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AS TO GOODS

time to obtain the money, particularly when the sheriff could PIERI FACIAS not possibly sustain any loss from the indulgence; and added, that were these the only questions in the cause, they would not hesitate in saying that the sale should be set aside.27

29

The sheriff cannot deliver the defendant's goods to the plaintiff in satisfaction of his debt;28 nor can he redeliver them to the defendant, if he pays only part of the debt; and if the sheriff levies the goods, and pays the plaintiff with his own proper money, yet he cannot keep the goods to his own use. Nor can he, with his own money, pay the plaintiff, and afterwards levy the execution on the property of the defendant, even though it were agreed between him and the defendant that he might retain the execution, and use it for his own indemnity; for by the payment the execution is spent ; such agreement being also illegal, and tending to oppression and abuse: nor can he take a bond or other security from the defendant, and detain the execution in his hands, and use it afterwards to enforce the payment of the money advanced by him.30

But the goods may be sold to the plaintiff, though they cannot be delivered to him without sale. In case of the plaintiff's becoming the purchaser, the sheriff may deliver him the goods, without payment, unless the purchase money amount to more than the debt, interest, and costs, in which case the surplus ought to be paid.101

Where a sheriff had two executions from different plaintiffs, and having sold property, intended to apply the proceeds to the junior execution, on the ground that the elder execution had become dormant in his hands, but the plaintiff in the elder execution having been a purchaser, and having refused to pay the purchase money at the sale, insisting on his right to apply the purchase money to his own execution, and the sheriff having

95.

2 Cow. Rep. 139.

Johns. Rep. 426. 15 Johns. Rep.

* Cro. Eliz. 504. 2 Vent. Rep. 443. 12 Johns. Rep. 207.

29 Noy. 107. 1 Lutw. 589.

30 Reed vs. Pruyn & Staats, 7

31 Ld. Raym. 251. 346. Comb.

452.

101 19 Johns. Rep. 84.

AS TO GOODS.

FIERI FACIAS delivered the property to the plaintiff in the elder execution, brought an action against him to recover the purchase money; the court were of opinion that the elder execution had not become dormant, and held that the sheriff was not entitled to recover of the plaintiff, because the latter had a right to have the money applied to his execution; and observed, that in case of contest, it was proper for the sheriff to bring the money into court; and that in such case, it might be proper for the sheriff to refuse to deliver the property, till he received the money; and that if the money was refused, he might resell the property: but that if he delivered it without receiving the money, and chose to prosecute for it, it would be a good defence for the purchaser to show that the money belonged to him.32

Purchasers right of injess, &c.

Where, after a sale to the creditor, without receiving the money, the execution was set aside as fraudulent, and the sheriff was directed to apply the monies collected on that execution, to satisfy other executions in his hands; and the sheriff, not having actually received the money, returned nulla bona to an execution, delivered to him prior to the order of the court setting aside the otherexecution, it was held that he was not liable to an action for a false return.ss Where A confesses a judg ment to B, and B covenants to sell the property of A, under that judgment, and apply a sufficiency of the proceeds to the payment of A's debts, and to account with him for the remainder, B may become a purchaser under the execution, notwithstanding the trust. But it may be questionable whether the plaintiff's attorney can become a purchaser for his own benefit.

If a crop of wheat, in the ground, be sold under an execution against the lessee of a term, determinable upon notice to quit, and the landlord gives notice to quit, and the tenant leaves the premises after the sale, but before the wheat is reaped, the purchaser is, notwithstanding, entitled to ingress. egress, and regress, to gather the crop.36

32 5 Cow. Rep. 390.
319 Johns. Rep. 84.
34 13 Johns. Rep. 220.

35 4 Johns. Ch. Rep. 118.
36 9 Johns. Rep. 108.

AS TO GOODS.

The sheriff may sell the goods, after the return of the writ, FIERI FACIAS and even after he is out of office, without a venditioni exponas.101

May sell after return day.

of landlord's

If the goods are liable to be distrained, for rent due, the Preference landlord is entitled to a preference of payment, to the extent, rent, as however, of a year's rent only. This preference is allowed by statute, and the revised statutes contain several new and important regulations on the subject.

statute.

It is provided, that "if an execution be levied upon any regulated by goods or chattels, in or upon any demised premises, liable to distress for rent, the landlord of such premises, to whom any rent of such premises may be due, may, at any time before a sale of such goods, by virtue of such execution, give notice to

party in whose favour such execution shall be issued, or to the officer holding the same, of the amount claimed by such landlord to be due, and the time during which the same accrued, and shall accompany such notice with his own affidavit, or that of his agent, of the truth thereof."7

"Upon receiving such notice and affidavit, the officer holding such execution, (unless prevented, by the tenant of such premises executing a bond, as hereinafter provided,) shall levy the amount of the rent, so claimed to be due, in addition to the sum directed to be raised on such execution, and shall pay such additional sum to such landlord, or his agent; but the amount of rent to be levied, under this section, shall not exceed the last year's rent of such premises."'38

"In case there shall be a deficiency of goods and chattels, to satisfy both such execution and rent, the amount levied shall be first applied to the satisfaction of such rent, and the balance, if any, shall be applied upon such execution."'39

"If any tenant, against whom an execution shall be issued, shall deny that rent is due to his landlord, as claimed, he may

101 Cro. Jac. 73. 1 Salk. 323. 1 Ves. 196. 1 Barn. & Ald. 230. But see Yelv. 44. 1 Lutw. 589.

37 1 R. St. 746. s. 12.
38 Ib. s. 13.

39 Ib. s. 14.

AS TO GOODS.

PEIRI FACIAS prevent the levying thereof, by virtue of such execution, as herein before provided, by delivering to the officer holding such execution, a bond, with two sufficient sureties, to be approved by such officer, in a penalty double the amount of the rent so claimed, to be executed to such landlord, with a condition that the obligors therein will pay all rent, then due to such landlord, not exceeding one year's rent of the premises."'40

"Upon such bond being executed and delivered, the officer holding such execution shall proceed in the collection thereof, notwithstanding any claim, or notice of claim, for rent, which may have been made or given; and he shall deliver such bond to the landlord making such claim, or his agent, who shall be authorised to prosecute the same, for the recovery of the rent due him."41

If any landlord shall, under the foregoing provisions, claim more rent than is due to him, and such excess shall be collected, as herein provided, the tenant may maintain an action against such landlord, for such excess; and, if he recover therein, shall be entitled to judgment for double the amount of such excess.42

42

SECTION III.

Its form prescribed by statute,

OF THE FIERI FACIAS, AND PROCEEDINGS UNDER IT, AS REGARDS
LAND, TENEMENTS, &c.

The form of the fieri facias, both as it relates to lands and chattels, has already been noticed.43 As it relates to land, the form is prescribed by the following statutory provisions: "Executions to authorise the sale of real estate, shall command the

40 Ib. s. 15.

41 Tb. s. 16.

42 Ib. s. 17.

43

Ante, Vol. 2. p. 302.

AS TO LANDS.

officer to whom they are directed, that of the goods and chat- FIERI FACIAS tels of the person against whom such execution shall issue, in the county of such officer, he shall cause to be made, the debt, damages, or other sum of money, and costs, for which the judgment was rendered; and if sufficient goods and chattels cannot be found, that then he cause the amount of such judgment to be made of the real estate of the person against whom such judgment was rendered, which such person shall have had, at the time of docketing such judgment, specifying such time, or at any time afterwards, in whose hands soever the same may then be."44

fect.

It will be observed, that the effect of the above provision is, and its efto render the real estate liable only in case of a deficiency of personal property. It will also be observed, that the command of the writ is, that the sheriff levy on the real estate of the person against whom the judgment was recovered, which he had at the time of docketing the judgment, or afterwards, in whose hands soever the same may be. But this must be understood with reference to the statutory provisions, rendering the judgment a lien on lands, to mean, as regards purchasers in good faith, and incumbrances subsequent to the judgment, by mortgage, judgment, decree, or otherwise, in whose hands soever the lands may be, within ten years after docketing the judgment. As against all others, the lands are subject to a levy, after the expiration of the ten years. The statutory provisions on this subject, having been fully considered, under the head of judgments, will not be noticed again

here.45

against heir,

ter-tenant.

Where the judgment is against one as heir, devisee, or ter- Its form tenant, the form of the execution is prescribed by the follow-devisee, or ing provision of the statutes: "If execution be issued upon a judgment rendered against any person as ter-tenant, heir, or devisee of any deceased person, it shall command the amount of such judgment to be made of the real estate whereof the an

442 R. St. 367. s. 24.

45 Ante, Vol. 2. p. 260.

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