123. A Bill concerning Executions
Be it enacted by the General Assembly, that every action of account render, debt, detinue, deceit, conspiracy, trespass with force and arms, or trespass upon the case, shall be commenced by suing forth the writ called capias ad respondendum, without an original writ or other precept before. Lands, tenements, and hereditaments shall and may by virtue of writs of fieri facias, be taken and sold in satisfaction of judgments. The same actions which will lie against executors or administrators, may be brought jointly against them and the heirs or devisees of the dead person or both, and shall not be delayed for the nonage of any of the parties. The clerk from whose office a writ of fieri facias shall issue upon a judgment against the party convict, or against his executors or administrators, and his heirs or devisees, shall, after the words, “we command you that of the,” leave out the words, “goods and chattels,” immediately following them, and instead of the latter insert the word “estate,” and by virtue of such writ the officer to whom it shall be directed shall, and may proceed in the manner herein after prescribed, to make the debt or damages and costs recovered, first of the goods and chattels, exclusive of slaves, and if there be no such goods and chattels, or not sufficient found in his bailiwick, then of the slaves, and if there be none or not sufficient found in his bailiwick, lastly of the lands, tenements and hereditaments in possession, reversion or remainder, or so much thereof, in one entire parcel, as shall be sufficient, and such part as the owner shall direct if he think proper. Land descended or devised, if before suit brought or process sued out against the heir or devisee it shall have been by him aliened and conveyed to a purchaser with good faith for valuable consideration actually paid, shall not be taken in execution by a writ of fieri facias, but the heir or devisee shall be accountable for the true value thereof, as if it were his proper debt to the creditors of the ancestor or testator; and if the heir or devisee in an action against him, shall plead nothing by descent or by devise at the time of the writ brought, and the plaintiff in his replication shall alledge the contrary, and the issue thereupon joined be found for the plaintiff, and the land appears to have been aliened as aforesaid, the jury shall enquire of the value thereof, and thereupon judgment shall be given and execution shall be awarded for such value: but if judgment be given against the heir or devisee by confession of the action, without confessing the land descended, or upon demurrer, or nihil dicit, it shall be for the debt or damages without enquiry of the land descended or devised. If a writ of capias ad satisfaciendum be not returned and executed, or if a writ of fieri facias appear by the return, either not to have been executed, or to have been partially executed, the clerk at the request of the party suing it out, and if through his means it shall not have been executed, at his costs may issue another writ of the same or a different kind of execution, endorsing thereon the amount of any payment which shall have been made, that the officer may levy or receive no more than what shall then remain due, and the clerk of a county court may, in any case, issue judicial process to the sheriff or other officer of any other county.
Every writ of execution shall bear date at least fifteen days before the return day thereof, and if it issue from the court of a county, city, or borough, shall be returnable to some one of the three sessions of court next after the date. If a defendant shall die charged in execution, the plaintiff or his executors or administrators may proceed to subject the estate of such defendant to execution.
If a sheriff or other officer to whom any writ of fieri facias shall be directed and delivered, take and sell a slave, where sufficient other chattels shall be shewn to him, to satisfy the debt, damages, or costs, or shall take and sell lands, where slaves or other chattels shall be so shewn, or shall make any unreasonable seizures, the officer so offending shall be liable to the action of the party grieved for all damages occasioned thereby, and costs.
Every writ of fieri facias shall bind the property of the lands, tenements, goods and chattels from the time it shall be delivered to the officer, who shall, without fee, endorse on every such writ the day, and time of day when he received the same.
If the owner of goods and chattels, taken in execution by virtue of a writ of fieri facias, shall not pay the debt or damages, and costs, within five days from the seizure, the sheriff or officer on the Sunday next after the expiration of that time, shall give public notice, that at the place appointed in such notice, the said goods and chattels will be exposed to sale by auction on the Wednesday following, causing advertisements for that purpose to be set up at all the churches in his county, not more than ten miles distant from such place.
If the owner of the goods so taken, shall give sufficient surety, or sureties, to the sheriff or officer, to have them forthcoming at the day of sale, the sheriff or officer shall suffer the goods to remain with the owner, at his or her risk, until the day of sale.
If the owner shall, at or before the time of sale, give or tender, to the sheriff or officer, bond with sufficient surety or sureties, for payment of the debt, damages, or costs, with interest for the same, to the creditor, at the end of three months, the sheriff or officer shall restore the estate seized.
If no such bond be offered before or at the time of sale, the sheriff or officer shall proceed to sell so much as will satisfy the demand of the creditor, for ready money or tobacco, as the demand shall be and his fees, and restore the surplus, if any, to the owner; but if the estate cannot be sold for three-fourths of its value, in the judgment of the officer, he may sell the same upon three months credit, taking bond with sufficient surety or sureties, for payment of money or tobacco, with interest to the creditor at the end of three months.
When the goods and chattels, taken in execution by virtue of a fieri facias, shall not be sufficient to satisfy the debt, damages, and costs, and the owner shall not have given such bond with security as aforesaid, for payment thereof, the sheriff or other officer shall, after the expiration of five days from the seizure, give public notice, in the manner before directed, both at the churches, and also at the court-house of his county, on the next court-day, and shall moreover give notice to the owner, if he be in the county, or otherwise to his agent, if any such be known, that at some time appointed in the notice, not less than ninety nor more than ninety-six days from the end of the said five days, the said lands, tenements, and hereditaments, will be exposed to sale by auction, on the premises, or at such other place, in the same county, as the owner shall, by writing under his hand delivered to the officer, direct.
If the party against whom a judgment shall be entered, have several parcels of land which lie in one and the same county, he or his agent, may, by writing, under his hand, at any time before the day of sale, require the sheriff or officer, to whom a writ of fieri facias upon the judgment shall be directed, to make the debt or damages, and costs, of such of the said parcels as the owner or his agent shall think proper, and if the parcels lie in different counties, the clerk shall and may, at the like request in writing, direct the fieri facias to the sheriff or officer of any county, which the party or his agent (making oath or solemn affirmation that he hath land there) shall particularly mention at any time before the writ shall be delivered to the officer. And if the debt or damages, and costs, be made of any other parcel of land, or of land lying in any other county than that mentioned in such written requisition, the sale of such other parcel, or of the land in such other county shall be void.
If the owner before or at the day of sale, shall not give or tender bond, with sufficient surety or sureties, to the sheriff or other officer, for payment of the money and tobacco, due at the end of three months thence next following, the sheriff or officer shall proceed to sell the said lands, tenements, and hereditaments, for such estate and interest as the party convict shall have therein, or so much thereof as will be sufficient, laid off in one entire parcel, if it may be done, in such place and manner, as he or his agent, if he think proper, shall direct, for ready money or tobacco, as the demand shall be, and the fees; but if the estate cannot be sold for three fourth parts of the value thereof, in the opinion of the officer, he shall sell the same upon three months credit, taking bond of the purchasers, with sufficient surety or sureties, for payment to the creditor.
No sheriff, under sheriff, or other officer, shall buy or bid for any goods, or chattels, lands, tenements, or hereditaments, which he or his principal, or deputy, shall expose to sale by virtue of any fieri facias; and the property of any such thing so bought by him, or by any other to his use, shall not be thereby changed, but the same may be recovered by the former owner, or be made subject to the demands of any of his creditors, unless it shall, before suit brought for that purpose, have been sold with good faith and for valuable consideration to one who had notice that it had been bought in manner aforesaid.
In all sales of land by virtue of an execution, the sheriff or officer shall convey the same to the purchaser, at his costs, by deed in writing, indented, sealed and recorded as the laws direct for other conveyances of lands, which deeds shall recite the execution, purchase and consideration, and shall be effectual for passing to the purchaser all the estate and interest which the debtor had and might lawfully part with in the lands. And in all sales of slaves, upon any execution, the sheriff or officer shall certify on the writ the names of the slaves and of the purchasers.
In every bond to be taken pursuant to this act, for payment of the debt, damages or costs, by the debtor, or by the purchasers on the sale upon credit, it shall be mentioned on what occasion the same were taken, and such bond shall be by the sheriff or officer immediately returned, with the execution, to the clerk’s office from whence it issued, there to be safely kept. And if the money or tobacco be not paid, at the time mentioned in the condition, the court, on motion of the creditor, his executors or administrators, shall and may give judgment against the obligors, or the executors or administrators, and heirs or devisees of the principal obligor, for the penalty of their bond, to be discharged by the payment of principal, interest and costs, and thereon award execution; provided ten days previous notice of such motion be given to those against whom judgment is entered. And on such new execution the clerk shall endorse that no security is to be taken, and the sheriff or officer shall proceed to levy the same immediately, first selling the estate of the principal obligor if any can be found, but not taking security for payment at a future day, or selling upon credit as aforesaid.
Also when judgment shall be entered against a sheriff, or other collector for taxes, public, county or parish levies, or officers fees put into his hands to collect, the clerk shall endorse on the execution issued thereupon that no security is to be taken, and the sheriff or officer shall proceed to levy the same immediately, not taking security for payment at a future day, or selling upon credit as aforesaid.
If bond and security be given for the forthcoming of goods taken in execution as before directed, and the debtor, at the time of the sale, shall neither deliver up the same to the sheriff or officer, nor pay or give security for the debt, damages and costs as aforesaid, the sheriff or officer shall endorse the truth of the case upon the execution, and return the bond therewith to the clerk’s office; and thereupon it shall be lawful for the court, on the motion of the creditor, his executors or administrators, to give judgment for the penalty of the bond, to be discharged by the payment of the principal, mentioned in the former execution, with interest thereon from the date of the bond, and costs, against the obligors, and thereon to award execution, provided that ten days previous notice of such motion be given to those against whom judgment shall be entered. And on such new execution the clerk shall endorse that no security of any kind is to be taken; and the sheriff or officer shall proceed to levy the same, and keep the estate in his hands until the day of sale, and then shall sell sufficient thereof to satisfy the contents of the execution, not taking any security for the forthcoming of the estate, or for payment at a future day, or selling upon credit as before-mentioned.
If the sheriff or other officer shall levy an execution, writ of attachment, or other distress upon horses or other live stock, and the same shall not be immediately replevied, or security given for the forthcoming thereof, the officer shall provide sustenance for the support of such stock, if he shall remove them, until sold or restored to the owner, the expence whereof, to be settled by the court on the return of the process, shall be allowed to such officer out of the sales, or otherwise by the debtor, or in cases of attachment, if the plaintiff be cast therein, then by such plaintiff.
When any final decree shall be entered for the payment of money or tobacco, or a final order in any court for such payment, the clerk may issue a fieri facias thereupon, against the estate of the debtor, which shall be executed and returned in like manner, and under the same rules and regulations, as are herein before directed in the case of executions upon judgments for debt obtained in the court of law. If any person in custody of a sheriff or other officer, for not performing a decree of any Court of Chancery, whereby money or tobacco is ordered or decreed to be paid, by the person so in custody, to another, shall escape from such sheriff or other officer, he to whom the money or tobacco was ordered or decreed to be paid, or his executors or administrators, may recover the said money or tobacco, by an action of debt against such sheriff or other officer, with costs, in the same manner as if the person so escaped had been in custody upon an execution at common law.
If the sheriff or other officer shall return upon any writ of fieri facias, or venditioni exponas, enquiry, fieri facias in detinue, or withernam in replevin, that he hath levied the debt, damages or costs therein mentioned, or any part thereof, and shall not immediately pay the same to the party intitled thereto or his agent, it shall be lawful for the court from whence such writ issued, upon the motion of such party, his executors or administrators, to give judgment against such sheriff or officer, and his securities, his or their executors or administrators, for the amount of the money and tobacco mentioned in such writ, with interest thereon from the return-day of the writ, and costs, and thereon to award execution, provided that ten days previous notice of such motion be given to those against whom judgment is so entered. And upon such new execution the clerk shall endorse that no security of any kind is to be taken, and the sheriff or officer to whom the same is directed, shall proceed thereupon as is herein before mentioned in other cases of the like endorsement.
Where a writ of execution shall be delivered to the sheriff or officer of another county than that in which the creditor resides, the creditor shall name some person resident in the county wherein the execution is to be levied, to be his agent, for receiving the money or tobacco due thereon, and for giving to or receiving from the sheriff or officer any notices which may be necessary relative to the execution; and the creditor shall avail himself of, and be bound by what the agent shall do therein, in the same manner as if it had been done by himself in person. And if the creditor shall fail to appoint such agent, no judgment shall be entered against the sheriff or officer for the money or tobacco mentioned in the execution, unless it be proved that a demand thereof was made of such sheriff or officer in his county, by the creditor or some other person having a written order from him.
If a sheriff or officer shall fail to return any writ of execution to him delivered, to the office from whence it issued, on or before the return day thereof, the court from whence the execution issued shall and may, on the motion of the creditor, give judgment against such sheriff or officer for any sum not exceeding ten pounds, and costs, to the use of the creditor, and thereon award execution, provided ten days previous notice be given of such motion, and may continue to fine such sheriff or officer, in like manner, from time to time, so often as new notice shall be given, until the execution is returned, or the creditor satisfied his debt, damages, and all costs. And such sheriff or officer shall moreover be liable to the action of the creditor for all damages sustained by his not returning such execution in due time.
At the time of delivering a capias ad satisfaciendum to the sheriff or officer, the creditor if required shall give security to pay the prison fees, which if there be more creditors than one who sue out such executions shall be paid by them in proportion to their debts.
If any person committed in execution shall enter into bond, with sufficient sureties, in the penalty of double the sum due, with condition that he will not depart out of the prison rules or bounds, the sheriff or officer shall allow the prisoner to go at large any where within such bounds. And if after such bond given, the debtor shall escape out of the bounds, it shall be lawful for the court of the county, on the motion of any creditor, or his executors or administrators, to give judgment against the obligors, their several executors or administrators, for the penalty of the bond, to be discharged by the payment of the principal sums mentioned in the execution, with interest from the date of the bond, and costs, and thereupon to award execution, provided ten days previous notice be given of such motion, to those against whom judgment is entered. And every execution upon such judgment shall be issued against the estate of the defendant and levied as herein before is directed; but the clerk shall endorse thereon that no security of any kind is to be taken, and such endorsement shall be observed by the sheriff or officer to whom the same is directed in manner herein before mentioned.
Any person who now is or hereafter shall be committed to jail in execution upon a judgment, shall, on his request, be carried by the sheriff or jailer, either before a Judge of the General Court or any two Justices of the Peace of the county wherein he shall be imprisoned, if it be a judgment of the General Court, or before such two Justices if it be a judgment of the court of a county, city, or borough; and the prisoner may deliver to such Judge or Justices, a schedule of his estate and take the following oath, or being one of the people called quakers or menonists affirm, to the like effect, to wit: “I A. B. do in the presence of Almighty God, solemnly swear, profess and declare, that the schedule now delivered, and by me subscribed, doth contain to the best of my knowledge and remembrance a full, true, and just account and discovery of all the estate, goods and effects to me any way belonging, and such debts as are to me owing, or to any person in trust for me, and of all securities and contracts whereby any money may hereafter become payable, or any benefit or advantage acrue to me or to my use, or to any other person in trust for me; and that I or any other person in trust for me, have not any other lands, money, stock, or other estate real or personal, in possession, reversion, or remainder, wherewith I could satisfy the debt, damages or costs, for which I am charged in execution, or any part thereof. And that I have not directly or indirectly sold, lessened, or otherwise disposed of in trust, or concealed all, or any part of my lands, slaves, money, goods, debts, or effects, whereby to secure the same, to receive or expect any profit or advantage thereof, or to defraud or deceive any creditor or creditors to whom I am indebted. So help me God.” And thereupon such Judge or Justices shall order the prisoner to be discharged from his imprisonment, but the creditor or creditors may, at any time afterwards, sue out a scire facias to have execution of any estate the debtor shall thereafter acquire or be possessed of.
The said schedule shall be delivered to, and remain with the clerk of the court from which the execution issued.
All the estate contained in such schedule, for such use and interest as the debtor hath therein, and which he may lawfully part with, saving his or her necessary apparel and utensils of trade, shall be vested in the sheriffs of the counties wherein the estate shall lie or be found, to whom the clerk of the court where the schedule is directed to remain, shall transmit copies thereof, and such sheriffs, respectively, shall sell and convey the estate in their counties to the person or persons who shall purchase, at public sale, upon due notice given, return accounts of sales to the clerk’s office, and pay the money, deducting five per centum for their commissions, by order of the court, to the creditors in proportion to their debts.
If the schedule shall contain debts due in money or tobacco to the prisoner, or articles of estate to him belonging, and which are in the possession of any other person or persons, in such case the clerk of the court where the schedule is delivered in, shall immediately issue a summons against each debtor and person having such effects, named in the schedule, reciting the amount of the debt, or the species of goods, and requiring him to appear at the next court to declare on oath, whether the debt, or any, and what part thereof be really due to the prisoner, or what goods and effects of the prisoner he hath. And if any person so summoned as a garnishee, shall fail to appear, the court shall enter judgment against him for the debt, goods or effects mentioned in the schedule, and costs, a lawyer’s fee excepted.
But this judgment shall be set aside at the next court, if he shall then appear and contest the demand in which case an issue shall be made up between the parties, to be tried by the jury.
And if any such garnishee shall appear and be sworn, or affirm, being a quaker or menonist, judgment shall be entered for what money or tobacco is acknowledged to be due, or for what goods or effects is acknowledged to be in his or her possession, belonging to the prisoner, and costs as aforesaid, which judgments shall be entered in the name of the sheriff, who shall thereupon proceed to collect or levy the money, and to sell the tobacco and goods for money, returning an account thereof and paying the money as before mentioned, on the sales of the prisoner’s estate; for which he shall be allowed over and above his fees, such expences as the court shall judge reasonable, including such fee to a lawyer on the proceeding against the garnishees, as the nature of the case will make just, and if the effects in his hands are not sufficient to reimburse such expences, he shall be paid the balance by the creditor or creditors in proportion to their debts.
Where a garnishee does not acknowledge the whole debt or goods mentioned in the schedule, the sheriff or prisoner shall be at liberty, at any time after, within the times prescribed by the act for limitation of actions and suits, to claim the residue by legal process, and the former judgment shall only be a bar for so much as the garnishee was ordered to pay or deliver.
Where any debtor committed in execution, shall discharge himself by taking the oath or affirmation herein before directed to be taken by insolvent debtors, the sheriff shall not be allowed any other fees for serving the execution, than are or shall be allowed by law for committment and releasement, the maintenance of the debtor, and for selling the effects, and collecting the debts contained in the schedule delivered in by such prisoner of his estate.
In all executions upon judgments for penalties of bonds, or other writings, the commissions of the sheriff or officer for serving the same shall be charged only upon the principal sum, by the payment of which the execution is to be discharged.
In writs of execution in detinue, the commissions shall be allowed upon the value of the goods recovered, and on the damages and costs, and in the writ to have a return of the goods in replevin, the commissions shall be on the amount of the rent avowed for, damages and costs.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 84–8. MS (ViU); clerk’s copy.
Bill presented by Madison 31 Oct. 1785, postponed various times, and, on 21 Dec., put off until 31 Mch. 1786. It was brought up again on 1 Nov. 1786, but apparently no further action was taken on it at this time (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 93, 94, 101; same, Oct. 1786, p. 16–17).