deputy must exhibit his authority, if requ ired. This 
 is on the principle that within his own county the sheriff is 
 a known public officer.' The arrest may be made in part of 
 
 Meech v. Loomis, 23 How. P. * Jacobs v. Tolman, 8 Mass. 161. 
 484. » Emery v. Chesley, 18 N. H. 198. 
 
 ' Nichols V. Thomas, 4 Mass. 232. ' Field v. Ireland, 21 Ala. 240. 
 Tippets V, Walker,, Id. 595. ' Sheldon v. Van Buskirk, 2 N. Y. 
 
 ' Dooley v. Cotton, 3 Gray, 496. 476. Arnold v. Steeves, 10 Wend. 514. 
 
 ' Fake v. Edgerton, 5 Duer, 681. Blatch v. Artcher, Cowp. 63. 
 
Chap. XXI.] CAPIAS AD SATISFACIENDUM. 571 
 
 the county, and in any place, upon the premises of the de- 
 fendant, or in any building of his ; or of any other person, 
 -even in a dwelling-house, if the outer door is open.' 
 
 § 371. Arrest, how made. The arrest should be made 
 by actual seizure of the defendant's body. But any touch- 
 ing, however slight, is sufficient ; as if the officer lays his 
 hand on the defendant and says, " I arrest you," without 
 saying at whose suit, or by what process, unless required by 
 the defendant, it is a good arrest ; and it has been held a 
 good arrest, while the defendant's hand was out of the win- 
 dow, the officer laid hold of it. But no manual touching 
 of the body, or actual force is necessary to constitute 
 an arrest.' It is sufficient if the party be within the power 
 of the officer, and submit to the arrest.' Nor is it necessary 
 that the arrest should be made by the officer to whom the 
 process is directed, nor need he be in sight when the arrest 
 is made. It may be done by another, sent forward at some 
 distance and out of sight. Nor is any exact distance pre- 
 scribed. It is sufficient if the officer be near, and acting in 
 the arrest. And where the arrest was made by the officer's 
 son, the officer himself being out of sight, and two hundred 
 yards distant, such arrest was held good, in an action 
 against the sheriff for an escape.* But words only do not 
 make an arrest, as where the officer goes to the party and 
 says, " I arrest you," unless the party submits. And where, 
 in such case, the officer merely utters the words, and before 
 he touches the prisoner, he runs away, or the officer is 
 beaten off, it is no arrest. And so whepe the officer read his 
 ■warrant to the defendant, and then, having taken his fee, 
 proceeded to the defendant's attorney to let him know it in 
 order to put in bail, and afterwards returned that he had 
 arrested the party, it was held to be no arrest. And like- 
 wise, where the officer sent his servant to the party to in- 
 
 ' Ratcliff V. Burton, 3 B. &. P. 228. » Wilson v. Tucker, l Salk. 79. 
 
 Haggerty v. Wilber, 16 Johns. 287. Gold v. Bissell, I Wend. 210. 
 
 Hubbard v. Mack, 17 Id. 127. * Blatch V. Archer, Cowp. 63. 
 
 ' Field V. Ireland, 21 Ala. 240. 
 
572 ON EXECUTIONS. [Chap. XXI 
 
 form him that there was a writ out against him, and that he 
 must come and give bail, it was held no arrest, for the mes- 
 senger had no warrant. An officer in the execution of a ca. 
 sa., who puts his hand into a debtor's dwelling-house by an 
 opening of the window, caused by a pane having been 
 broken, but not broken by the officer, who merely touches 
 the debtor, who is inside of the house, and says, " You are 
 my prisoner ; " having made a legal arrest, he is then jus- 
 tified in breaking in the outer door for the purpose of taking 
 into custody the debtor so arrested.' The sheriff or his 
 officer can riot break a house to execute a ca. sa. / neither 
 may he open the door, though it be but latched, or knock, 
 and when the door is a little opened, thrust in with violence. 
 But he may enter the house, even of another person, where 
 the party is, if the door be open, though it be six o'clock at 
 night. Where a statute prevents an arrest being made after 
 sunset, unless specially authorized by the. magistrate for good 
 cause shown, it is not necessary to indorse upon the writ that 
 it be made in the daytime.' Or arrest a party through the win- 
 dow, if the window be open ; but if the party arrested escapes 
 in to a house, or being arrested at a window, escapes, the officer 
 may break into the house to take him. Where several fami- 
 lies or individuals lodge in the different floors of one house, 
 which has but one street door, though the officer can not 
 break the street door, yet, if that be open, he may enter and 
 break any other ; for this priviledge of doors is, for obvious rea- 
 sons, attached to houses, and not to the persons of parties con- 
 cealing themselves from justice.* However, if the officer, on 
 information that his prisoner has fled into any house, break 
 open the door, or any chest within the house, he takes it upon 
 him to do so at his peril ; for if the prisoner be not there, he 
 is guilty of a trespass. The officer may not beat, strike, or 
 assault a party in the taking ; but if a party be taken and 
 then fly, and draweth any weapon, the officer may justify to 
 
 ' Sandon v. Jervis, i EU. B. &. E. ' Semayne's Case, 5 Co. 92. 
 35. Snydacker v, Brasse, 51 111. » Manuel v. Bates, 104 Mass. 354. 
 
 357- * Lee v. Gansel, Cowp. i. 
 
■Chap. XXI.] CAPIAS AD SATISFACIENDUM. 673 
 
 assault, batter, and take him again. When a party is 
 arrested upon a ca.sa., he is immediately in execution before 
 the return of the writ, and, therefore, if the defendant be in 
 the custody of the sheriff, and another writ of ca. sa. against 
 him is delivered to the sheriff, he shall be in execution 
 immediately upon the second writ, without actual arrest. 
 
 § 372. Of the effect of an arrest. If the defendant 
 be taken in execution all other remedies are suspended, and 
 no other writ of execution can be executed against him 
 upon the judgment while he is so charged.' The taking of 
 the defendant in execution has always, at common law, been 
 recognized as an extinguishment of the judgment, subject 
 to a contingency of a revivor by virtue of his death in prison 
 or his escape therefrom, without the plaintiff's consent. 
 But while the happening of this contingency may restore to 
 the plaintiff the right to enforce his judgment by action or 
 appropriate process, it does not prejudice interests acquired 
 by third persons while the debtor was in custody. The ar- 
 rest waives and extinguishes all other remedies on the goods 
 or lands of the debtor, while the imprisonment continues, 
 and if the debtor be discharged by consent of the creditor, 
 the judgment is forever extinguished, and the plaintiff re- 
 mitted to such contracts or securities as he has taken as the 
 price of the discharge. Nor can the debtor plead such 
 arrest in avoidance of any contract made while in confine- 
 ment. Executio juris non habet injuriam, the imprisonment 
 of a party in the execution, and by virtue of lawful process, 
 is not such an act as can be pleaded in avoidance of a con- 
 tract entered into while under its coercion. But if the 
 plaintiff be remitted to other remedies by a discharge of his 
 ■debtor by act of law, or by an escape, it will not operate to 
 restore his lien on the debtor's property which he .has 
 neglected to waive or abandon as against creditors who 
 ,have gained precedence during such suspension." It was 
 
 ' Clement v. Garland, 53 Me. 427. ' naby's Case, i Strange. 653. Vigus v. 
 
 ' Snead v. McCuU, 12 How. 407. Aldrich, 4 Burr, 2483. Jacques v. 
 
 Foster v. Jackson, Hobart, 52. Bar- Wiltby, I Term. 557. Taylor v. 
 
574 ON EXECUTIONS. [Chap. XXI. 
 
 formerly held, that if a person taken on a ca. sa. died in exe- 
 cution, the plaintiff had no further remedy; because he 
 determined the choice of this kind of execution, which, 
 affecting a man's liberty, is esteemed the highest and most 
 rigid in law.' But if he die while so charged, or escape, be 
 rescued or be discharged under any insolvent law discharg- 
 ing his person, new execution may be issued against his 
 body if he escape or be rescued, or against his property if 
 he die or be discharged, in the same manner as if he had 
 never been charged in execution." The body is merely re- 
 garded as a pledge for the debt ; it is taken not in satisfac- 
 tion, but ad satisfaciendum. The presumption is that the 
 debtor is solvent, but is coerced of his liberty until he makes 
 payment. His imprisonment is not a punishment, but 
 merely a means of getting at that property which he is sup- 
 posed to possess and fraudulently withholds. If he dies in 
 prison without having surrendered his property, it is per- 
 fectly consonant with this proceeding that a new writ should 
 issue, attaching immediately upon the property. The judg- 
 ment of the court, that he shall pay, is still unexecuted. 
 
 §373- Effect of a discharge after arrest. If a 
 debtor has been taken in execution, and is discharged with 
 consent of the plaintiff, the judgment is extinguished.' No 
 further proceedings can be taken for the same debt, unless 
 
 Waters, 5 M. & W. 103. Ex parte burn v. Stupart, 2 East. 243. Utica 
 
 Knowell, 13 Ves. Jr. 193. Cooper v. Ins. Co. v. Power, 3 Paige, 365. Yates 
 
 Bigalow, I Cow. 56. Ranson v, Keyes, v. Van Renssalaer, 5 Johns. 364. Ex 
 
 9 Cow. 128. Sharp v. Specknagle, parte Knowell, 13 Ves. Jr. 193. Win- 
 
 3 S. & R. 468. Little V. Bank, 14 drum v. Parker, 2 Leigh, 361. Poucher 
 
 Mass. 443. Rockhill v. Hanna, 15 v. HoUey, 3 Wend. 184. Little v. 
 
 How. 196. Jackson v. Benedict, 13 Newburyport Bank, 14 Mass. 443. 
 
 Johns. 533. Griswold v. Hill, 2 Paine, Mazyck v. Coil, 3 Rich. 235. Masters 
 
 C. C, 492. V. Edwards, I Caines, 515. McLean 
 
 ' Foster v. Jackson, Hob. 52. Hars- v. Whiting, 8 Johns. 339. Ranson v. 
 
 het's Case, 3 T. R. 12. Williams v. Keyes, 9 Cow. 128. Vigus v. Aldrich, 
 
 Cutteris, Cro. Jac. 136. 4 Burr, 2482. Jacques v. Wiltby, I 
 
 ' Sharp V. Specknagle, 3 S. & R. T. R. 557. Thompson v. Bristow, 
 
 465. Cooper V. Bigalow, 1 Cow. 56. Barnes, 205. Tanner v. Hague, 7 
 
 Freeman v. Rushton, 4 Dall, 214. T. R. 420. Dacosta v. Davis, I B. & 
 
 « Horn V. Horn, Amb. 79. Black- P. 242. Furman v. Haskin, 2 Cain. 369. 
 
Chap. XXI. CAPIAS AD SATISFACIENDUM. 575 
 
 he has escaped without consent of such creditor, ot had pro- 
 cured such consent through fraud." The debtor, after his 
 .discharge by consent, can not lawfully be retaken, though 
 he procured this consent by giving a new security, which 
 was defeated on account of uiformality," or agreed that the 
 judgment should be revived, or that he would pay the debt 
 at a future day,' or that the judgment should continue in 
 force as security and be enforced by execution if not paid.* 
 The execution is considered quoad him, as a satisfaction of 
 the debt,' and the same principle applies in the case of 
 joint debtors, where one is released by consent of the 
 plaintiff,* as it extinguishes the judgment. But the con- 
 trary seems to be the rule in some States.' Unless there is 
 a statutory provision to the contrary, an arrest upon a ca. sa. 
 is a satisfaction of the judgment ; ' but not in England and 
 N. C.° If several actions be prosecuted to judgment 
 against persons engaged in committing the same act of 
 trespass, the discharge by the plaintiff of the defendant in 
 either judgment satisfies all the judgments. The plaintiff 
 
 ' Vigers v. Aldrich, 4 Burr, 2483. T. R. 525. Blackburn v. Stupart, 2 
 
 King V. Goodwin, 16 Mass. 63. State East. 243. Bailey v. Kimball, i Chip. 
 
 V. Richardson, 18 Ala. 109. Jacques 151. Lathrop v. Briggs, 8 Cow. 171. 
 
 V. Wiltby, I Dumf. & E. 557. Porter Bassett v. Salter, 2 Mod. 136. Jacques 
 
 V. Ingham, 10 Mass. 88. v. Wiltby, i T. R. 557. Tanner v. 
 
 " Jacques v. Wiltby, I D. & E. 552. Hague, 7 T. R. 416. Crary v. Morgan, 
 
 Porter v. Ingham, II Mass. 88. 6 Johns. 51. Yates v. Van Renssalaer 
 
 ' Thompson v. Bristow, Barnes, 205. 5 Johns. 364. Herring v. Durrell, 4 
 
 Tanner v. Hague, 7 D. & E. 420. Jur. 800. Whiting v. Stark, 12 Ark. 
 
 * Blackburn v. Stupart, 2 East, 243. 421. Lovejoy v. Murray, 3 Wall. i. 
 
 Coburn v. Palmer, 10 Cush. 273. ' Porter v. Ingraham, 10 Mass. 88. 
 
 ' Cooper V. Bigalow, l Cow. 56. Lyman v. Lyman, 11 Id. 317. Abbott 
 
 Sharp V. Specknagle, 3 S. & R. 465. v. Osgood, 38 N. H. 280. Eggart v. 
 
 Freeman v. Rushton, 4 Dall. 214. Barenstine, 3 McCord, 162. Abat v. 
 
 Houghton V. Wilson, 10 Gray, 365. Whitman, 7 Mart. 163. Martin v. 
 
 Miller V. Miller, 25 Me. no. Fassett Ashcroft, 8 Id. 315. 
 
 V. Tallmadge, 15 Abb. Pr. 205. Bank ' Cooper v. Bigalow, i Cow. 56. 
 
 V. Beale, 7 Bosw. 611. Mazyck v. Coil, 3 Rich. 235. 
 
 ■ Ballam v. Price, 2 Moo. 235. Ex Houghton v. Wilson, 10 Gray, 365. 
 
 parte Knowell, 13 Ves. Jr. 193. Ran- • Semple v. Keene, 3 H. & N, 753. 
 
 son V. Keyes, 9 Cow. 128. Horn v. Hamilton v. Bredeman, 12 Rich. Law. 
 
 Horn, Amb. 79. Clark v. Clement, 6 464. 
 
t57R ON EXECUTIONS. [Chap. XXI. 
 
 in either judgment being entitled to but one satisfaction for 
 tiie injury he has sustained by the trespass committed by 
 the defendants, obtains that by the imprisonment of one 
 defendant and his discharge thereupon.' An attorney at 
 law, having no authority as such to satisfy the judgment 
 without full payment, can not authorize the discharge of a 
 defendant taken in execution." 
 
 § 374. When discharge no satisfaction. But 
 owing to statutory changes this rule of law has been 
 changed, and a discharge from prison because the plaintiff 
 refuses to pay the prison fees is now no satisfaction of the 
 judgment,' or a discharge from custody under the insolvent 
 laws. The plaintiff may, notwithstanding such discharge, 
 proceed to enforce his lien on the lands of the debtor, 
 though they have been conveyed to third persons during 
 his imprisonment.* An illegal discharge is no satisfaction,' 
 or where the execution is set aside for irregularity," or where 
 the discharge is by act of law. But if he take the note of 
 one of two defendants, taken on a ca. sa., in satisfaction of 
 damages, it is a discharge of the other defendant.' A court 
 will not discharge a defendant from custody on a ca. j«.,on 
 the ground that he has been before irregularly taken and dis- 
 charged under criminal process at the instance of the plain- 
 tiff." The discharge of debtor by a void recognizance is not a 
 valid discharge, but is regarded as an escape, and therefore 
 no satisfaction." So the imprisonment of a debtor for a fine 
 is not a discharge thereof. Therefore a release by the peo- 
 ple or the king does not discharge the fine." It is no ground 
 
 ' Kasson v. People, 44 Barb. 347. ' Wesson v. Chamberlain, 3 N. Y. 
 
 " Jackson v. Bartlett, 8 Johns. 361. 331. Freeman v. Smith, 7 Ind. 582. 
 
 Kellogg V. Gilbert, 10 Id. 220. Simou- ' McCormick v. Melton, i C. M. & 
 
 ton V. Barren, 21 Wend. 362. R. 525. Masters v. Edwards, I 
 
 " Prentiss v. Hinton, 6 Blackf. 35. Caines, 515. 
 
 Hidden v. Sanders, 2 R. I. 391, Sto- ' Ballam v. Price, 2 Moo. 235. 
 
 ver V. Dunn, 3 Strobh. 448. Naddin ' Mackie v. Warren, 5 Bing. 176. 
 
 V. Baltic, 3 East. 87. • Brown v. Kendall, 8 Allen, 209. 
 
 * Stroade v. Broadwell, 36 111. 419. '» King v. Woolf,2B. & A. 609. Rex 
 
 Owen V. Glover, 2 Cranch C. C. 578. t. Wade, Skin. 12. Rex v. Wolfe, I 
 
Chap. XXL] CAPIAS Ad' SATISFACIENDUM. 677 
 
 for discharge that the party had been arrested and discharged 
 on the ground of privilege.' A ca. sa. in an action of debt 
 against a privileged person is irregular." If a debtor has 
 been arrested when the execution should have been levied 
 on his property, the commitment is not for that reason 
 void ; his remedy is against the officer.' Nor is ilx invalid 
 . by the officer's failing to return the execution.* 
 
 § 375- Of the escape from arrest. Escapes are 
 either voluntary or negligent. Voluntary are such as are by 
 the express consent of the keeper ; after which he can never 
 retake his prisoner again. Though the plaintiff may retake 
 him at any time, but the officer must answer for the debt. 
 Negligent escapes are where the prisoner escapes without 
 his keeper's knowledge or consent ; then, upon fresh pursuit, 
 the defendant may be retaken, and the officer is excused if 
 the defendant is in his custody before any action is brought 
 against him for escape. A rescue of a prisoner in execution, 
 ■either in going to or in jail, will not excuse the officer from 
 being guilty and answering for the escape ; for he ought to 
 have sufficient force to keep him, since he can command 
 the power of the county. If the defendant is in custody 
 upon this process, he- is to be kept in arcta et salvia custo- 
 dia, and if he is afterwards seen at liberty, it is an escape ; 
 and the plaintiff may have an action against the officer for 
 his whole debt. For while upon arrest in mesne process he 
 may indulge the defendant as he pleases, so as he is pro- 
 duced in court to answer to the plaintiff at the return of the 
 writ, upon a taking in execution he can never grant any 
 indulgence. For in that case the confinement is the whole 
 of the debtor's punishment, and of the satisfaction made to 
 the creditor, where the debtor is in execution, the creditor 
 has a right to the body of his debtor every hour until the 
 debt is paid ; and an escape of the debtor, for ever so short a 
 
 Chitt. 401. State v. Richardson, 18 " Cassidy v. Stewart, 2 M. & G. 437. 
 
 Ala. log. ' Warner v. Stockwell, 9 Vt. 9. 
 
 ' Towers v. Newton, I Q. B. 319. * Watkinson v. Bennington, 13 Vt 
 
 Barrack v. Newton, Id. 525. 40I. 
 
 37 
 
578 ON EXECUTIONS. [Chap. XXI. 
 
 time is necessarily a damage to him, and an action for the 
 escape lies.' Or if the officer permit the prisoner to go at 
 large, it will be an escape for which he will in general 
 become liable for the debt, although the prisoner voluntarily 
 return and surrender himself to prison before the return day.* 
 In case of an escape or rescue, though the sheriff be liable 
 because he ought to have taken the posse comitatus, still the 
 plaintiff is not bound to look to the sheriff, because the 
 latter may be insolvent, for the defendant will not be 
 allowed to take advantage of his own wrong. 
 
 § 376. Of the return of a ca. sa. The usual returns 
 to a writ oi ca. sa. are, that the officer has taken the defend 
 ant, whose body he has ready, formerly made in latin cept 
 corpus; or that the defendant is not to be found in his 
 county or bailiwick, non est inventus ; on the latter return, 
 the plaintiff may sue out an alias capias into the same, or a 
 testatum in a different county, or at his choice he may have 
 any other execution suitable to the case ; or the officer may 
 return that the defendant has become bankrupt, and there- 
 fore he forbore to take him. If on a ca. sa. a return of non 
 est inventus is made thereon, the plaintiff may cause process 
 to issue against the bail, in order to enforce a compliance 
 with the bond given for the release of the defendant, in 
 accordance with the terms of said bail bond. A writ of scire 
 facias may be sued out against the bail, commanding them 
 to show cause why the plaintiff should not have execution 
 against them for his debt and damages, and if-they show no 
 sufficient cause, or the defendant does not surrender himseli 
 on the day of showing cause, the plaintiff is entitled to judg- 
 ment against the bail, and to take out execution against 
 them. Where an officer is prevented from arresting a 
 defendant, he should state the facts in his return. A return 
 of non est inventus in such a case is false.' " Cepi " is a 
 
 ' Williams v. Mostyn, 4 M. & W. » Dowdal v. Harner, 2 Watts. 63. 
 
 153. Wylie V. Birch, 4 Q. B. 566. Shewell v. Fell, 3 Yeates, 17. Wheeler 
 
 Clifton V. Hooper, 6 Id. 468. Williams v. Hambright, 9 S. & R. 390. 
 
 V. Griffith, 3 Exchq. 584. « Houser v. Hampton, 7 Ired. 333. 
 
Chap. XXI.] CAPIAS AD SATISFACIENDUM. i579 
 
 good return on a writ ;' but It is not returnable until 
 executed.' 
 
 § 377. Of the WRIT OF ATTACHMENT. An attachment 
 is a writ commanding the officer to arrest a particular person 
 who has been guilty of a contempt of court, and to bring 
 the offender before the court. It issues whenever a party- 
 has been ordered by a rule of court to perform a certain act, 
 and he has omitted to perform it, as where he has been 
 ruled to pay costs, or perform an award. On the service of 
 the attachment, the party is taken into custody, and is con- 
 fined in prison until he afterwards obtain his discharge in 
 due course of law. 
 
 ' Stote V. Lawson, 2 Gill, 5a, • Williams v.Newton, i G. & D. 153. 
 
580 ON EXECUTIONS. [Chap. XXII. 
 
 CHAPTER XXII. 
 
 FINAL PROCESS IN FEDERAL COURTS. 
 
 History of. — Statutes regulating Final Process. — How exe- 
 cuted. — What law controls. — Where Final Process runs. — 
 Where it runs when in favor of the United States. —Ap- 
 praisement. — Sale and proceedings. — Proceedings in Admi- 
 ralty sales. — When an execution from Admiralty Courts 
 may be levied as an ordinary fi. fa. — Stay of execution, — 
 Supersedeas. — Requisites necessary to obtain. 
 
 % 378. Final process in federal courts. The exe- 
 cution of final process issued from federal courts is not by 
 any means uniform. There are almost as many statutory 
 provisions regulating the proceedings upon execution as 
 there are States in the Union. " In regard to the modes 
 of procedure in the courts of the United States, Congress, 
 in organizing the courts, regulated many matters of pro- 
 cedure and passed what is known as the Process Act." This 
 act provides that the common-law procedure, not otherwise 
 regulated, should conform to the procedure issued in the 
 state courts of the state where each United States court 
 sat ; that the equity, admiralty, and maritime procedure 
 should conform to civil law. This was preserved and con- 
 firmed by the Process Act of 1792, which further provides 
 that the procedure in equity, admiralty, and maritime juris- 
 diction shall conform to the principles, rules, and usages 
 belonging to courts of those respective jurisdictions, as dis- 
 tinguished from the courts of common law, subject to the 
 power of the courts to modify their own procedure by rules 
 made for themselves, or by the supreme court for the dis- 
 
Chap.xxii.'' final process. 681 
 
 trict and circuit courts. The intention of Congress, in 
 passing the Process Act, was, that the forms of writs and. 
 executions, and the modes of process and proceedings in 
 common-law suits in the several circuit courts, should be 
 the same as they were at that time in the courts of the 
 respective states. Instead of framing the forms of process 
 and presenting the modes of process. Congress adopted 
 those already prepared and in use in the respective States. 
 Not as state regulations, but as the rules and regulations 
 prescribed by Congress for use in the several circuit courts. 
 Adopted, as they were, by an act of Congress, they became 
 the permanent forms and modes of proceeding, and 
 continue in force wholly unaffected by any subsequent 
 legislation. Alterations can be made only by Congress, or 
 by the federal courts acting under the authority -of an act 
 of Congress. The practical effect of the course pursued was 
 that the forms of writs and executions, and the modes of 
 process and proceedings were the same whether the litiga- 
 tion was in the state court or the circuit court of the 
 United States. They were not always the same in 
 different States, nor in different circuits ; in some instances 
 they were widely different in the different states of the 
 same circuit. Great diversity, in the forms of action, was the 
 necessary effect of the system. Modes of final process were 
 also different. Lands of the debtor were subject to seizure 
 and sale on execution in one district, while in another real 
 property was only subject to seizure, and to an extent corre- 
 sponding to the modified elegit as at common law. Money 
 judgments in one district became liens upon the lands of 
 the judgment debtor, while in another the judgment debtor 
 must first seize the lands before he was entitled to any such 
 preference. Remedies on judgments against municipal 
 corporations partook of the same diversity in different 
 districts, or that appearing in the modes of process to en- 
 force judgments recovered against private persons. Judg- 
 ment against such a corporation might be enforced in one 
 district by levying the execution, as issued against the 
 
082 ON EXECUTIONS. [Chap. XXII. 
 
 corporation, upon the private property, real and personal, 
 of any inhabitant of the municipality ; while in another, 
 the appropriate remedy, in case the execution was returned 
 " nulla bona" was mandamus to compel the proper officers 
 of the corporation to assess a tax for the payment of the 
 judgment. The circuit courts, by virtue of those acts of 
 Congress, became armed with the same forms of writs and 
 executions, and vested with the same authority to employ 
 the same modes of process as those used in the state courts. 
 The permanent effect of that wise measure was, that the 
 forms of writs and executions were the same whether the 
 litigation was in the forums of the state or the circuit court 
 of the United States.' 
 
 § 379. Statutes regulating final process. The first 
 statute regulating process in the courts of the United States 
 was passed September 24th, 1789, and is known as the 
 Judiciary Act. Chap. 36, i Stat, at large, 275, provides 
 that the form of writs of executions and the forms and modes 
 of proceeding in suits at common law shall be the same as 
 are now used in the said courts respectively, in pursuance of 
 the act, " An act to regulate processes in the courts of the 
 United States," which provides that they shall be the same 
 in each state respectively as are now used or allowed in the 
 supreme courts of the same ; but in cases of equity, admir- 
 alty, and maritime, jurisdiction shall be according to the 
 course of the civil law ; according to the principles, rules, 
 and usages which belong to courts of equity and courts of 
 admiralty, as contradistinguished from courts of common 
 law, subject to such alterations and additions as the said 
 courts shall deem expedient, or to such regulations as the 
 United States Supreme Court shall think proper from time 
 to time to prescribe to any circuit or district court ; provided, 
 that on judgments in any of the cases where different execu- 
 tions are issuable in succession, a capias ad satisfaciendum 
 being one, the plaintiff shall have his election to take out a ca. 
 sa. in the first instance. In 1828, the following act was passed 
 ' Clifford in Riggs v. Johnson Co., 6 Wall. 166. 
 
Chap. XXII.] FINAL PROCESS. 683 
 
 which regulated final process In the courts of the United 
 States : " Writs of execution and other final process issued 
 ■on judgments and decrees rendered in any of the courts of 
 the United States, and the proceedings thereupon, shall 
 be the same, except their style in each state respectively as 
 are now used in the courts of such state, saving to the 
 ■courts of the United States in which there are not courts 
 ■of equity, with the ordinary equity jurisdiction, the power 
 •of prescribing the mode of executing their decrees in equity 
 by rules of court ; provided, however^ that it shall be in the 
 power of the courts, if .they see fit in their discretion by 
 rules of court, so far to alter final process in said courts as to 
 •conform the same to any changes which may be adopted by 
 the legislature of the respective states for the state courts ; " 
 which statute has been extended by Congress to states 
 admitted into the Union since its passage, and controlled 
 all final process in the federal courts, with some slight modi- 
 fications, until the passage of a law by Congress, approved 
 June 1st, 1872, "An act to further the administration of 
 justice," which provides as follows: That in common law 
 <;auses in the circuit and district courts of the United States, 
 the plaintiff shall be entitled to similar remedies, by attach- 
 ment and other process against the property of the de- 
 fendant, which are now provided for by the laws of the 
 •state in which such court is held, applicable to the courts 
 of such state ; and such circuit or district courts may, from 
 time to ti'me, adopt such state laws as may be in force 
 -in relation to attachment and other process. The party 
 recovering judgment in such cause shall be entitled to sim- 
 ilar remedies upon the same by execution or otherwise, to 
 reach the property of the judgment-debtor, as are now pro- 
 vided by the law of the state within which said circuit or 
 district court shall be held in like causes ; or which shall 
 be adopted by rules as aforesaid, which abrogated all 
 rules of the United States circuit and district courts incon- 
 sistent with the state practice in common law cases, and 
 requires them to conform to such practice in all cases 
 
584 ON EXECUTIONS. [Chap. XXII. 
 
 where practicable.' Congress possesses the uncontrolled 
 power to legislate with respect to the form and effect of 
 executions issued upon judgments recovered in the courts 
 of the United States, The judicial power would be incom- 
 plete and entirely inadequate to the purpose for which it 
 was intended, if, after judgment, it could be arrested in its 
 progress and denied the right to enforce satisfaction in any 
 manner which shall be prescribed by the laws of the United 
 States. The right of Congress to regulate the proceeding, 
 and direct the mode ahd manner, and out of what prop- 
 erty of the debtor, satisfaction may be obtained, is not 
 to be questioned ; the only question is to ascertain how far 
 Congress has execised this power." 
 
 § 380. No state exemption laws, whether of personal 
 property or of real estate in the nature of a homestead, can 
 be set up by a debtor against a process issued from the fed- 
 eral courts, unless the laws of such state have been adopted 
 and have become part of the rules of the United States 
 courts. It has been the uniform practice of federal courts 
 to conform to the practice of the state tribunals in their 
 common law proceedings, and in many states the state 
 exemption laws have been adopted as part of their practice,, 
 and where not so adopted, the exemption laws have been 
 acquiesced in by the marshals in the execution of final 
 process. " The laws of a state regulating the process of its 
 courts, do not bind the courts of the United States, whose 
 proceedings must be governed by acts of Congress. Any 
 acts, therefore, of a state legislature in relation to final 
 process, passed since 1828, are of no force in the courts of 
 the United States, unless adopted by rules of court, accord- 
 ing to the provisions of the act of Congress. And, although 
 such state laws may have been so adopted, yet they are 
 inoperative and of no force if in conflict with the constitu- 
 
 ' Republic Ins. Co. v. Williams, 3 v. Knight, 14 Id. 301. Bronson v.. 
 Biss. 370. Kinzie, i How. 311. McNutt v. 
 
 * U. S. Bank v. Halstead, 10 Wheat. Bland, 2 How. 9. McCracken v. Hay- 
 Si. Boyle V. Zacherie, 6 Pet. 648. ward, 2 How. 609. 
 Beers v. Houghton, g Pet. 329. U. S. 
 
Chap. XXII.] FINAL PROCESS. 585 
 
 tion or an act of Congress." ' In states which in 1828 had 
 no courts of ordinary equity jurisdiction, the jurisdiction 
 and practice of the federal courts are regulated by the 
 statute of 1792. That law conferred a general equity juris- 
 diction on the federal courts, as known and defined by the 
 chancery court of England, and no state law, passed before 
 or since the date of that statute, can divest a federal court, 
 acting under it, of any portion of its jurisdiction, nor affect 
 the form of its decrees, or the means by which they are 
 carried into effect. 
 
 § 381. How FINAL PROCESS IS EXECUTED. As judg- 
 ments at common law were not liens on land, and did not 
 authorize a levy and sale of real property under execution, 
 a United States marshal could not derive any authority from 
 the common law for the exercise of the power granted sher- 
 iffs and other officers on proceedings under execution by 
 state law ; nor could the law-making power of a state enact 
 laws for the government of United States courts. They are 
 the creatures of a nation. It became necessary for Congress 
 to adopt some system which should apply to the whole 
 Union. Each state making its own law, its practice was 
 such as was adapted to the needs of its citizens, and Con- 
 gress, desiring that each federal court should be governed 
 by th'e same rules as the courts in the states in which such 
 federal courts were held, adopted what is known as the 
 Process Acts, and extended the laws of each state relating 
 to final process to the federal courts.' Congress has passed 
 no law making judgments rendered in the federal courts 
 liens on lands, nor have they authorized the ministerial offi- 
 cers of the United States courts to levy upon and sell real 
 estate, except in adopting laws of certain states, and author- 
 izing their adoption by the United States courts." And 
 
 Bronson v. Kinzie, l How. sons v. Bedford, 3 Pet. 444. Ward v. 
 
 311, Chamberlain, 2 Blackf. 440. Duncan 
 
 ' Bank of U. S. v. Halstead, 10 v. Darst, i How. 306. 
 Wheat. 63. Wayman v. Southard, Id. ' Bank of U. S. v. Halstead, 10 
 
 49. Lessee v. Corwin, 5 Ohio, 405. Wheat. 62. Ward v. Chamberlain, 2 
 
 Corwin v. Benham, 5 Ohio S. 38. Par- Blackf. 430. 
 
686 ON EXECUTIONS. [Chap. XXII. 
 
 only such statutory provisions as have been so adopted are 
 the rules by which United States marshals are governed.' 
 The various state laws regulating proceedings on execution 
 which were adopted, are those in force at the timojsuch acts 
 are and were passed.' The execution of final process issued 
 from United States courts is in accordance with similar 
 process from state courts, by reason of the adoption of the 
 state law on the subject.' Executions may be issued on 
 judgments in the federal courts, and under them all the 
 lands and personal property of the judgment-debtor within 
 the territorial limits of the court pronouncing judgment, 
 not exempt by law from levy and sale on execution, may 
 be seized and sold in like manner as upon executions 
 issuing from state courts, and under the same statutory 
 regulations where the state laws have been adopted by the 
 federal courts.* 
 
 ■ § 382. Execution ; where to run. All writs of exe- 
 cution upon any judgment or decree, obtained in any of the 
 district or circuit courts of the United States, in any one 
 state which is or hereafter may be divided into two judicial 
 districts, may run and be executed in any part of such 
 state, but shall be issued from and made returnable to the 
 
 ' Wayman v. Southard, 10 Wheat. 440. Massengill v. Downs, 7 How. 
 
 82. Bank of U. S. v. Halstead, Id. 760. Williams v. Benedict, 8 How. 
 
 62. Ross V. Duval, 13 Pet. 60. 107. Bayard v. L^imbard, 9 Id. 551. 
 
 Keary v. F. & M. Bank, &c. 16 Id. 94. McGill v. Armour, 11 Id. 142. Bank 
 
 Beers V. Houghton, 9 Id. 359. U.S. of Tenn. v. Horn, 17 Id. 157. Beau- 
 
 V. Knight, 14 Id. 314. Bronson v. regard v. New Orleans, 18 Id. 502. 
 
 Kinzie, i How. 314. McCracken v. Union Bank v. Jolly, Id. 507. Simp. 
 
 Hayward, 2 Id. 614. Parsons v. Bed- son v. Niles, i Ind. 196. Corwin v. 
 
 ford, 3 Pet., 444. Ward v. Chamber- Benham, 2 Ohio, 538. Den v. Jones, 
 
 lain, 2 Blackf. 440. Amis v. Smith, 16 2 McLean, 78. Clement v. Berry, II 
 
 Pet. 313. How. 411. U. S. V. Morrison, 4 Pet. 
 
 ' Den V. Jones, 2 McLean, 82. 124. 
 
 Loman v. Clark, Id. 573. Parsons * U. S. v. Duncan, 12 111. 523. Trap- 
 
 V. Bedford, 3 Pet. 444. Amis v. nail v. Richardson, 13 Ark. 543. Doe 
 
 Smith, 16 Pet. 312. Duncan v. Darst, v. Jones, 2 McL. 73. Conard v. Ins. Co. 
 
 r How. 306. I Pet. 543. Byers v. Fowler, 12 Ark. 
 
 » Ward V. Chamberlin, 2 Blackf. 276. Sellers v. Corwin, 5 Ohio, 398. 
 
Chap. XXII.] FINAL PROCESS, 587 
 
 court where the judgment was obtained, any law to the 
 ■contrary notwithstanding.' 
 
 § 383. Execution FOR the U. S. ; where it may is- 
 sue TO. All writs of execution upon any judgment ob- 
 tained for the use of the United States, in any of the courts 
 of the United States in one state, may run and be executed 
 in any other state, or in any of the territories of the United 
 States, but shall be issued from and made returnable to the 
 court where the judgment was obtained, any law to the 
 contrary notwithstanding.' 
 
 § 384. Appraisement ; how to be made. Where the 
 laws of any state require that goods taken in execution on 
 a writ oi fieri facias shall be appraised previous to the sale 
 thereof, the act of Congress provides that it shall be lawful 
 for the appraisers appointed under the authority of the state 
 to appraise goods taken in execution on 2. fieri facias issued 
 out of any court of the United States, in the same manner 
 as if such writ had been issued out of a court held under the 
 authority of the state ; and it is made the duty of the mar- 
 shal in whose custody the goods are, to summon the ap- 
 praisers in the same manner as the sheriff is required to 
 summon them by the laws of the state ; and if the apprais- 
 ers, being summoned, fail to attend and perform the duties 
 required of them, then the marshal shall sell without 
 appraisement.' 
 
 § 385. Of the sale and proceedings. Whenever a 
 TTiarshal shall sell any lands, tenements, or hereditaments, 
 by virtue of process from a court of the United States, or 
 shall die or be removed from office, or the term of his com- 
 mission expires before a deed shall be executed for the 
 same to the purchaser; in every such case, the purchaser 
 or plaintiff at whose suit the sale was made, may apply to 
 the court from which the process issued, and set forth the 
 case, assigning the reason why the title was not perfected 
 by the marshal who sold the same, and thereupon the mar- 
 
 ' 4 Stat, at Large, ch. 124, p. ' Sec. 6, Act of March 3rd, 1797 
 
 184. * Chap. 22, I. Stat, at Large, 333. 
 
ON EXECUTIONS. [Chap. XXII. 
 
 shal for the time being will be ordered by the court to 
 perfect the title and execute a deed to the purchaser, he 
 paying the purchase-money, and costs remaining unpaid. 
 Where a marshal shall take in execution lands, &c., and 
 shall die or be removed, or his term shall expire beforasale 
 or other final disposition of the lands, &c., the same process 
 shall issue to a succeeding marshal, as if such former mar- 
 shal had not died or been removed, or the term of his com- 
 mission had not expired. If a marshal makes a sale after 
 his removal or term of office expires, it is a valid sale.' If 
 the term of office of a marshal expires before a sale has 
 been made upon an execution rendered during the term, he 
 has power and is bound to go on and complete the sale, and 
 pay the money ; all the remedies necessary to compel him 
 to do so survive his term of office." Where the mode and 
 form of proceedings in the highest courts of common law 
 of a state are adopted as the practice of the United States 
 courts of any district, a marshal's sale made on execution in 
 such district, made otherwise, than in accordance with such 
 common-law practice of • said state courts, is void, and con- 
 fers no title on the purchaser." Sales on executions from 
 federal courts are governed by the law of the state in which 
 they are made.* Land sold by virtue of an execution is 
 subject to redemption in accordance with the statutes of 
 the state in which the land is.' 
 
 § 386. Process to enforce decrees in equity. Final 
 process to execute any decree may, if the decree be solely 
 for the payment of money, be by a writ of execution, in the 
 form used in the circuit courts at common law actions of 
 assumpsit.' In suits in equity for the foreclosure of mort- 
 gages in the circuit courts of the United States, or in any 
 territorial court having jurisdiction of the same, a decree 
 may be rendered for any balance that may be found due to 
 
 ' Doolittle V. Bryan, 14 How. 563. Jenners v. Doe, 9 Ind. 461. Simpson 
 
 ' McFarland v. Gwin, 3 How. 717. v. Niles, i Id. 196. 
 
 » Smith V. Cockrill, 6 Wall. 756. ' Hepburn v. Kerr, 9 Humph. 726. 
 
 * Evans v. Lobaddie, 10 Mo. 425. « 8th Eq. Rule. 
 
Chap. XXII.] FINAL PROCESS. 589 
 
 complainant over and above the proceeds of the sale or 
 sales, and executions may issue for the collection of the 
 same in accordauce with the eighty-fourth rule regulating 
 equity practice, where the decree is solely for the payment 
 of money.' If the decree be for the performance of any 
 specific acts, on a return of non est inventus, a writ of seques- 
 tration may issue.* 
 
 § 387. Proceedings in admiralty cases. Congress 
 having conferred upon the federal courts exclusive jurisdic- 
 tion in all admiralty cases, all the priDceedings in maritime 
 cases are governed by the principles of the civil and mari- 
 time law ;° and, unless subject to review and reversal by some 
 appellate tribunal, the judgment is final and conclusive upon 
 the whole world, and the purchaser will receive an absolute 
 title to the property. Whatever the court settles as to the 
 right or title, and whatever disposition it makes of the 
 property by sale, transfer, or other act, will be valid in 
 every country and tribunal where the same question comes 
 directly or collaterally in question, except in courts of 
 review or appeal. This rule applies in all cases in which 
 such tribunal obtains jurisdiction by the actual or construc- 
 tive possession of the subject-matter." In admiralty, when 
 a vessel is seized and libeled, the proceedings are against 
 
 ' 94th Eq. Rule. Johns. 229. Huil v. Blake, 13 Mass. 
 
 » 8th Eq. Rule. 153. McDaniel v. Hughes, 3 East. 
 
 » Plummer v. Webb, 4 Mason, 380. 366. Phillips v. Hunter, 2 H. Black, 
 Delovio V. Boist, 2 Gall. 398. The 402. Whitney v. Walsh, i Gush. 29. 
 Belfast, 7 Wall. 625. Stratton v. Jar- Barrow v. West, 23 Pick. 270. Grig- 
 vis, 8Pet.i:. Mitchellv. Magnolia, 45 non v. Aster, z How. 338. Beauregard 
 M0.67. Phegleyv.Tatum,33Mo.46i. v. New Orleans, 18 Id. 497. The 
 
 * Peters v. Ins. Co., 3 Sumner, 8g. Siren, 7 Wall. 152. The Reindeer, 2 
 
 Bland v. Barafield, 3 Swanston, 604. Wall. 385. The Commerce, i Blackf. 
 
 The Globe, 2 Blatch. 427. U. S. v. 581. Crousdon v. Leonard, 4 Cranch, 
 
 Arredondo, 6 Pet. 709. Bradstreet v. 434. Williams v. Armroyd, 7 Id. 423. 
 
 Ins. Co., 3 Sumner, 600. Magownv. Rose v. Himely, 4 Id. 241. Hudson 
 
 Ins. Co. I Story, 157. Iverson v. Lo- v. Guestier, Id. 293. The Mary, g 
 
 berg, 26 111. 1S2. Thompson v. Tol- Id. 126. Grant v. McLachlin, 4 Johns, 
 
 mic, 2 Pet. 167. Parker v. Keene, 22 34. Herman on Estoppel, Chap. 5, 
 
 How. 14 Holmes v. Remsen 20 p. no, et seq. 
 
590 ON EXECUTIONS. [Chap. XXIL 
 
 such vessel, and every one interested may become parties ;. 
 but as it is a specific proceeding against a chattel, the order 
 of the court decreeing the sale of such chattel vests the title 
 in the purchaser, no matter who the owner is or what his. 
 interest may be, if the court has jurisdiction over the subject- 
 matter.' Such seizure and sale divests all prior liens and 
 claims ; and all lien holders and claimants are compelled to 
 seek satisfaction of their claims out of the proceeds of the 
 sale which are subject to distribution by the court.' The 
 writ is the statutory manner of executing the decree of con- 
 demnation and order of sale. It points out specifically the 
 property to be sold ; no levy is necessary, the property being 
 already in custodia legis, the proceeds are returned into- 
 court, and by it disposed of.' In all admiralty cases the 
 sale is made on a kind of special execution, and by the mar-^ 
 shal of the district in which such seizure is made, who, in 
 making the sale, is the agent of the court to carry its order 
 into effect.* 
 
 § 388. Sale in admiralty. Where a libellant in a suit 
 in rem establishes a clear legal right to a condemnation and 
 sale, there is no power in the court to refuse or postpone it.* 
 The party commencing proceedings first is entitled to prior 
 payment.' In such sales, after the satisfaction of prior liens,. 
 if there is a surplus after paying them, it is applied on the 
 
 ' The Mary, 9 Cranch, 126. Crous- nants in Court, Olcott, 382. Harper 
 
 don V. Leonard, 4 Id. 434. Gelson v. v. New Brig, Gilp. 536. 
 
 Hoyt, 3 Wheat. 246. French v. Hall, « The Phoebe, Ware, C. C. 354. 
 
 9 N. H. 137. Penhallow v. Doane, 3 Andrews v. Wall, 3 How. 568. The- 
 
 Dall. 86. Commander-in-Chief, 4 Siren, 7 Wall. 152. 
 
 Wall. 52. The Monte Allegro, 9 < Soward v. Pritchett, 37 111. 517. 
 
 Wheat. 616. Griffith V. Fowler, 18 Vt. Coffee v. Coffee, 16 Id. 145. Bozza v. 
 
 390. Hight Y. Steamboat, 4 Iowa, Rowe, 30 Id. 198. Armor v. Cochran, 
 
 472. Phegley v. Tatuni, 33 Mo. 461. 66 Penn. 308. Moore v. Schultze, 13 
 
 McCall V. Elliott, Dudley, 250. Grig- Id. I02. Mason v. Osgood, 64 N. C. 
 
 non's Lessee v. Astor, 2 How. 338. 467. Hurst v. SluU, 4 Md. Ch^ 
 
 Beauregard v. New Orleans," 18 Id. 391. Inglehart v. Armiger, i Bland. 
 
 497- Ch. 527. 
 
 " Brackett v. The Hercules, Gilp. ' Davis v. New Brig, Gilp. 473. 
 
 184. The Amelia, 6 Wall. 18. Rem- • The Globe, 2 Blatch. R. 427. 
 
Chap.xxii.] final process. 591 
 
 payment of mortgage debts next." Such sales are not 
 within the statute of frauds." 
 § 389. Executions upon decrees in admiralty as 
 
 AFFECTING LAND. In all cases of final decree for the pay- 
 ment of money the libellant shall have a writ of execution, 
 in the nature of a j?. /a., commanding the marshal or his 
 deputy to levy and collect the amount thereof out of the 
 goods and chattels, lands and tenements, or other real 
 estate of the defendant or stipulators." Until 1862 there 
 had been no executions issued out of the admiralty courts, 
 under which the real estate of a libellee would be taken in 
 the same manner as upon final process out of the state 
 courts. The question having arisen, the supreme court of 
 the United States, by CLIFFORD, J., said, " Courts of 
 justice may construe a legislative opinion, but they can not 
 repeal what is expressly enacted. When Congress, in plain 
 and unambiguous terms, declares that writs of execution on 
 decrees rendered- in any of the courts of the United States, 
 and the proceedings thereupon, shall be the same as now 
 used in the courts of such state, it is not possible for this 
 court to hold that the decrees of one of the courts of the 
 United States are not embraced in that provision ; especially 
 not, as the very court whose decrees are said to be excluded 
 from the provision is specifically mentioned in the first sec- 
 tion of the same act, as one of the courts of the United 
 States, and its proceedings there made the subject of spe- 
 cial and material regulation. Exclusive original jurisdic- 
 tion in admiralty and maritime cases, is conferred upon the 
 district courts of the United States, but the circuit courts 
 hear such cases on appeal, and, as a matter of daily prac- 
 tice, render decrees therein for the payment of money; 
 and it is not to be doubted, we think, that such decrees are 
 as much within the provisions under consideration as de- 
 crees in equity ; and, if so, no reason_ is perceived why the 
 
 ' Remnants in Court, 10 Olcott, ' The Monte Allegro, 9 Wheat. 616. 
 382, • Rule of Admiralty Courts, U. S. 
 
592 ON EXECUTIONS. [Chap. XXII. 
 
 same rule should not be applied to decrees of a like charac- 
 ter rendered in the district courts." ' 
 
 § 390. Stay of execution in u. s. courts. Section 
 18 of the act known as the Judiciary Act, provides that in 
 all civil actions, after the rendition of judgment, executions 
 may, on motion of either party, at the discretion of the 
 the court, on such conditions for the security of the adverse 
 party as may be judged proper, be stayed forty-two days 
 from the time of entering judgment, in order to allow the 
 parties time for the filing of a petition for a new trial, and 
 upon a certificate of the filing of such petition, execution is 
 further stayed until the succeeding term of court,- Section 
 23 of the same act provided that writs of error should be a 
 supersedeas and stay of execution in cases only where the 
 writ of error is served within ten days after the rendition of 
 judgment. Not until after the expiration of the ten days 
 shall executions issue in any case where a writ of error may 
 be supersedeas. But under the eleventh section of the act 
 of June 1st, 1872, "To further the administration of jus- 
 tice " (and which allows any person desiring to have a judg- 
 ment, decree, or order, &c., reviewed on error or appeal, 
 and to stay proceedings during the pendency of such writ 
 •of error or appeal, to " give the security required by law 
 therefor, within sixty days after the rendition of such judg- 
 ment, decree, or order," &c.), it is not necessary to make it 
 a supersedeas, that the writ of error be served, as was 
 required by the twenty-third section of the Judiciary Act, 
 ■or the supersedeas bond be filed, within ten days (Sundays 
 excepted) after the rendering of the judgment complained 
 of. The supersedeas bond may be executed within sixty 
 ,days after the rendition of the judgment, and the writ may 
 be served at any time before, or simultaneous with, the fihng 
 -of the bond." 
 
 § 391. Requisites TO obtain a supersedeas. To entitle 
 ,a party to the privilege of a supersedeas, he must strictly 
 
 ' Ward V. Chamberlain, 2 Black. » Telegraph Co. v. Eyser, 19 Waa 
 430. 419. 
 
■Chap. XXII.] in FEDERAL COURTS. 593 
 
 comply with the requirements of the statute, both as to 
 time of serving the writ and as to the security to be given. 
 He must bring himself within the letter of the law, or the 
 supreme court will not interfere with the execution of the 
 judgment below pending the review.' There is no equitable 
 power in the court to stay execution on the ground of mis- 
 take in the appellant's proceedings." The security neces- 
 sary to be given, must be for the whole amount of the 
 judgment. The time runs from the date of the entry of 
 judgment in the inferior court.' Where the judgment is 
 given in the highest court of a state on appeal or writ of 
 error from an inferior one, and the record is returned to the 
 inferior court, with the order to enter judgment thereon, 
 the time runs from the day the judgment is entered there.' 
 
 ' Adams v. Law, l6 How. 144. ' Hogan v. Ross, 11 Howard, 294. 
 Hogan V. Ross, 11 Id. 294. * Green v. Van Busldrk, 3 WalL 
 
 ^ Saltmarsh v. Tuttle, 12 How. 387. 448. 
 
 38 
 
594 ON EXECUTIONS. TChap. XXIII. 
 
 CHAPTER XXIII. 
 
 STAYING, SUPERSEDING, ENJOINING, AND QUASHING EXE- 
 
 CUTIONS. 
 
 When they may be stayed. — Causes for staying. — Stay ofexecti- 
 tion injustices' courts; tvhat will be sufficient. — Supersedeas, 
 — What it is. — Requisites of. — When it will be granted. 
 — How granted. — Effect of. — Of the effect of a reversal or 
 setting aside of a judgment by an appellate court. — As ta 
 purchasers, with and without notice. — Of staying proceedings 
 by injunction. — When and for what causes injunctions will 
 be granted.-^Effect of an injunction. — When an injunction 
 will not be granted. — Of the effect of the dissolution of the 
 injunction. — When an execution will be quashed. — Causes 
 for quashing. — When it will not be. — Effect of quashing an 
 execution. 
 
 § 392. Having traced the proceedings on final process 
 from its issue through the various steps necessary to make 
 it effectual, showing how it is executed, when to be 
 executed, and the matters arising from proceedings 
 thereunder, there is yet another matter of importance to 
 the debtor, and perhaps the most important of all the pro- 
 ceedings relating to execution. That is the stay of an execu- 
 tion, by motion, by statutory enactments permitting it to 
 be stayed, by appeal, writ of error or supersedeas, by in- 
 junction, and by quashing it or setting it aside. And where 
 superseded, or if the judgment be reversed in an appellate 
 tribunal, of the party's, rights, and remedies. It must be 
 understood that the execution of final process concerns only 
 the creditor and the debtor, the plaintiff and defendant, 
 and they alone are interested in the regularity of the oflScer's 
 
Chap. XXIII.] STAYING, SUPERSEDING. 595 
 
 proceedings ; strangers, if affected, have means provided by- 
 law for enforcing and protecting their rights, and in a sub- 
 sequent chapter will be treated the liability- of the officer in 
 the execution of final process. The subject-matter of this 
 chapter will be of the rights of the debtor to avoid the execu- 
 tion of final process against him. In some of the states pro- 
 vision is made by statute for the staying of execution after 
 the rendition of judgment, and in cases where judgments are 
 rendered by justices of the peace. As a general rule it may 
 be stated that upon judgments rendered in courts of 
 record, — that is,, all courts of general jurisdiction, — there 
 is no 'stay of execution upon such judgments, except 
 for special causes.' In Alabama, no stay except on 
 appeal; in Arkansas, a stay of three months, upon giving 
 security approved by the court ; in Delaware, six months — 
 on justices' executions, six to, nine months ; in California, 
 the courts have discretionary powers to stay ; in the Dis- 
 trict of Columbia, in justices' courts, one to six months ; in 
 Florida, until the first Monday of certain months ; in 
 Georgia, sixty days ; Indiana, on any sum exceeding seventy- 
 five dollars, six months ; Iowa, two to twelve months ; 
 Kansas, in justices' courts, from one to four months ; Ken- 
 tucky, three months, when secured ; Maryland, six months, 
 — in justices' courts, twelve months ; Michigan, in justices' 
 courts, four to six months ; Mississippi, in justices' courts, 
 one month ; Nebraska, justices' courts, three to six months, 
 and in the district court one year ; in New Jersey, in jus- 
 tices' courts, one to six months ; North Carolina, in jus- 
 tices' courts, six months ; Ohio, in justices' courts, two to 
 eight months ; Pennsylvania, six to twelve months ; Ten- 
 nesseee, eight months ; West Virginia, until next term, — 
 in justices' courts, one to four months ; Wisconsin, in jus- 
 tices' courts not exceeding five months, and in courts of 
 general jurisdiction ; no stay in Mississippi, Missouri, New 
 Jersey, Tennessee, Vermont, and Virginia. So that when 
 
 ' Vide statutes of Colorado, Conn., Ohio, Me., Mass., N. H., R. I., S. C, 
 Dist. of Col., 111., Ks., La., N. Y., Utah, Wis., Texas. 
 
696 ON EXECUTIONS. [Chap. XXIII. 
 
 no statutory right is given for a stay of execution, it can 
 only be granted for some defect in the process, or by pro- 
 ceedings which supersede the process. A stay of execution 
 being a privilege in derogation of the common law right of 
 the plaintiff, the party claiming the privilege must bring him- 
 self strictly within the statute granting it.' It must be ap- 
 plied for within a reasonable time." Executions will be stayed 
 either temporarily or perpetually, to prevent fraud or great 
 injustice.' If a judgment upon which an execution issues and 
 the execution itself are void upon their face, the court has 
 power, on motion, to afford relief, and can arrest the ptocess ;* 
 and being discretionary with the courts in cases not provided 
 for by statute, the action of a court is not reviewable.' A 
 judge at chambers has authority to order a suspension of 
 proceedings under an execution, until a motion before the 
 court to recall or quash it cSn be heard.' 
 
 In Tennessee, where the property of a non-resident debtor 
 is attached, execution is stayed six months from the return 
 of the attachment, unless sufficient cause is shown to the 
 contrary' it will be stayed in an action against partners, 
 where it is shown that the party applying for execution is in 
 collusion with one of them to have it levied upon the prop- 
 erty of the other contrary to the equities between them, until 
 their rights can be determined." The interest which a bank- 
 rupt has in increasing the divisible fund, and his adjudica- 
 tion and proceedings, are sufficient to stay an execution 
 levied on his property against good faith.' Where between 
 
 ' The Roanoke, 3 Blatch. 390. Penn. * Sanchez v. Carriaga. 31 Cal. 170 
 R. R. V. Commonwealth, 39 Penn, Mok. Hill Co. v. Woodbury, 10 Id. 
 403. Erie City Bank v. Compton, 27 188. Isaac v. Swift, 10 Id. 71. Far- 
 Id. 195. Onderdonk v. Emmons, 2 mer v. Rogers, Id. 335. Logan v. 
 Hilt, 504. Mok.,. &c., Co. V. Wood- Hillegas, 16 Id. 200. Matoon v. Eder, 
 bury, 10 Cal. 188. 6 Id. 60. 
 
 = Hapgood V. Goddard, 26 Vt. 401. ' Early v. Rogers, 10 How. 599. 
 
 ' Rutland v. Pippin, 7 Ala. 469. ' Sanchez v. Carriaga, 31 Cal. 170, 
 
 Lansing v. Orcut, 16 Johns. 4. Smith ' Claybrookev. Wade, 7 Coldw. 555. 
 
 V. Page, 15 Id. 395. Keeler v. King, ' Sawin v. Mt. Vernon Bank, 2 R. I 
 
 t Barb. 390. Marsh v. Haywood, 6 382. 
 
 Humph. 210. » Pinches v. Harvey, i Gale. & D. 236. 
 
Chap.XXIII.j staying, SUPERSEDING. 597 
 
 the argument of a cause and the decision of the court affirm- 
 ing the judgment, the debtor is discharged in bankruptcy, a 
 perpetual stay will be granted.' In some states, by statutory 
 enactment, the judgments against a discharged bankrupt 
 will be satisfied upon motion and presentation of the certifi- 
 cate of the court in which judgment is rendered. A military 
 order, when martial law exists, staying proceedings, puts an 
 end to it ; being a command issued by paramount author- 
 ity.' Where an execution issues 'on a judgment in which 
 the amount is merely stated in figures, without any word 
 mark, or character to indicate the coin represented, the exe- 
 cution will be set aside.' A debtor is entitled to have an 
 execution set aside where it issues upon a judgment ren- 
 dered against him by default ; ' and it may be set aside even 
 on the return day, for irregularity on the part of the plain- 
 tiff, even though a deed may -have been executed to the 
 purchaser, on motion of the defendant.' A motion for a 
 ne Mtrial does not, per se, operate to stay proceedings for 
 the enforcement of a judgment.' Nor a rule to show cause 
 why a judgment should be set aside, unless an order is made 
 to that effect.' In Georgia they have a peculiar process, 
 known as an affidavit of illegality, which must be made by 
 the party whose property is seized,' and is a cumulative 
 remedy." Errors in a judgment can not be cured by an 
 affidavit of irregularity,'" and no other facts can be shown 
 than are set forth in the affidavit ; " but in Alabama, being 
 an innovation, it has been declared unconstitutional and 
 void." 
 
 § 393. Stay of execution in justices' courts. In 
 treating of proceedings in this class of tribunals, it can not be 
 expected that the statutory grounds in each state and terri- 
 
 ' Parks V. Goodwin, 1 Mich. 33. 358. Commonwealth -r. Freedly, la 
 
 ' Humphreys v. Brown, 19 La. 159. Id. 358. Bryan y. Berry, 8 Cal. 130. 
 
 • Avery v. Babcock, 35 111. 175. * Van Dyke v. Besser, 34 Geo. 268. 
 
 • Folan V. Folan, 59 Me. 566. • Hill v. De Lannay, 34 Id. 427- 
 » Ray V. Stobbs, 28 Mo. 33. " Green v. Shields, 37 Id. 35. 
 
 • People V. Louck, 28 Cal, 68. " Dever v. Akin, 40 Id. 423. 
 
 ' Spany v. Commonwealth 12 Penn. " Ashurst v. 'Phillips, 43 Ala. 158. 
 
f:i98 ON EXECUTIONS. [Chap. XXIII. 
 
 tory can be given, or the time allowed in accordance with 
 the amount of judgment rendered. The statutes are the su- 
 preme law on questions of this kind in justices' courts, and 
 we must confine ourselves to the adjudications arising from 
 proceedings necessary to effect the stay. In order to con- 
 stitute a valid stay, the clearly manifested intention of the 
 party to become bound as a stayer in a particular case, 
 on the one hand, and the acceptance by the justice of such 
 person as surety for the stay of execution on the other,' 
 there should be a written entry in the docket and the 
 attestation of the justice, to make a valid stay." A written 
 authority to enter the name of an absent person as stayor 
 to an execution, must contain such a description of the 
 judgment in one or more particulairs as will identify the 
 judgment intended, without the aid of extrinsic evidence ; 
 but extrinsic evidence is admissible to aid a defective de- 
 scription." An acknowledgment of one as surety for the 
 stay entered, in the absence of the judgment, on a separate 
 piece of paper, and signed by the proposed surety, is void, 
 and no execution can be issued thereon against him.' An 
 attorney of the plaintiff has no right to, without special 
 authority from his client ;' nor can a constable dispense 
 with a stay so as to prevent the owner from issuing exe- 
 cution at once, if not legally stayed.' It can not be 
 stayed but once.' Where the execution is stayed, and the 
 creditor deems his debt in danger from the insolvency of 
 the stayor, the justice may require the debtor to give addi- 
 tional security, and upon his failure to do so, may issue 
 execution forthwith.^ When stayed according to law, it 
 releases the levy, and the owner may sell the property to 
 whom he pleases.' 
 
 ' Lownes v. Hunter, 2 Head. 348. « Doe v. Ingersoll, 19 Miss. 249. 
 
 Carmichael v. Hawkins, 2 Sneed, 405. ' Mallett v. Hutchinson, i Head. 
 
 ' Cox V. Crippen, 13 Mich. 502. 558. 
 
 " Barr v. McGregor, 11 Humph. 518. ' Noel v. Scoby, 2 Heisk. 20. 
 
 Rhodes v. Chappell, Id. 527. Cannon « Rothschild v. Forbes, 2 Heisk. 13. 
 
 r. Trail, I Head. 282. » Hamilton v. Henry, 5 Ired. 218. 
 
 *Murrayv.Edmonston,6 Jones L.3I5. McGinnis v. Lillard, 4 Bibb. 49D. 
 
Chap. XXIII.] STAYING, SUPERSEDING. 599 
 
 § 394. When an execution will not be stayed, or 
 SET ASIDE. After a remittur from the supreme court to 
 the inferior court, the clerk in issuing acts by the authority 
 of the supreme court, and a judge of the court to which 
 the remittur is sent, has no authority to order or stay exe- 
 cution thereof;' nor can it be stayed for abuses in the 
 officer executing its commands ;" or after a sale on an exe- 
 cution issued on a dormant judgment," while before judg- 
 ment it should be set aside on motion ; nor after a decree 
 in foreclosure, to give the party time to pay up ;' or for an 
 illegal taxation of costs, the remedy is by motion to retax.' 
 After the affirmance of the judgment on a writ of error»' 
 a defendant is not entitled to a stay of execution while 
 the writs of error to the final judgment of a .state court 
 are pending in the supreme court of the United States, 
 -where, under the practice of that court and acts of Con- 
 gress, the writs of error were not delivered in time.' In 
 order to obtain a stay on a judgment of a state court in 
 error to the supreme court of the United States, it is 
 necessary in the state court to allege the insolvency of the de- 
 fendants in error, or that the plaintiff can not recover his dam- 
 ages, or that the defendants are attempting to enforce their 
 judgment,' nor at a succeeding term after return." But the 
 •court may direct that no further writs issue on the judgment. 
 
 § 395. Of supersedeas, or setting aside the pro- 
 ■CEEDINGS by appeal, &c. Supersedeas, in the strict sense of 
 the word, means the setting aside or annulling of an act, 
 ■but in its legal acceptation means the prevention as well as the 
 setting aside or annullingof an act. It is sometimes express ; 
 at other times it is implied. An express supersedeas may 
 
 Arrington v. Sledge, 2 Dev. 359. Bis- ' Carroll v. Redington, 7 Iowa, 386. 
 
 tee V. Hall, 3 Ohio, 449. Trueman v. " Meeker v. Harris, 23 Cal. 285. 
 
 Berry, 6 B. Monr. 536. ' Warwack v. Bunce, 4 M. & S. 140. 
 
 ' Marysville v. Buchanan, 3 Cal. 212. * Penn. R. R. v. Commonwealth, 391 
 
 Oibrel] v. Eastland, 3 Yerg. 507. Penn. 403. 
 
 ' Nixon V. Harrell, 5 Jones L. 376. • Bradley v. Garnelle, 7 Minn. 331. 
 
 * Murphey v. Wood, 2 Jones L. 63. "• Bennett v. Taylor, 8 Jones L. 281. 
 
 "* Stockwell V. Walker, 31 Ind. 381. Sturges v. Read, 2 Me. 109. 
 
60Q ON EXECUTIONS. [Chap. XX III. 
 
 be by writ or without writ. When it is by writ, the person 
 to, whom the writ is directed is commanded to forbear the- 
 doing of an act therein mentioned ; or, if the act has been 
 already done, to annul it as far as possible. Without writ^ 
 is where a person who has, pursuant to an authority in him 
 vested, made an order for the doing of an act, does by a 
 second order forbid the doing of the act. Every writ is a 
 supersedeas by implication, by which, although no writ of 
 supersedeas has issued thereupon, the doing of an act is 
 prevented. A writ ^hich is only a supersedeas by implica- 
 tion can not annul an act done before its issue, among 
 which are writs of error and certiorari. As writ of error is, 
 in general, an implied supersedeas, it must be remembered 
 that it is not so unless certain requisites have been complied 
 with. The requisites are, first, it must be allowed.' At 
 conimon law no bail was required in error ; the defendant 
 could, by suing out a writ of error, delay the plaintiff with- 
 out giving any security for the prosecution of the writ or 
 for the payment of the debt and costs, in case the judgment 
 was affirmed or the writ should be dismissed. In order to- 
 prevent writs of error from being sued out, unless error was. 
 clearly shown, and to test the bond fides of the party appeal- 
 ing, it was enacted that no execution should be delayed or 
 stayed by any writ of error or supersedeas, unless the person 
 or persons in whose name or names such writ of error 
 should be brought, with two sufficient sureties approved by^ 
 the court below, should be first bound unto the party in 
 whose favor the judgment below was recovered, in double- 
 the amount for which such judgment was rendered, to pros- 
 ecute such writ of error with effect, and pay the judgment, 
 interest, and costs, if affirmed, and the costs and damages- 
 which might be awarded by the appellate tribunal ; which 
 enactments' have become a part of the statute law of the- 
 American states and the United States relating to writs of 
 
 ' Hawkins v. Jones, 5 Taunt. 204. Jacques v. Nixon, I T. R. 272. Petty 
 Cleghorn v. Desanges, i Gow. 66. John v. Bloxon, i Houst. 394. 
 Perkins v. Woolaston, Salk. 321. 
 
Chap. XXIII.] STAYING, SUPERSEDING. 601 
 
 error as supersedeas. Therefore the second requirement is, 
 as the general rule, that a bail must be furnished, or in 
 familiar terms, an appeal-bond given, the conditions of 
 which are substantially the requirements of the English 
 statute above recited ; a writ of error and the execution of 
 the bond within the time specified by law is requisite, when a 
 writ of error is presented and bail perfected as required by 
 statute, the execution is superseded.' Third, it must be 
 proceeded in without delay or within a reasonable time.' 
 It can only issue in favor of those who give bonds,' and can 
 not be issued until after the complete record is filed.' Unless 
 there is a statute allowing error or appeal, a writ does not 
 operate as a supersedeas.' A perfected appeal suspends all 
 further proceedings below, and consequently a sale on exe- 
 cution, though made before the appeal, can not be con- 
 firmed afterwards, and is therefore void if not confirmed be- 
 fore appeal.' It is only when an appeal is granted during 
 the term and bond filed, and within such time as required, 
 that proceedings on a judgment can be stayed without an 
 order of the appellate tribunal, or a judge thereof in vaca- 
 tion.' In some states the issuance of a writ of error and 
 putting in bail does not operate as a supersedeas, or even as 
 a stay of execution which has been levied before such issu- 
 ance, but the sheriff may proceed to sell as if no writ of 
 error had been sued out. A writ of error does not annul 
 what has been done under the execution, so as to require 
 the officer to return the property already levied on, but 
 
 ' Erie R. R. v. Ackerson, 33 N. J. Jones v. Miss. & Ala. R. R. 6 Miss, 
 
 L. 33. Stockton V. Bishop, 2 How. 74. 480. 
 
 Abraham v. Pugh, 5 B. & A. 903. * Funk v. Phelps, 5 111. 558. Hunt 
 
 Smith V. Howard, 2 D. & R. 85. v. Berryman, 2 Met. (Ky.) 239. 
 
 Pratt V. Western Stage Co., 26 Iowa, Thompson v. Co. Commissioners, 4 
 
 241. Jackson v. Schauber, 7 Cow. 111. 66. 
 
 417. Beekman v. Bemis, Id. 418. ' Rendall v. Wilkinson, 4 E. & B. 
 
 ' Austin V. Davey, 8 Jur. 1138. 680. 
 
 George v. Wisdon, 2 Burr. 756. Jones * Bassett v. Daniels, 10 Ohio S. 617. 
 
 V. Davis, I B. C. R. 240. ' Burk v. Howard, 15 Ind. 2I> 
 
 • Bonnell v. Neely, 43 III. 288. Brown v. Bingham, 5 Allen, 582. 
 
602 ON EXECUTIONS. [Chap. XXIII. 
 
 simply checks the officer from proceeding further.' A writ 
 of error is no stay unless there is a supersedeas^ A motion 
 for a supersedeas must be made in the court where the 
 judgment is rendered before an appellate court will hear the 
 application.' An execution can not be superseded in part, 
 as where there have been payments.* Nor after it has per- 
 formed its functions." If issued upon an irregular tran- 
 script, not properly certified, it will be quashed.' Where 
 an appeal is taken but no bond is filed in the appellate 
 court, a stay may be ordered upon the filing of the bond ; ' 
 one of the judges has no power to order the stay, but it may 
 be done by the court in term time after the cause is dock- 
 eted.' In Indiana, where the defendant is unable to give 
 an appeal-bond, the debtor must notify the officer of such 
 inability, and request a sale on credit." An execution is- 
 sued on a judgment without process or notice is illegal, and 
 may be arrested by a writ of supersedeas, and such facts must 
 be established as show a want of jurisdiction, or where it has 
 been improvidently issued." Until the officer receives notice 
 of a supersedeas he must obey the mandate of the writ ac- 
 cording to its tenor ; upon receiving such notice he must 
 stop proceedings and return the writ, with his reasons in- 
 dorsed thereon for ceasing to act." The delivery by the 
 defendant to the officer who has the execution in his hands 
 is effectual for all legal purposes," and if he execute the writ 
 after notice of a supersedeas, he will be liable in trespass." 
 He is bound to obey the writ ; it is not for him to inquire 
 into the propriety of granting it.'* A writ which embraces 
 
 ' North- Western, &c., Co. v. Landes, ° Lemasters v. Johnson, I2 Ind. 385. 
 
 6 Minn. 564. Mayor, &c., v. Shaw 14 '» Shackelford v. Apperson, 6 Gratt. 
 
 Geo, 162. 451. Holloway v. Washington, 3 Ala. 
 
 " Castro V. lilies, 22 Tex. 479. 658. In re Smith, 4 Ark. 601. In re 
 
 ' Hofter V. State, 16 Ark. 214. Davis, 5 Id. 405. In re Caldwell, Id. 
 
 * Skinner V. Jayne, 24 Miss. 567. ' 390. In re Woods, 3 Id. 532. 
 
 ' Portis V. Parker, 8 Tex. 23. " Bryan v. Hubbs, 69 N. C. 423. 
 
 ' Thompson v. Co. Commrs. 4 111. " Welch v. Jones, u Ala. 660. 
 
 66. " Belshaw v. Marshall, 4 B. & A. 
 
 ' Davis V. Tarwater, 13 Ark. 52. 336. Morrison v. Wright, 7 Port. 67.' 
 
 ' Taylor v. Adams, 13 Ark. 61. " Williams v. Stewart, 20 Miss. 533, 
 
Chap. XXIII.] STAYING, SUPERSEDING. 603 
 
 two separate executions, and commands the officer to sus- 
 pend proceedings on each, is not a nullity.' While codes 
 have changed the mode of procuring a supersedeas or in- 
 junction, they have not modified their force or effect when 
 obtained." 
 
 § 396. Effect of stay and superseding proceed- 
 ings. The filing of a bond pending an appeal, while it has 
 the effect of staying the execution of the writ, merely sus- 
 pends during the pendency of the appeal, the judgment-cred- 
 itor's right to realize the benefit of his judgment by the sale 
 of the debtor's property ;' it does not discharge the debt,' 
 though restitution be made. Where a stay has been 
 granted, no process can issue on it until the expiration of 
 such stay,' and if stayed on the performance of certain con- 
 ditions, it may be issued whenever there is a failure to per- 
 form them.' Though not issued until after the issue of an 
 ■execution, and possession delivered to the plaintiff", it stays 
 all proceedings, and no writ of restitution will be awarded 
 until the cause is decided.' If a judgment is set aside, the 
 process issu'ed thereon falls with it.' In some of the states, 
 restitution must be made by the officer after levy.' 
 
 § 397- What is no supersedeas or stay, and when 
 it will and will not be granted, a certiorari allowed 
 after execution commenced is no supersedeas ;" but where 
 it is allowed to carry up a case after the issue of execution, 
 it will be stayed to await the result." Where judgment is 
 rendered on a lost instrument, execution should be stayed 
 until a bond of indemnity is given." Where the execution 
 issues for more than is due on the judgment, and levy is 
 
 • Jones V. Welch, 15 Ala. 306. ' Kreglo v. Fulk, 3 West Va., 74- 
 
 ' Keith V. Wilson, 3 Mete. 201. ' Ballard v. Whitlack, 18 Gratt. 
 
 " Low V. Adams, 6 Cal. 277. Curtis 235. 
 
 V. Root, 28 111. 367. ' Bisbee v. Hall, 3 Ohio, 449. True- 
 
 •* McGinnis v. Lillard, 4 Bibb. 490. man v. Berry 6 B. Monr. 536. Hamil- 
 
 Arrington v. Sledge, 2 Dev. 359. ton v. Henry, 5 Ired. 21^. 
 
 Hamilton v. Henry, 5 Ired. 2l8. '" Blanchard v. Myers, 9 Johns. 66. 
 
 ' Goldsboirough V. Green, 32 Md. gi. " Bilderback v. Moore, 2 Harr. 510. 
 
 » Miller v. Milford, 2 S. & R. 35. " Lowry v. Medlin, 6 Humph. 450. 
 
604 ON EXECUTIONS. [Chap. XXIII. 
 
 made under it,' or where an order of seizure and sale 
 improvidently issues.' In Pennsylvania, one of several 
 defendants owning sufficient real estate, is entitled to a stay, 
 though the other defefidants are not.' Where an executioa 
 is unauthorized by the judgment, or it is paid, a supersedeas 
 is the proper remedy ; but where the court from which the 
 execution issues is in session, a motion to quash will be 
 entertained;'' or if issued on a judgment after the death of 
 the plaintiff, in his name, it may be done by the defend- 
 ant ;" or if issued by a clerk without authority,' a petition 
 in vacation will be regarded in Alabama as a motion to 
 quash.' Probable cause for reversing a judgment is good 
 ground for granting a supersedeas^ It can not be issued for 
 causes arising after judgment ;° nor where there is no certifi- 
 cate that the transcript is complete ;'° nor by inferior tribu- 
 nals to the judgment or decree of the supreme courts." Where 
 an action is brought on the first judgment, and the result is 
 the same as in the first suit, a writ of error is no superse- 
 deas^'^ It will not be granted on the application of third 
 parties." A claim bond in action for the property stays 
 proceedings on the execution ;'* and where a judgment is 
 set aside for irregularity, the court will restrain the de- 
 fendant from bringing an action for trespass, unless a strong 
 case of damage is shown." 
 
 § 398. Of the effect of the reversal of the 
 judgment by an appellate tribunal upon purchas- 
 ERS IN GOOD FAITH AND WITHOUT NOTICE. Although 
 the judgment or decree is reversed, all the rights acquired 
 at a judicial sale, while the judgment or decree was in 
 
 ' Davie v. Long, 4 Bush. 574. * Lowry v. Bryant, 3 111. 2. 
 
 ' Templeton v. Levee Commrs. 16 ' Williams v. Bradbury, 9 Tex. 487. 
 
 La. 117. >o Frink v. Phelps, 5 III. 558. 
 
 ' Robinson v. Narber, 65 Penn. 85. " Dibrell v. Eastman, 3 Yerg. 507. 
 
 * Crenshaw v. Hardy, 3 Ala. 653. Marysville v. Buchanan, 3 Cal. 212. 
 Barnes v. Robinson, 4 Yerg. 186. " Bishop v. Best, 3 B. & A. 275. 
 
 ' Moore v. Bell, 13 Ala. 459. i' Edwards v. Lewis, i6 Ala. 813. 
 
 • Shackelford v. Apperson, 6 Gratt. " Moore v. Chambers, 19 Miss. 408. 
 451- " Lorimerv. Lull, i Chit. 134, Wil- 
 
 ' Owitchee Co. v. Hope, 5 Ala. 629. son v. Kingston, Id. 134. 
 
Chap. XXIII.] STAYING, SUPERSEDING. 605 
 
 full in force and was authorized by it, will be protected. 
 All that the purchaser requires to know in order to get a 
 valid title, is that the tribunal which rendered the judgment 
 had jurisdiction and exercised it ; that the order on which 
 the purchase was made, and authorizes the sale, — as far as 
 there may be errors or irregularities in the proceedings, that is 
 a matter concerning the parties to the action. It is not the 
 duty .of a purchaser to investigate the proceedings ; the 
 confirmation of a sale after a return has been made, is suf- 
 ficient guarantee that the proceedings are regular. They 
 become part of the record of the court which issues the 
 order of sale, and it would be almost impossible to execute 
 the process of courts, and for parties to obtain the 
 fruits of their judgments, were purchasers bound to take 
 notice of all their intermediate proceedings between the 
 rendition of a judgment and the confirmation of a sale, 
 after it has been made. Officers might, to oblige personal 
 friends, or for motives known to themselves alone, so negli- 
 gently discharge their duties as to make irregular sales for 
 -selfish or pecuniary motives, so that property seized and 
 subject to the payment and satisfaction of debts, would 
 remain unsold for want of purchasers. The law, therefore, 
 wisely protects purchasers, and remits the injured party to 
 his remedy against the officer or to the restitution of the 
 proceeds of the sale. Therefore, strangers or third persons, 
 neither parties nor privies to the judgment, purchasing at an 
 execution sale, made under the authority of a judgment or 
 •decree which is not suspended by a stay of proceedings, 
 .acquire such a title and interest in the property that no 
 subsequent reversal can impair.' If upon a judgment the 
 
 ' Reynolds v. Harris, 14 Cal. 66j. v. Gazzam, 2 Ala. 325. Gott v. PowelL, 
 
 Farmer v. Rogers, 10 Id. 335. Gal- 41 Mo. 416. Stinson v. Ross, 51 Me. 
 
 ■p'm V. Page, i Sawyer, 309. Hubbell 556. Guitteau v. Wisely, 47 111. 4.33. 
 
 V. Broadwell's Heirs, 8 Ohio, 120. Clark v. Pinney, 6 Cow. 297. Good- 
 
 Hanschild v. Stafford, 27 Iowa, 301. win v. Mix, 38 111. 115. Voorhees v. 
 
 Frost V. McLeod, 19 La. Ann. 69. Bank, 10 Pet. 449. Ward v. Hollins, 
 
 Lovett V. G. R. Church, I2 Barb. 67. 14 Md. 158. Irwin v. Jeffers, 3 Ohio 
 
 •Coster V. Peters, 7 Rob. 386. Pitfield S. 389. Gossom v. Donaldson, 18 B. 
 
606 
 
 ON EXECUTIONS. 
 
 [Chap. XXIII. 
 
 plaintiff takes out an execution, and thereupon the sheriff 
 sells a term of years to a stranger, and the judgment is after- 
 wards reversed, the defendant shall only be restored to the 
 money for which the term was sold, and not to the term 
 itself; for by the writ the sheriff had authority to sell, and 
 if the sale might be avoided afterwards, few would be 
 willing to buy under executions, which would render writs 
 of execution of no effect.' In some states, if a judgment 
 has been reversed on appeal, after the sale has been ratified 
 or confirmed, and the property is ordered resold, a bona fide 
 purchaser is entitled to be subrogated to the rights of the . 
 plaintiff, and to be treated as his assignee." 
 
 There is a question, sometimes, as to who is an innocent 
 purchaser in good faith, so as to be within the general rule 
 of protection ; in some of the States, a party to the action,* 
 
 Monr. 230. Gray v. Brignardello, 1 
 Wall. 627. Clark v. Bell, 4 Dana, 20. 
 Fergus v. Woodworth, 44 111. 374. 
 Goudy V. Hall, 36 Id. 319. McLagan 
 V, Brown, 11 Id. 519. Iverson v. 
 Loberg, 26 Id. 179. Mcjilton v. Jove, 
 I3.1d. 486. Peak v. Shasted, 21 Id. 
 137. Williams v. Cummins, 4 J. J. 
 Marsh. 637. Barney v. Patterson, 6 
 H. & J, 182. Reardon v. Searcey, 2 
 Bibb. 202. Coleman v. Trabue, 2 
 Bibb. 518. Sueed v. Reardon, i A. K. 
 Marsh. 217. Estis v. Booth, 20 Ark. 
 583. Bank of U. S. v. Bank, &o., 6 
 Pet. 8. Pondar v. Mbsely, 2 Fla. 
 407. Grignon's Lessee v. Astor, 
 2 How. 340. Herrick v. Graves, 
 16 Wis. 157. Young V. Loraine, 
 II Id. 637. Coxe V. Nelson, i 
 Monr. 94. Fitzgibbon v. Lake, 29 Id. 
 165. Talbot V. Chamberlain, 3 Paige, 
 219. Bigelow V. Finch, 11 Barb. 498. 
 Griffin v. Spencer, 6 Hill, 525. Wood- 
 cock V. Bennett, I Cow. 711. Wood 
 V. Genet, 8 Wend. 9. Kissock v. 
 Grant, 34 Barb. 144. Jessup v. City 
 Bank, 15 Wis. 604. Blane v. Carter, 
 
 4 Cranch. 328. Taylor' v. Thompson,. 
 
 5 Pet. 370. Wright v. HoUings worth, 
 I Id. 169. Elliott V. Pearsol, Id. 340. 
 Sinnett v. Cralle, 4 W. Va. 600. 
 McBride v. Longworth, 14 Ohio S. 
 344. Stroud V. Casey, 25 Tex. 740^ 
 Abbott V. Crocker, 2 Ind. 475. Mc- 
 Ausland v. Fundt, i Neb. 211. Storm 
 V. Smith, 43 Miss. 197. Garrett v. 
 Lynch, 45 Ala. 204. 
 
 ' Rearson v. Searcy's Heirs, 2 Bibb. 
 202. 
 
 ' Johnson v. Robertson, 34Md. 165, 
 Cook V. Toombs, 36 Miss. 685. 
 
 * Irwin V. JeiTers, 3 Ohio S. 389. 
 Gossom V. Donaldson, 18 B. Monr. 
 230. Shackelford v. Hunt, 4 Id. 263. 
 Clary v. Hill, 4 Dana, 98. Dater v. T. 
 &c., Co., 2 Hill, 629. Campbell v. Mc- 
 Irwin. 4 Hey. 60. Stinson v. Ross, 51 
 Me. 556. Doe v. Natchez Ins. Co., 16 
 Miss. 197. Gay v. Smith, 38 N. H. 
 71. Brown v. Coombs, 7 B. Monr. 
 318. Doe V. Swiggart, 5 Blackf, 328. 
 Eubank v. Rail, 4 Leigh, 308. Carter 
 V. Spencer, 7 Ired. 14. Smith v. Kelly, 
 3 Murph. 507. Thompson v. Hodges, 
 
Chap. XXIII.] STAYING, SUPERSEDING. 607 
 
 upon the principle as stated by Field, J., in a case decided 
 by him in his circuit, "That the defendant or unsuccessful 
 party in the court below, is to be restored, by reversal, to all 
 things which he lost by the erroneous judgment or decree, 
 if the title to them has not passed by the previous enforce- 
 ment of the judgment or decree ; and in such case he is to 
 have a right of action for a money equivalent. There is no 
 reason why a party to the action should not have the same 
 protection as strangers extended to them. The judgment 
 or decree is equally binding upon all, and should be equally 
 efficacious for protection. When the judgment or decree 
 directs a sale of the property of the defendant, it may be 
 regarded as a power of attorney to the officer charged with 
 the execution created by the law, and, like any other power, 
 is revoked by the reversal. There is no prohibition in the 
 law, or objection in the reason of the thing, against a party 
 taking advantage of the proceedings had for the enforce- 
 ment of the judgment he has recovered. Strangers are pro- 
 tected, not because a contrary rule would discourage bidding, 
 but because they have a right to rely upon the validity of 
 the judgment, and invoke its protection for all acts done 
 under it whilst it is in force, and for the rights they have 
 acquired thereby." ' This rule should be sustained in all 
 cases where no bond is filed to stay, execution, except in 
 instances where the rule as applied in Indiana prevails, that 
 where the appellant makes a satisfactory showing of his 
 inability to furnish the bond, the sale shall be on credit. The 
 filing of the bond upon taking an appeal is a guarantee of 
 the bond fides of the party, and also of the payment of the 
 judgment if it is affirmed. That is all that can be required,, 
 but where the case is appealed and the execution is left in 
 
 Id. 546. Oxley v. Mizzle, Id. 250. Bogart v. Schauber, 7 Cow. 417. 
 
 McGuire v. Ely, Wright (O.) 520. People v. Judges, i Wend. 3i. Mit- 
 
 Pondar v. Mosely, 2 Fla. 407. Mosely chell v. Thorp, 5 Id. 288. 
 
 V. Garner, II Tex. 393. Curtis v. Cur- ' South Fork Canal Co. v. Gordon, 
 
 tis, 47 Me. 525. Castro v. lilies, 22 2 Abb. U. S. C. 479. Parker v. An- 
 
 Tex. 479. Shields v. Powers, 29 Mo. derson, 3 T. B. Monr. 455, 
 
 315. Gibson v. Winslow, 38 Penn. 40. 
 
608 ON EXECUTIONS. [Chap. XXIII. 
 
 full force and a sale is made, the purchaser, if the execution- 
 creditor, should have the same protection as though he 
 were not a party to the suit. The debtor can prevent the 
 sale by perfecting the appeal and superseding the writ ; and 
 if he permits a sale, when he can prevent it, by pursuing 
 the legal remedies afforded him, should be compelled to 
 look to the proceeds instead of the property. But the doc- 
 trine that whenever a sale was made under an erroneous 
 decree or judgment, which was afterwards reversed, the 
 court rendering judgment having jurisdiction of the person 
 and the subject-matter, the purchaser acquired a good title, 
 notwithstanding the reversal, on the ground that it was 
 enough for the purchaser to know that the court had juris- 
 diction and exercised it, and that the judgment, on the 
 faith of which he purchased, was rendered, and authorized 
 the sale; with the errors of the court he had no concern, 
 and remitting the former owner to his action for damages 
 to make good his loss of property has been so far modified, 
 that if the plaintiff in the action or judgment be the pur- 
 chaser, as he takes the property for a pre-existing debt, pays 
 nothing for it as a stranger would, there being no proceeds 
 that he can be remitted to, the power to sell, and the power 
 vested in the officer by the judgment and execution to sell, 
 having been set aside. That the court ordering the salie 
 will order complete restitution made. .The restitution to 
 which a parly is entitled is everything in the possession of 
 his adversary." The defendant is entitled to be placed in 
 the same position he would have occupied if n© such judg- 
 ment had been obtained against him ; it is the proper case 
 for the restitutio integrum? In California he has his elec- 
 tion either to have restitution made or his action for dam- 
 ages.' Courts will enforce restitution. The law imputes 
 
 ' Galpin V. Page, 6 Chi. Leg. News. Bain, i6 Ohio S. 337. Twogood v. 
 
 301. Ela V. Welch, 9 Wis. 395. Pitts- Franklin, 27 Iowa, 239. Stroud v. 
 
 field V. Banstead, 38 N. H. 115. Casey, 25 Tex. 740. 
 
 ' Graham v. Eagan, 15 La. 97. * Reynolds v. Harris, 14 Cal. 667. 
 
 Hutchins v. Doe, 3 Ind. 528. Doe v. Johnson v. Lamping, 34 Id. 239. 
 
 Crocker, a Id. 575. McBain v. Mc- Reynolds v. Hosmer, 45 Id. 616. 
 
Chap. XXIIL] STAYING, SUPERSEDING. 609 
 
 knowledge to an attorney in the cause, and if the decree is 
 reversed his title falls with it. The protection which the 
 law gives to purchasers at judicial sales is not extended to 
 the attorney, who, like the party, is presumed to be cogni- 
 zant of all the proceedings." An assignee of the plaintiff 
 who purchased the property is held to be protected as a pur- 
 chaser in good faith.' 
 
 § 399. Of staying proceedings by injunctions ; WHEN 
 AND FOR WHAT CAUSES THEY WILL BE GRANTED. An in- 
 junction is a prohibitory writ, issued by the authority of a 
 court of equity or chancery, or under the code practice by 
 court of general jurisdiction, to restrain the doing of an act 
 which is deemed to be unjust or inequitable, so far as 
 regards the rights of the parties to such proceedings 
 wherein it is granted. They may be granted after judg- 
 ment to stay execution or proceedings under an execution.' 
 While the rule is, that such matters of defense as might 
 have been pleaded on the merits can not form legal grounds 
 for an injunction in arrest of the execution of a judgment, 
 it finds an exception in the cases of persons incapacitated 
 from contracting specially or generally, and as long as such 
 disability lasts, a judgment obtained against one of them 
 under such circumstances, and which has not acquired the 
 force of the thing adjudged, is liable to the same objection 
 as the obnoxious obligation.* Where a judgment is void for 
 
 ' Gott V. Powell, 41 Mo. 416. Cor- Reynolds, 18 Cal. 275. Delano v. 
 with V. State Bank, 15 Wis. 289. Mc- Wilde, II Gray, 17. Coolidge v. Mel- 
 Bain V. McBain, 15 Ohio St. 337. H. 'vin, 42 N. H. 18. 
 & St. T- R. R. V. Brown, 43 Mo. 294. ' Guiteau v. Wisely, 47 111. 433. 
 Dater v. Troy, &c., 2 Hill, 629. Wins- ' Fisher v. Baldwin, 22 L. J. Ch. 
 ton V. Ortley, 25 Miss. 456. Hubble 966. Espey v. Lake, 10 Ha. 260. 
 V. Broadwell, 8 Ohio, 127. Twogood Algar v. Murrell, 6 Jur. 775. New- 
 V. Fjanklin, 27 Iowa, 239. Bryant v. land v. Painter, 4 M. & C. 408. Jones 
 Fairfield, 51 Me. 149. Abbott v. v. Bassett, 2 Russ. 405. Rowe v. 
 Crocker, 2 Ind. 595. Hutchins v. Wood, 2 Sw. 234. Hawkshaw v. Par- 
 Doe, 3 Ind. 528. Graham v. Eagan, kins. Id. 539. Lady Arundel v. 
 15 La. 97. Johnson v. Eldred, 15 Phipps, 10 Ves. 144. Codd v. Wooden, 
 Wis. 481. Reynolds v. Harris, 14 Cal. 3 Bro. C. C. 72. Earl of Shrewsbury 
 667. Tilton V. Love, 13 111. 486. Jack- v. Trappes, 2 D. F. & J. 172. 
 son V. Cadwell, i Cow. 644. Raun v. ■* Medart v. Fasnatch, 15 La. 631. 
 
 39 
 
610 ON EXECUTIONS. [Chap. XXIIl. 
 
 want of jurisdiction, an execution issued on it may be per- 
 petually enjoined.' Or if the judgment is rendered without 
 due notice to the defendant who has a good defense to the 
 action ; ' or where, through the promise of the plaintiff not 
 to prosecute the action, he has neglected to plead ; * or 
 upon a judgment confessed against a firm by one partner 
 without their consent ;* or where the value of property levied 
 on exceeds the amount to which the jurisdiction of an 
 inferior court is limited ; * or where a judgment is obtained 
 by collusion, where the property levied upon was purchased 
 with complainant's funds, the judgment having been ob- 
 tained and the levy procured for the purpose of defeating 
 complainant's claim to the property ; ° or where the debt 
 has been paid after judgment.' Where the execution 
 issues for too much, an injunction may be had for the pur- 
 pose of restraining the collection of the excess.* Where a 
 party has a judgment against more than one person, and 
 levies the amount of his debt on the goods of one party, 
 courts will grant a rule restraining him from levying over 
 again on the goods of another." In the New England 
 states, under their laws, where an execution issues against a 
 town, any inhabitant may pay his proportion and obtain a 
 perpetual stay of execution against his property." 
 
 When the property of a stranger to the action is being 
 taken in execution to satisfy the debt of another, an injunc- 
 tion may be granted for Ihe purpose of restraining further 
 proceedings, notwithstanding the remedy at law for the 
 
 ' Cunningham v. Taylor, 20 Tex. ' Paddock v. Palmer, ig Vt. 581. 
 
 126. McFadden v. Spencer, 18 Id. Keighler v. Savage & Co. 12 Md. 583. 
 
 440- Shaw V. Dwight, 16 Barb. 536. 
 
 * Cooper V. Tyler, 46 111. 462. " Miles v. Davis, 36 Tex. 6go. Perry 
 Givens v. Campbell, 20 Iowa, 79. v. Kearney, 14 La. 400. Barrojv v. 
 
 » Rowland v. Thompson, 64 N. 0. Robichaux, Id. 207. Peshine v. Burns, 
 
 714. Lanman v. Sanders, Id. 367. 3 Stock. loi. 
 
 Atkinson V. Cox, Id. 576. 'Windham v. Wither, i Stra.515. 
 
 * Christy v. Sherman, 10 Iowa, 535. Ex parte Wildman, 2 Ves. 115. Wil- 
 » Stroud v. Humble, i La. Ann. liams v. Roberts. 8 Ha. 315. 
 
 3*°' '" Spencer v. Brighton, 49 Me. 
 
 * Greene v. Haskell, 5 R. I. 447. 326. 
 
Chap. XXIII.] STAYING, SUPERSEDING. 611 
 
 recovery of the property, or of damages for its detention. A 
 party whose property is taken in execution to satisfy the debt 
 of another, may proceed to recover that property or damages 
 for the taking and detaining thereof, in a court of law ; and 
 an officer having doubts as to the title of the property taken 
 in execution, may demand from the creditor an indemnify- 
 ing bond, in accordance with the statutory requirements, yet 
 neither of these proceedings are exclusive of a remedy in 
 equity having for its object the retention of the property in 
 the same form and kind. Every argument on which the 
 jurisdiction of the courts of equity to compel a performance 
 of a contract in kind is founded, holds with equal force, at 
 least in favor of retaining a subject of property which 
 another, having no title thereto, claims to arrest and dispose 
 of by means of an execution, rather than turn the rightful 
 owner round to seek an uncertain and inadequate repara- 
 tion in damages.' A levy, under an execution against the 
 execution -debtor, upon the property owned bona fide by a 
 stranger to the action, and which constitute his stock in 
 trade, presents such elements of apprehended damage and 
 injury, as are not susceptible of relief by action at law, and 
 constitutes sufficient ground for an injunction." So a sale of a 
 stranger's property under an execution against another, 
 will warrant the interference of a court of equity, where the 
 stranger's title to the property is such as to prevent its 
 being followed in the hands of purchasers, and such that an 
 action of trespass can not be maintained against the officers 
 or the plaintiff in the execution.' Where property has 
 been illegally taken in execution under a judgment, which 
 is not subject to the lien of the judgment, as in the case of 
 individual property of a member of a school district to satisfy 
 a debt'of the school district, its sale under execution may 
 
 ' Davis V. Clark, 26 Ind. 534. 10 Cal. 449. McCreery v. Sutherland, 
 
 Hard^ v. Broadhus, 36 Tex. 668. Bell 23 Md. 471. Wilson v. Butler, 3 
 
 V, Greenwood, 21 Ark. 239. Watson Munf. 559. 
 
 y. Sutherland, 5 Wall. 14. Walker v. * McCreery v. Sutherland, 23 Md. 
 
 Hunt, 2 West Va. 491. Sanders v. 471. 
 
 Sanders, 20 Ark. 6io. Ford v. Rigby, • Anderson v. Biddle, lo Mo. 23. 
 
612 ON EXECUTIONS. [Chap. XXIII. 
 
 be enjoined.' The taking of an indemnifying bond by the 
 officer making a levy, does not preclude a third person, 
 claiming to be the owner of the property levied upon, from 
 his right to an injunction, where the remedy at law is 
 incomplete.' United States courts scarcely ever interfere 
 with or restrain the proceedings of state courts, it being 
 prohibited by the ac,t of Congress of March 2d, 1793.' The 
 judiciary of the federal and state governments being entirely 
 independent of each other, the courts of the one govern- 
 ment can not by any process restrain or interrupt the exe- 
 cution of process of the other.* The act of Congress pro- 
 hibiting the issue of an injunction, does not apply where a 
 levy is made upon the property of A, on an execution 
 against D ; the levy being unauthorized and void, is not a 
 proceeding from the, court from which the execution issues.* 
 Whenever it is shown that the execution of a judgment 
 will Tae contrary to equity and good conscience, and the 
 facts which render it inequitable were not available as a 
 defence in the action, an injunction will be granted, restrain- 
 ing its collection ;' or if during the absence of the party 
 a judgment is rendered against him, an execution issued, 
 and on his return he discovers a complete defence to the 
 action, an injunction will be granted, staying execution, 
 and giving him a new trial.' So where a claim is settled 
 pending an action, and the plaintiff wrongfully takes judg- 
 ment, and causes execution to issue thereon, it will be 
 enjoined." If a person, in whose favor a money judgment 
 is rendered in trust for others, undertakes to enforce its 
 collection by execution, after the beneficial owners have 
 acknowledged satisfaction of it, the collection of it will be 
 
 ' Kenyon v. Clarke, 2 R. I. 67. • Clute v. Potter, 37 Barb. 199. 
 
 * Walker v. Hunt, 2 West Va. 49I. Cooper v. Tyler, 46 111. 462. Oro 
 ' I Stat, at L. 333. Fins., &c., Co. v. CuUen, i Idaho, 126. 
 
 * Riggs V. Johnson Co. 6 Wall. 166. Hibbard v. Eastman, 47 N. H. 
 U. S. V. Keokuk, Id. 514. U. S. r. 507. 
 
 Morris, 2 Am. L. R 348. ' Harvey v. Sashol, 4 W. Va. 
 
 ' Cropper v. Coburn, 2 Curt. C. 0. 415. 
 465. ' Devoe v. Scales, 49 Me. 320. 
 
Chap. XXIII.] STAYING, SUPERSEDING, ETC. • 613 
 
 enjoined in equity, even if it has not been paid.' Where a 
 judgment is entered in the firm name instead of the names 
 of the individuals composing the firm, it is regarded as 
 irregular, and will be enjoined in some states,' but not in 
 Wisconsin." An injunction will be granted to restrain the 
 issue of an execution after the statutory period in which 
 it might have issued,* or after the loss or destruction of the 
 record, there being no renewal or substitution." Relief being 
 afforded in equity against ordinary judgments in courts in 
 of law, it will be granted against an execution issued under 
 a statutory judgment, springing into being upon the forfeit- 
 ure of a forthcoming bond, where fraud has been used in ob- 
 taining the forfeiture of the bond.' A judgment-creditor will 
 be restrained from enforcing a judgment against the land of 
 a subsequent debtor, so long as there is other land of the 
 debtor remaining unsold sufficient to satisfy the judg- 
 ment.' 
 
 Proceedings in bankruptcy are regarded, as in the nature 
 of equity proceedings, and the jurisdiction of the court in 
 the collection and distribution of the bankrupt's estate 
 is in the nature of an equity power.' And the court ma)' 
 enjoin proceedings against the property of the bankrupt 
 under executions issued upon judgments recovered after the 
 filing of the petition, it being the policy and aim of the 
 bankrupt law to compel an equal distribution of the estate 
 for the benefit of all the creditors. After a decree in bank- 
 ruptcy, and pending proceedings for a final discharge, or 
 after a discharge, where no new promise is made or any- 
 thing done to revive the debt, the state courts have juris- 
 diction to restrain the execution sale of the bankrupt's prop- 
 erty acquired after the assignment, the judgment upon which 
 the execution issued having been obtained upon a debt 
 
 ' Meyer v. TuUy, 46 Cal. 70. Periy * Stout v. Macy, 22 Cal. 647. North 
 
 y. Siter, 37 Mo. 273. v. Swing, 24 Tex. 193. 
 
 ' Meek v. Bunker, 33 Iowa, 169. ' Cyrus v. Hicks, 20 Tex. 483. 
 
 Hampson v. Weare, 4 Id. 13. • Nun v. Matlock, 17 Ark. 512. 
 
 • Mclndoe v. Hazelton, 19 Wis. ' Massie v. Wilson, 16 Iowa, 390. 
 
 567. ' In re Wallace, 2 Bank Reg. 52. 
 
(314 ON EXECUTIONS. [Chap. XXIII. 
 
 provable in bankruptcy.' It has been held that it would 
 take a very strong case of fraud, mistake, surprise, or 
 accident to induce a court to interfere with the completion 
 of a sale upon an execution at law. Interfering with its 
 own process is a very different thing from interfering with 
 the process of another and independent tribunal.' The 
 court will not, unless a trust can be made out, restrain the 
 sheriff from selling the goods of a man found upon the 
 lands of a person against whom execution had issued upon 
 a judgment at law." A sale of a wife's property to satisfy 
 a judgment against her husband, to which she is no party, 
 will be enjoined.' The illegal sale of property will be 
 restrained,' or to prevent a sale of land without appraisement, 
 where a statute requires it." A grantor of real estate, with 
 covenants of warranty, has such an interest in restraining a 
 sale of the land under a judgment against a former owner, 
 alleged to have been paid, as to entitle him to apply for an 
 injunction.' A sale may be restrained where there is an 
 attempt to make it under such circumstances as must 
 necessarily cause a sacrifice.' In regard to personal property, 
 the owner may restrain the sale thereof by injunction, where 
 the execution issues against a third person, having no inter- 
 est in the property ; the owner for some cause not having the 
 right of possession, might otherwise be entirely remediless.' 
 A sale of real estate under execution which will not at 
 law confer any title on the purchaser, and whose only effect 
 will be to cast a cloud upon the title of a dona Jide purchaser, 
 may be enjoined." Nor in the application of the rule will it 
 
 ' Starr v. Heckert, 32 Md. 267. Collins v. Frazer, 27 Ind. 477. Elson 
 
 Turner v. Gatewood, 8 B. Monr. 613. v. Dowd, 41 Id. 302. Orr v. Pickett, 
 
 ' Killman v. Holcomb, I Beasley, 3 J. J. Marsh. 269. 
 
 131- * Robinson v. Perry, 4 Tex. 273. 
 
 ' Garstin v. Asplin, i Madd. 151. ' McCuUoch v. HoUingsworth, 27 
 
 Jackson v. Stanhope, 15 L. J. Ch. 446. Ind. 115. 
 
 ^ Alverson v. Jones, 10 Cal. 12. * McGown v. Sanford, 9 Paige, 290. 
 
 Lyon's Appeal, 61 Penn. 15. » Ford v. Rigby, 10 Cal. 449. , 
 
 " Strong V. Daniel, 5 Ind. 348. '» Conklin v. Foster, 57 111. 104. 
 
 English V. Smock, 34 N. H. 115. Bennett v. McFadden, 61 Id. 334. 
 
 Watson V. Sutherland, 5 Wall. 74. Dunn v. Tozer, 10 Cal. 167. Vogler 
 
Chap. XXIII.] STAYING, SUPERSEDING, ETC. 615 
 
 avail against the issuing of an injunction that the levy was 
 ■only made upon the right, title, and interest of the com- 
 plainant.' If the sale which it is sought to enjoin is such 
 that in an action of ejectment brought by the purchaser under 
 the sale, the real owner of the property would be obliged to 
 -offer evidence to defeat a recovery, then such a cloud would 
 be raised as to warrant the interference of equity to prevent 
 a sale.' A perpetual injunction will be allowed to restrain 
 the execution of a writ of habere facias possessionem against 
 a party's real estate, when he is not a party to the action 
 in which it issued.' An injunction will be granted to 
 restrain a mortgagee from selling the equity of redemption 
 on a judgment at law for the mortgage debt.' A purchaser 
 at a foreclosure sale, being entitled to the then growing 
 ■crops, may restrain the creditors of the mortgagor from 
 proceeding under execution to levy upon such crops, the 
 •doctrine of emblements having no application to purchasers 
 under a foreclosure ;' or where final process has been exe- 
 cuted to stay the money in the hands of the officer." An 
 injunction in a case of this kind is regarded as substantially 
 the same in effect as one restraining proceedings at law. In 
 order, therefore, to warrant such an injunction, the same 
 statutory bond or deposit should be required before issuing 
 the writ as is required in the case of an injunction against 
 
 ■s. Montgomery, 54 Mo_. 577. Christie Cormick v. Fitzmorris, 39 Id. 24. 
 
 V. Hale, 46 III. 117. Pettitt v. Shep- Wright v. Christy, Id. 125. 
 
 herd, 5 Paige, 493. Key, &c., v. Mun- ' Key, &c., v. Munsell, ig Iowa, 305. 
 
 sell, 19 Iowa, 305. Bank, &c. v. ^ Pixley v. Huggins, 15 Cal. 127. 
 
 Shultz, 2 Ohio, 471. Norton v. Beaver, Shaw v. Dwight, 16 Barb. -536. 
 
 5 Id. 175. Pixley v. Huggins, 15 Cal. ' Goodnough .vSheppard, 28 111. 81. 
 
 127. Oakley v. Trustees, 6 Paige, 262. * Van Meter v. Connover, 3 Green 
 
 Winn V. Cory, 43 Mo. 301. Leslie v. (N. j .) 38. Craft v. BuUard, S. & M. 
 
 St. Louis, 47 Id. 479. McPike v. ch. 366. 
 
 Penn, 51 Id. 63. Merchants Bank » Poche v. Theriot, 23 La. Ann. 137. 
 
 V. Evans, Id. 345. Clark v. Cov. , &c.. Crews v. Pendleton, I Leigh. 297. 
 
 •Co., 52 Id. 272. Payne V. Graham, 23 « Whittingham v. Burgoyne, 3 Anst. 
 
 La. 771. Scott v. Onderdonk, 14 N. Y. goo. Hawkshaw v. Parkins, 2 Swanst. 
 
 <). Gamble v. St. Louis, 12 Mo. 617. 539. Franklyn v. Thomas, 3 Mer. 
 
 Lockwood v. St. Louis, 20 Id. 20. 234. Farquaharson v. Pitcher, 2 Rus& 
 
 Fowler v. St. Joseph, 37 Id. 240. Mc- 81. 
 
616 ON EXECUTIONS. [Chap. XXII. 
 
 proceedings at law.' A defendant in an action of replevin, 
 who has given a forthcoming bond, is entitled to an injunc- 
 tion against a sale of the property on an execution against the 
 plaintiff." Where the judgment in replevin is in the alternative 
 form, for the return of the property, or in default thereof, for 
 the damages, if a tender of the property is made within a 
 reasonable time, the plaintiff may be enjoined from enforcing 
 by execution the judgment for the money.' Where the ques- 
 tion of property is pending between the plaintiff and a 
 claimant of property levied on, an injunction will be granted 
 to stay proceedings on other writs of execution issued upon 
 the same judgment and levied upon the same property.* 
 A claimant may after withdrawal of his claim to real estate 
 obtain a perpetual injunction against the levy of executions 
 on said estate.' . An execution-creditor is entitled to an in- 
 junction restraining his debtor and a prior execution-creditor,, 
 from making any disposition of the debtor's personal property^ 
 levied upon in satisfaction of the first judgment, unless b)'- 
 sale by virtue of the first execution ; and such injunction will 
 be continued until his debt is satisfied.' The capacity of an 
 officer can not be tested or inquired into by an injunction 
 against a seizure on execution.' When land is sold under exe- 
 cution pendingan application of the judgment-debtor to have 
 A homestead assigned to him, a court of chancery may inter- 
 pose by injunction to prevent eviction of such debtor until 
 the parties can be heard and their rights adjudicated.' Courts- 
 will interfere by injunction to prevent the delivery of a 
 sheriff's deed, where different parcels of land were sold en 
 masse.' 
 
 § 400. Of the effect of an injunction against final. 
 PROCESS. In order to make an injunction operate as- 
 against an execution and suspend all proceedings there- 
 
 ' Boker v. Curtis, 2 Edw. ch. ' Cox v. Mayor, &c., 17 Geo. 249. 
 
 III. ' Edgar v. Clevenger, i Green, ch, 
 
 ' Cooper V. Newell, 36 Miss. 316. 258. 
 
 ' McClellan v. Marshall, 19 Iowa, ' Turner v. Hill, 21 La. 543. 
 
 5)5l. ' Kilgore v. Beck, 40 Geo. 293. 
 
 * Huntington v. Bell, 2 Port. 58. ' Ballance v. Loomis, 22 111. 82.. 
 
Chap. XXIII.] STAYING, SUPERSEDING, ETC. 617 
 
 under, the party seeking the equitable relief must file the 
 necessary bond required.' Where there is a failure to give 
 such bond, it is no contempt in such case to proceed in the 
 execution and completion of the proceedings under the writ. 
 When an execution is enjoined, the court is without power to 
 order the sale of any part of the property under seizure, and 
 the officer is to retain the proceeds until after the matter is 
 determined. The bond is presumed to be ample protection 
 to the plaintiff in the execution, and until the matters are 
 determined all proceedings in the case are suspended." Where 
 the injunction is issued to restrain the execution of final 
 process which was irregularly issued, and such process is 
 returned the irregularity is cured, the injunction does not 
 prevent the issue of, levy, and sale under a subsequent 
 execution.' Where an injunction is granted restraining the 
 levy of an execution, it precludes the credior from placing it 
 in the officer's hands, though no sale is made.* If granted 
 after a levy, it releases it and discharges the lien of the exe- 
 cution created thereby,' and the officer is bound to restore 
 the property to the owner.' Where it restrains the defend- 
 ant and all other persons from selling personal property 
 until the further order of the court, it will prevent a sale of 
 the property in satisfaction of an execution against the 
 defendant, even though the execution be in favor of a per- 
 son not a party to the proceedings for the injunction.' A 
 judgment obtained in violation of an injunction is null and 
 void, and proceedings at law for its enforcement may be 
 enjoined.' Where an execution is enjoined, and the lien of 
 the judgment is thereby lost, after dissolution the party pro- 
 ceeding by injunction can not take advantage of the loss of 
 such lien," and will be enjoined from pleading the statute of 
 
 ' Wiley V. Woodward, 19 La. 188. ' Lockridge v. Bickerstaaf, 2 Duvall, 
 
 Clarke v. Hoome's Exrs. 2 H. & M. 281. 
 
 23. * Lesser v. Bisbee, 3 Ohio, 464. 
 
 ' State, &c., V. Judge &c., 25 La. ' West v. Belches, 5 Munf. 187. 
 
 666. ' Collins v. Frazier, 27 Ind. 477. 
 
 ' Smith V. Purvies, 20 La. 278. ' Work v. Harper, 31 Miss. 
 
 ■• Sugg V. Thrasher, 30 Miss. 136. 107. 
 
€18 ON EXECUTIONS. [Chap. XXIII. 
 
 limitations.' When an injunction is served upon a sheriff, 
 restraining an execution in his hands, it is his duty to note 
 the fact upon the execution, and to desist from all further 
 proceedings, without, however, releasing the levy." 
 
 § 401., When an injunction will not be granted. 
 To restrain an execution on a judgment in attachment will 
 not be enjoined on the ground of surprise, where process 
 was actually served upon the defendant.' Nor because 
 there are two funds from which it may be made ; the cred- 
 itor has the right to pursue his remedy in each.' In some 
 states, on the ground that the judgment has been partially 
 or wholly paid, the parties being remitted to their remedy 
 at law ; ■ or to restrain a creditor of an individual partner 
 from levying upon the partnership property.' A sale will 
 not be enjoined on account of defects and irregularities in 
 the proceedings by which the judgment was obtained ; actual 
 injury or apprehension of injury must be shown.' The sale 
 of property levied upon by virtue of an execution will not 
 be restrained against a person other than the owner of the 
 property.' Where an officer, who levies an execution on 
 property wrongfully, is abundantly able to meet the lia- 
 bility incurred by taking the goods, the aggrieved party has 
 a remedy at law, and can not have relief in equity." An 
 officer who has an ample remedy at law in case of an action 
 against him for selling property to which there are conflict- 
 ing rights, and where he is not obliged to proceed without 
 being indemnified for such damages as may be sustained 
 by him, he can not enjoin proceedings brought against 
 
 • Marshall v. Minter, 43 Miss. 666. Ewing v. St. Louis, 5 Wallace, 
 ' Pettingill v. Moss, 3 Minn. 222. 413. 
 
 ' Peters v. League, 13 Md. 58. * Freeman v. Elmendorf, 3 Halst. 
 
 • Muscatine v. Mississippi, i Dillon 655. Watkins v. Logan, 3 Monr. 21. 
 C. C. 536. Bouldin v. Alexander, 7 Id. 425 
 
 ' Lansing v. Eddy, I Johns, ch. 49. Coughron v. Swift, 18 111. 414. Hen- 
 Foster V. Wood, 6 Id. 87. Parker v. derson v. Morrill, 12 Tex. I. Carlin 
 Jones, 5 Jones Eq. 276. v. Hudson, Id. 202. Hall v. Davisj 5 
 
 • Young V. Fryer, I Stockt. 465. J. J. Marsh. 290. 
 
 ' Morgan v. Whiteside, 14 La. 277. » Chappell v. Cox, 18 Md. 513. 
 
Chap. XXIII.] STAYING, SUPERSEDING, ETC. 619 
 
 him for having sold property, the title to which is in 
 dispute.' 
 
 § 402. Of THE EFFECT OF THE DISSOLUTION OF THE IN- 
 JUNCTION UPON THE EXECUTION OF FINAL PROCESS. A 
 decree dissolving an injunction against the execution of 
 final process at law, restores the execution-creditor to the 
 same position which he occupied before the granting of the 
 writ, restoring the lien and priority of the execution, and it 
 may be enforced as if no injunction had been granted ; it 
 removes all barriers preventing the enforcement of the 
 judgment. Execution may issue immediately upon the 
 dissolution It is not necessary to obtain leave of the court 
 to issue execution.' An appeal from the judgment or 
 decree dissolving the injunction, does not revive the injunc- 
 tion nor stay the proceedings for the enforcement of the 
 judgment on which the execution issued. The plaintiff may 
 proceed as though never restrained.' 
 
 § 403. When an execution will be quashed ; 
 GROUNDS FOR QUASHING. A motion to quash an execu- 
 tion must be in the name of a party on the record and 
 against a party on the record, notwithstanding a stranger 
 has acquired an equitable right in the property.' Notice of 
 the motion or proceedings to quash must be given to the 
 adverse party or purchaser, or all parties interested ; if not, 
 the action of the court will be reversed." No petition is 
 necessary previous to a motion to quash in the same court 
 from whence it issued ; it may be submitted ore ienus in term 
 time.' The power of courts to quash is not limited to 
 
 ' Storrs V. Payne, 4 H. & M. 506. Marsh, 10 Ark. 129. McKissack v. 
 
 ' Young V. Davis, l Monr. 152. Davis, 18 Ala. 815. Hammond v. 
 
 Duckett V. Dalrymple, i Rich. L. 143. . Marvin, 9 M. & W. 221. Irons v. 
 
 * Hoyt V. Gelston, 13 Johns, 139. McQuewan, 27 Penn. 196. Lyster v. 
 Wood V. Dwight, 7 Id. ch. 295. Gar- Brewer, 13 Iowa, 461. Osborn v. 
 row V. Carpenter, 4 S. & Port. 336. Cloud, 21 Id. 238. Eckstein v. Calder- 
 
 * Wallop V. Scarburgh, 5 Gratt. I. wood, 34 Cal. 658. Good v. Coombs, 
 ' Dazey v. Orr, 2 111. 535. Bentley 28 Tex. 34. Linn v. Hamilton, 34 N, 
 
 T. Cumraings. 8 Ark. 490. Mann v. J. L. 305. 
 
 Nichols, 9 Miss. 257. State Bank v. ' Phillips v. Brazeal, 14 Ala. 746. 
 
620' ON EXECUTIONS. [Chap. XXIII, 
 
 periods prior to their return ;' it may be quashed after its 
 return.' Whatever form the writ may be, it must conform 
 to the judgment ; if it does not, it will be quashed on 
 motion;' or if issued after plaintiff's or defendant's death 
 without revival ;* or if issued against a person not a party 
 to the suit ;' or if issued on a judgment after it is satisfied :' 
 or if an order of seizure and sale is obtained by an adminis- 
 trator without showing that he is administrator, the omis- 
 sion to show such fact is fatal.' 
 
 § 404. When it will not be quashed ; what not 
 SUFFICIENT GROUNDS FOR QUASHING. An indorsement of 
 certain credits upon an execution after it issue, is no ground 
 for quashing it on motion of the defendant, the credits being 
 made for his benefit ;" the misspeUing of the defendant's 
 name ;° clerical errors ;'° or if issued after the plaintiff's death, 
 if it bears teste of a date before his death ;" an erroneous 
 taxation of costs." Where an execution issues for more 
 than the judgment is rendered for, it will be quashed as to 
 the excess." In order to justify the sustaining of the motion, 
 the excess must be so great as to indicate a disposition to 
 abuse legal process." A tender of payment of the judgment, 
 will not unless the money is paid into court, and a motion 
 made to have satisfaction entered," where that aftd only 
 that has been done which is required, though done prema- 
 turely;'" in Texas, after it is functus officio;" or on motion of 
 
 ' Isaacs V. Judge, 5 S. & Port. 402. • Cheek v. Claiborne, 22 Ark. 384. 
 
 ' Page V. Coleman, 9 Port. 275. '" Saunders v. Ky. Ins. Co. 4 Bibb. 
 
 * Reese v. Burts, 39 Geo. 565. 471. Shepard v. Meloy, 12 Ala. 561. 
 
 * Moore v. Bell, 13 Ala. 459. Bent- Mitchell v. Chestnut, 31 Md. 521. 
 ley V. Cummins, 9 Ark. 487. Nuckols " Neil v. Grannt, 1 Coldw. 396. 
 
 V. Mahone, 15 Ala. 212. " Walton v. Brashear, 4 Bibb. 18. 
 
 ' Graham v. Roberts, 7 Ala. 719. Noe v. Conyers, 6 J. J. Marsh. 514. 
 
 Bridges v. Caldwell, 2 A. K. Marsh. " Tilby v. Best, 16 East. 163 ; Anon, 
 
 195, Morrell v. Burnell, 4 Litt. 10. I Chit. 150. Murphy v. Lewis, I 
 
 Treadwell v. Henderson, 41 Miss. 38. Hemp. 17. 
 
 * McHenry v. Watkins, 12 111. 233. •* Walker v. Gilbert, 21 Miss. 698. 
 Russell V. Hugenin, 2 III. 562. Adams " Shumaker v. Nichols, 6 Gratt. 
 V. Smallwood, 8 Jones L. 258. • 592. 
 
 ' DeBureys v. Ferret, 18 La. 80. " Hapgood v. Goddard, 26 Vt. 401 
 
 » Williamson v. Ong, i West Va. 84. " Scott v. Allen, i Tex. 508. 
 
Chap. XXIII.] STAYING, SUPERSEDING. 621 
 
 a discharged brnkrupt under the state laws ;' laches will pre- 
 vent it from being quashed, or set aside, — as making the mo- 
 tion four months after levy •," or on the unsupported affidavit 
 of the defendant ;' or parol evidence of payment ;' a sale of 
 property assigned for the benefit of creditors on process 
 issued by a creditor who denies- the validity of the assign- 
 ment.' 
 
 § 405. Effect of quashing an execution. A rule 
 to quash, whatever may be the grounds on which it is 
 based, does not of itself suspend the execution of the writ 
 or a sale of land under it to a purchaser without notice ;' 
 but the court may award a restitution of the premises 
 seized where the rights of third parties have not inter- 
 vened.' Where restitution is ordered of the money, the 
 plaintiff is only bound to repay the money which has been 
 properly paid.' 
 
 ' Treeny v. Ware, 9 Ala. 370. • Chambers v. Stone, 9 Ala. 260. 
 
 • Bowman v. Talman, 2 Rob. (N. Levi v. Converse, 20 La. 558. Doe v. 
 Y.) 633. Stephens v. Wilson, 14 B. Snyder, 4 Miss. 66. 
 
 Monr. 88. ' Campau v. Coates, 17 Mich. 
 
 » Keefer v. Mason, 36 111. 406. ' 235- 
 
 * Clemens v. Prout, 3 Stew. & P. 345- ' Whalley v. Bamett, 2 Dowl. P. C. 
 » Neel V. Bank of Lewiston, 11 33- 
 
 Penn. 17. 
 
622 ON EXECUTIONS. [Chap. XXIV. 
 
 CHAPTER XXIV. 
 
 OF THE LIABILITIES RESULTING FROM THE EXECUTION OF 
 FINAL PROCESS. 
 
 Liability for negligence and want of skill. — For neglecting 
 to levy. — For failing to levy on personal property first. — 
 What is sufficient to show negligence. — Negligence in the 
 care of property after seizure. — Neglecting to sell. — Sell- 
 ing property not subject to levy. — Failure to return a writ of 
 execution. — For false return. — For refusing or neglecting 
 to apply the proceeds to plaintiff' s judgment. — When guilty 
 of trespass, and when a trespasser ab initio. — Abuse of 
 authority. — When other parties equally liable. — When an 
 officer will not be held responsible for irregularities. 
 
 § 406. The various matters treated herein, relating to the 
 proceedings upon final process, the courts by which their 
 adjudications are carried into effect, and by which the vigilant 
 creditor is enabled to realize the fruits of his judgment, have 
 been treated of in regard to the effects produced thereby 
 upon the parties to the action, their privies, and strangers, 
 regardless of the rights and responsibilies of the ministerial 
 ofHcers of the court, to whom such processes are entrusted for 
 execution. Many of the statutory requirements as regard 
 strangers or third parties, are held to be mere matters of 
 form or ceremony, which are directions given by the law to 
 the officer for the legal and faithful discharge of his duties^ 
 with which an innocent purchaser —a purchaser without 
 notice — has no concern. It matters but little to the pur- 
 chaser whether the officer conforms to those matters of form 
 or not; he is only bound to know that there is a valid judg- 
 ment, a valid subsisting power authorizing a sale. When 
 
Chap. XXIV.] > LIABILITIES. 623 
 
 the power exists, all derelictions of the officer in the mode 
 in which he executes the process, are matters relating ex- 
 clusively to the parties interested in the action and the offi- 
 cer, for which he is amenable to such parties. From the 
 failure to comply with such statutory requirements, he 
 becomes liable to the party aggrieved or damaged. The 
 law, while it presumes that its ministerial officers comply 
 with all its requirements, and that all of their acts are 
 solemnly and rightfully done in order to protect the rights 
 of innocent parties who are entitled to its protection, also 
 scrupulously guards the rights of the unfortunate debtor, 
 who is not beneath its protection. Every man has the 
 right to have his property rightfully and legally seized and 
 sold. Every court is bound to protect its own officers in the 
 discharge of their duties, and to hold them to a strict 
 accountability for their acts, which, if negligently performed, 
 or if they have abused their powers and oppressed the un- 
 fortunate debtor, gives him an action for neglect and abuse, 
 as well as the execution-creditor, who may have sustained 
 damages by such negligence. 
 
 § 407. Liability for negligence and want of skill. 
 Officers to whom valid process is issued are bound to exer- 
 cise ordinary skill and diligence in its execution, and for 
 any neglect to exercise such skill and diligence are liable 
 for any damages the execution-debtor may have in conse- 
 quence sustained.' No general rule as to what constitutes 
 due diligence can be laid down, as it depends upon the facts 
 of the case ; but where an officer receives an execution 
 
 ' Barnard v. Ward, 9 Mass. 269. 104. Johnson v. Reese, 28 Geo. 350. 
 
 Dorrance v. Commonwealth, 13 Penn. State v. Nelson, i Ind. 522. Kimball 
 
 160. Jordan v. Gallup, 12 Conn. 537. y. Davis, 19 Me. 310. Pierce v. Part- 
 
 Kitredge v. Fellows, 7 N. H. 399. ridge, 3 Met. 44. Trigg v. McDonald, 
 
 Kirksey v. Prior, 13 Ala. 190. Bow- 2 Humph. 286. Griffin v. Isbell, 17 
 
 man v. Cornell, 39 -Barb. 69. Neal Ala. 184. Commonwealth v. Cout- 
 
 V. Price, II Geo. 297. Sherrill v. ner, 18 Penn. 439. McKinne v. 
 
 Shuford, 10 Ired. L. 200. Tucker v. Craig, 4 Sneed. 577. Watkinson v. 
 
 Bradley, 15 Conn. 50. Andrews v. Bennington, 12 Vt. 404. State v. 
 
 Keep, 38 Ala. 315. Lawson v. State, Porter, I Harr. 126. 
 10 Ark. 28. Wolf V. Door, 24 Me. 
 
624 ON EXECUTIONS. [Chap. XXIV. 
 
 against a resident of his county, who is in open possession 
 of property sufficient to satisfy such execution, and he 
 makes no attempt within thirty days after its reception to 
 levy, or give the plaintiff any notice of any real doubts 
 which he may entertain of the liability of the property to 
 execution, he is guilty of a want of due diligence. It is a 
 mixed question of law and fact: the jury determine the 
 facts, and the court decides whether they constitute due 
 diligence.' A delay to execute a writ for eight days has 
 been held negligence," and is liable for such negligence.' 
 The officer to whom any writ shall be directed and delivered, 
 ought to execute it with all speed and secresy, and pursue 
 the directions therein contained ; else he can not justify under 
 it. When directed to attach the goods, estate, or person of a 
 debtor, if, by the delay of such officer having such warrant, 
 the debtor absconds, or his goods are removed out of the 
 jurisdiction of such officer, or are sold, or such goods or 
 estate are by some other officer seized by virtue of lawful 
 process, the officer thus delaying becomes liable to an action 
 for such delay. Any person injured by any irregular pro- 
 ceedings of an officer on execution, may obtain redress by 
 ^.n action against him.' While an action lies against an offi- 
 cer to recover demages, so far as his negligence or want of 
 execution of his official duties cause a direct injury, it 
 does not for losses remotely consequential." If he fails 
 to make a levy in due time, to sell and make due re- 
 turn, he is guilty of negligence, and is liable to an 
 action at the instance of the plaintiff in execution, but hot 
 to a motion for a false return,' and is liable for any damage 
 resulting by his failure to notify and make a demand of the 
 debtor, where that is required by statute.' Where he turns 
 over process to another officer without consent of the cred- 
 itor, and thus enables the debtor to avoid execution, he is 
 
 ' Whitsell V. Slater, 23 Ala. 626. ' Lambeth- v. Mayor, 6 La. Rep. 737. 
 
 • Hearn v. Parker, 7 Jones L. 150. ' Trigg v. McDonald, 2 Humph. 
 ' Clifton V. Hooper, 6 Q. B. 468. 386. 
 
 ♦ Tuttle V. Gates, 24 Me. 395. ' Pitts v. Magie, 24 111. <)to. 
 
Chaf. XXIV.] LIABILITIES. 625 
 
 liable for non-feasance." It does not invalidate the process 
 if the other officer executes it." If the officer to whom the 
 process originally issued adopts the proceedings of the offi- 
 cer executing it, it becomes his own act.' The measure of 
 damages for such negligence is the amount ordered to be 
 collected on the execution, where there was property- 
 enough to levy it on ;* but for negligently executing the 
 writ only nominal damages can be recovered, unless actual 
 damages are proven.' 
 
 § 408. For neglecting to levy. The object of issu ■ 
 ing an execution is for the collection of the amount ordered 
 to be made thereon. When issued and delivered to the offi- 
 cer, he must execute it in accordance with its commands. 
 One of the commands is to levy; if he neglect to levy an 
 execution until it has become impossible to execute it, 
 when he might have done it sooner, he will be liable in 
 damages to the amount of the execution." The rule that 
 an officer becomes liable to the creditor for the whole 
 amount of an execution which he suffers to run out in his 
 hands, applies to those cases where he has done nothing 
 under the writ, which operates as an immediate and nec- 
 essary benefit to the creditor.' If an officer is required to 
 make a levy on real estate, and does it so defectively that 
 no title passes by it, he is liable to an action and to nomi- 
 nal damages, notwithstanding he shows that the debtor 
 had, at the time, no valid title to the land.' In an action 
 against an officer for making an insufficient levy, the mea- 
 sure of damages is the actual injury, and not the amount of 
 
 ' Ishara V. Eggleston, z Vt. 270. v. Baker, g. Miss. 41. Williams v. 
 
 ' Lynn v. Sisk, g B. Monr. 135. Lowndes, i Hall, 57g. Clifton v. 
 
 ' Clarke v. Gary, II Ala. g8. Hooper, 6 Q. B. 468. Weld v. Bart- 
 
 '' Bacon v. Cropsey, 7 N. Y. igs. lett, 10 Mass. 474. Young v. Hos- 
 
 Ledyard v. Jones, 7 N. Y. 550. Weld mer, II Mass. 8g. Kellogg v. Monroe, 
 
 V. Green, lo Me. 20. 9 Johns. 300. Patterson v. Westervelt, 
 
 » Bates V. Wiiigfield, 4 A. & E. N. 17 Wend. 543. Tucker v. Bradley, 15 
 
 S. 580. Conn. 50. 
 
 » L. & F. Ins. Co. V. Adams, 9 Pet. ' Watkinson v. Bennington, la 
 
 573. Andrews v. Keep, 38 Ala. 315. Vt. 404. 
 
 Frost V. Dugal. I Day, 128; Douglass • Bell v. Roberts, 15 Vt./74l. 
 40 
 
626 ON EXECUTIONS. [Chap. XXIV, 
 
 the execution, unless that measures the injury." The rule by 
 which to measure the damage sustained by a failure to levy, is 
 the amount which could have been realized out of the proper- 
 ty of the defendant, if sold for the best price the officer could 
 have obtained. Where there is not enough to satisfy the writ,* 
 a general return, if " levied on goods as per inventory," does 
 not discharge the execution-debtor, and make the officer liable 
 for the whole amount ; he is liable only for goods on which a 
 levy might have been made." Where the officer makes a levy 
 after the return day.* An officer receiving an execution against 
 a firm for an individual debt, and subsequently one for a part- 
 nership debt, is held liable to the plaintiff in the partnership 
 execution, if he does not levy first for the partnership debt, 
 after receiving instructions so to do.* So where there are two' 
 writs in his hands, and he executes the junior writ first, and 
 exhausts the property, and on the senior one he is com- 
 pelled, in order to satisfy it, to levy on the estate of a 
 surety, he is liable in a suit to such surety.' So where upon 
 the dissolution of an injunction, execution issued for the 
 principal debt, and was placed in the hands of an officer, to 
 whom property was delivered by the defendant in the exe- 
 cution to sell to pay the debt, the officer left the prop- 
 erty in possession of the defendant ; the property was 
 run off out of the state, and the defendant proved insolvent. 
 The surety in the injunction bond was sued, and paid the 
 debt of his principal. The officer was held liable to the 
 surety for the loss occasioned by his misfeasance.' Where 
 the plaintiff 's execution was levied by the officer, and a claim 
 of property interposed by a third person, and a bond given 
 to try the right, pursuant to the statute, the plaintiffs 
 moved to dismiss the claim, which was overruled, and a 
 judgment for costs rendered against them. A writ of error 
 
 ' Commonwealth v. Lightfoot, 7 B. Vail v. Lewis, 4 Johns. 450. Andress 
 
 Monr. 298. V. Broughton, 21 Ala. 200. 
 
 ' MuUett V. Challis, 2 Eng. L. & Eq. ' Trowbridge v.Cushman,24Pick.3io. 
 
 a6o. * Commonwealth v. Stratton, 7 J. J. 
 
 • Little V. Delancey, 5 Binn. 266. Marsh. 90. 
 
 ♦ Chase v. Plymouth, 20 Vt. 469. ' Rowe v. Williams, 7 B. Monr. 20a, 
 
Chap. XXIV.] LIABILITIES. 627 
 
 having been prosecuted, the judgement was reversed and 
 the cause remanded, and then, on motion of the plain- 
 tiffs, the claim was dismissed. Held, that these proceed- 
 ings did not amount to a waiver, on the ground of election 
 or otherwise, of the summary remedy by the statute against 
 the officer for failing to make the money on the execution,' 
 and is liable for neglecting to levy where there is a " stay of 
 sale " endorsed on the execution ■' or to make an arrest 
 where he is notified that the debtor intends absconding 
 before daylight, and the debtor does get away ;' or that 
 the consideration of the judgment had failed. Want of 
 health is no excuse for failing to execute a writ.* Where 
 the officer refuses to levy, an action may be commenced 
 against him and his sureties before the return day of the 
 writ.' 
 
 § 409. For neglecting to levy on personal prop- 
 erty FIRST. Personal property being the primary fund out 
 of which satisfaction is to be made, it is the duty of the officer 
 to subject such property to sale under an execution where 
 the debtor has personal property that is liable. As regards 
 a purchaser, the failure to levy on such property prior to a 
 sale of the real estate is mere irregularity, which does not 
 affect his title, and is a matter between the parties and 
 the officer. Where a statute requires a levy on personal 
 property before land is to be taken on execution, if the offi- 
 cer violates the law he is liable in an action against him.'' 
 So if he disregards the plaintiff's instructions.' 
 
 §410. What is sufficient to show negligence. 
 Proof that an execution came to the hands of a sheriff, and 
 that the defendant had at the time property, is sufficient to 
 
 • Leavitt v. Smith, 7 Ala. 175- R- 444- L. & F. Ins. Co. y. Adams, 9 
 
 « Farrar v. Wingate, 4 Rich. 35. Pet. 573. Arnold v. Commonwealth, 
 
 » Phillips V. Ronald, 3 Bush, 244. 8 B. Monr. 109. 
 
 Tucker v. Bradley, 15 Conn. 50. » Beeler v. Bullitt, 3 A. K. Marsh. 
 
 « Campbell v. Luttrell, 13 Mo. 280. Hopkins v. Burch, 3 Geo. 222. 
 
 27. Arnold v. Commonwealth, 8 B. Simpson v. Hiatt, 13 Ired. 470. 
 
 Monr. 109. ' Morgan v. People. 59 "l- 58. 
 
 ' Shannon v. Commonwealth, 8 S. & Barker v. St. Quintin, 12 M. & W. 441. 
 
628 ON EXECUTIONS. [Chap. XXIV. 
 
 establish the liability of the sheriff for not levying, unless 
 he shows a sufficient reason for not doing so.' In an action 
 against an officer for neglecting to levy an execution on 
 goods attached by him on the writ, he can not defend by 
 showing that he had previously sold the goods without the 
 consent of the creditor, and received money therefor.' It 
 is not sufficient to support an action against an officer for 
 not levying an execution in his hands on property of the 
 defendant therein, to show that such defendant had prop- 
 erty ; it must be also shown that the officer did not use 
 reasonable diligence to discover it.' Failure to make the 
 money is a failure to execute the process.* 
 
 § 411. For negligence in the care of the property 
 LEVIED ON, AND IN THE SALE. An officer, having taken 
 property on legal process, must, in his subsequent proceed- 
 ings with it, comply with all the requirements of the law, 
 or show some legal excuse for not doing so ; and if he does 
 not, he becomes liable, not only to those on whose behalf 
 he acts, but also to the owner and those claiming under 
 him and standing in his situation ;' as surrendering posses- 
 sion of goods without legal authority, after he has made a 
 levy on them ;° or if lost by want of ordinary care ;' or for 
 any loss occasioned by failure to duly advertise property 
 sold by him on execution.' If the efficer bj' his miscon- 
 duct induced a sale of the property for less than it would 
 have otherwise brought, the remedy must be an action for 
 damages resulting from his acts, and not an action to recover 
 the property or its value;' for selling land en masse, when it 
 may be subdivided and sold in parcels." 
 
 ' Haynes v. Tunstall, 5 Ark. 680. Penn. 439. Griffin v. IsbeU, 17 Ala. 
 
 ' Fairbanks v. Stanley, 8 Me. 184. 
 
 296. ' State V. Nelson, i Ind. 522. 
 
 » Fisher v. Gordon, 18 Mo. 386. ' Johnson v. Reese, 28 Geo. 353. 
 
 Jacobs V. McDonald, 8 Id. 565. » Foster v. Coronel, Gal. (Unre- 
 
 * Andrews v. Keep, 38 Ala. 315. ported.) 
 
 Bowman v. Cornell, 39 Barb. 69. •» West v. Cooper, I9 Ind. I, Till- ' 
 
 ' Jordan v. Gallup, 12 Conn. 537. man v. Jackson, I Minn. 183. Fine 
 
 • Commonwealth v. Coutner, 18 v. St. Louis, &c., 30 Mo. 166. 
 
Chap XXIV.] LIABILITIES. 629 
 
 § 412. For neglecting to sell. An officer who seizes 
 property by virtue of a fieri facias, and does not sell the 
 same within a reasonable time, is liable for his non-feasance 
 to the party injured, unless he have a legal excuse.' For 
 selling property at a place different from that advertised ;' 
 for selling property before or after the time prescribed 
 by law ;' or where he continues in possession after the re- 
 turn day ;* for selling the entire property in place of the 
 mortgagor's interest in personal property ;' for making an 
 excessive levy and selling more property than is sufficient 
 to satisfy the execution, and retaining the surplus, he is 
 liable for the surplus.' He should sell only enough to sat- 
 isfy the debt, and in such manner as will produce the most 
 money ;' or if he seizes property under a legal writ, and a 
 sale is made of sufficient to cover that writ and another 
 which is void, he is liable for selling more than is sufficient 
 to cover the good writ.' 
 
 §413. For selling property not subject to exe- 
 cution. In the execution of process, an officer acts at his 
 peril, if he takes other property than that which he is 
 authorized to by the writ.' Thus where property is exempt 
 from levy and sale on execution, if an officer seize and sell 
 it, he is liable." Where the property that is exempt from 
 
 ' State V. Herod, 6 Blackf. 444. ' Waterbury v. Westervelt, 9 N. Y. 
 
 Aireton v. Davis, 9 Bing. 740. Bales ' 598. Aldred v. Constable, 6 Q. B. 
 
 V. Wingfield, 2 N. & M. 831. Harris 370. Batchelor v. Vyse, 4 M. & S. 
 
 V. Kirkpatrick, 35 N. J. L. 392. 552. 
 
 Dorrance v. Commonwealth, 13 Penn. ' Stead v. Gascoigne, 8 Taunt. 527. 
 
 60. Cook V. Palmer, 6 B. & C. 739. Me- 
 
 ' Hall V. Ray, 401 T. 676. vey's Appeal, 4 Penn. 80. 
 
 8 Carlisle v. Parkins, 3 Stark. 163. » Aldred v. Constable, 6 Q. B. 370. 
 
 Patterson v. Powell, 15 Ala. 205. Woods v. Monell, i Johns. Ch. 502. 
 
 Jacobs V. Humphrey, 4 Tyr. 272. ° Buck v. Colbath, 3 Wall. .335. 
 
 Pierce v. Benjamin, 14 Pick. 336. L. & F. Ins. Co. v. Adams, 9 Pet. 537. 
 
 Purrington v. Loring, 7 Mass. 38. Segourney v. Ingraham, 2 W. C. C. 
 
 Dorance v. Commonwealth, 13 Penn. 336. Wortman v. Conyngham,. Pet. 
 
 60. Prescott V. Wright, 6 Mass. 20. C. C. 241. The Monte Allegro, g 
 
 'Aitkenheadv.Blades, 5 Taunt. 198. Wheat. 645. Connell v. Walker, 45 
 
 • Frisbee v. Langworthy, 11 Wis. Penn. 450. 
 
 375. '» Clapp V. Mott, 253. Spencer v. 
 
630 
 
 ON EXECUTIONS. 
 
 [Chap. XXIV. 
 
 execution is levied on and sold by an officer, when he has 
 no knowledge that it is exempt, if made without notice, will 
 relieve him from any liability.' Where it is exempt, a trial 
 of the right of pr9perty will not relieve him." If the prop- 
 erty belongs to any one but the debtor, the giving of an 
 indemnity bond neither lessens nor adds anything to the 
 obligations or duties of the officer, nor will it justify him 
 in making an illegal seizure.' 
 
 § 414. For neglecting or failing to return an 
 EXECUTION. An officer is bound to execute all process 
 delivered to him according to its command, and to return 
 his proceedings thereon signed by him ; for .not io doing, 
 he is liable to action at the suit of any party aggrieved for 
 the damage sustained by him, in addition to any other fine, 
 punishment, or proceeding which may be authorized by 
 law.* This action lay at common law, and he is prima facie 
 liable for the whole amount of the execution,' unless the 
 
 Brighton, 49 Me. 326. Davis v. 
 Bryan, 7 Yerg. 88. Dick v. Cooper, 
 24 Penn. 217. Bonnell v. Dunn, 4 
 Dutch. 158. Mark's Appeal, 34 Penn. 
 361. Atkinson v. Catcher, 23 Ark. 
 loi. Hutchinson v. Campbell, 25 
 Penn. 273. Spencer v. Long, 39 Cal. 
 700. Van Dresor v. King, 34 Penn. 
 201. Cook V. Bain, 8 Mich. 48. 
 Wyckoff V. Willis, 37 Ala. 350. Frost 
 V. Mott, 35 N. Y. 253. 
 
 ' Henson v. Edwards, 10 Ired. 43. 
 Frost V, Shaw, 3 Ohio S. 270. 
 
 ^ Prewitt V. Walker, 7 J. J. Marsh. 
 
 332- 
 
 ' James v. Thompson, 12 La. 174. 
 Heath v. Daggett, 21 Mo. 69. . Wet- 
 zell V. Walters, 18 Id. 394. 
 
 "■ White V. Wilcox, i Conn. 347. 
 Ronald v. Bentley, 4 H. & M. 461. 
 Taylor V. Hancock, 19 La. 466. 
 Sweezy v. Lott, 21 N. Y. 481. Led- 
 yard v. Jones, 7 Id. 550. Bowman v. 
 Cornell, 39 Barb. 69. Milburn v. 
 
 State, II Mo. 188. Earl v. Smith, 26 
 Tex. 522. Norris v. State, 22 Ark. 
 524. Chaffin V. Crutcher, 2 Sneed. 
 360. James v. Thompson, 12 La. 
 Ann. 174. Noble v. Whetstone, 45 
 Ala. 361. Bank of Newbury v. Bald- 
 win, 31 Vt. 311. Deposit Bank v. 
 Glenn, i Mete. (Ky.) 585. Wingfield 
 V. Crosby, 5 Cold. 241. McGregor v. 
 Brown, 5 Pick. 170. Keith v. Com- 
 monwealth, 5 J. J. Marsh. 359. Run- 
 lett V. Bell, 5 N. H. 433. Laflin v. 
 Willard, 16 Pick. 64. Flournoy v. 
 Rulbey, 5 J. J. Marsh. 322. White v. 
 Wilcox, I Conn. 347. Buck v. Camp- 
 bell, 15 Johns. 456. Neale v. Cald- 
 well, 3 Stew. 134. Johnston v. Gwath- 
 nfiy, 2 Bibb. 186. Pardee v. Robin- 
 son, 6 Hill, 552. Patterson V. West- 
 ervelt, 17 Wend. 543. Bank v. Curtis, 
 I Hill, 275. W^eld V. Bartlett, 10 
 Mass. 474. Kellogg v. Monroe, 9 
 Johns. 300. 
 ' Webb V. Thompson, 5 Humph. 
 
Chap. XXIV.] LIABILITIES. 631 
 
 officer can show that the defendant had no property out of 
 which the debt could be collected. In New Jersey, he is 
 not liable to amercement for not returning a writ accord- 
 ing to law.' Where an officer received an execution a few 
 weeks before his term of service expired, if he makes no 
 levy before the expiration of his term, he has no power to 
 act on it afterwards ; his sureties can not be made liable for 
 .a non-return of it ;' he has no power to return it ; or when 
 Ills failure so to do is the result of the instruction or inter- 
 meddling of the plaintiff.' If a party treats an execution in 
 the officer's hands after the return day, and any instructions 
 given to the officer, implying a consent that he may retain 
 it, is a waiver of his right of action for non-return, and 
 makes the officer his agent ;' where the amount of the judg- 
 ment stated in the execution is greater than the amount re- 
 covered, or the execution is void, he is not liable." There can 
 not be more than one fine legally imposed for failure to re- 
 turn." While the statute of limitations rriay prevent the 
 bringing of an action against an officer for neglect or refusal 
 to return a writ of execution, he may be proceeded against 
 by attachment to compel him to make a leturn.' 
 
 § 415. For false return. If an officer executes a writ 
 and makes a false return, the party injured may have an action 
 against him ; or where there is property sufficient to satisfy 
 the writ, and he returns nui/a bona ; or a return of non est 
 inventus, when the defendant is visible, and pursuing his 
 business as usual." An officer can not screen himself from 
 
 329. Sweezey v. Lott, 21 N. Bullock v. Goodall, 3 Cal. 344. Rob- 
 
 Y. 481. Ledyard v. Jones, 7 Id. inson v. Coker, 1 1 Ala. 466. 
 
 550. Bowman y. Cornell, 39 Barb. * McKlnley v. Tucker, 6 Lans. 214. 
 
 ^g. Pardee v. Robinson, 6 Hill, ' Moore v. McClief, 10 Ohio S. 50. 
 
 .552. Hill V. Wait, 5 Vt. 124. Graham v. 
 
 ' Ritter v. Miles, 4 Zab. 627. Chandler, 15 Ala. 342. Deane v. 
 
 ' Fondrin v. Planters' Bank, 7 King, 13 Ired. 25. 
 
 Humph. 447. Neal v. Beaumont, 3 ' Tompkies v. Dcwnihan, 6 Munf. 
 
 Head. 556. State v. Parchman, Id. 557. 
 
 •609. ' Burk V. Campbell, 15 Johns. 356. 
 
 'Robinson v. Harrison, 7 Humph. People v. Everest, 4 Hill, 71. 
 
 189. Kennedy v. Smith, 7 Yerg. 472. « Beckford v. Wilts, 2 Esp. 475. 
 
C32 ON EXECUTIONS. [Chap. XXJV. 
 
 liability for an insufficient return by returning that one of 
 several defendants had no property subject to execution ; 
 to protect him, his return must show that the money could 
 not have been made out of either of the defendants.' If 
 the're are any effects of an individual partner, and the officer 
 return nulla bona, an action will lie against him." If an offi- 
 cer, having two executions against the same defendant, and 
 the defendant's property is not sufficient to satisfy more than 
 the first writ, and after seizure under such writ, the writ is set 
 asideby the court, and the officer without notice to the plain- 
 tiff in the second execution or applying to the court, pays the 
 money to the defendant, and returns the second writ nulla bo- 
 na, it is a false return, and he is liable to the plaintiff in the sec- 
 ond execution for the amount so paid over.' In an action 
 against an officer for false return of nulla bona to a writ oi fieri 
 facias, the officer proved that he had seized all the goods 
 . of the debtor under a. fi. fa. in another suit, before the plain- 
 tiffs' writ was delivered to him ; the plaintiffs in answer 
 proved that the judgment upon which the first execution 
 was issued was entered upon a warrant of attorney fraudu- 
 lently executed in order to defeat their execution, and that 
 they gave notice to the officer to retain the proceeds of the 
 goods levied. The officer was served with a rule to return 
 the writ under which he levied, on the first day of the next 
 term. He did not give any notice to the plaintiffs, by whom 
 the second fi. fa. had been sued ont, that he had been served 
 with such a rule, and at the expiration of the six days men- 
 tioned in the rule, he paid over the proceeds to the party 
 at whose suit the first fi. fa. had been sued out, the sher- 
 iff was held liable to the plaintiff in the second execution.'^ 
 In an action by the plaintiff in an execution against an offi- 
 cer on his return of the execution levied, it is no defense 
 that the property levied on was not the property of the 
 
 ' Hassell v. Southern Bank, 2 Head. Commonwealth v. Watmough, & 
 
 381. Whart. 117. 
 
 ' Jones V. Clayton, 4 M. & S. 349. ■• Warmnll v. Young, 5 Bam & C 
 
 ' Sanders V. Bridges, 3 B. & A. 95. 660. 
 
ChAV. XXIV.] LIABILITIES. 633 
 
 defendant.' The party bringing the action must show that 
 the judgment upon which it issued was a valid one, and the 
 officer may show Jn mitigation of damages that the debtor 
 is solvent, and the judgment still collectible." 
 
 § 416. For refusing or neglecting to pay over the 
 PROCEEDS OF A SALE. A sale under an execution must be for 
 cash, except where the execution-plaintiff. may become the 
 purchaser. A sale for cash does not necessarily mean coin, 
 but ready money in contradistinction to credit.' When an 
 officer parts with property that he has seized by virtue of 
 an execution, and which is not exempt from levy under an 
 execution, he is responsible to, and answerable for, the 
 value of the same, to the plaintiff; and if sold for the 
 amount, whether it has been paid or not, by the purchaser,' 
 or if, by his return he admits its collection,' the expira- 
 tion of his term of office does not absolve him from liability 
 to pay over money collected by him or his deputy, on exe- 
 cution.' Assumpsit lies against an officer for money col- 
 lected by him on execution, without a previous demand,' 
 or upon a vendi.' Where a deputy receives an execution, 
 which commands not his principal, but an officer of another 
 county, to make the money for which the execution is is- 
 sued, such deputy may refuse to execute the writ ; but if 
 he proceeds to execute the writ, and collects the money on 
 it, by that means becoming possessed of it, under color of 
 his. office, his principal is liable to the plaintiff for the 
 
 ' Miller v. Commonwealth, 5 Penn. Johnson v. Gorham,.6 Id. 195. Boas 
 
 294. V. Updegrove, 5 Penn. 516. 
 
 ' McDonald v. Bunn, 3 Denio, ' Buckmaster v. Drake, 10 111. 321. 
 
 45. Hamilton v. Ward, 4 Tex. 356. James 
 
 • Meng V. Houser, 13 Rich. Eq. v. Yates, 3 Mete. (Ky.) 343. N. H. 
 210. Bank v. Varnum, i Mete. 34. Hazard 
 
 * Denton v. Livingston, 9 Johns. 96. v. Israel, i Binn. 240. 
 
 Davis V. Hunt, 2 Bailey, 412. More ' Davison v. Shaver, i Blackf. 204. 
 V. Barclay, 18 Ala. 612. Chase v. Crane v. Dygert, i Wend. 534. Arm- 
 Monroe, 30 N. H. 427. Ex parte strong v. Garrow, 6 Cow. 465. Den- 
 State and State Bank, 16 Ark. 263. ton v. Livingston, 9 Johns. 96. 
 Tiffany v. Johnson, 27 Miss. 227. ' Boa# v, Updegrove, 5 Penn, 
 » Hinckley v. Bulham, 5 Cal. 53. 516. 
 
634 ON EXECUTIONS. [Chap. XXIV. 
 
 amount.' But is liable to the execution-creditor only for 
 the proceeds ; the defendant has no claim upon the officer.' 
 Money collected on execution not being liable to levy, an 
 officer who applies such money in satisfaction of an execu- 
 tion in favor of a creditor of the execution-plaintiff, is liable 
 for the same to the assignee of such execution-plaintiff, 
 though no notice of such assignment is given.' In an action 
 against an officer to recover money on execution, the exe- 
 cution must be proved.* The officer may show that the 
 property was exempt from levy and sale on execution,' or 
 that there has been a judgment rendered against him in 
 favor of the owner of the property for a greater amount 
 than that made on execution, and this, even when indemni- 
 fied by the plaintiff.' But the officer is estopped from deny- 
 ing the judgment upon which the execution issued.' So an 
 officer is liable for failing to make a deed after sale.' 
 
 § 417. When an officer is guilty of trespass, and 
 A trespasser AB initio. Whenever and under whatever 
 circumstances the officer lends himself to the unholy purpose 
 of oppression, he loses the protection which the laws would 
 give him in the discharge of his official duty, and becomes 
 a trespasser; and so do those who act in concert with him. 
 The oppression of officers in the execution of process is in- 
 dictable. A great abuse of the powers of an officer on execu- 
 tion, is sufficient to make him a trespasser, or to bring him 
 into contempt. If the sheriff be charged with a. malicious 
 and oppressive proceeding, the proper remedy for this abuse 
 of power is a special action on the case, in which the malice 
 
 ' James v. Gurley, 48 N. Y. 163. Turner v. Fendall, I Cranch. 116. 
 
 Walden v. Davidson, 15 Wend. 575. Carroll v. Cone, 40 Barb. 220. Du- 
 
 People V. Dunning, i Id. 16. Boaz v. bols v. Dubois, 6 Cow. 494. Muscott 
 
 Tate, 43 Ind. 60. Knowelton v. Bart- v. Woodworth, 14 How. P. 477. Buck- 
 
 leit, I Pick. 271. Marshall v. Hos- nell v. Union Bank, 9 N. Y. 211. 
 
 qper, 4 Mass. 60. Bond v. Ward, 7 Id. * Wilson v. Norman, i Esp. 154. 
 
 123. Waterhouse v. Waite, 11 Id. McNiel v. Perchard, Id. 263. 
 
 207. Toby V. Leonard, 15 Id. ' Every v. Edgerton, 7 Wend. 259. 
 
 ■200. "Newland V. Baker, 21 Wend. 264. 
 
 ' Henry v. Rich, 64 N. C. 379. ' Elliott v. Cronk, 13 Wend. 35. 
 
 » Baker v. Kenworthy, 41 N. Y. 215. « State v. Lines, 4 Ind. 351. 
 
Chap. XXIV.] LIABILITIES. ' 685 
 
 and oppression must be made manifest.' When a ministe- 
 rial officer does anything against the duty of his office, and 
 daniages thereby accrue to the party ; or where it can be 
 shown that one man had causelessly and maliciously exercised 
 over another, to his damage, powers incident to his situation 
 of superior, a special action on the case lies. When an officer 
 armed with a writ abuses it, by the commission of any act not 
 warranted by the process, he thereby becomes a trespasser 
 ab initio, and he is liable, not only for the property taken 
 by him, but also for any damage which was the immediate 
 result of his act.' Trespass can be maintained against an 
 officer for abusing the regular process of the court, if the con- 
 duct of the officer was in the first instance illegal, and an im- 
 mediate injury to the person, personal or real property, ensue ; 
 as if the officer arrest the defendant out out of his bailiwick, 
 or after the return day of the execution ;' or if he break 
 open an outer door without first making a demand to have it 
 opened ;' or where he enters the outer door of a stranger, 
 goes into his buildings and breaks open his outhouses, in 
 search of a defendant's goods, but finds none ;" or by entering 
 a house to levy on goods becomes a trespasser ab initio, by 
 putting an unfit person in possession of the property 
 against the owner's consent.' Or where the process has 
 been misapplied, as where an officer seizes the property of 
 one man under an execution against another, and sells it ; 
 or seizes property which he was not authorized to, he is a 
 
 ' Sutton V. Johnston, I T. R. 593. newal v. Hobart, 4 Id. 565. Colby v. 
 
 ' Snydacker v. Brasse, 51 111. 357. Jackson, 12 N. H. 526. Stevens v. 
 
 Collins V. Wagoner, I Id. 142. Green Lawson, 7 Blackf. 275. Wilt v. 
 
 V. Morse, 5 Me. 291. McElhenny v. Welsh, 6 Watts, 9. Van Brunt v. 
 
 Wylie, 3 Strobh. 284. Mussey v. Schenck, 13 Johns. 414. Nelson v. 
 
 Cummings, 34 Me. 74. Jarrett v. Merriara, 4 Pick. 249. 
 
 Owathney, 5 Blackf. 237. Barrett v. ' Parrott v. Mumford, 2 Esp. 585. 
 
 White, 2 N. H. 210. Brady v. Davis, Parmlee v. Leonard, 9 Iowa, 131. 
 
 14 Me. 44. Six Carpenters' Case, 8 * Douglass v. The State, 6 Yerg. 525. 
 
 Co. 146. Ellis V. Taylor, 8 M. & W. Swain v. Mizner, g Gray, 182. 
 
 415. Ladd v. Thomas, 12 A. & E. « Walker v. Fox, 2 Dana, 404. 
 
 117. West V. Nibbs, 4 C. B. 172. ' Malcolm v. Speer, 12 Mete 
 
 Hazard v. Israel, i Binn. 240. Hun- 279. 
 
636 
 
 ON EXECUTIONS. 
 
 [Chap. XXIV. 
 
 trespasser, and liable." An officer is not authorized, by vir- 
 tue of a precept against one person, to take and sell the 
 property of another, unless he has so conducted himself as 
 to forfeit his legal rights, but he must ascertain at his own 
 risk, being entitled to require indemnity in doubtful cases, 
 that the property to be taken and sold is'the property of 
 the person against whom he has a precept.' An officer hav- 
 ing an execution against A, and being authorized to levy 
 upon the goods of A, in the hands of another, is not liable 
 after notice to such person to point out and separate his 
 property from A's property, if he levies on A's and B's 
 property.' Where an officer levies upon property in pos- 
 session of the defendant, but is in fact the property of 
 another, the act is not colore officii, but as done virtute officii.'' 
 If the officer exceeds his authority, in levying upon and 
 seizing goods, or improperly sells them, he becomes a tres- 
 passer ab initio, and is liable to the injured party for his 
 wrongful act, as well in the seizure as in the sale of the 
 property. The wrongful act taints the whole proceeding.' 
 Or i'f the process be served by one not legally authorized ; ' 
 or if there be a misnomer in the process, though executed 
 upon the goods or person of the party against whom it was 
 in fact issued ; for upon the face of the proceedings it 
 
 ' Van Pelt V. Littler, 14 Cal. 194. 
 Markley v. Rand, 12 Id. 275. Boul. 
 ware v. Craddock, 30 Id. igo. Weston 
 tr. Dorr, 25 Me. 176. Codman v. 
 freeman, 3 Cush. 306. Munday v. 
 Stubbs, I Eng. L. & Eq. 392. San- 
 derson V. Baker, 3 Wils. 309. Mc- 
 Mahan v. Green, 34 Vt. 69. Nagle v. 
 Mullison, 34 Penn. 48. Markley v. 
 Rand, 12 Cal. 275. Trieber v. Bocher, 
 12 Md. I. Jarmain v. Hooper, i 
 Dowl. & L. 769. Yarborough v. 
 Harper, 25 Miss. 112. McDougal v. 
 Dougherty, 12 Geo. 613. Weber v. 
 Henry, 16 Mich. 399. Kingsbury v. 
 Pond,2 N. H. 511. Rhodes v. Patterson, 
 i Cal. 469. Ackworth v. Kemp, i Doug. 
 
 40. James V. Thompson, 12 La. 174. 
 Caldwell v. Arnold, 8 Minn. 265. 
 Green v. Morse, 5 Me. 291. Foss v. 
 Stewart, 14 Me. 312. Glasspoole v. 
 Young, 9 B. & C. 696. 
 
 " Lothrop V. Arnold, 25 Me. 
 136. 
 
 ' Albee 
 362. 
 
 * Hull 
 265. 
 
 ' Everett v. Herritt, 48 Me. 537. 
 Burton v. Calway, 20 Ind. 469. Taylor 
 V. Jones, 42 N. H. 25. 
 
 " Beebe y. Steel, 2 Vt. 314. John- 
 son V. Stone, 41 N. H. 197. Bailey 
 V. Tipton, 29 Mo. 2o5. 
 
 Webster, 16 N. H. 
 Southworth, 5 Wend. 
 
Chap. XXIV.] LIABILITIES. 637 
 
 appears that there was no authority,' unless the defend- 
 ant himself has occasioned the mistake ; ' or if he exe- 
 cutes a writ after notice of supersedeas.' If an officer 
 levy on property by virtue of an execution, and advertise 
 the same for sale, and neglect to sell it upon the exe- 
 cution, he becomes a trespasser ab initio ; * or makes a 
 levy when not authorized by law, without sale or removal ;' 
 or if he misuses such property so as to diminish its value ;' 
 any irregularity in the conduct of a legal agent, whereby 
 any of his acts are without the prerequisities required by 
 the law, as where property is sold otherwise than in the 
 mode prescribed by statute ;' or before or after the time 
 prescribed by law ;' or after knowing that the judgment 
 is satisfied ;° or where an appraisement is required by disin- 
 terested parties, and a brother of the execution-creditor is 
 one of the appraisers ;'° or where a sale is made of the entire 
 property, in goods owned by two jointly, under an execu- 
 tion against one of them, is such an abuse of authority as 
 renders him liable as a trespasser ab initio s^"^ but the officer 
 must have notice of the facts." Where he continues in pos- 
 session an unreasonable time after the return day, he is a 
 trespasser ab initio^' If he fails to make a return of the 
 execution, all of his acts done under it are wrongful, and he 
 
 ' Cole V. Hindson, 6 Term. 234. rington v. Loring, 7 Mass. 388. Ross 
 
 ' Price V. Harwood, 3 Camp. 108. v. Philbrick, 39 Me. 29. 
 
 Trull V. Rowland, 10 Cush. 109. • Kuhn v. North, 10 S. & R. 399. 
 
 * Belshaw v. Marshall, 4 B. & A. Breck v. Blanchard. 20 N. H. 323. 
 336. Morrison v. Wright, 7 Port. 67. '" McGough v. Wellington, 6 Allen, 
 O'Donnell v. MuUin, 27 Penn. 199. 505. 
 
 < Bond V. Wilder, 16 Vt. 393. " Smyth v. Tankersley, 20 Ala. 212. 
 
 ' Stewart v. Wells, 6 Barb. 79. Dean v. Whittaker, i C. & P. 347. 
 
 • Briggs V. Reason, 29 Vt. 78. Paine v. Middlesex, R. & M. 99. 
 'Barrett v. White, 5 N. H. 210. Melville v. Brown, 1 5 Mass. 32. Wad- 
 
 Kerr v. Sharp, 14 S. & R. 399. Pur- dell v. Cook, 2 Rill, 47. Mussey v. 
 
 Tinglon V. Loring, 7 Mass. 388. Blake Cummings, 34 Me. 74. Edgar v. 
 
 V. Johnson, l N. H. 91. Sackinder v. Caldwell, I Morris (Iowa) 434. 
 
 McDonald, 10 Johns. 253. Ross v. Frisbee v. Langworthy, 11 Wis. 375. 
 
 Philbrick, 39 Me. 29. " DufiSl v.Spotteswoode,3 C. & P. 435. 
 
 ' Smith V. Gates, 21 Pick. 55. " Aitkenhead v. Blades, 5 Taunt. 
 
 Pierce v. Benjamin, 14 Id. 356. Pur- 198. Playfair v.'Musgrove, 9 Jur. 783. 
 
638 ON EXECUTIONS. [Chap. XXIV 
 
 will be liable to the debtor as a trespasser," for neglecting to 
 levy until after the return day," or after the expiration of his 
 term of office." So a constable who executes a writ not directed 
 to him, as he derives his authority from the justice who 
 issues the writ.' Where a purchaser at an execution sale is 
 informed by a party's attorney that the property will be 
 sold free of that party's claim, a levy on such property on 
 such party's execution is void, and the officer is a tres- 
 passer.' In some cases mere acts of non-feasance will 
 make him a trespasser ab initio ; as where he neglects 
 to discharge a party out of custody, when he ought to do so, 
 or where he retains him for fees not due." A recovery may 
 may be had for property sold on a void execution, though 
 it is not removed.' An officer should only sell as much as 
 will satisfy the debt, and in such a manner as will produce 
 the most money.' An action lies against him' for the excess 
 when selling more than is necessary." 
 
 § 418. When other parties are liable. A process 
 being void, the party who sets it in motion, and all the per- 
 sons aiding and assisting him ^x& prima facie trespassers for 
 seizing property under it. Acts which an officer might jus- 
 tify under process actually void, but regular and apparently 
 valid on its face, will be trespasses against the party. The 
 moment the process is set aside for irregularity, the party 
 becomes a trespasser ab initio}^ Judgment-creditors who 
 indemnify an officer are jointly liable with him." So a jus- 
 tice of the peace who issues a second execution, after the 
 
 ' Williams v. Babbitt, 14 Gray, 141. Cook v. Palmer, 6 B. & C. 739. Me- 
 
 Williams v. Ives, 25 Conn. 588. vey's Appeal, 4 Penn. 80. 
 
 « Chase v. Plymouth, 20 Vt. 469. » Aldred v. Constable, 6 Q. B. 370. 
 
 Vail V. Lewis, 4 Johns. 450. Batchelor v. Vyse, 4 M. & S. 552. 
 
 » Andress v. Broughton, 21 Ala. Woods v. Monell, I Johns. Ch. 502. 
 200. '» Kerr v. Mount, 28 N. Y. 659. 
 
 * Bailey V. Tipton, 29 Mo. 206. Chapman v. Dyett, II Wend. 31, 
 ' McElrath v. Kintzing, 5 Penn, Smith v. Shaw, 12 Johns. 257. Hay- ■ 
 
 336. den V. Shad, ii Mass. 500. Codding- 
 
 * Smith V. Gibson, l Wils. 153 ton v. Lloyd, 8 A. & E. 449. Parsons 
 ' Lewis V. Palmer, 6 Wend. v. Lloyd, 2 Blackf. 845. 
 
 367- " Ball V. Loomis, 29 N. Y. 412, 
 
 * Stead V. Gascoigne, 8 Taunt. 527. Davis v. Newkirk, 5 Denio, 92. 
 
Chap. XXIV.] LIABILITIES. 6m 
 
 first is satisfied, is a trespasser, although the plaintiff falsely 
 represents that the first is lost." 
 
 § 419. When the officer is not liable in an action 
 AGAINST HIM. Having ascertained upon whom the respon- 
 sibility rests for illegal and irregular acts in the execution of 
 final process, and the remedies of the aggrieved parties 
 against the officer, it is proper to ascertain what irregulari- 
 ties an officer is not responsible for; that is, if such irregu- 
 larities or violations of the statute occur, the party has no 
 remedy against the officer or his sureties. Where an officer 
 acts in obedience to the orders, agreements, and directions 
 Df the execution-creditor or plaintiff, so that he has no con- 
 trol over property levied on, or of the proceedings, the 
 officer then becomes the agent of the plaintiff, and his lia- 
 bility ceases ; ' as where he sells on credit by the plaintiff's 
 directions.' Nor is an officer liable when acting within the 
 scope of his authority, unless his acts are done maliciously, 
 or with intent to injure.* Is not liable for negligence in not 
 selling property, the sale of which has been enjoined, upon 
 a dissolution of the injunction, unless security is given to 
 refund the proceeds.' Where he levies sufficient at the time 
 to satisfy an execution, but which before the day of sale 
 depreciates in value, lie is not bound to make good such 
 depreciation.* Or where, under a statute directing an officer 
 having an execution against more than one, to levy upon 
 the property of the principal in the first instance, the officer 
 is not liable to an action at the suit of the surety, for an 
 omission to levy upon the property of the principal, unless 
 the statutory affidavit is made by the surety,' for neglecting 
 to execute or return void writs,' or for collecting money on 
 
 ' Lewis V. Palmer, 6 Wend. 367. » Bellows v. Allen, 23 Vt. 169. 
 
 ' Koger V. Donnell, i Head. 377. * Britton v. Fulton, 49 Penn. 151. 
 
 Bottoms V. Mithvin, 26 Geo. 481. ' Conway v. Jett, 3 Yerg. 481. 
 
 Stevens v. Colby, 46 N. H. 163. Pepin ' Governor v. Carter, 3 Hawks, 328. 
 
 V. Dunham, 20 La. 88. Common- ^ Gregg v. Crawford, 4 Ala. 180. 
 
 wealth V. Dunham, 4 Bush. 64. Sim- ' Hill v. Wait, 5 Vt. 124. Dean v. 
 
 ons v. White, 21 La. 590. Wjiterman King, 13 Ired. 25. Graham v. Chand- 
 
 V. MerriU, 33 N. J. L. 378. ler, 13 Ala. 342. 
 
640 ON EXECUTIONS. [Chap. XXIV. 
 
 an execution when it is functus officio} Where a levy is 
 made without the bond, fide intention of selling.' Where the 
 officer acts according to the exigency of his process he is 
 not a trespasser, although the party arrested is privileged 
 fro*n arrest.' Where he makes a sale of property which is 
 subsequently declared void, he is not liable to the debtor ' 
 for failing or refusing to levy on disputed property, or fail- 
 ing or omitting to sell it unless he is indemnified.' For 
 making an excessive levy by reason of lack of skill or judg- 
 ment.' Where he retains possession of goods not claimed 
 by another, after delivering all those claimed.' Where a 
 party permits his goods to be so intermingled with those 
 of a debtor that an officer having an execution against such 
 debtor, after making reasonable inquiry and effort to dis- 
 tinguish the one from the other, and the party does not 
 himself point them out, the officer is justified in taking and 
 selling the whole as the property of the debtor.' A slight 
 mistake in executing process, such as any person of ordinary 
 care might make, showing no wrongful intent on the part 
 of the officer, is not such an abuse as to make him a tres- 
 passer ab initio.' For appropriating a surplus to other 
 executions in his hands, when the execution on which the 
 sale is made does not refer to other liens ; " or selling on a 
 satisfied execution, without notice of its satisfaction ; " or 
 where property is seized by an officer of another jurisdic- 
 tion, a prior creditor can alone object." 
 
 ' Turner v. Collier, 4 Heisk. 89. ' Walker v. Hunt, 2 Q. B. 324. 
 
 » Dorrance v. Commonwealth, 13 * Robinson v. Holt, 39 N. H. 557. 
 
 Penn. 60. Wellington v. Sedgwick, 12 Cal. 469. 
 
 ' Chase v. Fish, 16 Me. 132. Carle Albee v. Webster, 16 N. H. 362. 
 V. Delesderner, 13 Id. 363. Wilmarth » Dwinnells v. Boynton, 3 Allen, 
 
 V. Burt, 7 Mete. 257. Woods v. Dayis, 310. Taylor v. Jones, 42 N. H. 25. 
 
 34 N. H. 328. Fullam v. Stearns, 30 Vt. 443. Bell 
 
 * Speller v. Lee, 43 Ala. 381. v. North, 4 Litt. 133. 
 
 » State V. Sharp, 2 Sneed. 615. '" Polk v. Sypher, 17 Iowa, 358. 
 
 Regor's Adm'rs v. Owings, 35 Mo. " Thrower v. Vaugh, i Rich. 18. 
 
 506- " Belcher v. Brown, 6 C. B. 608. 
 
 • Vance v. Van Arsdale, i Bush. 504. Ward v. Dalton, 7 Id. 643. 
 
INDEK 
 
 Abandonment — of appeal, issue of execution is 6$. 
 Abandoning — a homestead, effect of, 121. 
 
 Temporarily, effect of, 125. 
 Absence — of bidders at a sale as a ground for setting aside, 415, 416, 
 
 Of debtor, no waiver of exemption, 88, 89. 
 Absent debtor — when to select exempt property, 229. 
 Absolute satisfaction — when levy is not, 255, 256. 
 Abuse of power — by officer in making excessive levy, 243, 
 
 By officer, makes him a trespasser, 634. 
 Abuse of process — effect of, on party causing its issue, Z19. 
 Accepting money — under levy, when it will not bar action for false 
 
 return, 388. 
 Ao^notrledgment of a deed, 472. 
 
 In Pennsylvania, 472, 473. 
 
 In Arkansas, 472, 473. 
 
 In Missouri, 472, 473. 
 
 What necessary to, 473. 
 
 In open court, effect of, 473. 
 
 Legal, when requisite, 473. 
 
 As affecting its admissibility as evidence, 483. 
 Aooonsiting for property — levied on, 246. 
 
 Acquiescing — in improper sale, effect of, 407. / 
 
 Acquiescence — by party, when it estops him, sbg. 
 Acquiring — a homestead, 125. 
 Act of enforcing — the sentence or judgment, is an execution, 2. 
 
 Officer in making a levy, 234. 
 Acts of officer — at sale which are censurable, 319. 
 
 Which do not place property in the custody of the law, 34b. 
 
 ■Which show an execution to be fraudulent, 274, 
 
 Which render sale fraudulent, 433. 
 
 Which are presumed to have been done, 520. 
 
 Which the law presumes are done, 521, 522. 
 
 Which are regarded as negligent, 623, 624. 
 
 When at risk of debtor, 478. 
 Acts — of courts in confirming sales, 433. 
 Action — against officer, when it lies for false return, 631, 63a. 
 
 For neglecting to levy, 625. 
 
 For negligence or want of skill, 623, 624. 
 
 For neglecting to levy on personal ptoperty, 627. 
 
 For negligence in care of property, 628. 
 
 41 
 
642 INDEX. 
 
 Action — Continued. 
 
 For negligence in a sale, 629. 
 
 For neglect or failure to return execution, 630. 
 
 For selling property not subject to execution, 629. 
 
 By partner, when it will not lie against officer for making levy OB 
 interest of individual partner, 543. 
 
 Distinction between, and an execution, 6. 
 
 For false return, when it lies, 338. 
 
 arises, 338. 
 as evidence, 395, 396. 
 
 Necessary on a judgment at common law, if execution is not issued 
 within statutory time, 10. 
 
 Nature of, for trial of rights of property, 282. 
 
 On several policies of insurance, execution in, 70. 
 
 Officer may bring for purchase-money, when, 325. 
 
 Of trespass, when it lies, 634, 635. 
 
 Which will sustain writ of possession, 539. 
 
 When officer may maintain for property taken by him, 245. 
 
 When it lies for money paid by mistake in favor of puTchaseTr 
 507. 
 Aoton Bumell — statute of, 12. 
 
 Actual damage — when it must be shown in action against officer, 625. 
 Actual levy — when necessary to subsequent writ, 250. 
 Actual occupancy — of land equivalent to notice, 495. 
 Actual possession — when it may be sold on execution, 185. 
 Actual — residence and occupation necessary to create a homestead, 125. 
 
 Seizure and sale, proof of, as constituting purchaser's title, 527. 
 
 Touching of property when not necessary to a levy, 235. 
 ^dding — interest, where the judgment does not call for it, avoids the execu- 
 tion, 52. 
 Additional — levy, when it may be made, 229, 244. 
 Addition — to return, effect of, 378. 
 A^oumment of sale — effect of on priority of execution, 270. 
 
 When it may be made, 244. 
 
 Effect of on bids, 319. 
 
 As affecting validity of deed, 473. 
 Abjudications — on the word necessaries in the exemption laws, 114. 
 
 Relating to questions of fixtures, 163, 164, 165. 
 
 Upon what execution will issue against the body, 569. 
 A(^udicated cases — in regard to movable fixtures, 167, 168. 
 Administrator — when entitled to execution, 63. 
 
 When entitled to surplus proceeds, 457. 
 Admissibility — of parol evidence to identify lands sold, 476. 
 Admiralty cases — proceedings in, by final process, 589, 590. 
 
 Sales in, 590. 
 
 Title of purchaser at sale in, 590. 
 
 Sale in made on a special execution, 590. 
 
 Final process in, when land may be sold under, 591. 
 
 Reasons why land is subject to process in, 591. 
 Advance — price can not be accepted by court, when, 416. 
 Advantage — can not be taken of irregularities in collateral actions, 81. 
 Adverse possession — held by purchaser, 511. 
 
 Doctrine of, does not apply to debtor after sale, 528. 
 Advertise — failure to, as affecting validity of deed, 473. 
 Advertising' — property, duty of officer in regard to, 309. 
 Advertisement — presumption in favor of, 521. 
 
 Not in compliance with statutes in Tennessee, defeats purchaser's 
 title, 520. 
 
INDEX. 643 
 
 Advertisement- - Continutd. 
 
 Error in, as affecting title to land under deed, 479. 
 
 Of sale of land, when a condition precedent, 345. 
 
 Improper description of land in, as a ground for setting aside sale, 415. 
 
 Want of, as affecting validity of deed, 473. 
 
 Of sale, 309. 
 
 Of sale, object of, 309. 
 
 Of notice of sale in Tennessee, 310. 
 
 Of notice of sale in Delaware, 310. 
 
 Of a postponed sale, when not necessary, 323, 324. 
 Affidavit— of printer, when sufficient evidence of publication, 311. 
 Affirming — decision of court distributing proceeds, effect of, 439. 
 After acquired — property, how it may become affected by levy of execation, 
 277. 
 
 Title does not inure to purchaser at execution sale, 359. 
 
 Title when it does not inure, 365. 
 
 Title does not pass by deed, 479. 
 Against — whom execution may issue, 66. 
 Agent — what constitutes officer, plaintiff's, Eli. 
 
 Officer is o'' both parties in satisfaction of execution, 463. 
 Agreed sale — effect of in distribution of proceeds, 460. 
 Agreeing — to purchase for benefit of debtor unless purchaser a trustee, 523. 
 Agreement — between bidders at execution sale, when void, 317. 
 
 Between bidders, when it will be valid, 317. 
 
 For stay of execution, effect of, 61. 
 
 Of party to set aside levy, 241. 
 
 Of creditors, as to distribution of proceeds, 459. 
 
 To extend time for redemption, effect of, 439. 
 
 To pay an advance, not sufficient to set aside sale, 413. 
 Agreeing — to stay execution prevents judgment from becoming dormant, 68, 
 Alabama — homestead exemptions in, 127. 
 
 Lien of execution in, 267. 
 
 Personal property exempt in, 94. 
 
 Rule.in regard to setting off executions, 226. 
 
 Rule in regard to redemption of property from sale, 441. 
 
 Stay of execution in, 595, 604. 
 
 Time in which execution is returnable, 376. 
 
 ■When personal property exempt in, 94. 
 Alias — execution, omitting the name of the parties is void, 52. 
 
 May be amended by reciting proceedings in original, 56. 
 
 May be issued after setting aside entry of satisfaction, 466, 
 
 Writ of execution, 77. 
 
 Writ issued before return of original, is valid, 83. 
 
 Writ, priority of, 270, 271. 
 
 Writ, levying on same property under, destroys lien of original, 275. 
 
 Writ, suing out, its effect as a release of the levy, 252. 
 
 Writ issuable only on return of original writ, 375. 
 
 Writ, when it has precedence over other executions in distribution of 
 proceeds, 376. 
 Alienation — and conveyance of homestead, 120, 121. 
 Alimony — execution for, 60. 
 Allegation — of friendship, no reason for coroner to secure a writ, 207. 
 
 Of satisfaction by debtor after levy, on personal property, 253. 
 Allowing — property to be sold by officer, effect of, 368. 
 Altered — execution, sale under when void, 423. 
 Altering — an execution in a material point, effect of, 52. 
 Amending — executions, 53. 
 
 Return, duty of officer as to, 400. 
 
644 INDEX. 
 
 Amendment — by later statutes, i6. 
 
 How obtained, 53. 
 
 How considered, 53. 
 
 What may be made, 53. 
 
 After a sale on a vendi, 55, 56. 
 
 Not permitted when the rights of third parties intervene, 56, 
 
 Not allowed after defendant's death, 56. 
 
 Not allowed against another execution, 56. 
 
 Of return, 397. 
 
 Of return, how made, 397. 
 
 Of return, when to be made, 397. 
 
 Right of officer to make, 397. 
 
 Allowed so as to make it conform to the facts, 397. 
 Amendments — when to be allowed, 398. 
 
 Should not be made without notice to adverse party, 398. 
 
 To returns are matters of judicial discretion, 399. 
 
 To returns, when they may be made, 399. 
 
 No fixed rale as to time in which permitted, 399, 
 
 When they will not be allowed, 400. 
 
 When they will be allowed, even though interests of other parties hare 
 intervened, 400. 
 
 When officer can not be compelled to make; 400. 
 
 Kinds of permitted, 400, 401. 
 
 To return relates to what time, 402. 
 
 To return, effect of, 402. 
 Amercement — of officers, 15. 
 
 Of officer, effect of, as to execution and sale, 204. 
 
 At common law, 10. 
 Amount — allowed debtor on the sale of his homestead, 447. 
 
 Necessary for the redemption of property for a sale, 439, 440. 
 
 For which officer is liable for neglecting to levy, 626. 
 
 Of land which can be taken on exeeution in the N. E, states, 296. 
 
 Of land required to be sold on execution, 346. 
 
 Of property to be sold on execution, 316. 
 that may be levied on, 229. 
 necessary for levy, how determined, 233, 
 that officer can sell on execution against individual part- 
 ner, 544- 
 
 To which a levy on personal property is satisfaction, 254. 
 Ancient — forms of process, 22. 
 
 Writ alfi. fa. issued, 21. 
 An order — for a new trial on payment of costs, does not authorize the issue of 
 
 an execution for the costs, 70. 
 Announcing — that a levy has been made, effect of, 234. 
 Annual — profits liable only in England at common law, 9. 
 Apparent — satisfaction by mistake, effect of, 465. 
 Apparently — legal writ will justify officer, 2i5, 217. 
 Appeal — bond prevents the issue of an execution, 61. 
 
 From judgment of dissolution of injunction, effect of, 619. 
 
 Perfect writ of as a supersedeas, 601. 
 _ Perfected prevents levy from being satisfaction, 257. 
 Application — of the term execution, 2. 
 
 Of the homestead laws, 120. 
 
 Of the maxim vigilaniibus, &c., to executions, 274. 
 
 Of proceeds on judgment of foreclosure, 456. 
 
 Of surplus proceeds by court, 457, 
 
 of sale of homestead, 457. 
 
 Of proceeds, when court will and will not direct, 458, 459, 
 
INDEX. 645 
 
 Application — Continued. 
 
 Of proceeds of sale where several demands are joined in one action, 
 446. 
 
 Of proceeds, in case of vendor's lien, 447. 
 
 by officer at his peril, 448. 
 
 by mistake, remedy for, 448. 
 
 on execution issuing from State and Federal courts, 451. 
 
 in cases between surety and junior creditor, 452. 
 
 when judgment becomes dormant as to its lien, 452. 
 
 to several executions, 453. 
 
 when officer is indemnified, 454. 
 Of the consideration in the deed, is for debtor's benefit, 478. 
 To court, for distribution of proceeds, how made, 458. 
 To reopen bids under English practice, 319. 
 Of the writ oi caveat emptor, 330, 331. 
 Of docrine of estoppel to sales, 368. 
 
 what dependent on, 368. 
 Of doctrine of constructive notice, 492, 493. 
 For relief, when it should be made, 407. 
 To set aside, notice to be given to whom, 408. 
 Of the writ De Minimis to excessive sales, 423. 
 And disposal of proceeds of sale on execution, 444. 
 Of rule to bona fide purchasers without notice, 503, 504. 
 Of the principle of want of notice to purchaser's title, 505. 
 Of maxim Omnia rite est, &c., 520. 
 Of the rule as to what passes at a sale, 524. 
 Of proceeds, presumption of law in favor of, 522. 
 Of the proceeds of sale of corporation property, 553. 
 Appointment and selection of appraisers, 305, 306. 
 Appraisement — a necessary requiste in the New England states, 396. 
 Effect of sale without, 303. 
 Of real estate in the New England states, 295. 
 No criterion of sufficient levy, 242. 
 Of real estate or land, 303. 
 What is an, 303. 
 Laws, object of, 303. 
 How conducted and made, 303. 
 I How considered in the New England states, 303. 
 
 How considered in other states, 303. 
 1 When void, 306. 
 
 Under several executions, 306. 
 When it will not set aside, 307. 
 Laws, to what judgments applicable, 307. 
 Form of, 307. 
 
 What controls or governs, 308. 
 When sale can not be made without, 308. 
 Law, construction of, 308. 
 Law, when directory, 308. 
 
 Sale made without, when void and when voidable 423. 
 Waiver of, by debtor, as affecting the sale, 423. 
 Failure of, as affecting purchaser's title, 515. 
 Of property, presumption of, 521. 
 Of crops, as affecting purchaser's rights, 524. 
 Appraisers — who may be, 304, 305. 
 
 How reelected or appointed, 304, 305. 
 How sworn, 305. 
 
 Not required to go on the land, 305, 309. 
 How many necessary, 306. 
 
646 INDEX. 
 
 ti.ypTcai&eia— Continued. 
 
 Oath of, return need not show, 380. 
 
 Return of, conclusive evidence of competency, 392. 
 
 Presumption of disinterestedness, 521. 
 Appropriation, debtor's right of, Vfhen making voluntary payments to an 
 
 officer, 159. 
 Appurtenances — that pass to purchaser, 524, 525. 
 Argumentative return — effect of, 383. 
 Arkansas — Homestead exemptions in, and v^ho entitled to claim, 127. 
 
 Rule in regard to interests liable to execution, 185. 
 the distribution of proceeds, 460. 
 acknowledgment of deeds, 472, 473. 
 sale of personal property in, 333^ 
 
 Statutory regulations in regard to forthcoming bonds, 334. 
 
 Stay of execution in, 595. 
 
 Time in vchich execution is returnable, 376. 
 Arremgement — by creditors to sell privately, effect of, 366. 
 Arrest — of debtor as satisfaction of execution, 463. ■ 
 
 Arrest under execution — Actual seizure of defendant's body necessaiy 
 for, 571. 
 
 Alios, writ of, when it may issue, 578. 
 
 Ameripan rule in regard to. 568. 
 
 Attorney can not authorize discharge of debtor under, 576. 
 
 Bail, liability of, after return of non est, 578. 
 
 Causes of action upon which it may issue, 569. 
 
 Cepi. good return, 578. 
 
 Common law rule in regard to, 567. 
 
 Confinement under, 570. 
 
 Confinement after arrest, effect of, 577. 
 
 Debtor, when he can not be taken after discharge under, 575. 
 
 Debtor to be kept in close confinement after arrest, 577. 
 
 Discharge of debtor after arrest, 573. 
 
 Discharge with consent of plaintiff, 574. 
 
 Discharge of debtor under, when satisfaction, 574, 575, 
 
 Discharge of arrest, when no satisfaction, 576. 
 
 Directions in regard to, 567. 
 
 Duty of officer after arrest of debtor under, 577. 
 
 Duty of sheriff' to call power of county in making, 578. 
 
 Effect of, 568, 573. 
 
 Effect of modern statutes upon, 568. 
 
 Effect of discharge after, 573, 574. 
 
 Effect of death of defendant after, 574. 
 
 Effect of a return of non est, 578. 
 
 Escape from, 577. 
 
 Execution, &c., by officer, 570. 
 
 Failing to return execution by officer, effect of, 577. 
 
 Form of execution in, 568. 
 
 For what it must issue, 568. 
 
 Form of return of, 578. 
 
 How executed, 567, 570. 
 
 How made, 571. 
 
 How issued against several defendants, 568. 
 
 How executed against joint debtors, 570. 
 
 How arrest is made under, 570. 
 
 Illegal discharge no satisfaction, 576. 
 
 Imprisonment under, effect of, 574, 
 
 Issue of, against privileged person, effect of, 576. 
 
 Kind of execution it is, 567. 
 
INDEX. ■ 647 
 
 Arrest under execution — Continued. 
 
 Kinds of escape, 577. 
 
 Liability of officer for allowing debtor to be at large, 578. 
 
 Manual touching of the body, when not necessary, 571. 
 
 Nature of the writ of commanding, 567. 
 
 Nature of act authorizing, 569. ' 
 
 Negligent escape from, what is, 577. 
 
 NoK est inventus, as return, 578. 
 
 Officer need not show writ in making, 570. 
 
 Officer can not break into house to make, 572. 
 
 Of a party by touching him through a window, 572. 
 
 Officer when liable for escape of debtor after, 578. 
 
 Parties who are protected from, 568, 569. 
 
 Plaintiff, when he may enforce his lien, -notwithstanding dischargs 
 prior, 576. 
 
 Privileges of the law as applied to, 572. 
 
 Reason why officer is not required to show writ in making, 570. 
 
 Remedies suspended by, 573. 
 
 Remedy of debtor against officer for illegal, 577. 
 
 Rescue of debtor, effect of, 577. 
 
 Return of writ, 578. 
 
 Rule in regard to, in Maine, 569. 
 
 Rule in regard to discharge aftfir, in various states, 575 
 
 Seal of writ, 568. 
 
 Suspension of other remedies by, 573. 
 
 Test of writ, 568. 
 
 To be made in the daytime, 572. 
 
 Upon what adjudications writ will issue, 569. 
 
 Various matters in regard to making, 571, 572. 
 
 Voluntary escape, what is, from, 577. 
 
 What is, 570. 
 
 What is a sufficient, 570. 
 
 What has been held good, 571. 
 
 What touching is sufficient to, 571. 
 
 What judgment of the court it is made on, 574. 
 
 When it is made, 567. 
 
 When writ for lies at common law, 567, 568. 
 
 When writ for may issue, 568. 
 
 When writ is and is not void, 568. 
 
 When writ for can not issue, 569. 
 
 When it is no satisfaction, 574. 
 
 When court will not discharge debtor from, 576. 
 
 Writ for, when returnable, 579. 
 Axi&A — liability of officer for failing to make, 627. 
 Articles — exempt as meaning afford, 113. 
 
 Of household furniture allowed as exempt, 113. 
 
 Not liable to execution, 174, 175. 
 
 Of personal property that are choses in action, 155. 
 
 held to be movable fixtures, 167-171. 
 
 That are fixtures, 163, 164, 165. 
 Artifices — or tricks resorted to by purchaser, effect of, 523. 
 A sale — of the debtor's property the result of an execution, 4. 
 Ascertaining — quantity of land sold, 370. 
 Assorting — a claim under the exemption laws, 92. 
 Jlssighee — of creditor entitled to redeem, when, 437. 
 
 Of puchaser entitled to a deed, 470. 
 
 Of sale certificate, how bound, 436. 
 
 Right of, under sale certificate, 436. 
 
648 • INDEX. 
 
 Assignee — Continued. 
 
 Right of, to proceeds, 453. 
 
 When entitled to same rights as judgment-creditor, 453, 
 
 When he may enforce execution of deed, 471. 
 
 When he may sue out execution, 64. 
 
 Of plaintiff, when protected as a purchaser in good faith, 6og. 
 Assignor's — interest in property, when not to be sold, 198. 
 Assignment — for benefit of creditors, effect of on. execution lien 266. 
 
 Filing of, when necessary fo execution of deed, 471. 
 
 Of property, waives the execution, 93. 
 Assistance — when ofhcer may summon, 225. 
 Assistance, wiit of-^againit whom it will issue, 535. 
 
 Acquiescence of defendant when a good service of, 537. 
 
 Causes for issuing, 534. 
 
 How executed, 534, 535, 536, 537. 
 
 Issues, when possession is to be delivered to purchaser, 536. 
 
 Jurisdiction of court in issuing, 534, 535. 
 
 Plaintiff in foreclosure suit, when entitled to, 535. 
 
 Possession, how obtained under, 536, 536, 
 
 Requisites necessary to obtain, 535, 536. 
 . Remedy when improperly issued, 537. 
 
 Rule in regard to, in Pennsylvania, 536, 
 Mississippi, 535. 
 
 Setting it aside, 534, 535. 
 
 What rights will not be interfered with under, 535. 
 
 What tantamount to, 535. 
 
 When it will issue, 534, 535. 
 
 When it is an appropriate remedy, 534, 535. 
 
 When allowed, 535. 
 
 When issued without notice, 535. 
 
 When to be issued only by order of court, 535. 
 
 When it can not be issued by the clerk, 535. 
 
 When party entitled to it, 536. 
 
 When party not entitled to it, 536. 
 
 Who entitled to it, 535. 
 
 Who to be removed under, 534. 
 As to time — to which deed relates, 480, 481, 482. 
 Attached property — when primarily liable, 84. 
 
 May be sold under vendi how, 333. 
 Attaching creditor — when entitled to priority in distribution of proceeds, 44^. 
 Attachment — invalid as notice, 499. 
 
 Lien, when superior to claim of homestead, 139. 
 
 Levy of execution in suits commenced by, 276, 277. 
 
 Priority of seizure under, over execution, 261. 
 
 What will destroy priority of, 261, 262. 
 
 Writ of, when it may issue, 78. 
 
 Suits, executions in, 84. 
 
 When and how executed, 84. 
 
 Writ of, as an execution, 579. 
 
 Nature of, as an execution, 579. 
 
 When it issues, as execution, 579. 
 
 How executed, 579. 
 Attestation — of return, 373. 
 Attorney — causes execution to issue, 5. 
 
 Can not cause execution to issue to collect a lien on a judgment, 64^ 
 
 Indorsement by, as satisfaction, 466. 
 
 Of purchaser with notice, 488. 
 
 For defendant, officer acts as in sale of land, 478. 
 
INDEX. 649 
 
 Attorney — Continued. 
 
 Payment to plaintiff, as satisfaction of execution, 462. 
 Right of, to control execution, 209. 
 When liable for issue of execution, 220. 
 When bona fide purchaser, 489. 
 
 Presumed to have notice, and are not protected as innocent purchasers, 
 609. 
 Authority — excess of, by officer, renders him liable, 636. 
 
 By which sales of real estate on execution are made, 344. 
 Of attorney, when it ceases so as to prevent the issue of an execution, 81. 
 courts in enjoining execution, 609. 
 
 when it can not be disputed, 201. 
 to delegate who shall execute writs, 204. 
 in con6rming sales, 433. 
 in considering officers' deeds, 477, 478. 
 Authority of officer — to enter dwelling house, 223, 224, 
 to depart from instructions, 211. 
 to sell, how derived, 313. 
 under vendi, 331. 
 
 to sell, purchaser bound to know, 419. 
 in making sale under execution, 419. 
 to receiving currency in satisfaction of execution, 463. 
 
 payment after the return day, 463, 464. 
 in execution of a deed, 467, 468. 
 in executing deed to assignee, 470, 
 in execution of a writ of possession, 529. 
 Of succeeding officer to make deed, 469. 
 To sell, must exist in order to constitute a valid sale, 419. 
 Required to subject sale of purchaser to execution, 551. 
 What required in order to allow officer to postpone sale, 324. 
 Atithentication of a debt — at common law, 9. 
 Avoiding a levy, 239. 
 
 Bailee — property in possession of, without claim to goods, liable, 145. 
 
 Bailee's — interest not liable, 174. 
 
 Balance — when execution can not issue for, 463. 
 
 Bank — bills, levy on, 236. 
 
 Bankrupt — court, sale of land by, effect of, 359. 
 
 Law, when it protects the lien of an execution, 279, 280. 
 
 does not divest lien acquired by state statutes, when, 280. 
 does not stay proceedings on execution, 281. 
 
 Property of, when not liable to execution, 176. 
 when it can not be taken, 279. 
 Bankruptcy — proceedings, priority of levy over, 278. 
 Beneficial — results of an execution, 2. 
 Benefit — of exemption laws, 89. 
 Benefits — of judgment, how obtained, 2, 
 Bid— effect of, accepting, 318. 
 
 Refusing to pay at a sale, 315. 
 
 When it may be withdrawn, 319. 
 
 When officer may refuse to accept, 318. 
 Bids — made by letter, 318. 
 Bidder — rights of, 319. 
 
 When compelled to pay loss by re-sale, 325. 
 
 When he becomes liable for purchase money, 318. 
 
€50 INDEX. 
 
 Bidders — agreement by, when void, 317. 
 
 Absence of, from sale as ground for setting aside sale, 415, 416. 
 Sidding — at execution sales, 317. 
 
 On property of creditor, effect of, as satisfaction, 462. 
 Bill— of sale, requisites of, 337. 
 Blanks — left in an execution will not avoid it, 50. 
 3ody — not liable at common law, reason why, 10. 
 Body of debtor — execution against. 
 
 Actual seizure necessaiy, 571. 
 
 Alias writ, when it may issue, 578. 
 
 American rule in regard to, 568. 
 
 Arrest under, to be made in the daytime, 572. 
 
 Attorney can not authorize discharge of, 576. 
 
 Bail, liability of after return oi non «^, 578. 
 
 Causes of action upon which it may iJsiie, 569. 
 
 Ce. Pi. good return, 578. 
 
 Ccrmmon-law rule in regard to, 567. 
 
 Confinement under, 570. 
 
 Confinement after arrest, effect of, 575. 
 
 Debtor, when he can not be taken after discharge under, 575. 
 
 Debtor to be kept in close confinement after arrest, 577. 
 
 Discharge of debtor after arrest, 573. 
 
 Discharge with consent of plaintiff, 574. 
 
 Discharge of debtor under, when satisfaction, 574, 575. 
 
 Discharge after arrest no satisfaction, 576. 
 
 Directions in, 567. 
 
 Duty of officer after arrest under, 577. 
 
 Duty of sheriff to call power of county in making arrest under, 578. 
 
 Effect of, 568, 573. 
 
 modern statutes upon, 568. 
 discharge after arrest under, 573, 574. 
 death of defendant after arrest under, 574. 
 return oi non esty 578. 
 
 Escape from arrest under, 577. 
 
 Execution of the writ by officer, 570. 
 
 Failing to return by officer, effect of, 577. 
 
 Form of, 568. 
 
 For what it must issue, 568. 
 
 Form of return to, 578. 
 
 How executed, 567, 570. 
 
 How arrest is made under, 571. 
 
 How issued against several defendants, 568. 
 
 How executed against joint-debtors, 570. 
 
 How arrest is made under, 570. 
 
 Illegal discharge from arrest under, no satisfaction, 576, 
 
 Imprisonment under, effect of, 574. 
 
 Issue of, against privileged person, effect of, 576. 
 
 Eind of writ it is, 567. 
 
 Kinds of escape from, 577. 
 
 Liability of officer for allowing debtor to be at large under arrest, 578. 
 
 Manual touching of the body, when not necessary to arrest under, 571. 
 
 Nature of the writ, 567. 
 
 Nature of the action authorizing it, 569. 
 
 Negligent escape from arrest under, what is, 577. 
 
 Non est inventus, as return to, 578. 
 
 Officer need not show writ in making arrest under, 570, 
 
 Officer can not break into house to make arrest under, 572. 
 
 Arrest of a party by touching him through a window, 572. 
 
INDEX. ■ 651 
 
 Body of debtor — Continued. 
 
 Officer when liable for escape of debtor after arrest made, 578. 
 
 Parties who are protected against, 568, 569. 
 
 Plaintiff, when he may enforce his lien notwithstanding discharge 
 
 under, 576. 
 Privileges of the law as applied to, 572. 
 Reason why officer is not required to show writ in making arrest 
 
 under, 570. 
 Remedies suspended by, 573. 
 
 Remedy of debtor against officer for illegal arrest, 577. 
 Rescue of debtor from arrest, effect of, 577. 
 Return of, 578. 
 
 Rule in regard to in Maine, 469. 
 
 Rule in regard to discharge after arrest in various states, 57s 
 Seal of, 568. 
 
 Suspension of other remedies by, 573, 
 Test of, 568. 
 
 Upon what adjudications it will issue, 569. 
 Various matters in regard to arrests under, 571, 572. 
 Voluntary escape — from arrest under, 577. 
 What is, 570. 
 
 What is a sufficient arrest under, 570. 
 What has been held good arrest under, 571. 
 What touching is sufficient to make arrest under, 571. 
 What judgment of the court it is issued on, 574. 
 When arrest is made under, 567. 
 When it lies at common law, 567, 568. 
 When it may issue, 568. 
 When it is and when it is not void, 568. 
 When it can not issue, 569. 
 When arrest under is no relief action, 574. 
 When court will not discharge debtor from arrest under, 576. 
 When returnable, 579. 
 Bona fide payment — to party not entitled to it, effect of, 461. 
 Bona fide purchaser — when not affected by lien of execution, 264. 
 Who is, 487, 489. 
 Without notice, only protected, 503. 
 
 when a good defense, 504. 
 Reason for protecting his title, 513. 
 
 Not affected by irregularities in proceedings of officer, 514, 515, 516, 517. 
 Bond — effect of as a stay of execution, 6i. 
 
 Effect of giving, on trial of rights of property, 285. 
 
 Forthcoming, essentials of, 258. 
 
 Forthcoming, effect of as satisfaction, 463. 
 
 For receipt of property when officer may be told, 258. 
 
 Giving of, when equivalent to levy, 23b. 
 
 In injunction, supposed to be sufficient protection to creditors, 617. 
 
 In supersedeas, nature and amount of, 600. 
 
 Necessary in order to obtain injunction staying proceedings under exec- 
 
 tion, 615, 616. 
 Necessary to give effect to injunction, 617. ■ 
 Bonds — of railroad companies when liable to execution, 561. 
 Binding — effect of the execution lien, 275, 276. 
 Breach of covenants — in officer's deed, 479. 
 Breaking open door — in execution of writ of possession, 530, 531. 
 Buildings — and fixtures, when liable as personal property, 145. 
 
 That are protected by the sanctity of a dwelling-house, 229. 
 When they may be removed by purchaser, 570. 
 
662 INDEX. 
 
 Building — when it may be sold separate from the land, 364. 
 Bulk — sale of property in, rights of purchaser under, 340. 
 Buyer — and seller can not be same person, 321. 
 Buyers — when oflScer is bound to find, 355. 
 Buying — at execution sale, who may, 321, 
 
 California — Deed, no evidence in against stranger, 483, 
 
 Homestead exemption in, and when entitled to claim, 127. 
 How pawned or pledged property is reached on execution, 153. 
 Nature of sale of personal property in, 534. 
 Personal property exempt in, gg. 
 
 Rule in regard to redemption of property from sale, 441. 
 Right of debtor in, after reversal of judgment, 608. 
 Stay of execution in, 595. 
 Who entitled to exemptions in, 94, 95. 
 Capacity of officer — in executing deed, 478. 
 To execute deed, 469. 
 Can not be tested by injunction, 616. 
 Capias pro fine — still in use in Virginia, 299. 
 Care required — of officer in making sale, 316. 
 Care of property — after seizure, 257. 
 
 Levied on, negligence in officer, liability for, 628. 
 Oi, aa. — Actual seizure of the debtor's necessary under, 571. 
 j4iias writ of, when it may issue, 578. 
 American rule in regard to, 568. 
 Arrest, how made, 571. 
 
 of a party by touching him through a window, 572. 
 to be made in the daytime, 572. 
 under, where it may be made, 571. 
 when not satisfaction, 574. 
 Attorney can not authorize the discharge of a debtor, 576. 
 Bail, liability of, after return oinim est, 578. 
 Causes of action upon which it may issue, 569. 
 Ce. Pi. good return, 578. 
 Common-law rule in regard to, 567. 
 Confinement under, 570. 
 Confinement after arrest, effect of, 577. 
 Creation of statute, 8. 
 Debtor, when he can not be retaken after discharge under, 575. 
 
 to be kept in close confinement after arrest, 577. 
 Definition of, 19. 
 Direction in, 567. 
 Discharge of debtor after arrest, 573. 
 
 under, when satisfaction, 574, 575. 
 after arrest, when no satisfaction, 576. 
 with consent of the plaintiff, 574. 
 Dnty of officer after arrest of debtor under, 577. 
 
 sheriff to call the power of the county in making arrest ondsr, 
 578. 
 Effect of, 19, 568. 
 
 arrest under, 573. 
 
 death of defendant after arres^ 574. 
 discharge after arrest, 573, 574. 
 modern statutes upon, 568. 
 return of non est, 578. 
 Efficiency of, destroyed by later statutes, 20. 
 
INDEX. 653 
 
 Oa. sa. — Continued. 
 
 Execution, &c., by officer, 570. 
 
 Escape from arrest under, 577. 
 
 Failing to return execution by officer, effect of, 577. 
 
 Form of, 568. 
 
 return to, 578. 
 For what it must issue, 568. 
 
 may issue, Ig, 
 Given in debt, &c., 12. 
 How arrest is made under, 570. 
 How executed, 567, 570. 
 
 against joint-debtors, 578. 
 How issued against several defendants, 568. 
 Illegal discharge no satisfaction, 574. 
 Imprisonment under, effect of, 576. 
 Issue of, against privileged persons, effect of, 574, 
 Kinds of escape, 577. 
 Kind of execution it is, 567. 
 
 Liability of officer under, for allowing debtor to be at large, 578. 
 Manual touching of the body, when not necessary, 571. 
 Nature of action authorizing execution of, 569, 
 
 the writ of, 567. 
 Negligent escape, what is, 577. 
 N^on est inventus as return, 578. 
 Officer can not break into house to execute, 572. 
 
 need not show writ in making arrest under, 570. 
 
 when liable for escape of debtor after arrest, 578. 
 Original form of, ig. 
 
 Parties against whom it will not issue, 568, 56g. 
 Plaintiff when he may enforce his lien notwithstanding discharge 
 
 under, 576. 
 Practice under in ancient times, 15. 
 Privileges of law as applied to arrest under, 572. 
 
 Reason why officer is not required to show writ in making arrest, 570. 
 Rescue of debtor, effect of, 577. 
 Remedies suspended by arrest under, 573. 
 Remedy of debtor against officer for illegal arrest under, 577. 
 Return of, 578. 
 Rule in regard to issue of in Maine, 569. 
 
 discharge after arrest in various states, 575. 
 Seal of, 568. 
 
 Suspension of other remedies by arrest under, 573. 
 Test of, 568. 
 
 Upon what adjudication it will issue, 569. 
 Various matters in regard to making arrest under, 574, 57s. 
 Voluntary escape, what is, 577. 
 What is arrest under, 570. 
 
 a sufficient arrest under, 570. 
 
 has been held good arrest under, 571. 
 
 touching is sufficient as arrest, 5 71, 
 When it may issue, 568. 
 
 it issues, ig, 567. 
 
 and when not void, 568. 
 
 courts will discharge debtor taken under, 576. 
 
 debtor will not be exempted from, 570. 
 
 it can not issue, 
 
 it lies a; common-law, 567, 568. 
 Writ of, when returnable, 579. 
 
654 iNDEX. 
 
 Oases in which vendi will he issued, 331- 
 
 return is prima facie evidence, 594. 
 Wherein return is admissible in evidence, 388. 
 
 In which relief will be granted to party by setting aside sale, 408- 
 409, 410. 
 Cash — meaning of, 315. 
 
 Sales on execution must be for, 315. 
 Presumption that all sales are made for, 447, 448. 
 Casting cloud on title — sufficient to enjoin sale, 614, 615. 
 Cause of action for false return, when it arises ,388. 
 
 Causey for setting aside sale insufficient to invalidate purchaser's title, 507. 
 For which officer may demand indemnity, 221, 222. 
 For setting aside levy, when officer forcibly enters house, 223. 
 Which result in losing the priority of an execution, 268, 269. 
 For which sale of land will be set aside, 350. 
 
 For failing to sell land levied on to be set forth in the return, 379. 
 For which sales will be set aside, 408. 
 For declaring sales fraudulent, 417, 418. 
 
 Which result in failure to vest title in purchaser, 420, 421, 422, 
 Preventing confirmation of sale, 433, 434. 
 For which execution will be quashed, 620. 
 Causes which give an action against officer, 622, 623. 
 
 Neglect to sell, 625. 
 levy, 625. 
 
 levy on personal property 
 first, 627. 
 For selling property not subject to ex- 
 ecution, 629. 
 Falling to return execution, 630. 
 False return, 631. 
 Neglect to pay over proceeds, 633. 
 Causing invalid process — to issue by party, when purchaser entitled to 
 
 relief a!gainst, 507. 
 Caveat emptor — rule of applied to execution sales, 320, 330. 
 Ceasing to be a — resident loses benefit of exemption laws, 119. 
 Certainty of description — of real estate levied on, 289. 
 Certificate of deposit — not subject to levy, 160. 
 Certificate of sale — effect of receiving, 435. 
 Evidence of what fact, 435. 
 Length of time for which it is in force, 436. 
 Recording of when necessary, 436. 
 Remedy for officer failing to give, 435. 
 Requirements in assignment of, 435, 436. 
 Right of assignee under, 435. 
 What necessary to show, to warrant a succeeding officer in making 
 
 deed, 469. 
 What will not void one, 435. 
 When issued, 435. 
 When void, 435. 
 Where issued, 435. 
 Who entitled to, 435. 
 Cestui que trust — interest of in persopal property liable, 145. 
 Cestui que use— interest of liable to execution, 186. 
 Chancery court — when it can nflt set aside sales, 413. 
 Change of possession — not requisite at execution sales, 315. 
 Chattels — wrongfully taken when they may be taken on execution, 148. 
 Choses in action — what are, 155. 
 
 How subjected to execution, 156, 157. 
 
INDEX. 665 
 
 Choses in action — Continued. 
 
 When and where liable and not liable to execution, 155, 156. 
 Circuit court, U. S. — executions from run all over the district or state, 586. 
 Citizen — what is meant by in exemption laws, 122. 
 City exemptiona — when applicable to form property, 124. 
 
 Property when not liable to executions, ig6. 
 Clsdmant — can not set up title in third person, 284-285. 
 
 Of property not allowed to object to validity of execution, 284. 
 
 Right of, to trial of right of propeaty, 282. 
 
 What necessary to show in order to succeed in trial of right of prop- 
 erty, 285, 286. 
 Claiming benefit — of exemption laws, 112. 
 Claiming — exempt property is a release of levy, 252. 
 
 Exemptions on several executions, II2. 
 Claim laws — effect of, 284. 
 
 Of property, when it will not be sustained, 284. 
 
 Of landlord for rent, when preferred in distribution of proceeds, 446. 
 Claims — entitled to priority over mechanics' liens, 455. 
 
 Of firm creditors, precedence of over creditor of individual partner, 540. 
 
 Which are entitled to prior distribution, 455. 
 Classification — of property under term writs in exemption laws, 117, 118. 
 Clerical errors — amendable, 53. 
 
 Parties not responsible for, 53. 
 Cerk — ^may delegate the power to issue executions, 66. 
 
 Of court, when he may issue executions, 65. 
 
 no power to issue execution without leave, 70. 
 no right to issue execution, 66. 
 
 necessary to obtain order of court prior to issue of alias 
 execution, 78. 
 Cci-defendant — may be purchaser, 321. 
 
 Codes— have not modified or changed from al supersedeas, 603. 
 Co-defendant — ^when not allowed to question regularity of ofHcer's proceed- 
 ings, 403. . 
 Coin — liable to execution, 158. 
 Collateral — actions, return can not be inspected in, 393. 
 
 Facts, when not allowed to extend or help insufficient description of 
 land levied on, 293. 
 
 Impeachment of return not permitted in, 390. 
 
 Issues, return as evidence in, 394. 
 
 Proceedings, deed can not be impeached in, 483. 
 
 Securities, when not liable to execution, 176. 
 Colorado — ^homestead exemptions in, and who entitled to claim, 137. 
 
 Notice of sale of personal property in, 334. 
 
 Time in which execution is returnable, 376. 
 
 Personal property exempt in, 95, 96. 
 
 Who entitled to exemption, 95, 96. 
 Collusion — as avoiding sale, 417. 
 
 In obtaining judgment will warrant injunction, 610. 
 Command — contained in z.fi.fa., 20. 
 
 Of an execution, 4. 
 Commands — in a ca. sa. to the officer, 19. 
 
 In execution in replevin action, 47. 
 
 Of vendi, 331. 
 Commencing — to execute a writ, death of party will not avoid it, 73. 
 Commercial — paper, how subjected to an execution, 157. 
 Commitment — of debtor to prison as satisfaction of execution, 463. 
 
 as affecting sale of his property, 422. 
 Common-law courts — can not issue execution upon decrees in equity, 61. 
 
656 INDEX. 
 
 Oommon law — execution, g. 
 
 how awarded, 8. 
 Practice in actions of replevin, 48. 
 Return on executions in actions of replevin, 48. 
 Rnle as to bills, notes, &c., 157. 
 forfeitures, 165, 166. 
 exemptions, 86. 
 
 exemptions of wearing apparel, 1 13. 
 revival of judgment, 68. 
 relating to issue of execution after death of defendant, 73. 
 in regard to personal property liable to sale on execntion, 144, 
 
 mortgagor's interest, 154. 
 for issuing executions, 58 
 
 regarding property not liable to execution, 173, 174. 
 in regard to sales after death of parties, 328. 
 neglect to return, 373. 
 writ of supersedeas, 600. 
 as to land held in trust, 185. 
 
 officers to whom writs were directed, 201. 
 sales of equity of redemption, 192. 
 in regard to lien of execution, 264. 
 
 sale of stock on execution, 561, 562. 
 satisfaction of an execution, 12. 
 Compelling purchaser to complete his contract, 486. 
 Competency of appraisers — shown by officer's return, 305. 
 Competition — effect of, at execution sales, 317. 
 
 Prevention of at execution sales, avoids the sale, 317. 
 
 by purchaser as ground for setting aside sale, 417. 
 Completion — of a sale, officer directed to make by order of confirmation, 433. 
 Completing — the execution of arrest, 207. 
 Complaining — of irregularties, parties who may, 410. 
 
 Compliance — with mandate of writ sufficient, when shown by return, 380. 
 Computation — errors in will not vitiate execution, 49. 
 Compulsory process against municipal corporations, 564, 565. 
 Computation of time — under redemption laws, 438. 
 Concerning statutory — requirements in regard to place of sale, 424, 
 Conclusive time of sale — as affecting right of redemption, 439. 
 Conclusive effect — of an execution at common law, 10. 
 Of recitals in deed, 472. 
 Of return, 388, 389. 
 Conclusiveness of return, 389. 
 
 Concurrence of husband and wife — necessary to alter an estate of home- 
 stead. 124. 
 Condemnation by courts — of sales made en masse, 349, 
 Conditional judgment — execution on, 70. 
 
 how issued on, 59. 
 Or defeasible estates, 345. 
 Conditions and terms — at sale, when purchaser not bound to comply 
 with, 486. 
 Precedent to sale of land, 345. 
 Which do not relieve a purchaser at a sale, 326. 
 Confession — of a judgment to a court is an execution, 4, 
 Confirmation — as affecting purchasers' rights, 510. 
 
 Application for relief should be made prior to, 407. 
 How to be made, 433. 
 Necessity of, to valid sale, 432. 
 Of invalid sale by debtor, 430. 
 Of sale, made on execution, 432. 
 
INDEX. 657 
 
 Confirmation — Continued. 
 
 Of sale, when it should be made, 433. 
 Of sale, when to be refused, 433, 434. 
 Order of, its effect, 433. 
 Presumption of, 435. 
 
 What is not a valid, by an injured party, 407. 
 What may be examined into by courts on, 433. 
 When it can not be collaterally questioned, 434. 
 When necessary prior to making deed, 468. 
 Oonfirming an invalid sale, 407. 
 
 Congress has passed — no law making judgment liens on real estate, 585, 586. 
 Connecticut — notice of sale of personal property in, 334. 
 Personal property exempt in , 96. 
 Requisites necessary to vest title in creditor, 297, 298, 
 Rule in regard to redemption of property from sale, 443. 
 officer's return as evidence, 394. 
 husband's interest in wife's property, 182. 
 sale of equity of redemption, 192. 
 Statutory provisions in regard to seizure of property on execution, 14a. 
 Time in which execution is returnable, 376. 
 Who is entitled to exemptions, 95, 96. 
 Consent of defendant — waives irregularities of sale, 316. 
 Consenting — to apply proceeds of older writ to junior one, when satisfac- 
 tion, 225. 
 To waive appraisement, 307. 
 Consideration — of deed, is paid to execution-debtor, 478. 
 Consolidation — rule as affecting executions, 70. 
 Constable — can not amend return, 402. 
 
 What necessary to prove in order to justify on final process, 215, 
 in order to bring action for property, 246. 
 Construction of a deed, 477. 
 
 Of appraisement laws in the New England states, 303. 
 Of exemption laws, 87. 
 
 as to partners, 118. 
 Homestead exemptions, 120. 
 
 Of statutory provisions in regard to place of sale, 311. 
 Of return as evidence, 389, 
 Of return, 385. 
 Construction — of requirements of redemption laws. 437. 
 Of the description of real estate levied on, 291. 
 Rule of, applied to officer's deeds, 477. 
 under an extent, 478. 
 Constructive levy — on property, when necessary, 238. 
 When it will not be permitted, 245. 
 
 When it will not be preserved in favor of other writ, 255. 
 Constructive notice — compelling party to make inquiries as, 493. 
 Determination not to learn as, 492. 
 Failure to make inquiry as, 495. 
 Knowledge of adverse title as, 495. 
 Lis pendens as, 493. 
 Nature of, 492. 
 
 Policy of the law in regard to. 492. 
 Presumption in favor of, 492. 
 Registration of conveyance as, 495. 
 Requisites to make lis pendens, 494. 
 What is, 492. 
 
 What information sufficient as, 495. 
 What not equivalent to, 492. 
 
 42 
 
658 INDEX. 
 
 Ooutructive notice — Continued, 
 
 When lis pendens will not be regarded as, 493. , 
 
 When not implied to purchaser, 493. 
 Contemplated occupation — of property will not create homestead, 124, 
 Contents of return — when it may be shown by parol evidence, 396, 397. 
 Contesting irregularity — of officer's proceedings on execution, 403, 404. 
 Contingent and contemplated — contracts, 177. 
 Remainder, definition of, 184. 
 
 where not liable, 184. 
 Continued possession — by debtor, not fraudulent under exemption laws, 418. 
 Contract, date of-^contracts as to appraisement, 308. 
 Contradiction of date — of sale in return, 379. 
 
 Of oflScer's return in Tennessee, as to notice of sale, 520. 
 Contribution — rule of various states. in regard to, by prior purchaser, 353- 
 Control of courts — over their own process, 408. 
 
 Sale is in the courts, till after confirmation, 432. 
 
 Property by state court will not be interfered with by Federal conrts, 2G0. 
 Controversies — in which priority of execution liens arise, 267. 
 Controverting — levy, who may, 237. 
 Conversion — of personal property, effect of as against an execution, 148. 
 
 When officer liable for, 220. 
 Conveyance — duly registered, when it proves no title, 501. 
 By officer, of stock of corporation, 563. 
 Of land to third persons, when liable; i8i6. 
 
 prior to issue of execution, how reached, 351. 
 Of property, when preferred to lien of execution, 421. 
 Of right, title, and interest of debtor, how considered, 477. 
 Conveyances — improperly executed and recorded as notice, 498, 499. 
 Recorded as constructive notice, 498, 499. 
 Registration of, as notice, 498, 499. 
 
 Conveying land in fraud of creditors, leaves it subject to execution, 186. 
 Co-partner — courts of equity, when they will not interfere to restrain execution 
 against, 543. 
 Creditors of, have priority on his separate estate, 543. 
 Effect of sale on execution against, 544. 
 Execution against, 538. 
 
 can not be enjoined, 543. 
 in case of dormant partnership, 543, 
 upon what property to be levied, 539, 540. 
 How levy is to be made against, 541. 
 
 made on interest of, 539, 540, 541. 
 Interest in one particular asset not liable, 542. 
 of, effect of sale of, 544, 545. 
 how reached in Georgia, 546. 
 purchaser takes as tenant in aversion, 544. 
 rights of purchaser of, 545. 
 title acquired by levy on, 546. 
 title conveyed by sale of, 545. 
 that may, claimed by debtor on execution, 541. 
 sold subject to partnership debts, 540. 
 .what can not be sold under execution, 546. 
 who may purchase, 546. 
 Liability of estate of, to execution, 338-340. 
 
 Levy on interest of, will not exclude other partners from possession, 542. 
 Levy of execution against, vests special property in officer, 544. 
 May purchase at sale of a co-partner's interest, 543. 
 Necessity for seizing the whole of the property on execution against, 542, 
 On execution against, whole of partnership property must be .<!sized, 541. 
 
INDEX. 659 
 
 Oo-partner — Contin ued. 
 
 Ofificer not liable for making levy on interest of, 543. 
 
 Quantity of interest liable to sale, how ascertained, 543, 544. 
 
 Rights, creditor against, 538. 
 
 Reason for subjecting interest of, to execution, 539, 540. 
 
 Rights of purchaser of interest of, 544. 
 
 Rule of law formerly applicable to, in England, 539. 
 
 Reasons for taking whole property on execution against, 541 
 
 Rule in various states in regard to interest of, liable to execution, 
 543. 544- 
 
 What may be taken on execution against, 540. 
 Oo-partners and co-tenants — may be purchasers, 321. 
 Copying the memoreindum of levy on the writs, 236. 
 Coroner — when he may serve process, 203. 
 Corporation — corporate capacity not affected by sale of franchise, 551. 
 
 Creditor's remedy against, 550. 
 
 Definition of, 549, 
 
 Duty of, to provide for the payment of its debts, 550. 
 
 Liability of, the same as individuals, 550. 
 
 Power conferred upon, 549, 550. 
 
 •Property of not exempt, 550. 
 
 who entitled to redeem from sale, 438. 
 
 Property of, when not liable to ordinary executions, 551. 
 it can not be sold, 199. 
 
 Shares of stock of, liable to execution, 561. 
 
 Stock of, how made liable to sale on execution, 561, 562. 
 
 What it is, 549. 
 Corporations, 549. 
 
 Execution against, 538-549. 
 Costs — entitled to priority in distribution of proceeds, 455. 
 
 When execution may issue for, 70. 
 
 Not necessary part of execution, 50. 
 
 When they can not be put into an execution, 46. 
 
 When not collectable by execution, 209. 
 Countermanding — execution, who may and who may not, 210. 
 
 Levy, who can not, 244. 
 Counties attached — to others for judicial purposes, executions in, .67. 
 County — execution against, 566. 
 
 Duty of officers of to satisfy judgments against, 566. 
 
 Judgment against, how satisfied, 566. 
 
 Private property of inhabitant of, when not liable, 566. 
 
 liable in New England states, 566, 
 
 Mandamus, when it may issue against, 566, 
 
 When execution against can not issue, 566. 
 Court — action of in quashing execution, when it will be reversed, 619. 
 
 Act of in construing deed, 459. 
 
 First acquiring possession of property entitled to dispose of it, 260. 
 
 Order of, controls sale of real estate, 349. 
 
 Of bankruptcy gives first lien over state court, when, 280, 281. 
 
 Power of to designate person to sell, 314. 
 
 State or federal, when it can not interfere with the execution of a 
 writ, 259. 
 
 What will be examined by in ordering deed, 469. 
 
 When it may dispose of surplus proceeds, 457. 
 
 When it will and will not direct the application of surplus proceeds, 45S, 
 Courts — amend executions as a matter of course, 53. 
 
 Bound to protect parties from clerical errors, 54, 
 
 errors and mistakes of their officers, 398. 
 
660 INDEX. 
 
 Oourts — Continued. 
 
 Do not recognize deputies, 377. 
 Duty of in case of irregular sales, 406. 
 confirmation of sales, 433. 
 construing returns, 385. 
 applying proceeds of execution, 450, 451. 
 permitting officer to amend his return, 397. 
 Favorable to process of mandamus against municipal corporations, 565. 
 Manner in which they control their process, 408. 
 of equity — will not interfere to restrain officer from levying on interest 
 
 of individual partner, 543. . 
 Power of to quash executions, 619, 620. 
 Protect their officers and hold them to a strict accountability for theii 
 
 acts, 623. 
 Will inforce restitution after reversal, when, 608, 
 When they will set aside sale of land, 350. 
 
 When they may direct that no execution issue on judgment, 599. 
 When they maintain title of purchaser, 512. 
 
 When they will and will not set aside sale for inadequacy of considera- 
 tion, 412. 
 When they sustain execution sales, 428. 
 When they can not order distribution of proceeds, 446. 
 Which can not set aside sales, 408. 
 Which may set aside levy, 241, 
 
 When they will not determine priority of writs, 263, 264. 
 Ooturtesy, estates by — as subject to sale, i8i, 182. 
 Covenants in deed — by officer, what is a breach of, 479. 
 By officer in deed, for equity of redemption, 338. 
 That run with the land when they pass by officer's deed, 479. 
 Creation — of homestead exemptions, 126, 
 Credit — to be given defendant for proceeds, 449. 
 Creditor — definition of, 446. 
 
 Does all the law requires of him, when, 212. 
 Entitled to proceeds of execution, 446. 
 
 in case of indemnity, 454. 
 be heard on application for distribution of proceeds, 458, 459. 
 Failing to issue process, loses priority of execution lien, 269, 270. 
 How brought in under a rule to distribute proceeds, 458. 
 Holding junior lien when entitled to proceeds, 451. 
 May purchase personal property without paying the money at the 
 
 time, 337. 
 Not bound by acts of officer after return day of writ, 463, 464. 
 Of individual partner, interest he may claiin on execution, 541. 
 rights of, 538. 
 
 when preferred in levy, on separate estate of 
 partner, 543. 
 Or plaintiff, when not liable for wrongful act of officer, 220. 
 Property of, when it may be sold under execution against his debtor, 430. 
 Protection of, when a purchaser, 511, 512. 
 
 afforded him by bankrupt law, 281. 
 Purchasing at execution sale may have his bid applied to satisfaction of 
 
 his debt, 521. 
 Restored to same position by reason of dissolution of injunction, 617. 
 Right of to affirm pfficer's acts in receiving payment after return day, 464. 
 Right of, under a judgment, 499, 500. 
 
 levy against individual partner, 541, 542, 543, 
 lien of judgment on land, 293. 
 after return of nulla bona, 387. 
 
INDEX. . 661 
 
 Creditor — Continued. 
 
 Staying execution will not lose its lien, wlien, 271. 
 Under whose execution land is sold, not permitted to redeem, 438. 
 Who must be, in regard to distribution of proceeds, 446. 
 When a bona fide purchaser, 489. 
 
 When entitled to apply to court to set aside levy and sale, 509. 
 equal distribution of proceeds, 453. 
 injunction, 6i6. 
 
 proceeds of sale on execution, 446. 
 protection, the same as a stranger, 416. 
 estopped from claiming property as debtors, 369. 
 he can not redeem all the land sold, 438. 
 he does not become bona fide purchaser, 504. 
 he can not relieve himself from liability by trial of right of prop- 
 
 erty, 283. 
 he can not release or abandon, levy, 249. 
 
 he may not be compelled to relinquish under excessive levy, 243. 
 he obtains priority, 269. 
 
 not entitled to adjudication as to priority to claim to pro- 
 ceeds, 459, 
 not permitted to make another,levy, 244. 
 protected against irregularities, 518. 
 Who can not complain of neglect of officer to sell, 327. 
 Rights of, protected by inclosing time of receipt of writ, 200, 201. 
 Right of, to control execution, 209. 
 Right of, under indemnity bond, 221. 
 
 Money in officer's hands, when it may and may not be taken on execu- 
 tion agamst him, 158, 159. 
 Right of satisfaction on debtor's property, 147, 148. 
 Rights in obtaining executions, 63. 
 
 When compelled to subject revived claim to his judgment, 172. 
 When entitled to possession of mortgaged property, 153. 
 Remedy where corporation has no tangible property liable to execution, 
 
 SSI- 
 Rights of determined by applying the maxim of Qui prior est, &c., 263. 
 When they may agree not to bid against each other at execution sale, 
 
 317- 
 When they may cause levy of execution on property fraudulently con- 
 veyed, 147. 
 When they may levy on tenant's fixtures, 166. 
 Who are within the redemption laws, 437. 
 Crops — as personal property subject to levy, 160. 
 
 And fixures that pass to purchaser at sale, 524. 
 How levied on, 235, 236. 
 How to be sold, 340, 341. 
 Purchaser's right to takelafter sale, 340, 341. 
 Sale of, when it passes no title, 341. 
 Void sale of, 341. 
 
 When not considered an interest in land, 160. 
 When they pass with the land to purchaser, 524. 
 Currency — kind of, necessary to satisfy execution, 463. 
 
 I Payment in, what sufficient to satisfy execution, 450. 
 Custody of property — levied on against individual partner, 543. 
 the law — effect of levy upon property in, 246. 
 Property in, not liable to seizure by U. S. courts, 261. 
 When property is in, 246. 
 
662 INDEX. 
 
 Damage — necessary to sustain action for false return, 388. 
 Damages — assessed under eminent domain not collectible on execution, 553, 
 For property taken by eminent domain can not be collected on execu- 
 tion, 62. 
 Measure of, for failing to levy execution, 625. 
 
 neglecting to execute writ, 625. 
 Data — when none, to amend return by, sale will be set aside, 411. 
 Date of— execution, 44. 
 
 Levy, when it may be proven by parol, 237. 
 
 Lien On land, 265. 
 
 OflScer's possession of property, 246. 
 
 Resolution of, judgment when to be excluded from time of return of 
 
 execution, 576. 
 Return, 396. 
 
 after return day, will be presumed to have been regular, 396. 
 how to be shown, 396. 
 not conclusive, 396. 
 presumptions in faVor of, 396. 
 what it refers to, 396. 
 Sale in the return, 379. 
 
 To which execution relates so as to avoid any alienation by debtor, 275. 
 Day on which — sale should be made, 315. 
 Dead men's estate — no execution will issue against, when, 62. 
 Death of defendant — as affecting purchaser's title, 420. 
 
 before or after issue of execution, effect of, 72. 
 
 after issue of execution, effect of, 278. 
 
 after commencement of proceedings by attachment, 
 
 effect of, 85. 
 when it abates the writ, 75. 
 when it prevents amendment of levy, 241. 
 Of party, form of execution in case of, 43. 
 
 Of plaintiff after judgment, as affecting the issue of execution, 71. 
 Death of officer— who to make deed in case of, 470. 
 
 plaintiff in replevin action, revives officei-'s right of possession, 286. 
 parties, effect of in prohibiting execution sale, 328. 
 sale after, 328. 
 
 when it does not supersede execution, 328, 329. 
 Debit sui, &c. — maxim, 823. 
 Debt — how considered in ancient times, 6. 
 How enforced, 6. 
 
 Of creditor, how it may be satisfied at execution sale, 321, 
 Payment of as affecting power of officer to sell, 419. 
 Debts — for which homestead can not be sold, 155. 
 Not affected by homestead statute, 121, 122. 
 That have a precedence over homestead claims, 137. ' 
 Decrees in equity — effect of, 31. 
 How enforced, 31. 
 How executed, 31. 
 Debtor allowed — what under head of cattle as exempt, 114. 
 and surety when execution may be issued against, 66. 
 can not move to quash deed, 479. 
 
 take advantage of irregularities after sale, 528. 
 complain of issue of execution, 66. 
 replevin property taken on execution, 247. 
 cam only acquire title by repurchase after sale, 345. 
 
INDEX. 663 
 
 Debtor — Continued. 
 
 Committed under one execution, his property can not be sold undet 
 
 another, 422. 
 Can not divest purchaser's title by payment of purchase money after 
 sale, 528. 
 move to quash deed after sale, 528. 
 show title in another sale, 528. 
 Could not designate exempt property, iii. 
 
 Doctrine of adverse possession does not apply to after sale, 528. 
 Entitled to protection as well as creditor, in an execution, 455. 
 How he may dispense with services of officer in execution of process, 
 
 478. 
 How he may prevent a sale of his property on execution, 251. 
 Making inventoiy, when equivalent to a levy, 236. 
 May show that he never had title subject to levy and sale, 528, 
 May waive taking personal property, 142. 
 Only can claim benefit of exemption law, gi. 
 Officer acts as agent of, 478. 
 
 Only allowed to object to sale of land in bulk, 350. 
 Payment by one of two, as satisfaction, 462. 
 Pointing out property can not complain of excessive levy, 243. 
 Property bound from what time, 277. 
 Right of to waive formalities required by law, 316. 
 created by law at execution sales, 317. 
 to have land sold in parcels, 348. 
 under sale of equity of redemption, 355. 
 to designate property to be taken, 237. 
 
 in Indiana, 237. 
 in regard to levy on real estate, 288. 
 to waive notice of sale, 309. 
 to redeem land from sale on execution, 436. 
 after sale, 528. 
 to waive exemption, 88. 
 Selling property levied on destroys the lien of execution, 272. 
 Title of, passes by sale and not by return of the writ, 518. 
 When not divested until after time of redemption, 440. 
 
 charged by levy, 245. 
 What is a sufficient levy against, 237. 
 
 necessary before he can recover property sold, 508. 
 When allowed exemption either in money or property, H2. 
 
 entitled to priority in distribution of proceeds of sale of home- 
 stead, 447. 
 be heard against claim of parties to proceeds, 459. 
 have sale set aside, 408, 409. 
 apply the proceeds, 450. 
 
 action against officer for surplus proceeds, 634'. 
 recover the difference he loses at a resale, 326. 
 estopped from setting up title, 369. 
 he can not avoid or have levy set aside, 2^i. 
 
 claim a levy as satisfaction of judgment, 256. 
 may allege a levy in satisfaction of judgment, 253. 
 liable for purchase money, 508. 
 not allowed to be disturbed by execution, 69. 
 regarded as tenant of purchaser, 528. 
 not allowed to dispute title of purchaser, 368. 
 to make selection of exempt property, 229. 
 Why not allowed to controvert purchaser's title, 478, 479. 
 Debtor's death— effect of, as to levy, 209. 
 
664 INDEX. 
 
 Debtor's death — Continued. 
 
 Hbuse, when it may be entered, 224. 
 
 Rights in executing process, 212. 
 
 Right of appropriation, when making voluntary payments to officer, 139. 
 
 to exemption of proceeds of homestead, 137. 
 Title to land to vest in purchaser, 359. 
 what necessary to divest, 368. 
 Seed — acknowledgment of, 472. 
 
 After acquired title, does not inure to grantee in, 479. 
 
 As evidence, 479, 482. 
 
 By a deputy, effect of, 474. 
 
 Consideration of, is received by execution debtor, 478. 
 
 Conclusive evidence, of what, 483. 
 
 Construction of, 477. 
 
 Covenants in, 479. 
 
 Date of, 472. 
 
 Defectively acknowledged, as notice, 498. 
 
 Delivery of, when prevented by injunction, 6l6. 
 
 Effect of, 479. 
 
 as to title conveyed by, 479. 
 
 failing to record, as to subsequent purchasers, 505. 
 
 on lease, 480. 
 
 in sale of right of entry, 185. 
 Evidence of title, 480. 
 Executed immediately after sale, where there is time for redemption 
 
 given, avoids it, 474. 
 If made, when officer has no power to, effect of, 474. 
 Impeachment of, 483. 
 
 In a sale on foreclosure, what passes by, 480. 
 Irregularity in, is insufficient to impeacii a, 483. 
 Is the execution debtor's, 478. 
 
 Liability of officer for failure to make after sale, 634. 
 Mis-recitals in will not authorize rejection as evidence, 483. 
 Necessary to divest debtor's title, 368. 
 No evidence in California against strangers, 483. 
 Not authorized by law, as notice, 498. 
 Notice of, as to purchaser's title, 501. 
 Of equity of redemption, what conveyed by, 357. 
 Officer acts in what capacity in executing, 478. 
 Of property subject to redemption, effect of, 363. 
 Operation of, as to other liens, 480. 
 Passes nothing but what is described therein, 480. 
 Prima facia evidence, of what, 479. 
 Protection to purchaser by, 480. 
 
 Purchaser, when entitled to under redemption laws, 436. 
 Recitals in, 471. 
 
 effect of, as evidence, 472. 
 prima facia evidence, 482. 
 Relates to time of sale, 480. 
 
 judgment, 480, 482. 
 Relation of, under the redemption laws, 481. 
 Requisites in construction of, 477. 
 Right of purchaser to, 487. 
 Title vests in whom, 479, 480. 
 
 vests in purchaser, from what time, 480. 
 To assignee, presumption in regard to, 532. 
 To purchaser, to be made when, 301. 
 
 at sale under process from Federal court, 587, 588, 
 
INDEX. 665 
 
 Deed — Continutd. 
 
 To two, for land sold to one, effect of, 477. 
 To whom to be made, 470. 
 Validity of, 473. 
 
 what will not affect, 474. 
 Variance in, 476. 
 
 what will avoid, 476, 477. 
 Void for uncertainty of description of land sold, 476. 
 Warranty in, effect of, 479. 
 Without sale, effect of, 474. 
 What passes by, 479. 
 
 to purchaser under, 479, 480. 
 variance in will not avoid, 476. 
 When inadmissible in Missouri, 483. 
 it may be impeached, 484. 
 
 executed in Missouri without order of courts, aftei 
 death of officer 470. 
 it is irregular and void, 474, 475. 
 no evidence of legal foreclosure, 483. 
 necessary to divest debtor's title, 468. 
 to be made, 468. 
 no title will pass by, 480. 
 Where evidence to identify property sold, 483. 
 Who to execute, 469. 
 
 make after death or removal, or expiration of officer's time, 469. 
 Writing, &c., not liable to execution, 177. 
 Seeds — held void -for uncertainty of ■description, 475, 476. 
 Defeasible — title created by redemption laws, 363. 
 Defect — on levy, when it can not be cured, 241. 
 Defeat — of lien by giving delivery bond, 266. 
 Defects — in deed which can not be cured, 475, 476. 
 Who not bound to look for in execution, 217. 
 Supplied by confirmation of sale, 434. 
 Defective — acknowledgment of deed, 473. 
 
 Description in return, when it may be supplied, 379. 
 what is sufficient to avoid sale 427. 
 which' have been held sufficient to sustain sale, 427, 428. 
 Levy, ground for alias execution, 78. 
 
 on real estate, liability of officer for, 625. 
 Return, 382, 383. 
 > Title, when purchaser entitled to relief against, 507, 508. 
 Defendant— can not control title to property sold on execution, 340. 
 Causing execution to issue, makes it irregular, 80. 
 Death of, stops the issue of aji execution, 72. 
 How he may satisfy execution, 461, 
 May consent to sale after return day, 328. 
 Must be credited with proceeds by officer, 449. 
 When he can not object to a sale, 315. 
 When entitled to execution for costs, 70. 
 When not entitled to stay of execution, 599. 
 Defendant's title — conveyed by officer, how, 4^8. 
 
 Defense of officer — in action against him for neglect to pay over proceeds, 634 
 Definition — and derivation of an elegit, 23. 
 Of appraisement, 303. 
 
 contingent remainder, 184. 
 choses in action, 155, 
 estate for years, 171. 
 equity of redemption, 188. 
 
666 INDEX. 
 
 Definition — Continued. 
 execution, I. 
 fieri facias, 20. 
 fixtures, 162. 
 injunction, 609. 
 lands, 178. 
 levy, 228.' 
 lien, 153. 
 
 personal property, 143. 
 property, 140. 
 property in lands, 179. 
 real estate, 178. 
 recognizance, 16. 
 reversionary estates, 184. 
 
 setting off an execution in the N. E. states, 294. 
 statute-merchant, 16. 
 statute staple, l5. 
 the term executed, 200. 
 
 the word " redemption " as used in execution sales, 436. 
 the viford " seize " in an action for false return, 388. 
 the word " supersedeas," 599. 
 tenants in common, 180. 
 term remainder, 184. 
 vested remainder, 184. 
 Delaware — personal property exempt in, 96. 
 
 Practice in regard to sale of land on execution, 302. 
 Rule in regard to advertising property for sale, 310. ' 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 Who entitled to exemption, 96. 
 Delay — after information of danger of, officer must immediately levy, 23I 
 In executing writ, effect of, 208, 209. 
 
 In execution of writ, what sufficient to constitute negligence, 624. 
 Delivery — necessary to complete the return, 374. 
 Of certificate of sale, 435. 
 
 goods to plaintiff not allowed, 335. 
 personal property to purchaser, effect of, 339. 
 
 when it prevents a re-sale, 325. 
 writ, effect of death of parties prior to, 329. 
 possession in N. E. states, how shown, 296. 
 writ to officer, when it creates a lien, 264. 
 writ to officer, effect of, 212. 
 real property, execution on, 67, 68. 
 Demand necessary — before settling of land in N. E. states, 295. 
 In Pa. prior to levy on corporation property, 361. 
 When necessai-y to be made for proceeds of sale, 445. 
 When not necessary to be made for proceeds of sale, 445. 
 De minimis, &c., 423. 
 
 Denial of ownership — when it waives claim for exemption, 93. 
 Depreciation— of property np ground for setting aside sale, 416. 
 Deputy — and sheriff one officer, 202. 
 How to make deed, 469. 
 Not recognized by courts, 377. 
 
 When allowed to purchase at a sale made by his principal, 322. 
 When he may execute deed for his principal, 470. 
 Derivation — of the word execution, i. 
 Of the term Jieri facias, 20. 
 And definition of the term scire facias, 30. 
 
INDEX. 667 
 
 DeBcription in deed — how considered, 477. 
 
 goyerns the title that passes, 480. 
 must be satisfactory, 477, 478. 
 Of land sold may be shown by parol evidence, when, 476. 
 Of property levied on, requisites of in return, 379. 
 
 in returns held good, 381, 382. 
 meaning of, in notice of sale, 409. 
 required in advertisement of sale, 309 
 real estate levied on, 289. 
 
 what sufficient on a levy, 289, 290. 
 Uncertainty of, as avoiding levy on land, 291. 
 Designedly abstaining from making inquiries, as notice, 492. 
 Setermiiiation — of priorities between creditor and assignee in bankruptcy, 
 279. 
 Of the construction of a return, 386. 
 determinations — which govern the question of fixtures, 162. 
 Determining — the sufficiency of levy, 241. 
 
 Whether amount of property sold is excessive, 423, 424. 
 Difference— between first and second sale, how to be collected, 306. 
 Difficulty — in the ascertainment of whether land could be sold in parcels or 
 
 not, 348. 
 Diligence necessary — on part of an officer on a levy, 230. 
 Of creditor not discharged by bankrupt law, 282. 
 Of officer required after levy, 257. 
 Requisite in order to set aside sale, 434. 
 
 What kind of necessary in officer in the care of property after 
 seizure, 257. 
 Diligent — search for property required before making return, 386. 
 Directing — an execution to an officer not competent to execute it avoids it, 52. 
 
 who is a party to the action avoids it, 52, 
 Officer to execute after return day renders party liable, when, 219. 
 Officer to take defendant's note satisfies the execution, 450. 
 Direction in a.fi. fa.^ 20, 21. 
 In an execution, i. 
 May be given to officer, when, 210. 
 
 Not to do anything till further orders, effect of, 230, 231. 
 Of court necessary to dispose of surplus proceeds, 457. 
 Of party which destroys execution lien, 268, 269. 
 Discretion — allowed officer in executing writ, 211. 
 Of courts in issuing alias executions, 78. 
 
 setting aside or confirming sales, 408. 
 
 sales for inadequacy of consideration, 413. 
 Of officer, in amount of property necessary to be sold, 424. 
 
 taken on a levy, 241, 
 should be liberally construed, 230. 
 Discretionary power — of court to set aside levy, 241. 
 
 Vested in ministerial officers, 405. 
 Discharge — from arrest as satisfaction of execution, 463. 
 
 by creditor as satisfaction of ca. sa., 573, 574. 
 Of debtor from arrest under execution, 574, 575. 
 
 as satisfaction, 574, 575, 576. 
 effect of as suspending other remedies, 574, 575. 
 as preventing second arrest, 574, 575. 
 when no satisfaction, 575, 576. 
 illegal no satisfaction, 576. 
 when courts will not, 576. 
 Of execution, what is, 450. 
 person from arrest, 577 
 
668 INDEX. 
 
 Discharge — Continued. 
 
 Of surety or indorser by release of levy, 252. 
 Disobedience — of the statute in regard to right of redemption not permit* 
 
 ted, 437. 
 Disinterested person — who are, so as to be appraisers, 305. 
 Dispute of creditors — not sufficient to warrant court in applying pro- 
 ceeds, 439. 
 Disregarding plaintiff's — instructions, liability of officer for, 627. 
 Dissolution of partnership — will not affect levy, 547. 
 
 Distinction between — a levy on real estate and personal property as satisfac- 
 tion, 464, 465. 
 
 Final process of inferior and superior courts, 217. 
 
 Movable and immovable fixtures, 166, 167. 
 
 Personal and real property, 143. 
 
 Purchasers in good faith and those who are not, 489. 
 
 Purchaser with and without notice, 484, 486. 
 
 when it can not be applied, 517. 
 
 Right and title of purchaser at a sale on execution against a, firm or 
 against an individual partner, 547. 
 
 Sale of property and interest in property, 350. 
 
 The rights of a stranger and a party to the action purchasing, 508, 509. 
 
 An action and an execution, 6. 
 
 The king and the subject in the execution of final process in Eng- 
 land, 8. 
 Distinct sets — of appraisers, when they may be selected, 306. 
 
 The use of the levari a.\\Afi.fa., g. 
 
 Ca. sa. and capias ad respondendium^ 20. 
 
 Of the several forms of execution, 8. 
 Distringas — how executed, 27. 
 
 How issued, 9. 
 
 How used, 9. 
 
 Object and nature of the writ, 27. 
 
 Rule of, 27. 
 Distraining— the effects of a debtor, 7. 
 Distress — when used to enforce payment, 7. 
 Distribution of proceeds — of sale on execution, 444. 
 
 Effect of when made by court, 458. 
 
 How regulated, 446. 
 
 In case of several unrecorded claims, 446. 
 
 In purchase-money judgments, 447. 
 
 In mortgage sales, 406. 
 
 Where one levy is released by creditor, 452. 
 
 Where there are several executions issued, 449. 
 
 When courts will and will not direct, 458. 
 
 Priority in, 274. 
 
 Of sale of corporate property, 553. 
 
 In case of execution against firm and individuul partner, 461. 
 
 Surplus proceeds, 456. 
 District of Oolumbia— personal property in, 96. 
 
 Stay of execution in, 595. 
 
 Who entitled to exemption in, 96. 
 Divers oases — execution in, 60. 
 
 Divesting purchaser's— right and title, debtor not allowed to after sale, 528. 
 Division of real estate— when required to be made, 346. 
 Doctrine of constructive notice— when it will not apply, 493. 
 
 _ _ estoppel— as applied to execution sales, 368. 
 
 Donumon- over property necessary to be exercised by officer on levy. 835 
 Door— when officer not allowed to open, 223 
 
INDEX. 669 
 
 iDormant Judgment — application of proceeds in case of, 452. 
 
 Issuing execution upon, effect of, 52. 
 Double exemption — when party allowed to claim, 117. 
 Dower in lands — ^when liable to execution, 182, 183. 
 When purchaser takes title free from, 365, 366. 
 Due diligence — rule for ascertaining what is, 623, 624. 
 What is, how determined, 624. 
 
 Prosecution of a suit necessary in order to give constructive notice, 404, 
 Due return — of process, what is meant by, 374. 
 Duly registered conveyance — ^when it passes no title, 500. 
 
 ' sworn — meaning of in regard to swearing appraisers, 305. 
 Duty of court — in construction of officer's return, 385. 
 cases of irregular sales , 406. 
 regard to distribution of proceeds, 458. 
 to protect parties against errors of its officers, 398. 
 creditors to show why he did not receive the money collected on his 
 
 execution, 462. 
 defendant to satisfy execution after return day, 278. 
 o£Scer — after trial of rights of property, 285. 
 at sale of property, 316. 
 in advertising property for sale, 309. 
 
 case of execution against individual partner and against 
 
 firm, 547. 
 case of sacrifice, 323. 
 execution of deed defined by law, 478. 
 executing writs of possession and assistance, 529-537- 
 making arrest under execution, 571, 572. 
 making levy on stock of corporation, 561. 
 making levy on interest of individual partners, 541. 
 making return, 373. 
 executing a writ, 208. 
 
 executing writ oi elegit in Virginia, 299, 3CX3. 
 executing a ca. sa., 19, 
 case of two or more writs, 262. 
 regard to levy, 228. 
 
 regard to proceeds of sale of property on execution, 444- 
 regard to payment of proceeds, 445. 
 respect to purchase money, 447. 
 regard to proceeds, 448. 
 regard to sale of land, 345. 
 regard to sales under several executions, 320. 
 generally defined by statute, 230. 
 in regard to supersedeas, (xi'z. 
 
 in the exercise of ordinary skill and diligence, 623, 624. 
 in selling land previously conveyed by debtor, 351. 
 in regard to directions given by plaintiff, 210. 
 on receiving injunction, 618. 
 on return day of execution, 372. 
 to amend return, 397, 398. 
 to issue certificates of sale, 435. 
 to levy on personal property first, 241. 
 to levy on personal property fvaudulently conveyed, I47. 
 to levy on sufficient property, 242. 
 
 to divide land into parcels where required by statute, 348. 
 to sell personal property, when, 335. 
 to return- proceeds in his liands, when, 448. 
 presumed to be discharged, 520. 
 to notify debtor of his exemptions, 112. 
 
670 INDEX, 
 
 Duty of oflSoer — Continued. 
 
 purely ministerial, 229. 
 
 upon receiving writ of execution, 20I. 
 
 wlien notified that writ is fraudulent, 448. 
 
 where writ is irregular, 228, 229. 
 
 where he has a number of sales to ipake, 314. 
 
 where no instructions are given for payment of proceeds, 445>. 
 
 writs served after expiration of term, 207. 
 Duty of marsheil — of U. S. court in making appraisement under execution, 587, 
 Purchaser, as to authority of officer to sell, 419. 
 
 when another party is in possession of the property, 496. 
 Dwelling-house — of family presumed the homestead, 137. 
 
 Early history — of enforcing payment of debts, 6. 
 
 subjecting property to the payment of debts, 7. 
 Easement — when passes to purchaser at sale, 525. 
 Effect of — a ca. sa., 19. 
 
 Acquiescence of party in improper sale, 407. 
 
 A judgment to bind the goods of a debtor, 14. 
 
 A judgment becoming dormant, in distribution of proceeds, 45a. 
 
 A lien of judgment, 499. 
 
 Alleged incumbrances on the completion of a sale, 512. 
 
 Amendment to return, 402. 
 
 An alias execution, ^9. 
 
 An officer's covenants in conveying equity of redemption, 358. 
 
 A return as evidence, 388. 
 
 Arrest under execution, 573, 574. 
 
 Compelling officer to pay a judgment, 204. 
 
 Confirmation of sale, 432. 
 
 Death of either party prior to delivery of writ to officer, 329. 
 
 plaintiff in replevin suits, 286. 
 Defendant's death before and after issue of execution, 72, 
 Discharge as satisfaction, 576, 577. 
 by creditor, 574, 575. 
 from arrest, 574, 575. 
 Dissolution of injunction on execution, 619, 
 Excessive levy, 241. 
 Execution, i, 2. 
 
 in the King's and Lord's courts, 7, 
 
 on partnership assets, 547. 
 
 issued upon dormant judgment, 52. 
 
 issued after plaintiffs death, 76. 
 Executing a dormant writ, 32. 
 Exemption laws, 87. 
 
 Extension of city limits on country homestead, 124. 
 Failing to follow instructions by officer, 211, 
 
 sell personal property at the time advertised, 334* 
 Fraud on execution sales, 416. 
 Failure to redeem, 440. 
 
 Failing to record deed, as to subsequent purchaser's, 505. 
 Fraudulent sale as to execution creditors, 187, 
 Giving indemnity bond, 222. 
 Incumbrance on purchaser's title, 500, 501. 
 Issuing execution on satisfied judgment, 216. 
 Issue of a ca. sa. , 14. 
 
 execution as a bar to the statute of limitations, sS- 
 
INDEX. 671 
 
 Effect— CVi«//»«;i/. 
 
 Of issue of execution in keeping a judgment alive, 68. 
 
 on revived judgment, 69, 70. 
 Issuing a substituted writ virhere original is lost, 79, 
 
 for less than the amount plaintiff is entitled to, 83. 
 of injunction — against execution, 6i6. 
 
 as destroying lien of judgment, 617. 
 granted after levy, 617. 
 restraining levy of execution, 617. 
 
 when it restrains defendant from selling property till 
 further order of court, 617. 
 Judgment lion — upon land, 275. 
 
 obtained in violation of injunction and execution 
 
 issued thereon, 617. 
 leaving property in debtor's possession as to subse- 
 quent creditors, 273. 
 levy after — death of debtor, 240. 
 return day, 240. 
 as to amount of land which passes at a sale, 294. 
 to custody of the law, 246. 
 preventing judgment becoming dormant, 249. 
 satisfaction of judgment, 253. 
 in reviving lien of judgment, 294. 
 Ml equity of judgment by judgment creditors, 356. 
 exempt property, 92, 240. 
 husband's interest, 182. 
 land, 287. 
 
 under junior judgment, 354. 
 part only of debtor's property, 239. 
 
 personal property as a release of debtor's real estate, 244 
 property outside of officer's jurisdiction, 240. 
 strangers' property, 240. 
 without seeing the property, 240. 
 levying on the same property under an alias writ, 275. 
 lis pendens as notice, 494. 
 notice — to purchaser, 448, 449, 500. 
 of trust, 502. 
 
 equitable lien, 502. 
 a party being in possession! 502. 
 obtaining leave — to demand but failing to, 402. 
 officer's deed — 479. 
 officer purchasing at his own sale, 322. 
 payment in anything but legal currency, 463. 
 
 to officer after return day, 464. 
 possession or occupation as notice, 495, 496. 
 purchaser becoming a quasi party to the action, 486. 
 purchasing at inadequate price by consent of parties, 523. 
 quashing execution, 621. 
 
 return, 397. 
 recitals in deed, 472. 
 
 redemption laws on purchaser's title, 363. 
 release from levy, 251, 252. 
 
 restraining orsu^ending proceedings as to subsequent execution, 251 
 return, 396. 
 
 may be inquired into, 393. 
 of satisfied, 374, 375. 
 reversal of judgment on purchaser, 604, 605. 
 revival of judgment, 69. 
 
672 INDEX. 
 
 Effect — Contin ued. 
 
 of sale — as divesting prior liens on land, 358. 
 
 by officer outside of his jurisdiction, 424. 
 of equity of redemption, igi. 
 exempt property, 420. 
 
 homestead and investment in another, 138. 
 interest of individual partner, 544, 545. 
 personal property, 338. 
 made in another mode than prescribed by statute, 425. 
 of personal property not present, 338. 
 of real property, 358. 
 on judgment payable in installments, 362. 
 on an execution that has been enjoined, 424. 
 on a writ that varies from the judgment, 424. 
 on execution against partnership carried on under diSerent 
 
 names, 549. 
 under one or tvifo mortgages given on same day, 362. 
 under execution, 313, 314. 
 
 several executions, one only being valid, 424. 
 writ partially satisf ed, 424. 
 Sale where the officer has sufficient money in his hands, 424. 
 Seizing pawned or pledged property under execution, 153. 
 Seizure and sale in admiralty, 590. 
 Setting aside proceedings for fraud, 418. 
 Statute staple, statute merchant, and recognizance, 16, 17. 
 Setting aside levy, 241, 
 
 Strict compliance with statute requirements in the New England states, 298. 
 Tenant being in possession of property, as to rights of purchaser, 497. 
 The action of court in the distribution of proceeds, 458. 
 The verdict of a jury in trial of rights of property, 283. 
 Transfer of bid, 319. 
 
 Trial of rights of property as a protection to officer, 222. 
 Upon execution of debtor's land prior to its issue, 351. 
 Variance in officer's deed, 476. 
 Various omissions in form of execution, 52. 
 
 returns as to issue of other writs, 375. 
 void process as a justification, 218. 
 Xlleotion by debtor — of the form of writ, 15. 
 
 Day, sale taking place' on may be postponed, 323, 
 Of debtor as to exempt property, when to be made, III. 
 Of exempt property, what it amounts, 112. 
 Of party, when it constitutes estoppel, 330. 
 Of plaintiff to sell under vendi, 333. 
 Elegit — derivation of the term, 23. 
 
 Effect of the execution of a writ of, 15, 
 Given by statute, 12. 
 In use in Virginia, practice under, 299. 
 Nature of, 14, 23. 
 Statute creating, 9; 23. 
 The creature of statute, 8. 
 What might be taken under, 14. 
 When creditor entitled to in Virginia, 299. 
 Where it might issue to, 14. 
 Eminent domain— execution can not issue to enforce the collection of dam- 
 ages under, 62, 552, 553. 
 Employment of puffers— as affecting sale, 418. 
 Emptor emit — &c., 321. 
 Encouragement— of trade made it necessary to subject land to execution, n. 
 
INDEX. 673 
 
 X!nd — of final proceedings is the obtaining of an execution, i. 
 Enforcing — execution of deed, 471. 
 
 decrees in equity by Federal courts, 588. 
 England — former rule in regard to liability of individual partner's interest to 
 execution, 539. 
 Writs in regard to issue of execution after death of debtor, 76. 
 English^practice in regard to bids, where in use, 3ig. 
 
 extending time for return, 377, 
 Rule in regard to distribution of proceeds, 460. 
 the issue of executions, 5g. 
 relation to bankruptcy proceedings, 279. 
 of property liable at common law, 10. 
 Enjoining — an execution prevents judgment from becoming dormant, 68. 
 
 Writ, effect of in distribution of proceeds, 461. 
 En masse — sale, 349. 
 
 as affecting purchaser's title, 516. 
 Entering satisfaction, 466. 
 
 Entry of levy — on execution, when si;)Eficient as to real estate, 289. 
 purchaser no right to, till he gets deed, 487. 
 rights of, 184. 
 
 when not liable to execution, 196, 
 by purchaser of equity of redemption, 357. 
 Entrusting property — by officer to other parties while in his care, 257. 
 Equitable estate — can not be converted into a legal one by want of notice, 505. 
 of debtor, sale of, 360. 
 subject to homsstead exemption, 125. 
 estoppel, when applicable to execiltion sales, 368. 
 interest in personal property not liable to execution, 175, 176, 177. 
 liable, 192. 
 
 of stockholder of corporation liable to sale, 562. 
 lien, notice of to purchaser, effect of, 302. 
 
 power of court, when applied to the satisfaction of judgment 
 against corporations, 552. 
 Equitable — ^property of debtor, how affected by return of nulla bona, 388. 
 
 principles applied to subject property to levy for protection of 
 creditor, 172. 
 Equities — against what execution creditor will be protected, 511, 512. 
 Equity of redemption — how sold, 355. 
 
 In different parcels of land, sale of, 356, 357. 
 Mode of sale in the N. E. states, 354, 355. 
 Sale of, 354. 
 
 Sale of in Kentucky, 356, 
 What it is, 188. 
 
 What estate passes by sale of, 354. 
 When it can not be sold, 356. 
 When it may be attached and sold, 191. 
 When mortgagee can not take it, 190. 
 When none exists,! 88. 
 Where it can not be sold, 192. 
 Who can not purchase, 355. 
 When its sale will be enjoined, 615. 
 Equity in regard— to sale of property in its reverse order, 352. 
 
 when it will not interfere in questions of priority, 264. 
 Erroneous executions — when they may be amended, 54. 
 Error, writ of— abandonment by issue of execution, 66. 
 As implied supersedeas, 600. 
 
 Does not affect proceedings already completed on execution, 601. 
 When it operates as a supersedeas, 601. 
 
 43 
 
G74 INDEX. 
 
 Error— Con iinued. 
 
 When no supersedeas , 602. 
 Errors and irregularities — insufficient to set aside sales, 428, 429, 430. 
 omissions — in advertisement of sales, which avoid it, 310. 
 
 which avoid executions against real estate in Nev 
 York, 292. 
 mistakes — in return to be corrected by amendment, 397. 
 Errors — in place of test amendable, 55. 
 final process amendable, 50. 
 
 test to an execution for which it will be amended, 54, 55, 
 test or direction to return immaterial, 50. 
 what do not vitiate an execution ,49, 50. 
 Escape — kinds of, 577. 
 
 liability of officer for, 577. 
 from arrest, 577. 
 Essential facts — to return when taken as proved. ^78. 
 idea of personal property, 143. 
 recitals in deed, 471. 
 requirements necessary to make personal property a fixture, 162. 
 
 of statutes relating to proceedings on execution to be 
 strictly complied with in the N. E. States, 428. 
 Essentials — of a homestead, 124, 125. 
 valid return, 379. 
 sale, 314. 
 Estate for life — when necessary to process, 307. 
 Estate for years — 171. 
 
 definition, 171. 
 sales of, how made, 172. 
 
 where invested with incidents of fee simple, 178. 
 of debtor which passes by sale, 359, 360. 
 by courtesy, when liable to execution, 181, 182. 
 in remainder, when and where liable to execution, 184. 
 of husband, when liable, 181. 
 mortgage, l8g. 
 purchaser at execution sale liable, 194. 
 
 subject to vendor's lien, 195, 196, 
 under contract for purchase, 194. 
 redemption laws, 363. 
 when it vests in execution purchaser, 301. 
 which courts consider to pass by deed, 478. 
 
 vests in purchaser under redemption laws, 436. 
 Estimating — sufficiency of levy, 242. 
 Estoppel — application of to execution sales, 368. 
 
 doctrine of when it protects a purchaser at a sale, 512, 513. 
 of party, by giving forthcoming bond, 258. 
 Every man's house his casus — 223. 
 Evidence — conclusiveness of officer's return as, 390, 391. 
 Certificate of sale as, 435. 
 Deed as, 479, 482. 
 
 conclusive of what facts as, 483. 
 inadmissible hi Missouri as, 483. 
 none in California when, 483. 
 Extraneous not allowed to aid defective acknowledgment, 473. 
 In action against officer for negligence, 623. 
 Misrecitals in deed, when it will not authorize its rejection, 489. 
 Not necessary to constitute purchaser's title, 525. 
 Of a levy, 236. 
 Of fraudulent mortagage, 151, 152. 
 
INDEX. 675 
 
 Evidence — Continued. 
 
 Of publication, what is essential, 311. 
 Of return for and against officer, 389. 
 Of sale of personal property, 337. 
 Of time of receipt of writ by officer, 225 , 226. 
 Of title, return as, 389. 
 
 Necessary to justify officer in excuting process from inferior courts, 2l8. 
 Parol when admissible to show contrary of return, 396, 397. 
 identify land sold, 476. 
 contradict officer's return in Tenn., 520. 
 Recitals in deed as, 4S2, 483. 
 
 officer's deed as, 471, 472. 
 Return as, 378. 
 
 What is competent, of a levy, 236. 
 What is in favor of execution lien, 271, 272. 
 What is of satisfaction of execution, 461. 
 When admissible in construction of return, 386. 
 When return is not to excuse neglect of officer, 389. 
 Examples of matters — amendable in executions, 53, 57. 
 
 personal property held to be fixtures, 163, 164, 165, 
 excessive levy, 243. 
 Exceeding the power — given by final process, effect of, 215. 
 Exceptions — to general rule ofselling property on execution, 179. 
 To the benefit of exemption, 93. 
 
 rule, " Every man's house his castle," 224. 
 
 that leaving property in debtor's possession waives execution 
 
 lien, 273, 274. 
 of notice to attorney or agent, 491, 492. 
 In levy, effect of as to what passes to purchaser, 524. 
 Excess — quashing execution as to, 620, 
 Excessive executions — are amendable only, 51. 
 levy, 241. 
 
 may be enjoined, 610. 
 on land in the New England states, 295. 
 sale of land, how determined, 423, 424. 
 proceedings in case of, 350. 
 property, when not fraudulent, 242. 
 
 remedy of party in case of, 408. 
 when it will not be set aside, 424. 
 Exchanging— one homestead for another protects it, 126. 
 
 homesteads, 136. 
 Exclusive jurisdiction — of courts in distribution of proceeds, 458. 
 Executio est finis, &c., i. 
 Executio juris, &c., 573. 
 Execution — against corporations, 549. 
 Application of the term, 2. 
 As a final process, I. 
 
 Against partnership, when it has priority over execution against individ- 
 ual partner, 547. 
 railroad companies, 550. 
 principal and surety, how executed, 233. 
 the county, 566. 
 body, 567. 
 Creditor not a bona Jide purchaser, 487, 488. 
 Date of, 44. 
 
 Derivation of the word, i. 
 Directed to a coroner, 45, 46. 
 Debtor, when entitled to surplus proceeds, 457, 458. 
 
676 INDEX. 
 
 Execution — Continued. 
 
 Effect of variance between endorsement and body of, 48. 
 
 Entitled to proceeds, how determined, 451. 
 
 Form and contents of, 41. 
 
 Form of— against a corporation, 45. 
 
 married woman, 43. 
 town, 45. 
 
 several defendants not equally liable, 45. 
 in cases of attachment, 45. 
 
 when issued against an executor or administrator, 43. 
 and issue of in New York, 44. 
 Prom federal courts, where it runs, 586. 
 
 appraisement under to be made, 587. 
 How awarded at common law, 8. 
 How issued, 43. 
 
 levied on property of tenants in common, 180. 
 satisfied when against the person of the debtor, 44. 
 
 property in the hands of an executor, &c.,44. 
 In an action of debt, insufficient in replevin actions, 48. 
 ejectment and real action, 529, 533. 
 cases where there is a special judgment, 46. 
 decrees in equity, 31. 
 favor of an assignee, form of, 44. 
 
 United States, where it may issue to, 587. 
 ^ federal courts. See Final Process in Federal Courts, and 
 
 United States Courts, Final Process in, 580-593. 
 practice, what it is, 2. 
 real or mixed actions, 46, 
 Indorsement of, 48. 
 Life of, 32. 
 Mandate of, 43. 
 Matters which will be sufiicient to cause party to obtain stay of, 
 
 603, 604. 
 May issue after dissolution of injunction, 619. 
 
 Must be proved in action against officer for money collected by 
 " him, 634. 
 
 Must contain the names of the parties to the action, 43 
 Must follow the judgment, 42. 
 Not allowed to issue for benefit of officer, 204. 
 Of deed, 469. 
 
 Of a writ, what it must be, 200. ' 
 
 Of process after expiration of officer's term, 207. 
 On forfeited bond, 46. 
 Of the writ oifi.fa., 21. 
 elegit, 23. 
 Origin and nature of, i. 
 
 On final process gainst partnerships and corpontions, 538. 
 Production of as justification to officer, 215. 
 Presumed to be regular, 49. ' 
 Relation of, 44. 
 Requirements of; 43. 
 Sale, bid at, 317. 
 Sale, what it is, 3x3. 
 
 Sales that are within the statute of frauds, 366, 
 Satisfaction of, 461. 
 Seal required to, 44. 
 Signature necessary to, 44. 
 Stay of in justices' courts, 597, 598. 
 
INDEX, 677 
 
 Execution — Continued. 
 
 Staying and superseding, 594, 595 , 596, 597. 
 
 Supersedeas of, 599, 600. 
 
 Test and direction to return are unnecessary parts of, 5a 
 
 Validity of can not be inquired into, 49. 
 
 Want of seal, how supplied, 44. 
 
 What it is in a practical sense, 2. 
 
 What it must refer to, 42. 
 
 What necessary to state in, 42, 
 
 What is in satisfaction, 463. 
 
 When it can be set off, 226. 
 
 When it can not is&ue, 61. 
 
 When deed relates to time of issue of, 481. 
 
 When it should issue against bidder for failing to comply with hii 
 bid, 325. 
 
 When it will not be stayed, 599. 
 
 When it will not be set aside, 599. 
 
 When satisfied, 206. 
 
 When to be issued and sued out under English practice, 30. 
 
 When it has priority over a writ not levied, 262. 
 
 When it creates no lien on land, 265. 
 Bxeoutions — against the body, 19. 
 
 Against several defendants, how issued, 232. 
 
 Are not actually by the judges, 5. 
 
 Being entire things, must be completed by the hand that commence* 
 them, 207. 
 
 Difference between and actions 6. 
 
 Directed to the sheriff, but executed by the coroner, amendable, 55. 
 
 Final, what are, 2. 
 
 Form of, how ascertained, 4. 
 
 Give the power to sell, judgments to levy, 9. 
 
 How issued, 2. 
 
 How many parties are entitled to, 59. 
 
 Issuable at common law within a year and a day, 9. 
 
 Issued upon dormant judgments are voidable, 51. 
 
 In use in ancient practice, 14, 
 
 Kinds of, 2, 19. 
 
 May be amended by consent of parties, 54. 
 
 Not founded on a judgment is void, 51. 
 
 Preferred and favored to all other process, I. 
 
 Several kinds of, 7. 
 
 Subjecting land to are creatures of modern legislation 4 
 
 That are voidable, 51. 
 
 That do not conform to the judgment ate void, 83. 
 
 That are within the statute of frauds, 274. 
 
 The rule in suits commenced by attachment, 84. 
 
 Varying substantially from the judgment are void, 51 
 
 What founded on, 2. 
 
 What they are in civil actions, 2. 
 
 When for costs only, 3. 
 
 Why called judicial writs, 6. 
 Executing deed — after officer's death or removal, 469. 
 
 Writ by levy on property withdraws it from other suits, 248. 
 Exempt property — failing to set off as affecting purchaser's title, 86, 515. 
 Exemption — allowed either in money or property, when, 112. 
 
 From arrest, under execution, 568, 569. 
 
 How claimed in Pennsylvania, 92. 
 
 Of homestead, T [9. 
 
618 ' INDEX. 
 
 Exemption — Continued. 
 
 Of homestead can not be claimed against a vendor's lien, 138. 
 household furniture, 113. 
 
 where it exists, 126. 
 who entitled to claim, 121, 122. 
 Laws as applied by Federal courts in execution of final process, 584. 
 for whose benefit, 115. 
 respected by Federal courts, 93. 
 Of property from seizure by U. S. statutes, 174. 
 surplus proceeds of homestead, 160, 457. 
 revenue of municipal corporations, 565, 566. 
 Not applicable to corporations, 550. 
 Of tools, 117. 
 
 When party not entitled to claim, 119. 
 Rule of, 87. 
 Exemptions — allowed in the Roman law, 7. 
 Xispiration — of officer's time, effect of on executing process, 207. 
 
 who to make deed after, 469 
 Extendi faciaa, 25. 
 
 Definition and derivation of, 25. 
 How and for what purpose issued, 25. 
 Kinds of, 25. 
 Extending time — for return, 377. 
 
 Extent — and meaning of statute staple and statute merchant, 17. 
 in use in the N. E. states, 39, 40. 
 of execution lien, 265. 
 
 interest of individual partner liable to execution, 540. 
 levy on land, how ascertained, 386. 
 
 the satisfaction of an execution by payment of purchase money. 
 462. 
 what is meant by in the N. E. states, 294. 
 Extinction of a lien, 266. 
 
 F. 
 
 Facts — insufficient statement of in return, 383, 384, 385. 
 necessary to be stated in return, 374, 375. 
 
 shown to warrant succeeding officer in making 
 deed, 469. 
 in order to make deed to assignee, 470. 
 return sufficient, 380. 
 not correctly stated in return render it false, 388. 
 
 inconsistent with return, when they may be proven, 392. 
 of which officer's deed is prima facie evidence, 479. 
 proved by the return, 378. 
 
 stated in return not changed by amendment, 402. 
 which show want of diligence, 623, 624. 
 Failing — to comply strictly with statutory requirements, effect of as to 
 purchaser, 512. 
 issue within the statutory time avoids execution, 82. 
 levy without bond when debtor has the property, effect of, 222. 
 reply to ground of defense no ground for granting injunction, 6og. 
 sell personal property at the time advertised, effect of, 334. 
 sign return, 383. 
 Failure — to comply with statutory provisions in issuing executions avoidi 
 them, 83. 
 of bank when officer is liable for proceeds deposited in, 446. 
 to execute writ, result of, 205. 
 
INDEX. 679 
 
 Failure — Continued. 
 
 to indorse proceedings on execution, effect of, 51. 
 
 issue execution within a year and a day, effect of, 10. 
 find property on which to levy, as affecting the return, 386. 
 make money evidence of failure to execute the writ, 628. 
 obey plaintiff's instructions, liability of officer for, 627. 
 object to confirmation of sale as an estoppel, 369, 370. 
 record as to subsequent purchasers, 50.5. 
 redeem, effect of, 440. 
 
 return execution as affecting purchaser's title, 518. 
 sell, effect of, 307. 
 
 sell personal property affects only debtor and creditor, Bot pur- 
 chaser, 514. 
 description in advertisement as ground for setting aside sale, 415. 
 title as ground for vacating, satisfaction, 466. 
 false return, 388. 
 
 Action for, 395, 396. 
 Liability of officer for, 631, 632. 
 Remedy of party against officer for, 631, 632. 
 What is, so as to render officer liable for, 631, 632. 
 Remedy of party at common law, 371. 
 Falsely denying — the ownership of property waives executions, 93. 
 Fault of creditor — necessary to lose lien of execution, 271. 
 Fees — levy of execution for. 209. 
 Fi. fa., 2. 
 
 Against whom the writ lies, 21. 
 
 At common law, how only goods and chattels were liable, 21. 
 
 Clause in vendi, purpose of, 332. 
 
 dependent on what, 333. 
 when it becomes operative, 332, 333-. 
 Definition of, 20. 
 Derivation of the term, 20. 
 Form of a, 21. 
 General authority of, 22. 
 How used, 8. 
 
 In execution of, in England and Pennsylvania, rents are first paid, 21. 
 Its name and existence obtained from the statute of Westminster, 21. 
 What it is in practice, 20. 
 Fieri feci — definition of, 32, 374. 
 Nature of, 32. 
 
 When proper return to execution, 374. 
 How made, 32. 
 Filing — a transcript, when not sufficient to authorize the issueof execution, 65, 
 Certificate of sale, effect of, 435. 
 When necessary to complete a return, 372. 
 Execution, effect of, 2. 
 Judgment, execution on, 60. 
 Final proceeding — on execution is its return, 372. 
 Final process — against partnerships and corporations, 538. 
 In an action is an execution, I. 
 In action commenced by attachment, 84. 
 Is protection to officer, 212, 213. 
 Where presumed to be good for property to sell, 362. 
 Who tp execute, 202. 
 Final process against municipal corporations — How enforced, 564, 565. 
 How executed, 564, 565. 
 Is by writ of mandamus, 564, 565. 
 Nature of process, 564. 
 
680 INDEX. 
 
 THnal process against municipal corporations — Continued. 
 
 Proceedings under, 564, 565. 
 
 Property liable to, 564. 
 
 Statutory provisions relating to, 564. 
 Final process in admiralty cases^-courts no power to refuse sale under, 59a 
 
 Exclusive jurisdiction of, 589. 
 
 Is a kind of special execution, 590. 
 
 Is in the nature of proceedings in rem, 590. 
 
 Issues against the thing, 590. 
 
 Is the mode of executing a decree or order of sale, 590. 
 
 Is within act of Congress subjecting land to execution, 591, 592. 
 
 It points out the property to be taken, 590. 
 
 No levy necessary under, 590. 
 
 Officer making sale under, is agent of the court, 590. 
 
 Parties entitled to priority in distribution of proceeds under, 590. 
 
 Proceeds, distribution under, 590. 
 
 Reason why land is subject to, 591, 592. 
 
 Rights of lien holders under, 590. 
 
 Rules applicable to proceedings under, 589. 
 
 Seizure and sale under, 590. 
 
 Sale under, 590. 
 
 Sale under not within the statute of frauds, 591. 
 
 Surplus proceeds, how applied, 590, 591. 
 
 Title of purchaser at sale under, 589. 
 
 When it may be levied on land, 591. 
 Fined process in federal courts. 
 
 Alteration in, how made, 581. 
 
 Appraisement under, how made, 587, 
 
 Common law procedure, when ap'plicable to, 580. 
 
 Duty of marshal in execution of, 587, 588. 
 
 History of; 580. 
 
 How executed, 585. 
 
 How issued and executed, 586. 
 
 How affected by acts of Congress, 581-582. 
 
 In favor of United States, where it may issue to, 587. 
 
 Is governed by the statutes of the state where issued, 581, 582. 
 
 Laws of the United States govern, 580. 
 
 Mode and form of proceedings under the State courts applicable to, 588^ 
 
 Origin and nature of, 580. 
 
 Principles governing, 581. 
 
 Principles of law relating to execution of, 580-585. 
 
 Proceedings under, 584, 585. 
 
 Reasons why the state statutes in relation to were adopted by Con- 
 gress, 580-585. 
 
 Sale and proceedings under, 587, 588. 
 
 Sale by marshal under, 588. 
 
 Sales on, how governed, 588. 
 
 State exemption laws as applicable to, 584. 
 
 State redemption laws, how applicable to, 588. 
 
 Statutes regulating, 582, 583, 584. 
 
 Statutory provisions regulating, 580. 
 
 Subject to exemption laws of the various states, 586. 
 
 To enforce decree in equity, 588. 
 
 nature of, 588. 
 rules that govern, 588. 
 a writ of sequestration, when it may issue, 589. 
 
 Uniform practice of federal courts in regard to, 584. 
 
 Want of uniformity in, 580. 
 
INDEX. 681 
 
 Final process in federal courts — Continued. 
 
 Where it runs, 586. 
 Final process in United States courts — court no equitable power to 
 supersede, 593. 
 
 Duty of party in order to obtain supersedeas, 593. 
 
 Effect of supersedeas bond as a stay of, 592. 
 
 Enlargement of time for obtaining, 592. 
 
 Governed by statutory provisions, 592. 
 
 Requisites necessary to obtain stay of, 592. 
 
 Requisites to obtain supersedeas of, 592. 
 
 Security necessary to be given to supersede, 593. 
 
 Stay of execution in, 592. 
 
 Strict compliance with the requirements of the statutes to obtain tuftr- 
 sedeas of, 592. 
 
 Supersedeas bond may be given within sixty days, 592. 
 staying, v^hen to be executed, 592. 
 FlaEtures — Adjudications in regard to, 163, 164, 165. 
 
 Definition of, 162. , 
 
 Distinction between principles relating to and rolling stock, 552, $53, 
 
 554. 555- 
 Proceeds of sale, who entitled to, 447. 
 That have been held liable to levy on execution, 167-171. 
 That pass to purchaser at a sale, 524. 
 "When they pass with the land, 524. 
 Which are movable by tenant, when liable, 166. 
 Which pass to purchaser at foreclosure sale, 363. 
 Florida — homestead exemptions in, 128. 
 Personal property exempt in, 96. 
 Rule in regard to distribution of proceeds, 452. 
 Stay of execution in, 593. 
 Time in which execution is returnable, 376. 
 Food necessary — ^what is meant by in exemption laws, 116, 
 Force and effect — of an elegit, 18. 
 Forcible brealdng — into a house, what is, 223. 
 Foreclosure sales — how made, 344. 
 
 Suits in federal courts, process to be issued on, 588, 589' 
 Forfeiture— of mortgagee's interest prevents a levy, 155. 
 Forthooming bond — giving of equivalent to levy, 236. 
 Forfeiture of, when satisfaction, 463. 
 In Arkansas and Virginia, 334, 
 Officer permitted to take, 258, 
 Forged execution — sale under, 423. 
 Formal defects — amendable, 53. 
 Form of a ca. sa., 19, 41, 568, 569. 
 alias execution, 46. 
 appraisement, 307. 
 execution, 19-41. 
 
 against a corporation, 45. 
 a town, 45. 
 
 body of debtor, 44, 567. 
 
 several defendants where they are equally liable, 45> 
 in action of replevin, 3, 46, 47, 48. 
 in case of first judgment, 44. 
 in favor of an assignee, 44. 
 in action of attachment, 45. 
 in equity in Pennsylvania, 46, 
 in real or mixed actions, 46. 
 in New York, 44. 
 
682 INDEX. 
 
 rorm of execution — Continued. 
 
 on a judgment in debt, 3. 
 
 in detinue, 3. 
 dependent on the nature of action, 4. 
 return, 423. 
 
 selecting exempt property, 112. 
 Fortior est custodia, &c., 247. 
 Foundation of — an execution, 4, 41, 42. 
 Franchise of corporation, 551, 552. , 
 
 In sale of, statutory requirements must be strictly complied with, 551. 
 When not liable to execution, 176. 
 Fraud — arising after sale, effect of, 418. 
 
 As a ground for refusing to confirm sale, 433, 434. 
 
 In cases of notice, 502. 
 
 In selling, deprives creditor of his lien, 282. 
 
 In selling for inadequacy of consideration, when sufficient ground to set 
 
 aside sale, 412, 413. 
 or surprise — when sufficient to enjoin execution of writ, 614. 
 statute of — as affecting execution sales, 366. 
 effect of on executions, 275, 276. 
 Surprise or mistake, sufficient cause for setting aside sale, 409. 
 What is indicative of, 147. 
 
 What is presumptive of as to execution sales, 411. 
 When it may be shown to impeach deed, 484. 
 When it must exist in order to warrant setting aside sale, 418. 
 Fraudulent — agreement not to bid, effect of, 523. 
 
 Bill of sale of property, duty of officer in regard to, 251-. 
 
 Concealment of sale as affecting right of redemption, 439. 
 
 Conveyance, when purchaser protected by law relative to, 486. 
 
 Deed, when color of title, 528. 
 
 Execution on real estate, effect of on subsequent writs, 250. 
 
 Execution sales, 317, 318. 
 
 Executions, what are, 274, 275. 
 
 Representations as affecting sales, 417. 
 
 Sales, 416. 
 
 of personal property, what are, 339. 
 
 O. 
 
 Garnishment — of co-partner's interest, when proper remedy to reach it by 
 
 execution, 546. 
 General creditor — priority of against firm property, how liable to be defeated, 
 
 548. 
 General levy — in suits commenced by attachment, when it will be sustained, 
 
 239. 
 General principles — in regard to sale of land on execution, 301. 
 General rule — governing courts in their sustaining title of purchaser, 513. 
 In regard to acknowledgment of deeds, 473 . 
 As to who may issue executions, 64. 
 In regard to issuing executions, 38. 
 In regard to abandonment of homestead, 125, 126. 
 property liable to execution, 140. 
 surplus proceeds, 158, 159. 
 executory process, 207. 
 entering dwelling-houses, 223. 
 place of sale, 311. 
 sales, 314. 
 amendment of returns, 397. 
 
INDEX. 683 
 
 Oeneral rule in regard to— Continued. 
 
 setting aside sales for indequacy of consideration, 412. 
 purchaser without notice, 503, 504. 
 Of law, in regard to liability of partnership property, 340, 341. 
 Subjecting property to execution, 177. 
 
 Of executing process where sheriff is an interested party, 204. 
 Oeneral right — to seize and sell property on execution, 144. 
 Oeorgia — execution for taxes is entitled to priority, 451. 
 
 Homestead exemptions in, and who entitled to claim, 128. 
 Interest of co-partner, how made liable to execution in, 546. 
 Personal property exemption, 97. 
 Stay of execution in, 595, 
 Time in which execution is returnable, 376. 
 Oive and grant — effect of in officer's deed, 477. 
 Going on debtor's premises — and announcing levy, effect of, 239. 
 Ooods and chattels — only liable at common law in England, 10. 
 
 &c., embraced in term personal property, 143. 
 left by a purchaser with a debtor, when liable, 148. 
 Goods of a debtor — bound by a judgment, 14. 
 
 When they may be taken through a window, 225. 
 Granting — injunction prevents court ordering sale of property, 617. 
 ' Grass growing — subject to execution, 161. 
 Gross inadequacy — of consideration, indicative of fraud, 413, 414. 
 
 examples of, 414, 415. 
 Ground for issuing — alias executions, 78. 
 Ground for quashing execution, 615. 
 Growing crops — how to be sold, 341. 
 sale of, 340. 
 
 when it will be enjoined, 615. 
 
 H. 
 
 Hab. Fa. Fos., 26. 
 
 Definition and object of the writ, 26. , 
 
 Execution of by entering dwelling of party, 225. 
 
 How executed, 26. 
 Hab. Fa. Siesinam, 26. 
 
 How executed, 26. 
 
 Nature and object of the writ, 26. 
 Hab. Fa. Fos. & Hab. Fa. Sies. — action in which plaintiff is entitled to, 529. 
 
 Commands contained in writs of, 529, 530, 
 
 Courts when they will not interfere in execution of, 531. 
 
 Delivery of possession under, how preferred, 529. 
 
 Disturbing officer in execution of, 532. 
 
 Dutv of oflScer — in executing when stranger is in possession, 533. 
 case of doubt in executing, 533. 
 execution of, 530. 
 under, 530. 
 plaintiff under, on other executions, 531. 
 
 Effect of defendant re-entering after execution of, 531, 532. 
 
 Execution of the writs of, 530, 531. 
 
 How executed, 530. 
 
 Nature of the writs, 529. 
 
 Parties that may be served by, 532. 
 
 Return to, 533, 534. 
 
 Subsequent writ on same judgment, when illegal, 532. 
 
 Turning party out of possession when sufficient execution of, 533- 
 
 What necessary in order to complete execution'of, 533. 
 
684 INDEX. 
 
 Hab. Fa. Poa. & Hab. Fa. Sies. — Continued. 
 What is a good delivery under, 531. 
 What to be delivered under, 530. 
 When irregularly issued, 530. 
 When it is executed, 533. 
 When not executed, 530. 
 When alias writs can not issue, 532. 
 When they will issue, 529. 
 Who can not be served by, 532. 
 Heir title — of purchaser on judgment against, 511. 
 Highest bidder — rights of at execution sale, 318. 
 
 Hindering and delaying — creditors issuing an execution for, renders it fraudu- 
 lent, 274. 
 History^-of executions in ancient times, 8, 13. 
 
 the American rule of subjecting lands to execution, 33, 34, 35. 
 execution of final process from Federal courts, 380-385. 
 Homestead — abandoned temporarily, effect of, 125, 126. 
 Exemption, how waived, 121. 
 
 Exemption in N. C, duty of officer in regard to, 139. 
 How conveyed, 120, 121. 
 Laws, the effect of, 120. 
 Protected against sales, 135. 
 Right, when it ceases to exist, 136. 
 Surplus proceeds of, how distributed, 447. 
 
 sale, who entitled to, 457. 
 What it may consist of, 120. 
 
 When it may be sold or exchanged without losing the nght of exemp- 
 tion, 126. 
 When liable for debt, 137. 
 Who entitled to claim, 121. 
 House — on leased land, when it does not pass to purchaser, 524. 
 Houses — when liable as personal property, 145, 146. 
 
 officer can not enter, 223. 
 Household furniture exempt, 92. 
 Householders — or heads of families entitled to exemptions, 89. 
 
 who are, 8g, go. 
 How — a ca. sa. is executed, 20. 
 
 debtor may prevent the sale of his property, 4. 
 fi. fa. is executed in America, 21. 
 fixture is to be ascertained, 162. 
 levy is made, 223. 
 writ is executed, 200. 
 
 of elegit is executed, 24. 
 executions — are amended, 53. 
 
 may issue against purchaser for failure to comply with hit 
 
 bid, 66, 67. 
 were enforced in England in ancient times, 7. 
 How final process from— Federal courts is executed, 585, 586. 
 Homestead can be acquired, 125. 
 Judgment is put in force, 4. 
 
 Judgments were enforced in the English courts, 7. 
 Levy is to be made on interest of individual partner, 541. 
 Levy may be set aside, 241. 
 Quantity of land sold is to be ascertained, 370. 
 Return should be considered, 385. 
 Sufficient amount to be taken is estimated, 242. , 
 
 The fruits of a judgment are obtained, 4. 
 The levari was made available to suitors, 8. 
 
INDEX. 685 
 
 Husband and wife — can not both claim exemptions, 92. 
 
 When execution will issue against, 66. 
 Husband's interest, how affected by levy, 182. 
 
 Ignorance — of the law no excuse to officer, 2ig. 
 
 Illegal seizure— of property, sale of may be enjoined, 611. 
 
 Sale of property will be enjoined, 614. 
 Illinois — homestead exemptions in, 128. 
 
 how released, 128. 
 
 who entitled to claim, 128. 
 
 Lien of execution in, 266. 
 
 Personal property exempt in, 97. 
 
 Rule in regard to appraisement, 307. 
 
 Rule in regard to redemption of property from sale, 443. 
 
 Rule in regard to rolling stock of railroads, 561. 
 
 Statutory provisions in regard to seizure of personal property on execu- 
 tion, 142. 
 
 Time in which execution is returnable, 376. 
 
 Time of publication, how computed in, 311. 
 
 Who entitled to exemption in, 97. 
 Immovable fixtures, what are and what are not, when and how they may be 
 
 taken, 162. 
 Impeaching— deed, 483. 
 
 Importance — of ascertaining the time the title is transferred by deed, 480. 
 levy, 227. 
 an execution, 4. 
 Implied — supersedeas, what writs are, 600. 
 Improperly describing land in advertisement as ground for setting aside 
 
 sale, 415. 
 Improperly selling goods renders officer liable as trespasser, 636. 
 Improvements — purchaser's right to recover value of, 510. 
 Inaccuracies of expression in return, effect of, 381. 
 Ihaccurate retxum — how corrected, 391, 392. 
 
 Sufficiency of, 381. 
 
 When amendable, 397. 
 Inadequacy of consideration — how determined, 412, 413. 
 
 as a ground for setting aside sale, 412. 
 when presumptive of fraud in selling, 412. 
 of process will not render officer liable for insufficiency of levy, 242. 
 Inadequate price — purchasing for, with consent of parties, effect of, 523. 
 Inadequately describing land in deed avoids it, 475, 476. 
 InadmissibiUty of recitals to prove officer's power to sell, 471. 
 Inconsistent date of return, when it will be rejected, 396. 
 Incorrect, irregular — or insufficient return will not affect purchaser's title, 519. 
 Inclemency of the weather as a ground for setting aside sale, 411. 
 Incumbrance — when purchaser takes subject to, 522. 
 Incumbrances — ^^land sold subject to, 360. 
 
 Notice of alleged, as affecting purchaser's title, 572. 
 Indemnity bond — to officer, effect of, 335. 
 
 Effect of upon application of proceeds,'454. 
 
 Right to demand, 221. 
 
 When there is no implied promise of, 221, 
 Indemnifying — bond, effect of giving, 221. 
 
 Officer waives plaintiff's right to relief, 508. 
 .Indiana— homestead exemptions in, 129. 
 
 who entitled to claim, 129. 
 
INDEX. 
 
 Indiana — Continued. 
 
 homestead exemptions, how waived, 129 
 Personal property exempt in, 97. 
 Practice in regard to sale of land on execution, 302, 
 Rule in regard to designating property by debtor, 237. 
 
 levy, being satisfaction of judgmeut, 255. 
 trial of rights of property, 283. 
 Stay of execution in, 595. 
 
 Supersedeas in, how obtained if debtor unable to give bond, 602. 
 Time in which execution is returnable, 376. 
 When exemption may be waived, 97. 
 Individual creditor — will not be enjoined from levying on partnership prop- 
 erty, 617. 
 Individual partner — crMitors of have priority on his private estate, 543. 
 
 Courts of equity, when they will not interfere to restrain execution 
 
 against, 543. 
 Effect of sale under execution against, 544. 
 Execution against, 538. 
 
 Execution against, upon what property to be levied, 539, 540. 
 Execution against can not be enjoined, 543. 
 Execution against in case of dormant partnership, 543. 
 How levy is to be made against, 541. 
 How levy made on interest of, 539, 540, 541. 
 Interest in one particular asset not liable, 542. 
 Interest of, effect of sale of, 544, 545. 
 rights of purchaser of, 545. 
 purchaser takes as tenant in common, 544. 
 sold subject to partnership debts, 540. 
 that may be claimed by a debtor on execution, 541. 
 title acquired by levy on , 546. 
 title conveyed by sale of, 545. 
 how reached in Georgia, 546. 
 what property can not be sold under, 546. 
 who may purchase, 546. 
 Levy of execution against vests special property in officer, 544. 
 
 on interest of will not exclude other partners from execution, 542. 
 Liability of estate of to execution, 538, 539, 540. 
 
 Necessity for seizing the whole of the property on execution against, 542.. 
 On execution against, whole of partnership property must be seized, 541, 
 Officer not liable for making levy on interest of, 543. 
 Quantity of interest liable to sale, how ascertained, 543. 
 Reason for subjection of interest of to execution, 539, 540. 
 Reason for taking whole property on execution against, 541. 
 Rights of creditor against, 538. 
 Rights of purchaser of interest of, 544. 
 
 Rule in various states in regard to interest of liable to execution, 543,544. 
 Rule of law formerly applicable in England, 539. 
 What may be taken on execution against, 540. 
 Indorsement — by attorney of creditor as satisfaction, 466. 
 
 On execution of, no goods necessary prior to taking land, 143. 
 Of an execution, 48. 
 
 what it should state, 48. 
 Of character of parties in execution in case of principal and surety, i^i^ 
 Of levy on writ, effect of, 236. 
 Oi alias, &c., effect of on execution, 49. 
 Failure of renders execution voidable. 51. 
 Neglect of, 49. 
 Variance from body of execution, 48. 
 
INDEX. • 687 
 
 Indorsement — Continued. 
 
 Of receipt necessary on writ, 200. 
 Of levy on subsequent writs, 250. 
 Of time of receipt of writ on execution, reason for, 276. 
 Indorser — discharged by release of levy, 252. 
 
 Protected by statutes, 232. 
 Indorsing — levy upon execution, 231. 
 
 Time of receipt on writ, 225. 
 Inducement — to sell when recitals recorded as, 472. 
 Inducing — parties not to bid so that purchase may be made for benefit of 
 
 debtor, 523. 
 Indulgence — when officer found to grant, 323. 
 Infant — bid of, 318. 
 
 Information — equivalent to notice, 494. 
 Informalities — which render executions irregular, 79. 
 Injunction — as a release of levy, 252. 
 
 Causes for which it will be granted, 610. 
 Duty of sheriff in regard to, 618. 
 Effect of, 616, 617. 
 
 dissolution of, 619. 
 failure to give bond in, 617. 
 Fraud or collusion sufficient ground for granting, 6io. 
 Issue of execution for more than judgment sufficient ground for grant 
 
 ing, 610. 
 Matters insufficient to authorize court to grant, 618. 
 
 obtain, 609. 
 May be granted after loss or destruction of judgment, 613. 
 proceedings in bankruptcy, 613. 
 to prevent cloud on title, 614, 61 5. 
 
 issue of execution after statutory period, 613. 
 sale of property illegally taken on execu- 
 tion, 611. 
 sale of stranger's property, 611. 
 without appraisement, 614. 
 restrain execution of writ of possession, 615. 
 illegal sale of property, 614. 
 mortgagee from selling equity of redemp- 
 tion, 615. 
 mortgagor from levying on crops, 615. 
 stay money in hands of officer, 615. 
 when shown that execution of judgment is contrary to 
 
 equity, 612. 
 where debt is settled pending action, 612. 
 where party discovers valid defense to action, 612. 
 Nature of the writ, 6og. 
 
 Party whose property is taken to satisfy debt of another, entitled to, 611. 
 Payment of debt after judgment sufficient cause for granting, 610. 
 Reason for granting where levy is made on stranger's property, 61 1. 
 Rights of creditor revived by dissolution of, 619. 
 Stranger when entitled to, 610. 
 When it may be granted after judgment to stay executios, 609. 
 
 to restrain proceedings under execution, 609. 
 will not be granted, 618. 
 Who may obtain in N. E. States, 610. 
 Will be granted to restrain execution of void judgment, 609, 610. 
 
 judgment without notice to 
 defendant, 610. 
 Innocent purchaser— when entitled to relief in equity, 331. 
 
688 INDEX. 
 
 Instances — of errors that will not void an execution, 49, 
 fraudulent mortgages, 151, 152. 
 property fraudulently conveyed, 147. 
 
 held not liable to execution, 174 to 177. 
 sales held void for uncertainty of description, 427, 428. 
 set aside for inadequacy of consideration, 413, 414, 
 Instruction — in regard to payment of proceeds, effect of giving, 445. 
 Insufficient returns, 3S3. 
 
 levy, when ofBcer will not be liable for, 242. 
 Insurable — interest of purchaser, 364, 511. 
 Interference — of party when it defeats lien of execution, 268. 
 Intendments — made in construction of return, 385. 
 Intention — and object of capias, 20. 
 Intent — with which execution is issued is the test of its validity, 51. 
 
 of parties considered in considering officer's deed, 491. 
 Interest — conveyed by deed, 479. 
 
 And right in property not liable to execution, 155, 156. 
 In cestui que trust on personal property liable, 145. 
 
 personal property liable, 146. 
 How collected in New Jersey on execution, 48, 49. 
 In personal property that are choses in action, 155. 
 Of tenant to crop, when it may and may not be taken, 161. 
 
 when it may be sold on execution, 172. 
 Not liable to execution, 175, 176. 
 In land not subject to execution, 196, 197. 
 Of an officer will not allow him to execute a writ, 203. 
 cestui que trust, when it can not be sold, 198. 
 third parties in debtor's property, when it will not be interfered 
 
 with, 246. 
 a cestui que trust, 185. 
 
 debtor though held in adverse possession liable to execution, 186. 
 debtor necessary to a sale of his equity of redemption, 191. 
 holder of government certificate liable, 193. 
 husband how affected by levy, 182. 
 husband in land when subject to execution, 181. 
 a cestui q-iie trust in land, when liable to execution, 186. 
 mortgagor in property liable, 190. 
 person under contract of purchase liable, 192. 
 purchaser of title bond liable, 192. 
 purchaser at sheriff's sale liable, 192, 193. 
 purchaser under contract to purchase, 194. 
 debtor to be sold under vendi, 332. 
 debtor, sale of, what passes by, 370. 
 
 parties when they require the return to be amended, 398. 
 individual partner liable to execution, 538. 
 how to be levied on, 541, 
 how made liable in Georgia, 46. 
 in particular asset not liable, 542. 
 what it is that is liable to execution, 540. 
 purchaser of a tenant, 501. 
 
 separate partner not affected by levy on individual partner, 54a. 
 Due on mortgage, when purchaser liable for, 510. 
 In land, how sold, 342. 
 
 that vests in purchaser, 359. 
 
 can not be. sold on execution, 179. 
 proceeds, when pirty not entitled to, 446. 
 stock of corporation liable to sale, 562. 
 land that passes by deed to equity of redemption, 358. 
 
INDEX. 689 
 
 Interest — Continued. 
 
 that passes to purchaser of equity of redemption, 355. 
 When party entitled to on proceeds of sale, 445. 
 Which vests in purchaser where there are no redemption laws, 436. 
 Interests — in land liable to execution, 290, 291. 
 
 personal property that officer may sell, 33S. 
 That pass at a sale of personal property, 338. 
 
 Included in the words real property, lands, or real estate, 178, 179. 
 Of various kinds in real estate liable, igo. 
 That are liable to execution, 183. 
 Interested — parties only permitted to question regularity of officer's proceed- 
 ings, 403. 
 
 to give notice, 491. 
 
 when they may be appointed appraisers, 305. 
 Intermislng — property with another person's, effect of, 147. 
 Interpretation — of the maxim Pendente lite, &c., 494. 
 Introduction — of the means of enforcing the payment of debts, 6. 
 Intestate's — real estate, 187. 
 Invalid — conveyance as notice, 499. 
 
 Levy as to creditors and purchasers in good faith, 239, 240. 
 Invalidity — of process as affording, right of relief, 507. 
 Inventory — and appraisement of property, when good as a levy, 238. 
 Of property made by a debtor, effect of, 236. 
 Reasons for making, 234. 
 Investment — of proceeds of homestead exempt, 138. 
 Inverse order — of sale of real property, 351,352. 
 Iowa, homestead exemption — in, 128, 129. 
 Who entitled to claim, 128, 129. 
 What debts are paramount to the claim, 128, 129. 
 Lien of judgment in, 362. 
 Personal property exempt in, 97, 98. 
 Rule in regard to redemption of property from sale, 441. 
 Stay of execution in, 595. 
 
 Title which passes by execution sale of land, 362. 
 Who entitled to exemption, 97, 98. 
 Irregular — and void deeds, 474, 475. 
 
 Execution sale under, as affecting purchaser's title, 515. 
 Issuance of executions, 79, 
 Process, 50. 
 
 enjoining of does not prevent the issue of another execur 
 
 tion 617. 
 must be executed, 202, 203. 
 term of, how applied, 50. 
 what irregular,' 50. 
 Returns, 382. 
 Irregularities — as affecting valdity of deed, 473. 
 How taken, effect of^ 50. 
 In proceedings can not be assailed by stranger, 517. 
 
 how to be taken advantage of, 517. 
 In return as affecting purchaser's title, 518. 
 
 effect of, 382. 
 Of officer in sale of personal property, how the# affect title, 338. 
 Of proceedings as affecting purchaser's title, 512-517. 
 Reason for not allowing them to divest purchaser's title, 513. 
 Relief, how obtained against, 50. 
 
 Sufficient to reverse judgment will not affect purchaser's title, 605. 
 That prevent a deed being impeached, 483. 
 What are, 50. 
 
 44 
 
690 INDEX. 
 
 Irregularittes — Continued. 
 
 When they do not affect creditor of purchaser, 518. 
 Which are held not to affect purchaser's title, 514, 515. 
 trreg^aritiea which do not render officer liable — applying surplus to> 
 other executions in his hands, 640. 
 Collecting money on execution after return day, 640. 
 Depreciation of property after levy, 639. 
 Disobedience of plaintiff's instructions, 639. 
 Excessive levy by reason of lack of judgment, 640. 
 Levying on goods of stranger intermingled vifith debtor's, 640. 
 
 property of surety first, 639. 
 Making levy without intention of selling, 640. 
 
 sale vifhich is afterwards declared void, 640. 
 Negligence in the sale of property which has been injured, 639. 
 Neglecting to execute and return void writ, 639. . 
 Retaining possession of goods not claimed by another, 640. 
 Selling on satisfied execution without notice of its satisfaction, 64O. 
 Selling property seized by officer of another jurisdiction, 640. 
 Slight mistakes in execution of process, 640. 
 
 Where he acts within the scope of his authority without malicious, 
 intent, 639. 
 Irregularity — insufficient to avoid sale, 428, 429, 430. 
 Not to be taken advantage of by debtor, 528. 
 Of officer's proceedings can not be inquired into collaterally, 403. 
 Or omission of officer, when and how to be taken advantage of, 406. 
 Of sale, when not sufficient ground for granting injunction, 618. 
 Which will not vitiate levy, 239. 
 Irregularly — issuing writ, effect of, 50. 
 Irresponsible— person, bid of, 318. 
 
 Iron, &o., — of railroad company liable to be taken on execution, 550. 
 Issue of a ca. sa., 19, 569, 570. 
 
 upon what adjudicatiorfs, 569, 570. 
 execution — 2, 57. 
 
 after supersedeas, 65. 
 
 after statutory period may be enjoined, 613. 
 by supreme court of Missouri, 65. 
 in English practice, 30. 
 in New York, 44. 
 
 is an abandonment of an appeal, 66. 
 is a bar to statute of limitations, 58. 
 on conditional judgment, 59. 
 on justice's judgment, 65. 
 only affects the property of losing party, 3. 
 when it can not be delayed, 59. 
 when not allowed, 61. 
 
 when prevented by apparent satisfaction, 462, 463. 
 who entitled to, 63. 
 When ca. sa, may, 569, 570. 
 Of process of amercement at common law, 10, 
 Issues in trial of right of property, 284. 
 
 Issuing against— more parties than those against whom judgment is ren- 
 dered, 52. 
 one who is not a party to the action voids it, 219. 
 After death of defendant without revival is void, 81. 
 After the expiration of the stay, 64. 
 a/ias, 77. 
 Issuing execution — as preventing lien from losing its priority 266. 
 for deficiency in judgment, 62. 
 
INDEX. * 691 
 
 iBining execution — Continued. 
 
 for less than amount due on judgment and for setting 
 aside sale, 409, 
 
 actually due, effect as satisfaction, 462, 463. 
 returnable in less than the statutory time renders it void- 
 able, 51. 
 is presumed to on a live judgment, 68. 
 on satisfied judgment, effect of, 219. 
 for more than the judgment renders execution voidable, 51. 
 is a ministerial act, 66. 
 
 on judgment that is affirmed by appellate tribunal, 62. 
 upon void judgment avoids the execution, 51. 
 when compelled by mandamus, 71. 
 with leave of court, 70. 
 without" authority is irregular, 79, 80. 
 without reviving judgment, 68. 
 writ against a party whose name is written in a foreign language ii a 
 
 waiver of its lien, 273. 
 vendi, 331. 
 
 Jewelry, &c. — not exempt as wearing apparel, 113. 
 Joint debtors — when entitled to execution, 112. 
 
 Execution can not issue on separate judgments, 62. 
 
 Judgment creditors, when entitled to execution, 64. 
 
 Tenancy created by homestead, 121. 
 
 exemption of lands held in, 124. 
 
 Tenants are liable, 183. 
 Judgment — and execution as sustaining purchaser's title, 526. 
 
 Confirmation, effect of, 434. , 
 
 Date of controls amount of property conveyed by deed, 479. 
 
 Effect of its reversal on purchaser, 604, 605. 
 as validating levy, 236. 
 
 Execution, sale, and deed necessary to constitute purchaser's titl* 
 526, 527. 
 
 Governs the form of execution, 4. 
 
 How executed, 65. 
 
 How revived at common law in order to issue execution, 67, 
 
 How subjected to sale on execution, 157. 
 
 In distribution of proceeds, effect of preference, 459. 
 
 In rem, execution on, 85. 
 
 In ancient times, effect of, 8. 
 
 In rem not necessary to be revived by death of party, 329. 
 
 Is carried into effect by execution, 3, 
 
 Levy, sale, and deed, when they constitute purchaser's title, 526, 
 
 Lien -on homestead, 135, 136. 
 land, effect of, 360. 
 of as affecting title of purchaser, 499. 
 on property, what it is, 499. 
 
 No lien on homest£ad, t2i. 
 
 Obtained by fraud, when it will not affect purchaser's title, 505, 506. 
 
 Of court in regard to setting aside sale discretionary, 408. 
 
 Officer estopped to deny existence of, when, 634. 
 
 On mortgage note what estate liable to sale on, 357. 
 
 Paid prior to issue of execution, when it may be enjoined, 612. 
 
 Payable in installments, how executed, 232. 
 
 Is personal property, 144. 
 
692 ' INDEX. 
 
 Judgment — Continued. 
 
 Rendered in absence of party, when it may be enjoined, 612. 
 without notice to defendant may be enjoined, 609. 
 Revived by scire facias, 30. 
 
 Satisfaction of by levy on personal property, 252, 253. 
 Satisfied deprives officer of power to sell, 419. 
 Title vests from date of, 482. 
 Void for want of jurisdiction can not be validated by court so as to 
 
 sustain purchaser's title, 509. 
 When a justification to officer in executing process, 214, 215. 
 deed relates to, 481. 
 it controls in regard to appointment, 308. 
 
 will fail as a justification, 217. 
 necessary to be given in evidence in order to justify officer, 217. 
 not entitled to preference over unrecorded deed' or mortgage, 499, 
 preferred to unrecorded deeds, 499. 
 sufficient to take sale out of statute of frauds, 367. 
 Jndgments — at common law were to be satisfied in a year and a day, 9, 
 Judicial sale — what is, 313. 
 Junior— execution creditor, when entitled to proceeds, 451. 
 
 when surplus will be applied to, by court, 457. 
 judgment, efiect of sale of land under, 354. 
 
 purchaser under, when entitled to priority, 505. 
 writ, when levy under, superior to senior, 230. 
 Jurisdiction of court — in distribution of proceeds, 458. 
 
 necessary to sustain purchaser's title, 506. 
 
 issuance of valid writ, 201.- 
 purchaser submits himself to, 486. 
 rendering judgment, necessary to be known by pur- 
 chaser, 506. 
 Federal courts in admiralty cases, 589, 590. 
 officer in executing final process, 212, 213, 214. 
 
 when entering defendant's dwelling-house, what depen- 
 dent on, 224. 
 to sell, all that is necessary to sustain title of pur- 
 chaser, 520. 
 sale void for want of, 422, 423. 
 
 want of, in court rendering judgment, renders officer liable in 
 executing its mandates, 217. 
 Justloe's court — stay of execution in, 
 
 Attorney of plaintiff no right to stay, when, 598. 
 How obtained, 598.' 
 
 Rights of owner of personal property after stay, 598. 
 What necessary to constitute valid stay, 598. 
 When allowed, 598. 
 
 When execution will issue notwithstanding, 598. 
 When will not be allowed, 598. 
 Justice judgment — execution of, in appelate court, 65. 
 No power to award after return, 56. 
 Not bound to issue execution, when, 64. 
 Of the peace, how liable for issue of execution, 220, 321. 
 
 Kansas — ^homestead exemption in, who entitled to, 129. 
 Notice of sale of personal property in, 333. 
 Personal property exempt in, 98, 99. 
 Rule in regard to trial of rights of property, 283. 
 
INDEX. 693 
 
 Kansas — Continued. 
 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemption, 98, 99. 
 Keeping property in safe place, liability of officer for, 257. 
 Kentucky — effect of replevin bond in, 275. 
 
 Homestead exemption in, when allowed in, 129. 
 
 Notice of sale of personal property in, 333. 
 
 Personal property exempt, 99. 
 
 Practice in, in order to prevent judgment from becoming dormant »ft« 
 
 issue of execution, 68. 
 Protection to officer in case of indemnity, 221. 
 Rule in regard to interest of joint tenant?, 183. 
 
 defendant's death after issue of execution, 329. 
 levy on land, 293. 
 
 redemption of personal property from sale, 441. 
 sale of equity of redemption, 356. 
 seizure of personal property, 142. 
 Stay of execution in, 595. 
 
 Statutory enactments in regard to levy on crops, 161. 
 Stock in railroad company regarded as real estate in, 564. 
 Time in which execution is returnable, 376. 
 Kinds of — ancient English executions, 8. 
 
 executions in England, 7. 
 Executions, 2. 
 
 during the reign of Edward III., 14. 
 Interests and estates liable to execution, 187, 188. 
 Money not liable to execution, 160. 
 
 Property officer is not required to take possession of, 235. 
 Return to execution, 374. 
 Held sufficient, 381. 
 insufficient, 383. 
 Knoirledge as notice — 490. 
 
 Of circumstances which is sufficient notice, 490. 
 Of invalidity of process as affording relief to purchaser, 507. 
 Of prior unregistered conveyances as affecting purchaser's title, 500. 
 Of purchaser of the location of land will not, sale being avoided for un- 
 certainty, 426. 
 Of purchaser, what sufficient cause to set aside deed, 418. 
 When it will not be imputed to purchaser so s.s to prevent his obtaining 
 relief, 507. 
 
 Ii. 
 
 Laches — ^what will prevent an execution being quashed, 621. 
 
 When none can be implied, 68. 
 Ziand — appraisement of, 303. 
 
 Bound by judgment lien, from what date, 275. 
 
 Can not be legally sold for fees, when, 198. 
 
 Can not be sold after return day, 327. 
 
 Everything that passes with presumed to be included in appraisement, 
 307. 
 
 How made subject to execution, 4. 
 
 How sold by courts of bankruptcy, 359. 
 
 In adverse possession, eSfect of its sale, 364. 
 
 In possession of tenant does not entitle purchaser to crops and 
 fixtures, 524. 
 
 In possession of tenant, effect of its sale, 365. 
 
 Levy on, 287. 
 
694 INDEX. 
 
 Iiand — Continued. 
 
 Liable under a fi. fa., 22. 
 Not liable at common law, 3. 
 
 reasons why, 10. 
 Of several defendants, how to be sold, 349. 
 Quantity passing at sale to be ascertained by the return, 386. 
 
 sold, how ascertained, 370. 
 Sale of, 343. 
 
 how made, 344. 
 
 as affecting purchaser's title when there is no personal property 
 
 514. 
 Sold prior to issue of execution,, how subjected to levy, 35 1. 
 Subject to the king's execution, 8. 
 
 ■ execution, 178. 
 Surplus proceeds of, how considered, 460. 
 That could not be claimed as a homestead, 123. 
 Transferred prior to levy, how subjected to execution, 351. 
 What bound by judgment in Virginia, zgg. 
 What can be sold on execution, 179. 
 What passes with to purchaser at execution sale, 524. 
 When it can not be sold by officer, 207. 
 
 When it may be taken without executing personal property, 293. 
 When subject to levy and sale though sold under an agreement between 
 creditors, 366. 
 Lands, &c. — when they can not be sold separate from the franchise, 552. 
 Definition of, 178. 
 Devised not liable to executio«, 197 
 Fraudulently conveyed, 186. 
 Held by tenants in common, 180. 
 Held in trust, 185. 
 How bounds 35, 36, 37 38, 39. 
 How made liable, 14. 
 How sold in various states, 33-39. 
 Levy on, when it has priority, 264. 
 
 debtor can not defeat, 292. 
 Liable to execution in Admiralty cases, 591. 
 Not subject to execution, 196. 
 
 Purchased and conveyed to third persons, how liable, 186: 
 To be extended, 17. 
 Were bound to prevent their alienation and subject only to the king'c 
 
 execution, 9. 
 When subjected to execution, 12. 
 Landlord's claim — when entitled to preference in distribution of pro- 
 ceeds, 446. 
 Latest — period allowed for service of execution, 209. 
 Law — ignorance of no excuse, 219. 
 
 In regard to sale in market overt not applicable in this country, 34c* 
 
 Libaries exempt, 119. 
 
 Policy of in regard to execution sales, 315. 
 
 as to who may not purchase at execution sales, 321. 
 in regard to rights of party under execution, 405. 
 
 accuracy of description of property sold, 427. 
 sustaining judical sales, 506. 
 exempting revenue of municipal corporations from executiop 
 
 565, 566. 
 regarding rights of purchasers under judgment after revef 
 sal, 605. 
 Presumptions of in favor of purchaser, 520. 
 
INDEX. 695 
 
 ~Iiaw — Continued. 
 
 Reason of for requiring bids at execution sales, 317. 
 What gbverns the sale of lands, 344. 
 Laws — do not recognize but one officer in executing a writ, 202. 
 
 Which control the execution of final process from Federal courts, 
 580-585. 
 Xawful — process is a protection to officer, 215. 
 Lease and Fixtures — when they may be sold separately, 342. 
 
 Delivery of possession under,, should be shown by the return, 379. 
 Effect of making prior to sale on execution, 365. 
 Made between sale and execution of deed, how extinguished, 480. 
 When it will not distribute proceeds, 400. 
 Leave of court — when unnecessaiy to amend return, 397, 398. 
 Of court to issue execution during a stay, 70. 
 
 when necessary, 70. 
 not necessary to issue execution after dissolution of injunc- 
 tion, 617. 
 when necessary to issue against the estate of a deceased 
 person, 76. 
 Leasehold — estates, when not liable to execution, 196. 
 
 To amend, effect of, 402. 
 Leaving property — with debtor as waiving lien of execution, 271. 
 Legal right — of defendant when it passes by sale, 360. 
 
 Sale, when can not be made, 419. 
 Legality of sale — decided by confirmation, 433. 
 
 how affected by advertisement, 309. 
 -Legislation — can not affect plaintiff's right to issue execution, 79. 
 Legislative — authority necessary, to subject franchise to sale, 551. 
 -Legislatures — when they may authorize process to run over the state, 77, 
 Length of time — for which estates for years endure of no consequence M 
 
 regards sales on execution, 171, 172. 
 Lessee's — interest in personal property, when it may be sold, 153. 
 Lessor's — interest in growing crops, liable to execution, 161. 
 I Levaria fa. — how and when to be used, 8. 
 Command of, 22. 
 Definition of, 24. 
 Use of in olden times, 23. 
 Use of in modern times, 23. 
 Use of in Pennsylvania, 23. 
 ^Levied — return of by officer to writ of vtndi does'not vitiate it, 333. 
 Levies — ineffectual in satisfaction, 465. 
 
 That are valid and that are void, 238, 239. 
 That are excessive and those that are not, 241, 242. 
 That have been held excessive, 243. 
 That inure to the benefit of subsequent creditors, 244, 
 That are void on estate of husband, 182. 
 When they have priority over homestead rights, 139. 
 3Levy — After receiving indemnity, bond, 221. 
 
 After commencement of bankrupt proceedings, effect of, 240 
 After death of defendant, effect of, 240. 
 After return day, effect of, 240. 
 
 Against individual partner can not be enjoined, when, 543. 
 Against interest of individual partner, when it can not be disturbed 545. 
 And sale is the consummation of a judgment, 4. 
 As affecting liens, 266. 
 As affecting priority of rights, 264. 
 Before death of parties does not affect sale, 328. 
 ■Can not be made after return day 209. 
 
696 INDEX. 
 
 Zievy — Continued. 
 
 Can not be defeated by dissolution of partnership, 543. 
 
 Definition of, 228. • 
 
 Effect of on exempt property, 92. 
 
 Effect of as satisfaction of judgment, 232, 253. 
 
 Effect of on writs from State or Federal courts, 259. 
 
 For debt due by firm, to what time it will relate so as to protect the 
 
 creditor, 547. 
 Form of on land itself, 2go. 
 How made, 228, 233. 
 
 How made to be valid against individual partner's interest, 539. 
 How made when officer has several writs, 231. 
 How made on judgment payable in installments, 232. 
 How preferred, 231. 
 
 How to be made in absence of debtor, 229. 
 How to be made on land in case of a sale of part of it, 351. 
 If originally sufficient, when officer will not be liable for making an 
 
 additional one, 242. 
 In case of dormant partners, 543. 
 
 Invalid as to creditor and purchaser in good faith, 239, 240. 
 Is an essential element of execution sales, 314. 
 Maybe made, when, 231. 
 Means the execution of a writ, 200. 
 
 Necessary to entitle officer to bring action for property, 246. 
 Necessary to sale of personal property, 336. 
 Of execution against individual partner's interest, 538. 
 Of execution against partnership carried on under different names, 549^ 
 Of execution on land conveyed prior to its issue, 351. 
 Of execution on separate property of partner in favor of firm creditor^ 
 
 549- 
 Of execution of land held by tenants in common, 180. 
 On land — effect of, 287, 293. 
 how made, 287, 
 in New England states, 295. 
 
 presumption that there is no personal property, 521. 
 that is void for uncertainty of description, 291. 
 to what time it relates, 293. 
 what is valid one, 287. 
 when it can not be defeated by debtor, 292, 293. 
 
 invalidated by parol evidence, 293. 
 when should be shown by return, 379. 
 On an equity of redemption in the New England states, 354, 355. 
 On debtor's interest when he has none, as satisfaction, 464. 
 On personal property, effect of, 244. 
 On personal property, 227. 
 On proceeds of an execution, 158, 159. 
 On portion of property only, effect of, 239. 
 On property places it in custody of the law, 246. 
 On personal property as satisfaction of judgment as regards the rights oft 
 
 third persons, 254. 
 On real estate, 287. 
 
 how made in states where a sale is the result of a levyi, 
 289. 
 
 Louisiana, 289, 
 Maryland, 289. 
 how made, 39. 
 no satisfaction, 464. 
 On property not sold, effect of as satisfaction, 464. 
 
INDEX. 697 
 
 tiSi'TY— Continued. 
 
 On property not subject to execution, effect of, 240. 
 On stranger's property, effect of, 240. 
 
 will not be justified by a legal execution, 217. 
 On surety's property may be made, wiien, 232, 
 Prima facia, effect of, 231. 
 Presumption in favor of, 521, 
 Setting aside of, 241. 
 That is void, 240. 
 
 To be made so as to give time to sell, 209. 
 To be indorsed on execution, 231. 
 Under irregular execution, effect of, 80. 
 Under State courts, vihea. preferred to claim of assignee in bankraptcT, 
 
 279. 
 Under two writs, when oldest will be presumed to be satisfied, 254. 
 Void as against creditors, when, 240. 
 Without seeing property, effect of, 240. 
 What is a, 228. 
 What will avoid, 239. 
 
 What will not justify officer in refusing to, 229. 
 When it can be made on mortgaged personal property, 149, 150. 
 When it can not be made, 20g. 
 
 When it may be made, notwithstanding injunction, 233. 
 When it may be controverted, 237. 
 
 When it may be good against debtor and not against stranger, 237. 
 When there can be none, as against third persons, 238. 
 When it will be sustained, 239. 
 When it may be withdrawn, 244. 
 
 When it remains good, though the judgment becomes dormant, 246. 
 When it will not issue to benefit of subsequent creditors, 250. 
 When not even prima facit satisfaction of execution, 255. 
 When it may be released by creditor without impairing his lien, 256. 
 When it proves of no avail in satisfaction, 256. 
 When necessary to bind personal property, 265. • 
 
 When it will not be held fraudulent, 274. 
 When necessary to ascertain quantity of land sold, 370. 
 When a satisfaction, 464. 
 When deed relates to time of, 481. 
 Zievying — in ancient times, 8. 
 
 On more property than is necessary and selling only sufficient, effect 
 
 of, 243. 
 On stock of corporation, 561. 
 Uability of — ^bidder for purchase money, 318. 
 corporation, 550. 
 each of several defendants, 233. 
 estate of purchaser to be divested under redemption' laws, 3(3. 
 
 for years to execution, 171. 
 judgment creditor, 638. 
 justices of the peace, 638. 
 money to seizure on execution, 157, 158. 
 Zilability of officer — action that lies against officer for refusing to pay ove» 
 proceeds, 633. 
 After return of satisfaction, 374, 375. 
 At common law, 630. 
 Effect of indemnifying bond upon, 630. 
 Extent of for neglect to make sufficient levy, 625, 626. 
 For designating plaintiff's instructions, 627. 
 excessive levy, 242. 
 
698 INDEX. 
 
 Zilabillty of officer — Continued. 
 
 For failing to make deed, 634. 
 execute writ, 627. 
 pay over proceeds, amount of, 634. 
 
 failure to make money on execution, 628. 
 return in New Jersey, 631. 
 
 failing to sell, 335. 
 
 false return, 388, 631. 
 
 failing to apply proceeds on an execution, 452. 
 
 false return of non est inventus, 631. 
 
 falsely returning nulla bona, 631. 
 
 failure to comply with statutory requirements, 622. 
 
 insufficient return, 383, 632. 
 
 irregular proceedings, 624. 
 
 losing property, that remains in debtor's possession after levy 858. 
 
 loss by failure to advertise property, 628. 
 
 making defective levy, 625. 
 
 money collected under color of office, 634. 
 
 making insufficient levy, 625. 
 
 making excessive levy, 629. 
 
 money stolen, 446. 
 
 making return of sale where he receives no money, 633. 
 
 misusing property in his care, 257. 
 
 neglect to levy, 625. 
 
 neglect to levy, when it occurs, 625. 
 
 neglecting or refusing to pay over proceeds of sale, 633. 
 
 neglect to levy on personal property first, 626. 
 
 negligence or want of skill, 623. 
 
 rule in regard to, 623, 624. 
 
 in care of property after levy, 628. 
 
 neglecting to sell, 629. 
 
 collect execution, 205. 
 or failing to return execution, 630. 
 
 parting with property without receiving proceeds, 633. 
 
 paying over surplus proceeds, 634. 
 
 proceeds of sale, 445. 
 
 whether collected or not, 447. 
 
 selling at different place from that advertised, 629. 
 
 selling land en masse, 628. 
 
 selling more than is necessary to satisfy the writ, 316, 629. 
 
 selling property not subject to execution, 629. 
 
 selling exempt propeity, 629. 
 
 selling entire property on execution against one co-partner, 546^ 
 
 selling after tender of amount sufficient to satisfy execution, 450. 
 
 various matters under levy, 626, 627. 
 How waived by parties, 631. 
 In case of misapplication of proceeds, 632. 
 In complying with plaintiff's instructions, 211, 212. 
 In case of sacrifice, 628. 
 
 In not complying with plaintiff's instructions, 211, 212. 
 Resulting from execution of final process, 622. 
 Rule governing the amount of, 626. 
 To parties, 622, 623. 
 
 To whom, for neglect to levy on personal property, 627. 
 To whom, for failure to return, 630. 
 To true owner of property, 230. 
 Trial of rights of property as affecting, 630. 
 What is necessary to prove, 633. 
 
INDEX. 699 
 
 Iilability of officer — Continued. 
 
 What is sufficient evidence of, 627. 
 When action may be brought against him for, 627. 
 Where debtor has sufficient property to satisfy execution, 230. 
 Xiability of other parties — 638. 
 
 Xiability of party — for issuing execution against goods of stranger, 219. 
 For setting void process in motion, 638. 
 Where officer is not liable, 638. 
 Of plaintiff for acts of his assignee, 220. 
 Of plaintiff vfhen he consents and adopts officer's acts, 220. 
 Of plaintift' to purchaser, for purchase money, 507. 
 Of purchaser for rents, 510. ' 
 
 Of purchaser under void judgment, 420. 
 Of real estate to execution in the United States, 33, 34. 
 Of stranger, 220. 
 Of surety, 220. 
 Ijiberal construction — of common law rule as to fixtures, 166. 
 rule of construction of officer's deeds, 477. 
 Liberality to be used by courts in allovfing amendments to be made to 
 returns, 397. 
 Xiea — attorney's, no execution can issue for, 64. 
 Created by irregular executions, 80. 
 Definition of, 153. 
 
 Execution issued for purpose of is fraudulent, 274, 275. 
 Not divested by an adjourned sale, 366. 
 
 Of — attachment creditor, when entitled to priority in distribution of 
 proceeds, 447. 
 attachment, when preferred over homestead rights, 139, 
 corporation on stock, priority of over levy, 562. 
 dormant judgment as to proceeds of execution, 452. 
 execution — 76, 77, 264. 
 
 after return day, 278. 
 against married women, 269. 
 attaches to what property, 277. 
 from United States courts, 260. 
 how it may be lost, 267. 
 ■in Alabama, 267. 
 in Illinois, 256. 
 in Kansas, 266. 
 in Missouri, 266. 
 in New Jersey, 269. 
 in South Carolina, 266. 
 
 not destroyed by trial of rights of property, 285. 
 priority of, 263. 
 
 waived by neglecting to levy, 271. 
 when not affected, 265. 
 when created by delivery, 264. 
 Judgment — 18, 266. 
 
 effect of, 499. 
 
 on lands superior to execution lien, 265. 
 on property, what it is, 499. 
 on land as affecting its alienation, 275. 
 on land, what it is, 293. 
 how preserved by levy of execution, 294, 
 levy, how waived or abandoned, 266. 
 pavmee or pledgee, when it must be discharged, 153. 
 plaintiff, how extinguished, 359. 
 senior judgment, when diverted in favor of a junior, 36a, 
 
700 INDEX. 
 
 Iiien — Continued. 
 
 Of state on property of corporation, when it has priority, 551. 
 vendor, how affected by sale of land, 364, 365. 
 protected at execution sales, 195. 
 On land dates from rendition of judgment, 265. 
 On property, how destroyed by levy, 245, 246. 
 On real estate, how created, 267. 
 
 is not acquired by execution, 289. 
 On two funds, how treated in equity, 172. 
 Validity of, how tested, 274. 
 
 When it can not l»e created without possession of property, 267. 
 Iiiens — against land, how discharged by sale under execution, 358. 
 And claims when not affecting purchaser's, title, 503. 
 Of parties transferred from land to surplus proceeds, 456, 457. 
 On various articles of personal property, 265. 
 Sales that are not subject to, 361. 
 Subordinate to judgment, effect of, 503. 
 That are discharged by sale of land under execution, 358. 
 When entitled to prior payment out of proceeds of sale, 455. 
 When purchaser takes subject to at execution sales, 358. 
 Which an execution sale does not divest, 359. 
 Ijienholder — when not entitled to priority in distribution of proceeds, 436. 
 Life estate — of debtor, effect of sale of, 364. 
 
 husband, 181. 
 Life insTirance — policies, exemption of, 119. 
 Life of execution, 32. 
 Life of the law — is an execution, i. 
 limitations — statute of, at cpmmon law, 9. 
 
 no bar to action for false return, 388. 
 when they commence running against an execu- 
 tion, 58. 
 Lis pendens — as notice, 493. 
 Living judgment — creditors, only required to issue execution to preserve 
 
 lien, 270. 
 Lords' courts — how judgments were executed in, 8. 
 Losing — wasting, or destroying personal property after levy, when satisfactioni 
 
 of judgment, 254. 
 Loss — of inventory or memorandum of levy, when it may be shown by 
 parol, 237. 
 
 for which officer is not responsible in care of property, 257. 
 Losses — after the collection of money on execution for which ofiScer is 
 
 liable, 446. 
 Lost — executions, practice in case of, 79. 
 judgment, execution on, 60. 
 return, how proven, 396. 
 Louisiana — buildings, when not liable to execution, 197. 
 
 Homestead, exemption in, and who entitled to, 129, 130. 
 
 Land in, when not liable, 196. 
 
 Personal property exempt in, gg, 100. 
 
 Rule in regard to application of proceeds, 456. 
 
 making levy on real estate, 289. 
 officer's return as evidence, 394. 
 recitals in deed, 472. 
 right of seizure and sale, 333. 
 sale of land on execution, 302. 
 sale of real estate, 366. 
 Sales in, where to be made, 311. 
 Time in which execution is returnable, 376. 
 
INDEX. 701 
 
 IiOulalana — Continued. 
 
 Title which purchaser obtains at execution sale, 366. 
 
 Who entitled to exemptions, 99, 100. 
 Iiuxuries — not exempt as househhold furniture, 113. 
 
 M. 
 
 Magna Charta — required to executions against personalty before subjecting 
 
 lands, 8. 
 Maine — levy on equity of redemption in, 356. 
 Personal property exempt in, 100, lOl. 
 Requisites necessary to vest title of creditor in, 298. 
 Sale of equity of redemption in, 356. 
 
 Statutory provisions in regard to redemption of property from sale, 443. 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemption, 100, lOl. 
 Making — an execution returnable in less than statutory time, Sffect of, 52. 
 
 thirty in place of sixty days voids it, 83. 
 levy on real estate, 39, 288. 
 
 in name of third party, effect of, 240. 
 return by mail, 378. 
 sale under appraisement laws, 308. 
 Mala fide — purchaser who is, 502. 
 
 Malice — when hot necessary to prove, in order to render party causing execu- 
 tion to issue liable, 2ig. 
 
 when officer is liable for, 635. 
 Malicious — conduct of officer in executing writ, punishable, 208. 
 Mandate — of an execution, 43. 
 
 commands a levy, 228. 
 
 must be obeyed until otherwise ordered, 230. 
 requires its return, 372. 
 of a writ must be complied with, in order to execute it, 200. 
 Mandamus, 564. 
 
 Against municipal corporation, how executed, 564, 565. 
 Execution of writ of, 565. 
 
 Is execution to issue against municipal corporations, 564. 
 When it can not be interferred with, 565. ' 
 
 will be issued, 565. 
 
 is the principal remedy of debtor, 565. 
 will issue against counties, 566. 
 proper to compel issue of execution, 71. 
 
 remedy to enforce collection of judgment against municipal 
 corporations, 564. 
 to issue against municipal corporations, 564. 
 Manner and mode — of executing final process of Federal courts, 580-585, 
 In which courts act in the distribution of proceeds, 460. 
 personal property is to be sold by officer, 340. 
 Of conducting and making appraisements, 303. 
 Manuscript — liable as personal property, 145. 
 Marshal — duty of, in making appointment, 587. 
 
 When he may sell without appraisement, 587. 
 Married -women — execution against, 43. 
 
 form of, 43. 
 ' requirements of, 43, 
 
 Maryland — personal property exempt in, loi. 
 
 Practice in regard to sale of land on execution, 302 
 Rule in regard to making levy on real estate, 289. 
 
702 INDEX. 
 
 Maryland — Continued. 
 
 Stay of execution in, 595. 
 Who entitled to claim exemption in, 101. 
 Massachusetts — homestead exemption in, 13a. 
 
 Notice of sale of personal property in, 334. 
 Personal property exempt in, loi. 
 Rule in regard to husband's interest in lands, 181. 
 property of joint tenants, 180. 
 crops passing to purchaser, 524. 
 Statutory provisions in regard to redemption of property from sale, 443, 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemptions in, loi. 
 
 and what necessary to claim homestead, 130. 
 Material variance — in deeds and records, as notice, 499. 
 Matters — affecting distribution of proceeds, 461. 
 Arising from levy on personal property, 259. 
 Equivalent to a levy, 236. 
 
 For which courts are to refuse confirmation of sale, 433, 434. 
 execution will and will not be quashed, 620, 621. 
 be stayed or superseded, 603, 604. 
 superseded, 609-619. 
 levy will be set aside, 241. 
 return will be quashed, 397. 
 returns have been amended, 400, 401. 
 sales will be set aside, 411. 
 
 may be set aside, how they affect deeds, 474. 
 In a return which can not be contradicted, 390. 
 Indicating fraudulent sales, 339, 340. 
 
 Irregularly perfoi-med by officers affecting validity of deed, 473, 474. 
 Not necessary to be stated in a return, 380. 
 Of proceeding which prevent purchaser from obtaining title, 420, 421. 
 
 which a return is conclusive evidence, 292, 293. 
 Peculiar to the N. E. States, 298, 299. 
 Prima facie within the power of the court, justify an officer in executing 
 
 its process, 216. 
 Requisite to take a sale out of the statute of frauds, 366, 367. 
 Relating to stay of execution in justice's courts, 597, 598. 
 Relating to executioh of process against separate partner, and against 
 individual partner, in favor of the firm and individual creditors, 
 
 338-349- 
 Relating to proceedings on execution which the law presumes were at- 
 tended to by the officer, 321, 322, 323. 
 Sufficient to set sale aside, 408, 409. 
 That are amendable by courts, 53. 
 
 prevent judgments from becoming dormant, 68. 
 
 parties from claiming protection as innocent or bona JUU 
 purchasers, 488, 489. 
 Which are regarded as no satisfaction, 464, 465. 
 
 deprive debtors of the benefits of exemption laws, 93. 
 
 deprive execution of its priority, 268, 269. 
 
 destroy or waive lien of execution, 271, 272. 
 
 estop a debtor from questioning a purchaser's title, 368, 369. 
 
 justify an officer in returning an execution nulla bona, 386, 387. 
 
 may be shown by officer outside of his return, 392. 
 
 may be investigated by court in distributing proceeds, 459. 
 
 render levy on land void, 2gi, 292. 
 
 sales of personal property fraudulent, 339. 
 sales void, 425, 426. 
 
INDEX. 703 
 
 Matters — Continued. 
 
 Which render sales void for want of jurisdiction, 422, 423. 
 but not voidable, 410. 
 deeds void, 474, 475. 
 officer liable for trespass, 635, 637. 
 executions irregular, 79. 
 executions void, 81, 82. 
 levy void, 240. 
 will and will not render levy excessive, 242. 
 release levy, 252. 
 prevent a levy from being satisfaction, 256, 257. 
 not avoid levy on land, 2go, 291. 
 not affect lien of execution, 265. 
 not affect title of purchaser, 505. 
 Slatteri which do not render officer liable in actions against him — foi 
 apply surplus to other executions in his hands, 640. 
 For coUecting money on .execution after return day, 640. 
 depreciation of property after levy, 639. 
 excessive levy by reason of lack of judgment, 640. 
 levying on goods of stranger intermingled with debtors, 640. 
 levying on property of surety first, 639. 
 making levy without intention of selling, 640. 
 making sale which is afterwards declared void, 640. 
 neglecting to execute and return void process, 639. 
 negligence in the sale of property that has been injured, 639, 
 retaining possession of goods not claimed by another, 640. 
 selling on satisfied execution, without notice of satisfaction, 6*40. 
 selling property seized by an officer of another jurisdiction 640. 
 slight mistakes in execution of process, 640. 
 Where he acts within the scope of his authority without malicioui 
 
 intent, 639. 
 Where he obeys plaintiffs instructions, 639. 
 wra-j-ima applicable to executions — 
 
 Boni judicis est judicium sine dilatoni mandori executionl, j. 
 
 Debet sui, &c., 223. 
 
 Se minimis, &c., 423. 
 
 Ea qua in curia nostra, &c., 5. 
 
 Zizecutio est finis et functus legis, 5. 
 
 juris non habet injuriam, 5, 573. 
 est executio juris secundem judicium, 5. 
 Emptor emit, &c., 321. 
 Fortior est custodia, 247. 
 Favorabiliores sunit executiones aliis, &c., 8. 
 Juris effectus in executione consistet, 5. 
 Obedentia est legis, 216. 
 Omnia rite esse acta, 5. 
 Param est latain, &c., 5. 
 Pendente lite, &c., 499. 
 Prosecutio legis est gravis, &c., 5. 
 Qui prior est, &c., 5, 262. 
 Qui jusse judicis, 218. 
 Quilibet potest, &c., 316. 
 Vigilantibus, Ac, 5, 274. 
 Means of obtaining the fruits of a judgment is by execution, 1. 
 Meaning of — exemption laws, 87. 
 
 Facts stated in return, how ascertained, 385, 386. 
 
 Return nulla bona 386. 
 
 The word seize iij action for false return, 388. 
 
704 INDEX. 
 
 Measure of damages for failing to return writ, 380. 
 
 execute writ, 625. 
 making insufficient levy, 625, 626. 
 Measures which courts will take to enforce execution of their process, 260. 
 Memorandum — necessary to take sale out of the statute of frauds, 366. 
 Of levy, 236. 
 
 goods as against debtor, 237. 
 Merchandise — how and when exempt, 118, 
 Method — of enforcing execution in the King's court, 8. 
 executing final process on land, 301. 
 reaching mortgagor's interest in land, 190. 
 reviving judgments, 69. 
 selling equitable interest in real estate, 143. 
 Michigan — ^homestead exemption in, and who entitled to, 130. 
 Personal property exempt in, 102. 
 Rule in regard to notice from parties, 491. 
 
 redemption of property from sale, 439. 
 Return by deputy, when good, 377. 
 Statutory provisions relating to redemptions, 442. 
 Stay of execution in, 595. 
 
 Statutory enactments relating to levy on crops, 161. 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemptions, 102. 
 Rule in regard to right to redeem from execution sale, 192. 
 Minnesota — homestead exemption in, 130. 
 Levy in, 236. 
 
 Personal property exempt in, 102, 103. 
 Statutory provisions in regard to redemption, 442. 
 Who entitled to claim exemption, 102, 103. 
 Minuteness of recitals not essential to validity of deed, 471. 
 Ministerial duty of officer necessary to exlecute deed, 200. 
 Misapplication of process, when it renders officer liable for trespass, 635, 636. 
 Miscellaneous articles, exemption of, 119. 
 Miscalculation of officer no ground for setting aside sale, 424. 
 Misfeasance — liability of officer for, 626. 
 
 Misdescription in return of appraisers as affecting levy on land, 290. 
 Misnomer in process, when it renders officer liable for trespass, 636. 
 Misrecital — as affecting deed as evidence, 483. 
 Which will not avoid deed, 471. 
 In execution, effect of, 52. 
 Misrepresentation — as affecting sales, 417. 
 
 Mississippi — homestead exemption in, at what date applicable, 131. 
 Personal property exempt in, 103, 104. 
 Kule in regard to sale of equity of redemption, 192. 
 vendee's Interest, 195. 
 proceeds in case of indemnity, 455. 
 application of proceeds among several executioD 
 creditors, 453. 
 Requisites necessary to title of creditor in, 298. 
 Statutory provisions in regard to redemptions, 442. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 
 What execution entitled to priority in distribution of proceeds, 451. 
 Who entitled to claim exemption in, 103, 104. 
 Missouri — deed, when inadmissible as evidence in, 483. 
 Homestead exemption in, 131. 
 Issue of execution by Supreme Court in, 65. 
 Lien of execution in, 266, 
 
INDEX. 705 
 
 IMiSBOuri — Continued. 
 
 Personal property exempt in, 104. 
 Rule in regard to acknowledgment of deeds, 472, 473. 
 execution of deed, 470 
 
 application of proceeds among several execution credi- 
 tors, 453. 
 appraisement, 307. 
 postponement of sale, 324. 
 verdict of jury at trial of right of property, 2S3. 
 Sales in, where to be made, 311. 
 Who entitled to claim exemption in, 104. 
 Mistake — in entry of satisfaction, cause for issuing alias execution, 78. 
 In return, to be corrected by amendment, 397. 
 In style of court, effect of, 52. 
 
 Or misapprehension of parties as to time of sale, when sufficient to set 
 aside sale, 414. 
 Mistakes — in a deed, when they will not vitiate it, 478. 
 Mistaken — entry of satisfaction as to purchaser's title, 505. 
 Mode of — compelling officer to sell, 335. 
 
 enforcing debts in ancient times, 6. 
 levy on real estate prescribed by statute, 287, 288. 
 procedure to take a sale out of the statute of frauds, 366. 
 seizure of stock of corporations govered by statutes, 562. 
 in which final process is tobe executed on land, 344. 
 Modes of — levy that have been held good, 238. 
 Modification — of doctrine relating to protection of purchasers, 608. 
 
 the laws relative to suits by elegit, 18. 
 Money — collected on execution, how disposed of after, 379, 380. 
 Commanded to be made by execution, 4. 
 
 Collected on execution by officer, disposal of, 445. ' , 
 
 presumed to have been paid to plaintiff, 
 462. 
 Deposited in bank, when it can and can not be taken, 160. 
 How to be disposed of on execution, 201, 202, 
 Loaned to an officer, when it can not be levied on, 159, 160. 
 Return of officer conclusive as to amount of, 392. 
 Tender to officer, effect of, 450. 
 
 The proceeds of sale, duty of officer in regard to, 444, 445. 
 To whom to be tendered, in order to redeem, 438. 
 What is under the redemption laws, 438. 
 When pres'imed to be collected, 522. 
 When it is and is not liable, 157. 
 Mortgage — bond of railroad company, where liable to execution, 561. 
 Effi=ct of, where two or more persons purchase the land, 511. 
 Purchaser, when liable for, 510. 
 
 Validity of, can not be contested by purchaser of equity of redemp- 
 tion, 356. 
 Mortgages— providing for impossible time of payment leaves no title in 
 mortgagor liable to levy, 154, 155. 
 
 Sale of land under one or two of same date, 362. 
 That are fraudulent, 151, 152. 
 
 When fraudulent transfer, no right as against an execution, 151. 
 Estate in America, 189. 
 Mortgagees — rights of, under sale of equity of redemption, 355. 
 Mortgaged property — rule in regard to seizure of, 149, 150. 
 sale of, 341. 
 
 why made subject to execution, 354. 
 Mortgagor's — interest, when it can not be taken, 154. 
 
 45 
 
7(.i6 INDEX. 
 
 Mortgagor's — Continued. 
 
 Interest after forfeiture on personal property can not be takeDv 
 
 154, 155- 
 
 Rights after foreclosure and sale, 363. 
 
 under a sale of equity of redemption, 358. 
 Mortgaging land fraudulently leaves it liable, 1S7. 
 Motion — for deed, 467. 
 
 For relief, when to be made, 407. 
 
 Necessary to set aside levy, vfhen, 241. 
 
 To set aside sale should specify what, 408. 
 
 To quash execution, how it is made, 6ig. 
 
 To quash will be entertained during session of court in place of super' 
 sedeas, 604. 
 
 When it may be made to release property levied on, 248. 
 Movable fixtures — considered personal property, 166. 
 
 When they are liable to execution, 165, l65. 
 Municipal corporations — executions against, 564. 
 
 Exemption of revenue of, 565. 
 
 How compelled to satisfy their debts, 564. 
 
 Mandamus against can not be interfered with by other courts, when, 565. 
 is final process of courts against, 565. 
 is the remedy of creditors against, 565. 
 
 Nature of process against, 564. 
 
 Nature of writ of mandamus against, 565. 
 
 Policy of the law in regard to exempting revenue of, 565, 566. 
 
 Principles of law of, applicable to, 564. 
 
 Principal process against in Federal courts is mandamus, 565. 
 
 Revenues of, when they can not be seized on execution, 565. 
 
 Rule applicable to in execution of final process against, 564. 
 
 Statutory provisions in regard to executing writs against, 564. 
 
 Universal rule in regard to executions against, 564. 
 Municipal lands of city, when not liable, ig6. 
 Musical instruments — where and when not exempt, 114. 
 
 N. 
 
 Name of ofiScer, when it may be inserted in writ of possession, 529. 
 Nature — and form of the judgment governs the form of the execution, 42. 
 object of vendi, 26, 27. 
 
 the writ of injunction, 609. 
 the writ of hab. fa. pos., 26. 
 origin of executions, i. 
 Of action for trial of right of property, 282. 
 
 controls the form of the execution, 4. 
 an elegit, 23, 24. 
 equity of redemption, 354. 
 executions in ancient times, 9. 
 mortgagee's title, 354. 
 the writ of possession, 529. 
 the writ of vendi, 331. 
 
 title acquired by purchaser under redemption laws, 363. 
 writ of mandamus when issued by Federal courts against municipal 
 
 corporations, 565. 
 writ of supersedeas, 599, 600. 
 Nebraska — homestead exemption in and who entitled to, 131. 
 Personal property exempt in, 104, 105. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 
INDEX. 707 
 
 Nebraska — Continued. 
 
 Who entitled to claim exemption, 104, 105. 
 Necessary— definition of the word as applied to exempting household 
 furniture, 113 
 Qualifications of appraisers, 304, 305. 
 Intendments in regard to levy, 239. 
 Necessity for determining whether the court has authority to issue a writ, 218. 
 return being complete, 380, 381. 
 setting forth the performance of all statutes required by 
 
 officer, 378. 
 strict compliance with the laws in acknowledgment of 
 deed, 473. 
 of acknowledgment of the satisfaction of a judgment at common 
 law, 10. 
 ascertaining power of officer to sell, 419. 
 execution conforming to the judgment, 42. 
 reviving judgment prior to issuing execution, 68. 
 refiling or re-recording mortgages, 149. 
 taking entire property of partnership in making levy on interest 
 
 of individual partner, 541. 
 the statute of Acton Burnell, 16. 
 Necessities — for increasing the kinds of property liable to execution, 11. 
 Necessaries — as applied to exemption of provisions, &c., 114. 
 Neglect — in the care of property, to what extent satisfaction, 466. 
 Of officer to issue certificate of sale, effect of, 435. 
 
 sell, who can not complain of, 317. 
 To levy, as affecting lien of execution, 271. 
 Neglecting — to comply with statutory requirements, when it renders officer 
 liable, 622, 623. 
 
 To levy, effect of, 229. 
 
 on personal property first, liability of officer for, 627. 
 pay over proceeds on execution ,633. 
 return execution, 630. 
 Negligence — and want of skill, liability of officer for, 623, 624. 
 In the case of property levied on, 628. 
 Liability of officer for, 622, 623. 
 In the care of property for which officer is liable, 257. 
 In levying, 625, 626. 
 
 For which officer is not liable, in care of property, 258. 
 Of officer in sale, liability for, 628. 
 
 Or delay of officer when it will not deprive execution of its lien, 270. 
 What is in officer, 622, 623. 
 
 sufficient to render officer liable, 623, 624. 
 an officer can not show in an action against him for, 627. 
 sufficient evidence to show, 627, 628. 
 Who not chargeable with, 68. 
 
 Will prevent party from quashing execution, 621. "• 
 Negligent — when officer is, in not making sufficient levy, 242. 
 Negligently — selling property not subject to execution, 629. 
 Nevada — homestead exemptions in, and who entitled to claim, 131. 
 New England States — appraisement essential prerequisite in, 296. 
 Appraisement Jaws, how construed, 303. 
 
 in, 295, 296. 
 Conclusive effect of strict compliance with statutory requirements in 
 
 regard to execution sale in, 298. 
 Delivery of possession in, how shown, 296. 
 Duty of officer to deliver possession in, 296. 
 Essentials of a return in, 379. 
 
708 INDEX. 
 
 New England States — Continued. 
 
 How a creditor gets possession of land in, 296. 
 
 How land is subjected to execution in, 39, 40. 
 
 Levy on land in, 295. 
 
 Levy, as satisfaction in, 464. 
 
 Matters that avoid the execution in, 297. 
 
 Mode of proceeding in execution of final process in, 294. 
 
 Nature of right of execution in, 294. 
 
 Parties entitled to injunction in, 610. 
 
 Property of inhabitant liable on execution against town or county 
 
 in, 566. 
 Practice in regard to waiving appraisement on real estate, 303. 
 
 sales of equity of redemption, 354, 355. 
 Redemption of property from execution, 297. 
 Requisites necessary to vest title in purchaser, 482. 
 Rule in regard to description of land taken, 382. 
 excessive levy, 295. 
 oiEcer's return, 519. 
 selling tenant's interest, 365. 
 sustaining proceedings under execution, 428. 
 time title vests in purchaser, 481, 482. 
 vacated entry of satisfaction, 466. 
 Time to which purchaser's title relates, 482. 
 What amount of levy on land is excessive, 295. 
 
 What an officer's return must show in regard to appraisement of prop- 
 erty, 305, 306. 
 What constitutes purchaser's title in, 525. 
 What is evidence of purchaser's title in, 482. 
 What is sufficient evidence of possession, 2g6. 
 When creditors take as tenants in common, 298. 
 
 With exception of Rhode Island, execution is a process in the nature of 
 an extent, 294. 
 New execution necessary where sale has been set aside, 469. 
 New Hampshire — homestead exemption in and against what debts exempt, 
 132. 
 Personal property exempt in, 105. 
 Requisites necessary to vest title in purchaser, 482. 
 
 creditor, 298. 
 Rule in regard to payment of proceeds by officer, 445. 
 Rule in regard to seizing rolling stock of railroad company, 561. 
 Statutory provisions in regard to redemption of property from sale, 443. 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemption in, 405. 
 New Jersey — homestead exemption in, 132. 
 
 statutory provision for sale of in, 132. 
 Personal property exempt in, 105. 
 Rule in regard to executions against real estate, 292. 
 Rule in regard to priority of execution, 269. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 What must be specified in the return in, 379, 
 , Who entitled to claim exemption in, 105. 
 New York — form of execution in, 44. 
 Issue of execution in, 44. 
 
 Homestead ex^ption in, and who entitled to, and how obtained, 132. 
 Personal property exempt in, 105, 106. 
 Statutory requirements of in regard to executions, 44. 
 Statutory provisions in regard to redemption of property from sale, 443. 
 
INDEX. 709 
 
 New Yot)i— Continued. 
 
 Time in which execution is returnable, 376. 
 When purchaser is entitled to rents, 510. 
 Who entitled to claim exemptions in, 105, 106. 
 No execution — can issue against one not a party to the proceeding, 4. 
 
 person where judgment is against two or 
 more, 62. 
 No goods — when proper return, 386. 
 Non est inventus — when false return, 388. 
 No property — return of, 374. 
 
 North Carolina — ^homestead exemption in and who entitled to claim 132, 133. 
 how laid off, 139. 
 Personal property exempt in, 107. 
 Rule in regard to distribution of proceeds, 459, 460. 
 Rule in regard to lien of execution, 265. 
 Rule in regard to sale of equity of redemption, 193. 
 Statutory provisions in regard to seizure of psrsonal property on execn- 
 
 tion, 156, 157. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 Note of debtor no satisfaction, 450. 
 Notes — ^how made liable to execution,''i56, 157. 
 How levied on, 236. 
 
 Receipt of by creditor, when satisfaction, 465, 466. 
 Notice — actual, what is, 490. 
 
 A purchaser wants of unrecorded conveyances, title of, 505. 
 By plaintiff when necessary to entry of satisfaction, 466. 
 By publication, how proved, 311. 
 By whom to be given to purchaser, 490, 491. 
 Constructive, 492. 
 
 definition of, 492, 493. 
 lis pendens as, 493. 
 occupation or possession as, 495. 
 policy of the law in regard to, 492. 
 presumption in favor of, 492. 
 what is, 492. 
 
 what deemed sufficient, 492, 493. 
 what equivalent to, 495. 
 what regarded as, 493. ' 
 when doctrine of will not apply, 493. 
 when lis pendens not regarded as, 493, 494. 
 Either actual or constructive, 490. 
 
 Failure to give parties interested, voids an order quashing execution, 619 
 Length of time for which it is to be given, how regulated, 333. 
 Necessary to all parties interested before execution can be quashed, 619. 
 Necessary to third parties before an amendment will be allowed, 56. 
 Of adverse claim or title, effect of, 491. 
 an equitable lien, 502. 
 a trust, 502. 
 
 deed as affecting purchaser's title, 501. 
 fraud as affecting purchaser's title, 502. 
 irregularity, attorney presumed to have, 609. 
 land being in possession of another, 502. 
 re-sale, when not requisite, 332. 
 sale, 309. 
 
 gale of personal property, what it should contam, 333. 
 sale, presumption of, 521. 
 what required, 309. 
 
710' • INDEX. 
 
 Notice — Coniimud, 
 
 Of satisfaction of judgment, effect of, 488. 
 
 time and place of sale of personal property, 333. 
 Parties affected by so as to lose protection given to purchasers after 
 
 reversal of judgment, 6og. 
 Required to all parties in proceeding to set.aside s4le, 517. 
 Sufficient to charge purchaser, 490. 
 
 put a party on his guard, effect of, 491. 
 To attorney or agent, effect of, 491. 
 
 must be in same transaction, 491. 
 be binding must come from whom, 490. 
 
 given to parties prior to setting aside sale, 407, 408. 
 debtor when necessary to make valid levy, 239, 
 purchaser, effect of, 501. 
 tenant to quit, by purchaser, effect of, 509. 
 That property is in possession of tenants, effect of, 497. 
 What is, and what is not, 490. 
 
 necessary to be given to purchaser, 490. 
 required to affect right of purchaser, 497. 
 When required to be given before return will be quashed, 397. 
 sufficient as to debtor, 333. 
 Not issuing execution, effect of, 69. 
 Not sold, duty of officer to make return of, 324. 
 Nulla bona — effect of as to issuing other executions, 375. 
 Meaning of the return of, 386. 
 Presumption in case of return of, 522. 
 When officer no right to make return of, 387. 
 proper return to execution, 374, 386. 
 return of to be made, 386. 
 Number of persons necessary in an appraisement, 306. 
 
 O. 
 
 Oath of appraisers — return need not show, 380. 
 Obedentia est legis, 216. 
 
 Ol^eot — and purpose of the issue of an execution, 274. 
 Of all proceedings, 3. 
 
 an elegit, 23, 24. 
 
 appraisement of real estate, 303. 
 
 creating an execution lien, 278. 
 
 endorsing receipt of writ on execution, 200, 201. 
 
 enlarging the benefits of exemption laws, 114, 115. 
 
 fi.fa. clause in vendi, 332, 333. 
 
 giving notice of sale, 309. 
 
 making amendments, 398. 
 
 a deed relate back to a certain time, 482. 
 
 proving statutory requisites in assignment of sale certificate, 436 
 
 recognizance and statutes, 17. 
 
 statutory requirements in regard to sale of land, 345. 
 
 suing out execution, 4. 
 
 the law in protecting purchasers in good faith, 607, 608. 
 
 writ of scire facias, 29. 
 
 writ of supersedeas, 599, 600. 
 Obt: Ining— judgment by collusion will warrant injunction, 6l0. 
 
 Supersedeas, requisites necessary to, 6oi. 
 Occupation — as fixing the homestead, 123. 
 
 And residence necessary to create homestead, 125. 
 
INDEX. 711 
 
 Occupation — Continued. 
 As notice, 495. 
 
 When not equivalent to notice, 496. 
 Of bidding — at execution sales, 317. 
 Of constructive notice, 492, 493. 
 Officer — action that lies against him for refusing to pay over proceeds, 633. 
 
 Acting as agent of parties in a sale prevents court from distributing pro- 
 ceeds, 460. 
 Agent of purchaser so as to satisfy statute of frauds, 367. 
 Allowed reasonable time to move property, after levy, 258. 
 Authority of, in extending writ of possession, 530. 
 
 to sell, how derived, 313. 
 Bound by his return, 391. 
 
 to search for personal property, 141. 
 obey instructions, 210, 211. 
 
 mandate of writ, 212, 213. 
 
 plaintiff's instructions in satisfaction of execution, 450. 
 By what rule to be governed In sale of personal property, 336. 
 Can not be compelled to execute void process, 202. 
 contradict his return, 391. 
 be allowed to show that sale was made for anything but cash, 
 
 447, 448. 
 enter dwelling-house to find goods of stranger, 224. 
 Care-of property by, after levy, 257. 
 Construction of return, for and against, 389. 
 Covenants of, in deed, effect of, 479. 
 Directed by execution to do what, 4. 
 Duty of, after trial of rights of property, 285. 
 
 in case of execution against individual partner and against the 
 firm, 547. 
 
 case of sacrifice, 323. 
 distribution of proceeds of execution, 
 
 sale of homestead, 447. 
 against firm and separate partner, 548. 
 in execution of deed to purchaser, 467, 468. 
 making arrest under execution, 571, 572. 
 paying over proceeds in order to protect himself, 449. 
 payment of proceeds with or without instructions, 445. 
 regard to sales, where he has several writs in his hands, 320. 
 levy, 228. 
 
 making service q.fter expiration of term, 207. 
 supersedeas^ 602. 
 search for property prior to return of execution, 386. 
 levying on crops, 235, 236. ^ 
 
 on receipt of injunction, 618. 
 
 return day of execution, 372. 
 to credit defendant with proceed?, 449. 
 inquire who property belongs to, 251. 
 receive amount due in satisfaction of execution, 461, 462 
 sell land in parcels, 346. 347. 348- 
 when he has several sales to make, 314. 
 
 senior writ entitled to proceeds, 262. 
 property fails to bring the aniount execution directs to be 
 collected, 229. 
 Fees can not collect by execution, when, 209. 
 How acts, in satisfaction of execution, 463. 
 compelled to sell, 335. 
 governed in making sales, 314. 
 
712 INDEX. 
 
 Officer — Continued. 
 
 How to execute writ against one partner, 549. 
 
 levy on interest of individual partner, 538. 
 make return, 373. 
 
 determine the amount of property necessary to be taken, 233. 
 In what capacity he executes a deed, 478. 
 Is liable for entire property of co-tenant or co-partner, 549. 
 Liable for insufficient return, '383. 
 Failure to levy, when, 222. 
 
 Liable in executing a writ from a court without jurisdiction, 217. 
 Iiiability of— at common law, 630. 
 
 effect of indemnifying bond upon, 630. 
 extent of, for neglect to make sufficient levy, 625, 626. 
 for disregarding plaintiff's instructions, 627. 
 failing to execute writ, 627. 
 make deed, 634. 
 
 pay over amount of proceeds, 634. 
 failure to comply with statutory requirements, 622, 623. 
 failure to make money on execution, 628. 
 
 return in New Jersey, 631. 
 false return, 631. 
 
 of non est inventus, 631. * 
 
 falsely returning nulla bona, 631. 
 irregular proceedings, 625. 
 insufficient return, 632. • 
 
 loss by failure to advertise property, 628. 
 making defective levy, 625. 
 excessive levy, 629. 
 insufficient levy, 625. 
 
 return of sale where he receives no money, 633. 
 money collected under color of office, 633. 
 neglect to levy on personal property first, 626. . 
 neglecting to sell, 629. 
 
 or failing to return execution, 630. 
 neglect to levy, when it accrues, 625. 
 negligence or want of skill, 623, 624. , 
 
 rule in regard to, 624. 
 in care of property after levy, 628. 
 paying over surplus proceeds, 634. 
 parting with property without securing proceeds of 
 
 sale, 633. 
 refusing or neglecting to pay over proceeds of sale, 633. 
 selling at different place than that advertised, 629. 
 exempt property, 629. 
 land en masse, 628. 
 
 more than is necessary to satisfy writ, 629. 
 property before or after time advertised, 629. 
 not subject to execution, 629. 
 various matters under levy, 626, 627. 
 how waived by parties, 631. 
 in case of misapplication of proceeds, 632. 
 
 sacrifice, 628. 
 rule governing the amount of, 626. 
 to parties, 623. 
 to whom for failure to return, 630. 
 
 neglect to levy on personal property, 627. 
 trial of rights of property, as affecting, 630. 
 what is sufficient evidence of, 627. 
 
INDEX. 713 
 
 Officer, liability of — Continued. 
 
 What necessary to prove, 633. 
 When action may be brought against him for, 627. 
 Necessary to assert his title, when, 239. 
 No authority to receive property in satisfaction of executions, 231. 
 
 collect money after return day, 463, 464. 
 No povcer to make any terms, 330, 331. 
 Not an insurer of property in his care, 257. 
 
 bound to regard equities among debtors, 229. 
 compelled to execute bill of sale, when, 335. 
 
 exhaust personal property of several defendants before 
 making levy on land, 293. 
 not liable — for applying surplus to other executions in his hands, 640. 
 collecting money on execution after return day, 640. 
 depreciation of property after levy, 639. 
 excessive levy by reason of lack of judgment, 640. 
 levying on goods of stranger intermingled with debtoi's, 
 
 640. 
 levying on property of surety first, 639. 
 making levy without intention of selling, 640. 
 
 sale which is afterwards declared void, 640. 
 neglect in sale of property which has been injured, 639. 
 neglecting to execute and return void writ, 639. 
 retaining possession of goods not claimed by attacher, 
 
 640. 
 selling on satisfied execution without notice of its satis- 
 faction, 640. 
 selling property seized by officer of another jurisdiction, 
 
 640. 
 slight mistakes in executing process, 640. 
 Where lie acts within the scope of his authority without 
 
 malicious intent, 639. 
 Where he obeys plaintiff's instructions, 639. 
 Not required to levy on all the property at one time, 229. 
 Occupies position of individual partner after levy, 543. 
 Pay^nent to, when a satisfaction, 462. 
 Possession of property dates from, when, 246. 
 Power to levy, how lost, 209. 
 
 and duty in execution of deed defined by law, 478. 
 to make deed, 467, 468; 
 Presumed to know what property is exempt, iii. 
 
 make his return, 377. 
 Presumptions made in favor of, 520, 521. 
 Protection to, in executing final process, 205. 
 Keason why he can not purchase at his own sale, 321, 322. 
 Remedy of, when he applies proceeds by mistake, 448. 
 Required to execute deed, 469. 
 Return of, as affecting the statute of frauds, 366, 367. 
 Right to amend his return, 397. 
 
 Right of to impanel a jury to try rights of property, 283. 
 retain proceeds, when, 448. 
 postpone sale, 323. 
 
 take pawned or pledged property into his possession, 153. 
 Should examine the writ in order to justify levy, 228. 
 Signature to levy, 236. 
 
 Should sell enough property to satisfy execution, 316. 
 Successor of, to make deed, when, 469. 
 To complete the execution of the writ though the debtor died, 73. 
 
714 INDEX. 
 
 Officer — Continued. 
 
 To whom execution issues, 67. 
 
 To whom executions issue in cases where real property is in question, 68, 
 
 To make inventory of property levied on, 234. 
 
 To exercise discretion in determining amount of property necessary to 
 
 be taken, 241. 
 Vested with special ownership in property, when, 244, 245. 
 Warranty in deed, effect of, 479. 
 What allowed to do under writ of possession, 530. 
 
 necessary to prove in order to justify a levy under execution, 215. 
 required of by execution, 229, 230. 
 sufficient notice to of supersedeas , 602. 
 When % trespasser, 220, 282, 283. 
 
 allowed to contradict his return, 394. 
 
 abundantly able to meet any liability for damages will not be re- 
 strained from selling, 618, 619. 
 authorized to sei-ve processs after expiration of term, 207. 
 and when not protected by a verdict of a jury in a trail of rights 
 
 of property, 283. 
 bound to execute writ, 202. 
 bound to pay surplus proceeds to debtor, 458. 
 bound to perform his duty without bond of; indemnity, 222. 
 bound to seize and sell under subsequent writ, 251. 
 compelled to seize personal property, 335, 336. 
 debtor may direct him -to apply proceeds, 460. 
 directed to complete sale by confirmation, 433. 
 guilty of neglect in not making sufficient levy, 242. 
 he acts as the agent of the party, 211. 
 he acts under direction of creditor or his attorney, 2I0. 
 he can not sell, 315. 
 he can not be compelled to amend, 400. 
 he can not serve process, 203. 
 he can not legally sell, 419. 
 he can not enter a door of a house, 223. 
 he can not enjoin proceedings, 618, 619. 
 he has control of the property levied on, 234, 235. 
 he has a riglit to require indemnifying bond, 221. 
 he holds money as trustee for creditors, 448. 
 he holds property as agent of the party, 274. 
 he may amend his return without leave of court, 397, 398. 
 be ruled to make return, 374. 
 
 be subrogated to the rights of the plaintiff, 206, 807. 
 levy on money in his hands, 158, 159. 
 refuse to execute a writ, 203. 
 
 require indemnity before selling on execution, 226. 
 release property, 244. 
 retake property, 244. 
 refuse to accept bid, 318. 
 resell same property, 324. 
 stop proceedings under execution, 231. 
 summon the power of the county, 225. 
 he will be liable for excessive levy, 242. 
 he will not be liable for insufficient levy, 242. 
 he will not be compelled to particularize matters in his return, 
 
 379- 
 justified in making return nulla bona, 386. 
 justified in executing final process, 212, .213, 214. 
 justified in breaking open doors for purpose of levy, 224, 
 
INDEX. 715 
 
 Officer — Continued. 
 
 When justified in returning execution against separate partner, no goodt, 
 548. 
 liable for conversion, 220. 
 liable for false return, 388. 
 
 liable to plaintiff for money made on execution, 375. 
 Jiable for the proceeds, 445. 
 no authority to sell land on execution, 344. 
 no authority to receive payment of execution, 464. 
 no right to make return nulla bona, 387. 
 not allowed to set up claim for surplus proceeds, 457. 
 not bound to make return, 378. 
 
 not justified in selling personal property, 336, . 
 
 not liable for false return, 388. 
 not liable for obeying the mandate of a writ, 215. 
 not liable in an action against him, 639. 
 purchaser has remedy against for failure of title, 507. 
 prohibited from making sale without appraisement, 308. 
 relieved from any responsibility by instructions from plaintiJ^ 
 
 211. 
 to execute subsequent writs, 251. 
 Officers — that may execute deed, 470. 
 
 What may issue certificate of sale, 435. 
 Officer's — acts at a sale that render it fraudulent, 417, 418. 
 Authority in making sales under execution, 419. 
 Proceedings on execution, who may and may not control, 402, 403. 
 Return, when it does not affect title of purchaser 518. 
 to an execution, 33. 
 
 operates as conveyance of land in New England states, 519. 
 Of notice — 490. 
 
 Of sale and proceedings under process from Federal courts, 587, 588. 
 sales of real property, 343. ' 
 stay and superseding proceedings, 603. 
 the construction of a deed, 477. 
 the deed, 467. 
 
 the execution of a writ, 200. 
 the recital in a deed, 471. 
 the return, 372. 
 the sale, 313. 
 
 the validity of the deed, 473. 
 variances in deed, 476. 
 Ohio — homestead exemption in, 133. 
 Homestead, how sold, 133. 
 Personal property exempt, 107. 
 Rule in regard to trial of rights of property, 283. 
 
 when homestead amounts to more than amount allowed, 133. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 Oldest execution — when entitled to proceeds, 449. 
 Omissions — and irregulirties which will not invalidate a sale, 513. 
 In acknowledgment of deed, 472, 473. 
 
 a return, when they do not invalidate it, 382. 
 Of court do not render officer liable, 216. 
 officer, how to be taken advantage of, 406. 
 recitals, when they avoid a deed, 472. 
 When they will not invalidate a deed,. 471. 
 Which render an execution void, 52. 
 
 voidable, 51. 
 
716 INDEX. 
 
 Omission — of acts that render officer liable will not be presumed to have been 
 done, 520. 
 
 Of the words lands and tenements, and authority to the officer may be 
 
 amended after levy and sale, 55. 
 To affix the seal amendable, 55. 
 
 endorse time of receipt of execution as affecting the lien, 267. 
 give required notice of sale as affecting purchaser's title, 515. 
 Omitting — to specify the hour of sale, as affecting the validity of a deed, 473. 
 One — appointment, when valid on several executions, 306. 
 Execution can not issue on two judgments, 61. 
 
 only allowed, 112. 
 Homestead only allowed, 124. 
 On y — one officer known to the court, 377. 
 
 One levy permitted, 244. 
 On — what adjudications executions may issue, 60. 
 Open- court— deed to be aknowledged in, 473. 
 
 Oppression — by officer in the discharge of his duties render him liable for 
 trespass, 634. 
 
 By officer in execution of process, liability for, 634. 
 Order — in which writs are to be executed, 208. 
 
 Of court controls sale of land, 346. 347, 348. 
 
 distributing proceeds protect^ officer, 460. 
 quashing return when void, 397. 
 when it releases levy, 251, 252. 
 
 necessary to issue an execution, 462, 463. 
 To pay taxes, when officer not authorizedto pay out of proceeds, 455. 
 Oregon — personal property exempt in, 107. 
 Rule in regard to levying on land, 285. 
 
 redemption of property from sale, 441. 
 trial of rights of property, 285. 
 Time in which execution is returnable, 376. 
 Who entitled to claim exemption in, 107. 
 Origin — and nature of the writ of scire facias, 28, 29. 
 Of the practice of selling land on execution, 343. 
 
 principle of subjecting lands to execution, 178. 
 Ornamental fixtures, 165. 
 Other — counties execution may issue to, 67. 
 
 Executions, .when not entitled to proceeds, 448, 449. 
 Property, when it may be taken after levy, 237. 
 Overpayment — effect of, 80. 
 Owner — when purchaser becomes, 509, 510. 
 
 trustee for, 523. 
 Owners — right in pawned or pledged property, when it may be taken, 153. 
 Ownership — an incident of the right of redemption, 87. 
 
 Of judgment, question in regard to distribution of proceeds, 459. 
 personal property, what is presumptive of, 144. 
 property acquired by creditor in N. E. States, 294. . 
 
 Pains and distresses used in olden times to enforce judgments, 7. 
 Parcels — presumptions in favor of a sale in, 522, 523. 
 Parents — entitled to the benefits of the exemption laws, 89, 90. 
 Parol evidence — admissible in Tennessee to defeat purchaser's title, 520, 
 to prove levy, 236, 237. 
 
 Of sale of personal property, 337. 
 
 Of date of a return, 396. 
 
 When admissible to show contents of a return, 396, 397, 
 
INDEX. 717 
 
 Parol evidence — Continued. 
 
 When admissible to identify land sold, 476. 
 
 not allowed to defeat a levy on land, 293. 
 Part of the amount collected may be inserted in an alias after levy, 56. 
 Particular forms — prescribed by law should be set forth in return, 378. 
 Parties — against whom a ca. sa. can not issue, 568, 569. 
 an execution will issue, 66. 
 a levy will be good, 233. 
 assisting officer when protected, 215. 
 
 liable, 219. 
 Between whom a return \% prima fade evidence, 394. 
 Entitled to amendment of return, 398. 
 a deed, 476. 
 execution, 63. 
 homestead exemption, 119. 
 interest on proceeds, from what time, 445. 
 select or appoint appraisers, 304, 305. 
 protection as purchasers, 606, 607 
 relief in case of irregularities in sales, 409 
 right of redemption, 437, 438,'43g, 440. 
 surplus proceeds of the sale of a homestead, 457. 
 whom notice must be given in order to be effectual, 490 
 491. 
 Issuing process may control it, 210. 
 Interested should have notice of amendments, 398. 
 May consent to taking land in the first instance, 142. 
 
 waive appraisement, 357. 
 Necessary to have a valid distribution of the proceeds, 458. 
 Not allowed to question officer's proceedings after confirmation, 434. 
 Only can take advantage of irregularities, 8l. 
 Who may purchase at execution sales, 321. 
 can not purchasCj 321. 
 
 may claim and are entitled to the benefits of the exemption laws, 
 89, 90. 
 Party — giving forthcoming bond estopped to deny existence of judgment or 
 execution, 258. 
 How he loses his right to share in the distribution of proceeds, 461. 
 In interest must give notice in order to affect a purchaser, 491. 
 In whose favor a writ issues may control officer in its execution, 20g, 210. 
 Injured by the acts of an officer, entitled to an action against him, 624, 
 Is entitled to only one form or kind of execution, when, 60. 
 Issuing an execution has exclusive control over it, 210. 
 Liable for acts of officer, if he has obeyed his directions, 219. 
 Remedy of to compel officer to make a return, 373. 
 in case of an excessive levy, 243. 
 where an officer's return is false, 393. 
 Right of to enforce the execution of a deed, 471. 
 
 extend time for redemption of property sold, 439. 
 rule officer to make a return, 374. 
 Selling, if the purchaser, is cause for setting aside sale, 418. 
 Sharing in the distribution of proceeds, how estopped, 368. 
 To an action, presumptions made in favor of an execution against, 522. 
 What is required of, in order to sustain a sale made en masse, 349, 350. 
 When he has a right to claim exemptions, 119. 
 
 will be relieved from payment of the difference at a re-sale, 
 326. 
 Who can not claim any of the proceeds of a sale, 460. 
 a homestead exemption, 122, 123. 
 
718 INDEX. 
 
 Party — Continued. 
 
 Who can not purchase at an execution sale, 321. 
 Who is entitled to protection as a purchaser without notice, 487. 
 not entitled to protection, 487-489. 
 
 protected against irregular or erroneous proceedings, 605, 606. 
 may satisfy an execution, 463. 
 
 interpose a claim and try the right of property, 284. 
 and may not contest regularity of officer's proceedings, 402- 
 404. 
 Partners — execution against, 538. 
 
 Individual, what may be taken on execution against, 538. 
 PartAership-rifcreditor, when officer liable to for failing to levy, 626. 
 
 Property, how liable on execution against individual partner, 538, 
 
 ,*539- 
 Pi^operty primarily liable for firm debts, 547. 
 
 Proceedings on execution against firm and individual partner, 538—549. 
 When entitled to claim benefits of the exemption laws, 118. 
 Paying — for property with a judgment, effect of, 489, 490. 
 Payment — before time for redemption expires as vitiating deed, 480. 
 By debtor is all the satisfaction required, 461. 
 officer of amount of execution, 205. 
 
 when satisfaction, 462. 
 one of two co-defendants, when a satisfaction, 462. 
 surety, when a satisfaction, 462. 
 During litigation officer no authcfrity to receive, 464. 
 Duty of officer to receive, in satisfaction of an execution, 462, 
 Effect of, as vesting rights in a purchaser, 487. 
 How pleaded at common law, 10. 
 Necessary to satisfy an execution, 450. 
 
 Of costs on granting a new trial no ground for issuing an execution 
 therefor, 70. 
 an excessive amount for property sold, when it will not entitle a pur- 
 chaser to relief, 509. 
 money completes the rights of a purchaser, 487. 
 proceeds of sale to whom to be made, 444, 445. 
 purchase money extinguishes plaintiff's rights, 508. 
 entitles purchaser to protection, 511. 
 constitutes a party a bona fide purchaser, 487. 
 the money due satisfies an execution, 4. 
 Once made on an execution satisfies it, 206. 
 To clerk, when no satisfkction, 465. 
 
 officer in satisfaction, when it may be made, 462. 
 after return day no satisfaction, 463, 464. 
 the officer not regarded as satisfaction in England, 20. 
 Under the redemption laws, when to be made, 437, 438, 439, 440. 
 
 how and to whom it must be made, 438. 
 Penalties — judgment for, when not entitled to priority in the proceeds, 461 
 Penalty — for false return, 388. 
 Pendente lite, &c., 494. 
 Purchase]-, 501. 
 Rights of purchasers, 357. 
 Pennsylvania — acknowledgment of deeds in, 
 Appraisement of property in, 307. 
 Distribution of proceeds in, 455, 553. 
 Indemnifying officer in, rule in regard to, 454, 455. 
 Homestead exemption in, 133. 
 Notice of sale of personal property in, 333. 
 Personal property exempt in, 107 
 
INDEX. 719 
 
 PennBylvania — Continued. 
 
 Practice in regard to claiming exemption in, g2. 
 
 sale of land under execution, 302. 
 
 Rule in regard to seizure of pawned and pledged'property in, 153. 
 corporation property, 561. 
 verdict in cases of the trial of the right of prop- 
 erty, 283. 
 
 Stay of execution in, 595, 604. 
 
 Time in which execution is returnable, 376. 
 Peril — of officer in executing process of inferior courts, 218. 
 
 Officer acts at in entering house of a stranger, 224, 225. 
 Perishable — personal property, what is meant by, 335. 
 Permiasiou of court — when necessary to amend return, 398. 
 Permitting — debtor to sell and dispose of property levied on as satisfac- 
 tion, 254. 
 
 Officer to sell one's property, effect of, 368. 
 Perpetual injunction — when it will be granted, 615. 
 Person of debtor — execution against, 567. 
 Personal chattels-:-when they become fixtures, 162. 
 Personal estate — liable under ay?, fa., 22. 
 Personal property — and land can not be levied on at the same time, 231. 
 
 Failure to levy on first doesnot affect purchaser's title, 627. 
 
 First liable to execution, 43. 
 
 From what time bound by an execution, 275. 
 
 How levied on, 227, 228. 
 sold, 337. 
 
 In possession of debtor after sale does not invalidate it, 514. 
 mortgagor, when it may be taken, 150. 
 
 Length of time notice of its sale is to be given,- 333. 
 
 Levy on, as a satisfaction of the judgment, 252, 253. 
 
 Liability of officer for failing to levy on first, 627. 
 
 Matters arising from levies on, 259. 
 
 Of deceased debtor, how discharged from execution, 75. 
 
 Primary fund out of which to obtain satisfaction, 141, 172. 
 
 Sale of, 333. 
 
 Sales of, that are void, 337. 
 
 Subject to seizure and sale on execution, 144. 
 
 Title of, when it vests in purchaser, 338. 
 
 What included in the term, 143. . 
 
 When not required to be first exhausted, 252, 253. 
 officer may re-sell, 325. 
 subject to lien of an execution, 264, 265. 
 
 Which is not liable to seizure on execution, 173, 174. 
 partakes of the nature of real estate, 144. 
 Piano— «vhen and where not exempt, 114. 
 Place of sale — 3 1 1 . 
 
 Fixed by statute, 311. 
 
 When it can not be changed, 424. 
 Placing — -"writ in officer's hands with intent not to serve, destroys lien, 268,269, 
 Plaintiff — alone entitled to cause the issue of an execution, 66. 
 
 Bidding in property as satisfaction, 462. 
 
 Entitled to notice of motion to enter satisfaction, 466. 
 
 Has burden of proof in trial of the right of property, 284. 
 
 Indemnifying officer when entitled to no relief, 508. 
 
 Or attorney, when liable for loss of property, 258. 
 
 Promising not to prosecute, is ground for enjoining a writ; 610. 
 
 Property of, when liable, 141. 
 
 Presumed to have received money coUect'id on execution, 462. 
 
720 INDEX. 
 
 Plaintiff — Continued, . 
 
 Purchasing at a sale of property wrongfully seized, when liable, 230. 
 
 Responsible for improper use of an execution, 60. 
 
 Right to instruct officer what to take in satisfaction, 450. 
 
 Right to issue not affected by legislature, 79. 
 
 What he must restore to party after the writ is quashed, 621. 
 
 When entitled to an execution for costs, 71. 
 
 to protection as a purchaser at a sale, 416. 
 he can not bring an action for false return, 388. 
 he may obtain an alias execution, 77. 
 
 have a return of a levy quashed, 331. 
 liable for receiving proceeds of a levy after return day, 220. 
 acts of officer, aud is a trespasser, 220. 
 purchase money, 331. 
 not responsible for the acts of the officer, 47B. 
 officer agent of in executing a deed, 478. 
 payment may be made to in satisfaction of a writ, 462. 
 Pledged — pawned, or mortgaged personal property, when liable, 149. 
 Pledges — given at common law to satisfy debts, 10. 
 Pluiies — executions, 77. 
 Pointing out property by debtor estops his complaining of an excessive levy, 
 
 243- 
 Policy of the law — as to conclusiveness of a return to an execution, 389, 390. 
 description of property sold, 426, 427. 
 the execution of process, 634. 
 
 by officer in his own favor, 
 
 204. 
 in protecting its officers, 
 205. 
 executions against individual partners, 538, 539. 
 execution sales, 315. 
 In regard to notice, 492, 493. 
 
 purchasers without notice, 505, 50^- 
 sales on execution against individual partners, 545, 546. 
 In sustaining judicial sales, 506, 512, 513. 
 Posse comitatus — when officer may summon, 225. 
 Possession — as notice, 495. 
 
 By writ of assistance, when it can be issued for, 535. 
 
 Change of, not requisite at execution sales, 315. ' 
 
 Continued by debtor, when presumtive of fraud, 418. 
 
 Courts, when they will not order strangers to be removed from, 533. 
 
 interfere in the delivery of, 531. 
 Debtor, when he will be restored to, 537. 
 
 Debtors, when it passes by sale of mortgaged property, 341, 342. 
 Delivery of, good to what extent, 531. , • 
 
 where several parties are in possession, 530. 
 Directions in obtaining to be obeyed by officer, 530. 
 Disturbing officer in delivery of, 532. 
 Duty of officer in delivery of, 530. 
 recovery of, 531. 
 Ejecting plaintiff from, 532. 
 Growing crops, how obtained, 530. 
 How obtained by writ of assistance, 534. 
 under an execution, 530. 
 without removal of party, 537. 
 vested in creditor in New England States, 296. 
 In Penn., how obtained, 536. 
 Indemnity, when it may be required before executing writ of, 530, 531. 
 
INDEX. 721 
 
 TPosBeaaion— Con/mued. 
 
 Jurisdiction of courts to deliver, 534. 
 ustification of officer in breaking open doors to deliver, 530, 
 Kind of, necessary to affect purchaser with notice, 496. 
 purchaser's title, 496. 
 to be given, 530. 
 Mortgage, when entitled to, 150. 
 Must be delivered to party, 536. 
 
 Of estate sold, how obtained without removing parties, 537. 
 husband, when sufficient to subject land to execution, 182. 
 land may be acquiesced in by party, 537. 
 money, when and when not liable to levy, 159, 160. 
 officer dates from what time, 246. 
 
 of property taken under an execution, when it will not be 
 interfered with, 240-247. 
 property, when officer not required to take, 235. 
 purchaser, adverse to former owner, 511. 
 stock, who to put purchaser in, 563. 
 tenant, as notice to purchaser, 496. 
 
 when he can not be removed in the delivery of, 532, 533. 
 Parties entitled to obtain by writ of assistance, 536. 
 Prima facia evidence of title, 502. 
 
 title liable to sale on execution, 185. 
 Protection to officer in execution of writ for, 533. 
 Purchaser under decree of foreclosure entitled to, 534. 
 Purchaser under a writ against individual partner entitled to, 545. 
 Remedy of party in case of an improper issuanceof the writ of, 537. 
 Removal of persons necessary in the delivery of. 530. 
 Revival of judgment, when necessary before issuance of the writ for, 534- 
 Right of, liable to sale, 184. 
 
 Rights of parties will not be settled in the delivery of, 535. 
 Stranger in, when he can not be removed, 533. 
 Under writ of assistance is a summary remedy, 535. 
 
 when it may be obtained without notice, 535. 
 What is a deliveiy of, 533, 534. 
 good delivery of, 537. 
 necessary to prove in order to entitle a purchaser to,-527. 
 return officer can not make to a writ of, 534. 
 When a party can not cause another writ of to issue, 532. 
 it may be delivered without actual removal, 537. 
 it is sufficient notice to put a purchaser on inquiry, 496. 
 it may be redelivered, 531, 532. 
 not effectual, 531, 532. 
 purchaser entitled to, 509, 510. 
 Which must vest in officer in case of a levy, 240-247. 
 WHo entitled to in Tennessee, 536. 
 
 obtain, by writ of assistance, 535. 
 WTio may be removed in the delivery of, 532. 
 
 Writ of assistance, when the appropriate remedy to obtain, 534, 535. 
 Writ of, 529. 
 
 when it may be made returnable, 534. 
 
 will not issue until after time for redemption expires 
 536. 
 Possessory — interest, nature of liable to levy and sale, 185. 
 
 Under contract of purchase liable to sale, 193. 
 Postponement of sale — 323. 
 
 As affecting priority of execution, 270. 
 ' When it may be done, 210. 
 
 46 
 
722 INDEX. 
 
 Power — an officer has under a vendi, 332. 
 Conferred on an officer by vendi, 331. 
 
 Necessary to exist in order to vest title in purchaser, 419, 420. 
 Of county, officer may call to aid in executing writs, 530. 
 courts in permitting amendments, how construed, 398. 
 over process issued, 53. 
 to appoint any person to make sales, 314. 
 to enforce judgments, 67. 
 to quash'executions, 6ig, 6zo. 
 Power of officer — in executing deed defined by law, 478. 
 to levy, when it is lost, 209. 
 make a deed, 467, 468. 
 sell, necessary to protect purchaser, 512. 
 land, 344. 
 
 on execution, what constitutes, 347. 
 can not be proven by recitals in deed, 471. 
 set off, one writ against another, 226. 
 succeeding officer to make a deed, whence derived, 469. 
 officer — of United States Courts to take property from officer ot> 
 
 State Court, 281. 
 the English Courts, 7. 
 a purchaser under buys at his peril, 419. 
 vested in ministerial officers, 405, 406. 
 Praotice — at common law to compel a return, 373, 374. 
 In case of death of plaintiff after judgment, 71. 
 lost execution, 79. 
 collecting debts modified, 6, 7. 
 
 Delaware, in regard to sale of land on execution, 302. 
 Indiana, in regard to sale of land on execution, 302. 
 Kentucky on replevin bonds, 68. 
 Louisiana, 302. 
 Maryland, 302. 
 Missouri, 302. 
 
 New England States, 303, 304. 
 Pennsylvania, 302. 
 
 various states in selling choses in action, 156, 157. 
 Virginia by elegit and extent, 299, 300. 
 West Virginia in sale of land on execution, 301. 
 Of selling real estate on execution, origin of, 343. 
 
 redemption equities, 354. 
 On a capias ad satisfaciendum, 15. 
 Where creditor has a lien on two funds, 1 72. 
 
 execution issues for too large an amount, 80. 
 Praeoipe — necessary to the issue of an execution, 66. 
 Precedence — of a vendi over other writs, 332. 
 Preference — given to what execution in distribution of proceeds, 449. 
 
 Of claim against firm over claim against separate partner, 542, 543. 
 
 judgment over unrecorded deed, 499. 
 On distribution of proceeds of sale, to whom given, 446. 
 When an execution does not give any, 264. 
 Preferred liens — over homestead claims, what are, 139. 
 Premises — when they become impressed with homestead character, 125. 
 Presence— of personal property at a sale necessary, 337. 
 Preservation — of lien in State court under bankrupt law, 279, 280. 
 Presumptions — in favor of an execution, 49. 
 a homestead, 137. 
 
 collections of proceeds of a sale, 447, 448. 
 date of a return, 396. 
 
INDEX. 733 
 
 Presuinptious — Continued. 
 
 in favor of demand by creditor for proceeds of sale, 445. 
 execution being regularly issued, 59. 
 issue of an execution, 208. 
 noticd, 492, 493. 
 payment at common law, 9 
 
 regularity of a return where it nas two dates, 396. 
 regularity of an execution, 70, 428, 429. 
 
 officer's proceedings, 476. 
 revival of a judgment, 70. 
 satisfaction, 57, 58. 
 
 by levy on personal property, 254. 
 Made in favor of purchasers, 520. 
 Presumption of law — as to who is and who is not a purchaser with notice, 488, 
 In regard to amount of property appraised, 317. 
 
 realized at a sale, 362. 
 Confirmation of a sale, 435. 
 Construction of a return, 385, 386. 
 In favor of a purchaser's title, 526. 
 
 regularity of officer's proceedings, 476. 
 Raised by a return, 396. 
 
 In favor of the satisfaction of an execution, 462. 
 That an officer knows what costs are collectible, 50. 
 property is exempt. III. 
 When they will not be made by a court, 523. 
 When there is none of satisfaction, 465. 
 
 Which an officer is allowed to make in regard to the time a writ issues, 
 208. 
 
 issuance of an exe- 
 cution, 21b. 
 Which purchasers may make in favor of regularity of officer's acts, 577. 
 Prima facie — effect of a levy, 231. 
 
 Legal title of a purchaser, what is, 528. 
 Satisfaction of a judgment by levy, 254. 
 Void, when recitals are, 472. 
 Principles — applicable to levy on interest of individual^ partner, 541, 542. 
 
 prior unregistered deeds, applied to personal prop- 
 erty, 503. . 
 sale of land on execution, 301. 
 By which courts determine what is an adequate consideration, 412, 413. 
 Governing the acknowledgment of deeds, 473. 
 
 proceedings on execution against individual pai-tner, 539, 540. 
 questions of priority between State and Federal courts, 
 
 260, 261. 
 questions as to rolling stock being liable as personalty, 
 553-561. 
 Relating to sale of stock in corporations, 561, 562, 563. 
 Rights of purchasers, where judgment is reversed, 605. 
 Principles of law — applicable to executions, 22. 
 
 which govern the sale of an equity of redemption, 354. 
 
 real estate conveyed prior to 
 the issue of an execution, 
 
 352, 353- 
 which restrain an officer from purchasing at his own sale, 
 
 321, 322. 
 which subject an equity of redemption to sale, 189. 
 relative to land being subject to execution, 178. 
 upon which courts base their decisions in sustaining sales, 512. 
 
724 INDEX. 
 
 Principal — method of reaching mortgagor's estate in land, igo. 
 
 Property of, primarily liable, 232. 
 Prior — attachment, when no notice to purchaser, 499. 
 Execution, when entitled to proceeds,,449. 
 Incumbrances, effect of notice of, 500. 
 Lien or levy, effect of, 263. 
 
 on land, how, discharged, 358. 
 Purchaser under a junior writ, rights of, in regard to title, Sll. 
 Priority — as affected by registration, 497. 
 
 Between mechanics' liens and mortgages, 455. 
 
 In distribution of proceeds, lost by dormancy of judgment, 452. 
 
 between State and Federal courts, 451. 
 Of execution in application of proceeds, 449. 
 executions in State and Federal courts, 261. 
 
 different courts of same state, 261. 
 distribution of proceeds, 448. 
 
 favor of firm creditors over individual creditors, 547. 
 how determined, 263. 
 over other liens, 262. 
 execution in cases of indemnity, 454. 
 
 lien, how it may be lost, 267. 
 homestead claim to proceeds, 447. 
 joint creditor, how liable to be defeated, 548. 
 lien may be enforced after dissolution of injunction, 619. 
 levy, 231. 
 • against individual partner in case of dormant partner, 543; 
 on land, 264. 
 
 over proceedings in bankruptcy, 278. 
 officer's claim for fees in the distribution of proceeds, 455. 
 payment, who entitled to in the distribution of proceeds, 446. 
 senior writ as to proceeds, how lost, 451, 452. 
 
 over a junior, 262. 
 statutory penalties, 461. 
 
 surety's claim to proceeds over other creditors, 454. 
 writ, is a question of law, 264. 
 Questions of, when they arise, 274. 
 When obtained by levy, 264. 
 Private sale — effect of, 425. 
 
 Privies — to the judgment only entitled to execution, 63. 
 Privilege — of a debtor to move from one homestead to another, 136. 
 
 house, to whom it extends, 223. 
 Proceeds — actions that lie against officer for refusing to pay over, 633, 634. 
 Application of, where writ has been enjoined, 461. 
 Collected under color of office, who liable for, 633. 
 Distribution of, after return of satisfaction, 447. 
 
 between firm and individual creditors, 461. 
 on execution issuing out of State and Federal courts, 451. 
 on mortgage sale, 456. 
 
 surplus among creditors of corporations, 553. 
 surplus, 456. 
 Erroneous payment to creditor, effect of, 461. 
 Hpw applied in cases where indemnity is given, 454. 
 
 case of several demands joined in one writ, 446. 
 distributed among several execution creditors, 449. 
 
 between firm and individual creditors, 548. 
 Interest on, when payable, 445. 
 Of a sale of equity of redemption, how applied, 356. 
 of fixtures, who entitled to, 447. 
 
INDEX. 725 
 
 'Pxoooodii— Continued. 
 
 Of a sale of homestead, how distributed, 447. 
 
 exempt from sale, 160. 
 of land, how applied, 358. 
 how regarded, 465. 
 when substituted for land, 358, 359. 
 when to be applied to firm creditors, 548. 
 when and when not liable to levy, 158, 159. 
 On execution, application of, 444. 
 Presumption in favor of their distribution, 522. 
 Refusing to pay or account for, liability of officer, 633 
 Right of assignee to, 453. 
 
 surety to, 453. 
 Surplus, liability of officer for, 634. 
 
 To be distributed whether sale is made for cash or credit, 448. 
 To whom officer is liable for neglect to pay over, 634. 
 
 to be paid, 445. 
 When a party not liable to refund, 461. 
 
 courts will and will not interfere in distribution of, 458. 
 officer bound to account for, 448. 
 
 liable for, though not collected, 633. 
 may retain them, 448. 
 they will be equally distributed among creditors, 453. 
 Who entitled to, 446. 
 Frooeedings — after return, 405. 
 
 At time of levy, when they may be shown by parol, 237. 
 Commenced under a writ, may be completed after death of party, 388. 
 In admiralty cases, 589, 590. 
 In bankruptcy, effect of as restraining execution, 613. 
 
 subject to levy, 278, 279. 
 In case of death of defendant, 73, 74, 75. 
 loss sustained by resale, 325. 
 sacrifice at a sale, 323. 
 Irregularity in, how they affect a purchaser's title, 512. 
 levying on land held by tenants in common, 180. 
 In States where homestead exceeds amount exempt, 136, 137. 
 Of officer under a writ of assistance, 534, 535, 536, 537. 
 
 possession, 530, 531, 532, 533, 534. 
 Of officer where he seizes money on execution, 157, 158. 
 
 which makes him guilty of trespass, 637, 638. 
 On execution in Federal courts. See Final Process in Federal courts, 
 
 580-593- 
 Recital of in deed, 471. 
 
 That apply equitable interests to satisfy executions, 195. 
 To vest title in debtor, what dependent on, 344. 
 Under an execution against a county, 566. 
 When they will be stayed after levy, 249. 
 Where parties are principal and surety, 252. 
 Where property is worth more than the amount of the exemption, 88. 
 
 writ issues against several defendants, 232, 233. 
 Which render officer's deed void, 474, 475. 
 Which render execution irregular, So. 
 Process — against corporations, what is liable to sale unaer, 551. 
 As a protection after payment of debt, 419, 
 By which a judgment is carried into effect is an execution, 3. 
 By which officers were compelled to enforce executions, 15. 
 From inferior and superior courts, distinction between as protection, 217. 
 Irregular merely, must be executed, 203. 
 
726 INDEX. 
 
 Process — Continued. 
 
 Kinds of which are no protection to an officer, 218, 219. 
 
 Served by one rot legally authorized makes him a trespasser, 636. 
 
 Void on its face, as protection, 2i8. 
 
 What court can not set it aside, 408. 
 
 When it can be issued beyond jurisdiction of court, 67. 
 
 When it can not be enforced or executed by officer, 203, 204. 
 
 may be served by party other than the officer, 67. 
 Who to execute after expiration of officer's term, 207. 
 Products — of the soil subject to levy, 160. 
 Prohibition — of a seizure unless by warrant, 7. 
 
 Writ of, will not issue to restrain the issue of an execution, 59. 
 Promise — of indemnity, when valid and enforceable, 221. 
 Proof — of satisfaction, when it may be made, 465. 
 
 Of statutory requirements in regard to redemption, when necessary to be 
 made, 439. 
 Property — acquired after levy, how it may become subject to execution, 277. 
 After levy, how disposed of before other can be levied on. 237 
 Amount of, conveyed by deed, 503. 
 to be sold, 316. 
 
 taken, how determined, 233. 
 Can not be received in satisfaction of an execution, 231. 
 Care of, after seizure, 257. 
 Corporation, liable, 550. 
 Creditor not required to point out, 212. 
 Described in a vendi must be sold, 332. 
 During the trial of the right of, not liable to seizure, S85. 
 Duty of officer to convert it into money, 316. 
 Exchanged for exempt property, when liable, 148, 149. 
 Exempt from execution, 86. 
 Fraudulently conveyed, liable, 147. 
 From what time, bound by execution, 276. 
 Held under lien, how and when it may be taken, 153. 
 How identified, 234. 
 
 In custody of the law withdrawn from levy by other writs, 246, 247. 
 Includes what, 140. 
 In lands, meaning of, 179. 
 
 other counties, how reached, 67. 
 receiver's hands not liable to execution, 174. 
 Kept in unsafe place after levy, liability of officer for, 257. 
 Last conveyed, how liable, 351. 
 
 Leaving it with debtor destroys lien of execution, 271. - 
 Left in debtor's possession after sale indicates fraud, 340. 
 Levied on must be disposed of before other property can be taken, 237, 
 
 when not in the custody of the law, 248. 
 Liable to levy on execution, 86. 
 
 in an action commenced by attachment, 81. 
 to execution issued from U. S. Court, 586. 
 \Lien of an execution is on, not on proceeds, 267 
 Must be in the custody of the law in order to make a valid levy against 
 
 third persons, 238. 
 Must be in the custpdy of the debtor in order to justify breaking open 
 
 doors, 225. 
 Nature of, in stock in corporations, 562. 
 Not liable to execution, effect of levy on, 240. 
 
 subject to levy, no satisfaction, 257. 
 Of corporation, liable to levy, 550. 
 endorser, when liable, 232. 
 
INDEX. 727 
 
 Property — Continued. 
 
 Of inhabitants of county, when liable, 566. 
 
 not liable, 566. 
 municipal corporations, when and when not liable, 565. 
 Of a party in possession of another, duty of officer in regard to, 230. 
 wife, when not liable, 183. 
 state, when not liable, 196," 197. 
 surety or indorser, when liable, 232. 
 Presumed to be included in an appraisement, 307. 
 Purchaser, when entitled to, 319. 
 
 Remaining in officer's hands, when liable to other writs, 251. 
 Sale of, what passes by, 370. 
 Seized by execution from State court not liable to process from bank* 
 
 ruptcy courts, 281. 
 Sold after issue of an execution, when liable, 144. 
 Sold prior to issue of execution, liability of, 351. 
 Subject to execution, 22, 140. 
 
 lien, how and when it may be taken, 173. 
 Taken from officer by due course of law no satisfaction, 236. 
 by officer on a writ must be accounted for, 244. 
 by officer outside of his county, lien on, 239. 
 by writ of attachment may be sold on a vendi, 333. 
 That can not be sold on execution, 141. 
 can not be taken on execution, 229. 
 is in the custody of the law, 246, 247. 
 may be sold on execution against individual partner, 539. 
 
 after return day, 327. 
 vests in officer by virtue of a levy against an individual partner, 
 
 541, 542- 
 To be re-sold after setting aside sale, 419. 
 
 restored after quashing an execution, 621. 
 Trial of the right of, 282. 
 What amount of, is affected by execution, 289. 
 What it is, 140. 
 
 When bound by an execution from its teste, 264. 
 held by officer as agent of party, 274. 
 it is in the custody of the law, 234, 235. 
 it may be re-sold, 319. 
 
 taken notwithstanding right of dower, 183. 
 not exempt for purchase money, 112. 
 withdrawn from the process of another court, 259. 
 Which is sold subject to the lien of an execution, 265. 
 may constitute a homestead, 123. 
 one can not sell can not be taken on execution, 173. 
 -■Pro rata — contribution, when purchaser is entitled to make, 363- 
 -Pro tanto — satisfaction, what operates as, 462. 
 ^Protection — afforded to fixtures for agricultural purposes, 163. 
 Afforded to purchasers by law, 605. 
 By statutes of sureties, 232. 
 
 Of a party purchasing interest of holder of government certificate, I93. 
 Of homestead, 121, 135. 
 Of officer is the policy of the law, 205. 
 To assignee as a purchaser in good faith, 609. 
 creditor if a purchaser, 518. 
 o£Scer in distributing proceeds, 460. 
 
 in execution of final process, 212, 213, 214. 
 in taking receipt for monev paid creditors, 449. 
 purchaser after paying full purchase price, 571. 
 
728 INDEX. 
 
 Protection — Continued. 
 
 To purchaser of personal property, as to notice, 305. 
 policy of the law in regard to, 512. 
 without notice, 513. 
 
 Whicn an inventory of property is to an officer, 234. 
 the law affords to debtors, 348. 
 Proving — a levy by parol, 237. 
 Provisions — exempt from levy, 114. 
 
 That law makes in regard to exemptions, T16. 
 Public place — what is meant by, in a sale of property at, 310. 
 Publication — of a sale, what required in, 309. 
 
 Time of, how computed, 310, 311. 
 
 When it can and can not be made, 309. 
 Puffers — employment of, not allowed at sales, 318. 
 Purchase money — effect of a sale on judgment for, 364. 
 
 Judgment superior to homestead right, 137, 138. 
 
 Payment of, when it operates as satisfaction, 462. 
 
 Required to be paid before execution of deed, 468, 469. 
 
 What is, under the exemption laws, 138. 
 
 When officer liable for, 447. 
 
 may bring action for, 325. 
 
 Of personal property, when complete, 339. 
 Purchaser — acquires what title at sale of a franchise, 551, 552. 
 
 At a sale when an execution may issue against, 66. 
 who may be, 321. 
 
 Bona fide, who is, 485, 487. 
 
 Bound to see that power to sell exists, 419. 
 
 Buying without fraud not a trustee, 523. 
 
 Duty of, to ascertain title of party in possession, 496. 
 
 Effect of notice to, 306. 
 
 Effect of the rule of caveat emptor upon, 330, 331. 
 
 Entitled to a deed, 473. 
 
 property whether a return is made or not, 519. 
 
 Has to submit to jurisdiction of court, -485. 
 
 In good faith, who is, 487. 
 
 Innocent, who is and who is not, 487. 
 
 Interest of, when insurable, ,511. 
 
 liable to sale on execution, 194. 
 
 Mala fide, rights of, 502. 
 
 May use return as evidence of title, when, 389. 
 
 No right of entry until after he receives deed, 487. 
 
 Not bound to see that officer makes return, 518, 519. 
 
 pursues his authority with technical nicety,. 
 
 514. 515- 
 , show that debtor had no personal property, 514. 
 required to investigate the proceedings on which judgment was^ 
 
 rendered, 605. 
 required to use same strictness as he would if buying at a private: 
 sale, 527. 
 Obtains benefit of what covenants in a deed, 479. 
 Of equity of redemption, remedy of, 355, 356. 
 interest of tenant, bound by what, 501. 
 property subject to redemption, title acquired by, 363. 
 Only required to know that the court had jurisdiction, 506. 
 Paying an excessive price, when not entitled to relief, 509. 
 Pendente lite, rights of, 500, 501. 
 
 Protected in all the rights acquired prior to reversal of judgment^ 
 604, 605. 
 
INDEX. 729 
 
 Purchaser — Continued. 
 
 Remedy of, for obtaining possession of land sold under a decree, 534, 
 
 535, 536, 537- 
 Right of, how affected by the recording acts, 498. 
 
 on receiving deed, 509. 
 Rights of, 485. 
 
 during pendency of litigation, 351. 
 to obtain possession, 487, 
 
 presume that the court acted rightfully, 577. 
 recover value of improvements, 510. 
 relief, against fraudulent conveyances, 486. 
 
 generally, 507. 
 remove temporary buildings, 510. 
 sell subject to mortgage, 511. 
 under a sale of an equity of redemption, 355, 356. 
 growing crops, 340, 341. 
 individual partner's interest, 544. 
 with notice of a party being in possession, 502. 
 an equitable lien, 502, 
 a trust, 502. 
 Succeeds to rights of creditor, 486. 
 That will be protected without notice, 503. 
 Title of, as against purchaser at other s?les, 362. 
 
 stranger, what necesjary to know to get possession, 527 
 as regards subordinate liens, 503. 
 at foreclosure sales, 361. 
 
 a sale of a vendor's interest, 195. 
 how affected by irregularities in officer's proceedings, 512. 
 
 want of jurisdiction, 506. 
 may be adduced from any part of the proceedings, 527. 
 necessary to show, to recover possession from stranger, 527. 
 not dependent upon a strict compliance with statutory require- 
 
 ments, 513. 
 not to be controverted by debtor, 471. 
 
 impeached in collateral actions, 403, 404. 
 to property pledged or mortgaged, 339. 
 unaffected by failure to return execution, 51S. 
 under a certificate of sale, 435. 
 deed of trust, 511. 
 redemption laws, 363, 436. 
 void sale, 419, 420. 
 Wiiat constitutes, 525. 
 
 what constitutes, in the New England States, 525. 
 what dependent on in the New England States, 519. 
 
 necessary to show against an heir or devisee, 527 528. 
 when plaintiff in execution, 526, 527. 
 where he has no notice, 503. 
 which passes in Missouri, 511. 
 Titles will be maintained by courts, 512. 
 To what rights he succeeds, 486, 487. 
 What entitled to on receiving dee4, 509- 
 passes to, at a sale of land, 524. 
 
 when lands sold subject to redemption, 524. 
 Title he obtains at a sale of land, 359. 
 When authorized to redeem land. sold for taxes, 511. 
 
 bound by the equities of party in possession, 502. 
 
 to satisfy prior mortgage, 510. 
 compelled to pay for more land than is sold, 371. 
 
730 INDEX. 
 
 Furehaser — Continued. 
 
 AA^en entitled to a deed under the redemption laws, 436. 
 to an execution, 63. 
 
 to be subrogated to rights of plaintiff after reversal, 606. 
 benefit of the law relating to fraudulent conveyances, 
 
 486. 
 hold property as against a prior writ, 319. 
 protection by reason of a mistaken description, 509. 
 recover amount of purchase money paid from debtor, 
 
 508. 
 relief, 507. 
 estopped from questioning validity of judgment, 365. 
 
 to deny validity of mortgage, 511, 
 he acquires no title, 337, 420, 510. 
 becomes trustee for debtor, 523. 
 
 all interested, 523. 
 can not be subrogated to rights of plaintiff, 508. 
 he has a remedy against officer for failure of title, 507. 
 may be compelled to complete his contract, 486. 
 
 subrogated to rights of creditor, 507. 
 need not accept deed for uncertainty, 426. 
 not bound to comply with terms and conditions of sale, 486. 
 compelled to take land subject to prior liens, 512. 
 entitled to crops or fixtures, 521. 
 entitled to proceeds of an insurance policy, 522. 
 liable to assignee for failure of title, 508. 
 liable for waste or rent, 510. 
 he obtains no title, 337, 420, 510. 
 
 obtains title over formal liens and claims, 503. 
 should not be molested, 511. 
 takes subject to incumbrances, 500. 
 
 a lease, 365. 
 will be held to have notice of the rights of a tenant, 446, 447. 
 the estate vests in him by sale, 301. 
 With actual or constructive notice of unrecorded deed, title of, 499. 
 notice of deed, how bound, 502. 
 
 and without notice, when the distinction between can not be 
 applied, 517. 
 Without notice of stock in a corporation, 562. 
 
 can not impeach a judgment, 506. 
 of irregularities not affected thereby, 514, 515. 
 must have paid purchase money to be protected, 487. 
 Purchasers — could not be obtained if affected with irregularities, 606. 
 Purchasing property by creditor, is a satisfaction to what extent, 462. 
 Purpose — of an execution, 2. 
 
 homestead laws, 120. 
 For which parties may agree not to bid against each other, 317. 
 
 Qualifications — of appraisers, 304, 305. 
 Quashing— deed, debtor can not move to, 479. 
 
 effect of on purchaser's title, 515. 
 Execution, causes for, 619, 620, 
 effect of, 621. 
 for irregularity, 81. 
 grounds for, 619 
 notice to all parties interested before, 619, 620. 
 
INDEX. 731 
 
 Quashing — Continued. 
 
 Execution on account of defendant's death, 76. 
 on dormant judgment; 69. 
 that is voidable, 51. 
 what not sufficient grounds for, 620. 
 when it will be done, 619. 
 
 not be done, 620. 
 what will prevent party from, 621. 
 Quashing return — effect of, 397. 
 
 ■> uestions — of priority in regard to executions, how determined, 268. 
 of liens, how determined, 273, 274. 
 Relating to excessive levy, how determined, 243. 
 
 surplus proceeds, when they arise, 456. 
 Which arise between State and Federal courts in regard to levy of exe- 
 cution, 259. 
 Qui jurl jndicis, &c., 213. 
 Qui prior est, &,o., 262. 
 
 Railroad — rolling stock of, personal property, 553. 
 
 Sale of, 553. 
 Railroad company — execution against, 550. 
 Franchise of, effect of sale of, 551, 552. 
 
 Franchise of, when and when not liable to execution, 551, 552. 
 Property of, liable to execution, 550, 551. 
 Title of, ill land, liable to execution, 550, 551. 
 When it has nothing subject to levy, 551, 552. 
 Ratification — of clerks issuing execution, effect of, 66. 
 Of sale, effect of, 434. 
 
 in Maryland, 303. 
 Re-advertisement— requirements of, 323, 324. 
 Real estate — and interests, 187. 
 
 And personal property, sale of, 315. 
 Appraisement of, 303. 
 
 Can not be taken except for want of personal property, 288. 
 How it should be sold, 345. 
 levied on, 39. 
 
 made subject to execution in the United States, 33. 
 Lands on real property subject to execution, 178. 
 Levy on, 287. 
 
 no satisfaction, 464. 
 when it must be made, 289. 
 Meaning of the term, 178. 
 Sale of, when irregular and void, 344. 
 Title of purchaser not affected by return, 380. 
 What subject to execution, 196. 
 When it may be levied on, 288. 
 
 taken where there is no personal property 288. 
 Real property — execution for delivery of, 68. 
 Sale of, 343. 
 
 When it may be taken on execution, 141. 
 Real or mixed actions — execution in, 48. 
 Reasons — and object of homestead exemptions, 119, 120. 
 For endorsing time of receipt on writ, 225, 226. 
 exempting property from execution, 86, 87. 
 granting stay of execution, 603, 604. 
 making land liable to execution, II. 
 
732 INDEX. 
 
 Reeisons — Continued. 
 
 For policy of the law in sustaining judicial sales, 512, 513. 
 
 preventing the issue of an execution after a year and a day at com 
 
 mon law, g. 
 refusing to allow an officer to execute writ in his own favor, 206. 
 regarding rolling stock as personal property, 553, 561. 
 
 levy 3^i prima facie satisfaction of judgment, 253. 
 selling land in the inverse order of its alienation, 352. 
 strict compliance with statutes in making sales on execution, 406, 
 subjecting individual partner's interest, 539. ' 
 
 the application of the statute of frauds to executions, 276. 
 creation of the writ of elegit, 15. 
 protection of purchaser at execution sale, 320. 
 
 the law gives officer in executing final process, 212, 
 213, 214. 
 recognizance and statutes, 17. 
 rule making returns evidence, 388, 389. 
 Why an officer's deed is the deed of the debtor, 478, 479. 
 
 officer is not allowed to execute process which he has been com- 
 pelled to pay, 205, 206. 
 bond is requisite in obtaining supersedeas, 600. 
 dwelling-houses are protected against officer in executing writs, 
 
 223. 
 equity of redemption is subject to execution, l8g, 354. 
 judicial sales should be sustained, 506. 
 officer is bound by his return, 391. 
 party can not be both buyer and seller, 321. 
 parties to the action are not regarded as innocent or bona fide 
 
 purchasers, 488. 
 personal property is first to be taken, 141, 142. 
 property levied on can not be seized on other executions, 247, 248. 
 
 sold should be accurately described, 427. 
 purchaser is not entitled to take exclusive possession on sale of 
 
 interest of individual partner, 545. 
 revenue of municipal corporations is exempt from seizure on 
 
 execution, 564, 565. 
 returns are conclusive, 389, 390. 
 
 reversal of judgment does not affect purchaser's title, 603. 
 State and Federal Courts will not interfere in the execution of 
 
 process, 259, 260. 
 the common law subjected only personal property, 10. 
 general property remains in debtor, 25 1. 
 party may control the execution, 210. 
 Reasonable — diligence and care required of officer with property levie<J' 
 on, 257. 
 
 Time allowed officer to move property, 258 
 Receipt — to be taken by officer in paying over proceeds, 449. 
 Receiver — when one will be appointed to satisfy debts of a corporation, 552 
 Receiving — bids by letter, 318. 
 
 Recitals — inadmissible to prove officer's power to sell, 471. 
 In deed, 471. 
 
 prima facie evidence, of what, 482, 483. 
 where sufficient evidence, 472. 
 In execution, 42. 
 
 as affiscting purchaser's title, 516, 517. 
 How regarded, 472. 
 
 May be inserted after execution of the writ, 56. 
 Necessary in alias execution, 77, 78. 
 
1 INDEX. 733 
 
 Secitala — Continued. 
 
 Necessary in deed made by succeeding officer, 470. 
 
 Necessary to sustain deed, 471. 
 
 Of facts, when no evidence, 472. 
 
 Of judgment; failure of»in deed, effect of, 472. 
 
 When conclusive upon purchaser, 472. 
 
 When only prima facie, 472. 
 
 When they are entitled to the same effect as officer's return, 472. 
 
 When they do not bind a party, 472. 
 
 When they may be put in issue, 472. 
 Recognition — of principle of priority between State and Federal courts, 261. 
 Recognizance — 16. 
 
 Record — when a return becomes a matter of, 374. 
 Recorded — deeds as notice to purchaser, 498. 
 
 Or registered instruments and conveyances are notice, 479. 
 Recording — acts as notice to purchaser, 498. 
 
 Certificate of sale, effect of, 435. 
 
 Execution vests possession and title in creditor in the U. S. States, 
 296. 
 Recovery — of a second judgment will not prevent the issue of an execution on 
 the first, 59. 
 
 Of possession, what necessary for purchaser to show as to title, 527. 
 
 Of title in ejectment h prima facie: title in purchaser, 528. 
 Redeemable — interest of mortgage liable only on execution, 150, 151. 
 Redemption — as affecting time to which deed relates, 481. 
 
 Definition and meaning of, 436. 
 
 Equity of, 188. 
 
 In cases where deed is to be made, 468. 
 
 Laws applicable to process in United States courts, 588 
 
 Laws as affecting purchaser's title, 363. 
 
 Of land from sale, 436. 
 
 Of property from execution in the New England States, 296. 
 
 Parties entitled to, right of, 437. 
 
 Right of, effeot upon creditors, 436, 437. 
 
 Sale of equity of, 354. 
 
 What necessary to effect, 438. 
 
 Where there is none, deed to be made when, 301. 
 Reducing bid to writing, effect of, 318. 
 Reference3 in description of property sold, when permitted to be made by 
 
 officer, 426. 
 Re-filing or re-recording, when necessary against an execution, 149. 
 Refusing— confirmation of sale, 433. 
 
 To accept 'bid, officer may, where, 318. 
 
 confirm sale, effect of on purchaser's rights, 510. 
 levy, action may be brought against officer for, when, 627. 
 pay bid, effect of, 315. 
 pay, execution may issue, 66. 
 Refusal of purchaser to pay bid, re-sale may be made upon 325. 
 Registration — as notice, 497. 
 
 Must be of conveyance authorized by law, 498. 
 
 Necessary to protect mortgagees against an execution, 149. 
 
 Of an irregular conveyance as notice, 498. 
 conveyance, effect of as notice, 498. 
 defectively acknowledged deed, as notice, 498. 
 judgment, when necessary as notice, 500. 
 what kind of conveyances, is notice, 498. v 
 Regular issuance of execution presumed, 521, 522. 
 Regularity— of acts of officer presumed, 520.. 
 
784 INDEX. 
 
 Rejpilarity — Continued. 
 
 Of deed, when it can not be impeached, 483. 
 execution issued before death of debtor, 72. 
 
 officer's proceedings, who may and may not contest, 402, 403, 404, 405. 
 return, when it will be presumed, 396. ^ 
 Regulating — priority of creditors' liens, 446. 
 Regulations in various states as to time notice is to be given of sale of personal 
 
 property, 333, 334.. 
 Reimbursement — of purchase-money, what necessary before purchaser can 
 
 compel, 508. 
 Reinstallment — of plaintiff necessary before debtor can recover property, 508. 
 Reissue — of an original after a writ has become functus officio, 83. 
 Relation — of an execution, 44. 
 
 Of the confirmation of sale, 434. 
 Relationship — disqualifies one from being an appraiser, 304. 
 Release — after levy, effect of, 251. 
 
 Of levy, as affecting distribution of proceeds, 452. 
 property after levy, 231. 
 
 from levy by officer, 252. 
 Re-levy — on property, when it may be made by officer, 244. 
 Relief — against irregularities, where obtained, 50. 
 Application for, when to be made, 407. 
 From execution sales, 406. 
 Granted, how obtained, 4. 
 
 Of a party not issuing an execution within the prescribed time, how ob- 
 tained at common law, 10. 
 Of innocent purchaser, 331. 
 Of purchaser of stranger's property, 331. 
 
 when entitled to, 487. 
 When it will be afforded to purchaser, 507. 
 Relinquishment — of levy by officer, 244. 
 Remainder — kinds of, 184, 
 What it is, 184. 
 
 In chattels, liable as personal property, 145. 
 Remedy — against officer in case of the absence of power, in executing process, 
 
 634. 635- 
 In case of death of officer, where there are no statutory provisions in 
 
 regard to making deed, 470. 
 Of creditor of corporation after judgment, 550. 
 
 when corporation has no tangible property subject to execu- 
 tion, 552. 
 Of party, for selling under junior execution, 319, 320. 
 
 in obtaining' possession of real estate, 529-537. 
 when execution is unauthorized by the judgment, 604. 
 when judgment is satisfied, 248. 
 when more land is sold than was taken, 371. 
 when officer forcibly enters his house, 223. 
 when return is false, 393. 
 Of parties who fail to redeem certificate of sale, 435. 
 Of purchaser in obtaining relief, 507. 
 
 of equity of redemption, 355, 356. 
 when return is inaccurate, 391, 392. 
 Of the parties in case of excessive levy, 243. 
 For vagueness of description in levy, 241. 
 Where execution is wrong, 52, 53. 
 Remittitur — when necessary in order to issue execution, 62. 
 Removal — of personal property, right of vests in purchaser, 340. 
 Of restrictions in regard to real property, 12. 
 
INDEX. 735 
 
 Renewal of execution, 83. 
 
 Rent — when a preferred lien on proceeds of sale, 446. 
 Rents — when purchaser entitled to, 509. 
 Replevin — bond, effect of in Kentucky, 275. 
 Common-law return in action of, 48. 
 Execution in, how executed, 47. 
 Form of execution in, 46. 
 How executed, 28. 
 
 Nature and kind of execution in action of, 28. 
 Of property by stranger, effect of, 286. 
 
 property taken on execution, who can not, 247. 
 Return on execution in action of, 47. 
 Representations — fraudulent, ground for setting aside sale, 417. 
 Requirements — essential to right of redemption, 437. 
 In an execution in a replevin action, 46, 47, 
 N. E. States in regard to real estate, 39. 
 Necessary before levy is made on land, 141. 
 
 subjecting land to execution, 288. 
 for the issue of a legal execution, 42. 
 
 constable to bring a claim for property, 246. 
 to affect validity of title to personal property as against credi- 
 tor, 340. 
 prior to the issue of an execution, 61. 
 to change title to real estate sold on execution, 343. 
 a complete return, 374. 
 effect redemption, 438. 
 execute a writ, 200. 
 
 make a levy on land of tenants in common, 180. 
 prevent property from being fraudulently withdrawn from 
 levy, 147. 
 Of an execution, 229. 
 
 law, compliance with, how shown by the return, 378, 379. 
 in regard to sale of franchise, 551. 
 
 execution sales should be strictly complied with, 
 406. 
 notice of sale of personal property, 333. 
 statutes control oiificer in levy, 230. 
 
 in regard to place of sale, construction of, 424. 
 
 sales, how regarded, 410. 
 should be shown to be complied with in confirmation of sale 
 
 of real estate, 435. 
 in regard to re-sale must be strictly complied with, 326. 
 
 sale of land on execution, 33-39. 
 making personalty first liable, give cause of action against 
 officer for not levying on it, 627. 
 statutory provisions in regard to persons appointed appraisers, 306. 
 What directory, what mandatory, 410. 
 Requisites — necessary to be shown by return of officer in N. E. States to con- 
 stitute purchaser's title, 525. 
 
 Necessary to create an equity of redemption, 188, 189. 
 constitute a homestead, 123. 
 
 convert personal chattels into immovable fixtures, 162. 
 entitle purchaser to protection, 487. 
 exempt property, 87. 
 
 execution of final process in N. E. States, 255, 256, 257, 
 258. 
 in Maine, Mass., N. H., and Vermont to vest title in creditor, 
 298. 
 
736 INDEX. 
 
 Requisites — Continuid. i 
 
 Necessary in order to sustain a sale, 572. 
 to obtain injunction, 618. 
 make purchase void, 318. 
 permit officer to amend his return, 399, 400. 
 suspend execution lien against creditor, 267. 
 sale of personal property, 336. 
 be shown before a sale will be set aside, when made io 
 
 bulk, 350. 
 the issue of a legal execution, 4. 
 Of execution sale, 314. 
 
 lis pendens as notice, 494. 
 levy on real estate, 288, 289. 
 statutes and recognizance, 17. 
 return, 373, 379. 
 valid levy against debtors, 237. 
 valid levy against individual partner, 539. 
 a valid levy on real estate, 289, 290. 
 a valid notice of sale, 309. 
 a valid return in New England practice, 382. 
 writ of supersedeas, 5oo. 
 Re-sale — ^loss on, who to sustain, 325. 
 
 Notice of, not necessary to first bidder, 326. 
 Of property, when it should be ordered, 406. 
 Proceedings in to compel payment of loss by, 325. 
 That is .void, 327. 
 
 The result of setting aside sale, 419. 
 When it may be made, 324. 
 Residence — what is meant by, in exemption laws, 122. 
 Responsibility of officer over defendants in process of inferior courts, 218. 
 
 by his return, 375. 
 Restitution — when it will be ordered made by court after reversal, 608. 
 When to be made after superseding execution, 603. 
 Of property may be ordered, on quashing execution, 621. 
 What to be made of, after quashing an execution, 621. 
 Restoring property to debtor after levy, effect of as satisfaction, 465. 
 Resulting — trusts in favor of creditor, how created, 186. 
 
 real estate, when liable, 185, 186. 
 Result — of failing to execute writ, 205. 
 
 Of officer being compelled to pay amount of execution, 205. 
 Retaining amount of prior mortgage by purchaser, liability for, 510. 
 Retention — of possession by mortgagor, when not fraudulent, 152. 
 
 Of property by the debtor after levy is no satisfaction, 254, 255, 2S6. 
 Return — admissible evidence, when, 388. 
 
 After expiration of officer's time, 377. 
 
 Amended even after important consequences may be produced, 399, 400. 
 
 Amendment of, 397. 
 
 Amendment of, as evidence, 402. 
 
 Amendment may be made at any time prior to bringing suit by third 
 
 parties, 399. 
 As evidence, 378. • 
 
 As evidence in actions for false return, 395, 396. 
 As evidence in collateral issues, 394, 395. 
 As preventing judgment from becoming dormant, 376. 
 As to description of property levied on, 379. 
 As to levy on lands, 375. 
 Attestation of, 373. 
 Between whom conclusive, 390, 
 
INDEX. 737 
 
 Return — Continued. 
 By mail, 378. 
 
 By deputy, effect of, 388, 389. 
 How to be made, 373. 
 Conclusive effect of, 373. 
 of what, 389. 
 
 effect of, as to purchaser's title in the N. E. States, 579. 
 Date of, 396. 
 Day of execution, 372. 
 
 what is, ,372. 
 on Sunday, practice in case of, 377. 
 of writ, prevents levy when, 209. 
 sale after, 327. 
 Duty of ofiScer to make, 378. 
 Effect of, 396. 
 
 of amendment of, 402. 
 Exceptions to the rule of conclusiveness, 393, 394. 
 Failure of, as affecting purchaser's title, 518. 
 officer to, renders him liable. 630. 
 to whom officer is liable, 630. 
 Failure to at common law, 373. 
 
 defense in action against officer for, 631. 
 gave an action at common law, 630. 
 rule in New Jersey for, 631. 
 
 statutes of limitation no bar to action against officer for, 631. 
 want of liability of officer for, 630. 
 when officer not liable for, 631. 
 False, action against officer for, 631. 
 
 matters which render officer liable for, 631, 632. 
 what is, 631. 
 Form of, 373. 
 
 How it should be construed, 385, 
 made by deputy, 377. 
 
 to be made when execution is satisfied, 379. 
 proven, 396. 
 In case of land sold, 380. 
 In New England States, as affecting purchaser's title, 519. 
 
 can neither be explained, varied nor altered, 579. 
 
 essential requirements of, 379. 
 
 what it must show in order to constitute pur* 
 
 chaser's title, 525. 
 what facts must be shown in, 382. 
 Irregularities in, as affecting purchaser's title, 518. 
 Insufficient, effect of, 383. 
 Is certificate of officer of his proceedings, 373. 
 Must be made whether process executed or not, 378. 
 Necessary before an alias execution can issue, 78. 
 Neglect to make, effect of as to purchaser's title to land, 38a 
 Not made by officer, as affecting validity of deed, 474. 
 Of a (a. sa., 20, 577. 
 
 as affecting liability of tenant, 578. 
 how made, 577. 
 kinds of, 577. 
 what is good, 578, 579. 
 when returnable, 578. 
 when to be made, 578, 579. 
 execution, 32. 
 
 common law rule as to, 33. 
 
' 738 INDEX. 
 
 Return — Continued. 
 
 Of execution, direction to not a necessary part of execution, 50, 
 how made, 32, 33. 
 
 in less than statutory time, effect of, 377. 
 necessity of, at common law, 10. 
 nulla bona, when it may be made, 387. 
 what it is, 32. 
 no property, when necessary before levy can be made on lancf,. 
 141. 
 required before confirmation of sale of real, 
 estate, 434. 
 not sold, when to be made, 324. 
 
 to be found, what implied by, 387. 
 nulla bona, effect of, 380. 
 
 as to rights of creditor, 387. 
 when proper, 386. 
 officer conclusive as to quantity of land sold, 370, 371. 
 
 as constituting purchaser's title in the N. E. States, 525. 
 
 in N. E. States operates as conveyance of title, 519. 
 
 is evidence of an estate for years, 172. 
 
 of sale sufficient to take it out of ^he statute of fraudir 
 
 366, 367. 
 when conclusive evidence of satisfaction, 461. 
 it does not create purchaser's title, 519. 
 where necessary to be made in order to vest title in purchaser,. 
 
 519- 
 property in his hands for want of buyers, 375. 
 satisfied, effect of, 462. i 
 
 when it prevents the issue of an alias execution, 462. 
 writ is a mere direction to officer, 518. 
 
 required before any action can be taken upon it by court, 406. 
 sent to officer of another county, 378. 
 Presumptions in favor of, 377. 
 Proceedings after, 405, 406. 
 Quashing, requirements necessary for, 397. 
 Reasons to be given in for failure to execute the process, 373. • 
 Remedy of party, for false, 373. 
 Should state that the officer has performed the mandate of the execo- 
 
 tion, 378. 
 Signature to, 373. 
 Statements required in, 373. 
 Sufficient evidence of what, 388, 389. 
 Time to be made, 399. 
 
 Though never made, will not affect purchaser's title, 519. 
 To an execution, 374. 
 
 To state reasons for failing or neglecting to sell, 379. 
 To vendi, effect of, 331. 
 To whom to be made, 377. 
 Upon a ea. sa., 383. 
 Vf)iaX it must state, 373. 
 it should state, 378. 
 
 it should state where part only is collected, 379. 
 is sufficient, 380. 
 officer can not amend, 402. 
 VHien conclusive in regard to appointment of appraisers, 304. 
 false, 388. 
 
 it can not be amended, 400. 
 it can not be legally made, 387. 
 
INDEX. 739 
 
 Return — Continued. 
 
 When it does not set forth the payment of the amount what may be 
 shown, 393. 
 it i% prima facie evidence, 394. 
 it may be amended without leave of court, 398 
 it may be collaterally impeached, 394. 
 it may be contradicted by officer, 394. 
 
 it may be made on paper separate from the execution, 377, 378. 
 it will be quashed, 397. 
 necessary and when not, 373. 
 necessary to amend to make it regular, 402. 
 necessary to the issue of another writ, 375. 
 officer can not be compelled to make additional, 380. 
 permission of court necessary to amend, 398. 
 Who to make, 377. 
 
 Why not necessary to purchaser's title, 381. 
 Returns — that are insufficient, 383. 
 
 Thai have been held insufficient, 383, 384. 
 To writs levied on land that have been held sufficient, 381, 382. 
 Returning execution satisfied, by mistake, as affecting purchaser's title, 515. 
 
 Officer's duty in, 378. 
 Reversal — of judgment as release of levy, 252. 
 
 as affecting purchaser without notice, 604. 
 does not deprive officer of protection, 215. 
 Reversionary estate — ^what it is, and where liable, 184 
 Reversion — and remainder in real estate, when liable to execution, 184. 
 Review — of the law in England prior to the common law, 18. 
 Revival — not necessary after death of party, when, 328. 
 Necessary in case of death of defendant, when, 71. 
 Of judgment for the purpose of issuing execution, 30. 
 when necessary to issue execution, 68. 
 when presumed, 70. 
 
 when unnecessary to issue execution, 68. 
 Unnecessary when either party dies after the commencement of the ex- 
 ecution of the writ, 73. 
 Rhode Island — personal property exempt in, 107. 
 
 Statutory provisions in regard to redemption of property from sale, 443. 
 Time in which execution is returnable, 376. 
 Who entitled to exemption in, 107. 
 Right of — assignee to enforce examination of deed, 471, 
 to proceeds, 453, 
 Bidder to transfer his bid, 319. 
 
 withdraw his bid, 319. 
 Creditor to compel payment out of a secured fund, 172, 
 
 to levy on distinct pa^t of attached property, 148. 
 
 of corporation, 550. 
 
 of individual partner, 538. 
 
 or attorney to control execution, 209, 210. 
 
 under elegit in Virginia, 299. 
 
 under judgment, 499, 500. 
 
 against individual partner, 541, 542, 543. 
 lien on land, 293. 
 to show appraisement is fraudulent, 327. 
 where an officer collects money after return day, 464. 
 Debtor after sale, 528. 
 
 in executing the process, 214. 
 
 to apply proceeds, 460. 
 
 to have land sold in parcels, 348. 
 
740 INDEX. 
 
 Right oi— Continued. 
 
 Debtor to have homestead laid off in North Carolina, 139. 
 to have sale set aside, 408, 409. 
 to designate exempt property, 1 11. 
 to designate what property shall be taken, 237. 
 to sell property after levy, 245. 
 in New England states after levy of execution, 297. 
 to have his property legally seized and sold, 623. 
 to waive appraisement, 303. 
 advertisement, 309. 
 formalities of the law, 316. 
 where party purchases at an inadequate price, 523. 
 Defendant after reversal, 5o8. 
 Execution creditor, how determined, 263. 
 
 and assignee in bankruptcy, how determined, 279. 
 Homestead, how and for what purpose created, 120. 
 
 is a personal one, 125. 
 Mortgagor after foreclosure and sale, 363. 
 
 0£Scer to maintain action for possession of property taken under execu- 
 tion, 245. 
 amend his return before its completion, 397, 398. 
 postpone or adjourn sale, 210. 
 presume the proper issuance of the writ, 216. 
 VaxViti, pemiente lite not to be regarded in the sale of lands, 345. 
 to extend time for redemption, 439. 
 to proceeds in Pennsylvania, how determined, 458, 459. 
 to relief, 406, 407. 
 
 that can not be affected by reversal of judgment, 605, 606. 
 Plaintiff protected under alias execution, 79, 
 Possession, 529. 
 Property, trial of, 222, 282. 
 Purchaser, 485. 
 
 as affected by notice of recorded conveyances, 498. 
 
 as to subordinate liens, 503. 
 
 at execution sale, 319. 
 
 at execution sale, liable, 192. 
 
 at a sale under a junior judgment, 354. 
 
 of interest of individual partner's interest to an account, 
 
 544, 545- 
 of land at execution sale, 360. 
 of personal property, 338. 
 of land subject to mortgage, 354. 
 of a judgment at execution sale, 157. 
 not complete till payment of purchase money, 487. 
 to a deed, 487. 
 
 to recover purchase money from plaintiff, 331. 
 to relief, 507. 
 
 to redeem from under lien, 195. 
 to relief against fraudulent conveyances, 486. 
 under judgment, how regarded, 500. 
 with notice of prior conveyances, 497, 498. 
 with and without notice, 485, 486. 
 where prior deeds are unrecorded, 505. 
 Redemption, effect of, 436. 
 
 effect of sale, 191. 
 from void sale, 440. 
 what it is, 436. 
 Wlien it can not be divested, 440. 
 
INDEX. 741 
 
 Right of— Continued. 
 
 When it can not be enforced, 437. 
 
 Who entitled to in case of sale of corporation property, 438. 
 Separate creditor to obtain satisfaction, dependent on what, 548. 
 Stranger and party purchasing under erroneous execution, 508, 509. 
 Surety to proceeds, 453. 
 Bight — as to ele^t in Virginia, 299. 
 
 And interest of mortgagor, when it can not be seized as personal prop. 
 
 erty, 154. 
 And remedy of parties at trial of rights of property, 284. 
 Title and interest of a debtor, effect of a sale of, 365. 
 
 debtor is equivalent to levy on land, 240. 
 To demand indemnity, 221. 
 levy on real estate, 287, 288. 
 
 how conferred, 293. 
 personal property, consists of what, 143. 
 redeem, when it may be sold, 191. 
 relief for making sale at improper time, 408. 
 seize real property under execution, and how conveyed, 140. 
 lUghtB — acquired by purchaser of stock in corporation, 561, 562. 
 
 prior to reversal of judgment, protected, 604, 
 
 605. 
 without notice, 503, 504. 
 And liabilities of purchaser, upon what dependent, 487. 
 Of entry and possession, 184. 
 
 third parties, when they will not be affected by amendment, 399. 
 two purchasers under a mortgage which is not a common incumbrance 
 on the land, 511. 
 Which purchasers acquire by sale of property in bulk, 340. 
 Road — not subject to sale, 552. 
 
 Rolling stock— of railroad company, when it can not be sold as personal 
 property, 561. 
 
 Subject to sale as personal property, 553-561. 
 Where liable as personal property, 561. 
 Roman law — as to personal property, 141. 
 Rule — applicable in regard to purchases, as to forfeiture, 163. 
 
 to proceedings of Federal Courts in admiralty cases, 589, 590. 
 where officer has no authority to sell, 430, 431. 
 As to time in which amendments to return may be made, 399. 
 At common law in regard to the writ of supersedeas, 600. 
 By which to measure the damages sustained by failure to levy, 626. 
 For guidance of officer in executing writ, 208. 
 issuing execution in the various states, 58. 
 
 Penn. and N. C, 59, 60. 
 Governing acknowledgment of deeds, 473. 
 sales of personal property, 336. 
 In Arkansas in regard to distribution of proceeds, 460. 
 caveat emptor, when applicable, 329. 
 construction of returns, 385. 
 
 Indiana in regard to levy being satisfaction of judgment, 256. 
 Iiouisiana in regard to recitals in deeds, 472. 
 
 sales of real estate, 336. 
 New England States as to time title vests in purchaser, 482. 
 
 in regard to description of land levied on to 
 be in return, 382. 
 regard to return, 519. 
 North Carolina in regard to selling equitable interest, 193. 
 
 distribution of proceeds, 459, 460, 
 
742 INDEX. 
 
 Rule^ Continued. 
 
 In Pennsylvania as to who is entitled to stay of execution, 604. 
 in regard to distribution of proceeds, 458, 
 regard to amendments of return, 397. 
 
 ascertaining whether personal property is liable to levy or 
 
 not, 167. 
 distribution of proceeds, 446, 
 
 among several creditors of equal 
 
 rank, 453. 
 in case of several executions, 449, 
 
 450. 
 on judgments of same date, 449. 
 executing process, 207. 
 execution of final process, 203. 
 levy on land fraudulently conveyed, 293. 
 liability of officer for failing to levy execution, 625. 
 notice, 490, 491. 
 place of sale, 31X. 
 priority of executions, 267, 268. 
 purchaser's interest at execution sale, 194. 
 right to rents, 509, 510. 
 title in various states, 525, 526. 
 purchasing without notice, 503, 504. 
 registered conveyances as notice, 497. 
 sale after return day, 32/, 328. 
 sale after death of parties, 328. 
 sale without appraisement, 303. 
 selling land in parcels, 346, 347, 348. 
 setting aside sales for inadequacy of consideration, 412, 
 title of prior purchaser under junior execution, 511. 
 trial of right of property iu Indiana, 283. 
 in Kansas, 283. 
 in Missouri, 283. 
 in Pennsylvania, 283. 
 In Tennessee and North Carolina as to time deed relates to, 482. 
 In vaiious States as to what will take a sale out of the statute of frauds, 
 367. 368. 
 after death of plaintiff, 71. 
 in regard to levy on interest of individual partner, 
 
 523- 
 in regard to levy on real estate, 288. 
 in regard to personal property being primarily liable, 
 
 142. 
 in regard to sale of property under contract of pur- 
 chase, 144, 145. 
 in regard to sale of land on execution, 179, 
 in regard to sales after return day, 328. 
 in regard to supersedeas, 601. 
 . _ in regard to time to which deed relates, 481, 482. 
 
 Necessity of, for conclusiveness of return, 390. 
 Of construction applied to officer's deed, 477. 
 Of exemptions, 87. 
 Of law, as to what may be taken on execution against individual part 
 
 ner, 540. 
 Of law in regard to revivals, 6g. 
 
 Of law in regard to right of entry and possession, 184. 
 Of law, principles of in regard to purchasers without notice, 5C6. 
 Of law protecting purchasers, how modified, 608. 
 
IJMDEX. 743 
 
 Sule — Continued. 
 
 Of priority between officer and creditor, 264. 
 
 Of selling equitable interest when chancery prevails, 193. 
 
 Of Omnia rite est, dfc., how applied by court to acts of officer, 520, 531, 
 
 522, 523. 
 Of Omnia rite est, Sr'c, when it does not apply, 523. 
 Relating to distribution of surplus proceeds, 457, 458. 
 Subjecting equities of redemption to execution, 189. 
 
 real property to execution, 179. 
 Where a greater quantity of land was sold than was levied on, 371, 
 Where creditor is purchaser in regard to return of money collected, 392, 
 
 393- 
 Where debtor conveys his land to different parties, 353. 
 Where party intermingles property with that levied on 277, 
 'Rules of Equity which govern the issue of final process from Federal courts, 
 589. 
 
 S. 
 
 Sacrifice — ground for setting aside sale, 410, 416. 
 Of property, proceedings in case of, 323. 
 
 at forced sale to be considered in making levy, 233, 
 Sacrifices — at sales, provisions of, under appraisement laws, 324. 
 Sale — adjournment or postponement of, 210. 
 After death of parties, 328. • 
 
 After return day, when it confers no title on purchaser, 422. 
 After return day, 327. 
 Application of proceeds of, 444. 
 And seizure in admiralty, effect of, 592. 
 At which purchaser acquires no titte, 425, 426. 
 Authority to officer to sell, 313. 
 Bidding at, 387. 
 By whom to be made, 314. 
 Certificate of, 435. 
 ■Confirmation of, 432. 
 Effect of, 313- 
 
 of interest of individual partner, 544. 
 setting aside, 419. 
 £n masse, 346. 
 
 may be set aside on motion, 347. 
 Excessive, liability of officer for, 629. 
 
 when it will be sustained, 423. 
 Failing to duly advertise renders officer liable, 628. 
 For costs, effect of, 425. 
 
 For less than the required amount of the appraisement, 423 
 How governed, 314. 
 
 How to be made under appraisement laws, 308. 
 In admiralty, distribution of surplus, 590, 591" 
 what entitled.to proceeds, 590. 
 when courts can not restrain, 590. 
 In bulk, of land, stranger no right to object to, 350. 
 In foreclosure cases, 361. 
 In parcels, 345. 
 
 presumption in regard to, 522, 523. 
 3/lade at other places, when valid, 311. 
 
 at an inadequate price, 412, 413. , . , . 
 
 by agreement of parties, effect of as to distribution of pTOceeds, 
 460, 
 
744 INDEX, 
 
 Sale — Continued. 
 
 by party to himself void, 322. 
 
 in other ways than those prescribed by statutes, 425. 
 
 on judgments payable in installments, 362. 
 
 on two executions in officer's hands, 319. 
 
 to party selling, when voidable, 322. 
 
 under order of court, why it should be sustained, 506. 
 
 for the purpose of hindering and defrauding creditors, effect of^ 
 
 417. 
 without appraisement, when void, 423. 
 Matters which render officer liable for negligence in, 628, 629. 
 May be made after death of parties if proceedings were commenceA 
 
 before, 328. 
 Must be at public auction, 315. 
 Neglect to make, renders officer liable, 629. 
 Negligence in, liability of officer for, 628. 
 
 to whom officer liable, 628. 
 Not avoided by creditor purchasing, 315. 
 Notice of, 309. 
 No power to set aside, 327. 
 
 Of creditor's property on execution against his debtor, effect of, 430. 
 Debtor's homestead, effect of, 135, 136. 
 
 property one of the necessary consequences of an execution, 4. 
 Of entire property instead of mortgagor's interest renders officer liable,. 
 629. 
 equity of redemption, 354. 
 
 effect of, igi. 
 in several tracts, 356, 357. 
 exempt property, liability of officer for, 629. 
 
 notice to officer of exemption, when required, 630. 
 trial of right of property will not relieve officer 
 from liability, 630. 
 franchise of corporation, 551, 552. 
 
 greater amount of property than necessary, effect of, 423. 
 growing crops, 340. 
 homestead, effect of, 420. 
 
 when can not be made, 135. 
 individual partner's interest, how made, 544. 
 interest of holder of Government certificate, effect of, 193. 
 judgment on execution, effect of, 157. 
 
 land by ^reement of creditors, effect of as to other liens, 366. 
 bankrupt court, effect of, 359. 
 effect of, 358. 
 
 en masse renders officer liable, 628. 
 held by Government certificates, 365. 
 in bulk, when valid, 350. 
 en masse sufficient to authorize injunction, 616. 
 on execution, where adopted as a practice, 301 . 
 previously conveyed, rights of purchaser, 351, 
 where there is personal property, does not avoid the sale,^ 
 429. 
 Of lease and fixtures, 342. 
 Of mortgaged property, leases, &c., 341. 
 
 when it need not be present, 341. 
 of more property than sufficient to satisfy the writ, liability of officer for,. 
 
 629. 
 Of personal property, 333. 
 
 after return day, 327. 
 
INDEX. 745 
 
 Of penonal property, how evidenced, 337. 
 how made, 336. 
 
 necessary to convert it into money, 333. 
 notice of time and place of, 333. 
 that is fiandulent, 339, 
 that is void, 339. 
 when illegal, 336. 
 
 when it has priority over mortgage, 342. 
 when it may be proved by parol, 337. 
 Of possesiory right, 185. 
 Of property at different place than that advertised, liability of officer for, 
 
 629. 
 Of property beyond the jurisdiction of the officer, 424. 
 conveyed before issue of execution, 351. 
 before or after time advertised renders officer liable, 639. 
 en masse as affecting purchaser's title, 516. 
 fraudulently, duty of officer in regard to levy on, 251. 
 illegally seized may be enjoined, 6u. 
 in the inverse order of its alienation, 352. 
 in which debtor had no interest, effect of, 421. 
 not subject to execution, liability of officer for, 629. 
 on execution, how prevented by debtor, 251. 
 subject to vendor's lien, what passes by, 364, 365. 
 Of re«l estate on execution, by what authority made, 344. 
 
 when there -is personal property, will not vitiate purchaser** 
 title, 514. 
 Of real property, 343. 
 Of several parcels of land, how made, 346. 
 Of stock in coiporation, when void, 562, 563. 
 Of several tracts, when it may be made en masse, 349. 
 Of vendor's interest, effect of, 195. 
 On decree, how made, 361. 
 On execution against individual partner, 539. 
 issued for more than is due, 425. 
 
 too much, 424, 425. 
 omitting the name of one of the parties, 423. 
 varying from the judgment, 424. 
 
 while debtor is under commitment under prior execution, 
 effect of, 422. 
 On foiled execution, 423. 
 
 judgment, when it conveys a paramount title to that of a mortgage, 
 
 362. 
 two executions, when title in senior execution has tht preference, 366. 
 writ issued on dormant judgment, 423. 
 
 judgment, void for want of jurisdiction, 423. 
 without seal, 423. 
 writs that do not conform to judgment, 410. 
 Toid execution as affecting the right of redemption, 44a 
 Place of, 311. 
 
 is mandatory, when, 424. 
 Postponement of, 323. 
 Presumption in favor of regularity of, 521. 
 Prevented by payment, 4. 
 Prior to time advertised, 425. 
 Proceeds of, who entitled to, 446. 
 Proceedings in case of sacrifice, 323. 
 Redemption from, 436. 
 
746 INDEX. 
 
 Sale — Continued. 
 
 Rights of debtor after, 528. 
 
 Sacrifice at, renders officer liable, 628. 
 
 Setting aside of, notice must be given to all parties, 517. 
 
 on insuflSciency of description in advertisement, 31a 
 Should be in parcels, 315, 316. 
 
 Subject to mortgage, rights of purchaser under, 511. 
 Surrendering possession without, renders officer liable, 628. 
 That comes under the rule of de minimis, 423. 
 That is fraudulent, 416. 
 That is void, 420. 
 To attorney, when fraudulent, 417. 
 To be made on what days, 315. 
 To be made to highest bidder, 317. 
 To stranger, when it should not be set aside, 416, 
 Under decree of foreclosure, how made, 344. 
 
 execution, as affected by statute of frauds, 366. 
 junior execution, effect of, 3r9. 
 
 judgment, when it divests lien of senior one, 362. 
 several executions and only one valid, effect of, 424. 
 
 title which passes to purchaser, 320. 
 vendi, 331. 
 
 writ partially satisfied, 424. 
 Validity of, after adjournment, 324/ 
 Vitiated by an ipperfect deed, 467. 
 Void, effect of, 419, 420. 
 
 for uncertainty of description, 426. 
 What is a, 313. 
 
 can be made for, 315. 
 will render fraudulent, 317, 318. 
 When it can not be made, 315. 
 
 furnishes evidence of irregularity and unfairness, 415. 
 
 may be confirmed, 432. 
 
 may be enjoined, 614. 
 
 may be set aside in direct proceedings, but not on collateral 
 
 ones, 411. 
 should be confirmed, 433. 
 will be sustained by court notwithstanding irregularities, 428, 
 
 429, 430. 
 will be set aside, 411. 
 
 not be sustained, 506. 
 not absolutely void, 242. 
 subject to liens, 361. 
 prohibited without appraisement, 308. 
 purchaser will not be required to complete, 509. 
 valid though not in strict compliance with statutes, 512. 
 void, 419. 
 
 and when voidable, 410. 
 by reason of refusing highest bid, 318. 
 for vagueness of description, 427. 
 without appraisement, 303. 
 Where officer has sufficient money in his hands to satisfy execution, 424. 
 to be made in Louisiana, 311. 
 Missouri, 311, 
 Which will not stand on appeal may be enjoined, 614. 
 Who may purchase at, 321. 
 
 Without appraisement, presumption, in case of, 521. 
 Sales — matters sufficient to enjoin, 614, 615. 
 
INDEX. 747 
 
 Sales — Continued. 
 
 That have been set aside for inadequacy of consideration, 414, 415. 
 Under process from Federal courts, effect of, 587, 
 
 what is void in, 588 
 rule governs, 588. 
 Void for want of jurisdiction, 422, 423. 
 When to be set aside by courts, 406. 
 Satisfaction— of execution, 43, 44. 
 
 at common law, 12. 
 
 by forfeiture of forthcoming-bond, 463. 
 payment, 4. 
 
 mistake, as affecting its priority, 220. 
 effect of entry of 6n purchaser's title, 505. 
 entering and vacating, 466. 
 how shown by. the return, 374. 
 only are, 447. 
 parties who may, 463. 
 priority in, 263. 
 what is, 461. 
 Of judgment, effect of at sale, 419. 
 how obtained, 4. 
 the debt by creditor purchasing, 321. 
 Presumption in case of return of, 522. 
 What no ground for vacating in the N. E. States, 466. 
 operates as, 462. 
 is not, 463. 
 
 sufficient under ca. sa., 573. 
 Satisfied — return of, presumptions made by, 396. 
 Scire facias — creation of, I2. 
 Nature and object of, 29. 
 Origin of, 29. 
 To revive judgment, 68. 
 
 When necessary in case of death of defendant, 73. 
 Seal — effect of not affixing to execution, 44. 
 Execution without, when void, 52. 
 Want of, as invalidating sale, 423. 
 how supplied, 44. 
 Second — execution, when it can not issue, 6r. 
 
 Levy, when it may be made, 244. 
 Secret — vices as affecting purchaser's title, 506. 
 Seize — meaning of, in action for false return, 388. 
 Seizure— and sale constituting purchaser's title, 527. 
 
 By officer of State or Federal court gives priority to said court, 260, 261. 
 Of all property of partnership, why necessary in execution against in- 
 dividual partner, 541. ' 
 Of property as a Isvy, 228. 
 effect of, 228. 
 
 necessary before it-can be sold, 231, 
 when complete, 234, 235. 
 when it should be made, 209. 
 Outside of a building, effect of, 239. 
 What is a, 235. 
 Selection — of homestead, 125. 
 Of exempt property, 112. 
 Or appointment of appraisers, 304, 305. 
 Seller can not be buyer at execution sale, 321. 
 Selling — more land than is levied on, effect of, 371. 
 
 More land effect of; as to validity of deed) 474. 
 
748 INDEX. 
 
 Selling — Continued. 
 
 More property than necessary, effect of, 316. 
 Personal property en masse, 336. 
 Property on a day other than that advertised, 408. 
 Senior — creditor, when entitled to proceeds, 450. 
 Execution, when entitled to proceeds, 449. 
 
 though sale made under junior, 450. 
 Writ, when entitled to priority, 262. 
 Separate e:cecution — when it will be postponed in favor of a general one 
 
 against the firm, 549. 
 Sequestration — how executed, 31. 
 Origin and nature of, 31. 
 When issued, 31. 
 Where void, 31. 
 Service — failure of, as avoiding sale, 422, 423. 
 
 On Sunday, effect of, 209. 
 Setting aside — execution, 80. 
 Levy, 241, 
 
 effect of, 24J. 
 
 upon satisfaction of execution, 465. 
 Sale, effect of, 419. 
 for fraud, 417. 
 
 inadequacy of consideration, 412. 
 
 when stranger is purchaser, 416. 
 of land by court, 350. 
 made en masse, 346, 347, 348. 
 Writ of assistance, 537. 
 Setting off— execution, 226. 
 
 when not permitted, 226. \ 
 
 Land on execution in N. E. States. 294. \ 
 
 Several — defendants, land of, how to be sold, 349. 
 
 proceedings in execution against, 222, 223. 
 where one has personal property his real estate may be 
 taken, 294. 
 Parcels of land, how appraised, 306. 
 
 sale of voidable but not void, 347. 
 Plaintiffs, death of one, practice in case of, 71, 
 Shares — in crops, when and when not liable, 160, 161. 
 Shares of stock — duty of officer in regard to sale of, 562. 
 Effect of sale of, 563. 
 How considered, 561. 
 
 conveyed to purchaser, 563. 
 made liable to execution, 561, 562. 
 made subject to sale on execution, 562. 
 party is to obtain possession of, 563. 
 Held by one corporation as a member of another, how liable, 563. 
 Inadequacy of consideration, as affecting sale of, 563. 
 In a railroad company, real estate in Kentucky, 562. 
 In corporation, how subject to execution, 567. 
 Mode of sale of, 562, 563. 
 Title to, vests in purchaser without notice, 563. 
 What interest in may be sold, 562. 
 interest passes by sale of, 563. 
 is a good sale of, 563. 
 they are, 561. 
 When not subject to levy, 562. 
 Sheriff — and deputy one officer, 202. 
 
 When not proper person to execute process, 67. 
 
INDEX. 749 
 
 Signature — of officer to levy, 236. 
 
 To an execution necessary, 44. 
 To a return, 373. 
 Want of, amendable, 55. 
 Signification — of an execution, i. 
 Silence— of the party while levy is made on exempt property does not estop 
 
 him, 93. 
 South Carolina — personal property exempt in, 108. 
 
 Rule in regard to interest of joint tenants, 183. 
 Time in which execution is returnable, 376. 
 Special — execution, when it may issue after death of party, 71, 72. 
 Ownership vests in officer by levy, 233, 244. 
 Property in goods, created for what purpose, 278. 
 Specific articles of personal property liable, 145, 146. 
 Spirituous liquors in New England personal property, 144. 
 Standing — ^by and permitting property to be sold, effect of, 368. 
 
 Timber liable as personal property, when, 145. 
 State — laws, how they control and govern Federal officers in execution of final 
 process, 584, 585. 
 Property not liable to execution, 196, 197. 
 Where it has prior lien on property of corporations, 551. 
 States — in which officer's return is not conclusive, 394. 
 
 Where certificates of sale are issued, 435. 
 Statement of facts in return held insufficient, 383. 
 
 Statute — authority divesting title, when it must be strictly complied with, 349. 
 Of Acton Bumell, 12. 
 
 frauds as affecting execution sales, 360. 
 
 to time property is bound, 275. 
 limitations at common law relating to execution, 9. 
 
 no bar to action for false return, 367. 
 Westminster, 12, 13. 
 Merchant, t6. 
 Staple, t6. 
 Statutes — abolishing imprisonment for debt have destroyed the efficiency of the 
 ca. sa., 20. 
 
 Control sale of land, 349. 
 
 Creating the writ of elegit, 23. 
 
 Of frauds require indorsement of time of receipt of writ, 225, 226. 
 
 Regarding duty of officer under execution, how considered, 230. 
 
 Regulating final process from Federal courts, 580-584. 
 
 Staple and merchant binding effect of, 17. 
 
 where made, 17. 
 Subjecting land to execution in various states, 33-39, 
 To enforce the execution 'of process and to punish ministerial 
 officers, 15. 
 Statutory — enactments in various states in regard to levying on crops, 161. 
 Limitations as to amount of property allowed as a homestead, 137. 
 Prohibition preventing officer from purchasing at their own sale, 322. 
 Provisions giving judgment creditors priority over unrecorded convey- 
 ances, 500. 
 Provisions in regard to notice of sale of personal property in Colorado, 
 Kansas, Ky., Pa., Mass., the N. E. states, California, Connecticut, 
 Arkansas, and Virginia, 333, 334. 
 Provisions in regard to postponement of sale, 323. 
 
 property not liable to execution, 174. 
 redemption, 436, 437. 
 right of redemption, 441, 442. 443. 
 regulating time of return of execution, 376. 
 
750 INDEX. 
 
 statutory — Qmtinued. 
 
 Provisions regulating proceedings after death of parties must be complied 
 with, 329. 
 relating to issue of execution, 57. 
 rendering land liable, 287, 288. 
 
 relating to issue of execution in case of death of defendant, 73. 
 Regulations affecting the issue of execution, 70. 
 
 regarding renewal of executions, 83, 84. 
 Requirements in regard to appointment of appraisers, 304, 305. 
 mortgaging personal property, 149. 
 seizing property on execution, 141. 
 return of writ, when directory, 518. 
 return, 33. 
 sale of land not sufficient to impeach deed, 347, 348. 
 must be complied with in 'sale of land, 344. 
 necessary to take sale out of statute of frauds, 367. 
 of an officer in regard to levy, 230. 
 
 right to redemption, 437. 
 what failure to comply with will not affect purchaser's title, 
 
 515. 
 when regarded as directory, 512. 
 Right to redeem from execution sale not liable, 191. 
 
 when liable, 192, 
 Stay — of execution, 544. 
 
 As affecting its priority, 270. 
 By supersedeas, 592. 
 How controlled, 594. 
 
 In Alabama, Arkansas, Delaware, California, Dist. of Columbia, Florida, 
 Georgia, Iowa, Indiana, Kansas, Kentucky, Maryland, Michigan, 
 Minnesota, Nebraska, New Jersey, North Carolina, Ohio, Pennsyl- 
 vania, Tennessee, West Virginia, and Wisconsin, 595 . 
 In Georgia, 597. 
 In justice's court, 597, 598. 
 
 controlled by statute, 598. 
 
 effect of, 598. 
 
 matters relating to, 598. 
 
 right of debtor to dispose of his property after, 598. 
 
 what necessary to obtain, 597, 598. 
 
 constitute, 598. 
 when it will not prevent issue during time of stay, 598, 
 not legal, 598. 
 permitted, 598. 
 In Pennsylvania, who entitled to, 604. 
 In Tennessee, against non-residents, 596. 
 Is in derogation of common law, 596. 
 In U. S. courts, 592. 
 Matter of statutory right, 596. 
 Motion for new trial does not operate as, 597. 
 Not allowed after writ of error is determined, 599. 
 Not granted after sale on dormant judgment, 599. 
 for abuse of officer executing it, 599. 
 Object of, 592. 
 
 On writ of error from a State court to supreme court of U. S., 599. 
 Prevents the statute of limitations running, 58. 
 Requisites necessary that plaintiff in error may obtain, 596. 
 Rule to show cause for setting aside judgment does not operate as, 597. 
 States in which there is no, 595. 
 Statutory provisions as to time of, 595. 
 
INDEX. 751 
 
 Btxy— Continued. 
 
 Suspends its issues, 3. 
 Temporarily, to prevent fraud, 596. 
 Time for which it may be, 592. 
 Upon void judgment, 596. 
 
 When allowed where judgment is rendered on last instrument, 603. 
 When bond required to be filed in, 592. 
 bankrupt entitled to, 596. 
 debtor entitled to, 596, 597. 
 discretionary with courts, 596. 
 it can not be granted by judge of court, 599. 
 it may be ordered by judge at chambers, 596. 
 it must be applied for, 596. 
 not allowed, 599. 
 Where allowed, 595. 
 
 Where it issues for more than is due on judgment, 603. 
 Sta3ring — execution by injunction, 609. 
 Proceedings by injunction, 609. 
 after levy, 249. ■• 
 
 under execution prevents levy being satisfied, 25X. 
 Stock — and shares of stock in corporation, choses in action, 561. 
 Stockholder of corporation may be purchaser at sale, 521. 
 Stranger — can not assail an execution, 79. 
 
 Deed, when no evidence against, 483. 
 Discharging lien, effect of, 153, 154. 
 Entitled to injunction, when, 610. 
 May restrain levy on his property by injunction, 610. 
 May restrain sale of his property by injunction, 610-614, 
 Need only shovir execution to prove title, 527. 
 Not affected by irregularities of officer, 403. 
 Not permitted to raise any question as to the return, 393. 
 To action, why protected when a purchaser, 607. 
 When he acquires a purchaser's rights, 487. 
 • he may pay money in satisfaction of execution, 463. 
 
 liable, 22Q. 
 
 protected by issue of execution, 77. 
 Stranger's property taken by officer renders him liable, 217. 
 Subdividing land after levy, does not compel officer to sell in parcels, 346. 
 Sulgect could not take personalty, 8. 
 Subjecting after-acquired property to execution, 277. 
 'Subrogation — of assignee to creditors' right to proceeds, 453. 
 Of surety to creditor, 453. 
 When officer entitled to, 206. 
 
 may have benefit of, 204, 205. 
 not entitled to, 206. 
 Subsequent — creditors, how affected by redemption laws, 436, 437. 
 Levy, when it will be good against older execution, 273. 
 Writs issued to officer, how executed, 249, 250. 
 Substantial compliance with appraisement law is all that is required; 307, 308. 
 Substituted — goods, when they become liable to execution, 277. 
 When regular purchaser not liable to be, 508. , 
 
 Writ, when it will be ordered by court, 79. 
 Substitution — of party for purchaser, as affecting his right to relief, 508. 
 
 Of purchaser to the rights of individual partner, 545. 
 Successor of officer, when to make deed, 469. 
 Sufficiency of return, 379, 381. 
 
 what is, 380. 
 Sufficient evidence, what is, in action for negligence against officer, 628. 
 
762 INDEX. 
 
 Suggestion — necessary to secure the appointment of disinterested party to 
 serve process, 67. 
 Of death, when necessary, 72. 
 Sunday — no writ can be executed on, 209. 
 
 Officer not bound to receive instructions on, 231. 
 Return made on, 384. 
 Supersedeas — ^As complete on execution bond and writ of error, 601. 
 Bond necessary in, 600, 601, 
 amount of, 600. 
 reason why necessary, 600. 
 to be filed, when, 592. 
 to be filed within sixty days, 592. 
 when it operates as release of levy, 252. 
 Can not be issued by inferior courts on judgment of supreme court, 604. 
 Claim bond is, 604. 
 
 Codes have not changed or modified its effect, 603. 
 Common law rule in regard to, 600. 
 Diligence required in obtaining, 6oi. 
 Effect of on officer, 601, 602. 
 Express and implied, 599. 
 Express, what it is, 599. 
 Implied, what it is, 600. 
 In Federal courts, 592. 
 
 In Indiana, rule where debtor is unable to give bond, 602. 
 Liability of officer after notice of, 602. 
 May be allowed after filing appeal bond, 602. 
 Meaning of the word, 599. 
 Not allowed after execution is executed, 602. 
 Not to be issued for causes arising after judgment, 604. 
 Of execution in part not allowed, 602. 
 Officer bound to obey, 602. 
 
 Officer must have notice of, in order to stay his proceedings, 602, 
 Or setting aside proceedings, 599. 
 Perfected appeal, effect of as, 601. 
 Proper remedy if execution is issued after death of debtor, 604. 
 
 by clerk without authority, 604, 
 where execution is unauthorized by judgment, 604. 
 where there is probable cause for reversing judgment, 
 604. 
 Requisites to obtain, 592, 593. 
 Statutes regulating, 592. 
 Statutory enactments in regard to, 600, 601. 
 requirements in regard to, 600, 601. 
 What is not, 603. 
 
 sufficient notice of to officer, 602. 
 When it may arrest proceedings on void execution, 6oa. 
 will and will not be granted, 603. 
 will be granted, 602. 
 Will not be granted on application of third parties, 604. 
 Superfluities — and articles of luxury excluded from term " household furni- 
 ture " in exemption cases, 113. 
 Superseding — and enjoining executions, 594. 
 And staying proceedings, effect of, 603. 
 
 does not discharge debt, 603. 
 prevents execution of process, 603. 
 restitution, when to be made after, 603. 
 Executions, time commences to run from, when, 593. 
 when court no power to, 593. 
 
INDEX. 753 
 
 Supreme court — of Missouri may issue executions, when, 65. 
 Surety — holding a senior lien, when not entitled to proceeds, 452. 
 May cause execution to issue against his principal, 66. 
 On indemnifying bond, when liable, 220 
 Or indorser, how discharged by release of levy, 252. 
 
 must point out his principal's property to sheriff, 232. 
 Payment by, as satisfaction of execution, 462. 
 Right of to proceeds, 453. 
 When officer liable to, 626. 
 
 his lands may be levied on, 294. 
 Surplus — proceeds can not be claimed by officer, 457. 
 
 Of execution, when they will be appropriated by the court to the satis. 
 
 faction of a judgment in favor of another party, 158, 159. 
 Of homestead exempt from execution, 160. 
 
 how distributed, 447. 
 Of firm property, when it may be applied to separate execution, 549. 
 Of sale, distribution of, 456. 
 
 of equity of redemption, how applied, 356, 357. 
 of property of corporation, ho* applied, 553. 
 How applied to satisfaction of other execution, 249, 250. 
 When applied to subsequent writ, 249. 
 debtor entitled to, 457, 458. 
 liable to junior judgment creditor, 454. 
 it takes the place of land sold, 456. 
 regarded as in the custody of the court and how, 159, 
 Surprise — no ground for granting injunction, 618. 
 Surrender — of exempt property waives debtor's claim, 89. 
 Siurvivors — when execution may be issued against, 329. 
 Suspension — of proceedings, when it will not release levy, 252. 
 Sustaining — sales made on execution, 428. 
 Suing — appraisers, 305. 
 Sweeping — effect of a king's execution, 18. 
 
 Taking — or seizing property, is levying upon it, 228. 
 Property, effect of, 228. 
 
 under execution, what is implied by, 235. 
 TaKes — execution for, when entitled to priority. 451. 
 
 What ownership in debtor will entitle purchaser to redeem from, 57X. 
 When entitled to priority in distribution of proceeds, 455. 
 proceeds can not be applied to payment of, 456. 
 Team — what included in term under exemption laws, 115, 116. 
 Teams — exempt from execution, 114, 115. 
 Temporary — abandonment of homestead, effect of, 125, 126. 
 Absence of debtor no waiver of exemption laws, 89. 
 Buildings, when they may be removisd by purchaser, 510. 
 Residents, when they may claim homestead exemption, 122. 
 Tenant — fixtures of, 165, 166. 
 
 For life, purchasing when trustee, 523. 
 
 In common, purchaser of individual partner's interest takes as, 544, 545, 
 
 Interest of, how sold, 342. 
 
 in crops, when it may and may not be taken, 161. 
 
 land, sale of, 365. 
 when it may be sold on execution, 172. 
 Individual interest of, in land, when it passes by sale, 365. 
 Of purchaser, when debtor is, 528. 
 Right of, to crops and fixtures after sale, 524. 
 
754 INDEX. 
 
 Tenants — in common, who are, i8o. 
 
 Tenant's interest — purchaser of, 501. 
 
 Tender — of amount necessary in satisfaction of execution, 466. 
 
 Of money to officer, effect of, 450. 
 Tennessee — homestead exemption in, 133. 
 
 Parol evidence, when admissible in, to defeat purchaser's title, 520. 
 
 Personal property exempt in, 108, 109. 
 
 Return of officer, when parol evidence admissible in, to contradict and 
 
 defeat purchaser's title, 520. 
 Rule in regard to executipn sales, 310. 
 
 return of officer, 520. 
 Statutory provisions in regard to redemption of property from sale, .(42. 
 
 enactments in regard to levying on crops, 161. 
 Stay of execution in, 595. 
 Time in which execution is returnable, 376. 
 When execution ceases to be a lien in, 266. 
 Who entitled to exemption in, 108, 109. 
 Term — land, meaning of, 178. 
 
 levy and sale synonymous, 228. 
 
 Provisions, what included in under exemption laws, 114. 
 Real estate, meaning of, 178. 
 Tenants in common, definition of, 180. 
 Test — amendments of, 54. 
 
 Not a necessary part of execution, 50. 
 Of a ca. sa., 20. 
 
 execution after death of defendant avoids, 72. 
 valid levy, 233. 
 validity of execution lien, 274. 
 writ, when conclusive, 85. 
 Requisite to ascertain whether property is a homestead or not, 120. 
 When not valid on alias execution, 78. 
 Texas — homestead exemption in, and who entitled to, 134, 135 
 Personal property exempt in, 108, 109. 
 Return by deputy, effect of, 377. 
 
 Rule in regard to right of debtor to designate property, 237. 
 Time in which execution is returnable, 376. 
 Who entitled to exemption in, 109. 
 The effect — of a judgment is obtain'ed by execution, I. 
 Third persons— certificate of sale void as to, 436. 
 
 What is sufficient -levy against, 237. 
 Time — allowed officer for removal of goods after levy, 258. 
 
 And place of sale, when discretionary with officer, 333. 
 
 At which fraud must exist in order to set aside sale, 408. 
 
 At which payment is to be made under redemption laws, 438 , 
 
 Conclusive in officer's return as to receipt of writ, 392. 
 
 For redemption, how extended, 439. . 
 
 In which amendments to returns are allowed, 397. 
 
 In which action may be brought against officer for refusing to levy, 627. 
 
 In which execution is to be returned, 376. 
 
 In which judgment becomes dormant, so as to prevent execution in 
 
 American States, 64. 
 In which writ is to be executed, 208. 
 
 Length of, that notice is to be given for sale of personal property, 333. 
 Of issue of a writ, when it may be shown, 85. 
 making application for relief from sale, 407. 
 publication, how computed, 310, 311. 
 
 of sale, how governed, 309. 
 receipt of writ by officer has to be shown, 226, 
 
INDEX. 755 
 
 Time — Continued. 
 
 Of receipt to be indorsed on writ, 225. 
 return as affecting its validity, 377. 
 Or place of return not necessary to the validity of a ca. s(i., 570, 
 To which amended return relates, 402, 
 deed relates, 480, 481, 482. 
 
 under redemption laws, 363. 
 levy relates, 276. 
 When deed is to be made, 46S. 
 
 _ it becomes important to protect execution lien, 275. 
 Title — acquired by purchaser of individual partner's interest, 544, 545. 
 And interest of debtor which is conveyed by officer by deed, 478. 
 
 possession under deed, how to be treated, 479. 
 As it is at the date of judgment, when it passes to purchaser, 362. 
 Can not be shown to be in another, after sale, 5 2$. 
 Created in land by homestead laws, 121. 
 Conveyed by deed, 479. 
 
 under foreclosure sale, 480. 
 to purchaser at sale on execution against a firm, 547. 
 Divested by sale in admiralty, 590. , 
 
 Failure of, when it affords remedy against officer, 507. 
 
 as ground for vacating satisfaction, 466. 
 Necessary in debtor to subject land to execution, 179. 
 Obtained by purchaser at a sale of land, 359. 
 
 of vendor's interest, 195. 
 Of debtor divested by deed, 468. ' 
 
 how divested, 381. 
 
 it passes to creditor in the N. E. states, 294. 
 when divested by sale, 440. 
 officer of state court, when superior to assignee in bankruptcy, 279. 
 personal property when it vests in purchaser, 338. 
 purchaser after death of defendant, 420. 
 
 as affected by fraudulent appearance of an attorney, 506. 
 at a foreclosure sale, 361. 
 
 sale in admiralty, 590. 
 can not be controverted by debtor, 479. 
 
 defeated by debtor, 528. 
 depends on officer's return in N. E. states, 579. 
 derived from sale and not the return, 518. 
 how affected by irregiilarities in proceedings, 512. 
 
 derived in N. E. states, 428. 
 not affected by irregularities, 513. 
 
 sale of land in lieu of personal property 
 514. 
 to be collaterally impeached, 403, 404. 
 
 controverted by debtor after sale, 528. 
 to exempt property, 420. 
 under pri«r unrecorded deeds, 505, 
 redemption laws, 436. 
 void sale, 419, 420. 
 what constitutes, 381, 525. 
 when not obtained till after confirmation, 434. 
 
 unaffected by prior unrecorded deeds, 505. 
 where there are no redemption laws, 436. 
 with and without notice in stock of corporation, 567. 
 without notice, 501. 
 Passes to purchaser, how, 480. 
 That passes by sale, 338. 
 
756 INDEX. 
 
 Title — Continued. 
 
 To growing crops, what purchaser obtains, 341. 
 
 property taken on execution, who vested in, 244, 245 
 when it vests in officer, 245. 
 To real estate, when necessary to pass to purchaser, 303. 
 Vesting in party by certificate of sale, 435. 
 Vests where, so as to protect purchaser, 480. 
 When brought in doubt on day of sale, 338, 339. 
 it can not be acquired by purchaser, 419. 
 it relates back to time of seizure, 480. 
 it vests in purchaser, 480. 
 
 none, effect of party discharging the lien, 153, 154. 
 will pass by deed, 480. 
 Which creditor obtains to real estate .in N. E. states, 294. 
 passes at a sale for the purchase-money, 364. 
 of mortgaged property, 341. 
 under several executions, Tvhere one only is valid, 
 
 424. 
 under two mortgages of same date, 362. 
 by a deed of equity of redemption, 35 7._ 
 to purchaser at a sale under several executions, 320. 
 of equity of redemption, 355. 
 under redemption laws, 363. 
 Which vests in purchaser at a sale of the franchise of a corporation, 567, 
 by deed, 480. 
 Tools — what exempt as, 117. 
 
 When they can not be taken on execution, 552. 
 To — what execution a valid levy inures, 250. 
 Whom deed is to be made, 470. 
 execution will issue, 65. , 
 Township property, when not liable to execution, 197. 
 Transcript — filing of, will not authorize the issue of execution, 65. 
 Transfer — of bid, 319. 
 
 Of title by sale of personal property, 338. 
 Transferring bid relieves purchaser from loss by resale, 326. 
 Trees — when and when not subject to execution, 161. 
 Trespass — action of, when it can be maintained against ofiScer, 635. 
 Constable, when guilty of, 637. 
 Failure to return execution is, 637. 
 
 Lies against officer for breaking open outer door, when, 635. 
 Maliciousness of officer is, 634. 
 
 Misnomer in process renders party executing guilty of, 636. 
 Nonfeasance of officer which amounts to, 638. 
 When officer is guilty of, 634. 
 Trespasser — Ab initio, when, 634. 
 
 Abuse of power makes officer a, 634. 
 Acts which render officer a, 634. 
 Officer is by advertising and neglecting to sell, 637. 
 making illegal sale, 637. 
 obtaining possession after return day, 637. 
 putting unfit person in charge of property, 635, 
 for executing writ after notice ai supersedeas, tyi . 
 if he exceeds his authority under an exscution, 636. 
 in executing void writ, 636, 637. 
 in making a levy not authorized by law, 637. 
 in seizing goods of stranger, 635. 
 when breaking down fence, when, 225. 
 Party is, who is not legally authorized to serve process, 636. 
 
INDEX, 757 
 
 TreapasBer— Continued. 
 When officer is, 220. 
 
 for selling entire property on execution against one co- 
 partner or co-tenant, 549. 
 .pj.i f • v» r in malcing sale, 450. 
 
 Trial of right of property in case of doubt, 222. 
 Tribunals issuing executions, 65. 
 Trover— sale made during action of, vests no title, 340. 
 
 Can not be maintained against officer for making levy on interest of 
 individual partner, 543. 
 Trunks, Ac, not exempt as wearing apparel, 113. 
 Trust— estate, title ^yhich passes at sale of, 364. 
 when it can not be sold, 198. 
 Kinds of, in real estate liable to execution, 185, 186. 
 Interests, when they can not be sold, 198. 
 Trustee— for creditor, when officer is, by retaining proceeds, 448. 
 
 owner, when purchaser becomes, 543. 
 Turnpike — personal property, 552. 
 
 Two — concurrent writs at the same time not permitted, 59. 
 Judgments, one execution can not issue on, 61. 
 Or more executions may be issued, when, 60. 
 
 U. 
 
 TTnauthorized appearance of attorney as affecting purchaser's title, 506. 
 Uncertainty — as to value of property does not make levy excessive, 243, 343, 
 
 Of description in a levy, effect of, 241. 
 
 of land sold, deed void for, 475, 476. 
 of property as avoiding a sale, 426. 
 when sufficient ground for setting aside sale, 426. 
 Undistributed personalty of estate, when not liable, 177. 
 Undivided — tracts of land, how taken on execution, 180. 
 
 Share of individual partner only, liable to execution, 540. 
 Unfairness in conducting sale, when cause for setting it aside, 415. 
 Uniformity — of officer's proceedings necessary to make valid deed, 417. 
 
 Of practice in regard to sales of land on execution, 301. 
 United States Courts — do not interfere with process of state courts, 613. 
 
 Final process in, 580. 
 
 Adoption of state statutes in regard to, 582. 
 
 Alterations in levy, how made, 581. 
 
 Appraisement under, how made, 587. 
 
 Common-law rule, when applicable to,.58o. 
 
 Courts, no equitable power to supersede, 513. 
 
 Duty of marshal in execution of, 587, 588. 
 
 parties to obtain supersedeas of, 593. 
 
 Effect of supersedeas bond as stay of, 592. 
 
 Extension of time to obtain a supersedeas, ^lyi. 
 
 Governed by statutory provisions, 592. 
 
 History of, 580. 
 
 How affected by acts of congress, 581, 582. 
 executed, 585, 586. 
 issued, 586. 
 
 Is governed by what state statutes, 581, 582. 
 
 In favor of the United States, where it may issue to, 587. 
 United States Courts, final process in admiralty cases, 589, 
 
 Courts can not refuse to allow sale, 590. 
 
 Exclusive jurisdiction in, 589. 
 
 In the nature of proceedings in rem, 590. 
 
758 INDEX. 
 
 United States Courts, final process in admiralty cases — Continued. 
 
 final process in the mode of executing decrees, sgo. 
 
 is in the nature of a special writ, 590. 
 Is within act of Congress subjecting land subject to execution, 591, 592. 
 Issues against the thing, 590. 
 It points out the property liable, 590. 
 No levy necessary under, 590. 
 Officer is agent of court, 590. 
 Parties entitled to priority, 590. 
 Proceeds, distribution of, 590. 
 Reason why land is subject to, 59I, 592. 
 Rights of lien holders, 590. 
 Rules applicable to, 589. 
 Seizure and sale under, 590. 
 Sale under, not within statute of frauds, 591. 
 Sale under, 590. t 
 
 Surplus proceeds, how applied, 590, 591. 
 Title of purchaser in, 589. 
 When it may be levied on land, 591. 
 Laws of U. S., how they affect it, 580. 
 Mode of procedure applicable to, 588. 
 Origin and nature of, 580, 581. 
 Principles governing, 581. 
 
 of law, relation to execution of, 580-585. 
 Proceedings under, 584, 585. 
 
 Reasons for adoption of state statutes governing, 580, 585. 
 Requisites necessary to obtain stay of, 592. 
 
 to obtain supersedeas of, 592. 
 Sale and proceedings under, 5 87, 588. 
 by marshal under, 588. 
 on, how governed, 588. 
 Security required to supersede, 593. 
 State exemption laws applicable to, 584, 588. 
 Statutes relating to, 582, 583, 584. 
 Statutory provisions regulating, 580. 
 Stay of, 592. 
 
 Strict compliance required to obtain stay, 592. 
 Subject to exemption laws, 586. 
 Supersedeas bond, when to be executed, 590. 
 
 may be filed in 5o days, 592. 
 To enforce decree in equity, 588. 
 
 nature of, 588. 
 rules of, 588. 
 when a writ of sequestration may issue to, 589. 
 Uniform practice of U. S. courts in regard to, 584. 
 Want of uniformity in regard to, 580. 
 Where it may run. to, 586. 
 Respect state exemption laws, 93. 
 
 When they may interfere by injunction with process from state courts, 
 612. 
 Universal Rule as to the issue of a ca. sa., 20. 
 Upon — what adjudications executions will issue, 57. 
 
 an execution is founded, 6. 
 Utah — homestead exemption in, 174. 
 
 who entitled to, 174. 
 Personal pioperty exempt in, 119. 
 Time in which execution is returnable, 376. 
 
INDEX. 769 
 
 Vacated judgment or decree will sustain the issue of a writ, 61. 
 Vacating — satisfaction, 466. 
 
 in New England states, 466. 
 Vague reports, when no notice, 490. 
 
 VaUd — agreement made by bidders not to compete at sale, 317. 
 Appraisement, what is, 305, 306. 
 
 when it will be presumed, 307, 308. 
 Confirmation by an injured party, what is, 407. 
 Levy on real estate, how to be made, 289. . 
 test of a, 233, 
 
 when it inures to other writs, 250. 
 Subsisting power necessary to sustain purchaser's title, 419, 420. 
 Validity — of deed, 471. 
 
 recitals essential to, 471. 
 upon what dependent, 468. 
 execution can not be inquired into, 49. 
 how to be tested, 51. 
 not affected by time of return, 
 levy, what necessary to, 234. 
 officer's acts, how affected by return, 390. 
 a puichaser's title, when unaffected by failure to return, 518. 
 proceedings under an execution, 403, 404. 
 a return in the New England states, 379. 
 sale, what it depends on, 315. 
 made at adjourned day, 324. 
 Variance — ^between execution and judgment, as affecting title, 516. 
 In deed, 476. 
 
 That will avoid a deed, 476, 477. 
 When amendable, 53. 
 
 When not sufficient to avoid an execution, 49. 
 Which renders execution void, 51. 
 Various — articles of property liable, 145, 146. 
 
 decided to be movable fixtures, 167, 168, 169, 170, 171. 
 Examples of property not exempt as a homestead, 123, 124. 
 Instances of when a levy is no satisfaction, 465. 
 Interests in property that can not be sold, 197, ig8. 
 in real estate liable, 187, 188. 
 not liable to execution, 174, 175, 176, 177. 
 subject to appraisement, 307. 
 Irregularities on part of an officer which will not vitiate deed, 473, 474. 
 which do not aff'ect a purchaser's title, 514, 515, 516, 517. 
 Kinds of execution, 2, 3. 
 
 levy that are good, 258, 259. 
 Matters in a return that are amendable, 400, 401. 
 
 relation to the application of surplus proceeds, 461. 
 rendering deeds void, 474, 475. 
 required in officer's return. 386, 387. 
 which render sales void, 423, 424. 
 
 prevent parties from being protected as purchasers, 489, 
 490. 
 Parties entitled to preference in distribution of proceeds, 457. 
 
 right of redemption, 437, 438. ' 
 
 the benefit of homestead exemption, 90, 91, 122. 
 Requirements which the law presumes are complied with, 520, 521, 522, 
 
 523. 
 Ketums held good, 381. 
 
760 INDEX. 
 
 Various — Continued. 
 
 Returns held insufficient, 383, 384. 
 
 Sales, that have been set aside for inadequacy of price, 414, 415- 
 where purchaser obtains no title, 420, 421. 
 Vehicles included in term wagon under exemption laws, 116, 
 Vendee's int-erest in land, when liable, 194, 195. 
 
 Of purchaser, when affected with notice, 505. 
 Venditioui Exponas, 26. 
 
 By whom to be issued, 332. 
 
 Fi. fa. clause in, when it becomes effectual, 332, 333. 
 How executed, 26. 
 In what cases it may be issued, 331. 
 Nature and object of the writ, 26. 
 Power conferred by, on officer, 332. 
 of, with a.fi.fa. clause, 332. 
 Property that may be sold under, 332, 333. 
 Return of, 331. 
 Sale under, 331. 
 To whom it is to issue, 332. 
 When issued,' 26. 
 
 it can not be issued, 332. 
 
 will be enforced, 332. 
 the proper writ to enforce a judgment, 332. 
 Vendor's lien — application of proceeds to, 447. 
 
 For unpaid purchase-money, how protected, 195. 
 Sale of property subject to, 364, 365. 
 Vendor — when estopped by suing for purchase-money, 370. 
 Vendor's property sold, remedy in case of defective title, 507, 508. 
 Verbal promise to indemnify officer, when good, 221. 
 Verdict of jury in trial of right of property, when no protection to ofiScer, 283.. 
 
 will not sustain issue of an execution, 61. 
 Verified copy of judgment, issue of execution on, 60. 
 Vermont — homestead exemption in, 134. 
 
 Personal property exempt in, 109, no. 
 Requisites'necessai-y to vest title in creditor, 298. 
 Return not necessary within life of writ, 376. 
 Rule in regard to redemption of property from sale, 443. 
 Time in which an execution is returnable, 376. 
 Who entitled to exemption, 109, no. 
 Vested — remainder, definition of, 184. 
 
 in chattels, when liable, 145. 
 View — land, appraisers need only, 305. 
 Vigilantibus non, &c., 274. 
 ^ix^-Dxa.— Capias pro fine still in use in, 299. 
 Creditor's rights under elegit, 299. 
 Forthcoming bond for personal property in, 334, 335. 
 Homestead exemption in, 134. 
 Personal property exempt in no, in. 
 Practice in, by elegit and extent, 299. 
 Notice of sale of personal property in, 334. 
 Rule in regard, interest of husband in wife's property, 182. 
 Statutory regulations as to sale of personal property in, 334, 335, 
 Time in which an execution is returnable, 376. 
 Who entitled, claim exemptions, 134. 
 to writ of elegit, 299. 
 Void — and irregular deeds, 474, 475. 
 Appraisements, 307. 
 
 return of, 378. 
 
INDEX. 761 
 
 Void — Continued, 
 
 Certificate of sale, 435. 
 Executions, 51. 
 
 by reason of death of parties, 76. 
 sale under, 423. 
 who may show, 414. 
 Judgment as affecting title of purchaser, 430. 
 execution may be enjoined, 609. 
 Levy, what is, 239, 240. 
 
 on equity of redemption, 356. 
 Process, liability of oflScer for executing, 638. 
 no protection to officer, 218, 2ig. 
 ' when officer not compelled to execute, 202. 
 who liable for execution of, 638. 
 Return, 383, 384. 
 Sales, 416, 417, 423, 424, 425. 
 
 are, when party selling is purchaser, 322. 
 for want of jurisdiction, 422, 423. 
 of growing crops, 346, 347, 348. 
 personal property, 341. 
 real estate, 346, 347. 
 stock in corporations, 562, 563. 
 Writs, effect of in estopping parties, 370. 
 Voidable executions, 81, 82. 
 Process, 51. 
 
 Sales, how relief obtained in case of, 410. 
 of real estate,' 356. 
 Voluntary payment by debtor, gives him right to apply the proceeds, 460. 
 Surrender is a waiver of the exemption, 89. 
 
 W. 
 
 Wagon — meaning of in exemption laws, 116. 
 Waive — of prior bid, what is, 318. 
 Waiver — by debtor, when it estops him, 369, 
 Of appraisement, 303. 
 
 debtor's rights' by fraudulently conveying property, 187. 
 exemption privileges, 88. 
 
 what is and what is not, 88. 
 statutory requirements by debtor, 316. 
 Warranty — in deed of officer, effect of, 479. 
 
 None in execution sale, 330, 331. 
 Waste — when purchaser not liable for, 510. 
 Watch — when it is and is not exempt, 113. 
 Wearing apparel — what is and what is not exempt, 113, 
 West Virginia — homestead in, 134. 
 
 who entitled to, 134. 
 
 requirements necessary to obtain exemptiOD 
 of, 134. 
 Personal property exempt in, iii. 
 Practice in regard to subjecting land to execution, 301. 
 Time in which execution is returnable, 376. 
 Stay of execution in, 595. 
 Who entitled to exemption in. III. 
 Whatever — an owner can sell can be sold on execution, 141. 
 What — acts of officer the law presumes to be done in. the discharge of hil duty 
 under execution, 520-523. 
 A homestead is and represents, 120. 
 
762 INDEX. 
 
 What — Continued. 
 
 An equity of redemption is, l88. 
 execution is, I. 
 execution directs, 4. 
 
 execution was in the early English law, 7. 
 elegit is, 23. 
 estate for years is, 171. 
 A fi. fa. is, 20. 
 Agreement to pay an advanced price will not be sufficient to set aside 
 
 sale, 413. 
 A levy is, 228. 
 
 Are insufficient returns, 408, 409. 
 immovable fixtures, 162. 
 and are not excessive levies, 241, 242. 
 void levies, 240. 
 A return is, 33. 
 A return should state, 378. 
 
 Buildings are under the protection of a dwelling house, 223, 224, 
 Can be sold on execution, 315. 
 Claims are entitled to prior distribution of proceeds, 455. 
 
 superior to a homestead, 137. 
 Constitutes a head of a family, 89, go. 
 a homestead, 89, 90. 
 purchaser's title, 525. 
 Could be reached in favor of the king and what in favor of the subject, 8. 
 Description in levy on real estate will be sufficient, 290. 
 Effisct notice has to purchaser, 500. 
 
 Endorsement on execution necessary prior to taking land, 143. 
 Executions are irregular, 79. 
 void, 81. 
 the privilege of a man's house do not apply to, 22$, 
 Exempt under term wagon, &c. in exemption laws, 116. 
 Fraud will authorize courts to set aside sales, 418. 
 Have been held to be fixtures, 163, 164, 165. 
 Included in term cattle, in exemption laws, 114. 
 land, 178. 
 real estate, 178. 
 Interest of husband in wife's estate is liable to execution, 181. 
 Interests or rights of possession are not liable to execuSbn, 155, 156. 
 Interest is sold where shares of stock are liable to execution, 563. 
 Is equivalent to notice, 495. 
 
 good execution of writs of possession and assistance, 534, 535, 536, 
 
 537- 
 good levy under subsequent execution, 250. 
 satisfaction, 463. 
 irregular process, 50. 
 meant by an execution, 3. 
 
 the issue of an execution, 59. 
 money under the redemption laws, 438. 
 not exempt as a homestead, 123. 
 a return, 373. 
 
 sufficient for quashing execution, 620. 
 personal property, 143. 
 property, 140. 
 
 purchase-money of a homestead, 138. 
 revival of judgment, 6g. 
 
 sufficient levy against debtor and third persons, 236. 
 the consummation of a jui^gment, 4. 
 
INDEX. 763 
 
 What — Continued. 
 
 Is the execution of a judgment, 4. 
 
 Judgment will sustain the issue of an execution, 60. 
 
 Might be taken under an elegit, 14. 
 
 May be taken on execution against individual partner, 338, 339, 340. 
 
 constitute a homestead, 123. 
 Necessary to be proven in order that succeeding officer may make deed, 
 
 469. 
 Necessary to effect redemption, 438. 
 
 entitle purchaser to recover purchase-money, 508. 
 justify officer in seizing property, 282. 
 make a levy, 233. 
 show execution fraudulent, 274. 
 vest title in purchaser, 480. 
 before levying on land, 8. 
 Negligence will waive lien of execution, 271. 
 Not necessary to validity of judgment, 235. 
 
 sufficient to warrant court in granting injunction, 618. 
 Parties are exempt from arrest under execution, 568, 569. 
 Passes by a deed of land, 479. 
 
 sale of goods on execution, 339. 
 with land to purchaser at execution sale, 324. 
 bounded by a highway, 365. 
 Payments will satisfy an execution, 206. 
 Property can not be sold on execution, 173. 
 is exempt from execution, 86. 
 
 liable to executions issued from Federal courts, 586. 
 Real estate and lands are not subject to execution, 196, 197, 19S, 
 Return to he made where execution is unsatisfied, 374. 
 Sales are void for want of jurisdiction, 422, 423. 
 Sales will be set aside as fraudiilent, 417. 
 Trust estates are liable to sale, 186. 
 
 Uncertainty in description of land levied on will avoid it, 291. 
 Variance will render an execution void, 51. 
 
 voidable, 51. 
 Will avoid a deed, 474, 475. 
 
 be sufficient to reverse order of court quashing execution, 620. 
 
 constitute purchaser without notice, 487. 
 
 estop a party from raising the question as to validity of a sale, 369, 
 
 370- 
 
 extend time for redemption, 439. 
 
 not be sufficient to su'sfain the issue of an execution, 6l. 
 
 not relieve officer from liability for proceeds collected, 446. 
 
 not stay the issue of an execution, 59. 
 
 not void a certificate of sale, 435. 
 
 prevent a debtor claiming exemptions, 93. 
 
 prevent judgment from becoming dormant, 68. 
 
 release levy, 251, 252. 
 
 render execution voidable, 51. 
 
 satisfy an execution, 461, 462. 
 
 take an execution out of the statute of frauds, 366. 
 Whence fi. fa., derived, 20. 
 When — alias writ of execution will be issued, 77. 
 
 A levy can not be made on the estate of a deceased debtor, 75* 
 
 An amendment should not be allowed, 56. 
 
 An assignee can not cause execution to issue, 81. 
 
 An equity of redemption and not (Jie land can be sold, 357. 
 
 A ca. sa. is returnable, 20. 
 
764 INDEX. 
 
 When — Continued. 
 
 And where the process of sequestration is used, 31. 
 
 choses in action are liable to execution, 156, 157. 
 estates held in reversion and remainder are liable, 184. 
 life estate of husband is not liable to execution, 181. 
 officer can and can not be subrogated to the rights of the 
 
 plaintiff, 206. 
 personal property is not liable to execution, 174,175, 176, 177. 
 Debtor has the right to elect what property shall be exempt, in. 
 Deed is to be made, 468. 
 
 irregular and void, 474, 475. 
 Execution against the body can issue, 19. 
 becomes dormant, 32. 
 can be set off, 226. 
 issue, 4. 
 
 issue against property in a suit commenced by attach- 
 ment, 85. 
 not issue, 3, 61. 
 
 be legally returned, 387. 
 
 issued without leave of the court, 70. 
 
 revival of judgment, 68> 
 does not justify and protect officer, 212. 
 is amendable, 53. 
 cumulative, 117. 
 issues for costs, 3. 
 is final or not final, 2. 
 not void, 63. 
 returnable, 372, 375. 
 justifies and protects officer, 212. 
 loses its priority, 58. 
 
 may be amen4ed after levy, sale, and return, 55. 
 issued without revival of judgment, 68. 
 issue, 57. 
 
 for costs, 70. 
 to another county, 67. 
 will be issued or sued out, 30. 
 
 issue in favor of the wife against her husband, 66. 
 not be stayed or set aside, 599. 
 Exempt properfy could be taken even if pointed out by debtor, 93. 
 Pi. fa. could ,be issued, 8. 
 
 Final process no protection to officer, 214, 215. 
 Homestead does not lose its character by abandonment, 125, 126. 
 
 is subject to execution, 121. 
 Injunction no ground for arresting execution, 607. 
 
 will be granted, 609. 
 Issue of an execution was barred at common law, 9. 
 Junior creditor is entitled to proceeds, 451. 
 Law will not permit execution to issue against the debtor, 69. 
 Levy on lands is complete, 290. 
 
 on personal property is and is not satisfaction, 253. 
 will be sustained, 239. 
 Mortgagor's interest in personal property can not be seized, 154. 
 New execution should issue, 53. 
 Officer becomes agent of the plaintiff, 211. 
 
 a trespasser in executing a writ, 32. 
 trustee for owner, 523. 
 has no power to execut« process alter expiration of term, 207. 
 is not bound to execute a void writ, 202. 
 
INDEX. 766 
 
 When — Continued 
 
 Officer is not compelled to obey instructions, 210. 
 liable in. an action against him, 639. 
 is released from responsibility, 211. 
 may advertise sale in more than one place, 337. 
 demandjndemnity, 221. 
 re-sell the sam; property, 324, 325. 
 •Party may cause execution to issue, 63, 64. 
 Plaintiff's death stops .the issue of an execution, 71. 
 Possession of a stranger will not be presumed to be fraudulent, 152. 
 Proceeds will be equally distributed among creditors, 453. 
 Property is not in the custody of the law, 248, 249, 251. 
 purchaser may bring action against party causing execution to issue for 
 
 purchase-money, 507. 
 •Questions of priority arise among creditors, 274. 
 Regular provision was made for issuing process against debtor, 7. 
 ;Retum is complete, 374. 
 not requisite, 397. 
 will be quashed. 
 Rights of third persons are affected, notice to amend should be given, 56. 
 Sale may be postponed, 323. 
 
 void that posses no title, 419. 
 will not be opened, 411. 
 Second execution may issue before return of the first, 59. 
 Selection is necessary. III, 112, 
 
 Statute of limitations commences running against an execution, 58. 
 Stranger may pay money in satisfaction of execution, 463. 
 Successful party is entitled to execution, 4. 
 The party issuing or the party in whose favor an execution issues is 
 
 liable to the debtor or injured party, 219. 
 The court will order the issue of an alias or substituted execution, 79, 
 Title vests so as to protect purchaser, 480. 
 Two or more executions may be issued, 60. 
 Writ is executed, 202. 
 
 is to be executed and when not, 208. 
 may be returned, 374. 
 'Where — an elegit will issue to, 14. 
 
 An execution may issue to, 66. 
 Executions are returnable, 83, 
 
 to issue of debtor has no property in the county, 67. 
 may be set off, 226. 
 Judgment has and has not a preference over unrecorded convey- 
 ances, 500. 
 'Who^are tenants in common, 180. 
 
 Are within the right of protection as purchasers, 606, 607. 
 Can and who can not claim exemption of homestead, 122, 123. 
 
 take advantage of irregularities, 50. 
 Entitled to benefit of exemption laws, 89. 
 
 claim homestead exemption, 121. 
 execution, 2. 
 
 have and sue out execution 63. 
 proceeds of sale, 446. 
 , redeem, 437. 
 Execution to issue to, 67. 
 ,Is a bona fide purchaser, 487. 
 
 creditor wifjiin the redemption laws, 437. 
 purchaser in good faith, 487. 
 without notice, 487. 
 
766 INDEX. 
 
 Who — Continued. 
 
 May and may not purchase at execution sale, 321. 
 cause the issue of an execution, 63, 
 
 issue execution and from what tribunal they are to be issued, 64, 65. 
 not purchase an equity of redemption, 355. 
 show an execution writ for defects, 404. 
 Shall execute final process after expiration of officer's term, 207. 
 To act in the execution of a writ, 201. 
 execute deed, 469. 
 
 make motion to quash execution, 6lg. 
 Whole of a man's land made liable by Statute Merchant, 16. 
 Why an equity of redemption is subject to' execution, i8q. 
 execution is a judicial writ, 6. 
 
 called the life of the law, 3. 
 favored and preferred, i. 
 officer can not execute process in his own favor, 206. 
 Neither lands nor the person is liable at common-law execution, 10, II. 
 The law protects an officer in the execution of final process, 213, 214. 
 Widow's right of dower not subject to execution, 183. 
 Wife— execution in favor of against her husband, 66. 
 Property of, not liable for debts of husband, 183. 
 When entitled to have execution, 90, 91. 
 she can not claim homestead, 122. 
 Willful making of excessive levy, effect of, 243. 
 
 Winsconsin— homestead exemption in, who entitled to claim, and privileget 
 granted by statute, 134, 135. 
 
 Personal property exempt in. III. 
 
 Statutory provisions in regard to redemption of property from sale, 442. 
 Who entitled to exemption, in. 
 Withdrawal of bid, 319. 
 
 Withdravring execution, effect of in distribution of proceeds, 461. 
 Withernam — writ of, 48. 
 Witness — when necessary to prove levy, 236. 
 
 Words "lands and tenements " omitted in execution may be inserted after levy 
 and sale, 55. 
 
 " Of authority to officer " may be inserted after levy and sale, 55. 
 Writ of assistance — acquiescence in service a good execution of, 536. 
 Actual possession to be delivered under, 536. 
 Against whom it may be executed, 534. 
 As a remedy in chancery courts, 534. 
 
 summary remedy, 535. 
 Clerk can not issue, when, 535. 
 Courts, when they will issue it, 534. 
 How executed, 534, 535. 
 Issued against defendant when he refuses to surrender possession, 535. 
 
 without notice in Mississippi, 535. 
 Nature of, 534. 
 
 Obtaining writ in cases where possession is ordered by decree or judg- 
 ment, 536. 
 Officer not obliged to risk his person in execution of, 536. 
 Parties claiming under paramount title will not be interfered with 
 
 'under, 535. 
 Parties when entitled to it in Tennessee, 536. , 
 
 Party when entitled to it against defendant, 536. 
 Plaintiff in foreclosure writ entitled to, 535. 
 Possession delivered under, 534. 
 
 when it may be obtained without removing defendant, 536. 
 Purchaser under writ of foreclosure entitled to, 536. 
 
ii\DEx. 767 
 
 Writ of assistance — Continued. 
 
 Remedy, where improperly issued, 537. 
 
 Requisites necessary to obtain, 536. 
 
 Right of parties that will not be interfered with in execution of, 535. 
 
 Tantamount to what, 535. 
 
 When issued in Pennsylvania, 536. 
 
 where redemption laws are in force, 536. 
 it is an appropriate remedy, 535. 
 may be set aside, 537. 
 
 issue against stranger, 535. 
 
 only by order of court, 535. 
 . will be issued, 534, 535. 
 officer can not refuse to execute, 536. 
 posiiession will be returned to party, 537. 
 Who entitled to, 535. 
 Writ of attachment — as execution, 579. 
 Effect of, 579. 
 How executed, 579. 
 
 issued, 57g. 
 Punishment under, 579. 
 When it issues, 579. 
 Writ of Destingas, 27. 
 ekgit, 23. 
 execution a judicial writ, 3. 
 
 what courts they issue from, 3. 
 to whom directed, 201. 
 Writ of possession — acquiescence of party in recognizing plaintiff's posses- 
 sion, 533. 
 
 Authority and command in, 529. 
 Breaking open door in execution of, 530. 
 Disturbing officer in execution of, 532. 
 Duty of oflScer in delivery of growing crops, 530. 
 under, 530. 
 
 in case of doubt in execution of, 533. 
 
 several defendants in possession, 530. 
 where possession of a house is to be given, 530. 
 writ is not returnable, 532. 
 For what it should issue, 531. 
 How executed, 529. 
 
 in case fenime sole who marries during innocence of, 534 
 where it directs collection of costs, 534. 
 Indemnity, when it may be claimed prior to execution of, 530. 
 In ej,ectment, what it is, 529, 530. 
 May issue without return, 531. 
 
 Plaintiff put in full and complete possession under, 530. 
 Possession, how it may be obtained under, 533. 
 
 necessary to be given under, 531. 
 Power of officer under, 531. 
 
 to call assistance in execution of, 531. 
 Remedy where party re-enters after execution of, 531, 53a, 
 Return of, officer's duty under, 533. 
 
 that can not be made to, 534. 
 Stranger, when he may be removed under, 533. 
 Subsequent issue of, illegal, 532. 
 Turning defendant out of house in execution of, 533. 
 What is a good delivery under, 531. 
 
 required of plaintiff in execution of, 530, 531. 
 founded on, 529. 
 
768 INDEX. 
 
 Writ of possession — Continued. 
 
 'When an alias can not issue, 533. 
 awarded, 529. 
 irregularly issued, 530. 
 it issues, 529, 530. 
 
 its execution will be restrained by court, 531. 
 it is executed, 533. 
 
 may be made returnable, 534. 
 necessary to revive judgment before execution of, 534. 
 party may apply to court for instructions in execution of, 533. 
 Who may and may not be removed under, 532, 533. 
 Writ of Replevin, 28. 
 
 Scire facias, 28. 
 
 form of, 29. 
 object of, 29. 
 origin of, 29. 
 when issued, 29, 
 Supersedeas, 599, 600. 
 
 what it is, 599, 600. 
 Vendi, 25, 26. 
 Writs — entitled to priority, 264. 
 
 How executed where creditors furnish indemnity, 222. 
 Issuing for more than is due may be amended, when, 425. 
 
 out of courts that are abolished are void, 82. 
 Of execution warrant an ofHcer in suing them, 216, 
 On several judgments, priority of, 264. 
 Regarded as fully executed without return, 373. 
 Writing — return must be in, 378. 
 Wrong- -dxj of return, amendable, 5$.