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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OP LAW
 
 A TREATISE 
 
 ON THE 
 
 LAW OF EXECUTIONS 
 
 IN CIVIL CASES, 
 
 AND OP 
 
 PROCEEDINGS IN AID AND RESTRAINT THEREOF 
 
 BY 
 
 ABRAHAM CLARK FREEMAN, 
 
 AOTHOB OP A TBSATI8S ON THE LAW OF JTJD0MFKT8, AND A 1^0 OF A TBSATDX OH TBI 
 LAW OF COTENANCY AND PASTIXIOM. 
 
 Executio est fruclus et finis legis. 
 
 VOL. I. 
 
 THIRD EDITION. 
 
 SAN FRANCISCO: 
 BANCROFT-WHITNEY COMPANY, 
 
 Law PuBLiBHEKa and Law Booksellebs, 
 
 1900.
 
 Copyright, 1876, 
 By a. C. Freeman. 
 
 Copyright, 1888, 
 By a. C. Freeman. 
 
 Copyright, 1900, 
 By a. C. Freeman. 
 
 T 
 
 Fy 
 
 Mm?
 
 
 < 
 
 LAW OF EXECUTIONS. 
 
 VOL. I. 
 
 5S6S87
 
 PREFACE TO THE THIED EDITION. 
 
 Nearly twelve years intervening since the puLlication of the 
 second edition of this treatise, during which the courts of this 
 country have increased in number without diminishing in fer- 
 tility or indusir}', ha\e made a third edition necessary. The 
 text has been enlarged more than one-half. To some extent 
 this is due to a more searching examination of decisions ante- 
 dating the preceding edition, but chiefly to those of a later date. 
 Had they been cumulative only, their mere citation would have 
 sufliced, and any substantial enlargement of the work would 
 not have resulted. Such, however, is the infinite variety of 
 business circumstances and interests, as presented to our courts 
 for consideration, that precisely, or even substantially, the same 
 combination is rarely reproduced. Generally, to each judgment 
 new thought must be given, and for each new rules of decision 
 formulated, or pre-existing rules explained, restricted, or ex- 
 tended. Notwithstanding all that has been done, preserved as 
 it is, aiul juiide accessible, by voluminous official and unofllcial 
 report.-^, the practitioner, however able and industrious, will con- 
 tinue to be confronted with new inquiries which he knows not 
 how to answer with the support of authority; and, though he 
 may at times decry the rapid multiplication of books, the neces- 
 sities of his calling will ever make him, though perhaps un- 
 wittingly, cry for more. 
 
 The general scope of this work has not been extended, nor has 
 one part of it required or received more attention than another. 
 Every topic within it remains the subject of frequent and serious 
 
 (V)
 
 vi 
 
 rilEf-ACB TO THE TITinO EDITTOM. 
 
 i„dicial con.iaeration. Henoc. it has rcs„U«l that he ■ncrea.e 
 in volume, though pcrhar^ oxceptional, ha. distr.hutea ,tseH 
 through the several parts vith that ,miforn,ity «bich ever ac- 
 compaBics natural and healthful growth. ^ ^ j,^,^^,i^j,. 
 
 San Fea^cisco, March 1, 1900.
 
 PREFACE TO THE SECOND EDITION. 
 
 A little more than twelve years have elapsed since the pub- 
 lication of the first edition of niv treatise on the Law of 
 Executions. During that time our various courts, state and 
 national, have been busy, and their labors have resulted in 
 the addition of many decisions to those previously existing upon 
 this topic. Hence the necessity of a second edition of my 
 treatise, containing references to these more recent adjudica- 
 tions and statements of the legal principles which they reaffirm 
 or establish. 1 have, however, deemed it best not to confine 
 mvself to the mere addition of new cases. On the contrary, 
 I have, re-examined tlie whole subject, and have added what- 
 ever came within my research, regardless of the date of decision. 
 The scope of the work has also been enlarged by including 
 within it writs and proceedings issued or taken for the purpose 
 of enforcing decrees in chancery, and this has involved the con- 
 sideration of chancery sales and the various steps required to 
 procure their vacation or confirmation, and to compel the pay- 
 ment of the purchaser's bid. This has occasioned a necessity 
 for inserting two new chapters, and renumbering others in the 
 latter part of the work. The first of the new chapters is 
 inserted as number xx., and is devoted to the reporting, con- 
 firming, and vacating of chancery sales. Chapter xx. of the 
 former^ edition is now numbered xxi. The second new chapter 
 is numbered xxii., and in it are treated proceedings to collect 
 the amount bid, whether at execution or chancery sales, or the 
 amount of tlie deficiency when it has been ascertained by a 
 resale. From this point the chapters follow the same order as 
 in the first edition, but are numbered respectively from xxiii. 
 to xxxiv. instead of from xxi. to xxxii. 
 
 (vii)
 
 viil PREFACE TO THE SECOND EDITION. 
 
 With respect to the law of executions, it has been found that 
 the questions requiring most frequent consideration by the 
 courts are, What property is subject to execution? and what 
 exemptions may be allowed? Special attention has therefore 
 been given to the subjects of garnishment, of conditions and 
 restraints designed to witlidraw ])roperty from execution, and 
 of the various statuinry exemptions. Considerably more than 
 three thousand cases have been added to the table of citations, 
 and the text has been augmented to a corresponding extent. 
 
 A. C. F. 
 
 San Francisco, October 1, 1888.
 
 PREFACE TO THE FIRST EDITION. 
 
 The prejudice against the increase of law Looks is nnques- 
 tionably great. So well is this fact understood, that an author 
 is expected to introduce his book by an attempt to justify its 
 existence. I can offer this apology for the ])roduction of each 
 of my prior works: that it treated of subjects of prime im- 
 portance and frequent recurrence, not recently nor extensively 
 considered by any other writer. I long hoped that the same 
 apoh)gy might be urged in favor of this book; and that any 
 asperities which might be aroused by observing defects in its 
 exeriition would be mollified by the remembrance that it was 
 the only effort which liad been made to collect, arrange, and 
 interpret a mass of authorities so vast that their numbers bore 
 unquestionable e\ idenco of the difficulty and importance of the 
 subject with wliich they were connected. 
 
 "When this book was about half completed, I was deprived 
 of a portion of my coveted apology by the publication of a 
 work on the same tojnc. My first impulse was to discontinue 
 my own labors. lUit a work on Executions was so clearly a 
 sequel to my work on Judgments; my thought and research in 
 the preparation of the latter were so evidently of a character 
 to fit me for the prosecution of the former; and, beyond all, 
 I was so thoroughly interested in my theme — that I determined 
 to proceed. The result of this determination is now before the 
 reader. If, after a patient examination of my work, he can 
 truly say that there was no need of its puljlication. and that 
 it will i)rove of no material aid to the bench and l)ar of my 
 country, then botli myself and my pul)lisbers will deserve his 
 commiseration as much as we shall merit his censure. 
 
 (ix)
 
 X PREFACE TO THE FIRST EDITION. 
 
 This work, though not formally subdivided in that manner, 
 consists of three parts. The iirst treats of exeeutions against 
 the property of the defendant; the second, of executions against 
 the person of the defendant; and the third, of executions ta 
 recover specific property, to the possession of which the plain- 
 tiff has been adjudged to be entitled. Part i. comprises all that 
 is usually understood by the word "execution," and occupies 
 more than nine-tenths of the entire book. I have endeavored 
 to consider the several questions in the order in which they 
 are likely to arise. My first eight chapters arc occupied by 
 matters usually presenting themselves for consideration before 
 the writ is delivered to the sheriff. They treat of the issue 
 and form of original executions; of alias and pluries writs; of 
 writs of venditioni exponas; of amending and quashing writs; 
 of proceedings to obtain executions on dormant judgments; and 
 of the consequences flowing from various errors and irregu- 
 larities in these several writs and proceedings. When a writ 
 is delivered to an officer, he ought first to ascertain whether 
 it is one which he may lawfully execute; and if so, within what 
 time and limits, and under whose direction, he should proceed. 
 My ninth chapter is devoted to inquiries which must be made 
 by the officer in ascertaining tliese matters. Naturally, the 
 next inquiry is for property on which to enforce the writ. 
 Chapters x. to xv., therefore, treat of real and personal prop- 
 erty subject to execution; of property bound by execution liens; 
 and of personal property and homestead exemptions. Sup- 
 posing that the informatioii contained in these chapters will 
 enable the officer to learn with what property he may properly 
 interfere, I have next sought to show how such property may 
 be taken in execution and forced to produce the satisfaction of 
 the Writ. Hence my sixteenth, seventeenth, and eighteenth 
 chapters are devoted to levies upon real and personal property, 
 and to proceedings where such property is claimed adversely 
 to the defendant. After the levy come the proceedings pre- 
 paratory to the sale; the sale itself, and the various measures 
 looking to its confirmation or vacation; the redemption, if any
 
 I'KKFACE T(J I'lli: FIRST EDITION. xl 
 
 1)0 made, and if not, then the deed and the various questions 
 looking to the ascertainment of the purchaser's rights and of 
 the means by wliich they may be enforced. These questions 
 and proceedings occupy chapters xix. to xxiii. Keturns on exe- 
 cutions, their etlVct and admissibility as evidence, and the cir- 
 cumstances in whicli tlicy may be quashed or amended, are the 
 subjects embraced in chapter xxiv. Chapters xxv. and xxvi. 
 treat of profH-cdings by elegit as they were formerly pursued in 
 England, and of ])roceedings by extent as they are now author- 
 ized in most of the New England states. Here terminate the 
 proceedings ordinarily taken under executions against property; 
 but as they do not uniformly prove effective, we have yet to 
 consider what further steps may be taken to compel the satis- 
 faction of the plaintiff's demand. Hence the necessity for 
 chapters xxvii. and xxviii., upon ])roceedings at law and in 
 equity, supplemental to or in aid of execution. To these I 
 have added a brief chapter upon c(iuitable proceedings restrain- 
 ing executions. Chapter xxx. treats of the satisfaction of exe- 
 cutions and the distribution of their proceeds. Chapters xxxi. 
 and xxxii. comiu-ise parts ii. and iii. of the book. Their con- 
 tents have already been indicated. It will be observed that I 
 have not collected in any single chapter the rules governing 
 the liabilities of odieers and others for wrongful acts done while 
 engaged in the service of executions; nor have I separately 
 treated of actions to enforce those liabilities. Neither of these 
 subjects has, however, been overlooked. Each has been con- 
 sidered in numy dill'erent portions of the book, in connection 
 with other subjects from which I deemed it inseparable. 
 
 Recently, American text-books have been unfavorably criti- 
 cised in England, because of their numerous, and apparently 
 inconsiderate, citation of cases. It were better, in the opinion 
 of our critic, for an author to confme his attention and that 
 of his readers to those cases which, from being carefully con- 
 sidered by courts of acknowledged erudition, probity, and abil- 
 ity, really deserve the name of autJtorities, than to cite indis- 
 criminately everything which has been honored by the immor- 
 tality of a publication in a law report. This opinion is so
 
 XU PREFACE TO THE FIRST EDITION. 
 
 plausible that it has met the concurrence of several law periodi- 
 cals in this country. But it unist be renunnbered that we have 
 many supreme courts, each making and publishing decisions 
 which are regarded as Jaw within the jurisdictions in which 
 they are pronounced. The result of this is not one system 
 of law, hut many systems. A text-book is expected to go into 
 every part of our Union. It must be tbe companion and assist- 
 ant of practitioners under all these various systems. This it 
 cannot be unless it is competent to refer each to the cases on 
 which he may rely with the greatest degree of confidence at 
 the place where he happens to be discharging the duties of his 
 profession. A decision made by the highest court of the young- 
 est or most obscure of our states or territories may be treated 
 with indifference, or even with contempt, in Eiigluiul, or Massa- 
 chusetts, or New York. . It may, in fact, richly deserve such 
 treatment. It is, nevertheless, the law in the jurisdiction in 
 which it was pronounced. To the practitioners and to all other 
 persons within that jurisdiction, it is paramount in importance 
 to tlie decisions of all other legal tribunals, however wise or 
 venerable they may be. Hence no text-writer can properly 
 ignore it. Whatever he may think of it himself, he must not 
 forget that, in one state at least, it nui.<t be treated as a correct 
 exposition of the law. 
 
 This book will be found to contain nearly fourteen thousand 
 citations, embracing references to over ten thousand different 
 cases. These large numbers prove that my theme is one which 
 has compelled the attention of courts with extraordinary fre- 
 quency, and entitled itself to the distinction of a treatise de- 
 voted to its exclusive consideration. The materials for this 
 treatise are so numerous and so various that their arrangement 
 has given me far greater trouble than any similar task which 
 I have heretofore undertaken. Whethei' tlie result ])roves grati- 
 fying or otherwise, the reader may feel assured that I have 
 spared neither time nor labor in the attempt to do justice both 
 to him and to myself. 
 
 A. C. F. 
 
 Saceame.nto, Cal., August 1, 1S7G.
 
 TAJiLK OF CONTEXTS. 
 
 CHAPTER I. 
 
 DEFINITIONS AND CLASSIFICATIONS. 
 
 Object, classification, and definition of executions — Exeeutious 
 for possession of real and [) rsonal property — Executions 
 airainst chattels — Writs in aid of executions — "Writs to en- 
 force decrees § § 1-9 
 
 CHAPTEH 11. 
 
 ISSUING THE ORIGINAL EXECUTION. 
 
 The courts that may issue it — The judgments on which it may 
 issue — For and against Avhom and by whom issued — Time 
 for issuing — Suspension of riglit to issue — Issuing writs of 
 attachmeat — Seiiuestratiou, assistance, and other writs to 
 enforce decrees — Practice to be pursued in obtaining writs 
 of assistance §§ 10-37 e 
 
 CHAPTEPv III. 
 
 THE FORM OF THE ORIGINAL EXECUTION. 
 
 Essential parts — Consequences of variances, omissions, and 
 alterations — Forms of execution and other writs to enforce 
 decrees §§ J8-47 a 
 
 CHAPTER lY. 
 
 ISSUING ALIAS AND PLURIES WRITS. 
 
 Classification — The return and proceedings under former writs 
 — On judgments satisfied by mistake — Where former writ 
 was void — Where a sale has couveye<l no title — Form of — 
 Notice to obtain §g 48-56 
 
 (xiii)
 
 xiv TABLE OF CONTENTS. 
 
 CHAPTER V. 
 
 THE AVlllT OF VENDITIONI EXPONAS. 
 
 Definition — Object — May have fieri facias clause — Eft\ct of 
 
 sale under — Collatei;pl attack — To -whom directed §§ r)7-G2 
 
 • 
 
 CHAPTER VI. 
 
 AMENDING WHITS OF EXECUTION. 
 
 Extent of the power to amend, and instances in which it will 
 be exercised — Time — Persons against whom amendmeuts 
 may be made — Effect of amendments §§ G3-T2 
 
 CHAPTER VII. 
 
 QUASHING WRITS OF EXECUTION. 
 
 What may be Quashed— Notice of motion for — Who may apply 
 
 for — Time — Grounds — Consequence of §§ TO-SO 
 
 CHAPTER VIII. 
 
 PROCEEDINGS TO OBTAIN EXECUTION ON DORMANT 
 JUDGMENTS. 
 
 First, by scire facias— Object of this writ— In what, actions it 
 ^lay issue — When necessary — Form of writ — Service of — 
 Time for Issue — Irregnlarities — Judgments on scire facias 
 — Alias writs of— Second, by motion §§ St-HT 
 
 CHAPTER IX. 
 
 INQUIRIES CONCERNING THE DUTIES AND LIABILITIES 
 OF OFFICERS ON RECEIVING WRITS. 
 
 Indorsing time of receipt— Ascertaining whether the writ is 
 valid, and whether he may safely execute it— Competency 
 of the ofl3cer to execute the writ— Termination of officer's 
 authority— ^^'hen he must act— Who may control the 
 writ....: §§ 98-108 
 
 CHAPTER X. 
 PERSONAL PROPERTY SUBJECT TO LEVY AND SALE. 
 
 Classification— Conflict of Laws— Tnngible property— :\Ioney— 
 Choses in action — Crops — Fixtures — The defendant's
 
 TABLE OF CONTENTS. XV 
 
 actual interest only— Equitable and loasohold estates— In- 
 terests of mortgagors and mortgagees, pawners and 
 pawnees, bailors and bailees, cotenants and copartners — 
 Inchoate estates— Estates in reversion or remainder— Prop- 
 erty hold under conditional purchase— Property subject to 
 execution in equity- Defendant whose property cannot be 
 seized — Property in custody of law — Property conveyed or 
 mortgaged to hinder, delay, or defraud creditors — Absence 
 of change of possession as evidence of fraud in trans- 
 fers §§ 100-15S 
 
 CHAPTER XI. 
 
 PERSONAL PROPERTY SUB.JECT TO GARNISHMENT. 
 
 Object of garnishment— Garnishment of property not subject 
 to execution or fraudulently transferred — Possession 
 necessary to render persons liable as garnishee — Bailee of 
 choses in action — Debts subject to garnishment §§ Iu9-1T1 
 
 CHAPTER XII. 
 
 REAL PROPERTY SUBJECT TO EXECUTION. 
 
 Lands subject to execution at common law — Uncertain, con- 
 tingent, and undivided intrrests — General rule — Naked 
 legal title — Title without possession— Possession without 
 title — Interest held under the United St^ites- Various 
 estates and interests — Equitable titles — Devises and trusts 
 to withdraw property from execution §S 172-104 
 
 CHAPTER XIII. 
 
 THE LIEN OF EXECUTIONS. 
 
 General nature of the lien, and its difference from other liens- 
 Property subject to — Commencement of — Duration — Dor- 
 mancy—Loss of— Effect of bankrupt act upon §§ 195-207 
 
 CHAPTER XIV. 
 
 OF PROPERTY EXEMI'T FROM EXECUTION. 
 
 Statutes of exemption— How construed— Extraterritorial effect 
 of_ciaIm— Waiving and forfeiting benefits of— Conse- 
 quences of disregarding- Debts against which exemption 
 may be enforced — Sale and encumbrance of exempt prop- 
 erty—Constitutionality of exemption laws— Persons en- 
 titled to exemption — Various classes of exempt prop- 
 erty ^ §§ 208-238
 
 xvi TABLE OF CONTENTS. 
 
 CHAPTER XV. 
 
 HOMESTEAD EXEMPTIONS. 
 
 Who entitUnl to— How selected— What titles may be held by- 
 Uses of houu'stead for business and other purposes- 
 Homestead appurtenances — Amount of— Abandonment 
 and forfeitur(>— Inabilities against whicli homesteads are 
 not exempt— Produce and proceeds of homesteads— Claims 
 for moneys fraudulently invested in- Judgments for torts, 
 or in favor of state or United States— Sale of to satisfy 
 lieus §§ 230-250 
 
 CHAPTER XVI. 
 
 OF I-EVIES UPON PERSONAL PROPERTY. 
 
 Which M-rit to be tirst levied— Diligence required— What 
 amount should be seized- Whose property may be taken— 
 Levy on property of which defendant is a part owner— 
 Of indemnity — Acts' required to make and maintain a 
 li'vy — liestoring possession to defendant — Receiptors — In- 
 ventory — Levy under second writ — Effect of levy — Levy 
 accomplished by unlawful act— Releasing and vacating — 
 Luiliilily for— Necessity of §§ 251-274 
 
 CHAPTER XVII. 
 
 REMEDIES OF OFFICERS WHERE THE TITLE TO PERSON- 
 ALTY IS DISPUTED. 
 
 Methods of protection from claim of strangers to the writ— 
 Riglit to indemnity — Summoning a jury — Trial of right of 
 pr.jperty— IMlls of interpleader §§ 275-278 
 
 CHAPTER XVIII. 
 
 OF LEVIES Ul'ON REAL ESTATE. 
 
 Not to be made where there is personalty— How made — Stat- 
 utory provisions respecting — Describing the property — 
 Effect of §§ 279-282 
 
 CHAPTER XIX. 
 
 PROCEEDINGS FROM THE LEVY TO AND INCLUDING THE 
 
 SALE. 
 
 General synopsis of the officer's duties— Appraisement— No- 
 tice of sale — Time of sale — Adjournments — Placi- of sale
 
 TABLE OF CONTENTS. xvii 
 
 — By wiioin find to whom s;ile may bo madi' — Pcllinj; in 
 parcels — Frniululcnt combinations and devices — Memoran- 
 dum of sale — Payment of bids — Resales — Liability for 
 wrongful sales, and for no;j;lectinf; to sell §§ 283-304 
 
 CHAPTER XX. 
 
 REPORTING, CONFIRMING AND VACATING CHANCERY 
 
 SALES. 
 
 Necessity for confirmation — The report of the sale and pro- 
 ceedinps thereon — Openinj; the bid<lings — Grounds for re- 
 fusin,:; conlirmatiou and vacating sales — Effect of the con- 
 firmation §§ 304 a-304 1 
 
 CHAPTER XXL 
 
 VACATING AND C0NFIR:\IING EXECUTION SALES— ISSUE 
 AND TRANSFER OF CERTIFICATES OF PURCHASE. 
 
 Who may move to vacate sale — Notice of motion and time 
 within which it must be given — Suits to vacate sales- 
 Grounds for — Inadequacy of price — Contirming sales — Is- 
 sue of certificates of sale, and the assignment thereof. §§ 305-313 
 
 CHAPTEPt XXII. 
 
 PROCEEDINGS TO COLLECT THE AMOUNT BID. 
 
 Power of chancery over bidders — Order against purchaser to 
 pay his bid — Proceedings for resale — Proceedings to com- 
 pel payment of loss resulting from resale — Action at law 
 for amount of bid, or for deficiency §§ 31 o a-3l3 h 
 
 CHAPTER XXIII. 
 
 REDEMPTION FROM EXECUTION SALE. 
 
 Depends on statute — Waiver of defects in making — Retro- 
 active statutes — By whom may be made — Evidence oT 
 right to redeem — Araoimt to be paid — Effect of — Bill in 
 equity — Title of purchaser pending right of defendant to 
 redeem §§ 314-323 
 
 CHAPTER XXIV. 
 
 the' DEED. 
 
 Necessity for — Authority to make — How compelled — By whom. 
 to whom, and when to be made — Forms, recitals, vari- 
 ances — Description — Acknowledgment — Second deed — FJ- 
 fect bv relation — Contradicting §§ 324-334
 
 xviii TAI5LE OF CONTENTS. 
 
 CHAPTER XXV. 
 
 THE PURCHASEirS TITLE, RIGHTS, AND REMEDIES. 
 
 Obtains defendant's title and no otlier — Secret vices and equi- 
 ties — Irregularity in the proceedings — Reversal of judg- 
 ment — Right to rents and profits — Remedies t\)r waste and 
 to recover possession — Defenses which can be asserted 
 against the purchaser — lieuiedy for failure of title — Pur- 
 chaser's riglit to subrogation, or to hold land until repaid 
 the amount of his bid §§ 335-352 a 
 
 CHAPTER XXVI. 
 
 OF RETURNING EXECUTIONS. 
 
 When and by wlioni to be made — Form of various returns — 
 Amendments — Quashing — Construing — Wlien returns are 
 admissible as evidence — How compelled — Liability for 
 false return and for neglecting to return §§ 353-369 
 
 CHAPTER XX VII. 
 PROCEEDINGS UNDER ELEGITS. 
 
 History— What to be taken— Proceedings— Effect of §§ 370-371 
 
 CHAPTER XXVIII. 
 
 EXTENDING EXECUTIONS UNDER THE STATUTES OF THE 
 NEW ENGLAND STATES. 
 
 Strict construction of statutes— What may be extended — Ap- 
 praisers, tlieir oatlis of office, appointment, duty, and pro- 
 ceedings — When extent must be by metes and bounds- 
 Extent for too much — Delivery of seisin — Officer's re- 
 turn — Recording — Contradicting and amending the re- 
 turn—Redemption from— Effect of §§ 372-391 
 
 CHAPTER XXIX. 
 
 PROCEEDINGS AT LAW SUPPLEMENTAL TO OR IN AID OF 
 
 EXECUTION. 
 
 Definition, object, nature, and classification — On what judg- 
 mcnt.s — In wliat courts and by and against wliom may be 
 prosecuted — Witnesses and their examination — Procee<l- 
 ings to obtain from a defendant the discovery of his as- 
 sets — Arrest of defendant — Grounds for discharge of de-
 
 TABLE or CONTENTS. xir 
 
 ft>n(l:int without cxaiiiination — Socoad examination — Pro- 
 (•('('(lins^s a^Mlnst third pi-rsons — Receivers — Property 
 A\ hich may he readied — Power to enforce obedience to or- 
 ders — Garnishee's right to paj' oflieer holding the writ.§§ [i{)2-42:\ 
 
 CHAPTER XXX. 
 
 PROCEEDINGS IN EQUITY IN AID OF EXECUTION AND PO 
 REACH EQUITABLE ASSETS. 
 
 Object — Property snbject to — On wbat judgments— Necessity 
 for exhausting legal remedies — Parties plaint ill' and <li'- 
 fendaut — The lien of creditors' bills §S 4:i4-4:]4 
 
 CHArTEiJ xxxr. 
 
 ENJOINING pro('i:i:din(;s tndeu execution. 
 
 No injunction where tlier<' is an adequate n-nnMly at law — 
 Nor on account of errors or irregularities — Enjoining sale 
 of property^not belonging to the dofendant — Injunction to 
 prevent dispossession of one person under writ against an- 
 other — Preventing the clouding of titles and the sale of 
 exempt property — Compelling ri'soil to a particular fund — 
 Injunctions in aid of proceedings in banliruptcy §§ 4:;.">-441 
 
 CHAPTER xxxrr. 
 
 SATISFACTION OF EXECUTIONS AND DISTRIBUTION OF 
 THEIR PROCEEDS. 
 
 Payment, how and to whom made — Keeping the writ alive 
 after payment — Satisfaction by proceedings under execu- 
 tion — Remedy where officer is in doubt about distribu- 
 tion of proceeds — General rules of distribution — Liability 
 of officers for proceeds, and actions to enforce such lia- 
 bility §5 442-450 
 
 ( II.M'TKIJ XXX rii. 
 
 • EXECUTIONS A(;a1NST the PERSON. 
 
 History — Cases in which it may issue — Form — Irregularities — 
 Amending and quasliing — Privilege from arrest — How exe- 
 cuted — EtTect of arri'st — Discharge from custody — Escapes 
 and liability tlierefor— licarrest under S§ 4."»l-4i',7
 
 XX TACr.E OF CONTENTS. 
 
 ClIAI'TKR XXXIT. 
 
 EXECUTIONS FOR TlIK POSSESSION OF REAL AND PER- 
 SONAL PROPERTY. 
 
 "Writs for possession of personalty — Taking possession witliout 
 a writ — Issuing Avrits for the possession of real estate — 
 Form of — Compelling and controlling execution of — How 
 executed — Who may be dispossessed — Restitution — Pro- 
 ceedings Avhcro defon<lants wrongfully retake posses- 
 sion §§408-477
 
 LAW OF EXECUTIONS. 
 
 CHAPTER I. 
 
 DEFIXITIOXS AND CLASSIFICATIONS. 
 
 § 1. General object and definition of executlous. 
 
 § 2. General classification of executions. 
 
 § 8. In real actions. 
 
 § 4. In actions for possession of personalty, 
 
 § 5. Against the person. 
 
 § 6. Against lands, 
 
 § 7. Against chattels. 
 
 §8. Writs in aid of execution; proceedings for contempts. 
 
 § 8a. Writs to enforce decrees. 
 
 § 9. Classification of executions as treated in this work. 
 
 § 1. General Object and Definition of Executions.— 
 Theoretically a judj;iiieiit is the end of the law. It 
 permanently settles disputed issues of fact and applies 
 to the facts as thus settled established principles of 
 law. It declares the respective obligations of the liti- 
 gants in regard to the matters whicli ther have chosen 
 to submit to the decision of the court. Practically, a 
 judgment may be as far from the end as it is from the 
 beginning of the law. The declaration of a right or 
 the permanent and unalterable establishment of an 
 obligation can of itself have no practical force, except 
 as it operates on the private or the public conscience; 
 and, unfortunately, people who have engaged in a long 
 and perhaps bitter litigation are likely to emerge with 
 
 Vol. I.— 1
 
 § 1 DEFINITIONS AND CLASSIFICATIONS. 2 
 
 consciences so dulled toward eacli other that they will 
 respond to nothing less than the practical forcing 
 power of the law. Even w'here this state of mind has 
 not been produced, the losing party, through his in- 
 iihility to discharge the established obligation, may 
 make it indispensable to call in aid the final process 
 of the law. Every step taken from the issue of this 
 ]irocess is liable to be attended with legal embarrass- 
 ments of the most perplexing nature and to lead to 
 litigation more persistent and more complicated than 
 that upon which the process was based. 
 
 The writ which authorizes the sheriff or other offi- 
 cer either to enforce a judgment at law or to endeavor 
 To produce a satisfaction thereof is called an execu- 
 lion.* Every writ which aiithoriz<'S an officer to carry 
 into effect a judgment is an execution.^ "The writ of 
 execution is a written command or i>recept to the sher- 
 iff or ministerial officer directing him to execute the 
 judgment of the court. It is the command of the 
 court, addressed to a ministerial officer, in writing and 
 under the seal of the court, containing with more cer- 
 lainty the command of the court, and expressed with 
 more solemnity than if uttered verbally by the court. 
 It is, nevertheless, the command of the court to the 
 
 1 -'Execution. execntio.sisnitietli in law the obiaining of actiinl pos- 
 Sfission of anything acquired by judgment of law or by a fine execu- 
 tory levied, whether it be by the sheriff or by the entry of the 
 party." Co. I^it. 154 d. "Execution is the act of carrying into effect 
 ihe final judgment of a court or other jurisdiction. The writ wliicli 
 authorizes the officer to so carry into effect such judgment is also 
 called an execution." Bouvier's Law Diet., tit. Execution. "Execu- 
 tion, 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 judgment, may obtain that benefit." Bing- 
 ham on Judguicnis and Executions, 101. 
 
 '-' Pierson v. Hainmoud, 22 Tex. 585; United Stales v. Nourse, D 
 I'et. 28; Darby v. Carson, D Oliio, 149.
 
 S DEFINITIONS AND CLASSIFICATIONS. S 1 
 
 officer to proceed to execute the judgment of the 
 court." ^ It has also been said that an execution "is 
 a judicial writ issuing out of the court, containing the 
 record or other judicial proceeding on which it is 
 grounded." The definitions thus quoted include in 
 them elements by no means necessary to an execution, 
 even when it is based on a judgment or decree of the 
 court. The command of the writ may as properly be 
 rejrarded as the command of the law as of the court. 
 The writ need not be under seal unless the statute so 
 requires, nor does it always issue out of the court con- 
 taining the record or other judicial proceeding on 
 which it is grounded. 
 
 A writ of execution is not necessarily based upon a 
 judgment. It may be employed to enforce other obli- 
 gations which, by statute, have, in this respect, been 
 made equivalent to judgments. A familiar instance of 
 this existed in the English law in the case of certain ob- 
 ligations by matter of record. Each of these obliga- 
 tions was "a writing obligatory, acknowledged before 
 a judge or other officer having authorit}' for that pur- 
 pose, and enrolled in a court of record; and of this there 
 are two sorts, viz., recognizances and statutes. The 
 first of these securities is the recognizance at common 
 law, which is no more than an obligation on record, 
 and may be acknowledged before the several judges out 
 of term and in any part of England, and may be entered 
 on record as well out as in term." * The statutes re- 
 ferred to are statute merchant and statute staple.'' 
 
 :< Kelley v. Yinoout. S Ohio St. 420. 
 
 4 Bac. Abr.. tit. Execution, B, 1. 
 
 •• "A Statute merohaut is a bond of record, ncknowledped before 
 one of the clerks of the statute merchant and mayor of the city of 
 Ivondon, or two merchants of the said city, for that purpose as- 
 signed, or before the mayor or warden of tlie towns, or other dis-
 
 § 1 DEFINITIONS AND CLASSIFICATIONS. 4 
 
 There are a number of instances in the United States 
 where, by statute, an execution may be issued without 
 being preceded by a judgment. But the term "execu- 
 tion" will not in this work be used in its most compre- 
 hensive sense. It will be employed in its most usual 
 sense — a sense in which it denotes a writ issued to 
 enforce a judgment or order of a court of law, or a final 
 decree of a court of equity. 
 
 In many of the states codes are in force under which 
 the same courts exercise both a common-law and an 
 equity jurisdiction, and the differences between the 
 procedure in cases of an equitable and those of a lecral 
 nature are, as far as possible, abolished. Where such 
 is the case, the definition which we have given is ac- 
 cepted without hesitation.*^ This definition is of prac- 
 tical importance in the construction of statutes which 
 refer in general terras to executions, or to sales under 
 execution. These statutes will generally be held ap- 
 plicable to proceedings under any writ for the enforce- 
 ment of a judgment, irrespective of the name which 
 may have been given to writs of similar character when 
 used at common law or by courts of equity. A statute 
 provided that if any person should bid off any property 
 "at any sale made by virtue of an execution," and 
 
 creet men for that purpose assigned. This recognizance Is to be 
 entered on a roll, which must be double, one part to remain with the 
 mayor and the other with the clerk, who shall wrire with his own 
 hand a bill obligatory, to which a seal of the king for that purpose 
 appointed shall be affixed, together with the seal of the debtor." 
 "The statute staple is a bond of record, acknowledged before the 
 mayor of the staple in the presence of all or one of the constables. 
 To this end, says the statute, there shall be a seal ordained, which 
 shall be affixed to all obligations made on such recognizances ac- 
 knowledged in the staple." Bac. Abr., til. Execution, B. 1. 
 
 « Beard v. Wilson. r,2 Ark. 29G; Southern etc. T. Co. v. Ocean etc. 
 Co., 94 Cal. 217; 28 Am. St. Hep. 11.'); Ex parte Voltz, 37 lud. 237: 
 Eeid V. Xortliwestern etc. Co., 32 Pa. St. 257.
 
 5 DEFLNiriONS AND CLASSIFICATIONS. § 1 
 
 should fail to comply with the terms of the sale, he 
 should be liable to pay to the plaintiff twenty per cent 
 of the value of the property so bid off, to be recovered 
 by motion. A sale having been made under a writ of 
 venditioni exponas, the purchaser insisted tliat he was 
 not liable under this statute because the sale was not 
 "made by virtue of an execution." The court, how- 
 ever maintained that execution was "the act of carry- 
 ing into effect the judgment of a court," and hence that 
 the sale in question was made by virtue of an execu- 
 tion;'' In Pennsylvania it has been said that "the word 
 'execution' has always been understood as meaning a 
 writ to give possession of a thing recovered by judg- 
 ment or decree. It is clearly distinguishable from a 
 mere order of sale." Hence the court held that a sale 
 in partition was a judicial rather than an execution 
 sale.® We do not question this uKimate conclusion, 
 for, notwithstanding all writs for the enforcement of 
 judgments and decrees may api^ropriately be termed 
 executions, it does not follow that all are alike in form, 
 substance, or r(^sult. A sale may be judicial, though 
 authorized and directed by an execution, and may, nev- 
 ertheless, be subject to statutory provisions respecting 
 sales under execution. Tlius a judgment foreclosing 
 a mortgage or other lien, and directing the sale of spe- 
 cific property for its satisfaction, is often enforced by 
 what is commonly called "an order of sale," and some- 
 times by a mere certified copy of the judgment, deliv- 
 ered to the officer directed to make the sale. The sale 
 when made is a judicial sale if confirmation thereof 
 by the court is required, but it is, nevertheless, also a 
 
 7 Lockridge v. Baldwin, 20 Tox. .30G; 70 Am. Dec. 385. 
 « (iirard L. I. Co. v. Farmers' & M. Bauk, 57 Pa. St. 388.
 
 § 2 DEFINITIONS AND CLASSIFICATIONS. ff 
 
 sale made under execution,® and hence a statute pro- 
 viding that sales under execution shall be subject to 
 redemption within the time and in the manner therein 
 designated is applicable to sales made under judg- 
 ments foreclosing mortgages/" and a limitation of the 
 time within which execution may issue also applies to 
 writs issued to enforce judgments of this class/^ 
 
 § 2. General Classification of Executions on Judg- 
 ments. — As an execution is. issued to make a judgment 
 productive, it must be of such a nature as to produce 
 all the relief warranted by the judgment and no more. 
 In other words, an execution is necessarily of the same 
 nature as the judgment on which it is based. This 
 judgment is either for the recovery of some specific 
 thing, or for some specified sum of money, or both for 
 the recovery of some specific thing and some specified 
 sum of money, or for the recovery of some thing, and, 
 in case it cannot be had, for the recovery of a sum of 
 money. Executions may therefore be divided into four 
 classes: 
 
 1. Those which authorize the officer to deliver to 
 the plaintiff some specific thing. 
 
 2. Those Avhich authorize the officer to proceed to 
 do something by which it is hoped a sum of money may 
 be produced. 
 
 3. Those which authorize the officer to do both 
 these things, as where an execution in ejectment com- 
 mands that plaintiff be placed in possession of the 
 premises, and that 11 le officer levy on sufficient property 
 to produce a satisfaction of the damages accrued to 
 plaintiff by the withholding of the property. 
 
 9 Burkett v. Clark, 46 Neb. 466. 
 
 10 Kent V. Laffan, 2 Cal. 596; McMillan v. Kicliar.L«, 9 Cal. SG'r, 
 70 Am. Dec. 655. 
 
 11 StoiU V. Macy, 22 C;il. 647.
 
 7 DEFINITIONS AND CLASSIFICATIONS. §§ 3, 4 
 
 4. Those wliicli coinijiaiid the officer to take and 
 deliver to plaiiiliiT certain personal property, and, in 
 case it cannot be found, to levy on other property suffi- 
 cient to satisfy plaintiff fr>r the value of the property 
 of which no return can be had. 
 
 § 3. Executions in Real Actions.— The executions 
 referred to in tlu^ preceding section, as of the first class, 
 represent those cases in which nothing belonging to 
 the def(Midant is taken away from him. They com- 
 mand the plaintiff to be put in possession of something 
 that belongs to him, and which, therefore, the defend- 
 ant has no right to retain. The property of which pos- 
 session is to be given to the plaintiff is either real or 
 personal. If it be real property, the execution must 
 confoi'in to the nature of the judgment and be appro- 
 priate to tlie inten^st which the plaintiff has recovered. 
 In a real action, in which the seisin or possession of 
 lands was recovered, the writ of habere facias seisinam, 
 or writ of seisin of a freehold, issued. This '-is a judi- 
 cial writ issuing out of the record of the judgment, and 
 directed to the sheriff of the county where the land lies, 
 commanding him quod habere faciat to the demand- 
 ant seisinam suam de messuagio," et cetera. ^^ 
 
 If, in ejectment, only a chattel interest or term of 
 years be awarded to plaintiff, the judgment must be 
 made available by a habere facias possessionem, or writ 
 of possession of a chattel interest.*^ 
 
 § 4. In Actions for Possession of Personalty. — 
 "Upon a replevin the writ of t^xecution is the writ de 
 returno habendo; and if the distress be eloigned, the de- 
 fendant shall have a capias in withernam: but on the 
 
 12 Com. Di.c, tU. Execution. A. 2; 3 Bla. Com. 41.3. 
 
 13 Com. Dig., tit. Kxeeiilion, A, 3; 3 Bla. Com. 413.
 
 § 4 DEFINITIONS AND CLASSIFICATIONS. 8 
 
 plaintiff's tendering the damages and submitting to a 
 fine, the process in withernam shall be stayed. In 
 detinue, after judgment, the plaintiff shall have a dis- 
 tringas to compel the defendant to deliver the goods 
 by repeated distresses of his chattels; or else a scire 
 facias against any third person, in ^^hose hands they 
 may happen to be, to show cause why they should not 
 be delivered; and, if the defendant still continues obsti- 
 nate, then (if the judgment hath been by default or on 
 demurrer) the sheriff shall summon an inquest to ascer- 
 tain the value of the goods and the plaintiff's damages; 
 which (being either so assessed or by the verdict in 
 case of an issue) shall be levied on the person or goods 
 of the defendant. So that, after all, in replevin and 
 <letinue (the only actions for recovering the specific 
 possession of personal cliattels), if the wrongdoer be 
 very perverse, he cannot be compelled to a restitution 
 of the identical thing taken or detained; but he still 
 has his election to deliver the goods or their value — 
 an imperfection in the law that results from the nature 
 of personal property, which is easily concealed or con- 
 veyed out of the reach of justice, and not always 
 amenable to the magistrate." ** 
 
 It was in one case held that where in detinue the 
 property sued for had gone into the possession of the 
 plaintiff during the pendencj' of the suit, and he was 
 found by the verdict not entitled thereto, that a judg- 
 ment for the return of the property to the defendant 
 without giving him an option to pay its value was erro- 
 neous, the court ju'oceeding on the theory that in this 
 action a litigant, though found to be wrongfully in the 
 possession of property, had the right to elect to retain 
 it on payment of its value as specified in the judg- 
 
 " 3 Bla. Com. 413.
 
 3 DEFIXniONS AND CLASSIFICATIONS. § 5 
 
 ment.*^ Strictly speaking, this is not true. The 
 wron<>(l()<'r lias no right to retain the property. On the 
 contrary, a writ of distringas may issue for the purpose 
 of coercing its surrender/*^ and it is said that execu- 
 tion for llie value of the property cannot regularly is- 
 sue until it appears that the specific property cannot 
 he had.^' In some parts of the United States statutes 
 have been enacted authoiizing an execution in detinue 
 to direct (he officer "to take with him, if requisite, the 
 power of the county, and seize and take into his pos- 
 session the thing recovered/' *^ while in other states, 
 after the issue of a distringas, either party may apply 
 to the court for an order superseding it, and authoriz- 
 ing execution to issue for the value of the property.^ 
 
 19 
 
 § 5. Execution Against the Person.— When the 
 judgment is not for any specific thing, but simply that 
 the plaintiff recover a certain sum of money, satisfac- 
 tion is sought, either by seizing the person of the 
 debtor and imprisoning him until he pays the dc^bt, or 
 by seizing n])on his property, and either turning it over 
 to the plainlilT, or selling so much as may be necessary 
 at public auction and applying the proceeds to the dis- 
 charge of the execution. When the judgment was in 
 favor of the king for a fine, the writ which authorized 
 the seizure of the defendant's person Avas called a ca- 
 pias pro fine, A capias utlagatum issued on a judgment 
 
 13 Whittiok's Ad. v. Keiffcr. ?,1 Ala. 100. 
 
 ic Robinson v. Kicliards. 4.") Ala. 358; Jordan v. Thomas, 34 Miss. 
 72. 00 Am. Doc. 387. 
 
 17 Waito V. Dolby. 8 Humph. 40.j. 
 
 13 Keith V. .Johnson, 1 Dana, G04, 25 Am. Doc. 1G7; Code W. Va., 
 1891. p. 886, sec. 3. 
 
 19 Garland v. Brigg, 5 :Munf. GO; Code Va., 1SS7, sec. 358G.
 
 § 6 DEFINITIONS AND CLASSIFICATIONS. 10 
 
 of outlawry being returned by the sheriff upon the ex- 
 igent."^ 
 
 A capias ad satisfaciendum is the writ of execution 
 which on a jiK'gment at the suit of a common person 
 authorizes the seizure and imprisonment of the defend- 
 ant. By the common law, this writ issued only in ac- 
 tions vi et armis; ^^ but it was allowed in other actions 
 by a variety of statutes.^^ 
 
 § 6. Execution Against Lands.— "By the common 
 law, execution never was against the lands or tene- 
 ments of the party at the suit of a common person, ex- 
 cept in the case of an heir." '^ By levari facias the 
 sheriff might levy on the goods and chattels of the de- 
 fendant and might also take the emblements, rents, and 
 present profits of his lands, but not the land itself.^* 
 
 20 See Bouvier's Diet, tit. Capias; Com. Dig., tit. Execution, B, 1. 
 
 21 Com. Dig., tit. Execution, C, 1. 
 
 22 Tidd's Prac. 994. "Personill execution for payment of debt 
 was introduced after execution against land, and long after execu- 
 tion against movables. Nor will this appear singular when wo con- 
 sider that the debtor's person cannot, like his land or movables, 
 be converted into money for the payment of del)t. And witli regard 
 to a vassal in particular, his person cannot regularly be withdrawn 
 from the service he owes his superior. This would not have been 
 tolerated while the feudal law was in vigor, and came to be in- 
 dulged in the decline of the law, when land was improved and per- 
 sonal services were less valued than pecuniary casualties." Kama's 
 Law Tracts, 354. 
 
 23 Com. Dig., tit Execution, C, 2; Bingham on .Tudgments and 
 Executions. 108. 
 
 24 Com. Dig., tit. Executiou, C, o: 3 Bouv. Inst. soc. :^400; Bing- 
 ham on .Judgments nnd Executions. 113: 3 Bla. Com. 417. The writ 
 of levari facias is to a limited extent employed in tlie United States. 
 In Indiana it accomplished the objects usually sought by a vendi- 
 tioni exponas. Doe v. Cunningham, 6 Blackf. 430. In Delaware it 
 is used to enforce judgments under the mechanics' lien laws, and to 
 sell unproductive or unimproved real estate. Laws of Del., ed. of 
 1874, pp. G70, 078. In Pennsylvania it issues to enforce charges 
 against lands, such as mortgages, mechanics' liens, and municipal
 
 11 DEFINITIONS AND CLASSIFICATIONS. § G 
 
 This writ was at law usually issued only on judgments 
 in favor of the crown. It was also emploj^ed as a writ 
 of execution against the goods and chattels of a clerk. 
 When issued against a clerk, it was directed to the 
 bishop of the diocese, and after reciting that the de- 
 fendant had no lay fee nor goods and chattels on which 
 a levy could be made, it comman<led the bishop to cause 
 execution to be made of the goods and chattels of the 
 defendant in his diocese.'*' When issued against a 
 clerk, this writ was styled a levari facias de bonis 
 ecclesiasticis. A sequestrari facias could be issued in- 
 stead of a levari facias de bonis ecclesiasticis, and ac- 
 complished the same purpose."** 
 
 The statute of 13 Edw. I., c. 18 (otherwise known as 
 the statute of AVest minster 2, c. 18), ])rovided that when 
 a debt was recovered or acknowledged in the king's 
 court, or damages awarded, the plaintiff might, at his 
 election, have a writ commanding the sheriff to deliver 
 to him ifhe chattels of the debtor and one-half of his 
 lands, to be retained until the debt is satisfied. The 
 writ of execution issued at the election of the plaintifT, 
 in pursuance of this statute, is called an elegit.'' The 
 
 «.lia:,i.cs. r.i-ijiiitly's runlon's Digest, 4S3, 4S4. (>o.i, r)."4. 1089; Hart 
 V. Iloiiiiller, lili Pa. St. 3".). Peutlaud v. Kelly. Watts & S. 4S3. 
 This radical difference between the fomiuon law and the American 
 writ of levari facias will be observed, namelj-, that the former au- 
 thorized the taking of chattels and the products and profits of real 
 estate, while the latter is not directed against chattels nor against 
 the rents nor profits of lands, but to authorize the sale of the land 
 itself. In Pennsylvania and Delaware, if the rents and profits of 
 lands for seven years be adjudged sulticieut to pay the debt, '"the 
 lands are extended by the writ of libciari facias and possession 
 given to the creditor." 3 Bouv. lust., sec. 33'J4; Laws of Del., ed. of 
 1874, p. G82; Brightly's l»urdon's Digest, »;48. Or>:J-r.(;S. 
 
 25 Bouvier's Diet, tit. Levari Facias; :; lila. (,'oni. 418. 
 
 26 Bingham on Judgments and Executions, 114. 
 
 2T Porter's Lessee v. Cocke, Peck. 30,; Bingham on .Tudgments and 
 Executions, 108; Com. Dig., tit. Executious, C, 14; 3 lUa. Com. 418.
 
 § 7 DEFINITIONS AND CLASSIFICATIONS. ]2 
 
 extendi facias, or extent, is a writ of execution by vir- 
 tue of which tlie goods, lands, and person of the defend- 
 ant may at once be seized. Under the elegit, a moiety 
 only of the lands of defendant was appropriated to the 
 satisfaction of the writ, and this appropriation was but 
 temporary. The plaintiff thereby became a tenant by 
 elegit, and so continued until by the profits of the 
 lands, or otherwise, a satisfaction of the judgment was 
 produced wlien his estate terminated, and the defend- 
 ant again became seised of the whole. Under an ex- 
 tendi facias or extent "the sheriff is to cause the lands 
 to be appraised to their full extended A^alue before he 
 delivers them to the plaintiff, that it may be certainly 
 known how soon the debt will be satisfied." '** 
 
 § 7. Execution Against Chattels Persona!.— It will be 
 seen from the preceding section that all the forms of 
 execution authorizing a levy on lands or on the profits 
 .)f land also authorized a seizure of the goods and chat- 
 tels of the defendant. TVliere neither lands nor their 
 profits were sought to be subjected to the satisfaction 
 
 28 3 Bla. Com. 420. "Land, when left free to commerce by the 
 <lissoIutiou of the feudal fetters, was of course subject to execu- 
 rion for payment of debt. This was early introduced with relation 
 to the king. For from Magna Charta it appears to have been the 
 king's privilege, tailing goods and chattels, to take possession of the 
 laud till the debt was paid. And from the same chapter it appears 
 that the like privilege is bestowed upon a cautioner, in order to 
 .Iraw payment of what sums he is obliged to advance from tlie prin- 
 <-ipaI debtor. Bv the statute of merchants the same privilege is 
 given to merchants; and by 13 Edw. L, c. 18, the privilege is com- 
 municated to creditors in general, but with the following remark- 
 able limitation, tliat they are allowed to possess the half only of the 
 land. By this time it was settled that the military vassal's power 
 of aliening reached the half only of his freehold, and it was thought 
 iii.-ongruous to take from the debtor by force of execution what he 
 himself could not dispose of, even for the most valuable considera- 
 tion." Kame's Law Tracts, 339.
 
 13 DEFIXITIOXs AND CI.AS-^IFICATIONS. § 7 
 
 of tho jiulgmont, a writ of fieri facias was issued. Un- 
 der this writ the sheriff was authorized to seize and sell 
 every chattel thinj^ beloniiin;;- to the defendant and not 
 exempt from execution.^* This is the proper writ in 
 all cases where a judc^ment for money is sought to be 
 enforced by the seizure and sale of personal property, 
 irrespective of the character of the action or proceeding 
 in which such judgment was entered/^** The judgment 
 may, however, entitle the plaintiff to the possession of 
 personal property, and, in the event that possession 
 cannot be had, then to its value as fixed by the judg- 
 ment, in which case it may become necessary to issue a 
 writ of fieri facias; but it is said that, upon a judgment 
 in detinue, it is irregular to issue the writ of fieri facias 
 until a distringas has first been issued and returned, 
 and from such return it appears that the property can- 
 not be had.^* 
 
 An important difference existed in the methods by 
 which real and personal property were appropriated 
 toward the satisfaction of executions. Care was taken 
 that the defendant's realty should not be sacrificed 
 through a forced sale. Under the elegit the title re- 
 mained in the defendant, while the "actual profits of a 
 moietj' were applied to the payment of the debt. Under 
 the extendi facias the lands of the debtor were first 
 appraised, and then set off to the creditor at their ap- 
 prais(Hl value. Whichever writ the plaintiff elected to 
 take out, the defendant might rest assured that no 
 more of his real estate could be taken than, in the judg- 
 ment of a disinterested jury of his neighbors, was equiv- 
 alent in value to the amount of the debt. In regard to 
 
 28 Bingham on .Tudgments and Executions, III. 
 •10 Elmer v. Elmer, loO Pa. St. 205; Adriauce Co. v. Hoiskel, 8 
 App. D. C. 240. 
 
 31 Waite V. Dolbj-, 8 Humph. 40(1.
 
 § 8 DEFINITIONS AND CLASSIFICATIONS. 14 
 
 personal property, no such solicitude was ever mani- 
 fested. The law authorized it to be seized and sold at 
 jHiblic auction for whatever it mighf chance to bring. 
 This favoritism toward real estate has in the major 
 portion of the United States ceased to exist; but in 
 some of the states the policy of appraising lands and 
 then setting them otf to the creditor is still pursued, 
 while in otliers an appraisement is made, and the sale 
 is not confirmed unless it produces a specified percent- 
 age of the apx)raised value. 
 
 .^ 8. Writs Carrying Executions into Effect; Proceed- 
 ings for Contempts. — Under the common-law form of 
 procedure. cerLaiii writs were sometimes issued to com- 
 pel or perfect the execution of the original writ. The 
 most familiar of these is the venjditioni exponas. This 
 is the writ which, after a sheriff had levied on property 
 under a fic^'i facias, issued to compel liim to make a sale 
 of such property.^^ The liberate is the writ whicli, 
 after the appraisement of lands, tenements, and chat- 
 tels under an extendi facias, commands the sheriff to 
 deliver legal possession of them to the plaintiff. ^^ But 
 under this writ actual possession cannot be obtained. 
 It is still necessary to resort to ejectment unless actual 
 possession is voluntarily relinquished.^* 
 
 We shall hereafter show that a most efficient mode 
 of compelling obedience to a decree in equity was by 
 attachment and punishment as for contempt of the 
 court of a noncompliance Avith its directions. There 
 can be no doubt that this mode of proceeding would 
 have been equally efficient had it been resorted to at 
 
 "2 Bouv. r>k-t.; Com. Dis.. tit. Execution, C, 8. 
 
 33 Bonv. Diet.: Binsham on .Tiulgments and Executions, 115. 
 
 24 BintrhMiii on .Tudgnients and Executions. 233.
 
 15 DEFINITIONS AND CLASSIFICATIONS. ( 8 
 
 law; and, in all cases whore it was clearly within the 
 power of the defendant to obey or satisfy the judg- 
 ment, no unjust hardship could have resulted from 
 compelling him to do so by arrest and imprisonment. 
 We believe no instance can be found, however, in which 
 it has been adjudged that a defendant could, at the 
 common law, be compelled to aid the plaintiff or the 
 officer charged with the execution of a writ, or other- 
 wise to satisfy the judgment, except by submitting to 
 ihe lawful acts of such officer. If the defendant was 
 in possession of either real or personal property for • 
 which the plaintiff had recovered judgment, the latter 
 was entitled to take out execution and place it in the 
 liands of the proper officer, who on his part could ex- 
 ert whatever power the particular writ authorized; but 
 the defendant could not be called before the court and 
 ]>iinished as for a contempt because he did not actively 
 <^xert himself in surrendering the property or disclos- 
 ing its whereabouts to the officer, so that the latter 
 might the more easily and surely satisfy the commands 
 of his writ.*"*^ On the other hand, neither the defend- 
 ant nor any third person had any right to obstruct the 
 officer or to interfere with his possession if he had 
 taken it pursuant to the commands of his writ, and 
 Avhosoever did so was guilty of a contempt of court and 
 subject to punishment therefor.'"'" In the United States 
 various courts, authorized to exercise jurisdiction in 
 suits between husband and wife either for divorce or 
 the purpose of compelling liim to make provision for 
 
 ••'s CleniL'uts v. Tillman, 79 Ga. 451: 11 Am. St. Rop. 441: Yott v. 
 The People. 91 111. 11; Hoit v. The Teople, 95 III. 109. 
 
 •■'« Matter of T.(.ewenthal. 74 Cal. 109: 5 Am. St. Rep. 424: nunt- 
 iii.u'ton V. McMahou, 48 Conn. 174; People v. Bumble, 74 111. 08; Knott 
 V. People, S3 111. 5o2; Frees v. Perch, 49 Iowa, 351; Cromwell v. 
 Uwings, 7 liar. & J. 55; Sabin v. Fogarty, 70 Fed. Rep. 482.
 
 § Sa DEFINITIONS AND CLASSIFICATIONS. IS 
 
 her support or that of her children, have been held to- 
 be entitled to punish as contempts disobedience of 
 their orders for the payment of alimony, at least when 
 it appears that the defendant has ability to comply 
 therewith.^'' 
 
 § 8 a. Execution of Decrees. — It is well known that 
 decrees in equity are less inflexible than judgments at 
 law in respect to their capacity to afford the relief 
 adapted to the vast and constantly shifting varieties 
 of circumstances demanding legal redress. The boast 
 of those who have administered equity jurisprudence,, 
 that its remedies may be so employed as to give com- 
 plete relief to each complainant, would be palpably 
 vain-glorious had they not devised modes of enforcing 
 their decrees sufficiently stringent to compel obedience 
 and sufficiently varied to answer every conceivable 
 emero'encv. We according! v find the chancellors as- 
 serting in the most comprehensive terms their power 
 to devise remedies adequate to the enforcement of the 
 various decrees which they may be required to make 
 in order to exact equity from all litigants brought with- 
 in their jurisdiction."* Nevertheless, the writs devised 
 to compel the satisfaction or performance of decrees in 
 equity are less numerous than are the writs formerly 
 employed to obtain satisfaction of judgments at law. 
 This is largely due to the fact that courts of equity 
 
 3T Ex parte Spencer, 82 Cal. 400, 7 Am. St. Rep. 26G; Goss v. Ooss, 
 29 Ga. 109; Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281; Buck 
 V. Buck, GO 111. 105; Haines v. Haines, S^ Mich. 138; Park v. Park, 
 80 N. Y. 1.56; Andrews v. Andrews, 62 Vt. 495; Staples v. Staples, 
 87 Wis. .^!)2. 
 
 3« Kersliaw v. Thompson, 4 Johns. Oh. 009; Newman v. Chapman, 
 2 Hand. 93, 14 Am. Dec. 760; White v. Hampton, 13 Iowa, 26."; 
 Whipple V. Farrar, 3 Mich. 436, 64 Am. Dec. 99; Torrell v. AUison,. 
 21 Wall. 289.
 
 17 DEFINITIONS AND CLASSIFICATIONS. § 8* 
 
 often issue a coirimissiou or authorization to some of 
 their officers, or to some person or persons selected by 
 them, and tliereby invest such officer or persons with 
 authority to do for and as the acts of the defendant 
 the acts required to be done by the decree. 
 
 In equity jurisprudence, as modified by statute in 
 England and in many of the states, certain classes of 
 decrees are self-executing, and need no writ or proceed- 
 ing for their enforcement, as where a decree operates 
 to transfer a title from one party and vest it in an- 
 other.'''* Where a decree is not self-executing, it in 
 effect commands the defendant to do or not to do some 
 act or acts specifically designated by such decree. 
 Formerly the court did not undertake to do, or eveh to 
 cause its officers to do, the acts which it had com- 
 manded to be done. It accomplished its purposes by 
 such a course of proceeding toward and with the de- 
 fendant and his property that a proper regard for his 
 own comforts and interests led him to conform to its 
 idea of equity as exijressed in the decree. At the pres- 
 ent time, when the acts which the defendant is required 
 to do are of such a nature that another may do them 
 for him, the court usually authorizes its master, com- 
 missioner, or other officer to execute the decree for and 
 as the act of the defendant. This authorization is sanc- 
 tioned by statute in most of the states. The national 
 courts, however, have not been vested with such stat- 
 utory authority, and must enforce their decrees in some 
 mode warranted by their own rules of proceeding or by 
 the practice of the English court of chancery."*** 
 
 89 romeroy's Eq. Jur., sees. 135, 1317, with note referring to stat- 
 utes; Seton's Forms of Decrees, Judgments, and Orders, 4th ed., 
 527-538, 1329. 
 
 *o romeroy's Eq. Jur., sec. 1317; Ingersoirs Barton's Suit In 
 Equity, 153. 
 
 Vol. J.— 2
 
 § 8a DEFINITIONS AND CLASSIFICATIONS. IS 
 
 Whether any special statute has been adopted on the 
 subject or not, the various courts of equity in the 
 United States have power to enforce their decrees by 
 the same writs and proceedings as were allowable in 
 the courts of like jurisdiction in England immediately 
 preceding our separation from that country.*^ 
 
 When the coercive powers of the court of chancery 
 were sought to be invoked, the first step of the com- 
 plainant was to procure the issuing and service of a 
 writ of execution. This was a mandate under the 
 great seal, commanding the defendant to do the acts 
 required of him by the decree.'*^ This writ is now ob- 
 solete. Instead of procuring its issuance, the complain- 
 iint now obtains a copy of the decree and serves it upon 
 the defendant, who thereupon becomes bound to comply 
 therewith. Under the English practice the decree must 
 state the time after its service within which the act 
 must be done, and the copy served must bear an indorse- 
 ment notifying the defendant that if he neglects to obey 
 the decree by the time therein designated, he will be 
 liable to arrest under a w^it of attachment "issued out 
 of the high court of chancery or by the sergcant-at-arms 
 attending the same court," and will also be liable to 
 Ijave his estate sequestered for the purpose of compell- 
 ing his obedience.*'*^ After the copy of the decree has 
 been duly served, and the time limited for compliance 
 therewith has expired without such compliance, the 
 complainant is entitled to a writ of attachment. This 
 writ is directed to the sheriff or some other competent 
 officer of the jurisdiction in which the defendant is 
 likely to be found, requiring hini to attach the body of 
 
 41 White V. Oeraerdt. 1 Edw. Ch. 33G; .Tones v. Boston Mill Cori)., 
 4 Pick. 507, 16 Am. Dec. .3.58. 
 
 42 Lube's Eq. PL. 174; Daniell's Ch. Pr., 4th Am. ed. 104.3. 
 
 43 Daniells Ch. Pr., 4th Am. ed., 1043.
 
 19 DEFINITIONS AND CLASSIFICATIONS. § 8a 
 
 such defendant and have him before the court at a time 
 designated, to answer for an allej^ed contempt.^ Un- 
 der this writ the defendant may be arrested and lodged 
 in prison, and snlTercMl to remain there until he has 
 purged himself of his contemj^t by obedience to the de- 
 cree.^ 
 
 Arrest and imprisonment, including close confine- 
 ment and putting in irons, seem, down to the end of the 
 reign of Charles I., to have constituted the sole means 
 of compelling obedience to a decree.*** These means 
 might prove inefficient because the defendant was 
 already in prison, or could not be found or appre- 
 liended, or, upon being arrested and imprisoned, pre- 
 ferred remaining in custodj'' to obeying the decree. If 
 the defendant was already in prison, a writ of habeas 
 forpus cum causus *'' could be obtained, whereby the 
 keeper of the prison was commanded to bring the pris- 
 oner into court. 
 
 If the defendant cannot be found, a return of non est 
 inventus is made. Upon this return, when the defend- 
 ant cannot be found, or upon showing that he is in 
 prison, obstinate and disobedient, where he has been 
 found, a writ or commission of sequestration may is- 
 sue.'*® This writ is directed to certain persons therein 
 named Cusually foui*). and empowers them to enter upon 
 the real estate of the disobedient person, "and to re- 
 
 "•» Danieirs Ch. Pr., 4th Am. ed., 1046, 463; L\ib6's Eq. PL, 174: 
 Injrer.soH's Barton's Suit in E«iuity, 152. If the defendant was a 
 corpora tion, and therefore incapable of beins: arrested, its action 
 was coerced by a distrincns. Tliis writ was directed to the shorifT. 
 and commanded him to mal^e distress of the lands, tenements, 
 STOods. and chattels of the defendant within his bailiwick. 
 
 ^5 Daniell's Ch. Pr.. 4th Am. ed.. 1047, 1032. 
 
 <o .«iP(>nfe's Ch. .Tur., 391. 
 
 *■' Elvard v. Warren. 2 Ch. R. 151. 
 
 4SEOSS V. Colville. 3 CaH, 382; Speuce's Ch. Jur., 391; Lub6's Ea. 
 PI. 176.
 
 § Sa DEFINITIONS AND CLASSIFICATIONS. 20 
 
 ceive, sequestrate, and take the rents and profits there- 
 of, and also his personal estate, and keep the same un- 
 der sequestration in their hands until he shall have per- 
 formed the act required and cleared his contempt."'** 
 If the sequestrators ascertain and return that the de- 
 fendant is a beneficed clerk, without lay property, a 
 writ of sequestrari facias de bonis ecclesiasticis may 
 issue. This is directed to the bishop of the diocese, and 
 under it the defendant's benefice may be sequestered.^* 
 If it becomes necessary or advisable for the sequestra- 
 tors to sell personal effects seized by them, such sale 
 will be authorized by the court on proper application 
 therefor.^^ 
 
 If the decree required the delivery of the possession 
 of lands, a mandatory injunction was sometimes issued, 
 commanding such delivery, where defendant remained 
 obstinate in prison, and if this were disobeyed, a com- 
 mission issued to justices of the peace to put the com- 
 plainant into possession.^^ If, when a commission is- 
 sued to sequestrators, or others, under which it was 
 necessary for them to take possession of real property, 
 they were unable to otlierwise obtain possession, a writ 
 of assistance issued in their aid.®^ Where the surren- 
 der of the possession of lands to a complainant or other 
 person was ordered or decreed, this writ also issued.^* 
 
 *9Daniell's Ch. Pr., 4th Am. cd., 10."0. 1051: Tatham v. Parker, 
 1 Sninle & G. 513; Seton's Forms of Decrees, Judgments, and Orders, 
 4th ed., 1577. 
 
 60 Daniell's Ch. Pr., 4th Am. ed., 1051. 
 
 Bi Danioirs Ch. Pr.. 4th Am. ed.. 1054; Seton's Forms of Decrees, 
 .Tudgmonts. and Orders, 4th ed., 1.582. 
 
 02 Speiice's Ch. .Tur., 392: T>nhe'R Eq. PI. 177. 
 
 B3 Daniell's Ch. Pr., 105<;: Spence's Ch. .Tur.. .302: Seton's Forms of 
 Der-rees, .Judgments, and Orders, 4th ed., 15G2; Pelham v. New- 
 castle, 3 Swan, 2S9. note. 
 
 84 Ludlow V. Johnson, Ilopk. Ch. 231; Kershaw v. Thompson, 4 
 Johns. Ch. 609.
 
 21 DEFINITIONS AND CLASSIFICATIONS. § 8a 
 
 This writ is now obsolete under the English practice. 
 It was issued to put a party in possession, upon service 
 of a cop3' of the decree, and without the prosecution of 
 any proceedings for contempt. It is directed to the 
 sheriff of the county wherein the lands lie, and com- 
 mands him to put plaintiff into possession pursuant to 
 the decree.^^ In England the functions of a writ of as- 
 sistance are now performed by the writ of possession.*^ 
 Where a decree is for the payment of money, statutes 
 and rules of court have been enacted or adopted, both 
 in England and in this country, giving authority to 
 issue the writs appropriate for the enforcement of a 
 like judgment at law. Under these statutes satisfac- 
 tion of a decree may be sought by an elegit, a fieri fa- 
 cias, or a capias ad satisfaciendum, in any case where 
 such writ would be proper had the recovery been at law 
 instead of in equity.^'' In England, if, upon return of 
 an elegit or fieri facias, it appears that defendant is a 
 beneficed clerk, without lay property subject to the 
 writ, the plaintiff may have "one or more writs of fieri 
 facias de bonis ecclesiasticis," ^^ whereby the sheriff is 
 authorized to levy the damages and costs out of the 
 defendant's ecclesiastical goods. Final process to en- 
 force decrees is provided for by the eighth and ninth 
 rules of practice for the courts of equity of the United 
 States. Under these rules an execution on a decree 
 for the payment of money may be in the form used in 
 
 66 Daniell's Cb. Pr. 10G2. 
 
 66 Seton's Forms of Decrees, Judgments, and Orders. 4th ed., 
 
 1503. 
 
 BT Daniell's Cli. Pr.. 4tli Am. ed., 1042; Brockway v. Copp. 2 Paige. 
 580: Bryson v. Petty, 1 Bland, Tn3; Shackelford v. Apperson. 6 
 Gratt. 453; Seton's Forms of Decrees, Judgments, and Orders, 4th 
 ed., 1555. 15G0, 1561. 
 
 68 Daniell's Ch. Pr., lOGo.
 
 § 9 DEFINITIONS AND CLASSIFICATIONS. 22 
 
 actions of assumpsit at common law. Other decrees 
 are enforced by attachment and sequestration.'"'^ 
 
 § 9. Classification of the Subject. — We have now de- 
 scrij^ed the principal writs of execution employed at 
 law or in equity, or introduced by statutes. Most of 
 the terms which we have attempted to define have 
 ceased to have any place in the jurisprudence of the 
 greater portion of the United States. Bentham re- 
 proached the legal procedure of his time by the follow- 
 ing assertion — an assertion no doubt well supported in 
 fact: "In the sciences we always go on simplifying the 
 processes of our predecessors; in jurisprudence we al- 
 ways go on rendering them more complicated. The 
 arts are perfected by producing greater effects with 
 more easy means; jurisprudence is deteriorated by mul- 
 tiplying means and diminishing effects."*^^ The Amer- 
 
 B9 These rules, 8 and 9, are as follows: 
 
 Rule 8: Final process to execute any decree may, if the decree 
 be solely for the payment of money, be by writ of execution, in the 
 form used in the circuit court in suits at common law in actions of 
 assumpsit. If the decree be for the performance of any specific 
 act, as, for example, for the execution of a conveyance of land or 
 the delivering up of deeds or other documents, the decree shall, in 
 all cases, prescribe the time within which the act shall be done, of 
 which the defendant shall be bound without further service to take 
 notice; and Ui)on affidavit of the plaiuliff, filed in the clerk's office, 
 that the same has not been complied with within the prescribed 
 time, the clerk shall Issue a writ of attachment as^alnst the delin- 
 quent party, from which, if attached thereon, he shall nat be dis- 
 charged, unless upon a full compliance with the decree and the pay- 
 ment of all costs, or upon a special order of the court or of a judge 
 thereof, upon motion and affidavit, enlarging the time for the per- 
 formance tliereof. If the delinquent party cannot be found, a writ 
 of sequcstnition shall issue against his estate upon the return of non 
 est inventus, to compel obedience to the decree. 
 
 Rule 9: When any decree or order is for the delivery of possession 
 upon proof made by affidavit of a demand and refusal to obey the 
 decree or order, the party prosecuting the same shall be entitled to 
 a writ of assistance from the clerk of the court. 
 
 60 Bentham's Judicial Evidence, by Dumout, ed. of 1825, p. 5.
 
 23 DEFIXJTIONS AX1> CLASSIFICATIONS. 5 9 
 
 ican law of executions is comparatively free from this 
 and similar reproaches/ When a judgment is for the 
 recovery of money, we do not, in most of the states, re- 
 sort to one form of execution to reach real estate and 
 another form to reach personal property; but by one 
 writ the sheriff is commanded to levy upon the personal 
 I)roperty of the defendant, and if sulficient personal 
 proi)erty cannot be found, then upon the_real estate. 
 In cases where the stattite so authorizes, the writ may 
 contain a clause directing the seizing and imprison- 
 ment of the defendant. 
 
 In the following pages we shall not undertake to 
 treat separately of each of the several writs of execu- 
 tion heretofore named, but shall classify and consider 
 our subject as follows: Part 1 will treat of executions, 
 writs, and proceedings whose object is to obtain the sat- 
 isfaction of a judgment or decree out of the defendant's 
 estate, real and personal, or to compel obedience to a 
 decree in other respects than the payment of a sum of 
 money; part 2, of executions against the person of de- 
 fendant; and part 8, of executions to recover specific 
 property adjudged to belong to the plaintiff. In each 
 of these parts we shall endeavor as far as possible to 
 dispose of various questions in the order in which they 
 naturally present themselves in the execution of the 
 writ.
 
 ISSUING THE ORIGINAL EXECUTION. 24 
 
 CHAPTER II. 
 
 ISSUING THE ORIGINAL EXECUTION. 
 
 FIRST.-ISSUING, WHAT IS, AND HOW APPLIED FOR. 
 
 § 9a. Issuing, what is. 
 
 § 9b. The mode of procuring. 
 
 SECOND— OF THE COURTS THAT MAY ISSUE IT. 
 
 § 10. Courts that may issue— General rule. 
 
 § 11. Of American courts. 
 
 § 12. Courts ceasing to exist. 
 
 § 13. RemoAal of record from one court to another. 
 
 ^ 14. On transcripts from other courts. 
 
 § 15. Effect of issue from wrong court. 
 
 THIRD.— OF THE JUDGMENTS ON WHICH IT MAY ISSUE. 
 
 § 16. General rule as to judgments. 
 
 § 17. Orders and rules of court. 
 
 § 18. Lost or mutilated judgment records. 
 
 § 19. Satisfied or merged judgments. 
 
 § 20. Void judgments. 
 
 FOURTH.-FOR AND AGAINST WHOM, AND BY WHOM IS- 
 SUED. 
 
 § 21. Who may sue out, and his remedies when denied its issu- 
 ance. 
 § 22. Against whom may issue. 
 § 23. By whom issued. 
 
 FIFTH.— TIME FOR ISSUING. 
 
 § 24. The earliest time for issuing. 
 
 § 25. Consequence of premature issuing. 
 
 § 26. Consequence of issuing before expiration of stay by agree- 
 ment. 
 
 § 27. The latest time for issuing. 
 
 § 27a. Issuing on motion, instead of resorting to scire facias. 
 
 § 27b. Leave of the court, when discretionary. 
 
 § 28. Computing the time within which execution may issue. 
 
 § 29. Validity of executions on dormant judgments. 
 
 § 30. Validity of executions on dormant judgments as between the 
 parties.
 
 25 ISSUING 1 HE ORIGINAL EXECUTION. § 9» 
 
 SIXTH.— SUSPENSION OF THE RIGHT TO ISSUE EXECU- 
 TION. 
 § 31. Of the right to Issue several writs at the same time, 
 § 31a. Loss of right to issue because of a levy or other proceeding 
 
 under a writ already i.ssued. 
 §32. Stay of exceutiou other than by appellate proceedings. 
 § 32a. Stay of executiuu as the result of api)ellate proceedings. 
 §33. Execution issut d in violation of a slay. 
 §34. By slay laws, consliiutionality of. 
 § 3o. By death of sole plaintiff or defendant. 
 § 3t3. By death of one of several plaintiffs or defendants. 
 § 37. Abateuient of writ by death. 
 
 SEVENTH.— ENFORCEMENT OF DECREES. 
 
 § 37a. Issuing execution. 
 
 § 37b. Proceedings to enforce decrees by attachment and punish- 
 ment for contempt. 
 
 § 37c. Issuing writ of sequestration. 
 
 § 37d. Writs of assistance, upon what decrees and for and against 
 whom may be issued. 
 
 § 37e. Writs of assistance, proceedings to obtain. 
 
 § 9 a. Issuing the Writ, What is. — Before proceeding 
 to consider other questions connected with the "issuing 
 of iin execution,'' it is proper to ascertain what is meant 
 by these terms. A^arious rights are by law made depen- 
 dent upon the issuing of an execution, and hence the 
 materiality of the inquiry when the writ may be deemed 
 to have issued. Like most other writings, something is 
 <'ssential beyond a mere matter of form. It is not suf- 
 ficient that the paper appear to have proceeded from a 
 competent court; to be based upon a valid, unsatisfied 
 judgment; to be signed and sealed by the proper officer; 
 and to contain all the written elements of an execution. 
 These are mere condition.*: precedent to the issuing of 
 the writ. The object of the writ is to command, or, at 
 least, to authorize, some officer or other duly selected 
 person to enforce the judgment, and this authorization 
 or command is not comph^te until the writ has been <!<'- 
 livered to him, actually or constructively, and for the
 
 § 9a ISSUING THE ORIGINAL EXECUTION. 2^ 
 
 purpose of having him obey its command. Where awrit 
 is delivered to an officer, but accompanied with instruc- 
 tions, express or implied, that he shall merely hold it in 
 his hands, until he receives further directions, or until 
 some other writ against the same defendant is about 
 to be placed in the hands of the same officer, it is, as 
 against all persons but the defendant, fraudulent and of 
 no effect (post, section 20G), though perhaps as against 
 the defendant himself it may be deemed issued and in 
 effect. It is clear, however, that the mere making out 
 of an execution in proper form by the clerk cannot, 
 while it remains in his office, be an issuing of it,^ nor is 
 such issuing consummated merely by delivering it to 
 the plaintiff. So long as it remains in his possession it 
 is not issued. It must, therefore, be delivered to an 
 officer authorized to act under it, and with the inten- 
 tion that he shall so act.^ Probably, if it is transmitted 
 to him by mail, it may be regarded as delivered at the 
 time when the plaintiff parts with possession of it by 
 depositing it in the postoffice.* But such delivery is 
 not accomplished by leaving the writ in some place to 
 which it is expected that the sheriff or one of his depu- 
 ties will come, and, in so doing, will receive it.^ If, 
 however, the writ is delivered to an officer with intent 
 to have it executed, and it is levied upon property 
 which is found to be so encumbered by prior liens that 
 the levy must prove unproductive, and on that account 
 the plaintiff directs it to be returned without any sale 
 thereunder, the writ has been issued, and the direction 
 
 1 Burton v. Deleplain, 25 Mo. App. 376. 
 
 2 Gilmore v. Davis. 84 111. 487; Pease v. Ritehey, 132 111. 0?,fi; Kel- 
 ley V. Vincent, 8 Ohio St. 41.5; Berry v. Smith, 3 Wash. G. G. 60; 
 Howes V. Cameron, 23 Fed. Rep. 324. 
 
 8 Walters v. Sykes, 22 Wend. o66. 
 * Burrell v. Hollans. 78 Hun. 583.
 
 27 ISSUING THE ORIGINAL EXECUTION. § 9b 
 
 to rotiirn it does not annul such issuing.'' If a sup- 
 posed writ, though pbiced in possession of the proper 
 oflBcer, is absolutely void, no execution has issued. 
 Hence a void writ cannot be regarded as the abandon- 
 ment of a prior valid writ." If, on the other hand, the 
 writ delivered to the proper officei- by the plaintiff as 
 and for an execution is not absolutely void, execution 
 must be deemed to have issued, though it is irregular in 
 form or in the circumstances preceding or attending its 
 issuing. '^ 
 
 § 9 b. The Mode of Procuring an Original Writ of Exe- 
 cution is by an application to the clerk or other oflQcer 
 vested by law with the authority and duty of issuing 
 it. If the judgment or order is final in the sense that 
 the party in whose favor it is is entitled to immediate 
 payment, and execution has not been stayed by any 
 valid order or proceeding, the issuing of the writ is a 
 mere ministerial act which the plaintiff is entitled to 
 have performed on demand and the payment of such 
 fees as the statute prescribes. No application for the 
 writ need be made to the court or judge, nor need any 
 notice be given to the defendant that the plaintiff will 
 apply therefor.® 
 
 If the judgment does not of itself give the right to 
 the writ sought, but such right is dependent upon the 
 
 B Godman v. Boggs, 12 Neb. 13. 
 
 6 Dunham v. Bentley. 103 Iowa, 13(5. 
 
 7. Tones v. Goodbar. GO Ark. 182; Grand Rapids C. Co. v. Runnels, 
 77 Mich. 104; Hanika's Estiite, 138 Pa. St. 330, 21 Am. St. Rep. 907; 
 Gill V. State, 39 W. Va. 479, 4.5 Am. St. Rep. 928; Drake v. Harrison, 
 69 Wis. 99, 2 Am. St. Rep. 717. 
 
 sDorn v. Howe. 59 Cal. 129; Steele v. Thompson, G2 Ala. 323; 
 Coulter V. I.nmpkiu. 94 Ga. 225; Ensley v. McCorkle, 74 Ind. 240; 
 Ayres v. Campbell, 9 Iowa. 213. 74 Am. Dec. .310; Maloney v. Real 
 Estate Assn., 57 Mo. App. 384; Gaines v. Travis, Abbotts Adm. 422.
 
 § 9b ISSUING THE ORIGINAL EXECUTION. 28 
 
 happening of some contingency whicli cannot be ascer- 
 tained from an inspection of the record, it is proper, 
 and probably necessary, to procure a special order of 
 court. Thus, where a decree foreclosing a lien directs 
 the sale of specified property to pay plaintifL's demand, 
 and he is not entitled to a fieri facias, except for the 
 balance remaining unpaid after such sale, it has been 
 held that he can obtain execution for the deficiency 
 only upon an application to the court.^ In many of 
 the states, however, the officer authorized to make the 
 sale is required to file a return, with a report of his pro- 
 ceedings, showing the amount remaining unpaid after 
 crediting the defendant with the proceeds of the sale, 
 and the clerk is thereupon authorized to docket a judg- 
 ment for the deficiency shown by such return. Where 
 this practice prevails, execution may doubtless issue 
 for such deficiency without any notice to the defendant 
 and without obtaining any special order authorizing 
 iti» 
 
 In some of the states statutes have been enacted re- 
 quiring certain acts to be done by the plaintiff in cases 
 of a peculiar nature to entitle him to execution, as thnt 
 he shall give some notice or file some afifldavit." We 
 shall not here undertake to state these. statutes in de- 
 tail, nor even to summarize their substance. Where 
 they exist, a writ issued without complying with them 
 is, of course, irregular, but it is not void.-*^^ 
 
 9 Wallace v. Field, 56 Mich. 3; Clapp v. Maxwell, 13 Neb. 542; 
 Wilson V. Johnson, 74 Wis. 337. 
 
 '0 Stotts V. Brooklield, 55 Ark. 307; Hawley v. Whalen, 64 Hun, 
 550; Freer v. Tupper, 21 S. C. 75. 
 
 ".Tones v. Croodbar, CO Ark. 182; .Johnson v. Ilolloway. 82 111. 
 334; Davis v. Bell, .57 Miss. 320; Hall v. Moore, 70 Miss. 75; McAnaw 
 V. Matthis. 129 Mo. 142; Clark v. Bond, 7 Baxt. 288; Shackleford v. 
 Apperson, Gratt. 451. 
 
 ".Tones v. Goodbnr. 60 Ark. 182; Miller v. O'Bannou, 4 Lea, 308; 
 Cowau V. Lowry, 7 Lea, 620.
 
 29 ISSUING THE ORIGINAL EXECUTION. § 9b 
 
 If a judgment is conditional or optional, as where it is 
 for a specified sum, but gives the defendant the right, 
 within a time stated, to satisfy it by paying a portion 
 in money and giving a note with security for the bal- 
 ance, the failure to exercise the option within the time 
 allowed entitles the plaintiff to execution for the satis- 
 faction of the sum named in the judgment without any 
 further order of the court or judge.*'* 
 
 If the right to execution is suspended by an appeal or 
 writ of error and a stay bond given thereunder, and the 
 judgment is affirmed by the appellate cour-t, the clerk 
 of the court wherein the judgment was rendered, on the 
 filing of the remittitur therein, is revested with the au- 
 thority to issue execution without any further order of 
 court or any notice to the defendant.** If from any 
 cause there is no right to issue execution until some 
 further order is obtained from the court, then, as the 
 defendant has a right to be heard against the applica- 
 tion, he should be given notice thereof before a hearing 
 is asked, and, at all events, before any order is made 
 directing the writ to issue.*"'^ 
 
 It is said that the clerk may require the application 
 for execution to be in writing. If he entertains any 
 reasonable doubt upon the subject, he may require evi- 
 dence that the person demanding the writ is entitled to 
 do so, especially where such person professes to act as 
 an assignee or agent of the plaintiff, and his right or 
 authority does not appear from any papers on file in 
 the cause; but, if the clerk fails or neglects to issue the 
 writ without demanding any evidence of the right of 
 the applicant thereto, such clerk cannot subsequently 
 
 13 Coulter V. T.uinpkin. 94 Ga. 225. 
 
 i^Wilburn v. IIa!l, 17 Mo. 471: State v. Slioldon. 20 Xeh. 15; 
 Rrndinc: v. Tioadins:. H N. .T. L. ISO: T.ommel v. Tauska, 54 Tex. 505. 
 16 McAiiliffe V. Couglilin. lOo Cal. 2i;0,
 
 § 10 ISSUING THE ORIGINAL EXECUTION. 80 
 
 urge as an excuse for his nonaction that such evidence 
 was not furnished to him.*® 
 
 If, upon proper application, the clerk or other officer 
 rliar2:ed with that duty refuses to issue a writ of execu- 
 tion, the remedy of the party entitled thereto may either 
 be by a motion in the court in which the judgment is for 
 an order directing such officer to issue the writ, or by 
 an independent proceeding by mandamus to compel 
 such issuing, or the officer may be subjected to an ac- 
 tion to recover the damages suffered by his failure to 
 perform his official duty.*'' 
 
 § 10. Of the Courts that may Issue— General Rule.— 
 Probably the verj^ first question to be answered in re- 
 gard to the proposed issuing of an execution is this: 
 Does the court wherein the judgment has been entered 
 have authority to enforce its judgments by the aid of 
 this writ? And here it may be remarked that a judg- 
 ment at law, disconnected from the right to issue exe- 
 cution, would be so idle and worthless a record that we 
 can scarcely conceive that its creation would be encour- 
 a<red or its existence tolerated. A tribunal invested 
 with the power to call litigants before it, and to ad- 
 judge that one of them recover of the others certain 
 specific property or a certain compensation in money, 
 and yet without any authority to make its decision ef- 
 fective, would be the arena of such solemn trifling that 
 nothing but the most positive declaration made by the 
 law creating such court could convince us of its legal 
 existence. It may be assumed, as a general proposi- 
 tion, that every judicial tribunal having jurisdiction to 
 pronounce judgment has authority to award execution. 
 
 " Steele v. Thompson. 62 Ala. 323, 
 17 See post, § 21.
 
 31 ISSUING THE ORIGINAL EXECUTION. 8 10 
 
 Exceptions to this rule must rest upon some clear and 
 positive statutory limitation.*** "If a court is compe- 
 tent to pronounce judgment, it must be equally compe- 
 tent to issue execution to obtain its satisfaction. A 
 courtwitliout tlie meaiisof executing its judgments and 
 decrees would be an anomaly in jurisprudence, not de- 
 servJbg the name of a judicial tribunal. It would be idle 
 to adjudicate what could not be executed,and the power 
 to pronounce necessarily implies the power of execut- 
 ing." ** But there were, nevertheless, judicial tribunals 
 which did not possess authority to issue wiits of execu- 
 tion against the properly of the defendant. The most 
 important of these tribunals was the court of chancery. 
 This court did not, however, undertake to pronounce a 
 formal judgment directing that one party should re- 
 cover of another. It did not assume to deal with the 
 legal rights of the parties. It undertook to decide 
 what was due from one party to the other, not accord- 
 ing to law, but according to conscience. It then at- 
 tempted to coerce the party adjudged to be in the 
 wrong into acting as became a conscientious man. Its 
 decrees, unless for land, operated solely in personam,"^ 
 and were enforced solely by means of process for con- 
 tempt, under which a disobedient party could be im- 
 prisoned until he became obedient. If he could not be 
 seized, or if, being seized and imprisoned, he still re- 
 fused to comply with the decree, the court could issue a 
 writ of sequestration under which commissioners 
 named in the writ sequestered "the personal property 
 of the defendant, and the rents and profits of his real 
 
 18 Bailey v. ^Yiun, 101 Mo. G49; Musser v. Hanvood, 23 Mo. App. 
 495. 
 
 19 United States v. Dreniian, Hemp. 325. 
 
 20 Daniells Cb. Pr., 4th xVm. ed.. 1031; Noonan y. Lee, 2 Black, 
 499; Orchard v. Hughes, 1 Wall. 73.
 
 § 10 ISSUING THE ORIGINAL EXECUTION. 32 
 
 estate, and kept him from the enjoyment of them till 
 he had cleared his contempt." The English courts of 
 chancery by the statute 1 and 2 Vict., c. 110, sec. 18,. 
 are authorized to issue executions in certain cases.^^ 
 In order that a decree in chancery may, by virtue of the 
 provisions of this statute, be enforced by execution 
 against the defendant's property, it must contain the 
 substantial elements of a judgment at common law. It 
 must be strictly for the payment of a sum of money 
 from one person to another.-^ The rule thus intro- 
 duced into the English law is in substantial conform- 
 ity with the practice adopted in the different states,^^ 
 
 21 This statute enacts '"that all decrees and orders of courts of 
 equity, and all rules of courts of common law, and all orders of 
 the lord chancellor or of the court of review in matters of bank- 
 ruptcy, and all orders of the lord chancellor in matters of lunacy 
 whereby any sum of money or any costs, charges, or expenses shall 
 be payable to any person, shall have the effect of judgments in 
 the superior courts of common law, and the persons to whom any 
 such moneys or costs, charges, or expenses shall be payable, shall be 
 deemed judgment creditors within the meaning of this act; and all 
 powers hereby given to the judges of the superior courts of common 
 law, with respect to matters depending in the same courts, shall 
 and may be exercised by courts of equity with respect to matters 
 therein depending, and by the lord chancellor in the court of review 
 in matters of bankruptcy, and by the lord chancellor In matters of 
 lunacy; and all remedies hereby given to judgment creditors are in 
 like manner given to persons to whom any moneys or costs, charges, 
 or expenses, are by such orders or rules respectively directed to be- 
 paid.'' Executions on decrees under this act must issue out of the 
 chancery and not out of the common-law courts. In re Stanford, 
 4 Scott N. R. 23; 3 IMan. & G. 407; G Jur. 38. 
 
 22 Garner v. Briggs, 4 Jur., N. S., 230; 6 Week. Rep. 378; Earl of 
 Manstield v. Ogle, 4 De Gex & J. 38; Shaw v. Neale, 20 Beav. 157, 
 174; 1 .Jur., N. S., 6G6; G H. L. Gas. 541; 4 Jur., N. S., G95; Chadwick 
 V. Holt, 8 De Gex M. & G. 584; 2 Jur., N. S., 918. 
 
 2-* Battle V, Bering, 7 Yerg. 529; Van Ness v. Cantine, 4 Paige, 5o; 
 Bryson v. Petty, 1 Bland, 183; Brockway v. Copp. 2 Paige, 578; Pat- 
 rick V. Warner, 4 Paige, 397; Hall v. Dana, 2 Aiken, 381; Otis v. 
 Forman, 1 Barb. Ch. 33; Wallen v. Williams, 7 Cranch, 602; Colman 
 V. Cooke, G Rand. 618; McNair v. Ragand, 2 Dev. Eq. 42, 22 Am. Dec.
 
 33 ISSUING THE ORIGINAL EXECUTION. § 10 
 
 and also by the federal courts.""* In some instances, 
 decrees direct the sale of certain property, and make 
 the defendant responsible for the deficiency remaining 
 after the proceeds of the sale have been applied to the 
 payment of the plaintiff's demand. In such cases the 
 amount to be paid by defendant is uncertain and con- 
 tinp;ent; and therefore no execution can issue as^ainst 
 bim until the sale has been completed and the defi- 
 ciency ascertained."^ 
 
 The right of courts of law to issue executions may, 
 we think, be successfully upheld in all case's where the 
 power is not clearly withheld by statute. The author- 
 ity of courts of chancery to issue writs of execution 
 similar in form and effect to those employed at law, 
 is, as we haye already seen, dependent upon statutes of 
 comparatiyely recent date; but these courts, as we haye 
 shown in the preceding;- chapter, haye for a long period 
 issued writs, the ultimate object of which was to com- 
 pel obedience to their decrees, and all of which were in 
 effect, as one of them was by name, a writ of execution. 
 There are other courts which haye jurisdiction to bring 
 litigants before them, and to determine what is due 
 from one to the other, and which yet do not i)rofess to 
 enter a direct judgment that one party shall recover 
 
 728; Coombs v. .Toidan. S Bland, 321. 22 Am. Dec. 2.30: Bouslou.cb v. 
 Bousloush. (>8 Fa. St. 495; Gen. Stats. Ky., ed. 1804, sec. 1GG3. 
 
 24 r,y cii^hth equity rule of the United States courts, "final process 
 to execute a decree may, if the decree be solely for the payment 
 of money, he by writ of execution, in the form used by the circuit 
 courts in suits at common law. in actions of assumpsit." Desty's 
 Fed. Proc, 270. An additional rule, numbered 92, and made in 
 1804, provided for decree and execution for balance due after sale 
 in foreclosure suits. Desty's Fed. Proc, 310. 
 
 25 Bank of Rochester v. Emerson, 10 Paige, 115; Cobb y. Thorn- 
 ton, 8 How. Pr. 00. 
 
 Vol. 1.— 3
 
 § 11 ISSUING THE ORIGINAL EXECUTION. 34 
 
 from the other. The most common of these are the pro- 
 bate or surrogate courts. The decisions of these courts 
 are res judicata; they permanently establish the liabil- 
 ity of the parties; but the discharge of the liability 
 thus established cannot be compelled by execution, 
 unless the statute has so provided.^® 
 
 The implied authority of a court to issue executions 
 is restricted to those based upon judgments rendered 
 by it. Hence, if an execution appears to have issued 
 from, or out of, or by the clerk of a court other than 
 that wherein the judgment was rendered, specific statu- 
 tory authority for such issuing must exist to impart to 
 the writ any validity.^'^ 
 
 § 11. Of the Laws Governing American Courts.— The 
 authority of the several courts of each state to issue 
 executions is conferred by the several statutes, where 
 statutory regulation has been attempted; and, in the 
 absence of such regulations, by the rules of the com- 
 mon law. The federal judiciary, on the other hand, is 
 entirely beyond the control of state laws. The courts 
 of the United States issue executions under the author- 
 ity and control of the laws enacted by Congress, of the 
 rules adopted by the courts themselves, and of the pro- 
 visions of the common law and chancery practice, as 
 adopted or modified by the United States statutes or 
 by the rules of court.^'' * 
 
 28 Stilos V. Eurch, 5 Paige, 135. 
 
 27 Willamette etc. Co. v. Hcndrix, 28 Or. 485, 52 Am. St. Rep. 
 800; Chandler v. Caloord, 1 Okla. 266; Bingham v. Burlingame, .33 
 Hun, 211; Gibbs v. Bouiiand, 6 Yerg. 481. 
 
 27a Wayman v. Southard, 10 Wheat. 1 ; Toland v. Spraguc, 12 Pot. 
 300; Boyle v. Zacharie, 6 Pet. 648; Gwin v. Breedlove, 2 How. 29; 
 The Steamer St. Lawrence, 1 Black, 522; Robinson v. Campbell, 3 
 W^heat. 222; Noonan v. Loe, 2 Black, 509; McFarlnnd v. Gwin, 3 
 How. 720; Griffin v. Thoini)son, 2 TTow. 244. For law resulnting ex- 
 ecutions from United States courts in common-law cases, see
 
 33 ISSUING THE ORIGINAL EXECUTION. §§ 12, 13 
 
 § 12. Court Ceasing to Exist.— if the existence of a 
 tribunal competent to pronounce judgment necessarily 
 implies tbe existence in that tribunal of the power to 
 award execution, it would seem to follow, as the nega- 
 tive of this pnjposition, that tlie destruction of the tri- 
 bunal would necessarily carry with it the destruction 
 of the power. When a court has ceased to exist by the 
 repeal of the act by which it was created, it no longer 
 has any authority to issue executions.^® When a court 
 has been abolished, or the business thereof transferred 
 to another court, the clerk of the latter is thereby au- 
 thorized to issue executions upon the judgments of the 
 court which has thus been abolished.^* 
 
 § 13. Removal of Record to Another Court.— Ordi- 
 narily, the court where the judgment is entered must 
 issue execution. •^^* This court may, however, continue 
 in existence with its general power unimpaired, and 
 yet its power to issue execution may, in a particular 
 case, be suspended or destroyed. The most familiar il- 
 lustration of this is in the case of an appeal to some 
 higher tribunal. Here, although the appellate court 
 may have affirmed tlu^ judgment, the court of original 
 jurisdiction may have no power to issue execution. Ac- 
 <'ording to the common-law rule, whenever upon the 
 
 Dt'sty's Fed. Proc, sec. 916; 17 U. S. Stats. 197; on jud.armonts for 
 duties, Desty's Fed. Proc., see. 962; 13 U. S. Stats. 494; on juds- 
 nionts for the use of the United States, Desty. sec. 9S6; 1 U. S. Stats, 
 ."(iri; on .iudgments for fines in penal or criminal causes, Desty, sec. 
 1041; 17 U. S. Stats. 108; in admiralty, see Admiralty Rule 21; 
 Desty, p. 183v5; in equity, see Equity Rules 8 and 92, Desty, pp. 1710, 
 ISll; ante, § 8 a, note. 
 
 2>< Lee V. Newkirk. 18 111. 550; Newkirk v. Chapron, 17 111. 346; 
 Harris v. Cornell, SO 111. .54. 
 
 28 Mavity v. Eastridcre, 67 Ind. 215. 
 
 •■50 Com. Dig., tit. Executions. I; Rac. .\br.. tit. Executions, E; 
 Ringham on Judgments and Executions, 181.
 
 § 13 ISSUING THE ORIGINAL EXECUTION. 36 
 
 prosecution of an appeal the original record was re- 
 moved into another court, that court alone was compe- 
 tent to issue execution. In other words, unh ss snme 
 statute has interposed to modify or destroy the com- 
 mon-law rule, the court having custody of the original 
 record must issue the executiou.^^ The only decisions 
 coming within our observation apparently in conflict 
 Avith this statement were made at a very early date in 
 the states of New Jersey and Missouri.^^ In the first- 
 named state it was said to be the practice at the time 
 the decision was rendered to issue execution from the 
 appellate court, but that at a later date the plaintiif 
 seemed to have been at liberty to procure a writ from 
 either court. In Missouri the earlier decisions sanc- 
 tioned the issuing of the writ out of the appellate court, 
 while the later affirmed that such issuing was an irregu- 
 larity merely. ^^ In the United States, the common-law 
 rules in regard to appeals, including the rules provid- 
 ing for the means of enforcing the judgments of appel- 
 late courts, have been very generally displaced or modi- 
 tied by statutory provisions. We must, therefore, refer 
 our readers to the different state statutes for further in- 
 formation concerning the respective powers of courts 
 of original and courts of appellate jurisdiction to issue 
 executions on judgments, after an appeal has been 
 prosecuted to final judgment. 
 
 31 Tifld's? Prnrtico. 904; Altinan v. Johnson, 2 Midi. N. P. 42; Allen 
 V. Bt'kber, 3 Gilm. .jOG; Cowpertlnvaitc v. Owens, 3 Term. Kep. GHT; 
 Herbert v. Alcocke, 1 I^v. 134; Prinfjle v. Lansd.Tle, 3 McCord, 481); 
 Vicars v. Ilaydon, Cowp. 843; Com. Difr.. tit. Executions, I, 1; Rocl<- 
 well V. District Court, 17 Colo. 118, 31 Am. St. Kep. 20r>; Hawkins 
 V. Craig. Sneed (Ky.). 191; Willtnrn's Ad. v. Hall, 17 Mo. 471; Walter 
 V. Tabor, 21 Mo. 7"); Irwin v. I'li-jruson, 83 Tex. 491; Henson v. 
 Byrne. 91 Tex. 025. 
 
 32 Seely t. Boon. 1 N. .T. L. 101; McNair v. Lane, 2 Mo. 57; Evans 
 V. Wilder, .' Mo. 314. 
 
 83 Block V. Moi-rison, 112 Mo. 343.
 
 37 ISSUING THE ORIGINAL EXECUTION. § 13 
 
 Sometimes the judgment entered in the appellate 
 court is not, strictly speaking, a judgment either of af- 
 firmance or of reversal, but is the result of a trial de 
 novo in that court, and, though the judgment is differ- 
 ent from that jjronounced by the trial court, such diilcr- 
 ence does not necessarily imply any error on the part 
 of that court, because the evidence upon which the two 
 tribunals acted may have been substantially different. 
 Where such is the case, it is obvious that the judgment 
 <?ntered in the higher court, whether the proceeding has 
 been such as to remove the record thither or not, is a 
 new judgment, and cannot, whether in harmony with 
 the judgment of the trial court or not, be regarded as a 
 judgment of that court. In this class of cases the exe- 
 <?ution should issue from the court wherein the final or 
 last judgment is entered. 
 
 When the practice is settled that upon the affirmance 
 of a judgment by the app(»llate court execution there- 
 on should issue out of the trial court where the record 
 remains, there seems no reason for giving any greater 
 effect to a writ issued out of the appellate court than 
 to any other writ from a court having no authority to 
 issue it; but in Missouri, where the early decisions upon 
 the subject were inharmonious, some of them affirming 
 the propriety of issuing the writ out of the appellate 
 <*ourt, it was held that an execution sale wouhl not be 
 adjudged void because the writ issued out of that court 
 instead of out of the trial court. It was said that the 
 remedy of the defendant in the writ was by motion to 
 quash it, and that, not having resorted to this motion, 
 he could not collaterally avoid a sale founded upon 
 such writ.'** 
 
 34 Block V. Morrison, 112 Mo. 043.
 
 § 14 ISSUING THE ORIGINAL EXECUTION. 3» 
 
 § 14. Executions on Transcripts from other Courts.— 
 It is not unusual for statutes to be enacted authoriz- 
 ing the filing with the county clerk of transcripts of 
 judgments rendered and entered by justices of the 
 peace, and i)roviding that executions may issue on such 
 transcripts in the same manner, and by the same per- 
 son or officer as though the judgment were rendered in 
 the court wherein the transcript is filed. '^^ This does 
 not transform the original judgment into a judgment of 
 the higher court, except for the purpose of issuing and 
 controlling execution.*^** It seems to be fatal to de- 
 scribe the execution as issuing out of the court in which 
 the transcript has been docketed,^'^ or to direct the writ 
 to one officer when it should be directed to another.^* 
 In New York an execution on such a transcript of 
 judgment may be issued by the plaintiff or his attor- 
 ney, as in other cases.^^ The filing of the transcript 
 does not prolong the life of the original judgment. 
 The time at which the right to execution will expire 
 must be computed from the rendition of the judgment^ 
 and not from the filing of the transcript.'*^ When the 
 county clerk issues execution to enforce the judgment 
 of a justice of the peace, his authority to do so rests 
 upon tlie filing of the transcript, and upon the exist- 
 ence of such other facts as the statute has prescribed. 
 
 35 Wooters v. Joseph, 137 111. 113, 31 Am. St. Rep. 355; Johnson v. 
 Ratta. 84 Mo. 139; Bauer v. Miller, 16 Mo, App. 252; Ginoehio v. 
 Figarl, 2 Abb. Pr. 185; 4 E. I). Smith, 227. 
 
 36 People V. Doe, 31' Cal. 220; Martin v. Mayor of New York, 11 
 Abb. Pr. 295; 20 How. Pr. 8(5. 
 
 37Merritt v. Jiidd, 9 N. Y. Supp. 491. 
 
 38 Campbell v. Smith, 116 Ala. 290, 67 Am. St. Rop. 113, 
 
 39 McDonald v. O'Flynn, 2 Daly, 42, The ease of Brush v. I^, 
 18 Abb. Pr. 398, holding that such an execution must be issued by 
 the clerk, was reversed by the court of appeals. See 36 N. Y. 49; 
 1 Tr.'ins. App. 66; 3 Abl). Pr.. N. S., 204; 34 How. Pr. 283. 
 
 40 Kerns v. Graves, 26 Cal. 156.
 
 39 ISSUING THE ORIGINAL EXECUTION. § l-l 
 
 Unless it can be shown that the law was substantially 
 complied with, the act of the clerk is rejijarded as with- 
 out aiitli(H'ity,(ind thcrcfoi'c as void.** It has h' ncc been 
 held IliaL if the statute KMiiiii- -s that brfurc a transcript 
 of the judgment shall be tiled or a ilocketing th. reof 
 shall be made in another court, an execution shall have 
 issued out of the trial court and have been returned 
 nulla bona, or that the transcrii)t shall be signed in any 
 particular manner, that the omission to comply with 
 these statutory directions is fatal, and that all proceed- 
 ings subsequently taken are void.^ In some instances, 
 though a return was made in atteni])ted compliance 
 with the statute, the subsequent proceedings have been 
 held to depend upon the sufficiency of this return, and 
 have been disregarded wlien it was thought to be sub- 
 stantially defective."*^ Perhaps, however, when it does 
 not appear whether or not the statute has been wholly 
 complied with, the presumption may be indulged that 
 the various officers have done their duty.*^ We can- 
 not refrain from ex]U'essing our conviction that these 
 decisions, in elTect holding every provision of the stat- 
 utes upon this subject to be mandatory, are unsound, 
 at least when applied in any proceeding other than a 
 motion on the part of the defendant in execution to 
 quash the Avrit; and we believe, where he does not 
 resort to his motion, but, on the contrary, permits the 
 
 41 (':irv V. Ynuse. MO Mo. 340, 90 Am. Dec. 470; Kul)y v. Ilauuilml 
 etc. Ity. Co., oU Mo. 48(); Lindernian v. Edson, 25 Mo. 10.">: Coonci' 
 V. Munday, 3 Mo. 374: Hiirks v. Flournoy, 4 Mo. IIU; Wineland v. 
 Coonce, 5 Mo. 29(5, 32 Am. Dec. 320. 
 
 42 Caini)l)ell v. Smitb, 116 Ala. 290, 07 Am. St. Rep. 113; Ilobson 
 V. McCaiuhridge, 130 111. 307. Carr v. louse, 39 Mo. 340, 90 Am. 
 Dec. 470; Wooters v. Joseph, 137 111. 113, 31 Am. St. Rep. 355; Bige- 
 low V. Booth, 39 Mich. 022. 
 
 ■»3 Mattliews v. Miller, 47 N. J. L. 414. 
 
 ** Martin v. Prather, 82 Ind. 535; I'erkius v. Quigley, 02 Mo. 498; 
 Sachse v. Chingiugsmith, 97 Mo. 400.
 
 ? 14 ISSUING THE ORIGINAL EXECUTION. 40 
 
 writ to be executed ajiaiust his property, and then 
 seeks to avoid the sale made thereunder, he should be 
 denied the redress sought.^'' If, however, there is an 
 express prohibition of the issuinj;' of an execution un- 
 der certain circumstances, or under the statute it is 
 clear that the court or officer had no power to issue 
 the writ when it was issued, then it is absolutely 
 void.'*^ A true copy of the judgment, followed by a 
 certificate in the following form: ''I certify that the 
 foregoing contains an entry made on my docket," and 
 signed by the justice of the peace, is a sufficient tran- 
 script.*'^ Where the transcript is regular, and a sale 
 has been made thereunder, the justice will not, in a col- 
 lateral proceeding, be allowed to show that an execu- 
 tion as set out in the transcript is* not a true copy of the 
 original.^* 
 
 There are statutes authorizing transcripts of judg- 
 ments to be sent to other counties, sometimes for the 
 purpose of making such judgments liens in the coun- 
 ties to which the transcripts are sent, and sometimes 
 to authorize the issue of execution in such county. 
 Where the latter is the object, the authority to issue 
 execution depends on compliance with the i^rovisions 
 of the statute, and if issued in the absence of such 
 compliance, the execution is void."***^ Where the for- 
 mer object is the only one at which the statute aims, 
 the power to issue execution is confined to the proper 
 
 45 .Jordan v. Bradshaw, 17 Ark. 100, Go Am. Dec. 419; Webster v. 
 Daniel, 47 Ark. 131; Norton v. Quimby, 45 Mo. 388; Beruliart v. 
 Brown, 122 N. C. 58G, G5 Am. St. Rep. 72."). 
 
 40 Dunham v. Reilly, 110 N. Y. 3GU; Fischer v. Langbein, 103 N. 
 Y. 84. 
 
 *^ Franse v. Owens, 25 Mo. 329. 
 
 48 Crowley v. Wallace, 12 Mo. 143. 
 
 49 Colville V. Neal, 2 Swan, 89; Morgan v. Hannah, 11 Humph. 
 122; Eason v. Cummins, 11 Humph. 210.
 
 41 ISSUING THE ORIGINAL EXECUTION. § 14 
 
 officers of the county wherein the judgment was ren- 
 dered. An issuing by the clerk of the county in which 
 the transcript is filed is void."*" 
 
 In many instances, the court wherein judgment is 
 pronounced is autlioi-izcd to issue its execution, in cer- 
 tain contingencies, to other counties. Here the gen- 
 eral power to issue the writ is ccniferred by the judg- 
 ment. A mistake in determining whether the proper 
 contingency exists is an error, which may be correct- 
 ed by some appropriate proceeding, such as by motion 
 to quash or recall the writ, but cannot render the writ 
 void.''*^ 
 
 Under a statute authorizing the clerk of the circuit 
 court to issue execution upon certified transcripts of 
 judgments of justices of the peace, ui)on receiving an 
 affidavit on behalf of plaintiff showing that the judg- 
 ment was unpaid in whole or in part, and stating the 
 amount due, an execution was issued without such 
 affidavit, and being followed by a sale, the (piestion 
 was, whether such sale was invalid. In the opinion of 
 the court the issuing of the writ under the circum- ' 
 stances was a mere irregularity; and, the defendant 
 having waived the irregularity by his iuMctiou, the 
 sale was pronounced valid. •'^^ Where by statute au- 
 thority was given to levy a justice's execution in a 
 county other than that in which it issued, on procur- 
 
 «" Soaton V. Ilnmiltdii. 10 Iowa. .'>94: Fnniinn v. Dpwell. ."." Inwa, 
 170: Rhattiick v. Cox. 97 Iiul. 242; Bostwick v. Benedict. 4 S. D. 414; 
 Willamette etc. Co. v. Henclrix. 28 Or. 485, 52 Am. St. Rep. 800; 
 Lnvolady v. Burgess. 32 Or. 418. 
 
 01 Earle v. Thomas, 14 Tex. .^S.3; Sanders v. Russell. 2 T. B. Mon. 
 1.39, 15 Am. Dec. 148; Cox v. Nelson, 1 T. B. :\ron. 94. 15 Am. Deo. 
 SO; Sydnor v. Roberts. 13 Tex. ,598, Go Am. Dec. 84; McConnell v. 
 Brown, 5 T. B. Mon. 479; Younc: v. Sniitli. 10 B. Mon. 29G; Comuiou- 
 wealth V. O'Ciill. 7 .T. .T. Marsh. 149. 23 Am. Doc. 393. 
 
 62 Mavity v. EastriUge, G7 Ind. 211.
 
 § U ISSUING THE ORIGINAL EXECUTION. 4? 
 
 ing a certificate from a justice of the latter county that 
 he knew the handwriting of the justice issuing the 
 execution, a h'VY upon a writ issued without such cer- 
 tificate Avas adjudged to be wholly void.*''' When au- 
 thority is given to the clerk of a circuit court to issue 
 execution to any other county in which the judgment 
 has been docketed, the docketing of the judgment in 
 such other county has been held by the supreme court 
 of Wisconsin to be a prerequisite to the issue of the 
 writ to such county. It is even said that the fact of 
 such docketing must be recited in the writ, on the 
 ground that the writ must on its face disclose the au- 
 thority for issuing it, and that, failing to state such 
 docketing, it discloses- no authority whatsoever.^* On 
 the other hand, it has been decided, with at least 
 equal reason, that the only purpose of the docketing 
 of the judgment is to create a lien, and that the only 
 defect of a sale, in the absence of such docketing, is 
 that the title of the purchaser cannot relate to any 
 date anterior to the levy or sale, and, though the stat- 
 ute expressly requires' the writ to recite the docket- 
 ing, such statute is in this respect directory only.^''^ 
 By the statutes of Michigan, an execution may be is- 
 sued by a justice of the peace at the expiration of 
 live days from the rendition of his judgment; and when- 
 ever an execution may issue, an affidavit may be made, 
 and a transcript of the judgment and proceedings filed 
 in the circuit court. A transcript filed before the ex- 
 piration of the five days is unauthorized by the stat- 
 ute, and no valid execution can issue thereon.^® 
 
 01 Stroot V. McClorkin, 77 Ala. 580. 
 B4 Kentlzer v/. C. M. & St. P. Ky. Co., 47 Wis. 041. 
 B5 Bcinh.'irflt v. Brown. 122 N. C. 580. 07 Am. St. Uep. 725. 
 06 O'Brien v. O'Brien, 42 Mich. 15; Vroman v. Thompson, 42 Mich. 
 145.
 
 43 ISSUING THE ORIGINAL EXECUTION. § 14 
 
 Though a judgment is, on the filing of the transcript 
 thereof in a (•x)urt other than that of its rendition, made 
 a judgment of the latter eourt for the purpose of issu- 
 ing process thereon, no new judgment is tlierebj cre- 
 ated, and subsequent proceedings must be regarded as 
 resting on the original judgment for most purposes. 
 Hence, if no execution can properl}^ issue on tlie origi- 
 nal judgment because it has become dormant, none 
 can issue on the transcript thereof until after a revivor 
 in some mode known to the law.*''' After the original 
 judgment is vacated in the court in which it was ren- 
 dered, no further execution can issue on it elscAvhere. 
 'Tor all purposes, except execution, the original judg- 
 ment continues to be the measure of the plaintiff's de- 
 mand against the defendant and the evidence of what 
 has been passed upon by the court. All inquiries into 
 its regularity and effect, and all apidications for relief 
 from its operation, must be made to the court that pro- 
 nounced it. The derivative judgment is the basis of 
 process in the county in which it is entered. The regu- 
 larity and execution of such process must be deter- 
 mined by the court that issues it, but its control ex- 
 tends no further than its own process." ^* 
 
 If, by statute, a court is given authority to issue a 
 writ to another county wherein the defendant may 
 have real or personal estate, and the original judg- 
 ment has been transferred to a court in some other dis- 
 trict by filing the record in such court, which is then 
 authorized to issue execution thereon, and it afterward 
 becomes desirable to issue execution to a county other 
 than that wherein tlie judgment was entered and that 
 to which it has been tlius transferred, the execution 
 
 67 Beck V. Church, 113 Pa. St. 200. 
 
 08 Nelsou V. Giffoy, 131 Pa. St. 273, 289.
 
 % 15 ISSUING THE ORIGINAL EXECUTION. 44 
 
 must issue upon the original judgment in the county; 
 wherein was recovered.^^ 
 
 § 15. Executions Issued out of Wrong Court. — Exe- 
 cutions issued by one court to enforce the judgments 
 of another court, when there was no authority so to 
 do, have been regarded as absolute nullities.^** In New 
 York, an execution issued out of the supreme court 
 on a judgment in the coui't of common pleas. A sale 
 was made under this writ, and thereafter, to aid the 
 title based on this sale, the common pleas ordered the 
 writ to be amended so as to make it an execution of 
 the court of common pleas. The writ and the sale 
 thereunder were, nevertheless, treated as void when 
 brouglit in question in an action of ejectment based 
 thereon.^*^ 
 
 59 Nelson v. Ciffey, 131 Pa. St. 273, 289. 
 
 .60 Field V. Paulding. 3 Abb. Pr. 139; 1 Hilt. 187; Shattuck v. Cox, 
 97 Ind. 242; Hansen's etc. Factory v. Teabout, 104 la. 360; Bingham 
 V. Burlingaiuo, 33 Ilnn. 211; Chandler v. Calcord, 1 Okla. 260; Wiu- 
 sor V. Collison, 32 Or. 418; Williamette etc. Co. v. Hendrix. 2S 
 Or. 485, 52 Am. St. Rep. 800; Gibbs v. Bourland, 6 Yerg. 481; ante, 
 see. 10; Lovelady v. Bnrgess, 32 Or. 418. 
 
 «i Clarke v. :Miller, 18 Barb. 270. The following is from the opin- 
 ion of tlie conrt in this case: "The rule is a familiar one, that judg- 
 ments must be executed in those courts in which they are rendered. 
 I do not see upon what principle the supreme court could assume 
 to execute tliis judgment recovered in the common pleas. The su- 
 preme court possessed no power to award a fieri facias upon that 
 judgment, and every execution that is issued by the attorney is re- 
 garded in law as awarded by the court out of which it issues just 
 as much as if the award was made upon the record. It strikes me 
 as a strange proceeding for the supreme court to award an execu- 
 tion to the slicriff, commanding him to collect a judgment of the 
 oounty court; and I entertain no doiibt but such an execution is 
 absolutely void. But what is more strange still, after the sheriff 
 has executed it, and sold the lands of the defendant, and given a 
 deed to the purchaser, the county court assume to say. We will in- 
 terfere with the process of the supreme court, because that court 
 has undertaken to execute our judgment; and so by an order the 
 county court change, I suppose, an execution of the supreme court.
 
 45 ISSUING THE ORIGINAL EXPX'UTION. § 16 
 
 § 16. On What Judgments— Conceding that the 
 court has general aii(h(»rity to issue executions, and 
 that notliing has occurred to susjjend such authority, 
 it is now necessary to inquire whether tlie judgment 
 is one in reference to which this power of the court can 
 properly be invoked; or in other words, on what judg- 
 ments may executions issue? The general answer to 
 this question is, that the judgment, though it need not 
 contain a formal award of execution,^- must be final,*^ 
 and must in form be sufhcient to enable a court by in- 
 spection to determine what has been awarded, from 
 whom the award is to be recovered, and to whom it 
 is due.**^ If the judgment or decree is final in form, 
 
 which Ikis boon fully oxecutod and rotninod. into a process of the 
 county court, and declare in effect that the child is theirs, although 
 they had no hand in begottinq: it. The rule is a familiar one that 
 every court can amend its own process. It is said to be a power in- 
 cidental to every court. It is no more than assuming the power to 
 correct its own proceedings; but I am not aware of any power in 
 the county court to amend the process of the supreme court. This 
 process, being void, is not amendable. In Simon v. Gurney, 1 Peters- 
 dorf s Abr. 505, where a fieri facias was issued upon a judgment 
 in the common pleas, returnable in the king's bench, but the writ 
 was tested in the name of the chief justice of the common pleas, 
 the court allowed the writ to be amended by making it returnable 
 in the common pleas; placing their decision upon the expresvS 
 grounds that as the writ was tested in the name of the chief jus- 
 tice of the common pleas, there was something to amend by. The 
 reason why void prooess cannot be amended is, there is nothing to 
 amend by." But see Matthews v. Thompson, 3 Ohio, 2TJ. 
 
 62 Little V. Cook, 1 Alk. 3^3, 15 Am. Dec. G9S. 
 
 63 Truett V. Legg, 32 Md. 150; 4 Waifs Prac. 2, 
 
 6-» As to form of judgments, see Freeman on Judgments, sec. 4G- 
 55. If the judgment is final and is sufficient in form, an execution 
 may issue, IiTespective of the character of the judgment. Thomp- 
 son V. Perryman. 45 Ala. 019; Orrok v. Orrok, 1 Mass. 341; French 
 V. Fi'ench, 4 Mass. 587; Howard v. Howard, 15 Mass. 19(5; Rey- 
 nolds V. Lowry, G Pa. St. 4(;5; Bank of Chester v. Ralston. 7 Pa. 
 St. 482. No execution can issue on a judgment condemning lands 
 and awarding a sum to be paid therefor. The plaintiflf may not 
 wish to take the land at the price awarded. If he does not so wish.
 
 § 16 ISSUING THE ORIGINAL EXECUTION. 46 
 
 the right to issue execution thereon is not suspended 
 by the filing, either in the same action or in another 
 suit, of some proceeding questioning the judgment or 
 the right to issue execution thereon.^^ If, after a de- 
 cree is entered, it is amended, execution may be issued 
 upon the decree as thus amended without first obtain- 
 ing an order of court authorizing such issuing.^® Be- 
 cause it does not sufficiently indicate for whom the re- 
 covery is to be made, no execution can issue on a judg- 
 ment in favor of "the legatees of P. J.," ^' nor in favor 
 of "the officers of the circuit court of M." ^ But this 
 rule does not api)ly to a judgment in favor of C, "for 
 the use of the officers of the court", for here the plain- 
 tiff is distinctly specified, and the other words may 
 be rejected as surplusage.^** The judgment must also 
 warrant the kind of execution issued. Hence no exe- 
 
 ilicre is notbinj? compulsory in the nature of the jurlgmeut. Chi- 
 cago & M. II. K. Co. V. Bull, 20 111. 218; Cook v. Commissioners, 
 r>l 111. 11.5. In saying that, as a general rule, an execution may 
 issue on any final judgment, we must be understood as assuming 
 that the .ludgmont is not void. A void judgnuMit is in legal con- 
 templation no judgment, Freeman on .Tudgments, sec. 117. An exe- 
 cutiou issued on a void judgment and an execution issued without 
 any judgment are alil<e invalid, for neither has any legal founda- 
 tion on whicli to rest. Albee v. Ward, 8 Mass. 79; Nabours v. Cocke. 
 24 Miss. 44; Fithian v. Monks, 43 Mo. 502; Gelston v. Thompson. 
 29 Md. .595; Mulvey v. Cai-penter, 8 Cliic. L. N. 171; Rolierts v. 
 Stowers, 7 Kush, 295; Morris v. Hogle, 37 111. 150; Johnson v. Baker, 
 38 111. 98; Chase v. Dana, 44 111. 262. 
 
 65 Aspen M. & S. Co. v. Wood. Si Fed. Rep. 48. 
 
 66 Reynolds v. Reynolds, 115 Mich. 378. 
 
 67 Joseph V. Joseph, 5 Ala. 280. 
 
 68 Patterson v. The Officers, 11 Ala. 742. 
 
 69 McElhaney v. Flynn, 23 Ala. 820. If the amount of the judg- 
 ment is not certain when entered, as if judgment be for the pen- 
 alty in a bond to be released on payment of a smaller sum, exe- 
 cution can only be for such smaller sum (Sprague v. Seymour, 15 
 Johns. 474), and canwot issue till the judgment has been made cer- 
 tain by ascertaining that sum. Fitzhugh v. Blake, 2 Cranch. C. C. 
 37; Rusk v. Sackett, 28 Wis. 400.
 
 47 ISSUING THE ORIGINAL EXECUTION. § IG 
 
 <ution in personam can issue on a judgment in rem.''® 
 But if the judgment be in personam, and also author- 
 ize the sale of certain i)roperty for its satisfaction, the 
 plaintiff is not compelled to avail himself of this prop- 
 erty, but may Inke out an ordinary execution, and levy 
 upon other property belonging to the defendant.''^ 
 In the United States it frequently happens that a judg- 
 ment, while in form in personam, is in fact enforce- 
 able only against certain property, as where the de- 
 fendant is not within the jurisdiction of the court and 
 has not submitted himself thereto, but his property has 
 been attached and judgment entered against him based 
 upon service of process, either actual or constructive, 
 not made within the state. In such cases it is evident 
 that an execution commanding the seizure of property 
 other than that already- within the jurisdiction of the 
 court ought not to issue, and, if issued, cannot sustain 
 proceedings dependent upon it.'^^ 
 
 The issue of an execution upon a judgment imposing 
 a fine has always been an unusual proceeding, and for 
 this reason has sometimes been thought to be unau- 
 thorized. As late as the year 1S19, when a motion was 
 made, with respect to certain defendants already in 
 prison, that a writ of levari facias issue against their 
 goods "in order to levy the fine which they had been 
 adjudged to pay," the judges were at first of opinion 
 that, unless the judgment purported to authorize tho 
 issuing of the execution, the process asked for could 
 not be issued, but the court said that, if the process 
 might lawfully be issued, "the law was open to the 
 
 TO Chapman v. Lemon. 11 IIow. Pr. 239. 
 
 Ti Bennett v. Morehouse, 42 N. Y. 191. 
 
 T2 Kelloy v. Kelley. IGl Mass. Ill, 42 Am. St. Rep- 3S9; Giie v. 
 .Tones, 25 Neb. 634; Kenier v. Ilurlbut, 81 Wis. 24, 20 Am. St. Uep. 
 SoO.
 
 § 16 ISSUING THE ORIGINAL EXECUTION. 48- 
 
 party at whose instance the application was made." 
 Counsel, therefore, searched the precedents and found 
 several of an earh- date which they claimed authorized 
 the issuinn; of the writ, among which was King v. 
 Wade, Skinner's Rep. 12, 2 Show. 173, Sir Thos. Jones, 
 185, decided in thirty-third year of the reign of Charles 
 II. Counsel, having, therefore, procured the issuing 
 of a writ of levari facias, a motion was made to vacate 
 it on the ground that it had issued without any suffi- 
 cient authority of law. The motion to vacate the writ 
 was finally denied on the ground that, by the fine, a 
 debt in favor of the Crown was established, and that 
 it was entitled to the same remedy as a subject for 
 compelling the payment of the debt due to it.'^^ The 
 rule thus established in England also maintains in the 
 United States."^* 
 
 Whether in the event of two or more judgments be- 
 ing entered in favor of the same plaintiff and against 
 the same defendant a single execution may be issued 
 upon both is a question which has been but little con- 
 sidered. In Illinois, when a single execution issued 
 upon two claims against an estate, the court said: "The 
 execution must follow the judgment; and to include 
 two several and distinct claims as two several judg- 
 ments in one execution as one judgment for amount of 
 both claims renders the execution fatally defective for 
 variance from the judgment." ^^ It will be observed 
 that this language is addressed to the supposed vari- 
 ance rather than to the question, whether the two 
 judgments might not have been enforced in a single 
 execution had they been appropriately described there- 
 
 73 Kin- V. W^oolf. 1 Chit. 401. 4?u. 
 
 74 Kiiuo V. IVople. 8 Wend. 2()4: Oil] y. Stnto. HO W. Va. 479, 45- 
 Am. St. Rep. !t2S: Statp v. Burkohnldor. 30 W. Va. 503. 
 
 75 Cohen v. Monard. 31 111. App. 503.
 
 49 ISSUING THE ORIGINAL EXECUTION. § 17 
 
 in. In Louisiana, on the other hand, it has been held 
 that two decrees foreclosing mortgages upon the same 
 property may be enforced by a single execution.'^^ 
 Notwithstanding this decision, we should regard the 
 course pursued as irregular, and any future attempt 
 to enforce two or more judgments by a single writ as 
 likely to result in disaster. 
 
 § 17. Executions on Orders and Rules of Court.— 
 While at common law it is a well-settled rule "that in 
 all cases a judgment shall precede execution," '^'' yet 
 this rule is now subject to many statutory innovations. 
 In England, as we have seen, ''^^ the same statute which 
 enabled courts of chancery to issue execution on final 
 decrees authorized rules of courts of law and orders 
 in chancery to be enforced by execution. Under this 
 statute these orders and rules are given the effect of 
 judgments. Executions may therefore be issued there- 
 on without first applying to the court for permission.'^* 
 In one respect, these rules and orders are more favored 
 than final judgments and decrees; for when more than 
 a year and a day have elapsed since their entry, no 
 scire facias nor special leave is necessary to authorize 
 the issuing of execution.^ But the order or rule on 
 which the execution is based must be unconditional,®* 
 and made after notice to the party to be charged.®^ 
 
 76 Tnixillo V. Delaune, 47 La. Ann. 10. 
 
 f7 Wasliington v. Ewing, Mart. & Y. 47. 
 
 78 Soe § 10. 
 
 7»Wallis V. Sheffield. T Powl. P. C. 79.'^: 3 .Tur. 1002. Excli.; Har- 
 rison V. ITampson, 5 Dowi. & L. 4S4; 4 Com. B. 745; 17 L. J. Com. 
 P. 147. 
 
 80 In re Spooner, 11 Q. B. l.']G: 17 L. .L, N. S.. Q. B. GS. 
 
 81 Gibbs V. Flight, 13 Com. B. 803; 17 Jur. 1034; 22 L. J. Com. P. 
 1056. 
 
 82Rickar(ls v. Pattei-son, S Mccs. & W. 313; 10 L. J. Ex. 272; 5 
 Jur. 894. 
 
 Vol. 1.— 4
 
 § 17 ISSUING THE ORIGINAL EXECUTION. 50 
 
 So in the United States, under statutes similar to the 
 English statute just referred to, executions may be is- 
 sued upon unconditional orders of court for the pay- 
 ment of money.**^ By this means the purchaser under 
 a decree in chancery is sometimes brought before the 
 court by motion in the original suit, and compelled to 
 pay his bid.*** 
 
 Where moneys are directed to be paid into court, it 
 is said that no execution can issue therefor, and that, 
 in order to obtain such writ, tlie party must "have the 
 order so drawn as to make the money payable directly 
 to himself." ®^ Where, in a proceeding in a probate 
 court to settle accounts of a guardian, an order was 
 entered finding the sum due from him and requiring 
 him to pay it to his successor in oflQce, an execution 
 thereon was enjoined on the ground that the finding 
 of the probate court was not a judgment against the 
 guardian, and that the only mode of enforcing such 
 order was that pointed out by the statutes of the state 
 — namely, by committing him to jail until such order 
 had been complied with.®* 
 
 In some of the states, when an action has been 
 finally determined, and fees due to the court officials 
 or some of them remain unpaid, the clerk of the court 
 has power to issue execution for the collection of such 
 unpaid fees. In such cases the order of the court tax- 
 ing the costs, or the mere cost bill properly verified or 
 authenticated, where such order is not required, stands 
 
 83 Cal. Code Civ. Proc, sec. 1007; Sandels & Hill Ark. Dig., ed. of 
 1894, sec. 3024, Code of Iowa, 1897, sec. 39.54; Sperling v. Calfee, 7 
 Mont. 514; Brown v. Duncan, 1.32 111. 413, 22 Am. St. Rep. 545. 
 
 84 Atkinson v. Richardson, 18 AVls. 24G; Blaokmore v. Barker, 2 
 Swan, 342. 
 
 85 United States* T. Co. v. Stevens, 67 Md. 15G; Re Leeds Bank- 
 ing Co., L. R. 1 Ch. Ap. l.m 
 
 8fi Kingsbury v. Ilutton, 140 111. 603.
 
 51 ISSUING THE ORIGINAL EXECUilON. §§ IS, 19 
 
 in the place of the judgment, at least so far as to war- 
 rant and support such execution.**'^ 
 
 § 18. Executions on a Lost or Destroyed Record.— A 
 judgment is the sentence of the law pronounced by 
 the court. The judgment necessarily precedes its en- 
 try. The enti*y or record is not the judgment, but 
 merely the best evidence of the fact that the judgment 
 exists. As a judgment may exist preceding the record 
 evidence of its existence so it may continue in full force 
 after this evidence has been lost or destroyed. Hence 
 the destruction or mutilation of the record by no means 
 divests the court nor tlie proper officers thereof of au- 
 thority to issue execution.**® From this ])roposition 
 the courts of Texas apparently dissent. They main- 
 tain that after the record of a judgment has bc^en lost 
 or destroyed, no execution can issue thereon until such 
 record has been replaced in some mode authorized by 
 law.*® 
 
 § 19. Execution on a Merged or Satisfied Judgment.— 
 When a judgment or decree has, by payment or other- 
 wise, lost its original force, the case presented is very 
 
 87 Clerk's Office v. Allen. 7 Jones, 156: Sheppard v. Bland, 87 N. 
 C. 163. In California an execution may issue for costs on appeal 
 without any order or judgment fixing their amount. Section 1034 
 of the Code of Civil Procedure is as follows: "Whenever costs are 
 awarded to a party by an appellate court, if he claims such costs, 
 he must within thirty days after the remittitur is filed with the 
 clerk below deliver to such clerk a memorandum of his costs, veri- 
 fied as prescribed by the preceding section, and thereupon be may 
 have an execution therefor as upon a judgment." 
 
 88 strain v. Murphy, -ft) Mo. 340: Faust v. Echols, 4 Cold. 400: 
 Fleece v. Go<)drum, 1 Duvall, 306: Cheesewright v. Franks, 7 Dowl. 
 471; Fischer v. Sievers, 6 Chic. L. N. 11; Childress v. Marks. 2 Baxt. 
 
 12. 
 »>9 Cyrus V. Hicks, 20 Tex. 483; Beckham v. Medlock (.Tex. App.), 
 
 46 S. W. 402.
 
 § 19 ISSUING THE ORIGINAL EXECUTION. 52 
 
 difiFerent from that where the mere evidence has been 
 lost. "When satisfied, the judgment has fully accom- 
 plished its mission, and the preponderance of author- 
 ity is in favor of disregarding as absolutely void all 
 proceedings taken subsequently to the satisfaction. 
 The satisfaction of a judgment, as a matter of course, 
 must terminate the period when execution can prop- 
 erly issue; it must equally follow, as a matter of course, 
 that the subsequent issue of execution can, as to the 
 plaintiff and all persons acting in concert with him 
 and having notice of the satisfaction, afford no justi- 
 fication for issuing the writ, nor for any act done un- 
 der its authority.^** Whoever sues out an execution 
 on a judgment which he knows to be paid is liable for 
 all damages which he may occasion the defendant 
 thereby; nor is it essential to the maintenance of the 
 action that the wrongful issue of the execution be 
 shown to have been the result of actual malice.^-*^ In 
 England it must be shown that the writ issued with- 
 out probable cause.'^^ A plaintiff is also liable to de- 
 fendant if he persist in acting under an execution after 
 tender of satisfaction has been made to and refused 
 by the sheriff.^* 
 
 As the statutes of the several states generally, and 
 we believe universally, provide for the entry of satis- 
 faction on the record or upon the judgment docket, 
 and thus afford defendants ample means of giving pub- 
 lic notice that an apparent obligation, evidenced by 
 
 80 McGiiinty v. Tlerrick. 5 Wend. 240; Weston v. Clark, 37 Mo. 
 573; Myers v. Cochran, 29 Ind. 2r)<j; Ruckman v. Cowell, 1 N. Y. 
 505; Keolins v. Heard, 3 Head, 592; Iloffin.in v. Strohecker, 7 
 Watts 80, 32 Am. Dec. 740. 
 
 01 Brown v. Foetor. 7 Wend. 301; Glover v. Horton, 7 Blackf. 295. 
 
 »2 Roret V. Lewis. 5 Dowl. & L. 371. 
 
 9s Tiffany v. St. John, 5 Lans. 153; Masson v. Sudam, 2 Jolins. Ch. 
 172.
 
 153 ISSUING TilK OlilCINAL EXECUTION. i 19 
 
 the public records, lias been canceled, we have before 
 ■expressed, ** and must still express, our dissatisfac- 
 tion with the rule of law which permits an execution 
 issued ui>(»n a jiidmnciit apparently in force to be treat- 
 od as void. Xevertlieless, so large a number of cases 
 may be cited to show that even an Innocent purchaser 
 at an execution sale must lose his title by parol proof 
 of the prior satisfaction of the judgment that we must 
 look to the legislature rather than to the judiciary for 
 means of escape from the hardship of this rule.'*^ The 
 reasoning by which this rule of law has been best de- 
 fended was thus stated in the New York court of ap- 
 peals: "The judgment was the sole foundation of the 
 sheriff's power to sell and convey the premises; and if 
 the judgment was paid when he undertook to sell and 
 
 94 Frooman on .Tudginents, § 4S0. 
 
 »5 Durette v. Brisigs, 47 Mo. 3G1; Wood v. Colvin. 2 Hill 5G7, 3S 
 Am. Dee. 598; King v. Goodwin, 16 Mass. G3; Shelly v. Lash. 14 
 Minn. 408; Swan v. Saddlcmire, 8 Wend. 070; Lewis v. Palmer, 6 
 Wend. 3G8; State v. Salyers, 19 Ind. 430; Neilson v. Xeilson, 5 Barb. 
 509; Carpenter v. Stillwell, 11 N. Y. 61; Laval v. Rowley, 17 Ind. 
 36; Hunter v. Stevenson. 1 Hill (S. CI 41.5; Knight v. Applegate, 3 
 T. B. Mon. 335; Murrell v. Roberts, 11 Ired. 424, 53 Am. Dee. 419; 
 McClure v. Logan, 59 Mo. 234; Carnes v. Piatt, 59 N. Y. 411; Frost 
 V. Yonkers Savings Bank, 70 N. Y. 500, 20 Am. Rep. 027: Wells v. 
 Chan<ller. 2 Fed. Rep. 273; Bullard v. McArdle, 90 Cal. 3-55. 35 Am. 
 St. Rep. 170; Benton v. Hatch, 122 N. Y. 322; Terry v, O'Neil, 71 
 Tex. 592; Soukup v. Union L Co., 84 la. 448, 35 Am. St. Rep. 317; 
 Drefahl v. Tuttle, 42 Iowa, 177. This last case shows that at least 
 between the parties to the writ no estoppel can arise to preclude 
 the defendant from successfully resisting an action to recover the 
 property sold under the writ, from the fact that he was aware of 
 its issuance, made no effort to have it vacated, and even procured 
 one postponement of the sale with the intent of obtaining funds 
 with which to satisfy the writ. In this case botli parties were fully 
 •cognizant of the facts, though each was probably mistaken with 
 respect to the law. The judgment had been paid by one of several 
 defendants who was a surety of the others; and they all believed 
 that the judgment might be kept in force for the purpose of eu- 
 iibliug him to compel repayment from his codefendants.
 
 § 19 ISSUING THE ORIGINAL EXECUTION. 64 
 
 convey, his power was at an end, and all his acts were 
 without authority and void. The purchaser under a 
 power is chargeable with notice, if the power does not 
 exist, and purchases at his peril." ^ The supreme 
 court of Missouri more recently, with less logic but 
 equal emphasis, announced as its conclusion on this 
 subject that "when an execution has performed its 
 office by extracting full satisfaction from a portion of 
 the debtor's property, it cannot have sufficient life and 
 vigor to deprive him of the residue, and transfer the 
 title from him to another." ^' On the other hand, it 
 is insisted that an execution regular on its face, based 
 upon a judgment equally regular and apparently in 
 full force, must be regarded as a regular execution; 
 that while a regular execution may be voidable, it can- 
 not be void; that it must operate as a sufficient justi- 
 fication to officers intrusted with its execution;^® and 
 finally, that it cannot be the means of ensnaring inno- 
 cent purchasers when nothing exists to warn them that 
 the foundation on which it apparently rests has in fact 
 been swept away.^^ But the authorities sustaining 
 this view concede that when the purchaser has notice, 
 the execution and sale are void. 
 
 It is not material whether the satisfaction of a judg- 
 ment is actual or constructive or whether by some 
 means other than satisfaction it has lost its original 
 
 86 Craft V, Merrill, 14 N. Y. 450. 
 
 87 Durette v. Briggs, 47 Mo. 3G1. 
 
 88 Mason v. Tance, 1 Sneed, 178, 60 Am. Deo. 144; L( wis v. Pal- 
 mer, 6 Wend. .307; Barr v. Combs, 29 Or. 399. 
 
 99 Luddiiigton v. Peck, 2 Conn. 700; Boren v. McOehee, 6 Port. 
 432? 31 Am. Dec. 095; .Tackson v. Caldwell, 1 Cow. 022; Van Campen 
 V. Snyder, 3 How. (Miss.) 66, 32 Am. Dec. 311; Hoffman v. Stro- 
 liecker. 7 Watts. 80, 32 Am. Dec. 740; Doe v. Ingersoll. 11 Smedes 
 & M. 249, 49 Am. Dec. .o7; Morton v. Academies. 8 Smedes & M. 
 773; Banks v. Evans, 10 Smedes & M. .'Jo, 48 Am. Dec. 734.
 
 55 ISSUING THE ORIGINAL EXECUTION. § I'J 
 
 force. Thus, though the commitment of a debtor in 
 execution is not an absolute satisfaction of the judg- 
 ment, it is deemed a conditional satisfaction, to be de- 
 feated only by subseciuent events. While in prison, 
 other measures cannot be taken against him to obtain 
 satisfaction unless specially authorized by statute. If 
 a writ of fieri facias is issued and his property levied 
 upon and sold, the writ and all proceedings thereunder 
 must be adjudged void.*^ A like result must follow 
 proceedings taken under an execution issued after 
 a judgment has been vacated either by an order of 
 the court or by the filing of an undertaking, which is 
 in law sufficient to stay the execution and to transfer 
 the record to an appellate court.^*** 
 
 A defendant in an execution issued after the pay- 
 ment of the judgment and before any satisfaction 
 thereof is entered of record ma}', it seems, either elect 
 to treat any sale of his property made thereunder as 
 void, and recover the property sold, or may waive the 
 invalidity of the sale, and maintain an action against 
 
 the plaintill in the execution for the value of such prop- 
 erty.103 
 
 AMien a judgment has been sued upon, and the suit 
 has resulted in a second judgment against the defend- 
 ant based upon the first, it is impossible to state, un- 
 der the present condition of the authorities, whether 
 the first is merged into and extinguished by the sec- 
 ond, or whether both must be regarded as in force until 
 one is satisfied by payment. We see no reason why 
 the second judgment should not be regarded as a full 
 
 100 Kennedy v. Duncklee, 1 Gray, Co; Kellogg v. Undenvood, 163 
 Mass. 214. 
 
 101 Billiard v. McAidle. 98 Cal. 355, 35 Am. Sr. Kep. 176. 
 
 102 rope V. Benster, 42 Neb. 304, 47 Am. St. Rep. 703.
 
 § 19 ISSUING THE ORIGINAL EXECUTION 58 
 
 merger and satisfaction of the first, and to this view 
 we think the authorities slightly preponderate.^^^ But 
 upon the common-law theory that no merger can take 
 phice except where the original debt is replaced by a 
 debt of a higher nature, it has frequently been denied 
 that one judgment can merge into another. ^^* This 
 last view has for a long period and on many occasions 
 received the approval of the courts of the state of New 
 York. In that state it is certain that the first judg- 
 ment may, notwithstanding the second, be enforced by 
 execution; **^*' and this is also the rule in Alabama and 
 Texas, at least in regard to statutory judgments on 
 forthcoming and delivery bonds.^^*^ 
 
 Where from any cause a judgment is by the record, 
 or by the return of execution, shown to be satisfied, it 
 would certainly be very irregular to issue execution, 
 although the entry of satisfaction was made through 
 mistake. In such cases, if sufficient cause exists for 
 vacating the apparent satisfaction, application should 
 
 103 Chitty V. Glenn, 3 T. B. Mon. 425; Whiting v. Boebee, 12 Ark. 
 549; Freeman on Judgments, sees. 215, 216. In several eases a 
 statutory judgment arising by force of the law on the forfeiture 
 of bonds has been held to be a full discharge of the original judg- 
 ment. Witherspoon v. Spring, 3 How. (Miss.) GO, 32 Am. Dec. 310; 
 King V. Ten-y, G How. (Miss.) .")13; Brown v. Clarke, 4 How. (U. S.) 
 4; Bank of U. S. v. Patton, .". How. (:\Iiss.) 2UU, 35 Am. Dec. 428; 
 Wright V. Yell, 13 Ark. 503, 58 Am. Dec. :J3G; Hanna v. Guy, 3 Bush, 
 91; Cook V. Armstrong, 25 Miss. 03; Neale v. Jeter, 20 Ark. U8; 
 Black V. Nettles, 25 Ark. 600; Lipscomb v. Grace, 26 Ark. 234; Com- 
 monwealth V. Merrigan, 8 Bush, 132; Joyce v. Farquhar, 1 A. K. 
 Marsh. 20. 
 
 104 Weeks v. Pearson, 5 N. H. 324; Griswold v. Hill, 2 Paine, 492. 
 
 105 Jackson v. Shaffer. 11 Jolms. 51.!; Mumford v. Stocker, 1 Cow. 
 178; Doty v. liussell, 5 Wend. 129; Andrews v. Smith. 9 Wend. 53; 
 Bates V. Lyons, 7 Paige, 86; Howard v. Sheldon, 11 Paige, 558; Mil- 
 lard V. Whitaker, 5 Hill, 408; Small v. Wheaton, 2 Abb. Pr. 316; 4 
 D. D. Smith, 427; Smith v. Anderson, 18 Md. 520. 
 
 loopatton V. Hamner, 33 Ala. 307; Cole v. Kobertson, 6 Tex. 350, 
 55 Am. Dec. 784.
 
 &J I8SUIN(; THE OKIOINAL EXKCUTIOX. § 20 
 
 first he inade to the court for such vacation, and for 
 leave to issue execution before auy further steps are 
 taken toward the enforcement of the judgment.'"'' 
 But it must be admitted that due respect for this rule 
 has not been uniformly enforcid. Thus Avhcre i)lain- 
 tiff executed a satisfaction piece, and delivered it to a 
 third person Avith authority to file it on compliance 
 with certain conditions, and it was filed without such 
 compliance, the court held that the plaintiff was en- 
 titled to issue execution without asking for leave of 
 the court, and while the satisfaction remained in ap- 
 parent force.^"** The pendency of an action upon a 
 judgment has no effect upon the right to issue execu- 
 tion thereon. ^**^ 
 
 § 20. Executions on Void Judgments or Orders.— It is 
 ■not sufficient that the judgment on which execution 
 issues appears to be final, and is perfect in form. It 
 must at least be so far valid as to 'be impregnable to 
 collateral assault. "A void judgment is in legal effect 
 no judgment. By it no rights are divested. From it 
 no rights can be obtained. Being worthless in itself, 
 all proceedings founded upon it are equally worthless. 
 It neither binds nor bar.s any one. All acts performed 
 under it and all claims flowing out of it are void. The 
 parties attempting to enforce it may be responsible as 
 trespassers. The purchaser at a sale by virtue of its 
 authority finds himself without title and without re- 
 dress." ^^^ An execution-issued by a clerk without the 
 
 107 Foot V. Dillaye, 65 Barb. 521; Ackerman v. Ackermau, 14 Abb. 
 Pr. 229; Snipes v. Beezley, 5 Or. 420. 
 
 108 Audersun v. Nicholas, 5 Robt. G34. 
 
 109 Gushing v. Arnold, 9 Met. 23; Moor v. Towlo, 3S Me. 133; Free- 
 man on Judjrments. sec. 440. 
 
 110 Freeman on .Tudsrnients, see. 117. eitincr Campbell v. MeCai an, 
 41 lU. 45; Roberts v. Stowers, 7 Bush, 2i>5; Huls v. Buutiu, 47 111.
 
 § 21 ISSUING THE ORIGINAL EXECUTION. 5& 
 
 authority of any judgment whatever, like that issued 
 on a void judgment, has no validity/^^ 
 
 If tlie judgment on which an execution has issued is 
 void, the defendants are not estopped from asserting 
 that fact by giving a redelivery or forthcoming bond 
 enabling them to retain possession of the property 
 levied upon. The giving of such a bond may estop the 
 parties from interposing objections resting upon mere 
 iregularities in the proceedings, but cannot preclude 
 them "from afterward asserting that all the prior pro- 
 ceedings are absolutely and utterly void." *^^ 
 
 § 21. Who may Sue out, and His Remedies when De- 
 nied its issuance. — As the judgment is the property of 
 the plaintiff, he alone, while the property remains his, 
 is entitled to exercise dominion over it. As a writ of 
 execution is the only means by which the i)roperty 
 can be made productive, the owner of the property is 
 necessarily the person entitled to call for the writ; to 
 withhold the writ from him is in effect to withhold 
 from him the beneficial enjoyment of his property; and 
 to alloAv another to call for or to control the writ i& 
 to turn tlie dominion of property, over to one who has^ 
 no right thereto. Of course, ownership over judg- 
 ments, like ownership over all other kiiu's of [iroperty. 
 may be exercised in person or by duly conslituted 
 agents. But as the plaintiff is the only person entitled 
 
 397; Sherrill v. Goodnim. 3 Humpli. 4.30: Andrews v. St:it(\ 2 Snee I, 
 5.^0; Hollingsworth v. Bagley, 35 Tex. 34.^; Morton v. Root, 2 Dill. 
 312; Cora. Bank v. Martin, 9 Smedes & M. 613; Hnrgis v. IMors^e. 7 
 Kan. 417. See, also, Cornell v. Barnes. 7 Hill, 35; Dawson v. Wells. 
 3 Ind. 39S; Meyer v. :Mintor)ye, 106 111. 414; Olson v. Nunnally, 47 
 Kan. 391, 27 Am. St. Eep. 296; White v. Foote L. Co., 29 Va. 385,. 
 6 Am. St. Kep. O.jO. 
 
 111 Criswell v. Ragsdale, 18 Tex. 443. 
 
 112 Olson V. Nunnally, 47 Kan. 391, 27 Am. St. Rep. 29G.
 
 59 ISSUING THE ORIGINAL EXECUTION. { 21 
 
 to the fruits of the judgment, no execution ran prop- 
 erly issue except at his instance or that of his attorney 
 or agent. **^ 
 
 Though it is the duty of the clerk to issue the writ 
 on proper demand therefor, he has no authority to act 
 of his own motion/*'* and if he does so his action can- 
 not be attributed to, or chargeable against, the plain- 
 tiff unless ratified by him either in express terms or 
 by acquiescence.**'* Where a deputy clerk issued exe- 
 cution without authority from the plaintiff, and after- 
 ward became the purchaser at a sale thereunder, it 
 was held that he could take no benefit from his pur- 
 chase, although no actual fraud entered Into the trans- 
 action; but that a grantee from such clerk for value 
 and without notice of the irregularity could not be dis- 
 turbed in his title.*** 
 
 An execution may be issued by the clerk of the court 
 without the authority or knoMledge of the plaintiff. 
 In that event the plaintiff, on becoming aware of such 
 issuance, may ratify it, and, upon such ratification, the 
 writ seems to become and renmin as effici'^nt and unob- 
 jectionable as though originally issued by authority.**'' 
 
 "s Stato V. Wilkins, 21 Ind. 217: Watt v. Alvord. 2.") Irnl. 535; 
 Wills V. Chandler, 2 Fed. Rep. 273; Xewklrk v. Chapron, 17 111. 
 345; Osgood v. Brown. Freem. Cli. 292; WicklilT v. Robinson. 18 
 111. 145; Ex parte Hampton, 2 G. Greene. 137; Nunemacher v. Ingle, 
 20 Ind. 13."; Brush v. Lee, 36 N. Y. 40; ^IcDouald v. O'Flynn. 3 
 Daly, 42; Galle v. Tode, 148 N. Y. 270; State v, Pilsbury, 35 La. Ann. 
 468; Jackson v. Scanland, 65 Miss. 481. 
 
 1" Smith V. Howard. 41 Vt. 74. 
 
 115 Seavey v. Bennett, 64 Miss. 735; Davis r. MrCann. 143 Mo. 172. 
 
 116 Lewis V. Phillips. 17 Ind. lOS, 79 Am. Dec. 4G7. Where after 
 death of plaintifT e.xecution was taken out in his name by persons 
 not appearing to have any authority to do so, the court seemed in- 
 clined to the opinion that it was void. Bellinger v. Ford, 14 Barb. 
 251. An execution issued by a clerk, without authority, may be 
 quashed or enjoined. Shakleford v. Apperson. 6 Gratt. 451. 
 
 1" Clarkson v. White, 4 .T. J. Marsh. 529, 2ii Am. Dec. 229; Lercb 
 V. Gallup, 67 Cal. 595.
 
 § 21 ISSUING THE ORIGINAL EXECUTION. 60 
 
 Doubtless the ratification may be Inferred from very 
 sliglit circumstances, when the knowledge of the exist- 
 ence of the writ is brought home to plaintiff. Such 
 ratification is inferable from knowledge on the part 
 of the plaintiff of the issuing of the writ and of the 
 action taken for its enforcement without any objection 
 on his part/-*^* and necessarily results from his recep- 
 tion of the proceeds of the writ with notice of the cir- 
 cumstances in which it was issued.^^^ Nevertheless, 
 it may happen without any fault or neglect on the part 
 of the plaintiff that the writ is issued and executed 
 without his knowledge and to his prejudice. In such 
 case, either he or the purchaser at the execution sale 
 must suffer a loss; and so far as the question has been 
 considered, it has been -held, and perhaps wisely, that 
 the loss, if any, falls on him, and that the purchaser, 
 if he acted in good faith, takes title although the sale 
 was without plaintiff's knowledge, and realized a sum 
 less than the value of the property, and insufficient to 
 satisfy the writ.*^** This is upon the ground that the 
 purchaser is not bound to look behind the judgment 
 and writ, and may safely presume that the acts of the 
 officers, apparently within the scope of their powers 
 and duties, were not unauthorized. Until the contrary 
 is shown, an execution will be presumed to have issued 
 at the instance of the plaintiff.^-^ 
 
 Tie who is entitled to execution may, in his demand 
 therefor, act either in person or by his attorney or other 
 
 118 W^ells V. Bower, 126 Ind. 115, 22 Am. St. Rep. 570. 
 
 119 Lerch v. Gallup. G7 Cal. 595. 
 
 120 Sowles V. Harvey, 20 Ind. 217, 83 Am. Dec. 315; Splahn v. Gil- 
 lespie, 48 Ind. 410; .Tohnston v. Murray, 112 Ind. 154. 2 Am. St. Rep. 
 174; Wells v. Bowen, 126 Ind. 115, 22 Am. St. Rep. 570. 
 
 121 Niantie Bank v. Dennis, 37 111. 381; Smith v. Perlvins, 81 Tex. 
 152, 157, 26 Am. St. Rep. 794.
 
 «1 ISSUING THE ORIGINAL EXECUTION. § 21 
 
 agent.*^^ If he has appoarod in tlie action by an at- 
 torney, it is perhaps tlie duty, and it is certainly 
 within the implied anthorlty, of the latter, on behalf 
 of his client, to procure the issuing of an execution. *^^ 
 But the authority of the attorney does not exclude or 
 suspend that of the client. Hence, the latter need not 
 act by his attorney in demanding the writ, but may 
 personally take it out without advi^^ing with his 
 counsel.*''^ An execution may be issued by a different 
 attorney from the one employed when judgment was 
 entered, ^'° though no formal substitution be made. 
 The authority of an attorney or other agent professing 
 to act for the plaintiff to take out execution cannot be 
 questioned by one whose only interest is that of a 
 junior execution creditor of the defendant in tlie writ. 
 126 rpjjg plaintiff may control his own execution free 
 from the interference of his attorney and of the officers 
 of the court. ^^'^ 
 
 When the plaintiff has ceased to have any interest in 
 the judgment, by reason of his having assigned it to 
 another, his right to control process also ceases. 
 Whether the law recognizes the assignment as a legal 
 or only as an equitable transfer, it nevertheless allows 
 the assignee to control the execution.^'® 
 
 An assignment of a judgment made as collateral 
 security for a debt may reserve to the plaintiff the 
 
 122 Steele V. Thompson, 62 Ala. 323. 
 
 123 Harrington v. Binns, 3 F. & F. 942; Union Bank v. Geary, 5 
 Pet. 98; Erwin v. Blake, 8 Pet. 18. 
 
 124 Jones V. Spears, 5G Cal. 163. 
 
 125 Cook V. Ditkerson, 1 Dner. 679; Thorp v. Fowler, 5 Cow. 446; 
 Tipping V. .Tolmson. 2 Bos. & P. 3,'7. 
 
 i26Holshiie V. Morgan, 170 Pa. St. 217. 
 
 127 Roddick V Cloud. 2 Gilm. G70; Morgan v. People. 59 111. 58. 
 .128 Corriell v. Doolittle, 2 G. Greene. 385; Owens v. Clark, 78 Tex. 
 547; Wilgus v. Bloodgood, 33 How. Pr. 289.
 
 § 21 ISSUING THE ORIGINAL EXECUTION. 62 
 
 right to issue execution and take other necessary and 
 proper steps for the collection of the judgment, as if 
 no assignment had been made.*^** Because of the as- 
 signment of a judgment it may sometimes be proper 
 to issue execution in the name of the original plain- 
 tiff when otherwise such issuing would be improper, as 
 where, after the assignment, he has diid. In this event 
 the assignee continues entitled to execution and may 
 procure its issuing without taking any notice of the 
 death of the plaintiff.^^^ The assignment may, doubt- 
 less, be involuntary as well as voluntary, and when- 
 ever any person has, by operation of law, become en- 
 titled to the proceeds of the judgment, he is entitled to 
 execution thereon. Therefore, a sheriff who has levied 
 upon a judgment in a state where it is subject to such 
 levy is entitled to an execution to enable him to collect 
 it and thereby make his levy effective. ^^^ 
 
 A stranger may acquire an equitable right to the 
 benefit of the execution, or to the property upon which 
 it is levied, and such equitable right may, in most cases, 
 give him authority to sue out and conduct the process, 
 or to object to its regularity or validity; but he can- 
 not do so by proceedings in the case in his own name, 
 upon or against the process, for the purpose of enforc- 
 ing or abrogating the same; he must do it in the name 
 of a legal party to the process, or one who can be made 
 so. And this authority, so derived, to use the name of 
 a party to the process of a court of law, will be so far 
 recognized by such court as to preclude the interven- 
 tion of such party for the purpose of defeating it. But 
 a court of law cannot tolerate the intromission of 
 
 129 Collins V. Smith. 75 Wis. 392. 
 
 130 Christ V. Flann.agan. 2?, Colo. 140. 
 
 131 Henry v. Trayiior, 42 Minn. 234.
 
 «3 ISSUING THE ORIGINAL EXECUTION. | 21 
 
 <^quitable claimants into or against its process as if 
 they were legal parties thereto; which would break in 
 upon its forms and modes of administering justice, 
 and present for its adjudication colhiteral, and indeed 
 irrelevant, questions arising out of the derivation of 
 their interests; for equitable claimants can acquire no 
 better or other right to prosecute or defend the process 
 under or against which they chiim than that of the 
 I)arties from whom they derive th(4r interest.*^^ 
 
 As a judgment for the recovery of money or property 
 is fruitless unless some one is entitled to execution 
 thereon, it must follow that every person in whose 
 favor a judgment may be lawfully rendered and en- 
 tered is entitled to demand that an execution issue for 
 its enforcement, unless, from his t( iithr years or want 
 of mental capacity, the law deems him incompetent to 
 act for himself, in which event it is obvious that a 
 guardian should be a^^pointed for him, and, when ap- 
 ])ointed, should be the only person authorized to decide 
 whether or not an execution may issue. Though a 
 guardian has resigned, if the order accepting his resig- 
 nation provides that he shall be discharged upon pay- 
 ment and delivery of the effects in his hands to his 
 ward, the guardian retains the right to sue out execu- 
 tion upon a judgment entered in his favor as such 
 guardian. ^'"'"'^ 
 
 In the event of the death of the plaintiff, the right 
 io demand execution of the judgment must pass, in the 
 first instance, to his personal representative if it be for 
 Ihe recovery of personal property, and to his heirs if it 
 be for the recovery of lands. An executor or adminis- 
 
 182 Wallop's Adm'r. v. Scarburjrh, 5 Oratt. 4; Haden v. Walker. 
 5 Ala. 88; Fisk v. Lamoroaux, 48 Mo. 523; Weir v. Penulugton, 11 
 Ark. 745. 
 
 133 Longino v. Delta Bank, 75 Miss. 407.
 
 g '-^1 ISSUING THE ORIGINAL EXECUTION. C4 
 
 trator, to entitle him to execution, must be appointed 
 in the state wherein the execution is i(>su(*l, or, if ap- 
 pointed in another state, must have complied, with the 
 provisions of the statute requisite to give him author- 
 ity to act. If this statute provides that a foreign ad- 
 ministrator may sue in the courts of the state, or may 
 receive without suit and give a valid quittance for any 
 property of or debts due his intestate, on complying 
 with certain provisions of the statute, a writ issued at 
 the request of such administrator, before he has sa 
 complied, is invalid, and, though he should subse- 
 quently comply therewith, his compliance does not, by 
 relation, validate the unauthorized execution. ^^* 
 
 Upon a judgment in favor of a married woman and 
 against her husband, she is entitled to the issuing of 
 an execution, whether it Avas rendered before or after 
 her marriage.*^^ She must equally be entitled to exe- 
 cution when the judgment is against a third person 
 and constitutes a part of her separate estate, but where 
 the common-law rule still prevails that the wife's 
 choses in action may be reduced to possession by her 
 husband and thereby made his property, ^^^ it is 
 obvious that she may lose her right to execution on 
 a judgment in her favor on his election to treat it as 
 his property. 
 
 The right to have an execution may be denied to the^ 
 plaintiff by the officer whose duty it is to issue it. In 
 such case, the plaintiff seems to have his choice be- 
 tween these remedies: he may sue for the damages oc- 
 
 134 Jackson v. Scanlaiid, 65 Miss. 481. 
 
 135 Kineade v. Cimningliam. 118 Ta. St. 501; Rose v. Latshaw, 90 
 Pa. St. 238. 
 
 136 Note to Caplinger v. Sullivan, 37 Am. Dec. 577; note to Boozer 
 V. Addison. 40 Am. Dec. 47.
 
 65 ISSUING THE ORIGINAL EXEC U HON. § 21 
 
 casioned by the denial of his right; ^^'^ or be may, by 
 motion or by mandamus, compel tlie issuing of the 
 writ.*'"* In California, on the other hand, it was at an 
 early day decided that one entitled to an execution on 
 a judgment for the recovery of money, which the clerk 
 refused to issue, had an am])le remedy by motion in the 
 original action or by a suit against the clerk and the 
 sureties upon liis official bond, and, therefore, that he 
 was not entitled to a writ of mandate to compel the 
 issuing of the writ.*^® Even where this rule obtains, 
 it is manifest that the plaintiff must sometimes be en- 
 titled to a writ of mandate when his remedy by action 
 against the clerk is inadequate, because the amount of 
 the judgment is far in excess of the amount of his 
 official bond.*"*" There are also oases in which the 
 refusal to issue the M'rit is due to the action of the court 
 rather than of the clerk, as where the court, w^ithout 
 authority to do so, has made an order staying proceed- 
 ings, in which event relief may be had by mandamus 
 where the order itself is not subject to appeal.**^ More 
 recently the courts of California, without overruling or 
 noticing the earlier decisions upon the subject, have 
 repeatedly directed writs of mandate to issue, compel- 
 ling officers whose duty it was so to do to issue writs 
 of execution in favor of parties entitled thereto.**^ 
 
 1" Gaylor v. Hiint. 23 Ohio St. 255; Steele v. Thompson, 62 Aln. 
 323; McFarland v. Burton, 89 Ky. 294; Badham v. Jones, 64 N. C. 
 
 655. 
 
 i38Terhume v. Barcalow, 6 Halst. 3S; Laird v. Abrahams, 3 
 Green (N. J.), 22; People v. Yale, 22 Bart). 502; Stafford v. Union 
 Bank, 17 How. 275. See Jones v. McMahan, 30 Tex. 726; State v, 
 Vogel, 6 Mo. App. 526. 
 
 139 rioodwin V. Glazer. 10 Cal. 3.33: Fulton v. Hanna. 40 Cal. 278. 
 
 140 Jones V. :McMahan. 30 Tex. 726. 
 
 141 Avory t. Superior Court, 57 Cal. 247. 
 
 142 Hamilton v. Tutt. 6.") C.il. .^>7: Hayward v. Pimental, 107 CaL 
 886; Garoutte v. Haley. 104 Cal. 497. 
 
 Vol. I.— 5
 
 § 22 ISSUING THE ORIGINAL EXECUTION, 66 
 
 § 22. Persons against Whom Execution may Is- 
 sue. — "The power and aiithority of our courts extend 
 over every class of persons and every species of prop- 
 erty situate v^dtlnn the territorial limits in which those 
 courts are authorized to act, and subject to the same 
 sovereignty which organized the courts, and invested 
 them with judicial functions. Every subject is, there- 
 fore, liable to be made a party litigant, and to be bound 
 by the result of the litigation. Those disabilities aris- 
 ing from infancy, from coverture, or from mental 
 infirmities, which render parties incapable of being 
 bound by their contracts, do not have the effect of ex- 
 empting any person from the control of the courts." ^^^ 
 
 A plaintiff may direct his writ to be levied upon the 
 property of one defendant rather than upon that of an- 
 other, but has no right to issue an execution against 
 any less number than all of the defendants against 
 Avhom the judgment has been recovered. ^^* It has 
 even been held that an execution from which any of the 
 defendants liable thereto has been omitted is void.^**' 
 To this Ave cannot assent. Such an omission creates 
 a variance between the writ and the judgment on ac- 
 count of which the writ may be amended, or possibly 
 quashed, but, if no action is taken with respect to it 
 tending either to correct or assail it, it doubtless con- 
 stitutes a justification to the officer acting under it, 
 
 143 Freeman on Judgments, sec. 142. As to judgments against 
 married women, lunatics, infants, and deceased persons, see Free- 
 man on Judgments, sees. 142-153. 
 
 144 Brinton v. Gerry, 7 111. App. 2.38; Tanner v. Grant, 10 Bush, 
 362; Linn v. Hamilton, 34 N. J. L. 305; Gatewood v. Burns, 99 N. C. 
 S57. 
 
 145 Tanner v. Grant, 10 Bush, 362; Crittenden v. Leitensdorfer, 35 
 Mo. 239; Ex parte Kennedy, 4 Cranch. C. C. 462.
 
 €7 ISSUING THE OUIiJlXAL EXECUTION. § 22 
 
 and an execution sale based upon it cannot be collater- 
 ally attacked and thereby avoided. ^^* 
 
 It would be a contradiction of terms to say that all 
 persons may be bound by judgments, and then to 
 <ieclare that some persons are exempt from having 
 executions issued against them. The decisions in re- 
 gard to the persons wlio may be parties to judgments 
 are not perfectly hai'monious; but wherever, under 
 the law as understood in any particular state, a person, 
 or class of persons, may be made parties litigant, and 
 bound by judgments against them, it must follow, in 
 Ihe absence of statutes to the contrary, that the same 
 persons may, by writs of execution, be made to satisfy 
 such judgments. In other words, when a judginent is 
 valid against the defendant, an execution based upon 
 it must, unless expressly forbidden by statute, be 
 equally valid. Execution may therefore issue against 
 a lunatic,'"*' and also against a married woman.'^® 
 In Kentucky, however, an execution cannot issue 
 against a person who has been adjudged insane, and, 
 if issued, is held to be a nullity.**® 
 
 There are some familiar instances in which the only 
 effect of a judgment is to establish the existence of a 
 liability against the defendant; and in which the plain- 
 tiff cannot issue execution, but must obtain satisfaction 
 in some other manner ])rovided by law. Thus, a judg- 
 ment against a county, or a municipal corporation, is 
 
 146 Flanders v. Batten, 50 Ilun. rA2: 123 N. Y. 627; Jones v. Dove. 
 7 Or. 407; Mortland v. Himes. 8 Pa. St. 205; Sheetz v. Wyukooi), 74 
 Pa. St. 198; post, sec. 43; Wilson v. Nance, 11 Humph. ISO. 
 
 i<7 Ex parte I.eigliton, 14 Mass. 207; Thatcher v. Diusmore, 5 
 Mass. 299. 
 
 143 Moncrief v. Ward. 10 Abb. Pr. 354, note; Baldwin v. Kimmel, 
 10 Abb. Pr. 353; 1 Kobt. 109; Charles v. Lowenstein, 20 How. Pr. 
 29; Fox V. Hatch, 14 Vt. .340. 39 Am. Dec. 226. 
 
 1*8 Buckler v. Keese, 100 Ky. 330.
 
 § 22 ISSUING THE ORIGINAL EXECUTION. 68 
 
 ordinarily no more than the mere establishment of a 
 valid claim, which it is the duty of the proper officers 
 to provide means of payment, out of the revenues of 
 the defendant. It is error to award or issue execution 
 on such a judgment.^^^ This rule is not of universal 
 
 100 Enieric v. Gilman, 10 Cal. 404, 70 Am. Dec. 742; Kinmundy 
 V. Mahau, 72 III. 402; Wilsou v. L'omiuissiouers, 7 Walls. <5c S. 107; 
 Board of Supervisors v. Edwards, 70 111. 544; Kuox County a'. Arms, 
 22 111. 175; King v. McDrew, 31 111. 418; Gilman v. Contra Costa 
 Countj', 8 Cal. 52, 68 Am. Dec. 290; Sharp v. Contra Costa County, 
 34 Cal. 290; Canton v. Dewey, 71 111. A pp. 340; Hoopson v. Moiris,, 
 21 111. App. 307; B'd of Education v. Hoag, 21 111. App. 588; Pekin 
 V. McMalion, 154 111. 141, 45 Am. St. Rep. 114; Emery County v. Bur- 
 resen, 14 Utah, 328, 00 Am. St. Rep. 80S; City of Chicago v. Has- 
 ley, 25 111. 485. In this last case a judguu-ut for damages had been 
 recovered against the city of Chicago, and execution issued thereon, 
 A motion to quash the Avrit having been made and refused, an 
 appeal was taken to the supreme court, where the action of the 
 subordinate court was reversed. Breese, J., in pronouncing the 
 opinion of the court, said: "There can be no doubt that the prop- 
 erty of a private corporation may be seized and sold under a fi. fa- 
 for the payment of its debts, as in the case of an individual, such, 
 corporation being bound to provide for its just debts, whether pay- 
 ment is made by a forced sale of its property for that purpose, or 
 with money from its safe. 
 
 "The nature, objects, and liabilities of political, municipal, or 
 public corporations, we think, stand on different grounds. These 
 corporations signify a community, and are clothed with very ex- 
 tensive civil authority and political power. All municipal corpo- 
 rations are both public and political bodies. They are the embodi- 
 ment of so much political power as may be adjudged necessary, by 
 the legislature granting the charter, for the proper government of 
 the people within the limits of the city or town incorporated, and 
 for the due and efficient administration of their local affairs. For 
 these purposes, the authorities can raise revenue by taxation, make 
 public improvements, and defray the expenses thereof by tJixation, 
 exercise certain judicial powers, and generally act within their 
 limited spheres, as any other jjolltiral body, restrained only by the 
 charters creating tliem — beyond thcin. they cannot go. This power 
 of taxation is plenary, and furnislifs ordinarily ilic only means sucn 
 corporations possess by which to pay tlieir del)ts. They cannot 
 be said to possess property liable to execution, in the sense an in- 
 dividual OAvns property so subject, for they liave the control of the 
 corporate property only for corporate purposes, and to be used and
 
 «9 ISSUING THE ORIGINAL EXECUTION. § 2% 
 
 application. In Wisconsin, an execution may, in cer- 
 tain contingencies, issue against a eounty.*'^*^ Though 
 the statement is made in general terms in some of the 
 decisions that an execution cannot issue against a 
 county or a municipal corporation, and that a judg- 
 ment awarding it is erroneous and must be reversed, 
 it seems to us that this general statement cannot be 
 universally true. The funds and property possessed by 
 these corporations are ordinarily not subject to execu- 
 tioii, and he who has a claim against them is restricted 
 in his remedies for its enforcement to the presentation 
 of claims for allowance, and after thAir allowance, 
 by compelling them to be met by funds already in the 
 treasury, or by exercising the power of taxation for the 
 purj>ose of raising such funds. It is generally con- 
 <'eded, however, that a municipal corporation may have 
 property to which it occupies substantially the relation 
 of a private proprietor, and which may, therefore, be 
 
 disposed of to promote such purposi's. auil such only. Levyiug on 
 aud selliug such properly, and reuiovini; it, would work the most 
 serious injury in any city. JNIanj of our cities, Chicago especially, 
 have costly waterworks, indispensable to the lives aud health of 
 the citizens. These works are as much the property of the city as 
 any other it may control, and in appellee's view, liable to be seized 
 aud sold on e::ecution, to the great discomfort and probable ruin 
 of the inhabitants. Fire-eugines are also indispensable; they, too, 
 can be seized and sold, aud a great city exposed to the ravages of 
 (ire, and all this to enable one or mpre creditors of the city to ob- 
 tain the fruit.s of judgments against the city, which, by another 
 process, not producing any of these destructive iucouveuieuces, they 
 could fully obtain. The money raised by taxation could also be 
 levied upon, aud the whole business of the city be broken up and 
 deranged — its offices and office furniture, its jails, hospitals, aud 
 other public buildings, taken from the corporate authorities aud 
 sold to strangers, who would have a right to the exclusive posses- 
 sion of thtMU if not redecuu'd. In the absence of an express stat- 
 ute authorizing a proceeding frauglit with such consequences, we 
 must hold that fi. fa. cannot issue against the city of Chicago." 
 lii Savage v. Supervisors of Crawford County, 10 Wis. 4y.
 
 § 22 ISSUING THE ORIGINAL EXECUTION. 70 
 
 seized and applied to the payment of its debts. Where 
 such is the case, it is clear that such seizure can be 
 directed only by a Ayrit of execution, and that such 
 writ, therefore, is authorized to be issued.*^^ 
 
 Judgments against an executor or administrator, on 
 a cause of action against the deceased, are often yery 
 similar in their legal effect to a judgment against a 
 county. This is so Tviien they merely establish the 
 existence of a yaild claim against the estate, to be paid 
 in the course of administration. Such a judgment can- 
 not ordinarily be enforced by execution. ^'"••'^ On the 
 other hand, there are judgments making administrators 
 pr executors personally responsible; and also judg- 
 nu nts which under the law of the state, or by leave of 
 the surrogate, are to be enforced at once, without wait- 
 ing for due course of administration. On such judg- 
 ments a writ of execution may issue. The question of 
 w^hether an execution may issue against an adminis- 
 trator or executor is to be determined by considering 
 the general scheme authorized by the laws of the state 
 for the settlement of the estates of deceased persons. 
 If that scheme requires the presentation of all claims 
 against the decedent to his executor or administrator, 
 and that such claims shall be paid in the order desig- 
 nated in the statute out of the funds of the estate, and 
 further provides means by which, if the estate has not 
 the requisite funds, its property may be sold for the 
 
 152 Post § 120; State v. Bucklos, 8 Ind. App. 282, 52 Am. St. Rep. 
 470; O'Donnell v. School District l.T^ Pa. St. 102; City of Sherman; 
 V. Williams, 84 Tex. 421, 31 Am. St Kep. 06. 
 
 "3 Bull V. Harris, .31 111. 487; Home v. Spivoy, 44 Cn. 010. But 
 an- execution in which the word "executor" or "administrator" is 
 added to the defendants name, without anything further to indicate 
 that it is against the defendant in his representative capacity, may 
 he treated as against him personally, and levied upon his property* 
 Tinsley v. Lee, 51 Ga. 482.
 
 71 ISSUING THE OllH.INAL EXECUTION. § •-.•2 
 
 purposo of paying them, then, as a general rule, a 
 judgment creditor has no remedy by execution, and 
 such writ cannot properly issue in his favor.^*^ If, on 
 the other hand, tlie law, or a judgment rendered in pur- 
 suance of it, directs satisfaction to be made out of the 
 property in the hands of an adminsitrator, execution 
 may regularly issue against him/^^ Sometimes the 
 executors of a deccnlent, who was a member of a part- 
 nership, elect to continue the business and, in effect, 
 become copartners with the other partners. In such a 
 case, if there is a judgment against such partnership, 
 execution may issue thereon. It is not regarded as 
 issuing against the executors in their official capacity, 
 but rather as members of a private partnership.^^* 
 Judgments may be entered against executors or admin- 
 istrators establishing a personal liability against them, 
 or they may, in some of the states, establish a liability 
 against the estates of the decedents, to be satisfied only 
 out of the property in the hands of the defendant exec- 
 utor or administrator, or they may, in some instances, 
 establish a liability, ]>art of which is personal and pay- 
 able by the administrator, and part of which is against 
 the estate of the decedent and payable out of its as- 
 sets.*'*'' In each of these cases an appropriate execu- 
 tion should issue. If the judgment is made payable 
 out of the assets in the hands of the administrator, the 
 execution based thereon should so state, and not app(sir 
 to be against the administrator or executor personally. 
 If, on the other liaiid, the judgment does not, in express 
 
 iB4Allipe V. "Wachter, 74 111. 173; Peckham v. O'llara, 74 Midi. 
 287: Cowles v. Hall. 113 N. C. S'^O. 
 
 155 A(l:ims V. IIi.i.'-ins. 23 Fla. l.'l: Adkins v. ITntoliincrs. 70 Ha. 200. 
 
 156 r,ilumh\is W. (^o. V. Hodoni)yI. 135 N. Y. 430. 
 
 157 i.ook V. Luce, 130 Mass. 240; Greenwood v. McGilviay, 120 
 Mass. 516.
 
 § •:: ISSUING THE ORIGINAL EXECUTION. 72 
 
 terms, provide that it is payable out of the assets of the 
 decedent, it will generally be construed to be against 
 his administrator or executor personally, and the writ 
 issued thereon should not be directed against the assets 
 of the decedent, but, on the contrary, should be leviable 
 upon the property of the executor or administrator 
 named as a defendant therein.^'** 
 
 Kg execution can be properly issued against any per- 
 son unless a judgment has been pronounced against 
 him. Where the writ is against one defendant only, 
 and is not supported by a judgment against him, it is 
 undoubtedly void.^"^ So where a writ issues against 
 several, some one of whom is not embraced in the judg- 
 ment, it has been held to be void in toto.^^** We are 
 inclined to doubt the correctness of these decisions, and 
 to believe that the addition of unauthorized names is a 
 variance for which the writ ought to be quashed; but 
 that, if permitted to stand, it must be treated as bind- 
 ing on the persons properly named therein. It must, 
 however, be conceded that the writ is void as against a 
 person named therein as a defendant, but not included 
 in the judgment, nor can the writ be defended, or have 
 any validity imparted to it, by proving that the person 
 against whom it was issued without authority was also 
 liable for the debt upon which the judgment was 
 founded. Therefore, the issuing of an execution 
 against the property of a married woman upon a judg- 
 
 158 Horn(> V. Spivey, 44 Ga. G1P>; Small v. Small, 1(1 S. C. 04; Free- 
 man V. Binswanger, 59 Ga. I.IO; Lemon v. Thaxton. 59 Ga. 700; 
 Horn V. Bird, 45 Ga. 610; Beale v. Botetourt, 10 Gratt. 278; Moore 
 V. Ferguson, 2 Munf. 421; Barr v. Ban-, 2 Hen. & M. 26; Keniston 
 V. Little, 30 N. H. 31S, 64 Am. Dec. 297; Lynch v, Webster, 17 R. 
 I. 513. 
 
 159 Terrail v. Tinney, 20 La. Ann. 444. 
 
 160 Fleming v. Dayton, 8 Ired. 4.53; Blanchard v. Blancliard. 3 
 Ired. 105, 38 Am. Dec. 710; Peuoyer v. Brace, 1 Ld. Raym. 244.
 
 73 ISSUING THE ORIGINAL EXECUTION. § 22 
 
 meiit against her husband alone, in an action to which 
 she was not a party, is wholly uuauthoiized, regard- 
 less of the question whether or not the debt was for 
 Jiecessaries furnished the family and ioi- which she 
 might, therefore, have been liable.'"^ So, it a judgment 
 is entered against a partnership, giving tlie firm name 
 only and without specifying any of the persons who are 
 members thereof, there is no authority for the issuing 
 of an execution against any of such nii'iiibers person- 
 ally, and, if the execution is so issued, while being 
 regular on its face, it constitutes a justific;iti<n to the 
 officer acting under it, it is otherwise as to inc plain- 
 tiff and his attorney, who are liable for wrongfully is- 
 suing the writ in that form and placing it in the hands 
 of the officer,^*^^ By virtue of statutes, w^rits of execu- 
 tion may be authorized against persons not nominally 
 })arties to the original judgment. A familiar instance 
 of this is the statute which, on return of nulla bona, to 
 an execution against a corporation, auiiiorizes its 
 stockholders to be brought before the court on motion, 
 and an order to be thereupon made for the issuing of 
 execution against them for their i^'oportion of the 
 debt.i«^ 
 
 § 23. By Whom Issued.— The awarding of an exe- 
 cution is a judicial act. ''To award is to adjudge, to 
 give anything by judicial sentence." *^* "To award an 
 oxecution is a judicial act, and not a ministerial one; 
 no such power is given the clerk by law. In England, 
 when he issues the execution it is by order of the court; 
 here it is by virtue of the judgment, which, it is deter- 
 
 161 state V. Arnistrons:, 25 :Mo. Ai>p. .^32. 
 i«2 Hamner v. Ballantyne, IG I'tali. 4r.t;. (iT Am. St. Rep. &43. 
 183 Marks v. Ilanly, SO Mo. 232; Taxou v. Talinage, ST Mo. 13. 
 t6» Johusou V. Ball, 1 Yerg. 292. 24 Am. Dec. 451.
 
 § 23 ISSUING THE ORIGINAL EXECUTION. 74 
 
 mined, awards the execution." ^^^ The award of exe- 
 cution need not be mentioned in the judgment, for it is 
 by law the necessary consequence of the judgment. 
 The award of execution, or in other words, tlie granting 
 of judgment, being a judicial act, the judge is not per- 
 sonally liable for errors committed by him in its per- 
 formance. But as the issuing of execution is a mere 
 ministerial act,***^^ the officer is liable for unlawfully, 
 performing it. Hence in ^Massachusetts, a justice of the 
 peace, who, in defiance of the statute, issued execution 
 within twenty-four hours after entering judgment, was 
 held responsible in an action of trespass.^*^" 
 
 A ministerialv)fficer who is charged by statute with 
 an absolute and certain duty, in the performance of 
 which another has a special cind p( rsonarunterest, is 
 liable to ma"ke comp^tisa<ti6n,to the extjent <^ any actual 
 loss sustain^ ^y fhd person speciaUy interested, 
 in case the officer refuses or neglects . to perform 
 his duty.*^' Therefore, if a clerk fails to indorse a 
 memorandum upon an execution when required to do 
 so by the statute, to the effect that one of the parties 
 thereto is a surety, and from such action of the clerk 
 the party is necessarily injured, he may recover of the 
 clerk the damage sustained by him, but he must, if he 
 knows of the mistake of the clerk, take such means as 
 are within his reach to correct it, and also to protect 
 himself by using any other means which the law pro- 
 vides for his indemnity. If the act or neglect of the 
 clerk resulted from an innocent mistake which would 
 have been corrected upon request, and the defendant 
 
 i«5 Daley v. Perry, 9 Yerg. 444. 
 
 lesaHu^'hes v. Slroetin, 24 III. 647, 76 Am. Dec. 777. 
 
 inc Brij^ys v. Wardwell, 10 Mass. .3.56. An officer issuing exoen- 
 tion while a stay bond is in foree is liable as a trespasser. Milli- 
 ken V. BroAvu. 10 Serg. v^t B. 188. 
 
 "< State V. Fleuiiny, 124 Ind. 97.
 
 75 
 
 ISSUING THE ORIGINAL EXECUTION. 
 
 would thereby have been afforded ample means of 
 escape from his loss, he cannot recover damages of the 
 clerk -vvhieh he mio-ht have obviated by reasonable 
 action on his part.*"** In other words, an olllcer is not 
 liable for the unauthorized issuing- of an execution by 
 him, if no injury' resulted therefrom.'"'* Another re- 
 sult, folh»\vin^- from the rule that Ihe issue of execution 
 is to be rej^arded as a ministerial act, is tliat the officer 
 havinji: authority to issue the writ need not do it in per- 
 son, but may delegate his authority to another. It is 
 not indisi)ensable to the regularity of an execution that 
 it shouhl be issued ^u' the clerk or a duly qualified 
 deputy. If the j>K'rkMliiuks propeiyl1e)can engage the 
 services of an^shiKant>e;>write f0^^ and if the exe- 
 cution is mmwXuJyim*\^ with his name, by 
 his (Vire(;tU)it^^'£w^QupH^ mi<rri<fade and 
 subscribed \\i<.h his mwue, ;mil'^%WiI^^inKrid(>pted l»y 
 him, it w<)Hldjhi ])oint of law. be as unicliTri s ,ic f~ « yS if 
 the labor had l)elMr~"prTfnrrmMl-ji^lJi own hand.^'" 
 The same ruling has been made in thecTr?!r-^f an execu- 
 1ion issued out of a justice's court.*'^ But it seems to 
 us that a general authority to issue execution cannot 
 be delegated except where the law authorizes the ap- 
 pointment of a deputy and such appointment has been 
 made; and that the cases referred to go no further than 
 to sustain executions issued so directly under the ey*^ 
 and control of the officer that they must be treated as 
 his acts. Executions are usually issued by the clerk 
 when the court has one, and by the judge or justice' 
 •when the court has no clerk. In Ncav York they may 
 
 168 State V. Fleming, 124 Iiul. 97. 
 
 160 RiKkler V. Reese, 100 Ky. 33G. 
 
 iTo ^fcMalian v. CoIoIoukIi. 2 Ala. 70. 
 
 t7i Kyle V. Evans, 3 Ala. 482, 37 Am. Dec. 705.
 
 § 24 ISSUING THE ORIGINAL EXECUTION. 76 
 
 be issued by the plaintiff or his attorney.*'^^ Being a 
 mere ministerial act, the clerk is not disqualified from 
 the issuing of an execution because he is attorney for 
 one of the parties.^"^ He is not relieved from the duty 
 of issuing the writ by the judgment being uncertain in 
 its terms and difficult to execute.^''* An execution is- 
 sued by a person having no authority so to do conferred 
 on him by law, nor by delegation from some competent 
 official, is conceded to be void.^''" This rule applies to 
 executions which ai)pear to be issued by the proper 
 officer, but which in fact are forgeries,*'^ and to writs 
 issued by the clerk of one court when authorized to be 
 issued only by the clerk of another.^'^'' 
 
 § 24. Earliest Time for Issuing. — Having treated 
 of the courts from which, and the judgments and de- 
 crees on which, and the persons for and against whom, 
 execution may issue, we come next to the consideration 
 of the time during which such issuing may properly be 
 made. In treating this subject, we shall direct atten- 
 tion, first, to the earliest period at which an execution 
 may properly issue, and the consequences of its issu- 
 ance before that period; and second, to the latest period 
 at ^''^hicli an execution may properly issue, and the con- 
 sequences of its issuance after the expiration of that 
 period. As an execution is authorized for the purpose 
 of making effectual the judgment or order of the court, 
 it must, of course, follow that the plaintiff may have it 
 
 172 Code of N. Y., § 24. 
 
 173 Blount V. VVulls, 5.5 Ga. 282. 
 
 174 Levy V. Blount, 15 La. Ann. 573, 77 Am. Dec. 198. 
 
 175 Seaton v. Hamilton, 10 Iowa, 394; Terry v. Whipple, 38 Vt. 
 278; Furman v. Dewell, 35 Iowa, 170. 
 
 176 Silvan v. Coffee, 20 Tex. 4, 70 Am. Dec. 371. 
 
 177 Chandler v. Calcord, 1 Okla. 2G0; Richards v. Belcher, G Tex. 
 Civ. App. 284.
 
 77 ISSUING THE ORIGINAL EXECUTION. § 24 
 
 issued as soon as the time comes when he is entitled to 
 the satisfaction of liis judgiiieut or decree, and this is 
 generally immediately ui)on its entry, unless process is 
 stayed by some order or rule of court.-^'^* It must also 
 follow that there is ho authority for an execution until 
 there is a judpnent to be enforced. If there be no 
 judgment, a writ issued in anticipation of such judg- 
 ment is void, and continues invalid though the judg- 
 ment be subsequently rendered and entered.*^ Some- 
 times there are two judgments in an action or proceed- 
 ing, and the right to execution may be dependent on the 
 second only, in which event the writ cannot properly 
 issue until the second is perfected. Thus, in a suit for 
 partition certain charges and expenses may be made a 
 lien upon the several allotments, but, as the action t)f 
 the commissioners is not final until their report i>=! con- 
 firmed, the time for issuing an execution for the charge 
 imposed upon any of such allotments does not com- 
 mence until the confirmation of such report.^^^ 
 
 If, however, a judgment is rendered, a writ of execu- 
 tion may issue before its formal entry.*^* An execu- 
 tion may be issued in advance of the actual entry of the 
 judgment in two contingencies, namely, the judgment 
 may be entered in its regular order, but, through press 
 of business or from some other cause, not immediately 
 after the rendition of the judgment, or for some reason 
 the judgment entry may not be made in the regular 
 course of business. In the first of these contingen- 
 cies, as soon as the clerk proceeds to write up his re- 
 
 1T8 Seton's Forms of Decrees, Jutlgmonts, and Orders, 4th ed., 
 1561; Stevens v. Mansou, 87 Me. 430; Miller v. O'Bannon, 4 Lea, 
 398; Fontaine v. Hudson, 90 Mo. 02. 3 Am. St. Rop. 515. 
 
 179 Hathaway v. Howell. Tbomp. & C. 453; 4 Hun, 270. 
 
 180 Re Ausburu. 122 N. C. 42. 
 
 181 Graham v. Lynn, 4 B. Mon. 17, 39 Am. Dec. 493.
 
 §24 ISSUING THE ORIGINAL EXECUTION. 78 
 
 cords, the proceedings appear fair upon their face, and 
 I)j a decided weight of authority, the execution, if is- 
 sued after the rendition of the judgment, cannot be 
 avoided by showing that the judgment had not been in 
 fact entered at the time of such issuing/^^ In the 
 other contingency, it may be necessary to obtain 
 further judicial action, as by a motion that the judg- 
 ment be directed to be entered nunc pro tunc as of tlie 
 (late of its rendition. This entry may not be directed 
 to be made until after the writ has been fully executed, 
 and, whenever made, the question must naturally arise 
 as to what is the effect of the nunc pro tunc entry. 
 Does it validate all the proceedings and make them ef- 
 fectual to the same extent as if the judgment had been 
 entered prior to the occurrence of any of them? This 
 is a question more proper for detailed consideration in 
 ireatises considering the law of judgments. The gen- 
 <'ral rule upon the subject may be stated thus: when 
 directing entries of judgment nunc pro tunc, courts will 
 generally impose such conditions as may seem neces- 
 sary to protect the interests of third persons who have 
 acted in good faith and without notice, and that, 
 though such conditions are not expressly imposed, they 
 are nevertheless implied by law. "If one not a party 
 to the action has, when without notice of the rendition 
 of the judgment or of facts from which such notice 
 must be imputed to him, advanced or paid money or 
 property, or. in otlier words, has become a purchaser or 
 incumbrancer in good faith and upon a valuable con- 
 sideration, then the subsequent entry of such judgment 
 nunc pro tunc will not be allowed to prejudice him. 
 Otherwise its effect against him is the same as if it had 
 
 182 Lowenstein v. Caruth, r)9 Ark. 58S; Los Anceles Bank v. Ray- 
 nor, 61 Cal. 145; Woij:loy v. Matson, 126 111. 64, 8 Am. St. Rep. 333.
 
 78 ISSUING THE ORIGINAL EXECUTION. § 24 
 
 been entered at the proper time.*®^ The authorities in 
 some of the states leave the question we are here dis- 
 cussing in doubt. Thus, in Iowa, there are decisions 
 holding executions void because issued before the entry 
 of the judgment, but, from the opinion of the court, we 
 are inclined to think that these decisions were founded 
 on the assumption that, at the time of the issue of the 
 execution, no judgment had been rendered, or, at least, 
 1 hat there was no competent evidence of such rendition, 
 it appealing that, while a judgment had been ordered, 
 it was of such a character that it could not be drawn 
 by the clerk, but must first be drafted by counsel and 
 I>resented to the judge for approval, and that such ap- 
 l»roval had not been manifested prior to the issuing of 
 1 he execution.'^* In this state the clerk failed to enter 
 a confession of judgment when authorized to do so, but 
 issued execution thereon, and it was levied on real 
 property. A suit was afterward begun to enjoin the 
 sale then^of on the ground that the execution was 
 void, because its issue preceded the formal entry of 
 judgment. In the meantime judgment had been en- 
 tered nunc pro tunc as of the date prior to the issuing 
 of the execution. It was insisted, nevertheless, that 
 1 his entry could not invalidate the writ. The court de- 
 <]ared that what it had stated in the previous cases 
 'Miad no reference, however, to the effect that should 
 be given a nunc pro tunc entry, and it is not to be re- 
 garded as conclusive of the point now under consldera- 
 
 I ion." The court then, referring to the various authori- 
 ties ujx.n tlie subject, said: "Following this almost un- 
 broken lin<' of (h'cisions,we are constrained to hidd that 
 
 1S3 Freeman on Jvidgraents, § 66; Dougbty v. >feek. 103 la. 16, c,-; 
 Am. St. Rep. 2S2; Ninde v. Clark, 62 Mich. 124, 4 Am. St. xtop- S2o. 
 
 II nd note. 
 
 184 Balm V. Muiin, 63 la. 642; WinUn- v. Coulthard, 92 la. 312,
 
 § 24 ISSUING THE ORIGINAL EXECUTION. 80» 
 
 the nunc pro tunc eiitrj so opt^rates as to save the exe- 
 cution tliat had theretofore been issued." ^^^ In South 
 Dakota, it has also been assumed that an execution can- 
 not issue until after the judjxment is entered by the 
 clerk, but it is said that oral evidence is incompetent, 
 if prop^'rly objected to, to contradict the recitals in the 
 execution.***" 
 
 In Illinois and Colorado it appears that an execution 
 issued upon a judgment by confession in advance of the 
 actual entry of such judgment is unauthorized and void, 
 although every act had been done and every fact ex- 
 isted, making it the unquestionable duty of the clerk 
 to enter the judgment.***'' These cases seem to us very 
 questionable. We think the confession having been 
 made in due form, and everything done which the stat- 
 ute exacted, judgment thereupon was pronounced by 
 the law, and was therefore legally in existence, though 
 not formally recorded by the clerk. His failure to- 
 enter it was the neglect of a mere ministerial duty; and 
 where the failure to enter a judgment arises from such 
 neglect, it is generally regarded as sufficiently in ex- 
 istence to support a writ.**** Doubtless there is gen- 
 erally no authority for the issuing of an execution prior 
 to the rendition of the judgment.*®^ But to this rule 
 there are exceptions, arising in cases where the entry 
 of judgment is a mere ministerial act, as where, upon 
 
 185 Doughty V. Meek, 105 la. 16, 67 Am. St. Hep. 282. 
 
 186 Morris v. Hubbard, 10 S. D. 259. 
 
 i%7 Ling V. King. 91 111. 571: Cummins v. Holmes. 109 111. 15; 
 Humphreys v. Swain, 21 111. App. 232; Poppers v. Meager, S3 111. 
 App. 19; Knights v. Martin, 155 111. 480; Schuster v. Rader, 13 Colo. 
 329. 
 
 18S Doughty V. Meek, 105 la. 16, 67 Am. St. Rep. 282. 
 
 1*9 I'arker v. Frambes, 1 Pen. 156; I^ofton v. Champion, 1 Pen. 
 157; Lee v. Steelman. 1 Pen. 319; Rector v. Gale. Hardin. 84. In 
 Missouri, exccutidn camiot r< .iziihuly issue until the motion for a. 
 new trial has been denied. Stephens v. Brown, 56 Mo. 23.
 
 81 ISSUING THE ORIGINAL EXECUTION. § ■:4 
 
 the verdict of a jury, a justice of tlie peace is required 
 by law to enter judgment in conformity therewith. In 
 such cases the rendition ottlie verdict is substantially 
 the rendition of the judgment.*^" By the common law, 
 as soon as final judgment was signed, and before its 
 entry of record, execution might issue, "provided there 
 was no writ of error depending, or agreement to the 
 contrary." ^^^ So in New Jersey, "the established prac- 
 tice is that the plaintiff may issue his execution imme- 
 diately after the entr^^ of judgment nisi, if he thinks 
 proper to do so, at the risk, however, of having it ren- 
 dered a nullity, by the rule to show cause being allowed 
 absdhitely, and without directing the entry of final 
 judgment for the protection of plaintiff." ^'"^^ In Cali- 
 fornia, execution may issue before the judgment-roll 
 is made up.^^^ But it seems that the common-law 
 practice never prevailed in New York; and that the 
 practice adopted in its stead required the judgment- 
 roll to be filed with the clerk before issuing execu- 
 tion.*»^ 
 
 If, by statute, an execution is authorized to issue 
 upon some obligation without the entry of any judg- 
 ment tliereon, such issuing cannot be authorized until, 
 under such obligation, the party in whose favor it is is 
 
 IPO Freeman on Judgments, 2(1 ed., § .'>3 a; Ivvnch v. Kelly, 41 Cal. 
 2S2; Folter v. Mulliner, 2 .Toliiis. ISl; Overall v. Pero, 7 Miob. 317: 
 <\\iinos V. Betts, 2 Doug:. (Mich.) 98. 
 
 101 Tidd's Pr. 994. But a writ tested before the time of signing 
 judgment is irregular. Peacock v. Day, 3 Dowl. P. C. 291; Engle- 
 hart V. Dunbar, 2 Dowl. P. C. 202. 
 
 192 Erie R. Co. v. Ackerson. .33 N. J. L. 33. 
 
 103 Sharp v. Luiiiley, 34 Cal. G14. 
 
 194 Barrie v. Dana, 20 Johns. 309; Chicester v. Cande, 3 Cow. 39. 
 15 Am. Dec, 238; Marvin v. Ilerrick, 5 Wend. 109; Clute v. Clute, 
 4 Deuio. 243; Townshcnd v. Wesson, 4 Duer. 342; Macomber v. 
 Mayor of N, Y„ 17 Abb. Pr. 35; Morris v. Patchin, 24 N. Y. 398. 
 82 Am. Dec. 311. 
 Vol. I.-6
 
 § -24 ISSUING THE ORIGINAL EXECUTION. 82 
 
 entitled to its enforcement. If it is a forthcoming and 
 deliverv bond or a claim bond,' and the obligee is en- 
 titled to execution thereon upon the contingency speci- 
 fied therein or by law, all the conditions i^recedent for 
 the issuing of execution must have occurred, and if is- 
 sued in advance of any of them, the writ may be 
 quashed.*^'* 
 
 The docketing of judgments is required for the pur- 
 pose of imparting notice to third persons of the exist- 
 ence of the judgment lien. It is in no wise essential 
 to the existence of the judgment;*^ nor is it in general 
 regarded as a condition precedent to the issue of execu- 
 tion^^'' in any case where the same is issued by the 
 court wherein judgment Avas rendered. 
 
 193 Cntching v. Bowden. 89 Ala. 604; Foust t. Greene, 90 Ala. 539. 
 
 19G Freeman on Judgments, § 343. 
 
 197 Hastings v. Cunningham. 39 Cal. 144; Mollison v. Eaton, 16 
 IMinn. 426, 10 Am. Eep. l.jO; Rice v. Warren, 91 Ga. 759; Drake v. 
 Harrison, 09 Wis. 92, 2 Am. St. Rep. 717; Youngs v. Morrison, 1(> 
 Paige. 32.5; Corey x. Cornelius, 1 Barb. Cli. 583; Clark v. Dakiu, 
 2 Barb. Ch. 36. Tlie 2S7th section of the New York Code of Pro- 
 cedure provides that execution may issue "to the sheriff of any 
 county where judgment is docketed." This language might, with 
 equal force, be construed as a limitation or an extension of the pre- 
 vious authority of the court to issue execution. It may be argued, 
 on the one hand, that this provision was designed solely to ex- 
 tend the authority of local courts, and to enable them to issue A\Tits 
 not only within the limits of their own jurisdiction, but also lo 
 other counties in which the judgment had been docketed, and this 
 Me think the more reasonable construction. But Mr. Wait con- 
 strues the provision as a limitation, for he says: "An execution can- 
 not regularly issue on a judgment for the payment of money be- 
 fore such judgment has been docketed." 4 Wait's Pr. 6. The cases 
 cited by him hardly support his assertion. In the case of Stephens 
 v. Browning, 1 Code Rep. 123. a judgment had been recovereii in 
 New York City, and execution against the real and personal prop- 
 erty of the defendant had issued to Oswego county, before any 
 transcript had beon docketed in the last-named county. The court 
 lield that the execution was authorized as to the personal ami un- 
 authorized as to the real estate, and permitted it to be amended so a^* 
 to run against personalty only. In Stoutenburgli v. Vandeuburgli,
 
 S3 ISSUING THE ORIGINAL EXECUTION. § 24 
 
 Tho period at which execution may first issue has 
 been the subject of such varied statutory regulation in 
 the different states tliat it cannot be fully treated, ex- 
 cept by furnishing extracts from each of those statutes. 
 And wherever a matter is so much under the control 
 of diverse statutes, we think it better to turn the prae- 
 t itioners of each state over to the consideration of their 
 own statutoi-v compilations than to attempt the recora- 
 ]n'lation and i-opublication of these statutes as a part 
 «»f this treatise. We may say, however, in r. gai d to tlie 
 general policy of these statutes, that many of them au- 
 thorize execution immediately after the entry of judg- 
 ment;*®® and that the others, which postpone the right 
 to execution to a later date, generally have provisions 
 under which, in cases of emergency, immediate execu- 
 tion may be obtained upon api)lying to the court there- 
 for.*»» 
 
 7 How. Pr. 220. a judgment was entered in Columbia county and 
 n transcript sent to Greene county. The execution was received 
 in Greene county one day before the transcript. It was held that the 
 ixocution became operative in the hands of the sheriff from the 
 lime the judgment was actually docketed in Greene county. But 
 the court was inclined to hold that in all cases before oxocutimi 
 pan be issued to any county, judsmont should be docketed. In De 
 Airreda v. Mantel. 1 Abb. Pr. 135, as in the case just cited, the 
 necessity of docketincr the judgment to authorize execution in the 
 county where it was entered was not involved; but the court ex- 
 pressed its doubt on the subject. 
 
 198 De Witt V. Smith, 3 How. I'r. 2S0; Carpenter v. Vanscoten, 20 
 liKl. 52; People v. Bay Co., 14 :Mich. 1G9; Sharp v. Lumley, 34 Qal. 
 (;i4. 
 
 i:)9 Formerly in New York execution could not issue until thirty 
 days after entry of judgment. Commercial Bank v. Ives, 2 Hill, 
 or..">; Stone v. Green, 3 Hill, 4G9; Van Valkenburgh v. Harris. 3 
 I>rnio, 162; Bell v. Bell, 1 How. Pr. 71. In Pennsylvania, not until 
 Ton days. Eol)yshall v. Openheimer, 4 Wash. C. C. 388. Not until 
 tour days in Georgia. Harris v. Wetmore, 5 Ga. 64. Ten days in 
 Kentucky. Barbour & Carroll Ky. Stats., sec. 1653. In Florida, 
 iniiiiediately after judgment rendered. Fla. Ilev. Stats. 1801, .seo. 
 11^7. In xVlal aiiia. as soon after adjourwrneut of court as possible.
 
 § 25 ISSUING THE ORIGINAL EXECUTION. 8i 
 
 § 25. The Consequences of the Premature Issuing of 
 an execution are next to be considered, when the 
 question involved is not that of issnins; of an execution 
 prior to the entry of the judgment on which it is based, 
 but its issuing prior to the time authorized by law or 
 by some rule or order of court. An execution issued 
 in Massachusetts, in violation of the statute directing^ 
 that "no execution shall be issued within twenty-four 
 hours after the entry of the judgment," was adjudged 
 to be void, and the title derived therefrom was disre- 
 garded.^^^ In the same state, a justice of the peace wha 
 issued execution within less than twenty-four houra 
 after the rendition of judgment was held liable therefor 
 in an action of trespass.^^* But a very decided prepon- 
 derance of the authorities is against the first decision 
 above referred to, and in favor of the proposition that 
 the premature issuing of an execution is an irregularity 
 merely. The execution is erroneous, but. like an errone- 
 ous judgment, it must be respected, and may be en- 
 forced, until it is vacated in some manner prescribed by 
 law.'^^ No one but the defendant can complain of it; 
 
 See. 2887 of Code, 1886. In Iowa, may issue on Sunday, when plain- 
 tiff would otherwise lose his debt. See. 3956, Iowa Code. 1897. In 
 Massachusetts, execution cannot be taken out until twenty-four 
 hours after entry of judgment. Penniman v. Cole, 8 Met. 501. In 
 Missouri, the execulion onirlit not to issue before the determination 
 of the motion for a new trial. Stephens v. BroAvn, 56 Mo. 23. In 
 order to Ivcep the lien of an attachment alive and effectual, it has 
 been held that when judsment is reversed execution ought to issue 
 thereon within a reasonable time, and that a delay of more than a. 
 year is unreasonable. Speelman v. Chaffee, 5 Col. 247 
 
 200 Penniman v. Cole, 8 Met. 496. 
 ' 201 Briggs V. Ward well, 10 Mass. 356. 
 
 202 Dawson v. Daniel, 2 Flip. 305; Rosenfield v. Palmer. 5 Daly, 
 .318; Scribner v. Whitcher. 9 N. II. 63, 23 Am. Dec. 708; Miller v. 
 O'Bannon, 4 Lea, 398; Stanley v. Nelson. 4 Humph. 483; Carpenter 
 V. :Mechanics' Bank. 1 Lea. 202; Wilkinson's Appeal, 65 Pa. St. 190; 
 Sheppard v. Boberson (Ga.), 32 S. K. (Um; Faucett v. Harris. 190 Pa. 
 St. 98; De Loach v. Bobbins, 102 Ala. 288, 48 Am. St. Bep. 46; Wal-
 
 S5 ISSUING THE ORIGINAL EXECUTION. § 25 
 
 and even be canuot do so in any ccllateral proceed- 
 jjj„. :jo:j uujer an ^ct of Congress providing that ''until 
 the expiration of ten days cxecuticm shall not issue," 
 <-ertain executions were coHaterally objected to, on the 
 ground that tliey were issued within ten days, Imt tho 
 court said: "If irregular, the court from which they is- 
 sued ought to have been moved to set them aside; they 
 AV( re not void, because the marshal could have j\istitied 
 under them, and if voidable the proper means of de- 
 stroying their efficacy have not been pursued." *®* 
 When substantially the same question arose in Mis- 
 souri, Judge Ryland, speaking for the supreme court, 
 said: "The time of doing the deed only is relied on as 
 rendering it void. I am satisfied from reason and au- 
 thority both, that the time is not so much of the sub- 
 stance of the power and act as to render the act 
 void." ^**^ So in New York, against the objection that 
 an execution had, contrary to the statute, Issued within 
 thirty days after the rendition of judgment, the court 
 of appeals held that "until set aside, although Issued 
 without the defendant's consent, the process was valid, 
 and no ouo could take advantage of such irregularity 
 but the defendant in the execution." "^ Some recent 
 decisions of the St. Louis court of appeals of Missouri 
 
 drop V. Fri'odman, 90 Ala. I.jT. 24 Am. St. Rop. 775; Knoxville City 
 Mills V. Loviuger, S3 Ga. .5G3: Wboeliiij: P. Co. v. T.evi. 48 La. Ann. 
 777; Ma.son etc. Co. v. Killoch M. Co.. 4."» S. C. 11; House v. Robert- 
 sou. 89 Tex. r>81; Rogers v. Cherrier, 75 Wis. 54; Olmstead v. Brewer, 
 01 Ala. 124; Wilkinson's Appeal. G5 Pa. St. ISO; Shimp v. Hay, 8 111. 
 flO; see, also, Clicsebro v. Barme, 105 Mass. 81. 
 
 203 Stevrart v. Stocker, 13 Serg. & R. 199, 15 Am. Dec. 589; Low- 
 ber & Wilmer's Appeal. 8 Watts & S. 389, 42 Am. Dec. 302; Wilkiu- 
 son's Apiioal, G5 Pa. St. 190; Lynch v. Kelly, 41 Cal. 232; Allen v. 
 Portland St:ig(^ Co.. 8 Me. 200. 
 
 ^04 Blaine v. Ship Charles Carter, 4 Crunch, 333. 
 
 203 Carson v. Walker. 16 Mo. 85. 
 
 200 Bacon v. Cropsey, 7 N. Y. 199.
 
 § 25 ISSUING THE ORIGINAL EXECUTION. 86 
 
 we are unable to reconcile with the previous decision 
 of the supreme court of that state upon the subject al- 
 ready referred to. A statute of that state declares that, 
 before anj^ execution shall be delivered by a justice of 
 the peace, he shall state in his docket, and also on the 
 back of the writ, an account of the debt, damages, and 
 costs, and the execution, from the time of delivery to the 
 the constable, shall be a lieu on the 2:oods, chattels, and 
 shares in stocks of the defendant found within the lim- 
 its within wliicli the constable or other officer can exe- 
 cute his process. It is evident by this statute that a lien 
 cannot exist under the writ until the account of the 
 debt, damages, and costs has been stated in the docket 
 and on the back of the execution, becmise the express 
 language of the statute makes this statement a condi- 
 tion precedent to the existence of the lien. The court 
 has. however, stated in general terms that an execution 
 issued without this statement of account is void, citing 
 certain authorities in support of this conclusion having 
 no relevancy to it whatsoever.^"'' Where the practice 
 requires the filing of the judgment-roll to precede the 
 issuing of execution, an execution is not void because 
 issued before such filing; and, where the issue and filing 
 are on the same day, the court will not make any in- 
 quiry in reference to fractions of the day, but will, as 
 between the parties.permit thewrit to stand in force.^^ 
 But an execution properly issued will obtain prece- 
 dence over another issued on the same day, if the judg- 
 ment-roll authorizing the latter is not filed until after 
 the former is issued. Tn this case, the court will notice 
 a fraction of a day.^*^^ An execution sent to the sheriff, 
 
 207 Huffman v. Sisk, 02 Mo. App. 098; Loth v. Faconesowich, 22 
 Mo. App. G8. 
 
 2ns. Tones v. rovter. G llow. Pr. 280; Clute v. Clnto, 4 Denio, 241, 
 Clute V. Clnto. ?, Donio. 2C,?,: Smnll v. T\tcCbesney, 3 Cow. 19. 
 
 200 Marvin v. llonick, 5 Woud. 109.
 
 87 ISSUING THE OllUJlNAL EXECUTION. § 'JG 
 
 and roccivod by bim previous to the filing;- of the record, 
 is not prematurely issued, if the sheriff be directed to 
 ind()rs<» it as rcfcivcd of a subsoqucnt day, and on that 
 day the record be signed and filed. '^*^ 
 
 § 26. Executions Issued Contrary to Agreement b*^- 
 tween the parties are subject to tlie sanic rules as other 
 premature executions. In North Carolina, the parties, 
 by consent, had a memorandum made upon the record, 
 "no fi. fa. to issue until October, or until ordered." 
 The plaint i IT issued execution in contravention of this 
 agreement. This execution was afterward collaterally 
 questioned, when tlie court held that "it was not void, 
 but was a sufficient justification to the sherift" in pro- 
 ceedin«c under it as if no such memorandum had been 
 made." ^^^ In a case determined in the supreme court 
 of tlit^ T'nited States, it appeared that a memorandum 
 had been endorsed on the judgment record,that by con- 
 sent the execution was stayed until a day <lesi<'nated, 
 and that, notwithstanding this memorandum, the writ 
 issued before such date, and that proceedings had been 
 taken under it, apparently without any objection from 
 any one, and certainly without any motion having been 
 made to quash the writ. It was held that under the cir- 
 cumstances, in the absence of any evidence to the con- 
 trary, it might be presumed that the writ had issued 
 with the consent of the defendant, but that, even if it 
 were assumed that the execution was irregularly is- 
 sued, it could not for that reason be held absolutely 
 void and incai)al)le of being validated, and, finally, that, 
 as the defendant had not taken any steps to quash the 
 writ or the levy made thereunder, the writ and subse- 
 
 210 W^iltors V. Sykes, 22 Wentl. TiGG. 
 
 211 Cody V. Quinu, G Ired. 193, 44 Am. Dec. 75; Slicltou v. Fels, 
 rbill. (N. C.) 178.
 
 § 27 ISSUING THE OllIGIXAL EXECUTION. 88 
 
 quont proceedings must be treated as valid.^*^ There 
 is no doubt, however, that courts will, on proper appli- 
 cation, enforce all a,i;Teenionts made by the parties for 
 the stay of execution, whether entered on the record or 
 not. "I have known, if a judgment be given and there 
 is an agreement between the parties not to take out 
 execution till next term, and tlicy do it before, that the 
 court has set all aside." ^*^ In New York, where judg- 
 ment had been entered by confession, the court after- 
 ward set aside the execution, being convinced, by aflfl- 
 davits filed on behalf of the defendant, that the plain- 
 tiff induced the confession by agreeing to stay execu- 
 tion for three years.^^* But an agreement procured 
 by misrepresentations, or upon conditions which Avere 
 not complied with, may be disregarded by the plaintiff, 
 who may at once issue execution. The court will not, 
 in such a case, interfere in behalf of the defendant.^*^ 
 
 § 27. Latest Time for Issuing.— By the common law, 
 a plaintiff who had obtained a judgment in a personal 
 action was compelled to attempt to execute it within 
 a year and a day. If he failed to do so, the right to 
 execution upon that judgment was forever gone. The 
 judgment remained a mere evidence of indebtedness, 
 upon which an action could be brought. In such action, 
 it w^as incumbent on the defendant to show by what 
 means, if any, the judgment had been satisfied. The 
 rule was otherwise in real actions. There the demand- 
 ant after a year might take out scire facias to revive 
 his judgment. By statute of Westminster 2, 13 Edw. I., 
 
 212 Beebe v. United States, 161 U. S. 104. 
 
 213 Tw'isden. J., in Veal v. Warner, 1 Mod. 20; Yeagley v. Norbeck, 
 327 Pa. St. 238. 
 
 214 Merritt v. Baiter, 11 How. Pr. 456. 
 
 215 Holmes v. Delabourdine, 1 Browne, 132.
 
 «9 ISsUIXfi THK ORICINAL KXKC'UTJON. § 27 
 
 c. 45, scire facias was given to the plaintiff to revive liis 
 juflgiiient in a personal aetion. But aft(-r this statute, 
 as before, the time within which an rxecutiou couhl is- 
 sue on till' original judgment was limited to a year and 
 a day. In the greater portion of the United States the 
 <*ommon-law rule has been displaced by statutes. Those 
 statutes have generally fixed the tiiiic within which 
 the original execution can issue at n iiiucli lunger period 
 than that fixed by the common law.'"' 
 
 The requirement of the law by Avhicli jdaintiff. after 
 delaying for a year and a day the Issuing of his original 
 execution. Is compelled to sue out a scire facias and ob- 
 tain a judgment thereon before he can have execution, 
 Is intended for the protection of the defendant. He 
 need not claim this protection. lie may, by consent, au- 
 thorize the entry of a judgment of revivor, without put- 
 ing the plaintiff to his scire facias;"*" or he mav. by 
 agreement with the plaintiff, waive his right to object 
 to the issuing of execution after a year and a day. 
 There is no reason why such an agreement should not 
 be enforced. An execution issued within the time 
 agreed ui)on is regular; and the want of scire facias can- 
 sis In Coanectieut and Louisiana executdons may issue at any 
 ijme (luring tlie life of the parties. Denison v. Williams, 4 Conn. 
 404; Harper v. Tfriy. Ifi La. Ann. 216. In Alabama, within ten 
 years. Perkins v. B. I. & C. Co., 77 Ala. 403. In Iowa, at any time 
 before the jndiiniont is barred by the statute of limitations. Sec. 
 .'{055 of Code, 1S07. In Illinois, within seven years. Starr v. Cur- 
 liss. Ann. 111. Stats., 2d ed., p. 2:«4, par. 0. Striblin? v. Prettyman. 
 57 111. 371; but see Chase v. Frost, 60 111. 143. In Florida, within 
 three years. Fla. Rev. Stats., ISOl, sec. 1185. In Arkansas. Indiana, 
 and ^Minnesota, within ten years. Leonard v. Eorghton, 120 lud. ."36, 
 16 Am. St. Uo\^. 347, Hanly v. Caneal. 14 Ark. .524: Ploagh v. Reeves, 
 :33 Iiui. 181; Plou?:h v. "Williams. 33 Ind. 182; Davidson v. Gaston, 16 
 Minn. 202. In West Virginia, within two years. Gardner v. Land- 
 <'raft, 6 W. Va. 36. 
 
 ^1- ITarmer v. .Johnson, 14 Mecs. & W. 336: 3 Dowl. & L. 38; 9 .Tur. 
 <>69; 14 L. J. Ex. 292.
 
 § 27a ISSUING THE ORIGINAL EXECUTION. 90 
 
 not be urged against it by any person nor for any pui- 
 pose.^^* 
 
 Independently of any express limitation upon tlie 
 time within which execution may be issued, the qujes- 
 tion must occasionally be presented, whether there is 
 not an implied limitation arising from the operation 
 against the judgment of the statute of limitalions; and 
 this, whether the right to execution has become dor- 
 mant by the failure to prosecute scire facijis or such 
 other proceedings as may be prescribed by Hk- statute 
 of the state wherein the question is presented for con- 
 rideration. The consideration of this topic will be re- 
 served for the section succeeding this. 
 
 § 27 a. Executions Issued on Motion without Scire 
 Facias. — in many of the states the remedy by scire fa- 
 cias is no longer employed; but after the lapse of a 
 time designated in the statute, an execution can issue 
 only upon order of the court, granted on motion, on 
 proof that the judgment remains unsatisfied. These 
 statutes are, many of them, limitations upon ihe time 
 within which execution may issue. If the plaintiff does 
 not bring himself within their provisions, his right to 
 execution is irrevocably lost. In California, by section 
 681 of its Code of Civil Trocedure, the plaintiff is given 
 an absolut(^ right to execution at any time within five 
 years after the entry of his judgment, and by section 
 685 of the same code, in all cases judgment may be en- 
 forced or carried into execution after the lapse of five 
 years from date of its entry, by leave of the court upon 
 motion or by judgment for that purpose founded 
 upon supplemental pleadings, except that proceedings 
 
 2i« Cooper V. Norton. 16 I.. .T. Q. B. ?,CA; IIowoll v. Stratton. 2 
 Smith, m: Mor-nn v. r.nrcioss, 1 DowL, N. S., 850; Morris v. Jones.. 
 8 Dowl. & It. 003; 2 Barn. & C. 242.
 
 91 ISSUING THE ORIGINAL EXECUTION. § 27 i 
 
 under this secdoii cannot revive a judgment for tin* 
 recovery of nion<'y which has been barred by the 
 statute of limitations. Under this section, the ques- 
 tion arises wliether a judgment directing the sale 
 of property, but not imposing a personal liability 
 on any one, is a judgment "other than for the re- 
 covery of money.'- This section, in our opinion, di- 
 vides judgments into two great classes: 1. Those the 
 object or result of which is the recovery of money; 
 and 2. Those the object or result of which Is to re- 
 cover sometliing other than money. In the first class, 
 execution cannot issue after five years. The object of 
 an action to obtain the sale of property is to compel 
 the payment of a debt or charge. The plaintiff's claim 
 can at any time be satisfied by the payment of money. 
 He is not entitled to recover possession of any sp cifi • 
 property or thing; but only to obtain or recover money. 
 It is true that in seeking compulsory payment he may 
 be confined to certain designated property, but still 
 the thing sought and granted is none the less the re- 
 covery of money, and nothing but money, and th ' 
 judgment resulting is therefore one for the recovery of 
 money. The views Ave have expressed seem in har- 
 mony with those avoAved by Professor Pomeroy, at 
 section H2 of his work on equity jurisprudence. In 
 treating of equitable remedies, he names as the sev- 
 enth, "remedies of pecuniary compensation, or thise in 
 which the relief consists in the award of a sum of 
 money"; and describing these remedies of pecuniary 
 compensation, he says: "These remedies, whose final 
 object is the recovery of money, are of tlire ' distinct 
 species, which differ considerably in tin ir external 
 form and incidents, but agree in their substance, ii) the 
 intrinsic nature of the final relief.'' He then mentions
 
 § -7a ISSUING THE ORIGINAL EXECUTION. 92 
 
 as one of these species the case "in which the relief is 
 not a general pecuniary judgment, but is a decree of 
 money to be obtained and paid out of some particular 
 fund or funds." He admits that, on the first view, a 
 judgment of this class may appear to be something 
 more than a mere money judgment; but adds that "a 
 closer view shows that the real remedy, the final object 
 of the iH'Oceeding, is the pecuniary recovery. Among 
 the familiar examples of this species is the suit to fore- 
 close a mortgage of laud, common throughout the 
 United States, hj the sale of the mortgaged premises." 
 It is now settled in this state that an order of sale, or 
 other execution for the enforcement of a lien on real or 
 personal property, though not connected with any per- 
 sonal liability on the part of the defendant, cannot 
 issue after five years from the entry of the judgment; 
 that if the court should inadvertently or erroneously 
 direct such writ to issue, fts erder and all proceedings 
 taken under the writ should be vacated on motion, and, 
 if such order is not vacated by the court entering it, it 
 may be set aside upon certiorari.^'** If pi^mitted to 
 stand upon the records of the court, it is doubtless void 
 and incapable of imparting any validity to proceedings 
 taken under it. 
 
 In the other states in which the right to issue exe- 
 cution after a certain time is granted by statute, it 
 generally depends not upon the chaiacter of the judg- 
 ment, but upon the fact of its remaining nnsatistied.^^** 
 
 Tho motion or other proceeding for leave to issue 
 execution should be prc^sented to the court wherein the 
 
 219 Borland v. Hanson. 81 Cal. 202, 1.' Am. St. Rop. 44; .Taoks r. 
 .Tohnston. 86 Cal. 384. 21 Am. St. Kep, 50; Cortez v. Superior Court, 
 St5 Cal. 274. 21 Am. St. Hep. 37. 
 
 220 Keeves v. riough, 46 Ind. 350.
 
 yj ISSUING THE ORIGINAL EXECUTION. § 27a. 
 
 jiKlgracnt was entered.-^^ The statutes imply that the 
 order for the writ is not a matter of course, but should 
 bo preceded by some inquiry as to the propriety of is- 
 suing- the writ. It is obvious, therefore, that the appli- 
 cation should not be treated as an ex parte proceed- 
 ing, and that the applicant should be required to give 
 notice of his motion to the parties apparently inter- 
 ested in resisting it, and that they should be awarded a 
 hearing, and afforded an opportunity to establish by 
 competent evidence any facts tending to show that the 
 judgment ought not to be enforced.^-- The motion 
 should be presented to the court for decision within 
 the time in which by statute the court is entitled to 
 grant the relief sought. It is not suflicient that notice 
 be given within that time of an intention to apply for 
 such relief at a later period.^-"^ 
 
 Though at the rendition of a judgment the time 
 within which execution may issue thereon is not lim- 
 ited, it may subsequently be limited by the legislature, 
 or a pre-existing limitation may be shortened. Stat- 
 utes of this character, provided they do not deprive the 
 plaintiff of a reasonable time within which to enforce 
 his judgment, relate to the remedy, and hence are con- 
 stitutional, though they somewhat restrict or abridge 
 it.^"* 
 
 Whether a w^rit issued without leave, w^here leave for 
 its issuing should have first been obtained in the mode 
 designated in these statutes, is void or voidable only, 
 is a question still involved in doubt and conflicting ju- 
 dicial opinion. On the one hand, it is insisted that as 
 
 221 Thompson v. Tarken 83 Ind. 9G; Couuor v. ^'off, 2 Ind. App. 
 364. 
 
 222 rursel V. Deal. 16 Or. 29'). 
 
 223 Peters v. Ya\vter, 10 Mont. 201. 
 
 224 Leonard v. Boiigbtou. 120 Ind. nOG. 10 Am. St. Rep. 347.
 
 ^ 27a ISSUING THE ORIGINAL EXECUTION. 94 
 
 the statute declares that the writ shall not issue unless 
 it is shown to the court that the judgment remains un- 
 satisfied, the authorization of such issuing is a judicial 
 act, there is no more foundation on which to rest the 
 writ than if no original judgment had been entered; ^^ 
 on the other, the existence of the original judgment is 
 regarded as sufficient to support the writ, and the ab- 
 sence of the order granting leave is treated as a mere 
 irregularity justifying the vacating of the writ, but not 
 destroying or limiting its force while it remains unva- 
 cated.^'^ If an execution issues at a time when both 
 tlie time within which execution could originally issue 
 and within which the judgment could be revived have 
 elapsed, it is obviously void because there can then be 
 no circumstance in which it could be directed to is- 
 sue.'""^ 
 
 Sometimes there is an apparent conflict between dif- 
 ferent parts of a state statute relating to this subject, 
 one part giving the right to issue execution without 
 imposing any limit of time, and another part limiting 
 the time within which an action could be brought on 
 a judgment, and thereby implying that after such time 
 it is functus officio. In :N>w York, it is said that the 
 limitation of tlie remedy by action does not imply any 
 limitation of tlie remedy by execution, and therefore 
 that an execution may properly issue to enforce a judg- 
 
 2-.-, Rollins V. :M(Tntire. 87 Mo. 400; State v. McArtliur. 5 Kan. 
 2S0; Ilalsey v. Van Vliot, 27 Kan. 474. 
 
 2^B Sandlin v. Anderson, 7G Ala. 403; Mariner v. Coon, IG Wis. 400; 
 :Martin v. Prather, 82 Intl. 535; Lawrence v. Gramblins, 13 S. C. 
 120; Bank of Gonosee v. Spencer, 18 N. Y. 154; Wlnobrener v. John- 
 son, 7 Abb. rr., X. S., 205. 
 
 ^27 George v. Miildough, G2 Mo. 549; Lyon v. Russ, 84 N. C. .588; 
 'J'rammell v. Anderson, 52 Ark. 176; Dorland v. Hanson, SI Cal. 202. 
 15 Am. St. Kep. 44; Cortez V. San Francisco Super. Ct. SG Cal. 274, 
 21 Am. St. Hep. 37.
 
 Dj ISSUING Tin: oUK.IXAL EXECUTION. § JTa 
 
 iiicnl on all actions wliicli are barrutl by the statute of 
 liinitatimis.'-'^ This ])ositiou seems logically sound. 
 Nevertheless, we believe it at variance witii the gen 
 '•ral current of aut hority."'* The majority of the cases 
 ireat the statute ol' liiiiiial ions as a practical extin- 
 liuislinifiii of 1 he judgnicnl ; and in one case it has b;'cn 
 held that the issuing of an execution after the statute 
 <»f limitations had become operative could not be sus- 
 tained, <vcn by showing that the defendant had made 
 a new i»romise under which an action on the judgment 
 could be successfully prosecuted. ^■'•*^ 
 
 A writ may rightfully issue and a levy be made 
 1 liereumler before the judgment is within the operation 
 of the statute of limitations, and the question may then 
 arise whether such levy can be made productive by a 
 sale after the judgment has, by lapse of time, fallen 
 within the statute. AVhen a judgment is a lien, it is 
 generally conceded that a sale made after the expira- 
 tion of the lien is dei)rived of its benefit irrespective of 
 the time when the writ was issued or the levy made. 
 The same reasoning upon which this rule is based 
 seems e<iually valid when applied to a sale under exe- 
 . ution made after the judgment wa?^ bair .d by the 
 statute though the writ issued before that time. The 
 only decision, however, coming Avithin our observation 
 involving this question affirms that "when proceedings 
 
 228Tviiic.ai.l V. rufhardson. 2.'. Hun. 237: Abb. N. C. Sir,: W.Uter- 
 !uire V. Westovor, 14 N. Y. 17: Herder v. Collyer. 22 Abb. N. C. 461; 
 .b.hnson V. Albany etc. Co., 54 N. Y. 41G; Townsend v. Tolhurst, 57 
 
 \\\m. 40. 
 
 22D .Jerome v. Williams, 13 Mich. 521; People v. Wnyno County. 
 *.7 Mich. 287: McDonald v. Dickson, 85 N. C. 24S: McCJrcw v. Ren- 
 <(.ns, 3 Ivi'a, 4S5; Peters v. Yawter, 10 Mont, 261; Thomson v. Bever- 
 i(1-e, 3 MacUey, 170; Ludeman v. Uirth. 9G Mich. 17, 35 Am. St. 
 Kop. 58S: Merchants' N. P.. v. Braithwaite, 7 N. D. 35S, GO Am. St. 
 K.'p. 0.53. 
 
 230 Caiiuuu V. Laman, 7 I^'a, 513.
 
 § .:7b ISSUING THE ORIGINAL EXECUTION. 96: 
 
 authorized b}- law to enforce a lien are instituted be- 
 fore the right to execution upon a judgment is barred^ 
 thej are valid, and a sale in pursuance thereof regu- 
 lar," though such sale is not made until the judgment 
 has become barred.^^*^ 
 
 § 27 b. Leave of the Court, When Discretionary.— In 
 some of the states the right to execution is made abso- 
 lute for a designated period, after which the statute de- 
 clares that execution on the classes of judgments there- 
 in named may be issued upon leave of the court. These 
 statutes are silent respecting the grounds upon which 
 such leave should be granted or refused. This omis- 
 sion on the part of the legislature has been inade- 
 quately supplied by the decisions of the courts up to 
 this time. At the common law a plaintiff had an abso- 
 lute right to revive a judgment by scire facias within 
 a designated time, but after that time the right was 
 not absolute, and leave of the court was necessary, and 
 it was said that the court had a discretion to deny leave 
 or riot.^^^ This general rule has been thought appli- 
 cable to statutes making the right to execution depend- 
 ent upon the leave of the court. Thus, in New York, 
 when leave to issue a writ of possession was sought,, 
 the court, after considering the statute, said: ''The 
 conclusion seems to be clear that the granting of an ap- 
 plication for leave to issue an execution or a writ of 
 possession in such a case as this is one r( sting wholly 
 in the discretion of the court. If a proper case is made 
 out. the court has power to grant it, and doubtless^ 
 would do so. While we cannot agree with the opinon 
 of the general term, that th<^ ap]»li(ation is barred by 
 the laps(^ of twenty years, its order is silent as to the 
 
 231 Luflemnn v. Iliitli. 'M', Midi. 17. 3.' Am. St. Rep. 5SS. 
 
 232 Bank of New York v. Eden, 17 Johns. 105.
 
 97 ISSUING THE ORIGINAL EXICt UTIOX. § -JTb 
 
 question of power, and we must hold it to have been 
 discretionary, and therefore not reviewable by us," '"'^'* 
 In California leave was sought to issue an execution 
 upon a judjjfment foreclosing a lien. Leave was denied. 
 In sustaining the action of the trial court the appellate 
 court said: "Aside from authority, it seems to us mani- 
 festly politic, at least in actions where title to real 
 property is involved, that the court should not be 
 bound to allow the enforcement of the judgment, after 
 lapse of five years; otherwise the judgment becomes a 
 perpetual incumbrance by mere neglect of the owner 
 thereof to execute it. We think, therefore, that the 
 provision of said section 685 that 'the judgment may be 
 enforced by leave of the court' is permissive as regards 
 the power given to the court in actions like the pres- 
 ent, and that the court must determine in the exercise 
 of a sound discretion whether the dormant judgment 
 shall be enforced." ^'^^ While these decisions estab- 
 lish that the issuing of execution in the class of cases 
 referred to is within the discretion of the court, they 
 utterly fail to disclose the limits of such discretion or 
 the grounds which should control its exercise. We are 
 unable to believe that the discretion is an arbitrary 
 one, dominated by the caprice of the judge from whom 
 leave is sought, or that his action is wholly beyond the 
 review of the appellate courts. In neither of the cases 
 cited does any special reason appear to have been urged 
 either for granting or refusing the leave sought. In 
 both it was clear that a judgment existed, and that it 
 had not been satisfied, and in neither was any reason 
 disclosed for not having sought satisfaction at an ear- 
 lier date. If we may draw any inference from these de- 
 
 233 Van Rensselaer v. Wri'j:lit. 121 X. Y. c^O. 
 
 234 Wheeler v. Eldred, 121 Cal. 28, GU Am. St. Rep. 20. 
 
 Vol.. 1.-7
 
 § es ISSUING THE ORIGINAL EXECUTION. 98 
 
 cisions, other than that the question is within the dis- 
 cretion of the trial court, it is this: that whore no rea- 
 son is shown for not having taken out execution dur- 
 ing the time within which the plaintiff had Hn absolute 
 right thereto, the court may, without any abuse of its 
 discretion, refuse the leave asked. 
 
 § 28. Computing the Time within which an Execution 
 may Issue. — The subject of the computation of time 
 within which a writ of execution may issue may be con- 
 sidered, first with reference to the common-law rule 
 requiring the issuing of the writ within a year and a 
 day after the entry of the judgment, and, second, with 
 respect to statutes which have, in the United States, 
 supplanted that rule. Prima facie the time should 
 be computed by commencing with and including the 
 day on which the judgment is entered, unless there is 
 some statute giving the party the benefit of the exclu- 
 sion of that day,^^ but if for some reason the plaintiff 
 is not entitled to execution at the time the judgment is 
 entered, the computation should commence with thd 
 day on which he first becomes so entitled. ^•**' After 
 the right to execution has existed it may be suspended 
 by stays granted by the court in which it is entered, or 
 by the act or agreement of the parties, or by orders or 
 writs issued in other suits, whereby the party in inter- 
 est is precluded from further action, and then the ques- 
 tion must inevitably arise as to whether the time when 
 his right to execution has been thus suspended is to 
 be included within the computation of the time in 
 which he is entitled to the writ. There is no doubt 
 
 235Aultman & Co. v. Syme, 91 Hun, G32; Carvin v. Garvin, 34 
 
 S. C. 388. 
 
 236McMann v. Superior Court, 14 Cal. lOG; Kupfrr v. Frank, 30 
 Hun, 74; Aultman v. Syme, 87 Hun. 295.
 
 99 ISSUING THE ORIOINAL EXECUTION. § 23 
 
 that, at the common law, the time in which the writ 
 was stayed by a writ of error or aj;rccmeut of the par- 
 ties was excluded from the computation,-"^'' and so was 
 the time during which the failure to take out execution 
 was occasioned by the act or fault of the defendant.^^** 
 In the United States the authorities are divided upon 
 the question whether the time in which execution may 
 issue is extended either by a stay of proceed inf>s, or by 
 any other act of the defendant. In North Carolina, the 
 common-law practice prevails, and the defendant can- 
 not complain of a delay occasioned by his agreement. 
 If he procures a stay, the execution may issue within 
 a year and a day after such stay expires.^"'^ The same 
 rule applies in Kentucky where any definite stay has 
 been agreed upon,-"*" or when any judgment or decree 
 is suspended in its operation until some further day 
 after its entry.-'*^ The rule has also been frequently 
 applied in the CTnited States, where the delay was occa- 
 sioned by an injunction."'*^ In truth, we believe there 
 is no dissent in the United States from the proposition 
 that the time in which the right to execution is sus- 
 pended by any stay thereof to which the defendant as- 
 sented, or from which the plaintiff could not escape, is 
 
 237 Rock Island N. B. v. Thompson, 173 111. 593, G4 Am. St. Rep. 
 137; 1 Bac. Abr., tit. Execution, H; Bellasis v. Hanford, Cro. Jac. 
 :;04; Booth v. Booth. 6 Mod. 2SS; Cromwell v. Andrews, Yel. 7; 
 Layton v. Garnon, 5 Coke, 8S; Watkins v. Haydon, 3 W. Black. 762; 
 Iliscocks V. Ki'mp. 3 Ad. & E. G76. 
 
 2 !s Mitchol V. Cue, 2 Burr. 6G0; Bosworth v. Phillips, 2 W. Black. 
 784; Bland v. Darley, 3 Term Rop. 530. 
 
 250 Wood V. r.agley, 12 I rod. 87. 
 
 240 Nicholson v. Ilowsley, Litt. Sol. Cas. 300; Pollard v. Pollard, 
 4 T. B. Mon. 3G0. 
 
 2u Long V. Morton, 2 A. K. Marsh. 40. 
 
 2^2 Gibbes v. Mitchell, 2 Bay, 120; United States v. Ilanford. 19 
 * .Johns. 173; Noland v. Seekritrht. 6 Munf. 18."); Smith v. Charlton. 7 
 <lratt. 447; Eppes v. Randolph. 2 Call. 181!; Hutsoupillcr v. Siovcr, 
 12 Gratt. 582; Peunock v. Hart, 8 Serg. & R. 376.
 
 § 2S ISSUING TUE ORIGINAL EXECUTION. lOO 
 
 not to be included within the computation of time with- 
 in which the writ may rightly issue, where its issuing 
 is still controlled by the common-law rules; ^^^ and 
 that those cases in which the time in which the plain- 
 tiff's writ was suspended has nevertheless been in- 
 cluded in the computation against him were founded 
 upon statutory provisions Avhich, whether correctly or 
 not, the court construed as prohibiting it from exclud- 
 ing the time of such suspension from the computation. 
 There have been instances in which the plaintiff has^ 
 been permitted to proceed where no stay in fact ex- 
 isted, but where he had good reason for supposing it to 
 exist. In Texas a statute x>urported to suspend the 
 right to execution, but it was finally declared to be un- 
 constitutional and void. But many judgment creditors 
 had, before this decision was reached, respected the 
 law, and neglected to take out execution. In fact, it 
 was impossible to obtain execution, because no clerk 
 of any court would issue it. When the question subsiv 
 quently arose whether the time during which this law 
 was supposed to be valid should be computed against 
 the plaintiff in determining whether his judgment had 
 become dormant, the supreme court said : ''He was not 
 bound to disregard this law at his peril, though it was 
 afterward held to be unconstitutional, and it is in- 
 sisted that until so held none lost their rights by ob- 
 serving it as a rule of action. It is within the knowl- 
 edge of all that, until the decision in the case of Jones 
 V. McMahan, parties could not procure executions — the 
 clerks would not issue them; and we presume that such 
 a construction will not now be put upon the law as 
 
 243 Tvock Island N. B. v. Thompson, ll'.i 111. rjO.3. 04 Am. St. Rep. 
 137; Prrston v, Breckinridge, 8G Ky. G19; TJnite^l States v. Ilau- 
 ford, 19 .Tohns. 173; Dunlop v. Spocr, 3 Binn. 169; Porter v. Vaughn, 
 24 Vt. 211; Hutsonpiiler's Ad. v. Stover's Ad., 12 Gratt. 579.
 
 101 ISSUING THE ORIGINAL EXECUIION. § 23 
 
 would have compelled every judgment creditor in the 
 state to resort to a maudamus against the clerk, or hjse 
 liis right to an execution on his judgment.'' ^^* 
 
 The courts of California have taken the extreme, 
 and, as it appears to us, unreasonable, view that the 
 language of the statute in that state designating the 
 time within which execution might issue was so strin- 
 gent as to include within the computation all the time 
 after the entry of the judgment, although during some 
 part thereof the plaintiff was prevented from exercis- 
 ing his right without any fault on his part. The stat- 
 utes of that state declare, in general terms, that the 
 party in whose favor a judgment is given may at any 
 time within five years jifter its entry have a writ of exe- 
 cution issued for its enforcement. In the first case 
 calling for a construction of this statute, it ap])eared 
 that an order was made by the court in which judg- 
 ment was entered staying all executions thereon per- 
 petually, with leave to the plaintiff to move the court 
 to vacate the order. Some five years later notice was 
 given of a motion for an order vacating the order be- 
 fore given slaying the execution. It was contende|d, 
 irrespective of the right of the plaintiff to have the 
 order staying execution vacated, that his right to exe- 
 cution had in the meantime expired by lapse of time, 
 and this was certainly true if the time during which 
 his writ was stayed was to be included within the com- 
 putation. The court was of opinion that there was 
 nothing in the statute or the practice act of the state 
 "to the effect that the time during whicli the plaintiff 
 is stayed from issuing execution shall not constitute a 
 part of the five years to which he is limited by the stat- 
 s'** Phillips V. Tves5;er. 32 Tox. Tr.O. followed in Sessuius v. Botts, 
 2i Tex. 335; Cravaus v. Wilsou, 3o Tex. o2.
 
 ? 23 ISSUING THE ORIGINAL EXECUTION. 102 
 
 utc." ^^'^ The subsequent decisions of the state have 
 continued in harmony with this early decision.-*® The 
 rule was applied when the issuing of an execution had 
 been prevented by an injunction restraining the judg- 
 ment creditor, and it was held that an order, made 
 after such injunction had been dissolved, but more 
 than five years after the entry of the judgment, author- 
 izing the plaintiff to issue execution tlii'r( on, was void, 
 and that the writ and other proceedings based thereon 
 were invalid.^*' The courts in California have applied 
 their decision to cases in which the plaintiff was not 
 entitled to an execution against the property of the 
 judgment until some time after the entry of his judg- 
 ment. By the statutes of this state, if a debt is secured 
 by a mortgage, there can be but one action to compel 
 its payment, which must be for the foreclosure of the 
 mortgage. The judgment must first direct the sale of 
 the mortgaged property and the application of the pro- 
 ceeds of the sale to the satisfaction of the judgment, 
 after w^hich, if a deficiency still remains, the plaintiff 
 is entitled to an execution therefor. It has, neverthe- 
 less, been lield that the time for the issuing of this exe- 
 cution must be computed from the date of the entry of 
 the judgment and not from the date when the plaintiff 
 first became entitled to an execution for the deficiency 
 arising after the foreclosure sale.^^* Where, however, 
 a judgment is payable in installments, as where a hus- 
 band is by a decree of divorce directed to make pay- 
 ment monthly to his wife of a sum awarded her as ali- 
 
 245 Solomon v. Maguiro, 29 Cal. 236. 
 
 246 Dorland v. Hanson, 81 Cal. 202. 15 Am. St. Rop. 44; Cortez v. 
 Superior Court, 8B Cal. 274, 21 Am. St. Rep. 37. 
 
 247 Buell V. Buell, 92 Cal. 393. 
 
 24.S Bowers v. Crary, 30 Cal. 623; Stout v. Macj-, 22 Cal. G19; con- 
 tra, Cupfer V. Frank, 65 How. Pr. 390.
 
 103 IS8U1XU THE ORKilNAL KXKCUTiOX. § 2S 
 
 monv, tlio n\nht to execution for oacli instullincnt must 
 be regarded as eommeucing only when it falls due,. and 
 the execution may issue thereafter though within more 
 than five years from the entiy of the judgment.^'*" 
 
 We have already intimated our convietion that the 
 construction given by the courts of California to the 
 statutes of their state limiting the time within which 
 execution can issue is unreasonable, and we believe it 
 is not in harmony with decisions in other states under 
 statutes of similar import. When the question arose 
 in ^Minnesota under a statute very similar to that of 
 ralifornia, the court said : ''It would be unrea,sonable 
 and inconsist<^nt for the lawto present to a party. in one 
 hand, a command to do an act within a certain time, 
 under the penalty of losing his rights, and with the 
 other hand restrain him from doing the act." Hence 
 the court held that the time during which a judgment 
 creditor was enjoined by the court from enforcing his 
 judgment by execution should be excluded from the 
 computation of the five years after the entry of judg- 
 ment allowed for the enforcement thereof by this 
 writ."^*^ In New York we understand it to be held 
 that ''the provision of the code limiting the time within 
 which execution may issue, as of course to five years, 
 applies only to a case where the right to issue has con- 
 tinued during that time." ^^^ Hence if a judgment be 
 reversed by the supreme court, and subsequently af- 
 firmed by the court of appeals, the intermediate time 
 must be excluded in computing the time within which 
 execution may issue.'"'^ 
 
 249r,;iRtoii V. r.as1(Hi, 114 Ci\\. r.42. "i Am. St. Twcp. SG. 
 ^-'O Wakotiolil v. Brown, 38 Minu. oCl, 8 Am. St. Kop. tlTl. 
 
 251 T'lKkM-wodd V. (Jrcen. 10 Alb. L. .T. 340; soo L.vrlo v. Cincinnati 
 Mfg. Co., 4 Ohio. 4."!); Welsh v. Childs. IT Ohio St. ;;i'J. 
 
 252 Underwood v. Green, 5G N. Y. 247.
 
 § 29 ISSUING THE ORIGINAL EXECUTION. 104 
 
 ? 29. Validity of Executions on Dormant Judg- 
 ments. — Tlio consiMiiU'iiees of issuiug an execution after 
 a year and a day are tlie same as the consequences of a 
 premature issue. The writ is voidabh% but not void. 
 The defendant may take proceedings to have it set 
 aside. If he cliooses to interpose no objection to the 
 irregularit}', others cannot do so for him. Even he 
 cannot attack it collaterally; and a levy and sale made 
 under it are sufficient to transfer his title.^^" The 
 decisions made under the Englisli statute requiring the 
 original execution to issue within a year and a day 
 seem to bo equally applicable to cases where execu- 
 tions have issued at too late a day under American 
 statutes. Still there are American courts which have 
 declared executions issued in the absence of an order 
 of court void.'^* These decisions are, however, in the 
 main based on a misconception of the rules generally 
 applied at common law to executions issued on dor- 
 mant judgments in the absence of their revivor by scire 
 
 253 Ripley V. Ai-leclge, 94 N. C. 4G7; Brevard v. .Tones, 50 Ala. 221; 
 Morgan v. Evans, 72 111. GSG, 22 Am. Rep. 154; Tierce v. Alsop, 3 
 Barb. Ch. 184; Mitchell v. Evans, 5 How. (Miss.) 548, 37 Am. Dec. 
 169; Brown v. Long, 1 Ired. 190, 30 Am. Dec. 43; Ingram v. Belk, 2 
 Strob. 208, 47 Am. Dec. 591; Mosely v. Edwards, 2 Fla. 440; Over- 
 ton V. Perkins. Mart. & Y. 3(37; Simmons v. Wood, 6 Yerg. 521; 
 Jackson v. Bnrtlell. 8 .Tohns. 364; Willard v. AVliipple, 40 Vt. 219; 
 Beale v. Botetourt, 10 Gratt. 281; Doe v. Harter, 1 Cart. 431; Oxley 
 V. Mizle, 3 Mnrpli. 2.50; Weaver v. Cryer, 1 Dev. 337; Porti.s v. 
 Parker, 22 Tex. 707; Andrews v. Richardson, 21 Tex. 287; Hancock 
 V. Metz, 15 Tex. 205; Sydnor v. Roberts, 13 Tex. 598, G5 Am. Dec. 
 .S4; Boggess v. Howard, 40 Tex. 153; Vastine v. Fury, 2 Serg. & R. 
 426; Reynolds v. Corp, 3 Caines, 271; I'atrick v. Johnson, 3 Lev. 
 403; Woodcock v. Bennett, 1 Cow. 711, 13 Am. Dec. 568; Ontario 
 Bank v. Hallett, 8 Cow. 192; Howard v. Pitt, 1 Salk. 2(>1; Dawson v. 
 Shepherd, 4 Dev. 497; Delisle v. Dewitt, 18 U. C. Q. B. 155; Harris 
 V. Cornell, 7 Chic. L. N. 345; Richards v. Allen, 3 K. D. Smith, 399; 
 Elliott V. Knott, 14 Md. 121; State v. Morgan, 7 Ired. 387, 47 Am. 
 Dec. 329; Hill v. Newman, 67 Tex. 263. 
 
 254 Rollins V. Mclntyrc, 87 Mo. 496.
 
 IOj issuing the OKKilNAL FXKrUTIOX. §29 
 
 facias.-"'""' The statutes of Wisfonsin and New York 
 provide that, after a period of time therein specified, 
 execution sliall issue only upon motion, and by leave of 
 the court. In both states, executions issued without 
 leave of the court have been sustained.-'*'^ The reason- 
 
 255 See § 28 a. 
 
 250 Selsby v. Kedlon, 19 Wis. 17; Jonos v. Davi.s. 22 Wis. 421, and 
 24 Wis. 229. The following is the full opinion of the supreme court 
 of WLsconsiu on this subji'ct, given in Mariner v. Coon, 10 Wis. 
 408: "The question presented hy this case is. whether an execution 
 issued upon a dormant judgment, without leave of court, is void, 
 or only voidable. If void, no sale can be made under it. and the 
 purchaser acquires no title. But if voidable, the sale may be valid, 
 notwithstanding the omission to obtain leave. We are of opinion 
 that such an execution is merely voidable, and therefore that no 
 advantage can be taken of the irregularity, except in a direct pro- 
 ceeding to set it aside. 
 
 "The rule at common law is well known. If the plaintiff failed 
 to take out execution witliiu a year and a day, extended, in many 
 of the states, by statute, to two years from the time the judgment 
 became hnal, it could not be regularly issued thereafter without re- 
 viving the judgment bj' scire facias. The rule was founded upon 
 a. presumption that the judgment had been satisfipd, which drove 
 the plaintiff to a new proceeding to show that it had not; and yet 
 It was invariably held that an execution taken out after that time, 
 and without siire facias or judgment of revivor, was not null, but 
 simply irregular. The defendant might, if he desired, interpose 
 and set it aside upon motion; but if he neglected to do so, it was 
 ■considered an implied admission that the judgment was still in full 
 force. He might waive the irregularity, and thus avoid the expense 
 of a scire facias. See Irwin's Lessee v. Dundas, 4 How. 79; and 
 Doe V. Ilarter, 2 Cart. 252, and the cases cited. 
 
 "But the code (sections 192 and 193 of the original act, now sec- 
 tions 1 and 2 of chapter 134, Ilevised Statutist prescrilies a different 
 practice, and it is upon tliis that the counsel for the defendants 
 chiefly relies. When tlie execution in controversy was issued, the 
 period was fixed at two years from the entry of judgment. It is 
 now enlarged to five. (Laws ISGl, chap. 140.) After that period 
 lias elapsed, it is provided that 'an execution can be issued only by 
 the leave of the court, upon motion,' etc. This language is said t > 
 take away all power, except it be acquired in the manner prescribed, 
 and to render every process issued in contravention of it void for 
 want of jurisdiction. Were we to supiiose tlie legislature to be 
 speaking with reference to the question of power, then there is
 
 § 29 ISSUING THE ORIGINAL EXECUTION. ]0G 
 
 ing Oil which all these decisions, whether made under 
 English or American statutes, rests, is this: the judg- 
 ment, notwithstanding the lapse of the year and a day, 
 or other time designated, is, unless actually satisfied, 
 
 nothing in their hinjruage inconsistent with the position of counsel, 
 and we might adopt his views. But we are not at liberty to act 
 upon this supposition. Upon looking to the previous state of the 
 law, and to other provisions of the act, we see, very clearly, that it 
 was a matter of practice witli which the legislature were dealing, a 
 question as to the form of proceeding which should thenceforth be- 
 pursued, and not one which necessarily affected the jurisdiction in 
 case the new practice was not complied with. By section 331 of 
 the original act (section 1, chapter IGO, Revised Statutes), the writ 
 of scire facias is virtually abolished. The remedies heretofore ob- 
 tainable in that form may be obtained by civil action under the 
 provisions of the code. But by the particular provision of section 
 2, chapter 134, above referred to, the remedy by motion to revive 
 a judgment which has become dormant by lapse of time is substi- 
 tuted. Hence the jjeculiar significance of the word 'only,' upon 
 which the counsel insists so strongly to show a want of jurisdiction. 
 The execution shall be issued only upon motion; otherwise the 
 plaintiff might resort to the remedy by civil action. It appears, 
 therefdre, that the consequences of a departure from the practice- 
 prescribed by statute are the same as they were at common law. 
 It is a simi)le irregularity, which the execution debtor may waive, 
 and which it seems he did do in this case." The view here tal<en 
 by the Wisconsin court is supported by the following opinion of the 
 New York court of appeals: "There was always a time after which 
 a party who had recovered a judgment was not at liberty to sue 
 out execution without an application to the court. Formerly, the 
 time was a year and a day; and the form of obtaining an award of 
 execution, when one had not been issjued in time, was by scire facias 
 quare executionem non. Afterward, it was extended by the Re- 
 vised Statutes to two years. 2 R. S. 36.3, sec. 1. By the code ir 
 was further extended, as we have seen, to five years, and the modc^- 
 of obtaining leave was an application to the court on motion. 
 Under the former practice it was well settled that the execution, if 
 issued too late, was not \oid. Woodcock v. Ucnnet, 1 Cow. 711, 1.3. 
 Am. Dec. 568. It was liable to be set aside on motion, but such 
 motion, like all others, must be made promptly; and if it appeared 
 that the defendant had consented to the execution being issued, or 
 if there were any circumstances which in fairness and equity pn^ 
 eluded him from availing himself of the irregularity, the motion 
 would not i)revail. Morris v. Jones, 2 Barn. & C. 232. There is no- 
 reason why the same practice should not obtain under the code.""
 
 107 ISSUING THE ORIGINAL EXECUTION. § 20 
 
 still in force. From the lapse of time, the presuin])tion 
 may be induloed that a sa(isfacti6u has taken place, 
 or that some reason exists for the iion-issuanee of exe- 
 cution. To give the defendant an opportunity of show- 
 ing- cause against the execution, the plaintilf is re- 
 quired to bring him before the court by scire facias or 
 by motion, and thus give him an occasion to show 
 whether the judgment has been satisfied. But as the 
 power to issue execution still exists, its issuance with- 
 out the scire facias or motion is merely the erroneous 
 exercise of a conceded power, and must, like all other 
 errors, be corrected by some appropriate proceeding; 
 and if not so corrected, must be respected as fully as 
 though free from error.^^'' Statutes providing a time 
 after which no execution may issue interpose an in- 
 superable obstacle to any further proceeding for the 
 enforcement of the judgments subject thereto. If, after 
 the expiration of the time within which a writ may 
 issue, one is in fact issued, the case pre scnted does not 
 involve an irregularity in the exercise of a conceded 
 power, but an absence of such power. If it were 
 within the power of the court to give leave to issue an 
 execution, and one were issued without such leave, and 
 the defi'udant i)ermitted it to be enforced without ob- 
 jection, he might properly be regarded as consenting to 
 its issuing and enforcement without any previous 
 order of the court, but in those cases in wiiich th ri^ is 
 
 Bank of Goncsce v. Spencor, IS N. Y. I.")-!; followed in WiuebreiuT v. 
 Johuson, 7 Abb. Pr., N. S., 205; Union Bank of Troy v. Sixrgeant, 35 
 IIow. Pr. 87, 53 Barb. 422. 
 
 257 Leonard v. Brewer, G Ala. 300; De Loach v. Pvobbins, 102 Ala. 
 288, 48 Am. St. Rep. 4G; Gardner v. Mobile etc. Go.. 102 Ala. GC5. 
 48 Am. St. Jl<^\ 84; Veaj>;er v. Wrifrlit, 112 Ind. 2:',0; Iveon.ard v. 
 Bouirbton. 120 Ind. 536, IG Am. St. Kep- :!1T; Gillespie v. Swiizer, 
 43 Neb. 772; tJereeke v. CiHnpl)ell, 24 Neb. 30G; Eddy v. Cold well, 23 
 Or. 163, 37 Am. St. Rep. G72.
 
 § 29 ISSUING THE ORIGINAL EXECUTION. 108 
 
 no further authority on the part of the court to issue 
 the writ, it must be regarded as absolutely void, 
 whether the court has undertaken to authorize the is- 
 suing or not.-"-"* The statute of limitations may have 
 interposed a bar to the judgment, and have destroyed 
 its vitality. If, in such a case, execution should issue 
 without any order of court, we think, with Mr. Justice 
 Breese, of the supreme court of Illinois, that "it w^ould 
 be absurd to give a fieri facias more vitality than the 
 judgment on which it issued.'' '^'^ 
 
 It necessarily follows from wliat we have already 
 stated that a writ irregularly issued without a revivor, 
 but, where the right to the writ still existed, had 
 proper application been made therefor, is voidable but 
 not void; that an ofificer engaged in obeying its man- 
 dates is protected in so doing,'**'* and furthermore, that 
 he cannot urge such irregularity as an excuse for any 
 nonperformance of duty on his part.^^^ L'rom the gen- 
 eral rule that none but the defendant in the writ can 
 object to any mere irregularity in it^^ issuing,"''^ we 
 should conclude that third persons whose rights are 
 incidentally affected cannot object to the writ because 
 issued upon a dormant judgment without leave of the 
 court and without a proper revivor, where it is appar- 
 ent that such leave must have been granted or such 
 
 25S White V. Clark, 8 Cal. 513; Kerus v. Graves, 2G Cal. 150; Bates 
 V. .Jiinies, 3 Duer. 45; Giveus v. Campbell, 20 Iowa, 79; Dorlaud v. 
 Smith, 93 Cal. 120; .Tacks v. .Johnston. 86 Cal. 384, 21 Am. St. Rep. 
 60; Cortez v. Superior Court, 86 Cal. 274, 21 Am. St. Hep. 37. 
 
 259 Scammon v. Swartwout, 35 111. 344; but see § 27 a; Coward v. 
 Chastain, 99 N. C. 443, 6 Am. St. Rep. 535; Merchants' N. B. v. 
 Braithwalte, 7 N. D. 358, 66 Am. St. Rep. 653. 
 
 260 Hoskins v. Helm, 4 Litt. 309. 14 Am. Dec. 1.^3; Dawson v. 
 Shepherd, 4 Dav. L. 497; State v. Morgan, 7 Ired. 387, 47 Am. Dec. 
 329; CJoshorn v. Alexander, 2 Bond 158. 
 
 261 Cleveland v. Title, 3 Tex. Civ. App. 101. 
 
 262 Mitchell V. Ringle, 151 Ind. 16, 68 Am. St. Rep. 212.
 
 109 ISSUING THE OIlIGINAL EXECUTION. § 30 
 
 revivQF have resulted had apidicatiDn been made th^re- 
 for. It was, indeed, held in an early American case, 
 where sundry creditors claimed moneys in the hands of 
 an officer realized from the property of the defendant 
 in the action, that one of them might object that the 
 execution under which another claimed had been 
 irreiiularly issued after a year and a day from the entry 
 of the judgment and without any revivor thereof.^*'' 
 This decision was clearly erroneous.^*** 
 
 § 30. Validity of Executions on Dormant Judg- 
 ments, as between the Parties.— The authorities cited 
 in the preceding section show that the purchaser under 
 an execution based upon a dormant judgment will be 
 protected. It remains to us to consider the effect of 
 such execution between the parties. In the case of 
 Blanchenay v. lUirt, in the court of queen's bench, the 
 action was for false inii)risonm( nt. The defendant 
 justified the imprisonment under a ca. sa., issued in a 
 suit of liurt V. Blanchenay; and the replication showed 
 the ca. sa. to have been issued after a year and a day, 
 without any revivor by scire facias or otherwise. The 
 defendant was .held to be protect<'d by his writ.^^ 
 
 283 Azt-aiati v. Fitzsinunoiis, 3 Wash. C. C. 134. 
 
 264 Stewart v. Rtocker, 13 Serg. <fc K. 199. l.> Am. Dec. ."SO: Loav- 
 ber iV: Wiliner's Ai)iieal. S \Yntts & S. 3S7. 42 Am. Dec. 302. 
 
 -'fi5 4 Q. B. 707; 3 Gale & D. 613; 7 Jur. 575; 12 L. J. Q. B. 2lil. 
 In this case, Lord Denman, C. J., delivered the judgment of the 
 court. After having shortly stated the pU^idings. and iu particular 
 the objection i-ai.sed by the replication, that the ca. sa. Avas abso- 
 lutely void, having issued on a judgment more than a year old witli- 
 out a sci. fa., his lordship said: "The plaintiff argues that it is ab- 
 solutely void for this fault, relying on the languasre of tills court 
 in Mortimer v. Piggott, 2 Duwl. P. C. U15, in which it was so de- 
 cided. That case, however.did not require the doctrine now called 
 in question; and is actually reported in 4 Ad. & E. 3(33. note d, with- 
 out its being laid down. We are now recjuired to reconsider it, 
 and are satislied that it is in that respect erroneous. The defect
 
 § 30 ISSUING THE ORIGINAL EXECUTION. 110 
 
 The only redress which the defendant has, wh^n exe- 
 cution has improperly issued on a dormant judgment, 
 is by motion to quash such execution. The defendant, 
 if he does not make such motion in a reasonable time, 
 by his delay assents to the irregularity. "The plaintiff 
 is put to a scire facias, that the defendant may have an 
 opportunity of showing that the debt is paid, and, as it 
 is intended for his benefit, he may dispense with the 
 writ, either by express agreement, or by conduct which 
 amounts to a waiver, and this, in fact, is frequently 
 done when the defendant is aware that the debt is not 
 paid or otherwise satisfied. When an irr(^gularity has 
 occurred, it is the duty of the opposite party to take 
 advantage of the defect at the earliest opportunity; 
 otherwise, in consequence of his own laches, he will be 
 decreed to have waived every advantage arising from 
 it. It would be unjust that the defendant should lie 
 by, with a knowledge of an error, and by this means 
 delay his adversary, and expose him to unnecessary 
 trouble and expense. Courts are desirous, or should 
 be, of enforcing fair dealing, and preventing trick and 
 chicanery, which are the disgrace of the law. Hence 
 the rule is, that the party must seize the earliest oppor- 
 tunity of suggesting the error, otherwise it is consid- 
 ered as waived." '*'** While we believe it to follow, 
 from the lat(^st and best considered cases, that an exe- 
 cution issued after a year and a day is, until set aside, 
 
 amounts to an irregularity, of which the opposite party misht take 
 advantage by writ of error; or, on application to the court, the 
 writ of ca. sa. might be set aside; but it is not a mere nullity." 
 See, also, Reynolds v. Corp. 3 Caines, 271; INIartin v. Kidge, Barnes, 
 206- Woodcock v. Bennet, 1 Cow. 737, 13 Am. Dec. 5G8;' Jackson v. 
 De Lanoy, 13 .Tolins. 550. 7 Am. Dec. 403; Doe v. Dutton, 2 Cart. 
 312, .52 Am. Dec. 510; Boggoss v. Hownrd. AO Tex. 153. 
 
 zfi'e Bailey v. Wagoner, 17 Serg. & R. 327; Catlin v. Merchants' 
 Bank, 36 Vt. 572.
 
 Ill ISSUING THE ORIGINAL EXECUTION. § 3i 
 
 valid between the parties to tlie writ, yet tli( re .are not 
 wanting several Anieriean decisions maintaining tliat 
 such writ is so far a nullity that the plaintiff who sued 
 it out can neidici- justify under it nor acquire title 
 through it.-"' It is certain, however, that money paid 
 by a defendant in satisfaction of the writ must be re- 
 garded either as voluntarily paid or as a waiver of the 
 irregularity in its issuing, and hence that he cannot 
 maintain an action against the plaintiff to recover such 
 payment.'"^** 
 
 § 31. Of the Right to Issue Several Writs at the Same 
 Time. — By the common law, the various remedies to en- 
 force the collection of judgments were regarded as 
 cumulative. The mere fact that a ca. sa. had issued 
 was no bar to a fi. fa., nor was the issuing of the lalt< r 
 any bar to the issuing of the former. The plaintiff 
 took out as many writs of different kinds as he thought 
 best, he being ans^werable for any abuse he might make 
 of his process.-**^ ''A fieri facias and a capias ad satis- 
 faciendum may issue, at the same time, against the 
 goods and person of a defendant. So a party, having 
 sued out one writ of execution, may, before it is exe- 
 cuted, abandon that writ, and sue out another of a 
 different sort; or he may have several writs of the same 
 sort running at the same time, in order to take the 
 defendant, or his goods, in diffc rent counties."' -'" The 
 
 207 Waite V. Dolby, 8 Humph. 408; Iloskins v. Helm, 4 Litt. 309, 
 14 Am. Deo. 133; Weaver v. Ciyer, 1 Dev. 338. 
 
 268 Gerecke v. Campbell, 24 Neb. 300. 
 
 269 Trimrose v. Gibson, 2 Dowi. & R. 193, 16 Eng. Com. L. 78; 
 Poutlus V. Nesbit. 40 Pa. St. 309: Commonwealth v. Lel;ir. 13 Pa. 
 St. 22; Davies v. Scott, 2 Miles, 52; Allison v. Rheam, 3 Serg. & R. 
 142, 8 Am. Dec. 044; McNair v. Ragland, 2 Dev. Eq. 42. 22 Am. 
 Dec. 728. 
 
 27oTidd's Pr. 99.'; ^fcNair v. Rairlnnd. 2 Dev. Eq. 42. 22 Am. Dec. 
 T2S; Hammond v. Mather, 2 Cow. 450; Civ. Code of Ala., 18S0, sec. 
 2S8S,
 
 S 31 ISSUING THE ORIGINAL EXECUTION. lir 
 
 right of the plaintiff to have several writs of execution 
 in existence at the same time is dependent upon their 
 necessity to enforce his judgment, or, more accurately 
 speaking, the right cannot be affirmed when the use or 
 existence of two or more writs is clearly unnecessary. 
 He will not be permitted to harass tlu^ defendants^ 
 with nec.'dless writs nor to divide the judgment into 
 parts and issue a writ for each. If a judgment is pay- 
 able in installments, execution may issue for each as it 
 becomes due, or, if several installments are due and 
 unpaid at the same time, all may be included in one 
 writ.-''* If a judgment is for dama'j,es and costs, and 
 the writ issues for damages only before the costs are 
 taxed, the jjlaintiff therebj^ Avaives his right to them.^'^^ 
 If he directs an execution or a levy to be for a sum less 
 than the judgment, he is not entith^d, at a later date,, 
 to another execution for the balance remaining un- 
 paid.-''^ 
 
 There is ordinarily no necessity for the plaintiff to 
 have more than one writ of the same tenor or character 
 in the hands of the same officer, for it is manifest that 
 one writ must be as efficient as many. Hence, it is 
 irregular to issue two or more writs of the same char- 
 acter to the same county or officer, and one of such 
 writs must, if a motion is made to that effect, be 
 quashed; '^^ but, even where the statute expressly pro- 
 hibits the issuing of two executions at the same time, 
 it is probable that a writ issued in violation of the stat- 
 
 2T1 Piatt V. Piatt. 9 Oh. ?,7. 
 
 2"2 Davis V. Foru-uson. 148 Mass. HO.?. 
 
 27.'. People V. Onniidni?o C. P.. 3 Wend. .331. 
 
 274 Heedson v. Dantrerfield. 2 I>a. Ann. 63, 20 Am. Dec. 297; 
 "Waters v. Caton. 1 liar. & ^Ic-II. 407; Mc-Oehe v. Handley. 5 How. 
 (Miss.) 625; Ledyard v. Bnekle, .5 Hill. .^)71; Wright v. Young, 6 Or. 
 87; Adams v. Small wood, 8 .Jones, 258.
 
 113 ISSUING THE ORIGINAL EXECUTION. § .'ila 
 
 ute is irregular merely and not voia.-''* If there is 
 authority for the issuing of a writ to a county other 
 than that in which the judgment was recovered, the 
 remedies to issue the writ to the difTerent counties are 
 concurrent, and hence a writ to each of the counties 
 may properly issue or be in existence at the same 
 time.*'* 
 
 § 31 a. Loss of Right to Issue because of Levy or 
 Other Proceedings Under a Writ Already Issued.— The 
 riglit of the plaintiff to have two or more writs in force 
 at the same time does not involve his right to have two 
 or more satisfactions of the same judgment. Hence, 
 when writs are issued of different characters, he will 
 not be allowed to enforce all of them at once.^'^'^ If 
 one execution is levied on the defendant's property, 
 and under another his person is seized, both cannot 
 stand. In Pennsylvania, the plaintiff, under such cir- 
 cumstances, is allowed to elect which he will aban- 
 don.''^® If, under the English practice, a fieri facias is 
 levied on any property, though entirely insufficient to 
 satisfy the execution, the ca. sa. cannot be served until 
 after the fi. fa. is returned.^'^ "Taking the defendant 
 in execution, like a levy upon sufKcient goods, operates 
 as a suspension of the judgment for the time being. 
 But if there be two or more defendants, the taking of 
 
 276 iNierritt v. Grover, 57 la. 493. 
 
 276 Pond V. Griffin, 1 Ala. 678; Hicks v. Ellis, 6o Mo. 17G; Vege- 
 Inhn V. Smith, 9.5 N. C. 21^4: Elliott v. Elmore, IG Oh. 27. 
 
 2T7:yniler V. rarnell. G Taunt. 370; 2 Marsh. 78: 1 Eng. Com. L. 
 G."8; IIodRklnson v. Walley, 2 Tyrw. 174; Cutler v. Colver. 3 Cow. 
 30; MfGehe v. Ilandley, 5 How. (Miss.) G29: :Miller v. Miller. 25 Me. 
 116; "Windrum v. Tarker, 2 Leigh. 361; Vandever v. Cannon, 2 
 Houst. Del. 172. 
 
 2-8 Young V. Taylor. 2 Binn. 218; Grant v. Potts, 2 Miles, 164. 
 
 279 Hodgkinson v. Walley, 2 Tyrw. 174; 2 Cromp. & J. 8G; 1 Dowl. 
 r. C. 208. 
 
 Vol. I.-8
 
 S 3Ia ISSUINC THE ORIGINAL EXECUTION. 114 
 
 one of them iu execution does not suspend the plain- 
 tiff's right to take the otliers." -"*" Whenever the 
 judgment is suspended, the right to sue out execution 
 must also be suspended. This suspension is not, we 
 think, so absolute as to entirely destroy the power to 
 issue execution. A fl. fa. issued while the defendant 
 is in custody under a ca. sa., though erroneous, is not 
 void.^** The taking out of an elegit authorized the 
 seizing of a moiety of the defendant's lands, to be held 
 until the profits of such moiety should pay the debt. 
 Tlie law presumed that this payment would in time be 
 
 250 Freeman on Judgments, sec. 477, citing Fassett v. Talmage, 
 1.5 Abb. Pr. 205; Bauli of Beloit v. Beale, 7 Bosw. 611; Penn v. Rem- 
 sen, 24 How. Pr. 503. See, also, Sharpe v. Specljenagle, 3 Serg. & 
 K. 46.j; Bowrell v. Zigler, 19 Ohio, 3G6; Rockhlll v. Hanna, 15 How. 
 196; Rogers v. Marshall, 4 Leigli, 432. 
 
 251 Tayloe v. Thomson, 5 Pet. 3G9; .Teanes v. Wilkins, 1 Ves. Sr. 
 195. In the case last cited, Lord Chancellor Hardwicke said: "To 
 avoid the sale and title of the defendant, it must be proved that the 
 li. fa. was void, and conveyed no authority to the sheriff, for it 
 might be irregular; and yet, if sufficient to indemnify the sheriff so 
 ihat he might justify iu an action of trespass, he might convey a 
 good title, notwithstanding the writ might be afterward set aside. 
 It is said that, by law, during the existence of the capias and the 
 person in custody a fi. fa. ought not to be taken out, and certainly 
 it ought not; although, if the defendant dies, the plaintiff may have 
 a new execution, as upon the statute 21 Jac. I.; yet while that con- 
 tinues, resort cannot bo had to any other execution; and the court 
 without putting the party to his audita querela, would (as I appre- 
 hend) set it aside on motion. But yet that fl. fa. was not void, and 
 the sheriff might justify taking this leasehold by that writ; and 
 so may the purchaser under the sheriff, who gains a title; other- 
 wise it would be very hard, if it should be at the peril of purchaser 
 under a fi. fa., whether the proceedings were regular or not; and 
 the law is the same, although the fi. fa. issued in a different county 
 from that wherein the body was taken into custody." But these 
 views have been repudiated in the case of Kennedy v. Duncklee. 1 
 Gray, 70, where it is lield that a fi. fa., issued while defendant is 
 in custody, is in legal effect issued on a satisfied judgment, and that 
 no title can be divested thereby, whether the purchaser has notice 
 or not. This last case is but a reaffirmance of the doctrines of the 
 prior case of King v. Goodwin, IG Mass. G3.
 
 115 ISSUING THE ORIGINAL EXKCUTION. § 32 
 
 accomplisliod, and therefore rej'arded the extending' of 
 any lands under an elegit, however trivial their value, 
 as a satisfaction of the judgment, and therefore as a 
 bar to the riglit to take out any farther execution. It 
 was, at an early day, souk times contended that the 
 mere suing out of an elegit precluded the plaintiff from 
 afterward having any other writ. But it was after- 
 ward well settled that when, "under this writ, execu- 
 tion can only be had of goods, because there are no 
 lands, and such goods are insufficient to satisfy the 
 debt (nihil) being returned as to the lands, a ca. sa. or 
 other writ may then be had after the elegit, for such 
 elegit is, in this case, no more in effect than a fieri 
 facias." "*- 
 
 § 32. Stay of. Execution Other Than by Appellate 
 
 Proceedings. — During the time within which phiintiff 
 is otherwise entitled to execution his right thereto may 
 be suspended or destroyed by what is commonly known 
 as a stay of execution, granted by the court in which 
 the judgment was rendered or by some other court of 
 superior authority, or arising without any formal order 
 of any court as a result of proceedings authorized by 
 statute. These stays of execution may be regarded as 
 of three classes, first, those which are ordered by the 
 court in which the judgment was rendered, but not as 
 the result of any appellate proceedings, and which pro- 
 ceed upon the ground that, for some cause, the execu- 
 tion of the judgment ought to be postponed to some 
 subsequent date, or, perhaps, ought not to take place 
 at all; second, those which are a consequence of, or at- 
 
 282 Bingham on Judgments and Executions, 17G; Foster v. .Tack- 
 son. Hob. OS; Crawley v. Lidgeat, Cro. .Tac. 338; Liuu-nstor v. 
 Fielder, 2 Ixl. Kaym. 1451; Kuowles v. Talmur, Cro. Eliz. 100; Bea- 
 tou V. Peck, 1 Strau-e, 22G.
 
 § 32 ISSUING THE ORIGINAL EXECUTION. IIG 
 
 tend, appellate proceedings; and, third, those which 
 result from statutes grantino; the defendant a further 
 time in which to satisf}- the judgment upon his giving 
 certain security therefor. Each court has such gen- 
 eral control of its process as enables it to act for the 
 prevention of all abuse thereof.^'^^ Hence it may, to 
 prevent the annoyance which might be occasioned by 
 the attempted execution of a void judgment, either 
 stay or arrest the process; ^**^ and may, where it is 
 clear that the judgment ought not to be further en- 
 forced, order a perpetual stay of execution.^^"^ If it 
 appears that proceedings have been instituted which 
 may result in the annulment of the judgment or in 
 granting the defendant a release therefrom, its further 
 execution may be suspended until the result of such 
 proceedings can be known. If proceedings in bank- 
 ruptcy or insolvency have been commenced which may 
 result in the release of the defendant, it is proper to 
 stay execution for a reasonable time to permit him to so 
 far prosecute such proceedings that his release can 
 either be obtained or denied. If an action has been 
 brought upon a judgment from which a writ of error 
 has been prosecuted, and a second judgment has been 
 recovered, execution thereon should be stayed until 
 the first is either reversed or afifirmed; otherwise, the 
 
 283 Eobinson v. Yon, 8 Fla. 350; Sawin v. Mt. Vernon Bank, 2 R. 
 I. 382; Robinson v. Chesseldiue, 4 Seam. 332; Granger v. Craig, 85^ 
 N. Y. 620. 
 
 284 Sanchez v. Carriaga, 31 Cal. 170; Ketchum v. Crippen, 37 Cal. 
 223; Murdoclv v. De Vries, 37 Cal. 527; Logan v. Hillegass, 16 Cal. 
 201; Kramer v. Holster, 55 Miss. 243; Re Kreiss. 96 Cal. 617. 
 
 2*^5 Kceler v. King, 1 Barb. 3J)0; Rutlanii v. Pippin. 7 Ala. 469; 
 Lansing v. Orcott, 16 Johns. 4; Welsh v. Tittswortli, 22 Hoav. Tr. 
 475; Baker v. Taylor, 1 Cow. 165; Palmer v. Hutchins, 1 Cow. 42; 
 Davis V. Tiffany, 1 Hill, 643; Harrison v. Soles. 6 Pa. St. 303; Marsh 
 V. Haywood, 6 Ilnmph. 210; Smith v. Page, 15 Jolins. 395; Monroe v. 
 Upt uu, 50 N. Y. 593; Cornell v, Dakin, 3a N. Y. 253.
 
 117 ISSUING THE ORIGINAL EXECUTION. § 32 
 
 party prosecuting the writ of error may, though suc- 
 cessful, be deprived of all benefit thereof.'^^ A per- 
 petual stay of execution may be granted by the court 
 in which the judgment was rendered, when such judg- 
 ment was void when entered, or wh; n. from some cause 
 occurring after its entry, it is clear that the further 
 prosecution thereof ought not to be allowed. The 
 most familiar instance, other than that by the satisfac- 
 tion of the judgment, of a matter occurring after its 
 entry and requiring a perpetual stay of execution, is 
 the release of the defendant and his property there- 
 from by a discharge granted, him under the bank- 
 ruptcy or insolvency laws."**'^ 
 
 When an appellate court has affirmed a judgment 
 and remitted the case to the subordinate court, the 
 latter has no right to stay execution."** This rule 
 ought not to prevent a temporary stay of such execu- 
 tion upon grounds which do not question the correct- 
 ness of the judgment thus affirm; d, as where it is urged 
 that the defendant has a judgment against the plain- 
 tiff to the benefit of which he is entitled as a setoff. 
 Such setoff may be allowed him without in any respect 
 questioning the propriety of the judgment of the appel- 
 late court, and a stay of execution may properly be 
 granted until the claim of setoff can be investigated 
 and determined.'**^ 
 
 The power of courts to temporarily stay the issuing 
 of execution is exercised in an almost infinite variety 
 of circumstances, in order that the ends of justice may 
 
 2S6Taswell v. Fitoiio, 4 Burr, 2454; BenwoU v. Black, 3 T. R. 643. 
 
 2«7 Parks V. Goodwin, 1 Mich. 3o; B:inj?s v. Strong. 1 Don. 619; 
 Graham v. Pierson, 6 Hill, 24Tb; Boynton v. Boll, 121 U. S. 457. 
 
 2>*^ Marysville v. Buchanan, 3 Cal. 212; Dibrell v. Eastland, 3 
 Yerg. 507. 
 
 2*9 Blackburn v. Reilly, 48 N. J. L. 82.
 
 § 32 ISSUING THE ORIGINAL EXECUTION. 11& 
 
 be accompHsliod. In many oases this power operates 
 almost as a substitute for proceedings in equity, and 
 enables the defendant to prevent any inequitable use 
 of the judgment or writ.''**** Like most otlier discre- 
 tionary powers, it is liable to abuse. It is the general 
 practice of the losing party to ask and for the court to 
 grant a stay of execution for some designated period 
 after the entry of judgment, for no other reason than 
 that he is not yet ready to comply with the judgment^ 
 or perhaps in view of proceedings by appeal or for a 
 new trial. These stays generally result in a delay, and 
 sometimes in the defeat of justice; and the courts 
 ought to be very cautious in granting them, except in 
 cases where the ultimate satisfaction of the judgment 
 by the defendant is assured. The power, however, to 
 grant such stays of execution is everywhere conceded^ 
 and it could not be limited by the enactment of any 
 unvarying rule without encountering evils of greater 
 magnitude than those sought to be suppressed. The 
 exercise of this power will sometimes be reviewed by 
 the appellate courts,^^^ but never "unless capriciously 
 exercised or abused." ^^^ As the statutes in most of 
 the states purport to give the plaintiff a right to execu- 
 tion for a definite period of time after the entry of judg- 
 ment in his favor, it seems unreasonable to maintain 
 that any court has a right to restrict this right or to 
 interfere with its exercise, even for a temporary period, 
 excei)t for some well-defined reason, and therefore that 
 the many orders made granting stays of execution 
 without disclosing any other ground therefor than the 
 
 280 Barnes v. Camack, 1 Barb. 390; Steere v. Stafford, 12 R. I. 
 131; Knox v. Hexter, 10 Jones & S. 496; Comm. v. Magee, 8 Pa. St. 
 240, 49 Am. Dec. 509; Blair v. Hilgodick, 45 Minn. 23. 
 
 201 IJvermore v. Hodjrkins. 54 Cal. G37. 
 
 20^ GraJigor v. Craig, 85 N. \\ 019.
 
 119 ISSUING THE ORIGINAL EXECUTION. § 3-2a 
 
 desire or convenience of the applicant ought not to be 
 sustained. While it was in one instance said that 
 "plaintiff, having obtained his judgment, is entitled to 
 enforce it unless it be set aside or modified in due 
 course of law," -•'•• we infer that this apparently rea- 
 sonable assertion is not maintainable under the exist- 
 ing decisions, and that, on the other hand, each court 
 may grant tenii)orary stays of execution during which 
 time the plaintiff has no right to a writ for the enforce- 
 ment of his judgment,^^* and no remedy other than by 
 appeal or writ of error, and that these remedies will 
 not aid him, except where there has been a manifest 
 abuse of the discretion of the court in granting the 
 stay. 
 
 ^ 32 a. Stay of Execution as the Result of Appellate 
 Proceedings. — AVhere a right to the review of a judg- 
 ment or decree exists and may be exercised either upon 
 appeal, or by writ of error, or of certiorari, it is clear 
 that these remedies cannot be effective unless, during 
 the time necessary to make them available, the execu- 
 tion of the judgment or decree complained of can be 
 suspended. It is also clear that injustice must often 
 follow the suspension of the right to execution during 
 the prosecution of these remedies if the proceedings 
 are ultimately found to be free from error, unless the 
 defendant in the judgment or decree shall have given 
 some security that, upon its affirmance, he will comply 
 therewith, or, at least, will indemnify the plaintiff for 
 any loss resulting from the suspension of the right to 
 execution. There is no doubt that an appeal from a 
 
 203 I.iverraoro v. Hodgkins, 54 Cal. G3S. 
 
 a»* Eatou v. Cleveland etc. li. Co.. 41 Fed. Rep. 421.
 
 § 32a ISSUING THE ORIGINAL EXECUTION. 120 
 
 decree iu chancery,-"^-"'' and also a writ of error,-^** or a 
 certiorari,-"' from the time of its allowance, operates 
 as a supersedeas and avoids all proceedings thereafter 
 taken, though consummated before any notice was 
 given. ''A supersedeas, properly so called, is a sus- 
 pension of the power of the court below to issue an 
 execution on the judgment or decree appealed from; 
 or, if a writ of execution has issued, it is a prohibition 
 emanating from the court of appi al against the execu- 
 tion of the writ. It operates from the time of the com- 
 pletion of those acts which are requisite to call it into 
 existence. If, before those acts are performed, an exe- 
 cution has been lawfully issued, a writ of supersedeas 
 directed to the officer holding it will be necessary; but 
 if the w^rit of execution has not only been lawfully 
 issued, but actually executed, there is no remedy until 
 the appellate ]:>roceedings are ended, when, if the judg- 
 ment or decree be reversed, a writ of restitution will be 
 awarded," -"^ At the present time there are but few 
 cases either in England,-"^" or in the United States,^**** 
 
 2!>5 Helm V. Boone, 6 J, J. Marsh. 351, 22 Am. Deo. 73; Hovey v. 
 McDonald, 109 U. S. 150. 
 
 296 Kitcher v. R-andolpb, 9.3 U. S. SO; Launtz v. Dixon, 5 Sandf. 
 249; Hughes v. Underwood, 1 Mod. 28: Cleghorn v. Desanges, Gow. 
 G6; Jaiiues v. Nixon, 1 Term Rep. 279; Capron v. Archer, 1 Burr. 
 340; Perkins v. W'oolaston, Salk. 322; ThoiTC v. Beer, 2 Barn. & 
 Aid. 373; Hawkins v. Jones, 5 Taunt. 204. 
 
 297 Allen V. Hopper, 24 N. J. L. 514; McWilliams v. King, 32 N. J. 
 L. 21; Gardiner v. Murray, 4 Yeates, 5G0; Kingsland v. Gould, 1 
 Ilalst. IGl; :Malrs v. Sparks, 2 South. 513; Case v. Shepherd, 2 
 Johns. Cas. 27; ISIayor of Macon v. Shaw, 14 Ga. 1<J2. 
 
 29S Hovey v. McDonald, 109 U. S. 159. 
 
 299 Bicknell v. LongstaCf, 6 Terra Rep. 4,55; Attenbury v. Smith. 2 
 Dowl. & R. 85; Smith v. Howard, 2 Dowl. & R. 85; Abraham v. 
 Pugh, 5 Barn. & A!d. 903; Smith v. Shepherd, 5 Term Rep. 9. 
 
 SCO Cummings v. Cleggs, 82 Ga. 76G; Stockton v. Bishop, 2 How. 74; 
 Pratt v. Stage Co., 2G Iowa, 241; Jackson v. Schauber, 7 Cow. 417; 
 Bonnell v. Neely, 43 111. 288; Jones v. M, & A. R. R. Co., 5 How. 
 (Miss.; 407; Thomas v. Nicklas, 58 Iowa, 49; Eakle v. Smith, 24 Md.
 
 121 ISSUING THK ORICINAL KXHL'UTIOX. § 3-'a 
 
 in which either an appeal, a writ of error, or a cer- 
 tiorari will, of itself, operate as a supersedeas, or a 
 stay of proceedings. Statutes have been enacted by 
 congress and also by the legislatures of the several 
 states providing for the security wlii<h must be given 
 on the prosecution of an appeal or a writ of error, and 
 also that additional security must be given to entitle 
 the appellant or plaintiff in error to stay the execution 
 of the judgment or decree during the pendency of the 
 appellate proceedings, and, as a general rule, no stay 
 of execution will be granted or results, unless the 
 security required by statute is given, though peculiar 
 cases may occasionally arise in which the court thinks 
 proper to stay proceedings by virtue of its common-law 
 powers. ^"'^ In one instance a court exercised these pow- 
 ers to relieve an appellant from giving security tm the 
 ground that he was amply able to respond to any 
 judgment which might be given. '"'^ 
 
 The circumstances in which execution of the judg- 
 ment may be stayed pending appellate proceedings are 
 designated in various statutes, differing in their de- 
 tails, but resembling in their general outlines. A 
 bond for the payment of costs is generally made indis- 
 pensable to the appeal, and in some contingencies it 
 operates to stay the proceedings. When, liow( ver, the 
 judgment is for the payment of money or for the deliv- 
 ery or sale of property, or for any relief, the further 
 withholding of which might occasion its loss or other- 
 
 339; Kill)ce v. Myrick, 12 Fla. 41G; Ex parte Floyd. 40 Ala. IIH: 
 Castro V. lilies, 22 Tex. 479, 73 Am. Dec. 277; Tucker v. State. 11 
 Mil. 322; Branican v. Rose. 3 Gilni. 123; .rolmstnn v. GoUlsboroii-:!!. 
 1 Har. & J. 4!t9: People v. Loncks. 28 Cal. 68; Fulton v. Ilaima, 40 
 Cal. 278; Ela v. Weleb. 9 Wis. 395. 
 
 SOI RosenfieUl v. Stix, 07 Mo. App. 5S2; Grangi-r v. Craig, So X. Y. 
 G19; Qulnlan v. Russell, 48 N. Y. Sup. Ct. 537. 
 
 802 I'olhamus v. Moser, 7 Robt. 443.
 
 § o'-'a ISSUING THE ORIGINAL EXECUTION. 122 
 
 wise seriously prejudice the prevailing party, a further 
 bond is generally exacted in some sum designated by 
 statute or fixed by a rule or order of court.^**-' In order 
 to obtain the supersedeas it is well settled that the law 
 must be strictly conformed to and every act designated 
 in the statute must be f)erformed Avithin the time, and 
 substantially in the manner specified in the statute.^^' 
 Formerly it appears to have been the practice to 
 issue the supersedeas out of the court in which the 
 judgment was entered.^**^ There is no doubt, how- 
 ever, at the present time, that the appellate courts, 
 in the exercise of their jurisdiction, have ample author- 
 ity to issue a supersedeas against the issuing of an 
 execution by the subordinate court, or against taking 
 any further proceedings under a writ already issued. "^^* 
 According to the practice of some courts, though an 
 appeal or writ of error is perfected and accompanied 
 with such security as is required to stay the further 
 execution of the judgment, some special order is re- 
 
 803 Telegraph Co. v. Eyser, 19 Wall. 410; Orchard t. Hu.2;hos, 1 
 Wall. 73; Kinggold's Case, 1 Bland. 5; Fitzgerald v. Beebe, 7 Ark. 
 310, 46 Am. Dec. 285; Desty's Fed. Proc, p. 672. Sometimes no 
 bond is exacted where the appeal is by the people, or by an officer 
 •who has given an official bond. People v. Clingan, 5 Cal. 389; Trap- 
 nail V. Brownlee, 8 Ark. 207. 
 
 S04 Kitchen v. Randolph, 93 U. S. 86; Erie City Bank v. Compton, 
 27 Pa. St. 105; The Roanoke, 3 Blatchf. 390; Penn. II. R. Co. v. 
 Commonwealth, 39 Pa. St. 403; Sage v. C. R. R., 93 U. S. 412; Tucker 
 V. State, 11 Md. 322; Ilanna v. Pitman, 25 Ark. 275; Hogan v. Ross, 
 11 How. 297; Alderman v. Rivenbark, 96 N. C. 134; Baltimore etc. Co. 
 V. Harris. 7 Wall. 575. 
 
 305 McWilliams v. King, 32 N. J. Eq. 23. 
 
 306 State V. Board of Education, 19 Wash. 8, 07 .Vm. St. Rep. 
 706; Hill v. Finnegan, 54 Cal. 493; Lee Chuck v. Quan Wo Ching 
 Co., 81 Cal. 222, 15 Am. St. Rep. 50; Western etc. Co. v. State. 69 
 Ga. 524; Thomas v. Sullivan. 11 Nev. 280; Spears v. Mathews, 66 
 N. Y. 127; Cralle v. Cralle. 81 Va. 773: McWilliams v. King. 32 N. J. 
 L. 24; Keyser r, Farr, 105 U. S. 265; Draper v. Davis, 102 U. S. 370-
 
 123 ISSUING THE ORIGINAL KXKCUTION. § .'{-Ja 
 
 quired to stay tlie execution, ^^' but, as a general rule, 
 a conipliauce with the statute, ipso facto, operates as 
 a sta}^ of proceedings, and no formal ordV-r of court to 
 that effect is recjuired.'*^** A supersedeas arising from 
 the allowance of a writ of error or of a certiorari may 
 operate to prevent the issue of an execution or tiie 
 service of an execution already issued. In either 
 event, it is merely suspensive in its effect, and can- 
 not operate retroactively to avoid or annul proceed- 
 ings previously taken.'^^ It did not abate a writ which 
 had aln^adj' been partly executed. Hence, where a 
 levy had already been made, it was the duty of tlie 
 officer to proceed to sell the property.^^^ In tlie 
 United States, this rule of the common law has been 
 very generally supplanted by statu! ory provisions, by 
 virtue of which a suflicient undertaking on appeal, 
 while it does not usually destroy existing levies or 
 liens, suspends all further proceedings until the final 
 disposition of the appeal.**** A stay in favor of one 
 of the defendants does not suspend the right to issue 
 
 S07 McGill V. Mc(iill, 19 Fla. 341; Reed v. Lamler, 5 Bush, 599; 
 Whitelioad v. Boorora, 7 Bush, 401; Green v. Grittiu, 95 N. C. 50. 
 
 808 Born v. Ilorsliiiau, SO Cal. 452; Burge v. Burns. Morris. 285; 
 State V. Volmor, 6 Kan. 1579; Goddard v. Ordwaj-, 94 U. S. G72. 
 
 309 Kunyon v. Bennett, 4 Dana, 59S, 29 Am. Dec. 431; Board of 
 Commrs. v. Gorman, 19 Wall. GOl; Freeman v. Dawson, 110 U. S. 
 264; Livingston v. New York E. R. Co., 15 N. Y. Supp. 191. 
 
 310 Charter v. Peeter, Cro. Eliz. 597; INIeritou v. Stevens, Willes, 
 271; Blanchard v. Myers, 9 Johns. 05; Kinuie v. Whilfoni, 17 Johns. 
 34; Patfhin v. The Mayor, 13 Wend. (;c.4; Payfer v. Bissell, 3 Hill. 
 239; Mayor of :Macon v. Shaw, 14 (Ja. I(i2; Board of Commissioners 
 V. Gorman, 19 Wall. 6G1. 
 
 811 Delalield v. Saiulford, 3 Hill, 473; North Western Co. v. LanJes, 
 6 Minn. 5G4. In Alabama, the proceeding for a supersedeas is by 
 petition. Shearer v. Boyd, 10 Ala. 281; Spence v. Walker, 7 Ala. 
 568; Powell v. Washington, 15 Ala. 803; Parker v. Dean, 45 Miss. 
 408.
 
 S 33 ISSUING THE ORIGINAL EXECUTION. 124 
 
 execution against tlie others/**^- A motion to vacate 
 a judgment, or to quash an execution, does not stay 
 proceedings.^^ =' AVliere a stay is desired, pending the 
 hearing of the motion, an order of the court to that 
 effect should be obtained. A supersedeas should be 
 granted by the court having at the time the custody 
 of the record.^^'* There can be no doubt, however, 
 that this rule cannot be so enforced as to leave the 
 appellate court practically without power to effec- 
 tively exercise its appellate jurisdiction, and hence 
 that, though the record should remain in the subor- 
 dinate court, the appellate court may, by a supersedeas, 
 prevent the issue or the execution of the process of 
 the lower court when the further execution thereof 
 has become improper, owing to the pendency of appel- 
 late proceedings so perfected that the plaintiff is not, 
 until their termination, entitled to enforce his judg- 
 ment. 
 
 § 33. Execution Issued Pending a Stay.— An execu- 
 tion issued pending a stay thereof granted by the 
 court or by a statute is, of course, irregular, and may 
 be quashed on motion. But it may happen that for 
 want of such motion the execution is never arrested, 
 and property is seized and sold thereunder. In such 
 case, as in all other cases of irregular execution, the 
 authorities are conflicting, some asserting that the 
 writ, having erroneously issued, remains in force till 
 the error is corrected,**^° and others maintaining that, 
 
 312 Sheetz v. lluber, 31 Les. Int. 28; 6 Leg. Gaz. 08. 
 ai3 Spang y. Cominouwealth, and Commonwoalth v. Freedley, 12 
 Pa. St. 3.j8; Bryan v. Berry, 8 Cal. 130. 
 
 314 Payne v. Thompson, 48 Ala. 535. 
 
 315 Swlggart V. Harber, 4 Scam. 304, 39 Am, Dec. 418; Sliootz v. 
 Iluber, 6 Leg. Gaz. OS, 31 Leg. Int. 28; Oakes v. Williams, 107 111.
 
 125 ISSUING THE ORIGINAL EXECUTION. § 33 
 
 the court for the time being having no power to issue 
 the execution, the writ is void."*® The only decision 
 coming without our observation sustaining this view 
 has been much weakened, though not expressly over- 
 ruled, by later decisions in the same slate, which, as 
 it seems to us, necessarily affirm that an execution 
 issued in violation of a stay is irregular merely.^*'' 
 Whether a writ issued after a valid stay of execution 
 is void or not, it is evident that it cannot be regarded 
 as valid for all purposes. The plaiutilf and the officer 
 charged with the execution of a writ, on being in- 
 formed of a stay of execution, whether resulting from 
 an order of court or from such a compliance with the 
 law as to create such a stay, should discontinue their 
 proceedings. If they p-rsist in disregarding the stay 
 and in acting uuder the execution, thev are no lonaer 
 entitled to its protection, and the defendant may main- 
 tain an action against them to recover damages result- 
 ing to him from their unlawful conduct,"^** or he may 
 cause them to be brought before the court and pun- 
 ished for contempt, if they have violated its order 
 after notice thereof.^**^ In New York, the stay of exe- 
 cution resulting from an appeal bond does not ter- 
 minate when the judgment of the appellate court is 
 
 154; Shirk v. M. & N. G. G. Ry. Co.. 110 111. 601. Perhaps a sheriff 
 or constable may lawfully refuse to enforce a writ Issued in con- 
 travention of a stay of proceedings. Palmer r. Galbrcath, 74 Ind. 
 84; Briirgs v. Shea, 48 Minn. 218. 
 
 316 Milliken V. Brown, 10 Serg. & R. 188. 
 
 31T Stewart v. Stocker. 13 S. & R. 109, 15 Am. Dec. 589; Wil- 
 kinson's Appeal. G5 Pa. St. 1S9. 
 
 318 O'Doiinell v. MuUin. 27 Pa. St. 199. 67 Am. Dor. 4.-)S: Ilopkinson 
 V. Sears, 14 Vt. 494, 39 Am. Dec. 236; Belshaw v. Marshall, 4 Barn. 
 & Ad. 336; Bleasdale v. Davby, 9 Price, 606. 
 
 319 Williams v. King, 32 N. J. L. 24; Haunoti v. Farrettes, Barnes, 
 876.
 
 § 34 ISSUING THi2) ORIGINAL EXECUTION. 126 
 
 orally pronounced and entered on the minutes. To 
 supersede the stay, there must be a formal judgment 
 entered by the clerk. An execution issued before the 
 entry of this formal judgment, though irregular, will 
 not be vacated except upon prompt application; and, 
 if not vacated, will be treated as valid.^^® 
 
 § 34. The Constitutionality of Stay Laws.— it is well 
 known that a distinction has been made by judges and 
 by writers upon constitutional law between laws im- 
 ])airing the obligation of contracts and laws regulat- 
 ing the remedies by which those contracts may be 
 enforced. By this distinction the former laws have 
 been avoided and the latter upheld. There is so in- 
 timate a connection between a right and the means 
 by which it may be enforced that the justness of this 
 distinction may well be doubted; for substantially we 
 destroy a right when we destroy the legal methods of 
 enforcing it, and we abridge or enlarge the right when 
 we abridge or enlarge those methods. The right to 
 judgment ought necessarily to be inseparable from 
 the right to speedy execution; and hence all laws pro- 
 fessing to postpone or suspend the right to execution, 
 whether in regard to pre-existing judgments or in 
 regard to judgments on pre-existing contracts, ought 
 not to be enforced when their manifest tendency is 
 to diminish the plaintiff's opportunities for reaping the 
 fruits of his judgment. It is, however, quite certain 
 that some alteration may be made in the laws allow- 
 ing execution, by which the time for its issue may 
 be somewhat postponed, and the chancers of the plain- 
 tiff's obtaining satisfaction somewhat diminished. No 
 
 320 Bowman v. Tallman, 28 How. Pr. 483; 3 llobt. 033; 2 Kobt. 
 632; LentillioiJ v. Mayor, 1 Code K., N. S., 111.
 
 127 ISSUING THE ORIGINAL EXECUTION. § 34 
 
 •suflBciontlj exact tost can be made by wliicli to de- 
 termine precisely what laws are prohibited and what 
 upheld. The most that can be said is, that no change 
 in the remedy will br enforced where it amounts to a 
 substantial denial of the right. "It is difficult, per 
 haps, to draw a line that would be api)licable in all 
 cases between legitimate alterations of the rcuK dy and 
 j)rovisions which in the form of remedy impair the 
 right. But it is manifest that the obligation of the 
 contract and the rights of a party under it may, in 
 effect, be destroyed by denying a remedy altogether; 
 or may be seriously impaired by burdening the x^ro- 
 ceedings with new conditions and restrictions, so as 
 to make the remedy hardly worth pursuing. And no 
 one, we presume, would say that there is any substan- 
 tial difference between a retrospective law declaring a 
 particular contract or class of contracts to be abro- 
 gated and void, and one which took away all remedy 
 to enforce them, or encumbered it with conditions that 
 rendered it useless or impracticable to pursue it." ^^^ 
 Laws regulating judgments and judgment liens, to- 
 gether Avith the time and manner of their enforcement 
 by execution, are said to affect the remedy merely,^^ 
 and are therefore sometimes given a retrospective 
 operation. This, however, is true only of those statu- 
 tory changes in which the prime object does not appear 
 to be to delay the judgment creditor, or to compel him 
 to accept an inadequate satisfaction of his debt. In 
 times of great financial embarrassment, the legisla- 
 tures of several of the states have attempted to pro- 
 tect judgment and other debtors from a sacrifice of 
 their property at forced sale, and have enacted laws, 
 
 321 Bronson v. Kinzle, 1 How. 317. 
 
 322 Bank of Uuited Slates v. Lougwortb, 1 McLean, 35.
 
 § :U ISSUING THE ORIGINAL EXECUTION. 128 
 
 some of which provided that no execution should be 
 issued or enforced within certain periods; and others 
 declared that such execution could issue only when 
 plaintiff was willing to accept payment in bank notes, 
 or other depreciated currency. These statutes, though 
 prompted by motives of the most humane character, 
 and perhaps even sustainable on grounds of public 
 polic}', were liable to the most unanswerable consti 
 tutional objections. They either, for months or years, 
 took from the creditor all remedy, or coerced him into 
 accepting something different from and less valuable 
 than that contemplated by his original contract. 
 They have, therefore, been almost uniformly declared 
 to possess no validity, on the ground that in their op- 
 eration they necessarily impaired the obligation of 
 contracts.^^^ Nor can one creditor be compelled to 
 
 823 Dormire v. Cogly, 8 Blackf. 177; Strong v. Daniel, 5 Ind. 348;. 
 Baily v. Gentry, 1 Mo. 1G4, 13 Am, Dec. 484; Brown v. AVard, 1 Mo. 
 209; Bumgarduer v. Circuit Court, 4 Mo. 50; Lapsley v. Brashears, 
 4 Litt. 47; Hudspeth v. Davis, 41 Ala. 389; Pool v. Young, 7 T. B. 
 Mon. 588; Miller v. Gibson, 03 N. C. 635; Ex parte Pollard and 
 Woods, 40 Ala. 77; Stevens v. Andrews, 31 Mo. 205; Jacobs v. Small- 
 wood, 63 N. C. 112; Taylor V. Stearns, 18 Gratt. 244; Garlington v. 
 Priest, 13 Fla. 559; Crittenden v. Jones, 1 Car. Law Rep. 385, 6 Am. 
 Dec. 531; State v. Carew, 13 Rich. 506, 91 Am. Dec. 245; Jones v. 
 McMahan, 30 Tex. 720; Coffman v. Bank of Kentucky, 40 ^Vliss. 30, 
 90 Am. Dec. 311; Grayson v. LiUy, 7 T. B. Mon. 10; Stephenson v. 
 Baniett, 7 T. B. Mon. 50; Aycock v. Martin, 37 Ga. 124, 92 Am. 
 Dec. 56; W^ebster v. Rose, 6 Ileisk. 93, 19 Am. Rep. 583; Edwards v. 
 Kearzey, 96 U. S. 601. "Does an act to suspend execution impair 
 tlie obligation of contracts made before it? What the obligation 
 of a contract is may be discerned by considering what it is that 
 makes the obligation. The contract alone has not any legal oblj- 
 gation, and why? Because there is no law to enforce it. The con- 
 tract is made by the parties, and if sanctioned by law, it promises 
 to enforce performance should tlie party decline performance him- 
 self. The law is the source of tin; obligation, and the extent of the 
 obligation is defined by the law in use at the time the contract is 
 made. If tliis law direct a specific execution, and a subsequent act- 
 declare that there shall not 'be a specific execution, the oljligatiou
 
 129 ISSUING THE ORIGINAL PLKECUTION. § 34 
 
 stay execution because others are willing to do so. 
 Hence, an act autliorizing a court to stay execution 
 upon the written assent of more than two-thirds of 
 the defendant's creditors is unconstitutional. ■'^"* Dur- 
 ing the late Civil AVar, statutes were enacted in sev- 
 
 of the contniet is lessened aud impaired. If the law in being at the 
 date of llie eoutract give au equivalent in money, and a subsequent 
 law say the equivalent should not be in money, such act would 
 impair the obligation of the contract. If the law in being at the 
 date of the contract give immediate execution on the rendition 
 of the judgment, a subsequent act, declaring that the execution 
 should not issue for two years, would lessen or impair the contract 
 equally as much in principle as if it suspended execution forever; 
 in Avhich latter case the legal obligation of the contract would be 
 wholly extinguished. The legislature may alter remedies; but they 
 must not, so far as regards antecedent contracts, be rendered less 
 efficacious or mure dihitory tlian those ordained by the law in being 
 when the contract was made, if such alteration be the direct and 
 special object of the legislature, apparent in an act made for the 
 purpose. Though possibly, if such alteration were the consequence 
 of a general law, and merely incidental to it, which law had not the 
 alteration for its object, it might not be subject to the imputation 
 of constitutional repugnance. The legislature may regulate con- 
 tracts of all sorts, but the ri'gulation must be before, not after, the 
 time when the contracts are made." (Townsend v. Townsend, 1 
 Peck. 13, 14 Am. Dec. 722.) In treating a similar question, in Blair 
 V. Williams, 4 Lift. 46, the court of appeals in Kentucky said: 
 **Does, then, the act of assembly in question impair that obligation? 
 By the law as it stood at the date of the contract, the defendants 
 were allowed to replevy the debt but for three months only, and the 
 money, if sot then paid, was required to be made of their estate, 
 without further delay; but, by the act in question, they are allowed 
 to replevy the debt for two years, or enter into a' recognizance for 
 the payment of the money within that time. Aud surely it cannot 
 require argument to prove that the latter act impairs the obligation 
 imposed by the former law. Indeed, the avowed object of the act 
 in question was to relieve the debtor from the obligation he was 
 under to pay his debt in the time prescribed by the former law, and 
 give him further time of payment, and, according to any sense of the 
 word, tl'.e act in question must impair the obligation imposed by the 
 former law, and is therefore unconstitutional and void, as it relates 
 to the contract between the parties in this case, as well as to all 
 contracts made previous to the passage of the act." 
 824 Bunn V. Gorgas, 41 Pa. St. 441, 
 Vol. 1—9
 
 § 35 ISSUING THE ORIGINAL EXECUTION. 130 
 
 i>ral states for the purpose of staying execution against 
 volunteers in the service of the United States. As the 
 tendency of these statutes was to encourage enlist- 
 luents, and thereby to aid in the preservation of the 
 national go^•e^nnlent, it was perfectly natural that the 
 courts should seek, if possible, to sustain them. These 
 statutes were generally upheld, ^^'* except where they 
 were held to authorize an indefinite stay of execu- 
 tion,*-** or where the defendants had agreed to waive 
 the right to such stay.*^''^ There can be no doubt of 
 the validity of stay laws when applied to proceedings 
 ijpon contracts made after their passage. In such 
 cases, the stay law does not impair the obligation of the 
 contract; but is rather to be regarded as part of the 
 considerations and conditions ui)on which the contract 
 
 was made, and as becoming a part of the contract 
 itself.«28 
 
 § 35. Death of Sole Plaintiff or Defendant.— The time 
 Avithin which execution may ordinarily be sued out 
 may be affected by the death, either of a sole plaintiff 
 or of a sole defendant. Upon the happening of either 
 of these events, the right to issue process is, except 
 Avliere the rule of the common law has been modified 
 by statute, suspended, and so remains until the judg- 
 ment can be revived by scire facias, or until the proper 
 
 225 McCormick v. Itusch, 15 Iowa, 127, 83 Am. Doc. 401; Broiton- 
 bach V. Bush, -J4 Va. St. 313, 84 Am. Dec. 442; Coxo's Ex'r v. Martin, 
 44 Pa. St. 322: .Johnson v. Duncan, 3 Mart. (La.) 530, l> Am. Dec. 
 G75. 
 
 326 Hasbrouck v. Shipman, 10 Wis. 290; Clark v. Martin, 3 (Jrant 
 Cas. 393, 49 Pa. St. 299. 
 
 327 Billmeyer v. Evans, 40 Pa. St. 324; Lewis v. Lewis, 47 Pa. St. 
 127. 
 
 328 Barry v. Iseman. 11 Uicli. 129; Wardlaw v. liuzzard. 1." Kicli. 
 15S. 94 Am. Dec 148; Bruns v. Crawford, 34 Mo. 33M; Domieli v. 
 Stephens, 35 :^Io. 441.
 
 131 ISSUING THE ORIGINAL EXEUUIION. § 35 
 
 representatives of the deceased can, in some appro- 
 priate man tier, be brought before the court, and made 
 parties to I he record."**"" The remedy by scire facias 
 has fallen into disuse in many of the states, and its 
 I)Iace has been taken by some remedy provided by 
 statute. Thus, in Indiana, when the defendant dies 
 subsequent to judgment, the right to take out execu- 
 tion seems to be suspended thereby, until one year 
 after the granting of letters of administration on his 
 estate. His heirs may then be summoned to show 
 cause why the judgment should not be enforced 
 against his estate in their hands. They may appear 
 in response to the summons, and issues may be made 
 up and tried. If the issues are determined in favor 
 of the creditor, a judgment is entered directing that 
 the money be made out of the assets in the hands of 
 the administrator, and, if they prove insufficient, then 
 out of the lands of the decedent.^** If the judgment 
 is not an ordinary money judgment, but one directing 
 the sale of lands, the death of the defendant does not 
 render necessary any proceedings by way of revivor. 
 This is because the judgment operates in rem, and 
 binds all persons acquiring any interest in the prop- 
 
 329 Hubert V. ■Williams, Walk. 175; Wilson v. Kirkland, Walk. 
 155; Davis v. Helm. 3 Smedos & M. 17; McMahon v. Glasscock, 5 
 Yerg. 304; IMillor v. Doan. 19 Mo. 0.">0; Swearingen v. Eljeiius, 7 Mo. 
 421. 38 Am. Dec. 40:5; Sims v. Eslava, 74 AJa. 594; Brown v. New- 
 man, 66 Ala. 275; Smith v. Loekett. 73 Ga. 104; Moore v. Bell, 13 
 Ala. 400; Boylo v. Maroney, 73 Iowa, 70, 5 Am. St. Bop. 057; Breck- 
 inridge V. Taylor, 1 B. Mon. 263; Ballinger v. Redhead, 1 Kan. 
 -\pp. 434; .Icnuess v. Lapeer Circuit Court, 42 Mich. 469; Bower v. 
 llolladay, 18 Or. 491; W^eaver v. Pickard, 7 Utah, 296; Hooper v. 
 Caruthers, 78 Te.x. 432; Tucker v. Carr (R. I.). 40 Atl. 1. 
 
 ^30 Faulkner v. Larrabee, 76 Ind. 154; Graves v. Skeels, 6 Ind. 
 107. Similar proceedings are required in some of the otlier states. 
 Wallace v. Swiuton, 64 N. Y. 195; Eaton v. Youngs, 41 Wis. 507.
 
 § 35 ISSUING THE ORIGINAL EXECUTION. 132 
 
 erty from or under the defend ant s.^^^ Tlie statutory 
 proceeding to revive a judgment against a decedent 
 must not be confounded with the proceeding to ob- 
 tain execution on a judgment dormant through lapse 
 of time, for an execution issued as the result of the 
 last-named proceeding will be entirely abortive in its 
 effect against the heirs of the decedent.^^^ In Illinois, 
 if the defendant die after judgment, execution may 
 issue against his lands and tenements, after three 
 months' notice in writing has been given to his execu- 
 tor or administrator of the. existence of the judgment;, 
 but, if there be no executor or administrator, the judg- 
 ment must first be revived by scire facias.^*^^ But 
 it must be remembered that, under the English prac- 
 tice, the teste of the execution and the actual date of 
 its issuing were often different. Upon the entry of 
 judgment in any part of the term, or during vacation, 
 an execution could issue tested the first day of the 
 term. The execution was treated as if actually issued 
 on the day of its teste; and the death of the plaintiff 
 or defendant, subsequently to the teste, had no other 
 effect beyond what it would have had if occurring sub- 
 sequently to the actual issuing of the writ.^^* Whether 
 
 331 Kellogg V. Tout, 65 Ind. 151; Hays v. Thomas, 56 N. Y. 521; 
 Harrison v. Simons, 3 Edw. Ch. 394. 
 
 332 Wallace v. Swinton, G4 N. Y. 195; Faulkner v. Larrabee, 76 
 Ind. 154. 
 
 333 Coran v. Pettinger, 92 111. 241. 
 
 334 Cleve V. Veer, Cro. Car. 4.59; Bragner v. Langmead, 7 Term 
 Rep. 20, explaining and modifying Ileapy v. Parris, 6 Term Rep. 
 368; ColliTigsworth v. Horn, 4 Stew. & P. 240, 24 Am. Dec. 753; Cen- 
 ter V. Billingliurst, 1 Cow. 34; Fox v. Lamar, 2 Btov. 417; Robinson 
 V. Tonge, 3 V. Wms. 39,<5; Preston v. Snrgoiiie. Peck. 81: Battle v. 
 Bering. 7 Ycrg. 531, 27 Am. Dec. 52G; Waghorne v. Langmead, 1 
 Bos. it P. 571; Nichols v. Chapman, 9 Wend. 4,52; Hay v. Fowler, 
 1 How. Pr. 127; Black v. Planters' Bank. 4 IIuiiipli. 367; Day v. 
 Rice, 19 TVend. 644; Den v. Ilillin.Tii. 2 Halst. ISO: Davis v. Helm, 
 3 Smedcs & M. 34; Montgomery v. Realhafer, 85 Tenn. 668.
 
 133 ISSUING THE ORIGINAL EXECUTION. § 35 
 
 a writ tested before the death of the defendant, but 
 actually issued afterward, may be levied on lands and 
 a valid sale made thereunder, cannot be regarded as 
 finally settled. In one case where the question was 
 not necessarily involved, it was intimated, on the au- 
 thority of Tidd's l*ractice, that, when the right to 
 take lands in execution was established, it followed 
 that they might be taken under the same circum- 
 stances as personal property, and hence, that if a writ 
 tested before, but issued after, the death of the defend- 
 iint can be levied upon his goods and chattels, his 
 lands may also be subject to an elegit issued under 
 like circumstances,*^^"* and, under the authority of this 
 case, it was decided that the dissolution of a corpo- 
 ration after the teste of an execution against it, but 
 before the actual levy thereof, did not render invalid 
 the sale of its lands under such writ.^^** In New York, 
 on the other hand, it has been in:>isted that the per- 
 mitting the issuing of a writ of execution after the 
 death of the defendant, because tested before, applied 
 only to writs of fieri facias, under which no levy upon 
 real property could be made at the common law; and 
 hence, that the real property of a deceased defendant 
 does not come within the rule permitting proceedings 
 under writs issued after his death but tested before.^^'^ 
 When the term at which judgment was entered had 
 entirely passed, the right to teste executions as of 
 that term ended. Hence, if defendant died subse- 
 quently to the lapse of the term, or, if dying during the 
 term, no execution was sued out against him until the 
 
 835 Erwin v. Dundas, 4 How. 5S. 
 
 336 Boyd V. IlaiUvinson. S3 Fed. Rep. STG. 
 
 337 stj-metz V. Ri-ooks. 10 Weud. 20(5; AVallace v. Swinton, 64 N. Y. 
 188: Wood V. MuoiL'bouse. 45 X. Y. 308.
 
 § 35 ISSUING THE ORIGINAL EXECUTION. 134 
 
 succeeding term, a revivor of the judgment by scire 
 facias became necessary to entitle plaintiff to sue out 
 execution.'**^*^ If, however, the teste of the Avrit when* 
 it is issued under the English practice, or the actual 
 date of its issue where the fiction of the English law 
 is not enforced, be subsequent to the death of a sole 
 plaintiff, in whose name it issues, then there can be 
 no doubt that the writ is irregular. By the common 
 law, however, the court still has power to award exe- 
 cution upon the revival of the judgment by scire 
 facias. The power of the court seems to be as ample, 
 and to be properly invoked in the same manner, as 
 wlien judgment becomes dormant for want of execu- 
 tion Avithin a year and a day. If an execution issued 
 without scire facias is n*ot void in the latter case, it 
 ought, upon principles equally applicable to both, to 
 be uplield in the former case. This view has been 
 accepted by some judicial tribunals, and has led to the 
 declaration that an execution in the name of a de- 
 ceased plaintiff, though voidable, is not void."^ But. 
 on the other hand, it has been maintained that, by 
 the death of the plaintiff, the judgment also dies, sub- 
 ject, however to resurrection by scire facias, and that, 
 until so resurrected, "its life is suspended, and the 
 authority which it gave to issue execution for tlie time 
 being Avithdrawn, and the judgment stands as if it 
 never had been rendered." '^*^ In Wisconsin, by stat- 
 
 338 Coapor V. May, 1 IlaiT. IS; Dibble v. Taylor, 2 Speers, 308, 
 42 Am. Dec. .368; Davis v. Oswalt, 18 Ark. 414, 68 Am. Dec. 182; 
 Coliingswoith v. Horn, 4 SteAV. & P. 237, 24 Am. Dec, 7.j:-]. 
 
 330 Day V. .Shnrp, 4 Whart. .">41, 84 Am. Dec. 500; Alairty v. East- 
 ridfre, 67 lud. 211; Hushes v. Wilkinson, 37 Miss. 491; Darlington v. 
 Spoakman, 9 Watts »fc S. 182; Jonness v. Lapeer CircuiT Court, 42 
 Mich. 469. 
 
 •"••»» Stewart v. Nuckolls, 15 Aln. 2:51, ."0 Am. Dec. 127; «U-aham v. 
 Chandler, 15 Ala. 345; Brown v. I'arker, 15 111. 309; Pickett v. Hart-
 
 135 ISSUING THE ORIGINAL EXECUTION. § 35 
 
 ute, execution after the death of plaintiff may issue 
 in the same manner and with the same effect as thouj^h 
 he were still livinj^-; '"^^^ and in some .other states the 
 death of a sole plaintiff does not render a scire facias 
 necessary.'"^ The issuing of executions against soh; 
 defendants, bearing date after theii- death, has alsD 
 given rise to divci-se (h^cisions; but upon this point 
 the authorities are much more unevc nly divided than 
 upon that arising where execution has issued after th* 
 death of a sole plaintiff. Some of the authorities deny 
 that the death of the defendant is an extinguishment 
 of the power to issue execution, and afftrm that a writ, 
 thereafter issued, without revivor of the judgment, 
 though voidable, is not void.^"*^ These authorities, 
 
 sock, 15 111. 27U; Latlin v. Ilorriugtun, 1(J III. 302; .Meyer v. Mintonye, 
 lOG 111. 414; Moryau v. Ta3'lor, 38 N. J. L. 317; Duubam v. Bentley, 
 103 Iowa. 13G. 
 3*1 Holmes v. Mcliitloe, 20 Wis. 007. 
 
 342 lu Keutucky, as soon as au administrator or executor of de- 
 ceased iilaiutift" is appointed, the clerk may issue execution, making 
 indorsement showing the change in the parties. Morgan v. Winn, 
 17 B. Mon. 244; Venable y. Smilli, 1 Duvall, IS)."). In New York, 
 "prior to ISOO, if a plaintiff died after judgment in his favor and 
 before execution issued, no execution issued upon the application 
 of his personal representatives, and the remedy was not by execu- 
 tion, but by au action in the nature of scire facias, under section 
 428 of the code. See Ireland b. Litchfield. 22 How. Pr. 178, 8 Bosw. 
 034: .lay v. Marlin. 2 Duer, 0.")4; Wlieeler v. Dakin, 12 How. Pr. ,'>37: 
 Bellinger v. Ford. 21 Barb. 311; Thurston v. King, 1 Abb. Pr. 120; 
 Nims V. Sabine, 44 How. I*r. 2.j2. But since the amendment of sec- 
 tion 283 of the code in 1800, the personal representatives of a de- 
 cea.sed judgment creditor have all the rights and remedies by exe- 
 cution which the creditor had while living." 4 Wait's Pr. 7f. See 
 also, Civ. Code of Ala.. 1880, sec. 292.">; Starr & Curtis' Ann. 111. 
 Stats.. 2d. ed., p. 237U. par. 37; Iowa Code, 1897. sec. 4007; Rev. 
 Stats. Mo., 1880, sec. 0023; Gaston v. White. 40 Mo. 480; Fowler v. 
 Burdett. 20 Tex. .34; Thomp.son v. Ross. 20 Miss, liis; Landes v. 
 Perkins. 12 Mo. 2.38; Rooks v. Williams. 13 I.a. Ann. .374; Trail 
 V. Snoufl"er. Aid. 308; Darlington v. Speakman. !» Watts & S. 182. 
 
 343 Drake v. Collins, 5 How. (Miss.) 2.")0: Shelton v. Hamilton. 23 
 Miss. 497, 57 Am. Dec. 149; Hodge v. Mitchell. 27 Miss. ."t^4. 01 Am. 
 Dec. 524; Hughes v. Wilkinson, 37 Miss. 491; Wight v. Wallbaum,
 
 § 35 ISSUING THE ORIGINAL EXECUTION. 136 
 
 while sustainable on principle, are borne down by the 
 weight of opposing authority.^** The reason why at 
 the common law it was insisted that upon the death 
 of a sole plaintiff or a sole defendant, no execution 
 ought to issue without some further proceeding, was, 
 it was supposed that a new person had, by such death, 
 become interested in the judgment, and therefore some 
 j)roceecling should take place to bring him before the 
 court. Hence, it was held that where a plaintiff had 
 assigned his judgment and afterward died, it was not 
 necessary to prosecute any proceedings for a revivor, 
 and that a writ properly issued after his death with- 
 out such revivor, ''^'^ but, on the other hand, it was 
 also held that if, after such assignment, the assignee 
 died, a writ issued after such death, but in the name of 
 Ihe plaintiff, was regular."^"*^ 
 
 The common-law rule respecting the issuing of writs 
 of execution after the death of a sole plaintiff or de- 
 no m. 554; Elliott v. Knott, 14 Md. 121, 74 Am. Dec. 519; Butler v, 
 llaynes, 3 N. H. 21; Speer v. Sample, 4 AVatts, 367; Harrington v. 
 O'Reilly, 9 Smedes & M. 216, 48 Am. Dec. 704; Taylor v. Snow, 47 
 Tex. 4(52, 26 Am. Itep. 311; Cain v. W^oodward, 74 Tex. 549. 
 
 344 Massie's Heirs v. Long, 2 Ohio, 288, 15 Am. Dec. 547; Samuel 
 V. Zacliery, 4 Ired. 377; Cartuey v. lieed, 5 Ohio, 221; Houston v. 
 ('liilders, 24 La. Ann. 472; Beach v. Dennis, 47 Ala. 202; Lucas v, 
 I'rice. 4 Ala. 079; Collier v. Windham, 27 Ala. 291, 62 Am. Dec. 767; 
 Whittock's Admr. v. Whittock's Creditors, 25 Ala. 543; Gwynn v. 
 Latimer, 4 Yerg. 22; Erwin's Lessee v. Dundas, 4 How. 58; Mitchell 
 V. St, Maxent, 4 Wall. 237; Whitehead v. Cummins, 2 Cart. 58; State 
 V. Michaels, 8 Blackf. 430; Hildreth v. Thompson. 16 Mass. 191; 
 I'ickett V. Hartsock. 15 111. 279; Wallace v. Swinton, 64 N. Y. 188; 
 Meyer v. Hearst, 75 Ala. 390; Smith v. Reed, 52 Cal. 345; Cunning- 
 ham V. Burk, 45 Ark. 207; Williams v. AVeaver, 94 N. C. 134; Bull v. 
 Gilbert, 79 Iowa, 547; Boyle v. Maroney, 73 Iowa, 70, 5 Am. St. 
 Rep. 657; Halsey v. Van Vleet, 27 Kan. 474; Davis v. Young. 2 
 Monr. 60; Hardin v. McCvanse, 53 Mo. 255; Prentiss v. Boyden. 145 
 N. Y. 342; Bynum v. Goran, 9 Tex. Civ. App. 559; Pickett v. Rich- 
 ardson, 6 Lea, 49. 
 
 345 Harris v. Frnuk, 29 Kan. 200. 
 «*6 Brown v. Gill, 49 Ga. 549.
 
 137 ISSUING THE ORIGIN' AL i:\K( f 1 JOX. §.35 
 
 fondant lias been supplanted or iiKxlifKMl b}' statute 
 in most of the states. Where it is the ]»biintiff who 
 has died, his a<lniinistrator or executor is generally 
 entitled to the writ without first pr(jsecuting a seire 
 facias or any i»roceeding analogous thereto, though 
 in some of the states the fact of his appointment is 
 required to be disclosed to the court from which the 
 writ issues, either by some motion or by filing a copy 
 of Utters testamentary or of administration, or of the 
 order making the appointment.^*'' It would seem 
 that, under statutes of this character, if a writ were 
 taken out by an executor or administrator, but with- 
 out complying with some prescribed formality, it 
 would be irr.egular merely and not void. 
 
 If it is the defendant who dies, then his estate 
 usually falls within the jurisdiction of the surrogate 
 or probate courts. In some of the states, writs of exe- 
 cution, notwithstanding the jurisdiction of these 
 courts, may issue upon a judgment against a decedent 
 without any formal revivor by scire facias; but to the 
 oxercise of this right it is generally necessary that 
 some motion be made and some order procured, either 
 in the court wherein the judgment was rendered or 
 in that having jurisdiction of the estate of the de- 
 <.'edent, and even then the writ is commonly restricted 
 to judgments constituting liens against the property 
 of the deceased judgment debtor in his life! i me.''*"* 
 
 3*1 Daisy Roller Mills v. WHid, G N. Dak. 317; White v. Socor. 5S 
 Iowa, 533; Morgan v. AViini. 17 B. Mon. 2.33; Tenable v. Smitli, 1 
 Duv. 19G; Freeman v. Dutclier, 15 Abb. N. C. 431; Fitts v. I)avi.<. 42 
 111. 391; Brown v. Parker, 15 III. 301; Mavity v. Eastridgo, G7 Intl. 
 211; Ariustroug v. McLaughlin, 49 lud. 370; Scott v. Lyons, 59 Tex. 
 593. 
 
 348 Alsop V, Cowan, GG Miss. 451; Kerr v. Krouder. 2S ITun. 452; 
 I>uell V. Alvord. 41 Hun. 190; Bower v. llolladay, IS Or. 491; Bar- 
 rett V. Furnish, 21 Or. 17.
 
 § -80 ISSUING THE ORIGINAL EXECUTION. 13S 
 
 The tendency of legislation upon this subject, however, 
 is to require all claims against a decedeut to be pre 
 sented to, and acted upon by, the court having juris- 
 diction of his estate, and to allow it to tak;' whatever 
 measures may become necessary for their satisfaction. 
 To this end the writ of execution is generally wholly 
 diMiicd, especially where no lien existed against the 
 property of the decedent.'^-**-* Under these statutes, as 
 the right to execution terminates absolutely upon the 
 death of the judgment debtor, and its subsequent is- 
 suing could not be authorized were it applied for, it 
 must follow that, if issued, it is void, and every seizure 
 or sale thereunder is invalid.^"^ 
 
 § 36. Issue after Death of One of Several Plainfffs 
 or Defendants. — We shall next consider the effect of 
 the death of one of several defendants, or of one of 
 several plaintiffs, after judgment, and before the date 
 at which the execution is issued or tested. Where 
 counsel insisted that ^'w^here there are two or more 
 judgment creditors, and before execution issues one of 
 them dies, the survivors are put to their scire facias 
 before they can have execution upon their judgment,'' 
 the court replied that "no authority has been produce<l 
 in support of this principle, but, on the contrary, the 
 course of the boohs shows that the proper mode of 
 proceeding in such case would be to take out the exe- 
 cution conformed to the judgment, in the name of all 
 the creditors, without regarding the death of any one." 
 
 349 Powell V. Macon, 40 x\rk. TAl; Byrnes v. Sexton, G2 Minn. 135: 
 Brown v. Woody, 04 Mo. 547; Cowles v. Hall. 113 N. C. 350; Sawyers 
 V. Sawyers. 03 N. C. 321; Bower v. Holladay, 18 Or. 491; Fowler v. 
 Mickley, 30 Minn. 28. 
 
 350 Boylo V. Marouey, 73 lowa^ 70, 5 Am. St. Kep. G57; Code Ala,» 
 sec. 2880, ed. 1886.
 
 139 ISSUING THE ORIGINAL EXECUTION. § .SO 
 
 Probably, however, in a case like the present, on su{^- 
 gestion made to the court of the death of one of the 
 creditors in a judgment, where the interest survivi'd. 
 after judj;inent and before the issuing of an ex( cuticjii, 
 the execution would be ordered to issue in the name 
 of the survivor only.*'*^^ A judgment recovered in 
 favor of two or more persons would, on the death of 
 one or more, become vested in the survivor or surviv- 
 Qj.g 3r»a ^,|j^ would be entitled to issue execution or to 
 maintain an action on the judgment. The death of 
 part of the plaintiffs introduces no new parties to the 
 record, and therefore creates no necessity for a revivor 
 by scire facias. The general rule in regard to revivor 
 is, that it is indispensable whenever a new party is 
 to be charged or benefited by the judgment. ''Where 
 any new person is either to be better or worse by the 
 execution, there must be a scire facias, because he is 
 a stranger, to make him party to the judgment, as in 
 case of executor and administrator; otherwise, where 
 the execution is neither to charge nor benefit any new 
 party, as in this case, where there is a survivorship; 
 for there is no reason why death should make the con- 
 dition of the survivors better than before," ^'"^ 
 
 When one of several judgment defendants dies, sat- 
 isfaction may be sought solely by seizing the persons 
 or levying on the personal estate of the survivors, in 
 which cases no scire facias is needful to authorize the 
 
 351 H.imilton v. Lj'man, 9 Mass. 18; Bowdoin v. Jordan, 9 Mass. 
 160; Cushiuaii v. Carpenter, 8 Cush. 388; Withers v. llarris, Ld. 
 Rayni. 808: Howell v. EUlridge, 21 Wend. 078. 
 
 302 Freeman ou Cotenancy and Partition, sec. oG2. 
 
 853 Pennoir v. Brace, 1 Salk. 319; S. C, Pennoir v. Brace, Ixi. 
 Raym. 244; Mitchell v. Smith, 1 Litt. 243; Johnston v. Lynch, 3 
 Bibb, 337; Berry hill v. Wells, 5 Binn. 5tJ.
 
 § 3G ISSUING THE OUIUINAL EXKCUTION. 140 
 
 issue of executiou.^^* But it is otherwise if the heir 
 of the deceased is to be pursued.^*®^ In order that the 
 execution may couforiu to the judgment, it issues 
 against all the defendants, altliough it, for all prac- 
 tical purposes, amounts to no more than an execution 
 against the survivors. Under the common-law system 
 of procedure, a certain kind of writs issued against 
 the persons of the defendants, another kind against 
 the personal estate of defendants, and still another 
 kind was necessaiy to authorize satisfaction to be 
 made out of their real estate. The two former, being 
 personal in their nature, could issue after the death 
 of one of the defendants without any revivor. But 
 with the latter the rule was otherwise. If an elegit 
 issued it must have been against both the defendants, 
 to be executed on the lands of both. Each defendant 
 had the right to insist that one-half of the land of his 
 codefendant be extended, in order that the burden 
 might be lighter on him. "But if one defendant died 
 before execution issued, the lands descended and the 
 title vested in the heir. He had the right to show 
 cause (as he had never had a day in court) why 
 the judgment was not a charge on his land, and there- 
 
 354 Day V. Rice, 19 Wend. (>44; Cheatham v. Brien, 3 Head, 553; 
 Oaruaban v. Brown.. 6 Blackf. 93; Johnston v. Lynch, 3 Bibb, 334; 
 Wade V. Watt, 41 Miss. 248; Howell v. Eldridge, 21 Wend. G78; 
 '1 hompson v. Bondurant, 15 Ala. 346, 50 Am. Dec. 13G; Payne v. 
 Payne, 8 B. Mou. 392; Martin v. Branch Banlv, 15 Ala. 587, 50 Am. 
 Dec. 147; Hildretli v. Thompson, 16 INIass. 103. note; Dickinson v. 
 Bowers. 7 Baxt. 307; Fabel v. Boykin. 55 Ala. ;'.83; Reed v. Gai-field, 
 15 111. App. 290; Holt v. Lynch, 18 W. Va. .567; >Velch v. Battern, 47 
 Iowa, 148; Sheetz v. Wynkoop, 74 Pa. St. 198; Chandler v. Hudson's 
 Exrs., 11 Tex. 32. 
 
 355 Thus, in Pennoir v. Brace, 1 Salk. 319. "Holt. C. .L. held that 
 a capias or fi. fa., being in the personalty, might survive, and 
 might be sued against the survivors without a scire facias; other- 
 wise of an elegit, for there tlie heir is to be contributory." Blanks 
 V. Rector, 24 Ark. 496, 88 Am. Dec. 780.
 
 141 ISSUING THE ORIGINAL EXECUTION. § 36 
 
 fore a notice or scire facias must issue to him before 
 his lands could be taken in execution. The lands of 
 the surviving defendant being chargeable jointly with 
 the lands of the deceased defendant, and he having 
 tlie right to insist that this charge should be equally 
 divided between them, the plaintiff in execution could 
 not extend his land witliout a sci. fa. If, therefore, 
 the goods of the survivor were not sufficient to satisfy 
 the debt, the plaintiff could not proceed by his writ 
 of elegit; neither against the heir of the deceased de- 
 fendant, because he was entitled to have a day in court; 
 or against the surviving defendant, because he had 
 the right to sh(>w tliat the land, descended to the heir 
 of his codefendant, was jointly liable, with his own, 
 to pay and satisfy the charge. Hence arose the neces- 
 sity of a sci. fa against the surviving defendant, be- 
 fore his lands could be taken in execution." ^^^ In the 
 United States, the elegit has fallen into disuse, even 
 in those states where it was once employed. 
 
 An execution against two or more defendants may 
 be levied upon the real as wn^ll as upon the personal 
 estate of either; and there is no provision of law un- 
 der which a defendant can compel an execution to be 
 levied on the real estate of his codefendant as well 
 as upon his own. But in some cases the difference 
 between the manner in which real estate is subjected 
 to execution under our statutes from that under which 
 it was so subjected under the English statute has been 
 overlooked; and it has therefore been held that an exe- 
 cution cannot be levied on the real estate of the sur- 
 viving defendant until there has been a scire facias 
 against the heirs of tlie deceased codefendant; and 
 that, if so levied, the levy and sale are unauthorized 
 
 «06 Martin v. Branch Bank, 15 Ala. r.94, 50 Am. Dec. 147.
 
 § 36 ISSUING THE ORIGINAL EXECUTION. 142 
 
 and yoid.^^' But we think tliat the reasoning of 
 Judge Dargan, in pronouncing the opinion of the su- 
 preme court of Alabama, sufficiently demonstrates 
 that these cases ought not to be followed. He said: 
 ''Under our statutes, judgments are joint and several, 
 and executions may be levied on the lands of one of 
 the defendants alone without any levy on the lands 
 of the other, as at the common law they could be 
 levied on the goods of one alone, notwithstanding the 
 other had goods liable to execution. The decisions, 
 therefore, of the English courts, under their statute, 
 ought not to be adopted here, as ours is entirely differ- 
 ent in its legal consequences, and places lands on the 
 same footing with personal property in reference to 
 the payment of judgments; that is, they may be abso- 
 lutely sold under the same process, and a perfect title 
 passed to the purchaser; and the land of one may be 
 sold, though no levy is made on that of the other. It 
 thus being the right of plaintiff to sell the land of one, 
 without reference to the other, as at common law he 
 could sell the goods of one without making any levy 
 on the goods of the other, I cannot myself see any rea- 
 son for a sci. fa. against a surviving defendant, for 
 it would answer no purpose, and would not benefit 
 liim. The question here raised has never before been 
 made in this court, and we feel bound to decide it upon 
 our own statutes; and we believe that a just construc- 
 tion of them warrants us in saying that the lands of 
 a survivor may be sold under execution issued after 
 the death of a codefendant, without a scire facias." ^*^ 
 
 357 Woodcock V. Benuet, 1 Cow. 738, 13 Am. Dec. 568; Erwia's 
 I-«essee v. Dundas, 4 How. 77; Banks v. Eector, 24 Ark. 49G, 88 xVm. 
 Dec. 780. 
 
 ■558 Martin v. Branch Bank. 1.") Ala. 594; 50 Am. Dec. 147; Hardin 
 v. McCansc, ."):'. Mo. 2"r, Wade v. Watt. 41 Miss. 248: Christ v. Flau- 
 iiagaii, 23 Colo. 140; Iteed v. Garfield, 15 111. App. 200.
 
 143 ISSUING TUE ORIGINAL EXECUTION. § 37 
 
 § 37. Abatement of Writ by Death of a Party.— We 
 liave already stated that the death of a plaiutill, or 
 of a defendant, subseiiuently to the teste of an exe- 
 cution, had no other effect than if such death had oc- 
 < urred subsecjuentlv to the actual issuing of the writ. 
 We shall now consider whether the death of a fjlain- 
 tiff or defendant had any effect on an execution pre- 
 \ iously issued, and if so, in what cases and to what 
 extent. The coniiuon-law rule, in the event of the 
 <]eath of a plaintiff, as thus expressed and explained 
 in an early case, is sustained by all the authorities: 
 "There is a difference betwixt a judicial writ after 
 judgment to do execution, and a writ original; for the 
 writ judicial, to make execution, shall not abate, nor 
 is abatable, by llie death of him who sues it; as it is 
 the common course of a capias ad satisfaciendum, or 
 a fieri facias, upon judgment issueth, the sheriff shall 
 execute it, although the party who sued it died before 
 the return of the writ; and although the death be be- 
 fore or after execution, if it be after the teste of the 
 w rit, it is well enough; as where a capias ad satisfaci- 
 endum is sued, and the party taken, before or after 
 the death of him who sued it, and before the day of 
 return; or if a fieri facias be awarded, and the money 
 levied by the sheriff, and the plaintiff dies before the 
 I'eturn day of the writ, yet the executor or his admin- 
 istrator shall have the benefit and is to have the 
 money; and it is no return to say that the plaintiff is 
 dead; and therefore that he did not execute it." **'^® 
 
 359Massio's lloirs v. Lone:, 2 Ohio. 287, 15 Am. Dec. 547: Win.ij: v. 
 Hnsspy, 71 Me. ISG; Becker v. Becker. 47 Barb. 498; Fox v. Lamar. 
 2 Brev. 417; Cleve v. Veer, Cro. Car. 459; Ellis v. Griffitli. in Mees. & 
 W. lOG; 4 Dowl. & L. 279: 10 .Tur. 1014; IG L. .T. Ex. Gt!; Giesory v. 
 Cliadwell, 3 Cold. 390; Clerk v. Withers, 6 Mod. 290; 11 Mod. .35; 
 r>ragner v. I^augmead, 7 Term Kep. 20; Nell v. Gaut, 1 Cold. 39G;
 
 § 37 ISSUING THE ORIGINAL EXECUTION. 144 
 
 When a writ is once sued out against the personal 
 property of the defendant, the sherili" need not, and in 
 fact cannot, take any notice of the subsequent death 
 of the defendant. From its teste at common law, and 
 from its delivery to the officer under statutes where 
 the common-law fiction of relation to the day of teste 
 has been abolished, the writ is deemed to be in process 
 of execution; and when its execution is commenced 
 during the life of defendant, either in fact or in con- 
 templation of law, it must proceed. The officer may 
 therefore seize the chattels of the defendant, though 
 they have come into the possession of his executor or 
 administrator,^*^^ It is difficult, under the decisions, to 
 conclude whether the right to proceed under an execu- 
 tion after the death of a defendant was due to its be- 
 ing a lien on his property, or to some proceeding hav- 
 ing been commenced thereunder to enforce its satisfac- 
 tion which must be allowed to proceed to fruition upon 
 the theory that the right to proceed is dependent upon 
 the lien of the writ. It has been held that, though the 
 writ is tested in the lifetime of the decedent, yet, if its 
 lien does not commence until it is delivered to the sher- 
 iff, then that officer has no right to proceed under it^ 
 
 Murray v. Buchanan, 7 Blackf. 549; Clerk v. Withers, Ld. Raym. 
 1073; Thorough.tjoofl's Case. Noy, 73; Commonwealth v. Whitney, 10 
 Pick. 434; Buckner v. Terrill. Litt. Sel. Cas. 29, 12 Am. Dee. 260; 
 Gaston v. "White, 40 Mo. 48G; BiseloAv v. Renker, 25 Ohio St. 542. 
 But in Kentucky, the writ abates unless levied or replevied In plain- 
 tiff's lifetime, Wagnon v. McCoy, 2 Bibb, 198; Huey v. Redden, 3 
 Dana, 488; Bristow v. Payton's, Adrar., 2 T. B. Mon. 91, 15 Am. Dec. 
 134; Jones v. Newman, 36 Hun, 634. 
 
 360 Parker v. Mosse, Cro. Eliz. 181; Parsons v. Gill, Ld. Raym. 
 695; Eaton v. Southby, Willes, 131; Waghorne v. Langmead, 1 Bos. 
 & P. 571; Huey v. Redden, 3 D.^na, 488; Grosvenor v. Gold, 9 Mass. 
 214; Needham's Case, 12 Mod. -5; Thompson v. Ross, 26 Miss. 200; 
 Odes V. Woodward. Ld. Raym. 850: Dodge v. Mack, 22 111. 95; Ix)gs- 
 don V. Spivey, 54 111. 104; Craig v. Fox, 16 Ohio, 563; Arnold V- 
 P^uller, 1 Ohio, 458.
 
 145 ' ISSUING THE ORKilNAL KXECUl'KJX. § 37 
 
 thoiij^^li tested in the life of the (lefeiulaut, if it was 
 Dot delivered until afterward/"*^ and if, by statute, the 
 writ has been deprived of its common-law effect of im- 
 posinj; a lien, it abates on the death of the defendant 
 before niakini; any levy thereunder,'*"- unless it is is- 
 sued upon a judgment which has been preceded by an 
 attachment, or by some other proceeding creating a 
 lien on the defendant's property in his lifetime.^**"* 
 
 With respect to the real estate of the defendant, the 
 rule, according to a decided i)reponderance of the au- 
 thorities, is the same as that applicable to his personal 
 estate. An elegit bearing teste in the defendant's life- 
 time may, after his death, be extended on his real es- 
 tate, and the same is true of any other writ, so tested, 
 which may be employed to makt^ real estate answer- 
 able for the defendant's debt."*"* In Kentucky, the 
 death of a defendant at any time before sale abates the 
 execution both as to real and to personal estate; but 
 this result was not attained in that state through any 
 peculiar interpretation of the common law. It was ow- 
 ing to a construction giv( n a local statute.^^'' In New 
 York, it has been held that the real estate of the de- 
 fendant cannot be sold under an execution tested be- 
 
 361 People V. Bradley, 17 111. 4S.j. 
 361! .lewott V. Smith, 12 Mass. 309. 
 3<i3 Clrosvcnor v. Gold, i) Mass. 214, 
 
 364 Tidd's Pr., lUlU; Sprott v. Keid, 3 G. Greene, 492, 5G Aiu. Dec. 
 549; Doe v. Heath, 7 Blackf. loG; Erwin's Lessee v. Dundas, 4 How. 
 76; Bleecker v. Bond, 4 Wash. C. C. G; Doe v. Hayes, 4 Ind. 117; 
 Hanson v. Barnes, 3 Gill & J. 3.j9, 22 Am. Dec. 322; Jones v. Jones, 
 1 Bland, 443, 18 Am. Dec. 327; Mundy v. Bryan, 18 Mo. 29; Den 
 V. Hillnian, 2 Halst. 180; Aycock v. Harrison, G5 N. C. 8; Hurt v. 
 Nave, 49 Ala. 459; Davis v. Moore, 103 111. 445; Barber v. I'eay. 31 
 Ark. 392; .lones v. Kay, 50 Ala. 599; Unvls v. Coonil)s, GO Mo. 44. 
 
 365 Huston V. D\incan, 1 Br.sh, 205; Iloleman v. Iloleraan, 2 Bush, 
 514; Waj?non v. ISIcCoy, 2 Bibb, 198; Bristow v. Payton, 2 T. B. Mon. 
 91, 15 Am. Dec. 134. 
 
 Vol. I.— 10
 
 § 37a ISSUING THE ORIGINAL KXECUriON. 146 
 
 fore, but issued after, his deatli.^^'' This decision is, 
 we think, contraiy to the Aveight of authority upon the 
 subject, but it is in harmony with those decisions which 
 ground the right to proceed upon tiie theory that it is 
 because of the lien created in the lifetime of the de- 
 fendant, and, therefore, that, in the absence of the lien, 
 there can be no such right. But when execution has in 
 fact issued, and the sheriff has taken stejis for its en- 
 forcement, it is settled, even in New York, that the 
 death of the defendant cannot arrest the process."*"' 
 In Texas, executions seem to abate on the death of the 
 defendant, w^hether levied or not, and to be thereafter 
 regarded as absolutely void.''*''^ In Tenn{ ss e, the posi- 
 tion is taken that, as neither the issue nor the levy of 
 an execution upon real property defeats the title of the 
 judgment debtor, it descends to his heirs-at-law, and 
 hence that no further proceeding can be taken after 
 his death under an execution issued in his lifetime and 
 levied upon his lands without first iirosecutiug a scire 
 facias against his heirs.^***^ 
 
 § 37 a. Issuing Executions on Decrees.— Where a de- 
 cree is for the payment of a sum of money, it may now, 
 under the authority of various English and American 
 statutes, be enforced by the same writs of execution as 
 though the recovery had been at law instead of in 
 
 36C Stymots T. r.rooks, 10 Woiul. 210. 
 
 367 Wood V. Morehouse, 45 N. Y. 373. 
 
 388 Conkrite v. Hart, 10 Tex. 140; Chandler v. Burdett. 20 Tex, 42; 
 McMiller V. Butler, 20 Tex. 402; but the authority of these cases 
 is somewhat shaken in Webb v. Mallard, 27 Tex. 80. In Taylor v. 
 Snow, 47 Tex. 402, 20 Am. Hep. 311, it was detorminod that a sale 
 could not be collaterally avoided on the ground 1h;it tlie defendant 
 died before the rendition of llie judgment as well as before the issue 
 of the execution. I)url)in v. Diirbiu, 71 111. App. ."il. 
 
 •"■09 Rutherford v. Head, Humph. 423; , Overlou v. I'erkius, 10 
 Yerg. 328.
 
 147 ISSUING THE ORIGINAL EXECUTION. § 37a 
 
 equity.^'** Tlie issuiiijj; of these writs may generally 
 be obtained by demanding them of the proper officer as 
 soon as the creditor has become iMititled to immediate 
 compliance with the decree. In cases not provided for 
 by these statntes, resort must be had to other modes of 
 enforcing satisfaction. Since the writ of execution has 
 become obsolete, it is incumbent on thi^ prevailing 
 party to have inserted in his decree, or in some supple- 
 mental decree, a clause designating the time, or the 
 time after the service of such decree, within which the 
 act required by it to be done must be performed. A 
 copy of this decree must then be i>vocured and served 
 upon the defendant, and, in England, a memorandum 
 must be indorsed thereon to the following effect: "If 
 you, the within-named A B, neglect to obey this decree 
 by the time therein limited, you will be liable to be 
 
 370 Daniell's CIi. Pr., 4tli Am. ed.. 3042, and notes. In Florida, 
 the authority to issue execution on ;i decree is founded on rule 7 
 of the rules of circuit courts in suits in equity, which is as follows: 
 "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 iu the circuit courts in suits at common law." For some rea- 
 son, which the court failed to disclose, and which we can neither 
 conceive nor imagine, this rule was held to autliorize the issuing of 
 but one execution, and, in the event of the issue and return of an 
 execution, to leave the clerk without power to issue any alias or sub- 
 sequent writ. White v. Staley's Exrs., 21 Fla. 39G. A venditioni 
 exponas may issue when the sheriff has seized goods which remain 
 unsold for want of bidders. If he has gone out of otfice he may be 
 compelled to proceed to sale by the writ of distringas nuper vice- 
 coniiteni. Seton's Forms of Decrees, Judgments, and Orders. 4th 
 ed., loGl. It is, of course, essential to the right to issue execution 
 on a de<;r€€ that it be of the same character as a judgment for 
 the payment of money, or. in other words, tliat the relief to which 
 the party has been adjudged to be entiUed is the payment of money. 
 Hence if the decree is that the defendant execute a bond and mort- 
 gage on specified real property for a sum stated, and that such 
 property be subject to a lien for such sum, the court cannot amend 
 tlie decree so as to direct that execution shall issue for a sale of the 
 property to satisfy such amount. Koberge v. "Wiuue, 75 Hun, 597.
 
 § 37a ISSUING THE ORIGINAL EXECUTION. US 
 
 arrested, under a writ of attachment issued out of the 
 hi<^h court of chancery, or by tlie sergeant-at-arms at- 
 tending the same court; and also be liable to have your 
 estate sequestered, for the purpose of compelling you 
 to obey the same decree," ^^^ If the time for perform- 
 ance is fixed by the decree, the service of the copy must 
 be made before such time, or an order must be obtained 
 and served enlarging the time or fixing a new period 
 for such performance. The service of the copy of th<^ 
 decree must be personal, unless the court authorizes 
 the adoption of some other mode. When tlie parly 
 has absconded, or cannot be found, or keeps his door 
 locked, the court will order substituted service upon 
 his solicitor. A decree may direct the sale of property, 
 to satisfy a lien or for some other purpose, in which 
 case, in the absence of any statute to the contrary, the 
 commissioner, or other officer authorized to make the 
 sale, "may proceed by authority of the decree alone, 
 without any order of sale or other process.'^'^^ It is 
 usual, in most of the states, to issue upon such decrees 
 what are commonly called orders of sale, which either 
 recite the substance of the decree or refer to an an- 
 nexed copy, and command the officer to execute the 
 decree. The decree itself must be regarded as of para- 
 mount authority. Its effect cannot be limited by the 
 order of sale, or impaired by v-ariances and other de- 
 fects therein,"''^^ nor by the issuing of an execution in 
 the form of a fieri facias.'^'"* 
 
 371 Daniell's Ch. Pr., 4th Am. eel.. 104.3; Seton's Forms of Decrees, 
 Judgments, and Orders, 4th ed.. 1.^.5.5, InOO. 
 
 37:: .Johnson v. (>>lhy, .^)2 Neb. :]2~: McKinley etc. Co. v. Ilamer, 52 
 Neb. 701); post, § 47a. 
 
 373 .Tarrett v. Hoover, 54 Neb. C"). 
 
 874 Mitchell V. Ringle, 151 Ind. IG, G8 Am. St. Rep. 212. .
 
 149 ISSUING THE ORIGINAL EXECUTION. § 37b 
 
 § 37 b. Proceedings to Enforce Decrees by Attach- 
 ment and Punishment for Contempt.— in England, the 
 writ of Jittticbment was formerly issued by the clerk, 
 npon his beinj; satisfied by affidavit of the due service 
 of the c()[)y of decree, and that it had not been obeyed 
 within the time designated; ^'''' but we belit've it is now 
 generally the practice, both in that country and in the 
 United States, not to issue this writ except upon leave 
 or order of the court; and that this order is not issued 
 until the party alleged to be in contempt has had no- 
 tice of the application therefor, and an opportunity to 
 show cause why he should not be proceeded against as 
 one guilty of a contempt."'^ After the attachment 
 issued, the defendant was arrested thereunder and 
 lodged in prison if he could be found, and this impris- 
 onment, where it was possible to arrest the defendant, 
 seems to have been a prere(iuisite to further proceed- 
 ings against him.^" The plaintiff may, if he chooses, 
 leave the contumacious defendant in prison until he 
 purges himself of his contempt by performing the act 
 required of him and paying the costs of the contempt. 
 
 By the ])ractice generally prevailing in the United 
 States, if a party is, by a decree, required to do some- 
 thing, a demand must first be made upon him that he 
 do it, and he cannot be regarded as in contempt until 
 such demand has been made upon him and he has re- 
 fused or neglected to comply therewith.^''** If one 
 
 375 Danioll's Ch. I'r., 4th Am. ed., 1046. 
 
 37G Seton's Forms of Decrees, Judgments, and Orders. 4th ed., 
 1507; Gates v. McDaniol. 3 Port. 356; Androscosjrin R. R. v.. Andro- 
 scoggin R. R.. 49 Me. 392; Ex parte Langdon. 25 Vt. 680; Ex parte 
 Petrie. 3S 111. 49S: AVightman v. Wightman, 45 lU. 167. 
 
 «77 Kinsey v. Yardley, Dkk. 265; Danioll's Ch. Pr., 4th Am. ed., 
 1047. 
 
 378 Haines v. People, 97 111. HH; Edison v. Edison. 56 Mich. 1S5; 
 BufTum's Case, 13 N. H. 14; Matter of Oekershauson, 59 Hun, 200; 
 McCord V. Weaver, 11 Hun, 271.
 
 § 37b ISSUING THE ORIGINAL EXECUTION. 100 
 
 has, after such demand, failed to comply with the de- 
 cree, or if the decree has prohibited him from doing 
 something and he has nevertheless done it, pi-oceedings 
 are ordinarily commenced by an affidavit disclosing 
 the facts which it is claimed establish that the party 
 thus proceeded against has been guilty of a con- 
 tempt.^'^** An affidavit is not the exclusive mode of 
 disclosing such facts; they may appear from a return 
 made by some officer of the court,^**^ or may be dis- 
 closed in some other mode/'^^^ 
 
 Some proceeding must be taken to give the court jur- 
 isdiction over the party. This is usually by the issu- 
 ing of an order that he show cause why an attachment 
 should not be issued against him, or why he should not 
 be punished for the alleged contempt."^- The better 
 course is to serve this order on the party personally.****'* 
 It may, however, be served upon his attorneys,^*** and 
 the court may authorize other modes of service, as by 
 leaving^a copy at the party's last place of abode. ^''^ 
 
 In defense the accused may show that he had no no- 
 tice of the order or decree which he is accused of dis- 
 obeying.^*^" To avoid this defense, it is usual, before 
 instituting proceedings for contempt, to serve a copy 
 of such order or decree, but this is generalh' regarded 
 
 37»w.vatt V. People, 17 Colo. 252; State v. Heuthoin, 4t; Kan. 613; 
 In re Wood, 82 INlleh. 75; Phillips v. Welch, 12 Nev. 158; Clark v. 
 Biningor, 75 N. Y. 344. 
 
 380 Wilson V. Stale. 57 lud. 71; Jordan v. Circuit Court. 69 la. 177. 
 
 381 State V. Frew, 24 W. Va. 416, 44 Aru. Rep. 257, 
 
 382 Beck V. State, 72 Ind. 256; Pittman v. Ilagins, 91 Ga. 167; 
 Hawkins v. State, 125 Mo. .570. 
 
 383 Rapalje on Contempts, § 104. 
 
 384 Pitts V. Davison, 37 N. Y. 2:?5; Eureka Lake r. Superior Ct, 
 66 Cal. 311; Fisclior v. Raab, 58 How. Pr. 221. 
 
 385 Palmer v. Palmer, 28 Fla. 295; Hollingsworth v. Duane. Wal- 
 lace, C. C, 141. 
 
 386 Lewis V. Singleton, 61 Ga. 104,
 
 151 ISSUING THE ORIGINAL KXECUTION. § 3<b 
 
 as unnecessary if the defendant was present in court 
 when it Avas pronounced, or is otherwise shown to have 
 had artuiil notice tliereof before its viohition.''"'^' The 
 defendant will not be punished if he shows that he has 
 failed to comply with the decree through his inability 
 to do so, not i>r()(liiced by his own fauit/''^^ The de- 
 fendant cannot ordinarily avail himself of any mere 
 irre}j;ularity or error in the order or decree which he 
 has disobeyed, AMiile it remains in force, he can ex- 
 cuse his disobedience only by showing thai ilie court 
 did not have authority to make it, or, in other words, 
 that it was void.^^'* To insure a compliance with its 
 decree the court may direct the imprisonment of the 
 defendant until he has yielded obedience thereto, un- 
 less he shows such obedience to have become impossl- 
 
 Proceedings to punish for contempt should not be 
 employed to compel an obedience to a judgment, the 
 effect of which has been suspended by an appeal or 
 writ of error. A judgment was entered declaring an 
 election of directors of a corporation invalid and that 
 certain other persons were elected and were entitled 
 to such offices. The court pronouncing the judgment 
 issued an order against the defendant to show cause 
 why he should not be punished for a contempt of court 
 
 887Tliebaut v. Canova. 11 Fla. 143; O'Callaglian v. O'Callagban, 
 G9 111. 352; McDoniioU v. Henderson, 74 la. tJlO; Winslow v. Xayson, 
 113 Mass. 411; Having y. Kauffman, 13 N. J. Eq. .307, 78 Am. Doc. 
 102. 
 
 sssGalland v. CJalland, 44 Cal. 47o, 13 Am. Kop. 1(;7; Hull v. Har- 
 ris, 45 Conn. 544; Cowart v. Dnubar. 5G CJa. 417; Hogne v. Hayes, 
 53 la. 377; Boyett v. Vaiighan, 89 X. C. 27; Witter v. Lyon, 34 Wis. 
 564. 
 
 3S9 Wandliug v. Tliompson, 41 N. .F. li. 142; People v. P>ergen, 53 
 N. Y. 404; Kapalje on Contempts. §§ 16, 33. 117. 
 
 300 Chapel v. Hull. (>0 Mich. 1G7, 11 Am. St. Itep. 573; Ex parte 
 Haley, 37 Mo. App. 5G2.
 
 ^ ;)7c ISSUING THE ORIGINAL EXECUTION. 152 
 
 iu preventing tlie plaintiff from taking possession of 
 the office to Avhieli lie had been declared entitled. It 
 was insisted that a judgment of the character in ques- 
 tion was self-execnting, and, though appealed from, 
 continued in force until reversed or otherwise vacated, 
 and, if so, that the defendant was guilty of contempt. 
 The appellate court, however, decided that the defend- 
 ants, by their compliance with the provisions of the 
 statute for perfecting their appeal, had thereby stayed 
 all further proceedings in the court below upon the 
 judgment or ordi r appealed from; that the effect of the 
 appeal was to leave the parties in the same position 
 with reference to the rights involved in the action, as 
 they were prior to the rendition of the judgment, and 
 hence that the court had no power to punish the ac- 
 cused for disobeying the judgment thus suspended by 
 the appeal."*"^ 
 
 § 37 c. Issue of Writ of Sequestration.--lt may hap- 
 pen that the defendant cannot be found and arrested, 
 or, being found and put in prison, remains there with- 
 out obeying the decree. In this event, a further remedy 
 of the, complainant is by the writ of sequestration.*"*^ 
 When it appears that the defendant is out of the juris- 
 diction of the court, this writ may issue without first 
 proceeding to sue out an attachment.*"*^ Formerly, on 
 the return of non est inventus to the writ of attach- 
 ment, the plaintiff might have "an order for the ser- 
 geant-at-arms, and such other process as he was 
 
 391 Foster v. San Francisco Snpr. Ct., 115 Cal. 279. 
 
 302 Ross V. Colville, 3 Call, 382; 8tli Equity Rule of United States 
 Courts; Roberts v. Patton, 18 Mo. 481. 
 
 393 Re East of England Bank, 10 Jur., N. S., 1093, 2 Drew. & S. 
 284. Writ of sequestration may now issue in Eugland after ser- 
 vice of a copy of the decree. Seton's Forms of Decree, etc.. 4th ed., 
 1576; Sprunt v. I'ugh, 7 Ch. Dec. 507; Sykes v. Dyson. 9 Eq. 228.
 
 153 ISSUING THE ORIGINAL EXEe UTJON. § 37c 
 
 formerly oiititled to, upon a return nou est inventus, 
 made by the conjniissioners named in a eommission of 
 rebellion, issued for the nonperformance of a decree or 
 order."""* The writ of setiuestration issues in Eng- 
 land, upon motion, as of course, wlien it a])pears that 
 the defendant against whom the attachment issued 
 cannot be found within the jurisdiction of the court, or, 
 being found, is imprisoned and neglects to obey the 
 decree."^'* In some of the oases it is said that notice of 
 the motion should be given, if it is intended to execute 
 the sequestration against lands, because the court 
 might limit it to certain lands.'^"" Even when sought 
 against lands, the want of notice was said not to be 
 an objection to the application, if the defendant had 
 not appean^l in the cause.'***' It may issue against an 
 infant,'"*** and because of the nou])erformance of every 
 <'onceivable kind of decree. Hence it may issue where 
 defendant refuses to produce deeds,"****" or to deliver 
 property to a receiver,^"" or to perform a personal 
 duty.^"^ In ^Fai'yland, the plaintiff seems by statute to 
 be entitled to this writ without resorting to an attach- 
 ment, or even serviiig any copy of the decr(M\ or mak- 
 ing any demand for its performance. *"" In Pennsylva- 
 nia, a writ of sequestration is ''the execution process, 
 where judgment has been obtained against corpora- 
 tions, except counties and townships, or others of like 
 
 394 Daniells Ch. Pr., 4th Am. ed., 1048; Hook v. Itoss, 1 Hen. & 
 M. 320. 
 
 395 Roberts v. Stoner, 18 Mo. 481. 
 
 396 Welsh V. Welsh, 2 Ir. Eq. 300; Mouk v. Lawlor, 1 Jones Ir. 
 554. 
 
 39T Edwards v. Edwards, >3 Ir. Eq. 502. 
 
 398 Anonymous, 2 Ch. Cas. 163. 
 
 399 Trig V. Trig. Dick. 325. 
 
 400 People V. Rogers, 3 Paige, 103. 
 
 «>i Guavers v. Fonntaine. 2 Freeni. 99. 
 ■*02 Kelglder v. Ward, 8 Md. 254.
 
 § 37c ISSUING THE ORIGINAL EXECUTION. 154 
 
 public municipal character." It is demandable of right, 
 and may therefore issue without notice.^**'' The writ of 
 sequestration was irregular if issued at any time after 
 the death of the defendant, and was liable to be va- 
 cated.^"* Where there is any change of parties after 
 judgment, leave must be obtained for the issue of any 
 writ of sequestration.^"^ The sequestration is a per- 
 sonal proceeding, and after the death of the party in 
 default it cannot be revived against his heir unless the 
 decree is for the land, or for the performance of a cove- 
 nant in which the heir is bound; but it may be revived 
 against the defendant's personal representative if the 
 decree is for a mere personal demand.'**^^ The seques- 
 trators may, as such, have come into the possession of 
 real or personal property, or both, wiiich they are au- 
 thorized to sell or to hold for the purpose of producing 
 a satisfaction of the decree. Where such is the case, the 
 death of the defendant does not necessarily relieve 
 such property from liability, nor deprive the sequestra- 
 tors of their authority to proceed as if he were alive. 
 Hence a motion, in such a case, to discharge the seques- 
 trators because of the death of the defendant may be 
 denied.'***'' In order to make the w^rit of sequestration 
 effective, it may be necessary to apply to the court from 
 time to time for further authority. Thus while the se- 
 questrators may not, by virtue of the writ alone, sell 
 any property ,■*•*** they may be authorized to sell per- 
 
 403 Reid V. N. W. Il'.v. Co., 32 Ta. St. 2."!. 
 
 404 Chick V. Smith, 8 Dowl. P. C. 337, 4 .Tur. 8G. 
 
 405 Seton's Forms of Decrees, etc., 4th ed.. ].o78; Cmilston v. Gardi- 
 ner, 2 Ch. Cas. 43; Burdett v. Rocklcy, 1 Vern. 58. 118. 
 
 406 Danieirs Ch. I'r.. 4ih Am. cd., lO.'O, 1033; Wharara v. Brou.irh- 
 ton, 1 Ves. 182. 
 
 407 iTydo V. Grceuhill. 1 Dick. lOG; Tratt v. loman, L. K. 43 Ch. 
 D. 17.'j. 
 
 408 Shaw V. Wright, 3 Ves. 22.
 
 155 ISSUING THE ORIGINAL EXECUTION. § 37d 
 
 sonal estate by the court upon motion, and after no- 
 tice to the defendant.'^^ 
 
 § 37 d. Writs of Assistance, upon what Decrees and 
 for and against Whom may Issue.— it the decree directs 
 the possession of property to be surrendered or given 
 to any person, he is entitled, without first pursuing pro- 
 ceedings by the ordinary process of contempt, "upon 
 due service of tlie decree or order, to an order for a writ 
 of assistance, directed to tlie sheriff of the county 
 where the property lies, commanding him to put the 
 plaintiff into the possession of the premises in ques- 
 tion, pursuant to the decree or order. A demand for 
 possession is not now necessary." ^^*^ In tlie United 
 States it is believed that the rule is otherwise, except 
 in those cases in which the decree has expressly or sub- 
 stantiallj'' directed tlie writ to issue, so that thi' clerk 
 of the court is empowered to issue it without any fur- 
 ther proceedings. The theory of the courts in this 
 country is that this writ does not issue except when 
 its issuing is shown to be necessary, and that it cannot 
 be so shown until a demand has been made upon the 
 party who is desired to surrender possession, and he 
 has refused or failed to comply therewith."*^^ 
 
 As to the decrees or orders which may justify the 
 issuing of this writ, it may be stated broadly that 
 whenever there has been an adjudication in equity 
 from which it api^ears that a party is entitled to be in 
 possession of property, the court will not require him 
 
 400 Mitchell v. Draper, f) Vos. 20S; Cowpcr v. Tnylor. IG Sim. ai4. 
 Cadoll V. Smith, 3 Swan, 300. 
 
 410 Danioll's Ch. Pr., 4th Am. cd., 10G2. This writ is said to he 
 superse<led by the writ of possession. Seton's Farms of Decrees, 
 etc.. 4th ed.. 15G2. 
 
 411 Howard v. Bond, 42. Mich. 131; Knight v. noughtalling, 94 
 N. C. 408.
 
 § 37d ISSUING THE ORIGINAL EXECUTION. 156 
 
 to bring some further or independent suit or action, 
 but will grant him this writ, entitling him to be placed 
 in possession of the property. This is but an applica- 
 tion of the general principle that ''when a court of 
 chancery obtains jurisdiction of the subject matter of 
 a suit, it will retain it to the end that justice may be 
 done between the parties." Hence this writ will issue 
 when hj a decree a conveyance of property has been 
 directed,^^- or the defendant's title has been di- 
 vested,**^ or where, by a cross-bill, the defendant has 
 shown that he is entitled to the possession of property 
 which is held by the plaintiff,'*" or when, as the result 
 of partition or otherwise, property has been directed 
 to be sold, and a purchase has been made, and a con- 
 veyance executed pursuant to the decree."*-*^^ In a suit 
 for a divorce, if one of the parties is required to deliver 
 property to the other, the rights of the latter may be 
 i'uforced by a w^rit of assistance. Where the propriety 
 of issuing such a writ was questioned, the court said: 
 ^'The court, in fixing the status of the litigants, has the 
 unquestioned power to dispose of the property of the 
 community, dividing it between the spouses in such 
 proportions as seem just. It has also jurisdiction to 
 determine whether or not a given piece of property is 
 or is not community property. Having these ample 
 powers to adjudge and to award, it would be anomal- 
 ous indeed, if, under our simplified procedure, it were 
 obliged to send either of the parties into another forum 
 to prosecute another action to obtain possession of that 
 which it had the power to give." **^ It is, of course, es- 
 
 412 Garretson v. Cole, 1 Har. & .T. :M0. 
 
 413 Irvine v. Mcra-e, 5 Huinph. 554, 42 Am. Dec. 4GS. 
 41* Lloyd V. Barues, 45 III. G2. 
 
 415 Keil V. West, 21 Fla. 508. 
 
 416 Kirsch v. Kirsch, 113 Cal. 56.
 
 157 ISSUIXU THE ORIGINAL EXECUTION. § 37d 
 
 sential tbat the order or decree under wliieli the writ 
 is claimed should be so far final as to determine the 
 rights of the parties. Hence the writ should be refused 
 a purchaser at a judicial sale which has not been con- 
 firmed, for, until such confirmation, it cannot be known 
 Avhether he will become entitled to the i)ossession of 
 the property or not.^^'' 
 
 The persons who may become entitled to a writ of as- 
 sistance include^ according to the weight of authority 
 upon this subject, all those, whether nominally parties 
 to the suit or not, who by the decree or order of the 
 court or by or as a result of proceedings taken for its 
 enforcement, become entitled to the pos-ession of the 
 premises. It may therefore issue on behalf of the se- 
 questrators,'*** or of receivers, to put them in posses- 
 sion of the defendant's realty.^*" It may issue in favor 
 of a complainant who has obtained a decree divesting 
 defendant's title, or determining conflicting claims of 
 title between the plaintiff and the defendant, or direct- 
 ing the defendant to maive a conveyance of specified 
 property,'*^** or in favor of a defendant who, by cross- 
 bill or otherwise, has shown himself to be entitled to 
 the possession, as where a cross-bill is maintained 
 against a mortgagee in possession.*'* Its chief em- 
 ployment in the United States is to place in possession 
 persons who have purchased real property at foreclos- 
 ure or other equity sales. Although such purchasers 
 have a remedy by an action at law to recover such pos- 
 
 <i7 Moohnn v. Blodeett. 91 Wis. (53. 
 4i«Daiii('irs Cli. Pr., 4tli Am. ed., 10.")G. 
 
 419 Sharp V. Carter, 3 P. Wms. 379, note; Cazot do la Rorde v. 
 Othon. 23 Week. Rep. 110. 
 
 420 Landregau v. Peppin, 94 Cal. 4(55; Irviiif v. :MiK(m\ 'j Humph. 
 554, 42 Am. Dee. 408; Garretson v. Cole, 1 II. &J.370. 
 
 421 Lloyd V. Karnes, 45 111. U2.
 
 § 37d ISSUING THE ORIGINAL EXECUTION. 158 
 
 session, the court of equity under whose proceedings 
 they have acquired their title iuteri:>oses in their be- 
 half, and relieves them, in proper cases, from the ex- 
 pense, delay, and annoyance of an independent action 
 in another forum.^^^ When the purchaser was already 
 a party to the suit, there has never been any doubt 
 that this writ w^ould issue in his name and for his bene- 
 g^ 423 ^v^iien, however, the purchaser was not a party 
 to the suit, it has been claimed that he was not entitled 
 to this writ, and that he could not otherwise obtain 
 its aid than by procuring one of the parties to make 
 the application therefor in his behalf.^-* The decisions 
 to this effect are mere dicta, and are based on false 
 premises, to wit, on the supposition that as such pur- 
 chaser was not a party to the suit, it would be incon- 
 gruous and irregular to permit him to take any pro- 
 ceeding therein in his own name. But a purchaser at 
 an equity sale, from the moment of the striking off the 
 property to him as the successful bidder, has always 
 been treated as a party, and no court of equity has hesi- 
 tated to treat him as such, either when as a moving 
 party he sought to obtain the confirmation of the sale, 
 or when as a respondent he was called before the court 
 for the purpose of compelling his compliance with the 
 terms of the sale."*^^ He is, therefore, substantially a 
 
 422 Terrell v. Allison. 21 Wall. 289; Beatty v. De Forest, 27 N. ,T. 
 Eq. 482; Diggle v. Boukleu, 48 Wis. 477; Commonwealth v. Dieffen- 
 bacli, 3 Grant Gas. .308; Brown r. Marzyck, 19 Fla. 840; Voigtlander 
 V. Brotze. 59 Tex. 286; Hibernia S. & K Soc. v. Lewis, 117 Cal. 
 577; Higgins v. Petei'son. G4 111. App. 256; Watkius v. Jarmau, 26 
 Kan. 464; Ketchum v. Robinson, 48 Mich. 618. 
 
 423 See cases last cited; Dorsey v. Campbell, 1 Bland Cb. .363, 
 •124 Wilson V. Polk, 13 Smedes & M. 131, 51 Am. Dec. 151; Lang- 
 ley V. Veil. 54 Oal. 436. 
 
 425 Redus V. Hayden, 43 Miss. 636; Clarkson v. Read, 15 Gratt. 
 295.
 
 159 ISSUING THE OKIGIXAL KXKCUTION. § 37d 
 
 party to the suit from tbo (^lato of his piiicliase, and the 
 court will issue its writ of assistauco iu his behalf un- 
 less some good reason is shown for witliholding it.*^" 
 The writ has been issued in favor of th<' purchaser's as- 
 signee to wlioin the conveyance was niade,"*^" and also 
 in behalf of one to whom the purchaser granted the 
 property after conveyance.'*^'* 
 
 The parties against whom a writ may issue are de- 
 terminable by considering the nature of the decree, the 
 matters determined thereby, and the parties against 
 whom the determination is conclusive. The writ is for 
 the purpose of completely executing the decree. It 
 may, therefore, issue against all persons who are 
 bound by the decree to the extent, at least, that their 
 rights are adjudged thereby, but it cannot properly is- 
 sue against any one who has a right to question the de- 
 cree or resist its enforcement. Hence, as we shall here- 
 after show, there may be instances in which this writ 
 will not issue even against a party to the suit. If the 
 person sought to be removed was not a party to the 
 suit, and was in possession prior to its institution, 
 either claiming adversely to the parties ^-^ or hold- 
 
 ■•26 Jones V. Hooper, 50 Miss. 510; overi'iiliuji on this point, Wil- 
 son V. Polk, 13 Smedes & M. 131, 51 Am. Dec. 151; Wilbor v. Dan- 
 olds, 59 X. Y. G57; Knight v. Houghtallius;. 94 N. C. 408; Sclienck v. 
 Conover. 13 N. J. Eq. 220, 78 Am. Dec. 95; Lambert v. Livingston, 
 131 111. 101; Walkius v. Jarman. 30 Kau. 404; McLaue v. Piaggio, 
 21 Fla. 71. 
 
 ••27 Ekings V. Murray, 29 N. .7. Eq. 388. 
 
 428 N. Y. L. I. & T. Co. V. Pvand. 8 How. Pr. 35, 3.52: Gibson v. 
 Marshall, 64 Miss. 72; McLane v. Piaggio, 24 Fla. 71; Ketchum v. 
 Robinson, 48 Mich. CIS; Farmers' L. & T. Co. v. Chicago etc. Co., 
 44 Fed. Ilcp. G53. 
 
 4-9 Gelpoke v. Milwaukee R. R., 11 Wis. 4.54; Howard v. R. R. 
 Co.. 101 U. S. 837; Frelinghuysen v. Colden. 4 Paige. 204; Brush v. 
 Fowler, 30 111. 53, 85 Am. Dec. .382; Root v. Paine. 22 111. App. .349; 
 Ricketts v. Chicago etc. L. Assn.. G7 111. App. 71; Exnm v. Baker, 
 115 N. C. 242, 44 Am. St. lU-p. 449; Comer v. Felton. Gl Fed. Rep. 
 731.
 
 § 3:a ISSUINCi THE ORIGINAL EXECUTION. 1G(; 
 
 ing a right of posspssion derived from some of them,'*"^" 
 and wbicli has not terminated, then the writ Avill not 
 issue to dispossess hira, and the purchaser will be re- 
 quired to resort to some independent suit or action ta 
 vindicate his claim to the possession. There may he 
 tenants in possession under the defendant who are not 
 made parties to the suit, or, being made parties, hold 
 under leases executed before the mortgage sought to 
 be foreclosed, and who, hence, should not be prejudiced 
 by the final decree. In such a case it has been held 
 that such tenants should yield so far as consistent with 
 their rights, and that a writ of assistance may issue 
 against them unless they attorn to the purchaser.*"'^ 
 The rule as to the parties against whom a writ of as- 
 sistance may be directed and enforced is doubtless the 
 same as the rule designating the persons who may be 
 lawfully dispossessed by an olKlcer executing a v/rit of 
 possession,"*^- to w it, the parties to the suit, and all per- 
 sons receiving possession from or under them pendente 
 lite, by their consent or connivance, and also mere in- 
 truders into possession after the commencement of the 
 suit.^^^ If, however, the statute requires a notice of 
 the pendency of an action to be filed and recorded to 
 operate as constructive notice of such action, a pur- 
 chaser pendente lite, in the absence of such notice and 
 without actual notice of the pendency of the suit, is not 
 
 430 Tliomas v. De Baum, 14 N. J. Eq. 37; Gilcreest v. Magill, 37 
 111. 300; Heffron v. Gage, 44 111. App. 147; Ex parte Jenkins, 48 S. 
 C. 325; Farmers' L. & T. Co. v. Stateu Island B. L. Co., 39 N. Y. 
 Supp. 9C>C. 
 
 4.n Lovett y. CJei-mau B. C, 9 ITow. Br. 220. 
 
 4?.2 For such rule, see post, § 475. 
 
 433 Hooper v. Youge, G9 Ala. 484; Burton v. Lies. 21 Cal. 87; 
 Brown v. Marzyck, 19 Fla. 840; Knight v. Iloughtalling, 94 N. C. 
 408.
 
 161 ISSUING THE ORIGINAL EXECUTION. § 37d 
 
 bound by the final decree, and cannot be subjected to a 
 writ of assistance based thereon."*^^ 
 
 One may successfully^ resist an application for a writ 
 of assistance, though he came into possession of the 
 property after the commencement of the suit, if he is 
 not in privity with the parties to the suit and did not 
 act in collusion with some of them, as where he pur- 
 chased pendente lite from one not a party to the suit, 
 but who was in possession at its commencement, claim- 
 ing adversely to the parties thereto,^^ nor, as we un- 
 derstand the decisions, is it necessary that a purchase 
 be shown from one in possession who is not a party to 
 the suit. It is sufficient that an entry made pendente 
 lite was not by connivance with any of the parties, and 
 was in good faith and under a claim of title in behalf 
 of the person making such entry, or in behalf of one 
 for whom he acted as agent.**^*^ Courts are required to 
 exercise, and do exercise, care to protect persons enti- 
 tled to a writ of assistance from the acts of third per- 
 sons probably induced by collusion with a party who, 
 being no longer entitled to remain in possession on his 
 own account, seeks to deprive his adversary of the 
 fruits of his victory by causing a stranger to take such 
 possession; and, unless it is clear that he who entered 
 pendente lite did so in good faith and without collu- 
 sion, a writ of assistance will issue against him.'*^'' 
 
 If the defendant was in possession under a claim of 
 right thereto of a character which could not be liti- 
 gated in the suit in which the decree was pronounced 
 and may, therefore, maintain this claim without dis- 
 
 <34 Harlan v. Earkerby. 24 Cal. 5G1. 
 435 Van Hook v. Tbrotkmortou, 8 Paige, 33. 
 «6 Post, § 475. 
 
 43T Brown v. Marzyck, 19 Fla. 840; Carpenter v. White, 43 IlL 
 App. 448. 
 
 Vol. I.— 11
 
 § 37d ISSUING THE ORIGINAL EXECUTION. 162 
 
 puting anything decided by such decree, a writ of as- 
 sistance will not issue against him. Thus, though he is 
 a party to a suit to foreclose a mortgage, he may hold 
 some adverse title not included in the mortgage, and 
 which, under the practice prevailing, cannoc be as- 
 serted as a defense to such foreclosure.'*^** ''Where a 
 new and independent right to property has been ac- 
 quired, or where a prima facie showing of the acquire- 
 ment of such a right is made, the writ should not issue 
 and cannot operate to affect such new and independ- 
 ent right. The writ relates back to, and operates upon, 
 those rights only which have been determined by the 
 judgment. The reason for the issuance of the writ is 
 to give effect to rights awarded by the judgment. It 
 should not and cannot operate to establish in the one 
 party, or to 4estroy in the other, any rights to the prop- 
 erty independent of those determined by the judgment. 
 So it would follow if appellant in this case had made 
 even a prima facie showing of a new title by adverse 
 possession — the issuance of the writ which would have 
 passed judgment upon that title would have been im- 
 provident and irregular. But while appellant claims ' 
 a new title by adverse possession, the bald assertion 
 of an unsupported claim is not a sufficient warrant for 
 asking the court to withhold its process." ^^^ The 
 right to a writ of assistance cannot be lost by some 
 
 * 
 
 other adjudication against the plaintiff taking place 
 before his right to the writ of assistance Avas perfected. 
 Hence, a judgment against the applicant in a proceed- 
 ing for forcible detainer cannot impair his right to a 
 writ of assistance when there is no pretense that such 
 
 <'58 Haynard v. Kinney, S4 Alicli. uOl; Cbadwick v. Island Beach 
 Co.. 42 N. J. Eq. 002. 
 439 Kirsch v. Kirscli, 11.3 Cal. 56.
 
 1G3 ISSUING THE ORIGINAL EXECUTION. § 37a 
 
 right wns litigated in the forcible detainer proceed- 
 ing.^^ If tlie applicant for thi' writ of assistance had, 
 prior to such application, instituted some other pro- 
 ceeding to recover possession in which he failed, be- 
 cause he had not made the requisite demand or had 
 not done some other act entitling him to the posses- 
 sion, this failure cannot be pleaded in bar of his appli- 
 cation for a writ of assistance made after he had per- 
 formed all the conditions precedent necessary to enti- 
 tle him thereto.'**^ 
 
 The defense made to a writ of assistance cannot in- 
 volve a relitigation of the matters necessarily deter- 
 mined by the decree,'**' but it may properly include any 
 matter not so determined, and Vhich shows that the 
 party resisting has the right to remain in possession. 
 It would, perhaps, -be more accurate to state that if 
 there is a claim of right not determined by the decree 
 already rendered, the claimant will be left in posses- 
 sion and allowed to present his claim as a defense to 
 some independent proceeding brought against him. In 
 other words, a writ of assistance will be directed only 
 in a cl<?ar case, and when the respondent cannot pos- 
 sibly have any rights which were not subject to the 
 decree.^"* If, for instance, he sets up and appears to 
 claim in good faith a right to the possession derived 
 from and under the purchaser,'*'** or from the defend- 
 
 410 vahle v. Bivckeiispik. 14.") lU. 237. 
 
 "41 Cochran v. Foliier, IIG 111. 194. 
 
 4 42 Koll V. West. 21 Fla. 508; Howe v. Lemon. 47 Mich. 544. 
 
 443 Blauvolt V. Smith, 22 N. J. Eq. 31; Thompson v. Campbell. ,^7 
 Ala. 183; Enos v. Cook, Go Cal. 175; Wiley v. Carlisle, 93 Ala. 38; 
 Roach V. Clark. l.")0 Ind. 93, 05 Am. St. Kep. 353; Stanley v. Sulli- 
 van, 71 Wis. 585, 5 Am. St. Rep. 245. 
 
 444 r.angley v. Toll, 54 Cal. 435; Barton v. Beatty, 28 N. J. Eq. 
 412; Mayor of San Jose v. Fulton. 45 Cal. 31G.
 
 § 37e ISSUING THE ORIGINAL EXECUTION. 164 
 
 ant prior to the commencement of the suit,^^ the va- 
 lidity and effect of his claim will very rarely, and per- 
 haps never, be tried upon application for this writ, but 
 he will be left in possession. The writ has been denied 
 when the purchaser had delayed for a long period of 
 time to apply for it,***^ and also when the respondent 
 had not intruded into the possession until some time 
 after the purchaser had received his deed.**' In the 
 first case, the court presumed that the respondent 
 might have acquired from the purchaser some right to 
 the possession; and in the last case, the court, while ad- 
 mitting its duty to place a purchaser in possession by 
 removing parties unlawfull}' withholding the property 
 at the execution of the deed, did not conceive that this 
 duty was so continuous as to require it to protect the 
 purchaser from subsequent intrusion. 
 
 § 37 e. The Practice to be Pursued to Obtain a Writ of 
 Assistance is not uniform in the several states. It is 
 not necessary in any of the states that the decree con- 
 tain any clause to the effect that such writ shall issue 
 in favor of the i^urchaser, or that the parties shall sur- 
 render possession upon a sale and conveyance being 
 made.^^^ This clause, when inserted in a decree, is, 
 like the award of execution in a judgment, superfluous. 
 In Illinois, however, it appears that where a decree of 
 foreclosure contains no Order for the surrender of pos- 
 session, there should be an injunction to deliver pos- 
 session before the issuing of a writ of assistance to put 
 
 445 Thompson v. Smith, 1 Dill. 4r)S; A'an Hook v. Throckmorton, 8 
 Paige, 33; Henderson v. :\i (Tucker, 45 Cal. G47. 
 
 446 Hooper v. Yonge, 09 Ala. 484. 
 
 447 Belts V. Birdsall, 11 Abb. Pr. 222; 19 How. Pr. 491. 
 
 448 iioi-n V. Volcano Water Co., 18 Cal. 141; Montgomery v. Mid- 
 rtlemiss, 21 Cal. 103, 81 Am. Dee. 14G; Dove v. Dove, Dick. 617, 1 
 Bro. 375; Kershaw v. Thompson, 4 Johns. Ch. G14.
 
 165 ISSUING THE ORIGINAL EXECUTION. § 37e 
 
 the purchaser in possession.'*'*^ The insertion of this 
 clause does not of itself authorize the clerk to issue a 
 writ of assistance. As a condition precedent to such 
 writ it is usually necessary that thi're should be some 
 inquiry on the part of the court or some detcrinination 
 by it that the writ should issue.'*"'*^ In the national 
 courts, however, this judicial action is apparently ren- 
 dered unnecessary by equity rule No. 9, declaring that, 
 ''when any decree or order is for the delivery of posses- 
 sion, upon proof by affidavit of a demand and refusal 
 to obey the decree or order, the party prosecuting the 
 same shall be entitled to a writ of assistance from the 
 clerk of the court." We have heretofore shown that 
 there is some difference of opinion as to whether a de- 
 mand for possession must precede the application for 
 the writ, and that, in our judgment, the weight of au- 
 thority favors the requirement of such demand.*^*- 
 The rights of the purchaser result from the facts that 
 there has been a valid decree, a sale thereunder, and 
 the execution of a conveyance jjursuant to such sale; 
 and he is therefore entitled to be put into possession of 
 the properly. Formerly the practice was as follows; 
 1. Obtain an order on the defendant to deliver posses- 
 sion; 2. Serve such order on him, together with a de- 
 mand for possession; 3. FTave an attachment issued 
 for disobeying the order, which attachment need not 
 be served; 4. Make an affidavit showing these various 
 steps which had been taken, on which, as a matter of 
 course, an injunction issued against the tenant to de- 
 liver possession; 5. Serve such injunction, and make 
 an affidavit of such service, and that the delivery of 
 
 4*9 KessiuR-ei- V. Whittaker, S2 111. 25, 
 
 450 Cook V. Moulton, 68 111. App. 4S0. 
 
 *ii Connor v. Scbaeffel, 25 Abb. N. C. 344: ante. § 37 d.
 
 § 37e ISSUING THE ORIGINAL EXECUTION. 166 
 
 possession was refused; 6. Move, ex parte and withoub 
 notice, and upon the motion, supported by such affida- 
 vits, tbe writ issued of course."*^^ ^ Manifestly, several 
 of these steps may be omitted without imperiling the 
 rights of any of the parties, and they are therefore not 
 now required. The acts now required of the purchaser 
 in most of the states are: 1. Exhibit his dei'd to and 
 demand possession of the parties against whom he 
 wishes to proceed; 2. ^NFove the court to issue the writ, 
 and upon the hearing of the motion establish such ex- 
 hibit and demand, and that such parties remain in pos- 
 session.^*'"- Thenmpon the writ will be ordered unless 
 good cause is shown against its issuance. The exhibi- 
 tion of the deed may be rendered unnecessary by the 
 conduct of the respondent, as where he announces his 
 intention of withholding possession, notwithstanding 
 such deed, and in defiance thereof. *^*^ 
 
 The authorities differ with respect to the necessity 
 of giving notice of the application for the writ. Some 
 of them treat it as an ordinary writ of execution, like 
 a habere facias possessionem, which may issue without 
 notice, because the judgment has conclusively estab- 
 lished that the plaintiff is entitled thereto.^'* But 
 there is this difference between an ordinary writ of 
 possesssion and a writ of assistance in behalf of a pur 
 chaser: the former is sanctioned by the original judg- 
 ment or decr(^e, and is not dependent on any facts or 
 proceedings subsequent thereto; while the latter is not 
 proper unless there have been a valid sale and convey- 
 ance to the person claiming to be a purchaser, nor un 
 
 45ia Kershaw v. Thompson, 4 .Johns. Ch. (;14. 
 *r,2 Montgomery v. Middlemiss, 21 Cal. 103, 81 Am. Deo. 146. 
 40'! Knight V. Iloughtalling, 94 N. C. 408. 
 
 «4 Harney v. Morion, 39 ]Miss. 508; N. Y. K I. & T. Co. v. Rand. 
 8 How. Pr. 35, 352; Coor v. Smith, 107 N. C. 430.
 
 167 ISSUING THK OKKilNAL KXECUTION. § 37e 
 
 less the persons in possession have refused after de- 
 mand to sni'i-cndcr sueh possession.*'*' It is, therefore, 
 proper, and we should think necessary, that notice of 
 the application for the writ should be given to the per- 
 sons to be afrectcd tliereby.'^'' In Wisconsin, by a rule 
 adopted by the supreme court for the government of 
 the circuil courl, it was the duty of the clerk of the lat- 
 ter court to issue this writ when it was shown to him 
 by affidavit that possession had been demanded and 
 refused. He acted independently of any order of the 
 court of whic h he was clerk, and he was not exonerated 
 from acting when a proper affidavit was filed with him 
 by an order of the court or judge, directing him to 
 withlKdd any action.*^'' This rule was held to be inap- 
 plicable when the person proceeded against was not a 
 dcrciidant in the suit. As against such person, it w'as 
 necessary to obtain an order of court. ^^■'* It is true that 
 a writ of assistance improperly issued may be vacated 
 on motion; and if already executed, the parties may b;^ 
 restored to their ])Ossession,*^'* and the wrongs result- 
 ing froni its improvident issuing may thereby be miti- 
 gated if not averted. Nevertheless, in so serious a mat- 
 ter as invading or destroying the possession of a free- 
 hold, we think it far better that the parties in posses- 
 sion have notice of the application for the writ, and be 
 then given an opportunity to urge any defense which 
 remains open to them, notwithstanding the decree and 
 sale. 
 
 45'- Howard v. Bond. 42 ^[i(•h. IHl; Clriswold v. Simmons. 50 Miss. 
 123. 
 
 450 r.ianvolt V. Smith. 22 N. .T. E(i. 31; Joints v. Iloopor. 50 Miss. 
 510; Hooper v. Yonirc. GO Ala. 484; McLaue v. Piaggio, 24 P'la. 71; 
 Sau .Tose v. Fulton. 45 Cal. 3in. 
 
 457 Attorney-CJouoral v. Lum, 2 Wis. 507. 
 
 ••s^' Goit V. Dkkernian, 20 Wis. 0;iO. 
 
 459 Skinner v. Beatty. 10 Cal. 1.5G; Chanilu-rlain v. fliolcs;. 35 X. Y. 
 477; Coor v. Smith. 107 X. C. 430; Wiley v. Carlisle. 03 Ala. 237.
 
 THE FORM OF THE ORIGINAL EXECUTION. 168 
 
 CHAPTEE III. 
 
 THE rOEM OF THE ORIGINAL EXECUTION. 
 
 § 38. E^^bential parts of the writ. 
 § 39. Omission of, or error in, the style of the writ. 
 § 40. To Avhom directed. 
 
 § 41. Words of command. General and special writs. 
 § 42. The description of the judgment. 
 
 § 43. Consequence of variances between executions and judg- 
 ments. 
 § 44. Desiguatiu.c the return day. 
 § 45. Clause of attestation. 
 § 46. The seal. 
 
 § 47. Alterations after th,e issuing of the writ. 
 § 47a. Forms of execution on decrees. 
 
 § 38. The Essential Parts of the Writ.— In the pre- 
 ceding chapter we have seen that, before an original 
 execution can properly issue, there must be — 1. A 
 court competent to issue the writ; 2. A judgment, de- 
 cree, or order which the law authorizes to be put in 
 execution by aid of the writ; 3. A demand for the 
 writ, made to the proper officer by the proper person, 
 against a defendant whose property is subject to exe- 
 cution; 4. The time allowed for issuing the writ must 
 liave commenced, and must be still unexpired; and 5. 
 Nothing must have occurred to suspend or postpone 
 the right to execution. When inquiries in regard to 
 these five prerequisites have all been answered in the 
 affirmative, the right to an execution must be conceded. 
 The next inquiries are in regard to the writ itself — 
 what must its contents be, and in what form and order 
 shall they be set forth.^ 
 
 1 For forms of writs at common law and In equity, see the note 
 at the end of tliis chapter.
 
 1C9 TIIH FORM OF THE ORIGINAL EXECUTION. § 38 
 
 In most of the states, provision is made by statute for 
 the form and contents of executions. It has been held 
 that where the statute provides a form, it must be 
 strictly fc^Ilowed, especially by justices of the peace.^ 
 But we apprehend that this decision was made under a 
 misconception of the true purposes of such statutes, 
 iind that it cannot be regarded as a correct interpreta- 
 tion of the law. The object of these statutes is to 
 enumerate the substantial elements of the writ, rather 
 than to command adherence to a prescribed form. Pos- 
 sibly the language of the statute may be so mandatory 
 as to render a departure therefrom fatal to the writ. 
 Thus, the Code of Civil Procedure of New York pre- 
 scribes the form of the execution where a w^arrant of 
 attachment has been issued and levied by the sheriff, 
 and declares that such execution "must require" the 
 sheriff to satisfy the judgment in the way pointed out 
 by the statute. It was held that, where the execution 
 should have directed the officer to satisfy the judgment, 
 first, out of the attached personal property; second, 
 out of the other personal property of the judgment 
 debtor, and, lastly, out of his attached real property, 
 but instead thereof it commanded the sheriif to collect 
 the judgment out of the attached personal property of 
 the judgment debtor, and, if that was insutlficient, out 
 of his attached real property, such writ was void and 
 no title could be acquired by the purchasers there- 
 under because they were put upon inquiry as to the 
 validitv of the execution bv the recitals therein and bv 
 the judgment and the attachment constituting a part 
 of the records in the cause. The court was further of 
 opinion that it was not material that no injury to the 
 defendant appeared from the irregularity of the writ, 
 
 2 Strceter v. Frank, 4 Cband. 03.
 
 § 33 THE FORM OF THE ORIGINAL EXECUTION. 170 
 
 and said: ''Tlie kiAv prescribes the form of the execu- 
 tion, and it woiikl be extremelj^ dangerous to make the 
 validity of an execution which omits a material pro- 
 vision, designated for the benefit of the defendant, to 
 depend upon an inquiry whether any actual injury re- 
 sulted from the omission. The present case, though 
 less striking, is in principle the same as if an execution 
 upon an ordinary judgment in personam directed its 
 collection out of tke real property of the defendant, 
 omitting all reference to personal property. The case 
 is a hard one for the purchasers, but we see no answer 
 to the motion to set aside the sale." ^ 
 
 A writ of execution is simply an authorization pro- 
 ceeding from, and directed to, some competent author- 
 ity, by which the former requires the latter to do some 
 act. To accomplish its purpose, it must necessarily 
 state with certainty the act to be done. Whenever a 
 writ shows the authority whence it proceeded, and is 
 directed to an ofdcer competent to execute it, giving 
 directions sufficient, if followed, to result in the proper 
 enforcement of the judgment, we apprehend that it 
 will be almost uniformly upheld; and that, instead of 
 requiring unusual strictness from justices of the peace, 
 the writs of those officers will be granted unusual in- 
 dulgence.* Hence, when by statute an alias execution 
 issued by a justice is required to have appended to it a 
 copy of the return made on the former writ, the failure 
 to append such return is a mere irregularity rendering 
 
 3 Place V. Riley, 98 N. Y. 1. 
 
 4 Bunlick v. Sbigley, .30 Iowa. 63; Cooley v. Brayton, 16 Town. 
 10; Dean v. Goddaid. 13 Iowa, 292, 81 Am; Dec. 433; McMahan v. 
 Colclougb, 2 Ala. 68; Chase v. Plymouth, 20 Vt. MV.), 50 Am. Dec. 
 52; Morrison v. Austin, 14 Wis. 001; Collins v. Camp, 94 Ca. 460; 
 Buis V. Cooper. 63 Mo. App. 196; Field v. Parker, 4 Ilim. .342; Gunu 
 V. Benson, "> Yerg. 221. A fieri facias in debt upon a .1iid.gment in 
 assumpsit is not void. Elmsley v. McKenzie, 9 U. C. Q. B. 559.
 
 171 THE FORM OF THE ORIGINAL EXECUTION. § 3S 
 
 the execution voidabh', but not void.*'' So, the failure of 
 a justice to insert tlie name of the county, township, or 
 city in the bJjinks intended for such names is a mere 
 clerical irregularity in the writ, w^hich "as against a 
 stranger to it, resisting the claim of a purchaser under 
 it, is curable by parol evidence."" In North Carolina, 
 at an early date, it appears to have been the practice of 
 justices of the peace to enter a judgment upon a dis- 
 connected slip or piece of paper, followed by writing 
 thereunder or thereupon the words "execute and sell 
 agreeable to law," and to then sign this direction. It 
 was held that this constituted a valid writ of execution 
 upon the "principle that the proceedings of magis- 
 trates were entitled to a liberal construction when the 
 exceptions relate merely to regularity and form." '' 
 Where, as in Tennessee, a justice of the peace of one 
 county is authorized to issue execution on a judgment 
 rendered by a justice of another county, upon receiv- 
 ing a certain certificate from the clerk of the latter 
 county, it has been held that if the execution as issued 
 shows that the certificate of the clerk was substan- 
 tially defective, the writ is void, on the ground that it 
 is issued under a new and special jurisdiction, which 
 "must be strictly ])ursued to make valid the proceed- 
 ings under it." ** 
 
 It is not necessary that the writ show upon its face 
 that the cause of action is one of which the justice had 
 jurisdiction,** nor need the writ, where some affidavit or 
 proceeding is required to be filed or given before its 
 
 ft rullH'i-tson V. Mllhollin. 22 Tnd. r,G2, 8.". Am. Doe. 42S. 
 « Elliott V. ITart, 4') Mioh. 2:?4. 
 
 7 Governor v. Bailoy, 3 Ilinvk.s. 403; Forsyth v. Sykos, 2 TTawks. 
 54. 
 
 8 Mooro V. I.ynoli. 4 Rnxt. 287; Apporson v. Smith, 5 Sueed, 371; 
 Eason v. rummins. 11 TTnmph. 210. 
 
 » Field V. Parker, 4 Hun. 342.
 
 § 38 THE FORM OF THE ORIGINAL EXECUTION. 172 
 
 issuing, recite tlie existence of such conditions prece- 
 dent.*^^ Defects in the writ may sometimes be sup- 
 plied by endorsements thereon,^'* and, on the other 
 hand, an endorsement, though not authorized by law, 
 may perhaps constitute a sufficient excuse for an officer 
 who failed to obey the directions of the writ.*^ As a 
 general rule, however, an error or a mistaken recital or 
 direction, whether in the endorsement or in the body 
 of the writ, may be treated as surplusage, and there- 
 fore does not vitiate it.^^ 
 
 If a court of chancery is authorized to issue a fieri 
 facias for the collection of a judgment for moneys, the 
 form employed should correspond substantially with 
 that in use in the courts of law.^^ 
 
 The form of execution most usually adopted contains 
 the following particulars: 1. It purports to issue in 
 the name of some sovereign power; in England, the 
 name of the reigning monarch is used; in the United 
 
 States, the name is the state of , or the people of 
 
 the state of ; 2. It is addressed to the sheriff, or to 
 
 some other officer competent to execute it; 3. It com- 
 mands the officer to do some act; 4, It shows the pur- 
 pose for which the act is to be done, or in other words, 
 the judgment of which satisfaction is sought; 5. It usu- 
 ally directs a time and place in which and to which a 
 return must be made; 6. It closes with a clause of 
 attestation. We shall now separately consider each of 
 
 9a LobrotoD V. Lemaire (Tex. Civ. App.) 43 S. W. 31. 
 
 10 Nichols V. Taylor, 6 Monr. 325; McGuire v. Galligan, 53 Mfch. 
 453. 
 
 11 Fuller V. Wells, 42 Kan. 551. 
 
 12 Walls V. Smith, 19 Ga. 8; Dixon v. Williams. 82 On. 105; .Tack- 
 son V. Sternberg, 1 Johns. Gas. 153; Simpson v. Simpson, 04 N. 0. 
 427; Portis v. Parker, 8 Tex. 23. o8 Am. Dec. 95. 
 
 13 Lfoundes v. Pinckney, 2 Strob. Eq. 44.
 
 173 THE FORxM OF THE ORIGINAL EXECUTION. § :i9 
 
 these particulars for the purpose of ascertaining the 
 consequence of variance, or omissions therein. 
 
 § 39. Omission of, or Error in, the Style of the Writ.— 
 It has always been the custom in England to issue the 
 writ in the name of the reigning sovereign, and in the 
 greater portion of the United States in the name of the 
 state or of the people of the state. This portion of 
 the writ is purely formal, and we are unable to see 
 that its omission ought to prejudice any one, provided 
 it appears from the whole writ that it was issued by 
 virtue of some competent authority. This authority 
 is the court or an officer of such court to whom is 
 delegated the power to exercise the authority of issu- 
 ing writs, as the act of the court, for the enforcement 
 of its judgments. Whether the omission of the style 
 of the writ might on prompt application furnish a suf- 
 ficient ground for quashing the execution has never, so 
 far as we can ascertain, been determined. The effect 
 of such an omission in a summons has been considered 
 in several of the states, resulting in divergent decisions, 
 the minority ^* maintaining that an omission or error 
 of this character is an irregularity merely, and the 
 majority declaring that it makes the writ void.^^ 
 With respect to writs of execution, the weight of au- 
 thority is the other way, whether the irregularity con- 
 sists in an error, as where the word "territory" was 
 used instead of the word "state," *" or in the entire 
 omission of this part of the Avrit. Probably, like all 
 other irregularities, it miglit be the ground of a motion 
 to quash, which, in turn, might be met by a counter- 
 
 »*Hanna v. Taipsoll. 12 Mina. 80. 
 
 " Gilbreath v. Knykondall. 1 Ark. 50; Yoacror v. droves. 78 Ky. 
 278; Little v. Little. .'') Mo. 2l>7. P.2 Am. Dec. 317. 
 
 16 Carnahau v. Pt'll, 4 Colo. 190; State v. Cassitlay, 4 S. D. 58.
 
 § 39 THE FORM OF THE ORIGINAL EXECUTION. 174 
 
 motion to amend. At all events, it seems certain, ex- 
 cept in one state, that a writ of execution will not be 
 adjudged void, nor a sale or other proceeding there- 
 under invalid, for any omission or error in the style of 
 the writ.^'' Doubtless the law is otherwise in Illinois. 
 The courts of that state are inclined to regard every 
 statutory direction with respect to the form and con- 
 tents of an execution as essential and mandatory. 
 Hence if the writ does not run in the name of the 
 people of the state, it will there be held void.^** 
 
 17 Thompson v. Bicliford, 19 Minn. 1; Bean v. Loftus, 48 Wis. 
 ;5T1; Hibberd v. Smith, 50 Cal. 511. In this case the writ was for 
 a sum remaining unpaid after a foreclosure sale. The formal parts 
 of it were as follows: "State of California, county of Alameda, ss.: 
 Whereas, a judgment and decree of sale was rendered in the dis- 
 trict court of the third judicial district," etc. It then recited the 
 foreclosure sale, the fact that the sheriff had reported a deficiency, 
 and then proceeded as follows: ''These are therefore to command 
 you, as heretofore you have been commanded, that of the goods 
 and chattels, if sufficient; if not, then of the lands and tenements 
 of the said William W. Chipman, you levy and cause to be made," 
 <'te. The writ was excluded from evidence by the trial court. This 
 
 was determined to be error by the supreme court, which in so do- 
 ing said: "The execution offered by defendants, alth(iugh irregular 
 and defective in form, was amendable, and not void." 
 
 18 Sidwell V. Schumacher, 99 111. 433. The general views of the 
 <-ourt upon this question were expressed as follows: "While there is 
 some conflict of authority upon this subject, yet it is believed that 
 the weight of authority establishes the proposition that where the 
 law expressly directs that process shall be in a specified form, and 
 issue in a particular manner, such a provision is mandatory, and 
 a failure on the part of the official whose duty it is to issue it to 
 comply with the law in that respect will render such process void. 
 On the other hand, it is well settled that there are many merely 
 formal defects which do not have that effect. To illustrate, where 
 the statute or constitution expressly requires that process shall is- 
 sue under the seal of the court, and be tested in the name of and 
 signed by the clerk, the failure to comply with either of these re- 
 <iuiremeuts would, as it is believed, according to the weight of au- 
 tliority. render the process void. The legislature or the people, 
 through the constitution, have the unquestionable right to say of 
 wliat process sliall consist, and when they have declared that it
 
 175 THE FORM OF THE ORIGINAL EXECUTION, § 40 
 
 § 40. To Whom Directed.— ''Uy the ancient law of 
 the land, all writs (except to some few particular juris- 
 dictions) are directed to the sheriff of the county where 
 the cause of suit arose; and cannot be* directed to any 
 other person, unless it be in special cases where there 
 is good cause of excfptlon against the sherilT,^" and 
 there the writ shall be directed to the coroner, who 
 then standeth in the place of the sheriff; as where it is 
 alleged that the sheriff is of kin to any party in the 
 writ, or where the sheriff is himself a party to the suit, 
 whether plaintiff or defendant; also in some cases 
 where the sheriff mnketh default of serving pro- 
 cess," '^ AVhen the writ issues to the coroner, it need 
 not disclose the reason why it is not issued to the sher- 
 iff.'* A sale made by a sheriff under a writ issued 
 
 shall be of a specified form, by implication all other forms are pro- 
 hibited. If s\uh laws are merely directory, then writs are as valid 
 without their observation as with it, and every clerk would be at 
 liberty to issue process in whatever form might suit his fancy. If 
 one of these requiromeuts may be omitted, all may, on the same 
 principle. Under such a system, one clerk misjlit conclude that the 
 ceremony^of attaching a seal was idle and Uvseless; another might 
 think the writ would be sutficient with a seal, and that the ad- 
 dition of the name of the clerk would therefore be superfluous; an- 
 other might tliink all these requirements of the law are but idle 
 ceremonies, and for them substitute something altogether different. 
 Under such a system of things, how could the defendant, in the pro- 
 cess, know what was valid and binding upon him and what was 
 not, and when to obey and wlien not? And how could the officer 
 into whose hands it was delivered for execution know whether he 
 would be protected in serving it or not? And what would become 
 of the almost numberless questions discussed by the courts and 
 legal authors, founded upon the supposed distinction between void 
 and voidable process, if there are no essential requirements by 
 which the one can be distinguished from the other?" 
 
 19 Walter v. Denison, 24 Vt. .5.51; Penn. v. Isherwood. .""> (".111. 20ti. 
 
 20 Bingli.Mui on .Judgments and Executions, 222. In Texas pro- 
 cess issues to a constable when tlie sheriff is disqualified. :McClane 
 V. Rogers. 42 Tex. 214. 
 
 21 Bastard v. Trutch, 4 Dowl. P. C. G; 3 Ad. & E. 4.51; 1 Har. &: 
 W. 321; see Moss v. Thompson, 17 Mo. 405. A writ directed to the
 
 § 40 THE FORM OF THE ORIGINAL EXECUTION. 176 
 
 upon a jiulgment in favor of himself is void.-^ The 
 statutes of Kentucky require process to be directed to 
 the sheriff of the county, or, if he be a party or be inter- 
 ested, to the coroner, or, if he be interested, to the 
 jailer, or, if all these officers be interested, to a consta- 
 ble. A writ of execution was directed to the coroner 
 or jailer and was executed by the latter, who levied 
 upon and sold real property of the defendant. The 
 purchaser, having moved for a writ of possession, was 
 resisted on the ground that the levy and sale were 
 void. The issue w^as made that neither the sheriff nor 
 the coroner was a party or interested. The court said: 
 "The execution shows that it was directed to the coro- 
 ner or jailer, from which fact the presumption arises 
 that the coroner was not interested, and that the exe- 
 cution ought to have been directed to him and executed 
 by him. Instead, however, it was executed by the 
 jailer, which, in the absence of proof that both the 
 sheriff and the constable were interested, he had no 
 authority to do." The judgment of the trial court re- 
 fusing the writ of possession was therefore afflrmed.-'"^ 
 A special execution authorizing the sale of attached 
 property should be directed to the sheriff in office at 
 the time of its issuing. If improperly issued to an of- 
 cer whose term has ex])ired, he is not authorized to 
 execute it, and his failure to do so cannot constitute a 
 breach of his bond, nor can any indorsement made by 
 liim thereon be considered an official return.^* 
 
 coroner because of a vacancy in the sheriff's office may be turned 
 over to the new sheriff after his appointment. Carr v. Youse, 39 
 
 Mo. 340, 90 Am. Dec. 470. A writ directed to the constable of 
 
 seems to have been regarded as invalid in Hall v. Moor, Addis. 370. 
 
 22 Collais v. McLeod. 8 Ired. 221, 49 Am. Dec. 370; Elston v. Bret, 
 Moore. .547; liowlet's Case, Dyer, 188 a; Cliambers v. Thomas, 1 Litt. 
 
 2G8. ' 
 
 23 Gowdy V. Sanders, 88 Ky. .340. 
 
 24 State V. Atkinson, 53 Avk. 98.
 
 177 THE FORM OF THE ORIGINAL EXECUTION. § 41 
 
 § 41. Words of Command. General and Special 
 Writs. — Every writ of execution should contain words 
 commandiug tlic ollicer to do the acts rei^uired to be 
 done by him to accomplish the satisfaction or other en- 
 forcement of the judgment. Though the judgment is 
 for the recovery of money, it may be of such a character 
 that its enforcement is limited to spt cific property 
 described therein, and, whether so described or not, 
 specific propert}' may be all that is subject thereto, or, 
 though the general property of the judgment debtor is 
 all subject to the judgment, some lien may have been 
 acquired antedating it and rendering the sale of the 
 property subject to such lien specially desirable. 
 When the right to take the property of the defendant 
 is not limited by the character of the judgment, the 
 execution is called general, and its command should 
 correspond to the right of the plaintiff by directing the 
 oflQcer to take or sei^.e or cause to be made out of the 
 property of the defendant Avhich, according to law, is 
 subject to the satisfaction of the writ. At the com- 
 mon law the command of a fieri facias was that of the 
 goods and chattels of the defendant the officer cause 
 to be made the sum named in the writ. In the T'nited 
 States, as the lands of the defendant are also subject 
 to be taken in execution, the command of a general 
 writ may be that of the goods, chattels, and real estate 
 of the defendant the officer cause to b - made the 
 amount of the judgment, with costs;"' and it is not 
 material what was the character of the debt upon 
 
 25 Clouts V. Rich, 12 Fla. ('>P,o: Brown v. Dunc-iii. i:-.2 Til. 41.'^. 22 
 Am. St. Rep. 545; Mayer v. Farmers' Bank. 44 la. 212; Koepke v. 
 Dyer, 80 Mich. 311; Taylor v. Ames, 5 R. I. 361. 
 Vol. I.— 12
 
 § 41 THE FORM OF THE ORIGINAL EXECUTION. 178 
 
 which the judgment was recovered. Hence, an execu- 
 tion for a fine may contain this general direction.^** 
 
 "A special fieri facias differs from the general writ 
 only in this — that it points out and specifies the prop- 
 erty to be sold, and pursues and follows the judgment 
 in respect of the disposition of the proeej ds arising 
 from the sale." '' It may be stated, as a general rule, 
 that the authority to issue a special execution must be 
 specially conferred by statute, and hence that the 
 courts have no right to restrict the plaintiff to an exe- 
 cution of this character when the law gives him the 
 general right to proceed against all property of the 
 defendant ordinarily subject to execution.^** 
 
 When the judgment does not in terms restrict the 
 right of the plaintiff, we think it is the usual practice to 
 issue a general execution, though by the levy of an 
 attachment or by some other proceeding a lien has 
 been created against specific property, and though by 
 the practice in a state a special execution may be 
 proper, the plaintiff may, nevertheless, take out a gen- 
 eral execution, and the sale thereunder will have the 
 same effect as to the attached property as though a 
 special writ had issued.^^ Though the judgment is 
 declared therein to be a lien on all the real property of 
 the defendant, a general execution may issue without 
 mentioning this fact, and a sale thereunder has the 
 same effect as if the execution had been specially 
 
 26 Gill V. state, 39 W. Va. 479, 45 Am. St. Rep. 928. 
 
 27 Lord V. .Tohnson. 102 Mo. GSO. 
 
 2s Sheriff- v. Ritcb, 12 Fla. 03.3; Brown v. Duneau, 1.32 111. 413, 22 
 Am. St. Rep. 54.">; Mayer v. Farmers' Bank, 44 la. 212; Phillips v. 
 Stewart, GO :Mo. 149. 
 
 2» Boothe V. Estes. 1(1 Ark. 104; Stotts v. Brookfield, 55 Ark. .307; 
 Swayze v. McCrossin, 13 S. & M. 317; Kritzer v. Smith, 21 Mo. 29G; 
 Phillips V. Stewart. G9 Mo. 149; Foster v. Potter. 37 :Mo. .52.5; Lieb- 
 mau V. Ashbacker, 36 Oh. St. 94; Swift v. Agues, 33 Wis. 228.
 
 179 THE FORM OF THE ORIGINAL EXECUTION. § 41 
 
 (lirecled uj^aiiist the real property owned by the 
 defendant at the rendition of the judgment.^" 
 
 In Indiana an execution recited the rendition of the 
 judgment, and added "by levy and sale of the goods" 
 of the judgment defendant, "and make due return 
 thereof witliin six months from date." It did not con- 
 tain any other words of command or direction. The 
 supreme court of the state held that this writ did not 
 justify the oflicer to whom it was directed and deliv- 
 ered in levying on the property of the defendant.^^ 
 
 The instances in which writs have issued from which 
 the words commanding the levy were substantially 
 omitted are exceedingly rare. We incline to the 
 opinion that, even in the case of a substantial omission 
 of this part of tlie writ, it is nevertheless amendable, 
 and not absolutely void,^*^ though we must confess the 
 existence of decisions in conflict with our views upon 
 the subject. Thus it has been held that the omission 
 of the name of the person whose property was directed 
 to be seized made the writ void, thougii from the whole 
 thereof it was clear from whom satisfaction of the 
 judgment should be sought.^^ 
 
 It may be that under the law it is the duty of the 
 sheriff to levy on one kind of property in preference to 
 another, and tliat the writ ought to command him ac- 
 cordingly. Thus, in New York, under a certain class 
 of judgments, the statute required the execution to 
 direct the slieriff to satisfy it, first, out of attached per- 
 sonalty; secc^nd, out of any other ])ersonalty w^hich 
 could be found; and third, out of attached real prop- 
 erty. A writ which "commanded the sheriff to collect 
 
 :«> Mayor v. Farmers' Bank, 44 la. 212. 
 »i Gaskill V. AUlrich, 41 lud. 338. 
 
 32 Cheese v. riymouth. 20 Vt. 4^19. .'O Am. Doo. .'2. 
 
 33 Capps V. Leaclmiau, DO Tex. 490, o\) Am. St. Itep. 830.
 
 § 41 THE FOU.M OF THE ORIGINAL EXECUTION. 180 
 
 the jiulgment out of the attached personal property of 
 the judiiinent debtor, and if that was insufficient, out of 
 his attached real property," was adjudged void.^* No 
 reason was given for the decision other than that the 
 statute was peremptory in its requirement, and obvi- 
 ously intended that the defendant's personalty, 
 whether attached or not, should tirst be appropriated 
 under the writ before any resort could be had to his 
 realty. This reason appears to be far from conclusive. 
 The statute in question does not seem to be more per- 
 emptory than any of the other statutory provisions re- 
 quiring or directing certain things to be done in and 
 about the issuing and enforcing of writs; and by an al- 
 most unanimous judicial concurrence most of these 
 other provisions are treated as directory merely — as 
 being provisions in the interest of the defendant, and 
 upon which he may insist by obtaining the vacation of 
 any writ or proceeding not in substantial conformity 
 therewith, and which he may and does waive by re- 
 maining inactive and permitting his property to be 
 taken and sold thereunder without any protest. Hence 
 we think the better rule upon this subject is, that the 
 omission in an execution to direct the order in which 
 different classes of property should be seized, or even 
 a misdirection in this regard, is a mere amendable de- 
 fect, and, whether corrected or not, cannot make the 
 writ void.^*"^ In truth, where it is apparent from a writ 
 that it has been issued upon a judgment designated 
 therein, and that its object is to require the officer to 
 whom it is directed to take proceedings to satisfy such 
 judgment, Ave cannot think it material that some error 
 
 34 Place V. Riley, 98 N. Y. 1. 
 
 35 Wright V. Young, G Or. 87; Clinkscales v. Hall, 15 S. C. 602; 
 West V. Krebaum, 88 111. 2G3.
 
 181 TIIK FORM OF THE ORIGINAL EXECUTION. § 41 
 
 or omission has been made in the words of command 
 contained in the Avril/''' Whether the judgment is 
 general or special, the writ ought to conform thereto, 
 but if it be general when it should have been special, or 
 special when it should have been general, but the acts 
 done thereunder are such only as were authorized by 
 the judgment, we think they must be treated as valid. 
 Where the judgment is for the sale of specific prop- 
 erty, especially if it is not such as would sustain a levy 
 upon the general property of the defendant, the com- 
 mand of the writ should be that the officer sell that 
 particular property, and it should be so described that 
 he can ascertain therefrom, or from matters referred 
 to therein, out of what property he is to satisfy the 
 writ.^'' Where a writ was issued against special prop- 
 erty upon the theory that the plaintiff had a lien there- 
 on, and it was determined that such a lien did not exist 
 and that the plaintiff was entitled to a general execu- 
 tion only, it was said tlmt the special execution was 
 void and should be quashed,^** but that where the exe- 
 cution was general in form, it was not rendered void by 
 a mistaken assertion or recital therein that a lien ex- 
 isted on certain described property.^* If the command 
 of a writ is special and restricted, it may be urged that 
 the doing of any act not embraced within the command 
 is unauthorized, but such objection cannot be made 
 with success to an act which is within the special com- 
 mand and which would also have been authorized had 
 the writ been general in form. Hence, a sale of prop- 
 so Gardner V. .Mobile etc. R. II. Co., 102 Al.i. 02-'. 4S Am. St. Rep. 
 84. 
 
 3T Winslow V. O'Pry, ."»G Cia. i:JS; Ilayues v. Richardson, Gl Ga. 
 390; Merwin v. Hawker, 31 Kan. 222. 
 8" Koepke v. Dyer, 80 Mich. 311. 
 3» Allured v. Voller, 107 Mich. 47G.
 
 § 41 THE FORM OF THE ORIGINAL EXECUTION. 182 
 
 erty within a county cannot be avoided on the ground 
 that the writ under which it was made directed the 
 levy to be only upon lands within that county, such 
 restriction not being authorized by law.*** If plaintiff 
 is entitled to a writ directing the sale of all the prop- 
 erty of the defendant, but the writ in fact issued 
 directs the sale of specific property, which is there- 
 under sold, it is said that tlie writ and the sale there- 
 under may be sustained, because, as there was author- 
 ity to command the sale of the whole of the property 
 of the defendant, this necessarily included authority to 
 direct the sale of any specified part thereof.'*^ If 
 the plaintiff, by virtue of the judgment or of proceed- 
 ings anterior thereto has a lien on specific property, or 
 if the judgment be against a married woman, he is en- 
 titled to proceed only against her separate estate, a 
 general execution will sustain any levy or sale there- 
 under which might have been authorized had a special 
 writ issued.*^ A statute of Pennsylvania provided 
 that whenever any judgment should be recovered 
 against one or more members of a partnership upon an 
 individual indebtedness, the plaintiff might have an 
 execution which should command the sheriff to levy 
 upon the interest of the defendant in such partnership. 
 Writs of execution issued upon judgments against a 
 partner, one of which contained the command as au- 
 thorized by this statute, but the other did not. It was 
 hence claimed that the writ issued without including 
 
 40 Bunker v. Rand, 19 Wis. 253, 88 Am. Dec. 6&4. 
 
 *i Pracht V. Pistpr. 30 Kan. 568. 
 
 42 Stotts V. Brookflold, .55 Ark. 307; Bootlie v. Estos, 16 Ark. 104; 
 Merwin v. Hawker, 31 Kan. 222; Swayze v. McOi-ossin, 13 S. & 
 M. 317; Cabell v. C!nibl)s, 48 Mo. 353; Thompson v. Sargent, 15 
 Abb. Pr. 452; Liebman v. Ashbacker, 36 Oh. St. 94; Cliukseales t. 
 Hall, 15 S. C. G02.
 
 183 THE FORM OF THE ORI(;iNAL EXECUTION. § 42 
 
 in it this special statutory command did not authorize 
 a levy made thereunder on the interest of the defend- 
 ant in a partnership, and that a writ later in date and 
 time of levy tliercfore took precedence, but it was held 
 that the onh' consequence arising from the omission 
 was to excuse the sheriff from levying on the interest of 
 the defendant in any partnershii) until notified thereof 
 or re(iuested to make the levy, and that a levy actually 
 made by him at the direction of the plaintiff was as 
 valid as if the execution had issued in the special 
 form.'*^ 
 
 § 42. Describing the Judgment- — In regard to the 
 particulars considered in the last three sections, very 
 little litigation has arisen. We now come to the 
 fourth and most important particular — one in regard 
 to which omissions and variances are most likely to 
 occur, and which, therefore, is most likely to furnish 
 frequent occasion for judicial determination. In this 
 part of the execution the same precision must be at- 
 tained as is necessary in the entry of a judgment. It 
 should show for and against whom the execution 
 issues: the amount or amounts to be taken from the 
 latter for the benetit of the former; and also the date 
 at which and the court wherein the judgment was ren- 
 dered. No execution can be proper in form, unless, 
 with reference to these particulars, it exactly pursues 
 the judgment."** The question of the effect of a vari- 
 ance between the terms of a judgment and the recitals 
 thereof in the writ will be considered in a subsequent 
 
 *3 Dengler's Appoal, 125 Pa. St. 12; Kalne's Appeal, 02 Pa. St. 
 273. 
 
 <* Reese v. Burts, 39 Ga. ~>G~); Iliirbtower v. Handlin, 27 Ark. 20; 
 Jennings v. Pray, S Yerg. 84; Kneib v. Graves, 72 Pa. St. 104; Bain 
 V. Cbrisman, 27 Mo. 293; AVilson v. Router, 29 Iowa, 176.
 
 § 42 THE FORM OF THE ORIGINAL EXECUTION. 184 
 
 section. It is sufficient for our present purpose to say 
 that the description contained in the writ must be such 
 as to show that it is based upon a ju<lgment and such 
 that, by inspection of the judgment and the writ, there 
 can be no doubt that the latter issued upon and for the 
 enforcement of the former.*"^ When the judgment is 
 in an action of an equitable character and the officer in 
 executing it must refer to its terms rather than the 
 general provisions of law regulating his duties, it is 
 often advisable to insert or otherwise make a part of 
 the writ a full and complete copy of the judgment, thus 
 excluding all contention that the execution does not 
 conform thereto.** An execution against a man in his 
 private capacity cannot properly issue on a judgment 
 against him as administrator; and a sale thereunder 
 has been held to pass no title. A judgment in favor of 
 one as administrator or executor may support an exe- 
 cution issued in his favor without mentioning his rep- 
 resentative capacity, when the notes on which the 
 judgment was entered w^ere made to him in such 
 capacity, because in that event the title to the property 
 and judgment is vested in him personally, and all pro- 
 ceedings thereon may properly be conducted. in his 
 name.*'^ It is no objection to an execution that it 
 issues in favor of plaintiff as administrator, without 
 saying of whom.'*^"^ The omission of plaintiff's name 
 from the body of the writ does not make it a nullity, 
 where the indorsement shows who were tlie parties to 
 the suit.'*^ So, in regard to the number of the plain- 
 
 4B Brown v. Duncan. 132 111. 41,",, 22 Am. St. Hep. 545; 'Anderson 
 V. Gray, 134 111. 550, 23 Am. St. Rep. GOG. 
 46 Burkett v. Clark, 46 Neb. 4G0. 
 *^ Moughon v. Brown, 08 Ga. 207. 
 *« Saffold V. Banks. 69 Ga. 280. 
 <» McGiiire v. (ialligan, 53 Micli. 453.
 
 185 TllK FOllM OF THE ORIGINAL KXECUTION. § 42 
 
 tiffs, tlic oxociitioii should aj^rre Avitli the judgment, 
 and not on any accounl specify more nor less names 
 than are to be found in the judgment entry.''" In Ala- 
 bama it was held that an execution issued by a justice 
 of the peace was void upon its face, because it failed lo 
 show in whose favor it was issued, although the en- 
 dorsement on the back thereof, if it could be deemed a 
 part of it, would have aided this fatal defect/'^ Assum- 
 ing that the endorsement is not a part of the writ, this 
 decision was probably correct. Where, however, in 
 the body of the writ there is a mistake in designating 
 the name of the plaintiff, the writ is not thereby ren- 
 dered invalid if the judgment is otherwise sufficiently 
 and accurately described, and there can hence be no 
 doubt who is the person entitled to the benefit of the 
 execution.'"'^ 
 
 It is indispensable that the execution should show 
 upon whose property it is to be levied. If it does not, 
 it is worthless, and cannot supi)ort title derived 
 through a sale thereunder.-"'-' The execution must, on 
 its face, appear to be against all the defendants, not- 
 witlistanding, from dt-ath, bankru])tey, or some other 
 cause, no levy can be made on the property of some.®^ 
 
 BO Tanner v. Grant, 10 r.nsh. ;}(V2; Ilonio y. Spivoy. 44 Ga. 010; 
 Palmer v. Palmer, 2 Couu. 4()2; Wilson v. :McGee, 2 A. K. Marsh. 
 000; Beazley v. Dunn, 8 Rich. 345; Brown v. Duncan, 132 111. 413, 
 22 Am St. Itep. 545. 
 
 Bi Cooper V. Jacobs, S2 Ala. 411. 
 
 62 Griffith V. Milwaukee II. Co.. 02 la. 034, 54 Am. St. Rep. 573. 
 
 5:-. Doushis V. Wliiting, 28 111. 302. 
 
 64 Linn V. Hamilton, 34 N. .1. L. 305: S.tuiidors v. Gallalier, 2 
 Humph. 445; Farmers' and Mechanics' National Banlv v. Crane, 15 
 Abb. Pr.. N. S., 434; Clarke v. Clement. Term Kep. 525; Kaynes v. 
 Jones. Mees. & W. 104; 1 Dowl., N. S., .S73; .Tur. 133; .Tohnsti * 
 V. Lynch. 3 Bibb. 334; Erwin's Lessee v. Dundas, 4 How. 58; Brin- 
 lon V. Gen-y. 7 111. App. 2:?8; Slieetz v. Wynkoop. 74 Pa. St. 1!)8; 
 Conn V. Pender, 1 Smedes & M. 380; Shaffer v. Watkins, 7 Watts &
 
 § 4-2 THE FORM OF THE ORIGINAL EXECUTION. 18i> 
 
 The exeeutiou ought also to state the name of each 
 defendant as it is set forth in the judgment. If tb(^ 
 name be incorrectly stated in tlie judgment, there is 
 notj until tlie judgment is amended, any authority for 
 execution against defendant in his true uame.^^ An 
 execution in the name of AMlliam Barnes, guardian, is 
 not supported by a judgment in the name of Charity, 
 Penelope, and Sarah Newsom, by their guardian, AVil- 
 liam Bnrnes.^ It is indispensable that the amount to 
 be collected should be specified in the writ; otherwise 
 the officer has no authority to collect anything, nor to 
 make any levy or sale."*'' In an action against a sheriff 
 for his failure to return an execution, he claimed that 
 it was void in various respects, among which was that 
 it did not state the amount of the judgment or the 
 amount actually due thereon. In overruling his con- 
 tention and determining him to be liable notwithstand- 
 ing the defects in the writ the court said: "It is true 
 that neither the amount of the judgment nor the 
 amount actually due thereon is stated in such manner 
 as that the exact amount either due or for which the 
 judgment was rendered can absolutely and without 
 doubt be ascertained, but it is certain that the sheriff 
 
 R. 219; Cumberland Coal Co. v. Jeffries, 27 :Md. .520; Mortland v. 
 Ilimes, 8 Pa. St. 2G.j; Lee v. Crossna, 6 Humph. 281. The writ 
 should also issue in the namrs of all the plaintiffs, though one be 
 dead. Stewart v. Cunningham, 22 Ala. 626. Omitting the name of 
 a defendant from an alias writ is fatal to the continuance of its lien 
 against him. Brem v. Jamieson, 70 N. C. 567. "Where execxition is 
 stayed as against one defendant, because he is a soldier, it may be 
 enforced against the others. Sheetz v. Winkoop, 74 Pa. St. 198. 
 
 55 Farnham v. Ilildreth, 32 Barb. 277; Bank of United States v. 
 McKenney, 3 Cranch C. C. 17:>. But the insertion of a middle initial 
 in the execution when there is none in the judymeni is immaterial. 
 Mc.Mahon v. Colcloiigli. 2 Ala. 68. 
 
 56 Newsom v. Newsom, 4 Ired. 381. 
 
 67 Maxwell v. King, 3 Yerg. 460; "Wright v. Nostrand, 15 Jones & 
 S. 441.
 
 187 THE FORxM OF THE ORIGINAL EXECUTION. § 42 
 
 was informed by the language of the writ that the 
 judgment was rendered for at least the snm of three 
 hundred and ninety dollars, which he was comman«le<i 
 to make by levy, distress, and sale out of the defend- 
 ant's proi>erty. These imperfections in the writ could 
 have been amended. If amendable, the writ was not 
 void, but only voidable, and should have been served 
 and returned by the sheriff." ^** The amount, when 
 given, should not vary from the judgment. An execu- 
 tion varying from the judgment is irregular, although 
 the amount for which it issues is less than that auth(H- 
 ized by the judgment.^** It has been held that a vari- 
 ance between the true date of the judgment and that 
 set forth in the execution renders the latter a nul- 
 lity; *•" but we shall hereafter show that this is not sus- 
 tained by authority.- In Massachusetts, an execution 
 issued by a justice of the peace, and signed by him in 
 his official capacity, recited that the judgment was re- 
 covered before him as "trial justice," when there was 
 no such officer known to the law. The court held this 
 execution to be void, because "it purports to be on a 
 judgment recovered before a tribunal which then had 
 no existence." ®^ In Maryland, when the judgment 
 was the result of proceedings by attachment and was 
 for the seizure and sale of certain property, but the 
 execution issued was as if the judgment had been a 
 general judgment in personam, the writ was adjudged 
 to be void, because the court regarded the case as one 
 
 88 Van Cleave v. Bncker, 79 Cal. COO. 
 
 69 Webber v. Ilntcbins, 8 Mees. & W. 310: 1 Dnwl.. N. S., 95: Kine 
 V. Birch. 2 Gale & D. 513; Cobbold v. Chilver, 4 Soott N. R. 07S: \ 
 Dowl., N. S., 72G; 4 Man. & G. 162; 6 .Iiir. 346. 
 
 «o Cutler V. Wadswortb, 7 Conn. 0; Rider v. Alexander, 1 D. Chip. 
 267. 
 
 81 Palmer v. Crosby, 11 Gray. 40.
 
 ^ 43 THE FORM OF THE ORIGINAL EXECUTION. 188 
 
 uot of a misdescribed judgment, but of the issuing of a 
 writ wbicli there was no judgment to support.^^ 
 
 § 43. Consequences of Variance Between the Writ 
 and Judgment. — Tlie decisions in regard to the con- 
 sequences of issuing an execution in which the judg- 
 ment on which it is based is misdescribed in one or 
 more particuhirs are not entirely in harmony with one 
 another. This is particularly the case when the error 
 in the writ has not been corrected in any manner, and 
 the officer has proceeded to make a levy and sale. 
 Here it must follow that the error must be overlooked, 
 or the purchaser must be made to severely suffer for 
 that for which he is not justly blamable. There are 
 loose remarks in the early reports, to the effect that 
 an irregular execution is void, while an erroneous exe- 
 cution is merely voidable. No test is there or else- 
 AAhere prescribed by which to distinguish one from the 
 other. Courts have often, without any want of logical 
 acumen, arrived at the conclusion that an execution 
 issued contrary to established rules of practice, or in a 
 form different from that prescribed by those rules, is 
 not regularly issued, and therefore must be deemed "an 
 irregular execution"; and they have, therefore, not 
 unfrequently, under the authority of the loose remarks 
 just referred to, held such executions to be void. There 
 can be no just distinction made between an irregular 
 and an erroneous execution, for an erroneous execution 
 is necessarily irregular, and an irregular execution is 
 necessarily erroneous. There is a just distinction be- 
 tween executions issued without authority, and execu- 
 tions issued under an authority which is erroneously 
 l.ursued; but these two classes of executions cannot be 
 
 82 Deakins v. Ilex, GO Mil. 593.
 
 189 THE FORM OF THE ORIGINAL EXECUTION. g 43 
 
 accurately designated as irregular aud erroneous. 
 The former chiss is void; the latter may, wilh equal 
 propriety, be termed either irregular or erroneous. 
 When an execution can properly issue, a mistake made 
 by an otlicer, in performing the duty of issuing it, is 
 necessarily a mere error or irregularity. It is, however, 
 necessary that an execution should have a judgment 
 to support it; and that it should appear from the exe- 
 cution what judgment is intended to be enforced. The 
 reason why the description of the judgment is inserted 
 in the writ is, that the officer may know what he is to 
 enforce, and that the writ may, by inspection, be 
 connected with the authority for its issuance. When 
 a sale has been made by a sheriff, we apprehend that 
 the purchaser need show, in support of his title, noth- 
 ing except a judgment, an execution thereon, and a 
 sale and conveyance under such execution. When the 
 execution is offered in evidence, it may vary from the 
 judgment in some respects, and correspond with it in 
 others. The question, then, before the court is, Did 
 this execution issue on this judgment? If, from the 
 whole writ, taken in connection with other facts, the 
 court feels assured that the execution offered in evi- 
 dence was intended, issued, and enforced as an execu- 
 tion upon the judgment shown to the court, then we 
 apprehend that the writ ought to be received and 
 respected.^ When an execution is not in proper 
 
 63 Hunt V. Ix)ucks. 38 Cal. 372. 99 Am. Dec. 404; Miles v. Knott, 
 12 Gill & J. 442; McCoIlum v. Ilubbort. 13 Ala. 2S2, 48 xVm. Dec. 56; ' 
 Doe V. Gildavt, 4 IIotv. (^fis.'s.) 2C!7: Barker v. riaiiters' Bank, .' How. 
 (Miss.1 ."GO; Keeler v. Neal. 2 Watts, 424; Durham v. Ileaton. 28 111. 
 2G4, 81 Am. Dec. 27.1; Graham v. Trice, 3 A. K. Marsh. 522, 13 Am. 
 Deo. 109; .Tnckson v. Streeter. 5 Cow. 529; Ilealy v. Preston. 14 How. 
 Pr. 29; Jackson v. Walker. 4 Wend. 462; Jackson v. Anderson, 4 
 Wend. 474; Sprott v. Reid, 3 G. Greene, 489, 56 Am. Dec. 549; Jack' 
 eon V. Davis, 18 Johns. 7; Corbin v. Pearce, 81 111. 461; Hall v.
 
 § 43 THE FORM OF THE ORIGINAL EXECUTION. 190 
 
 form, or when it misrecites the judgment, as no one 
 ]>ut the defendant can be injured, no one but he ought 
 to be allowed to complain; *^* and his complaints ought 
 not to be heard when, by his apathy, he has allowed the 
 rights of third persons to attach themselves to the exe- 
 <ution, or even when he has allowed plaintiff to be 
 placed in a worse situation than though prompt com- 
 ])laint had been made. Where sufficient appeared on 
 the face of the execution to connect it with the judg- 
 ment, courts have frequently disregarded variances in 
 the names of the parties,**^ in the date,^** or in the 
 amount of the judgment.'^^ Hence it is no objection to 
 
 inagett, 63 Md. 57; Davis v. Kline, 76 Mo. 310; Jones v. Dove, 7 Or. 
 467; De Loach v. Robbins, 102 Ala. 288, 48 Am. St. Rep. 46; Waxel- 
 baum V. Connor, 94 Ga. 529; Anderson v. Gray, 134 111. 558, 23 Am. 
 St. Rep. 696; Wright v. Nostrand, 94 N. Y. 47. 
 
 64 Swigsart v. Harber, 4 Scam. 364, 39 Am. Dec. 418; Harlan v. 
 Harlan, 14 Lea, 107; Chapman v. Dyett, 11 W^end, 31, 25 Am. Dec. 
 598; Mitchell v. Toole, 63 Ga. 95; Wright v. Nostrand, 94 N. Y. 47. 
 
 65 Barnes v. Hayes, 1 Swan, 304; Blake v. Blanchard, 48 Me. 297; 
 Lee V. Cix)ssna, 6 Humph. 281; Hayes v. Bernard, 38 111. 297; Couch 
 V. Atkinson, 32 Ala. 633; Morse v. Dewey, 3 N. H. 535; Thornton v. 
 Lane, 11 Ga. 459; Lewis v. Avery, 8 Vt. 289, 30 Am. Dec. 469; 
 Holmes V. Mclndoe, 20 Wis. 657; Anderson v. Gray, 134 111. 550, 23 
 Am. St. Rep. 696. 
 
 66 Perkins v. Spaulding. 2 Gibbs, 157; Stewart v. Severance. 43 
 Mo. 322, 97 Am. Dec. 392; Bank of W^hitehall v. Pettis, 13 Vt. 395, 
 37 Am. Dec. 600; Brown v. Betts, 13 Wend. 30; Liedig v. Rawson, 
 1 Scam. 272, 29 Am. Dec. 354; Hull v. Blaisdell, 1 Seam. 332; Swift 
 v. Agnes, 33 Wis. 228; Alexander v. Miller, 18 Tex. 893, 70 Am. Dec. 
 314; Mollison v. Eaton, 16 Minn. 426; Millis v. Lombard, 32 Minn. 
 259; Nims v. Spurr, 138 Mass. 209; Dailey v. State, 56 Miss. 475; 
 Davis v. Kline, 76 Mo. 310; Franklin v. Merida, 50 Cal. 289; Stevens 
 V. Roberts, 121 Mass. 555; Drawdy v. Littlefield, 75 Ga. 215; Steele 
 V. Cochran, 88 Ga. 296; Mooncy v. Moriarity, 36 111. App. 175; 
 Friedlander v. Fenton, 180 111. 312. 
 
 <■>-! Grim v. Adkins, 21 Ind. App. 106; Harris v. Alcock, 10 Gill & J. 
 226, 32 Am. Doc. 1.58; Marshall v. Green, 1 S. W. Rep. 602 (Ky. App); 
 Perry v. Whipple, 38 Vt. 278, where the variance was twenty-five 
 couts; Sanders v. Ky. Ins. Co., 4 Bibb, 471, where the variance was 
 one cent; Doe v. Rue. 4 Blackf. 263, 20 Am. Dec. 368, where execution 
 (or $25.06 issued on judgment fur .$24.34; Trotter v. Nelson, 1 Swan,
 
 191 THE FORM OF THE ORIGINAL EXECUTION. § 43 
 
 an execution that the cai)acity of the plaintiffs is mis- 
 described. Thus it was said in the case of Holmes v. 
 Jordan, 163 Mass. loT: ''The only objection argued is 
 
 7, where execution for $319.0G issued on judgment for $32-8.18; Cun- 
 ningham V. Felker, 2G Iowa, 117, where, on judgment for $201 debt 
 and $7.15 costs, execution issued for $201.50 debt and $8.40 costs; 
 Jaclison V. I'ratt, 10 Johns. oSl; Pecli v. Tiffany, 2 X. Y. 4.51; Peet 
 V. CJowenhoven, 14 Abb. Pr. 50, where execution was for $100 more 
 tlian due on judgment; Brace v. Show, 10 B. Mon. 43, where execu- 
 tion omitted interest given bj* ihe judgment; Avery v. Bowman, 40 
 N. II, 453, 77 Am. Dec. 72S; Jackson v. Walker, 4 Wend. 4G2; 
 Becker v. Quigg, 54 111. 390; Jackson v. Page, 4 Wend. 588; Parm- 
 lee V. Hitchcock, 12 Wend. 00, where it was held to be the duty of 
 the sheriff to execute a writ for $180.71, though the judgment 
 whereon the writ issued was for $133.50; Miles v. Knott, 12 Gill & 
 J. 442, where the judgment was for $235,831-3, and the writ for 
 .y_'05.83 1-3; Durham v. Heaton, 28 111. 204, where execution for $4,- 
 U3.50 issued on judgment for $3,441.41; Dickens v. Crane, 33 Kan. 
 ;;44, where the judgment was for $102.12 and $73.20 costs, and the 
 writ for 1.02 12 and costs 7.3,20; Warder v. Millard, 8 Lea, 581, 
 wliere, on a judgment for five hundred and thirty-four dollars, a 
 writ issued for five and thirty-four dollars; Williams v. Ball, 52 
 Tex. GIO, 30 Am. Rep. 730, where execution issued for $13.37 on a 
 judgment for $12.50. The case in which the largest variance In 
 amount has occurred, so far as we know, is that of Hunt v. Loucks, 
 .■;S Cal. 372, 00 Am. Dec. 404. This case M'as an action of ejectment, 
 in which the execution was offered in evidence as part of the plain- 
 tiff's claim of title. We give the following extracts from the opin- 
 ion of the court, delivered by Judge Sanderson: "The ground of the 
 first objection was, that the execution called for $095 more than 
 the face of the judgment. Was it for that reason void, and there- 
 fore the sale also? We think it was only voidable, and therefore 
 the sale valid. 
 
 "It cannot be denied that to sustain a title founded upon a sher- 
 iff's sale, a judgment must be produced; an execution, which the 
 judge can aflirm, was issued upon the judgment produced, and a 
 deed which was given in pursuance of the execution and the sale 
 under it. Unless It appear that the judgment, execution, and deed 
 are links of the same chain, the title Avill fail. But a question of 
 variance between them must not be confounded with the (luestion 
 of their validity. The two propositions are quite separate and dis- 
 tinct. The former is a question of identity only; tlie latter assumes 
 or concedes the identity, and goes only to the vallility of the sus- 
 pected instrument. If the execution differs so materially from the 
 judgment that the judge cannot affirm that the former was Issued
 
 § 43 THE FOIIM OF THE ORIGINAL EXECUTION. 192 
 
 that the execution is not supported by the judgment, 
 because tlie judgment was recovered by the plaintiffs 
 in an action of contract, Avhen in tlie writ they were 
 
 upon the latter, his couc-lusiou is, not that the execution is void, 
 but that it was not issued upon the judgment which has been ex- 
 hibited Avith it. The conditions upon Avhich the two questions arise , 
 are not ouly different, but tlie question of void or voidable does not 
 arise until the question ot variance has been considered. 
 
 "That this execution was issued upon the judgment which was 
 exhibited with it does not admit of a rational doubt. The recitals 
 in the execution correspond with the judgment in every particular, 
 except as to the amount; the court, the date, the parties, the gen- 
 eral character of the judgment, are all correctly stated in the exe- 
 cution; and it is not pretended that there is, or was, any other judg- 
 ment of the same court, of the same date, between the same parties, 
 and of the same general .character upon which the execution coiild 
 have been issued. Such being the case, there is no rational ground 
 for saying that the judgment and execution are not parts of the 
 same judicial proceedings; and we do not understand counsel as 
 disputing this proposition, but as conceding it, and insisting only 
 that the execution is void, because it calls for too much money. 
 
 "That, as a general rule, an execution must follow the judgment, 
 and conform to it, and that if it varies materially from it, it will 
 be set aside, or quashed, or amended, as the case may be, upon the 
 motion of the parties to it, who are prejudiced by the error, is un- 
 doubtedly true, as appears by the cases cited by counsel. But that, 
 and nothing more, being shown, we have made but little progress in 
 the present case. The question is not as to what the court would 
 have done with this execution if the defendants in the judgment 
 had moved to set it aside, to quash, or amend it, as they might have 
 done. If such was the question, it could be readily answered. The 
 court would not have set it aside, but would have allowed it to be 
 amended so as to conform to the judgment; that is to say, it would 
 have quashed it only as to the excess. Stevenson v. Castle, 1 Chit. 
 P,4n; King v. Harrison, IT) East, m.l; ]\rorrys v. T^ake, 8 Term Rep. 
 41G, note a; McCollum v. Hubbert, 13 Ala. 282. 48 Am. Dec. 56. 
 But quite a different question is here presented— one which rests 
 upon entirely different conditions, and involves altogether different 
 principles. It is as to what ought to be done with such an execu- 
 tion when it comes before the court collaterally as evidence of title 
 in an action which is not even between the parties to the execution, 
 but betAveen entire strangers to it, and Avhere it is not pretended 
 that the execution was ever, at any time, even after the sale, set 
 aside upon the application of the parties avIio alone were injurel by 
 the error." His honor next proceeded to consider various instances
 
 li)3 TUE FORM OF THE ORIGINAL EXECUTION. § 43 
 
 described as executors of the will of Oliver Ames, 
 whereas the execution recites a recovery by them per- 
 sonally. It appears from the record that the defect is 
 
 of void and voidable exoculious, and the method by which the lat- 
 ter could be avoided. lie also referred to various cases involving 
 variances betvpeon judgments and executions, and closed as fol- 
 lows: "We regard the foregoing cases as establishing, beyond a ra- 
 tional doubt, the proposition that an execution which is amendable 
 Is not void, and that an execution whith merely calls for too much 
 money is amendable. It is true that the difference between the 
 judgments and executions were not so great as in the present case, 
 but no reference was made in any of them fo the maxim, De mini- 
 mis non curat lex, nor has that maxim, for olivlous reasons, any 
 application to questions of this character; it goes only to the ques- 
 tion whether the amount in dispute is too trifling to attract the eye 
 of the court, and in no respect illustrates or controls a question of 
 void or voidable process. To allow the amount of the excess— as 
 much or littk^— to affect such a question is not only to invoke a prin- 
 ciple wholly irrelevant to it, but to proclaim that, in relation to a 
 most important matter, there is no settled rule; that if there is any 
 variance at all, that circumstance does not establish the character 
 of the execution as void or voidable, but its character must depend 
 upon the varying notions of judges as to what is or is not a trifle, 
 which is to say, that the validity of judicial process is not to depend 
 upon established rules of law, but upon judicial discretion; or in 
 other words, the purchaser is not to be told, in round terms, which 
 he can understand, that the execution is or is not void, and that 
 he will or will not get a title if he buys, but tliat if he buys he must 
 take the chances, and wait until his title comes, as it surely will, 
 before the judicial eye, for inspection, when he will be fully in- 
 formed as to what, in his case, is a trifle or is not, and that accord- 
 ingly he has or has not got a title. If it be the policy of the law to 
 uphold judicial sales, we know of no way by which that policy can 
 be more efreciually defeated than by the adoption of such a rule of 
 lecisdon. We say adoption, because we are certain that no such 
 ule yet exists. The cases to which we have referred make no 
 m(>ntion of such a rule; they all procei'd upou the theory that, in 
 respect to mere variances between the judgment and the execu- 
 tion, the latter is amendable, and is, therefore, not void, but void- 
 able only. 
 
 "That executions which are merely voidable cannot be attacked 
 collaterally admits of no debate, where, as in this state, the com- 
 mon law controls the question. A collateral attack can no more be 
 made upon an erroneous execution than upon on an erroneous judg- 
 ment. Like an erroneous judgment, an erroneous execution is 
 Vot. 1.-13
 
 § 43 Till': FORM OF THE ORIGINAL EXECUTION. 104 
 
 merely a clerical error, and amendment would be al- 
 lowed, as of course, from the record without other evi- 
 dence. Under such circumstances the writ may be 
 treated as amended in this proceeding." The same 
 course must be taken when it appears that there is a 
 variance in describing the court in which the judgment 
 was entered. This is only one of several elements of 
 description, and if, from the whole record, it appears 
 that the judgment was that of a court different from 
 the one named in the writ, it would, on application, 
 be amended so as to correct the clerical error, and, 
 whether amended or not, such error is not sufficient 
 to invalidate the writ or any proceedings taken there- 
 under.*^ 
 
 In Delaware, a judgment was recovered for four hun- 
 dred dollars, paj^able in three annual instalments. An 
 
 valid until set aside upon a direct proceeding brought for that pur- 
 pose; and until set aside, all acts which have been done under it 
 are also valid. In a collateral action, it cannot be brought in ques- 
 tion, even by a party to it, much less, as in this case, by a stranger 
 to it. Even directly it cannot be attacked by a stranger, for it does 
 not lie in the mouth of A to say by it B has been made to pay too 
 much money, and that therefore all proceedings under it are null 
 and void. That it is a question which concerns B only, and if he is 
 content, A cannot complain. Nor if B, who is bound to know of 
 the variance between the "judgment and the execution, does not in- 
 terpose by motion for its correction, ought he to be allowed to ques- 
 tion the title of a purchaser under it— it may be years afterward? 
 He has a remedy, by motion to amend, or by action to recover the 
 excess of the levy from the plaintiff in the execution, and the clerk 
 also; besides, Avith full kuowlodge of all defects, he has allowed 
 the sheriff, acting as his agent in the matter, to sell, and the pur- 
 chaser to buy, without opening his lips, and in all fairness and jus- 
 tice to the latter, he must keep them closed forever." But in Hast- 
 ings V. .Tohnsou, 1 Nev. (>13, and Collais v. ilcLeod, 8 Irod. 221, 4t) 
 Am. Dec .376, executions materially in excess of the judgments on 
 wliich they issued were adjudged to be void. 
 
 Gs Slackhouse v. Zuntz. 41 Da. Ann. 41. j; Abels v. Westervelt, 15 
 Abb. Pr. 236; AVright v. Xostrand, 94 N. Y. 31, 4S; Ross v. Shurtleff, 
 55 Vt. 177.
 
 195 THE FORM OF THE ORIGINAL EXECUTION. § 4^ 
 
 execution on this judgment issued for the whole, when 
 a part only was due, and was levied on the i^roperty 
 of the defendant. This writ was claimed to be void, 
 but the court, nfter argument, admitted it, saying: 
 "The distinction is between void and voidable process; 
 between such as is merely irregular and such as is ab- 
 solutely void. Process issued on a judgment payable 
 by instalments, after any of them, but before all of 
 them, are due, and commanding the sheriff to levy 
 the whole debt, would be merely irregular, and it 
 would not be competent for any one collaterally to 
 question it, and much less the sheriff who executes it; 
 but it is even doubtful whether the writ is irregu- 
 lar." ^ There must, however, in each case, be suffi- 
 cient to convince the court that the judgment offered 
 in evidence and that attempted to be recited in the 
 execution are one and the same. Hence, where the 
 judgment offered in evidence Avas rendered in a dif- 
 ferent year, and for a different amount from that re- 
 cited in the execution, and no proof was offered to 
 show that but one judgment had been rendered be- 
 tween the parties, the variance was regarded as fatal."** 
 A similar result followed where there was a variance 
 in the names of the parties and in the amount of the 
 judgment.'^ *^ 
 
 In North Carolina it was held that a fieri facias for 
 an amount in excess of that warranted by the judg- 
 es state V. riatt, 5 Harr. (Del.) 429. 
 
 70 Harmon v. Laiued, OS 111. 107. 
 
 71 Crittenden v. Leitensdorfer, 35 Mo. 239. In this case the judg- 
 ment recited in the execution was in favor of Robert Cauipbcll, 
 surviving partner of William and Robert Campbell, against Eugene 
 Leitensdorfer, Jacob Haughton, Antoine Vien, Aaron Bowers, and 
 Euphrosine Leitensdorfer, for $7,000.70. The judgment offered in 
 evidence was in favor of William and Robert Campbell against 
 Eugene Leitensdorfer and Jacob Haughton, for $7,070.
 
 § 43 THE FORM OF THE ORIGINAL EXECUTION. 196 
 
 ment is void."- In consequence of these decisions, the 
 loj^islatnre interposed by an enactment declaring that 
 Avhere land had been sold, or might thereafter be sold, 
 by virtue of any execution, no variance between the 
 execution and the judgment, either in the sum, or in 
 the manner in which, or in the time when, it is due, 
 shall invalidate the title of the purchaser. This act, 
 Tliough mentioning no other property but land, was 
 construed as equally applicable to sales of personalty, 
 because they were within the mischief intended to be 
 corrected by the act, and, since this enactment, exe- 
 cutions are not more seriously affected by variances 
 between them and the judgments on which they were 
 founded than if they were issued in some other state.'^^ 
 In Georgia, the rule that the execution must conform 
 to the judgment on w'hich it was based is very in- 
 llexible,""* at least when sought to be applied to pro- 
 ceedings to vacate or avoid a levy. Thus, where, on a 
 judgment against the "Water Lot Company of the 
 city of Columbus," a fieri facias issued against the 
 Water Lot (^'ompany, a motion to dissolve the levy was 
 granted.''^ The decisions in this state are doubtless 
 due to the peculiar and stringent language of its code. 
 Section 30.30 declares that "all executions must fol- 
 low the judgment from which they issued, and de- 
 scribe the parties as described in such judgment"; 
 and section 3495 is as follows: "A fieri facias may be 
 amended so as to conform to the judgment from which 
 
 -2 Coltraine v. McCaine, 3 Dev. 308, 24 Am. iJec. 25G; Walker v. 
 Marshall, 7 Ired. 1, 4.5 Am. Dec. 502. 
 
 73 Rutherford v. Raburn, 19 Ired. 144; Hlnton v. Roach, 95 N. C. 
 106; Wilson v. Taylor, 98 N, C. 275; Marshburn v. Lashlle, 122 N. 
 G. 237. 
 
 74 Bradley v. Sadler, 57 Ga. 191; Manry v. Shepperd, 57 Ga. 08. 
 
 75 Bradford v. Water Lot Co., 58 Ga. 280.
 
 197 TllK FUUM OF THE OliK^lNAL EXECUTION. S 4:{ 
 
 it issued, and also at the time of its return; but if 
 such tieri facias be levied at the time of the amend- 
 ment, such levy must fall; still the amended fieri facias 
 may be re-executed." Under the.infiuence of these sec- 
 tions, it has been held that when a judgnieut is against 
 a partnership, an execution against such partnership*, 
 and also against its individual members, must be 
 quashed, and the levy thereunder annulled.'^ 
 
 Where a variance exists between an execution and a 
 judgment offered in support of it, the safer course is to 
 show by some proof aliunde that the former was in 
 fact issued to enforce the latter. In Texas, when an 
 execution against P. B. Clements and a judgment 
 against J. P. Clements were put in evidence, without 
 any testimony to connect them, the court refused to 
 assume that these two names were intended to desig- 
 nate the same person, and, therefore, held that the 
 judgment, execution, and a sale thereunder were not, 
 in the absence of such evidence, suilicient to divest the 
 title of J. P. Clements.''' In this case, the judgment 
 was one establishing a lien, and directing the sale of 
 certain specifically described lands for its satisfaction. 
 The execution conformed to the judgment in date, in 
 amount, in the names of plaintiff, and in the descrip- 
 tion of the lands to be sold ; and therefore nothing less 
 than highly-developed judicial blindness could have 
 failed, in the absence of other evidence, to see that the 
 execution in question issued upon the judgment offered 
 to support it. Following this decision, it was held 
 that an execution omitting the name of one of the 
 plaintiffs was not only unauthorized, but, further, 
 "that a sale and deed made under it cannot be sus- 
 
 79 Olaj-ton V. May. ns (J a. 27. 
 ■n BatUe v. Guedry, 5S Tex. 111.
 
 § 43 THE FORM OF THE ORIGINAL EXECUTION. 198 
 
 tained.'* The tendencj^ to mitigate tlie Judicial sever- 
 ity respecting executions in this state is manifested in 
 a later decision. A clerk, without any authority to 
 do so, had stated in a writ that it was issued "for the 
 use of Tom Chirk," basing his action upon the ground 
 that Clark had i^urchased the judgment and was equi- 
 tably entitled to the proceeds of the writ. The court 
 said that the clerk had no authority to issue execution 
 in that manner, but declared, quite rationally, that 
 "the unauthorized insertion in the execution of the 
 words 'f(»r his use' should be treated as surplusage, and 
 disregarded." '^''* 
 
 Doubtless, parol evidence may properly be received 
 to show or explain a mistake made in issuing an exe- 
 cution, and to establish the fact that it was made 
 upon a judgment from which it varies in some particu- 
 lars.^** On the other hand, the failure to produce such 
 evidence may justify' the court in disregarding a pro- 
 ceeding under execution on the ground that it is 
 not shown that the person or corporation against 
 which the writ issued is the same as that upon whose 
 property it was levied. Upon a judgment and execu- 
 tion against the Florida Central Kailroad, real property 
 belonging to the Florida Central Railroad Company 
 was levied upon and sold. It was held that the sale 
 could not be supported, in the absence of evidence that 
 the corporation whose property was sold "was the 
 party defendant in the suit in which such judgment 
 was rendered, and was the corporation meant and in- 
 tended in such judgment.^^ 
 
 78 Cleveland v. Simpson, 77 Tex. 96. 
 
 79 Q-wens v. Clark, 78 Tex. 547. 
 
 8o.Tennin;?s v. Carter, 2 Wend. 440. 20 Am. Deo. 03.5. 
 «i L'Engle v. Florida Central etc. K. li. Co., 21 Fla. 353.
 
 i9'J THE B'ORM OF THE ORIGINAL EXECUTION. § 43 
 
 The chief object in describing the judgment in the 
 vvri*: is to refer the ofticer and others to the authority 
 under whicli he acts, and to advise him what must be 
 done to produce full satisfaction. Th(,' question, as we 
 have already intimated, is one of identity merely; and 
 if, from the records, or from any other competent evi- 
 (h'uce, the court is convinced that the writ was in- 
 tended to be issued uj^on a valid judgment produced 
 in evidence, it is not void, though it misnames the 
 judgment creditor,^" or omits part of the name of a 
 corporation plaintiff,**** or transposes the names of 
 plaintiff and defendant.**^ If the judgment is against 
 a company or partnership, it is not fatal that there 
 is a variance between it and the execution in the per- 
 sons comprising the firm, w^here the property sold was 
 the property of the company and not of its individual 
 members, and the variance is sought to be urged in a 
 collateral suit.**^ 
 
 In some instances, officers subj.ctt'd to some action 
 on account of their failure to perform their official 
 duty under a writ have sought to escape liability by 
 urging that it did not conform to the judgment and 
 was, therefore, unauthorized. Where the proceeding 
 against the officer is of a penal character and may, if 
 sustained, result in amercing him in a substantial 
 sum when it appears that no injury has been suffered 
 by plaintiff, it is possible that a strict regularity in 
 the writ may be insisted upon, and that the officer will 
 not be subjected to liability whore the writ is irregular 
 in not properly describing the judgment, or othcr- 
 
 82 Harlan v. Harlan, 14 Ivca. 107. 
 
 83 Miller v. Willis, 1.') Nob. 13. 
 
 8* Mclntyn' v. Sanford, Daly, 21. 
 86 Loomis V. liuiige, GU Fed. Hep. 85G.
 
 § 44 THE FORM OF THE ORIGINAL EXECUTION. 200 
 
 wise.*** As a general rule, however, an officer is pro- 
 tected by process fair upon its face and not absolutely 
 void. Respecting irregularity, none but the ^(?fendaiiL 
 can complain. Hence, it is the duty of the officer to 
 execute the process placed in his hands for that pur- 
 pose without regard to any amendable defects therein, 
 and he cannot escape liability for his failure to do so 
 by relying upon these defects by way of exoneration.**'" 
 
 § 44. Designating the Return Day.— The p; riod with- 
 in which the execution is to be returned differs in the 
 different states, being regulated by local statutes. At 
 common law, the time for the return was designated 
 in the writ, and this practice still obtains in most, but 
 not in all, of the states. It has sometimes been held 
 that an error in the return day, or, in other words, the 
 designation in the writ of a return day at a time differ- 
 ent from that designated by law, was fatal .'^^ But this 
 view is entirely without the support of reason, and is 
 now opposed by a decisive majority of the reported ad- 
 judications upon this subject.®^ In fact, there is no 
 
 86 Fisher v. Franklin, 38 Kan. 251. 
 
 87 Hall V. Doyle. 3.5 Ark. 445; Singer S. Co. v. Barnett, 78 Ga. 377; 
 Cody V. Quinn, 6 Ired. 191, 44 Am. Dec. 75; post, sec. 103. 
 
 88 Fitield V. Richardson, 34 Vt. 410; Ex parte Hatch, 2 Aik. 28; 
 Bond V. Wilder. 10 Vt. 393; Tichosnt v. Cilley, 3 Vt. 415; Jameson 
 V. Paddock, 14 Vt. 491; West v. Hughes, 1 Har. & J. 574, 2 Am. Dec. 
 539, in which case no return day was named; Harris v. West, 2r> 
 Miss. 156. This last case is irreconcilable with the later case of 
 Brown v. Thomas, 26 Miss. 335. This rule was appli«Ml in New 
 York to executions issued by justices of the peace and made re- 
 turnable in less than ninety days, on the ground that "it is well 
 settled that inferior and limited jurisdictions must be confined 
 strictly to pursue the autliority given them." Toof v. liently, 5 
 Wend. 276; F'arr v. Smith, 9 Wend. 338, 24 Am. Dec. 162. 
 
 88 Brown v. Hurt, 31 Ala. 146; Chambers v. Stone. Ala. 260; 
 W^offord V. Robinson, 7 Ala. 489; Stephens v. Dennison, 1 Or. 19; 
 Wilson V. Huston. 4 Bibb, 332; Cramer v. Van Alstyne. 9 Johns-
 
 201 THE FORM OF THE ORIGINAL EXECUTION. § 44 
 
 mere matter of form from which a departure could be 
 of less detriment to the parties. The provision for a 
 return day is bem-ficial mainly, if not solely, to the 
 plaintiff, because it fixes a time when he may expect 
 to obtain the fruits of his judgment, by compelling the 
 sheriff to have the writ satisfied, if satisfaction can be 
 had. The defendant has no interest in the return day, 
 for the writ, as soon as sued out, may and ought to be 
 levied, whether it be returnable in ten days or in six 
 months. And whether the time for the return day be 
 material to defeiulant or immaterial, he ought not to 
 be precluded from waiving his rights; and if he does 
 waive them, either in express terms or by silent acqui- 
 escence, the waiver ought to be irrevocable. An exe- 
 cution issued January 7, 1842, was by mistake made 
 
 386; How v. Kane, 2 Chand. 233, 54 Am. Dec. 152; Campbell v. 
 Gumming, 2 Burr. 1187; Mitchell v. Corbin. 91 Ala. 509; Henderson 
 V. Zachary, 80 Ga. 08; Goode's Admr. v. Miller, 78 Ky. 235; Stone 
 V. Martin, 2 Denio, 185, where the return day fell on Sunday; Will- 
 iams V. Rogers, 5 Johns. IGG, overruling Drake v. Miller, Col. Cas. 85; 
 Milburn v. State, 11 Mo. 188, 47 Am. Dec. 148; Brown v. Thomas, 
 20 Miss. 335, where no time was fixed for the return; Williams v. 
 Hogeboom, 8 Paige, 469. In this last case Chancellor Walworth 
 said: "As every court of record of general jurisdiction must judge 
 of the regularity of its own proceedings, if the mistake in the re- 
 turn day of this execution did not render the process actually void, 
 the remedy of the defendant, if he has any, is by application to set 
 aside the execution for the irregularity. And it now appears to be 
 fully settled in this state, as well as in England, that a mistake In 
 the return day of an execution issuing out of a court of record of 
 general jurisdiction is not void; but it is only voidable upon an ap- 
 plication to set the same aside for irregularity. See Atkinson v. 
 Newton, 2 Bos. & P. 336; Koddell v. Pakeman, 1 Gale's Exc. Rop. 
 104. I am satisfied, therefore, that a neglect to make an execution 
 returnable at the end of sixty days from the receipt thereof by the 
 sheriff renders it irregular merely; and that the execution is not 
 void, so as to make the attorney issuing it. and the party in whose 
 favor it is issued, trespassers; without the necesity of an application 
 to the court, to set aside the execution for the irregularity; and 
 ■where the irregularity may be cured by such court by amendment."
 
 S ii TUE FORM OF THE ORIGINAL EXECUTION. 202 
 
 rotiirnable on the first Monday in July, 1841. A mo- 
 tion against the sheriff and his sureties was made for 
 not returning" the execution according to law, which 
 motion he resisted, on the ground that the writ was 
 returnable on an impossible day. The court said: 
 "There is no question the clerk committed a mistake 
 both in the year and the Monday of the month, in 
 stating the time for the return, but this did not affect 
 the sheriff, or make it less his duty to make the money 
 and return the process according to law." ^^ An exe- 
 cution returnable in a less time than allowed by law is 
 valid, and may be executed after the time named in 
 1 he writ.^^ In Vermont, however, a different conclu- 
 sion was established at an early date, which the courts 
 have refused to reconsider.^^- A writ returnable at a 
 more distant date than sanctioned by statute may be 
 enforced within the time in which it might properly 
 have been made returnable.'*" The rule is otherwise 
 in Mississippi.^'* The omission of any part or of the 
 whole of the clause designating a time or place for the 
 return of the writ is an amendable defect, which, 
 though not amended, does not vitiate the writ on a 
 collateral attack."^ 
 
 If the time for the return is fixed by law, it is suffi- 
 ciently specified in a writ by a direction therein that 
 the officer make due return thereof or make return ac- 
 
 80 Samples v. Walker. 9 Ala. 726. 
 
 01 E.stes V. I.ong, 71 Mo. G05. 
 
 02 Bond V. Wilder, IG Vt. ;J9.3; Perry v. Whipple, 38 Vt. 278. 
 
 03 Youusblood V. Cunningbam, 38 Ark. 571; Mitchell v. Corbin, 91 
 Ala. .590; Wilson v. Ilustou, 4 Bibb, 332. 
 
 01 Lehr v. Itogers, 3 S. «& M. 4G8. 
 
 05 Benedict & B. M. Co. v. Thayer, 20 Ilun, 5-17; Walker v. Isaacs, 
 3G Hun, 233; Douglass v. Haberstro, 88 N. Y. 018; Mitchell v. Cor- 
 bin, 91 Ala. 599; Waldrop v. Friedman, 90 Ala. 157, 24 Am. Si. Hep. 
 775.
 
 203 THK FORM OF THE ORIGINAL EXKCUTION. § 43 
 
 cording to hiw/"' If, in a writ containing tliis genLMal 
 command, tlie cierlv of the* court interpolates an inac- 
 curate and erroneous return day, sucii interpolation 
 will, on a motion to quash the writ, be treated as mere 
 surplusage."' To make a writ returnable on Sunday 
 is, of course, irregular, but the writ is subject to 
 amendment and therefore is not void."^ 
 
 § 45. Clause of Attestation. — The execution closed 
 with a clause of attestation, as *' Witness, Edward, 
 
 Lord Ellenborough, at Westminster, the day of 
 
 , in the year of our reign." The use of the 
 
 name of the judge is a mere formality, and hence it 
 is not necessary that the judge named be the one 
 who presided at the trial, nor is it material that he 
 failed to preside because he was disqualified to act 
 in the cause.''*'"^ In the English court of king's bench, 
 a writ of fieri facias need only be sealed; "but in 
 the common pleas, all executions are required to be 
 signed by the prothonotary, and must be so signed 
 before they are sealed.'' ^^^ Defects in the clause of 
 attestation, unless we may except the seal and signa- 
 ture, are regarded as defects in matters of form, and 
 therefore as not affecting the validity of the writ.^"^ 
 In Georgia, a writ was erroneously dated, so that the 
 j)erson in whose name it was tested was not the judge 
 
 ssWofford V. Robinson, 7 Ala. 4S9; MeDaniel v. Johnston, 110 
 Ala. G2G; Stephens v. Dennison, 1 Or. 19. 
 
 07 MeDaniel v. Johnston, 110 Ala. 52U. 
 
 »8 Boyd V. Vandeikemp, 1 Barb. Ch. 273. 
 
 »» Drawdy v Littlefield. 75 Ga. 215. 
 
 100 Tidd's Prac. 909; Bingham on Judpjments and Executions, 
 190. In New York, an execution need not contain any teste nor 
 direction to return. Carpenter v. Siiumous, 1 Robt. 3G0; 2S How. 
 Vr. 12; Douglass v. Haberstro, SS N. Y. CIS. 
 
 3 01 A -writ tested on a wrong day is a nullity in New Brunswick. 
 rower V. Johnson, 2 Kerr. 43.
 
 § 45 THE FORM OF THE ORIGINAL EXECUTION. 20* 
 
 at the date of the teste. This writ was held not to be 
 void, and the sheriff was not jpermitted to avail him- 
 self of the irregularity as an excuse for not serving the 
 writ.*^^ At the common law, a judgment was deemed 
 to be entered on the first day of the term. The exe- 
 cution might bear teste any time after the supposed 
 entry of the judgment. "Every writ of execution, in 
 the case of a common person, must bear teste in term 
 time; for, being the process of the court in which judg- 
 ment is given, they have no authority for awarding it 
 at any other time. When judgment is entered up in 
 vacation, it relates in point of form to the first day of 
 the preceding term, and execution may be sued out on 
 it by a writ tested as of the preceding term; for the 
 plaintiff having run through the whole course of a 
 judicial proceeding, and his cause being ripe for exe- 
 cution, it would be unreasonable to oblige him to wait 
 till the ensuing term, by which he might be disap- 
 pointed of the effect of his judgment." ^^^ In the United 
 States, the theory of the common law, that the execu- 
 tion is issued by the court and is a judicial act, does 
 not, as a general rule, prevail. With us it is a minis- 
 terial act, to be performed by the clerk of the court; 
 and which may be i)erformed out of term time as well 
 as within term time. We are therefore under no 
 necessity of giving our writs a fictitious date. We 
 have also very generally abolished the common-law fic- 
 tion that a judgment is entered at the commencement 
 of the term. In most of the states, the proper date for 
 the writ is that at which it was in fact taken out.^"^ 
 
 102 Jordan v. PorteiQeld, 19 Ca. 139, 63 Am. Dec. 301. 
 
 103 Bingham on Judf.'monts and Executions, sec. 187; Farley v. 
 Lea, 4 Dev. & B. 1G9, 32 Am. Dec. G80. 
 
 104 Mollison V. Eaton, 16 Minn. 426; Brown v. Tarker, 15 111. 307; 
 Morgan v. Taylor, 38 N. J. L. 317.
 
 20O THE FORM OF THE ORIGINAL EXECUTION. § 45 
 
 This is not, however, universally true. Thus, in North 
 Carolina, writs of execution are required to be tested 
 as of the term of court next before the day on which 
 I hey are issued, "'^ and in Tennessee all executions 
 bear teste from the first Monday of the term from 
 which they pui^jort to have been issued, and are made 
 returnable at the first Monday of the succeeding 
 lerm.^"" If the date is stated according to the year of 
 the commonwealth, the year of Christ may be 
 omitted.^**'^ Neither the misdating of a writ,***^ nor 
 the entire omission of a date,^**^ invalidates it. So, the 
 entire clause of attestation may be omitted without 
 rendering the writ void.**** With respect to the sig- 
 nature of the clerk on the w-rit, the authorities are 
 meager and inharmonious. In North Carolina, it was 
 ;issumed that a justice's execution not signed by him 
 is void.*** In Georgia, under a statute authorizing a 
 tax collector to issue a fieri facias upon a demand for 
 taxes, it was held that a writ signed by a tax collector, 
 but omitting liis official title, was not a legal process 
 nor a good execution under the law, on the ground 
 "that every public document which is required by law 
 to be executed by a public officer, must be verified by 
 the official signature of the person Avho made it"; and 
 that the spirit of this law "is answered only when the 
 official character of the person making it is estab- 
 
 105 Williams v. Weaver, 94 N. C. 134. 
 
 106 Uuion Bank v. McCIuns, 9 Humph, 91. 
 lOT Craig v. Jolinson, Hard. 529. 
 
 los Norris v. Sullivan, 47 Conn. 474. where a writ issued .July 29th 
 was dated June 10th. Jones v. Cook, 1 Cow. 309; Williams v. 
 Weaver, 94 N. C. 134. 
 
 109 Usry V. Saulsbury, G2 Ga. 179. 
 
 no People V. Van Hoesen, G2 How. Pr. 7G; Douglass v. Haberstro, 
 8S N. Y. Gil. 
 
 Ill Hugglns V. Ketchum, 4 Dev. & B. 414.
 
 § 45 THE FORM OF THE ORIGINAL EXECUTION. 20G 
 
 lislied, and the document appears upon its face to be 
 an official act, attested by tlie signature of the offi- 
 cer." ^^' Whether, however, this rule is in that state 
 extended to writs issued upon judgments, or is re- 
 stricted to those in tax proceedings, we are unable to 
 state. It is certain, however, that when the writ is 
 not signed, it is not so far void that it cannot become 
 valid as against the defendant by his acquiescence 
 therein, as where, being present at the sale, he makes 
 no objection thereto, nor to the writ, and surrenders 
 possession of the property to the purchaser."^ In 
 Illinois, a writ issued, which the clerk of the cour-t 
 neglected to sign. Under it the sheriff sold real prop- 
 erty and issued a certificate, and, at the expiration of 
 the time for redemption, a deed to the purchaser. 
 Some four years afterward the plaintiff's attorney 
 moved the court to set aside the sale, the motion was 
 allowed, and a new execution was awarded, on which 
 the property was again sold and purchased by the 
 plaintiff. In considering the effect of the first sale, 
 the court referred to the statute of the state providing 
 that "the clerk of the circuit court may issue process 
 in all cases arising therein, which process shall bear 
 teste in the name of, and be signed by, such clerks 
 respectively, and be dated on the days on which they 
 issue, and be made returnable according to law," and, 
 construing such statute, said "that the writ must be 
 signed by the clerk is made indispensable by this en- 
 actment. The signature is as essential under this law 
 as is the seal or other specific requirement, and, in its 
 absence, the writ must be held to confer no power on 
 the officer to whom it was directed. If without power^ 
 
 112 Short V. State, 79 Ga. 550. 
 
 113 Kawles v. Jackson, 104 Ga. 593, 69 Am. St. Rep. 185.
 
 207 THE FORM OF THE ORIGINAL EXECUTION. § 4o 
 
 the sale and other proceedings under it were of no 
 effect and were as though they had never been 
 had." ■^** The conclusion thus announced has been 
 followed in more recent decisions/ ^^ The weight of 
 authority is therefore sli'ihtly in favor of the proposi- 
 tion that the omission from an execution of the signa- 
 ture of the officer authorized to issue it renders it void. 
 If the writ is issued by an offuer having no Seal, there 
 is nothing, in the absence of his signature, to indicate 
 that the paper is authentic or was intended to be given 
 out by him as an execution. Where, however, the writ 
 issues from a court having a seal, and such seal is 
 impressed thereon, the question is more difficult. 
 At an early day in Pennsylvania, a writ of venditioni 
 exponas was issued, but not signed, by a prothonotary. 
 In response to an objection to it upon this ground, the 
 court answered: "This objection is of no validity. The 
 writ issued under the seal of the court, and the not 
 signing by the prothonotary was a clerical omission 
 which the court could have ordered to be supplied at 
 any time." ^^" In Arkansas, a fieri facias was ob- 
 jected to as void because not signed by the clerk, 
 though perfect in every other respect. The court de- 
 clared that an original writ might be held void for an 
 omission of this character, because it was connected 
 with the inception of the suit, and the jurisdiction of 
 the court rested thereon, but tliat. as a writ of execu- 
 tion was issued after the court acquired full jurisdic- 
 tion of the case and the parties, the principles govern- 
 ing original writs were not applicable thereto, and, 
 
 "4 Hernandez v. Drake. SI 111. 34. 
 
 "5 Wooters v. .Joseph, 137 111. 113, 31 Am. St. Rop. .3."."; Donrbom 
 L. Co. V. Chieajro etc. Co., 55 111. App. 38. To the same effect see 
 BrisRon v. Lefebvre. Rap. Jud. Quebec. 12 C. S. 1. 
 
 "« McCormack v. Meason, 1 S. & K. 92.
 
 § 45 THE FORM OF THE ORIGINAL EXECUTION. 208 
 
 finally, that "although a writ without a signature of 
 the clerk, as required by the constitution, is erroneous, 
 yet it is not necessarily void, and the court whence it 
 issued, upon application for that purpose, might either 
 quash or amend it, as the circumstances of the case 
 might require.^^^ In another case in the same state, 
 the sheriff resisted an action against him for failure to 
 return a writ within the time limited by law, on the 
 ground that it was not signed by the clerk of the court 
 in which the judgment was rendered, but bore the sig- 
 nature of the plaintiff in execution. The court held, 
 in overruling this defense, that "the sounder doctrine 
 is, that his omission to sign a writ issued by him, or 
 the affixing by inadvertence the name of another per- 
 son instead of his own, as in this case, is a mere cleri- 
 cal misprision — matter of form and not substance — 
 and that the defect will be treated as amended when- 
 ever it is collaterally assailed." ^^^ In other states, 
 writs not signed by the officer issuing them have been 
 sustained where his name has been written by him in 
 the clause of attestation, or in making an endorsement 
 thereon. A statute of Indiana enacted that all writs 
 should bear teste in the name of the clerk of the proper 
 courts. A writ was issued tested in the handwriting 
 of the clerk of the court, "witness, R. N. W., clerk of 
 Madison circuit court, etc." It was not otherwise 
 signed. The court held that this conformed with the 
 statute and was a sufficient signing and testing; that, 
 as the "teste contained the name and official character 
 of the clerk in his own handwriting, it appears to be 
 sufficiently signed to show that it issued from the 
 proper mint of justice, and that is all that can be re- 
 
 1" Whiting V. Beebe, 12 Ark. 421, 537. 
 "8 Jett V. Shinu, 47 Ark. 373.
 
 209 THE FORM OF THE OPJGINAL EXECUTION. § 45 
 
 quired." ^*" In Kentucky, an execution was issued by 
 a justice of tlie peace in the usual form, except that 
 it was not signed by him, but there was an indorse- 
 ment thereon showing that the execution was issued 
 upon a replevin bond and that no security could be 
 taken, to which endorsement the name of the justice 
 was by him subscribed. The trial court, having held 
 the writ invalid, its action Avas reversed upon appeal 
 on the ground that endorsements made by the officer 
 issuing an execution are a part thereof and that, as the 
 name of the justice immediately followed the endorse- 
 ment, it must, for every essential purpose, be under- 
 stood to be a signing by him and a communicating to 
 the execution the same force and effect that the most 
 formal signing could do.^-" 
 
 In Ohio, an execution signed by and in the name of 
 a deputy clerk, without signing the name of his prin- 
 cipal, is unobjectionable.*^^ Perhaps it is not strictly 
 accurate to assert that the omission by a deputy of 
 the name of his principal is entirely unobjectionable. 
 It is, however, at most, a mere irregularity not invali- 
 dating proceedings taken under the writ.*'^ 
 
 From the general rule, that an error in the dating of 
 an execution, if not entirely immaterial, is, at least, 
 but an amendable defect, it follows thut a writ dated 
 on Sunday is not for that reason invalid.'-" If the 
 writ is dated in a year long anterior to the entry of the 
 judgment as recited therein, it is manifest that this is 
 clearly a misprision of the clerk in issuing the writ,and, 
 
 "oWibriglit v. Wise, 4 Blaekf. 137. 
 
 120 Nichols V. Taylor, Mon. o25. 
 
 121 Chapin v. Allison, l.j Ohio, nOG. 
 
 122 Griswckl v. Connolly. 1 Wootl, 193. 
 
 123 Williams v. Hogeboom, 22 Wend. 408. 
 
 Vol. I.- 14
 
 § 46 THE FORM OF THE ORIGINAL EXECUTION. 210 
 
 such being the case, that the process "is not void, and 
 at most but voidable; that the officer to whom the pro- 
 cess is delivered should execute it, and, failing to do 
 so, must be held responsible." *''* 
 
 In Alabama, the question has been presented 
 whether, in a collateral proceeding, the date appear- 
 ing upon the face of a writ of execution can be shown 
 to be erroneous for the purpose of supporting a levy 
 thereunder, which, if the date named in the writ be 
 accepted as correct, was invalid because made more 
 than sixty days after its issuing. It was held that 
 whether it would have been competent or not on a 
 motion to amend the teste of the writ, if seasonably 
 made and in the proper forum, to have received evi- 
 dence upon the subject and to have made an amend- 
 ment based thereon, yet that in this collateral proceed- 
 ing it was not permissible, by parol evidence or an 
 entry in the docket, "of no greater dignity than a mere 
 memorandum casually made by a justice of the peace," 
 to show that the writ bearing date January 29, 1878, 
 was in fact issued on ^March 29th of the same year.^^ 
 
 § 46. The Seal.— The effect of the failure to affix 
 the seal of the court to an execution is a subject upon 
 which the authorities are too evenly divided to war- 
 rant us in expressing a very decided opinion. The 
 question has been much more frequently determined 
 than discussed by the courts. The conclusions on 
 either side have been announced with a curtness and 
 dogmatism that disdained argument and explanation, 
 and cared neither to deal with logic nor delve for 
 precedents. On the one side, the theory seems to be 
 
 124 Whitfehall Bank v. Tettes, 13 Vt. 395, 37 Am. Dec. 600; TerkanB 
 V. Webb, G7 111. App. 474. 
 
 125 Friedman v. Waldrop, 97 Ala. 434.
 
 211 THE FORM OF THE ORIGINAL EXECUTION. § 46 
 
 that before the seal is affixed there can be no writ; 
 that without the seal there can be no lej^al command 
 to execute the judgment of the court; that an officer, 
 acting; in the absence of the seal, acts in the absence 
 of the writ, and that, so acting, whatever he does is 
 unjustifiable and void.^-" This question was recently 
 re-examined in the supreme court of Kansas. The 
 constitution of that state provides that all courts of 
 record shall have a seal, to be used in the authentica- 
 tion of their process, and, in construing this language, 
 the court, in Dexter v. Cochan, 17 Kan. 447, declared 
 that a summons issued without a seal is void. The 
 majority of the court was of the opinion that the rule 
 thus announced respecting a summons was equally ap- 
 plicable to a writ of execution, and that the constitu- 
 tional provision is mandatory, and a writ issued with- 
 out a seal was not amendable and was hence void.^^'' 
 On the other side, it is assumed that the omission of the 
 seal is the omission of a matter of form rather than 
 of substance; that it can be corrected by amendment, 
 on application to the court, and that, being an amend- 
 able error, it cannot utterly avoid the writ. This view 
 seems to us entitled to favorable consideration, and 
 to be constantly gaining ground. Of all the different 
 parts of the writ, this is most purely a mere matter of 
 form, and its omission the least likely to prejudice 
 either of the parties, or to mislead the officer in exe- 
 cuting the writ. Without it there is certainly enough 
 
 i:« Insurance Co. v. Halloik. IJ Wall. 5oG; Boal v. King, 6 Ohio, 11; 
 Swett V. Patrick, 2 Fairf. 179; Ilutchins v. Edson, 1 N. H. 139; 
 Shackhford v. McRea, 3 Hawks. 220; Seawell v. Bank of Cape 
 Fear, 3 Dev. 279, 22 Am. Doc. 722; Taylor v. Taylor, 83 N. C. 116; 
 Rosoman v. Miller. 84 111. 297: Weaver v. Peasley, 163 111. 251, 54 
 Am. St. Rep. 409; Maun v. Red. 49 III. App. 406; Bouin v. Durand, 
 2 \ja. Ann. 770. 
 
 1-' Cordon v. Bodwell, 59 Kan. 51, 68 Am. St. Rep. 341.
 
 § 47 Tin: FORM OF THE ORIGINAL EXECUTION. 212 
 
 to indicate the judgment to be enforced, and that the 
 command for its enforcement proceeds from competent 
 authority, and a writ indicating this, and in fact issued 
 by the clerk of the court, ought to be treated as valid, 
 at least until objected to by some proceeding to set 
 it aside.^-** AYhen, after the lapse of a long period, 
 a writ is offered in evidence, a very slight and indis- 
 tinct impression will be presumed to have been made 
 by a scal.^'^ 
 
 § 47. A Material Alteration in a writ, made by plain- 
 tiff after its issue, without leave of the court, will, 
 no doubt, make the writ void as against the plaintiff 
 and all others having notice of th(^ unauthorized altera- 
 tion.*^® The alteration of an original into an alias 
 writ is said to make it void; ^^^ but this rule will not 
 be allowed to so operate as to destroy the protection 
 due to a sheriff or constable to whom the writ was 
 delivered for execution.'^- 
 
 In some instances, changes or alterations in writs 
 of execution made by the oflflcers who issued them, or 
 under their direct authority, have been sustained, or, 
 more accurately speaking, it has been held that this 
 irregularity was not sufficient to invalidate the writ. 
 
 128 Kose V. Ingram, 98 Ind. 276; Hunter v. Bnrnsville T. Co., 56 
 Ind. 213; Bridowell v. Mooney, 25 Ark. 524; Taylor v. Courtnay, 15 
 N\'l). 190; Devor v. Akin, 40 Ga. 429; Corwitli v. Bank of Illiuods, 
 18 Wis. 500, SO Am. Dec. 793; Sabin v. Austin, 19 Wis. 421; People 
 V. Dunning, 1 Wend. 16; Doniinick v. Backer, 3 Barb. 17; Arnold v. 
 Nye, 23 Mich. 280; Sawyer v. Baker, 3 Grcenl. 20; Pureell v. McFar- 
 land, 1 Ired. 34, 35 Am. Dec. 7:M; Hall v. Lackmond, 50 Ark. 11.3, 
 7 Am. St. Rep. 84; Mitchell v. Duncan, 7 Fla. 13; Warmouth v. Dry- 
 di'n, 125 Ind. 355; "Wolf v. Cook, 40 Fed. Rep. 432. 
 
 i29Heiglnvay v. Pendleton, 15 Ohio, 755. 
 
 130 Trigg V. Koss, 35 Mo. 105; People v. Lamborn, 1 Scam. 123; 
 White V. Jone.s, 38 III. 159. 
 
 131 Johnston v. Winslow, 2 N. B. 53. 
 
 132 Faris V. State, 3 Ohio St. 159.
 
 'J13 THE FOUM OF THE OKKJINAL EXECUTION. § 47 
 
 TLuf.", in the case of rierce v. Hubbard, 10 Johns. 404, 
 it appeared that a writ of execution iip(jii which one 
 of the parties relied had been altered in its datL- from 
 the 25th of December, ISIO, to the 1st of March, ISll, 
 and that another had been altered from the 11th of 
 December, ISIO, to the 2d of March, 1811. The jus- 
 tice who issued the first execution testified that he 
 mii;ht have authorized the constable to make this 
 change in the date, as he frequently gave constables 
 ])erniission to alter the dates of executions at the 
 request of the plaintiff, as he considered these altera- 
 tions equivalent to renewals. The justice who issued 
 the second execution testified that, though it was made 
 out in December, 1810, it was not delivered to the con- 
 stable until :March, 1811. The court said that it did 
 not appear that anj'thing had been done under the 
 executions Until after the alterations had been made 
 in their dates, ^'and, if the alterations were made by 
 direction of the justice, the process would not there 
 be invalid. Any general authority, however, by jus- 
 tices to constables to fill up or alter process would be 
 void and wholly improper. It is a practice which in 
 no case would be prudent or discreet on the part of 
 the magistrates. Whether the alterations in the pres- 
 ent case were made by the authority of the justices or 
 not were questions of fact for the jury to decide; and 
 Ave do not see sutficient grounds for setting aside their 
 verdict." So, in a case in Arkansas, it was shown that 
 after an execution had been made out directed to a con- 
 stable of a designated township and placed in his hands, 
 be refused to execute it, and thereupon a justice of the 
 peace told the plaintiff to tell the constable to strike 
 out tlie name of the township and insert in lieu thereof 
 the name of another township, and this change being
 
 § 47 THE FORM OF THE ORIGINAL EXECUTION. 214 
 
 thus made, the execution was placed in the hands of a 
 constable of the last-named township, who levied upon 
 and sold certain property thereunder. When these 
 acts were sought to be justified, the trial court ex- 
 cluded the execution from evidence on the ground that 
 this change was not made in the presence of the jus- 
 tice, and that he could not delegate to another the 
 power to make it. The appellate court, however, 
 maintained that, as the change in the execution was 
 made by the direction of the justice and before it went 
 into the hands of the officer who made the levy there- 
 under, though the change was made irregularly, the 
 process was not void on that account.*** An execu- 
 tion was issued in December, 1868, and made returnable 
 on the first Monday in March, 18G9. The officer failed 
 to act thereunder within the time designated, and the 
 clerk who issued the execution, a few days after its 
 return day, erased the word "March" and substituted 
 "April," and in like manner afterward erased "April" 
 and substituted "June." On the last return day a sale 
 was made, and the question was thereafter presented 
 whether such sale could be sustained. The court said 
 that if the writ, when originally issued, could have 
 been made returnable on the first Monday in June, 
 18G0, it appeared on its face to be valid and operative 
 at the time of the sale, and that in a collateral pro- 
 ceeding, the purchaser might rely thereon, that the 
 erasures and interlineations were not of themselves 
 sufficient to vitiate the executions.**'* If an execution 
 shows that certain words have been erased and others 
 inserted in their place, and the evidence fails to dis- 
 close the time at which such erasures and insertions 
 
 "3 Atkinson v. Gatcher, 23 Ark. 101. 
 
 134 Brevard's Exrs. v. .lonos, 50 Ala. 221.
 
 1215 THE FORM OF THE ORIGINAL EXECUTION. § 47 
 
 were mude, the presumptiou against fraud is ap- 
 plicable', and the court will proceed on the assumption 
 that the apparent alteration was innocently made, 
 prior to the issuing of the writ.^*^"* 
 
 § 47 a. Forms of Executions on Decrees. — Writs 
 issued in chancery for the purpose of enforcing its de- 
 crees were in the name of the reigning monarch, if in 
 England, and of the President of the United States, 
 if in this country, and were directed to the person or 
 persons who were therein commanded to do some act, 
 either in the performance of the decree on their part, 
 or looking toward the coercion of others to its per- 
 formance. If the writ wa« an injunction or a writ of 
 execution, it was directed to the defendants. If it was 
 an attachment, it was directed to the sheriff. If it 
 was a writ of sequestration, it was directed to the per- 
 sons who had been chosen as sequestrators. In either 
 case it enjoined the person or persons to whom it was 
 directed to perform and fulfill the matters and things 
 which had been decreed to be done, or else to do cer- 
 tain acts which might produce the satisfaction of the 
 decree, either through seizing, fining, or imprisoning 
 the defendant, or taking possession of his property 
 and appropriating the proceeds or income thereof. At 
 the present time, decrees for the payment of specific 
 sums of money are enforced by writs of fieri facias 
 having the same effect, and we presume substantially 
 in the same form, as writs of like character issued upon 
 judgments at law. If the decree commanded the sale 
 of specific property, as where it foreclosed a mortgage 
 or other lien, or authorized the sale of property over 
 which the court had assumed jurisdiction, and of which 
 it had taken possession by its receiver or other officer, 
 
 "8 First Nat. Bank v. Fraukliu. 20 Knn. 2G4; Preston v. Wright. 
 •00 la. 351.
 
 § 47 THE FORM OF THE ORIGINAL EXECUTION. 216 
 
 we are unable to discover that any other authority 
 was, by the English chancery practice, required to 
 warrant the action of the officer or other person au- 
 thorized to make the sale than such decree itself/^** 
 In California, hoAvevcr, it has been held that the 
 entry of a decree of foreclosure will not alone au- 
 thorize the sheriff to make sale of the property as 
 therein directed; that his action must be based on 
 something equivalent to an execution; and that this 
 something may consist either of a formal order of sale 
 issued by the clerk, or of a copy of the decree certi- 
 lied by him.^'^' llespecting foreclosures in the na- 
 tional courts, equity rule 92 provides that "in suits 
 in equity for the foreclosure of mortgages in the 
 circuit courts of the United States, or in any court of 
 the territories having jurisdiction o| the same, a decree 
 may be rendered for any balance that may be found 
 due the complainant over and above the proceeds of 
 the sale or sales, and execution may issue for the col- 
 lection of the same, as is provicled in the eighth rule 
 of this court, regulating the equity practice, where the 
 decree is solely for the payment of money." A prac- 
 tice very simihir to that prescribed by this rule pre- 
 vails in Alabama, when a decree is entered to enforce 
 a vendor s lien, and execution should not be directed 
 to issue for the whole amount of the debt. The court 
 should ascertain the balance remaining due after a 
 sale of the land, and not until then should execution 
 be ordered for such balance.^^* 
 
 136 Ante, § 37 n. phnwins that Avhile orders of sale usually issue, 
 they are not indispfMisablo, and hence that errors therein do not 
 affect the rights of purchasers. 
 
 137 iieyman v. Bahcock, 30 Cal. 3GT. See, also, FnrMiors' & M. 
 Bank v. Luther, 14 Wis. OG; Rhonemus v. Corwin, 9 Ohio St. 366. 
 
 138 Baker v. Young, 90 Ala. 42G.
 
 217 THE FORM OF THE ORIGINAL EXECL'TluN. § 47 
 
 The following is the form of liori facias given iu Bingham on 
 Judgments anil Executions: 
 
 George the Third, e(c. 
 
 To the Sheriff of Greeting: We command you. that of the 
 
 goods and chattels of C D, in your bailiwick, you cause to be made 
 £ Which A B, lately in our court before us at Westminster, 
 
 recovered against him for his damages which he had sustained, as 
 well on occasion of the not performing certain promises and un- 
 dertakings, then lately made by the said C D to the said A B, as 
 for his costs and charges by him about his suit in that behalf 
 expended; whereof the said C D is convicted, as api)ears to us of 
 record; and have that money before us, at Westminster, on 
 next after to render to said A B for his damages aforesaid; 
 
 and have there then this writ. Witness Edward, Eord Ellenbor- 
 ough, at Westminster, the day of In the year of our 
 
 reign. 
 
 If the judgment were in favor of two or more plaintiffs, and 
 against two or more defendants, and one of the plaintiffs and one 
 of the defi-ndants had died since its rendition, then the forego- 
 ing form, after the direction to the sheriff, might read as- follows: 
 "We command you, that of the goods and chattels of G H and J 
 K, in your bailiwick, you cause to be made £ , which A B, C D, 
 and E F in the lifetime of E F, now deceased, and whom the said 
 A B and C D have survived, lately in our court before us at West- 
 minster, recovered against them, the said G II and J K, and one 
 L M, in his lifetime, now deceased, and whom the said G H and 
 J K have survived, for their damages which they had sustained, 
 as well in occasion of the not performing certain promises and 
 undertakings, then lately made by the said G H, J K, and L M, to 
 the said A B, C D, and E F, as for their costs and charges by them 
 about this suit in that behalf expended, whereby said G H, J K, 
 and L M are convicted" (proceeding from this point in the same 
 manner as in the first form). 
 
 If a sole plaintiff had died, a fieri facias in favor of his executor 
 or administrator read as shown in the first form down to and in- 
 cluding the clause, "appears to us of record," after which was in- 
 serted the following: "And whereupon it is considered in our said 
 court before us that E F, executor of the last will and testament 
 of said A B, deceased (or administrator of all and singular the 
 goods, chattels, and credits, which were of said A B, deceased, 
 at the time of his death, who died intestate), have execution 
 against the said C D for the damages aforesaid, according to the 
 force, form, and effect of said recovery by the default of said 
 D, as also appears to us of record." 
 
 If a sole defendant had died, the form after the words "C D" 
 was varied so as to read, "deceased, at the time of his death, in
 
 ji 47 THE FOU-M OF IRE ORIGINAL EXECUTION. 218 
 
 the bauds of E F, executor," etc. (or administrator, etc.), to be 
 administered, in jour bailiwicli, you cause to l>e made £ wliich 
 A 1>, lately in our court, etc., etc. And whereupon it is considered 
 in our said court, before us at Westminster aforesaid, that the 
 said A B have his execution against the said E F, as executor (or 
 administrator), as aforesaid, of the damages aforesaid, of the goods 
 and chattels which were of the said C D at the time of his death, 
 in the hands of said E F, as executor (or administrator), as afore- 
 said, to be administered according to the form and effect of said 
 recovery; and have that money, etc. (as in the first form). 
 
 lu California, where an execution may be directed against the 
 lands as weU as the chattels of the defendant, it may be iu the 
 following form (see Code Civ. Troc. of Cal., sec. (JS2): 
 
 The People of the State of California. 
 
 To the Sheriff of the County of Greeting: Whereas, on the 
 
 day of 18—, A B, plaintiff, recovered judgment in the 
 
 superior court of the county of iu said state, agaiust C D, de- 
 
 fendant, for $ and $ costs of suit, and the judgment-roll 
 
 is on file iu said county; and whereas the sum of $ is now 
 
 actually due on such judgment — 
 
 Now, therefore, you are required to satisfy said judgment, with 
 interest, out of the personal property of the said C D, or if suffi- 
 cient personal property of said C D cannot be found, then out of 
 the real property to him belonging, on the day when said judgment 
 was docketed, or at any time thereafter, and make return of this 
 writ within days after your receipt thereof. 
 
 Witness my hand and the seal of said court this day of 
 
 A. D. 18—. 
 
 [Seal of Court.] E F, Clerk of said Court, 
 
 By C D, Deputy. 
 
 The next two forms are those in use in the circuit and district 
 courts of the United States for the district of California. 
 
 United States of America. 
 
 The President of the United States of America, to the Marshal 
 of the District of California, Greeting: You are hereby commanded 
 that of the goods and chattels of in your district, you cause 
 
 to be made the sum of dollars to satisfy a lately ren- 
 
 dered in the circuit court of the United States, for the district of 
 California, against for the damages which had sustained 
 
 as well by reason of as for the costs and charges in and about 
 
 that suit expended, whereof the said convicted as appears of 
 
 record. And if sufficient goods and chattels of the said can- 
 
 not l)e found within your district, that then you cause the amount 
 of tlie said to be made of the real estate, lands, and tenements 
 
 whereof the said seised on the said day of A. D.
 
 219 THE FORM OF THE ORIGINAL EXECUTION. § 47 
 
 188 — , or at any lime afterward, iu whose hands soever the same 
 may be, and have you that money, together with this writ, with 
 your doings thereon, before the judges of said circuit court, at the 
 courlliouse thereof, in the city and county of !Sau Francisco, district 
 of Giilifornia, on the day of A. D. 1S8— , to satisfy the 
 
 so rendered as aforesaid. 
 
 Witness, the Honorable Murrison R. Waite, chief justice of the 
 supreme court of the United States of America, this d:iy of 
 
 iu the year of our Lord one tliousand ciglit hundred and 
 and of our Independence, the 
 
 Attest my hand and the seal of said circuit court, the day and 
 year last above written. Clerli, 
 
 By Deputy Clerk. 
 
 District of California, ss. 
 
 The President of the United States of America, to the Marshal 
 of the District of California, Greeting: Whereas, a was tiled 
 
 in the district court of the United States for the district of Cali- 
 fornia, on the day of , in the year of our Lord one thou- 
 sand eight hundred and by , and such proceedings were 
 thereupon had, that by the Judgment and decree of said court in 
 the said cause entered on the day of 18—, tlie said 
 reiiuired to pay to the said the sum of besides 
 <.'osis in this suit to be taxed, and execution was ordered therefor; 
 and whereas, the said costs have been duly taxed at the sum of 
 as by the records and files of said court fully api)ear — 
 
 Now, therefore, we command you, that of the goods and chat- 
 tels of the said in your district, and in default of goods and 
 chattels of then of the lands and tenements in your district 
 of which seised, on the day you shall receive this writ, or at 
 any time afterward, you cause to be made the sum of and 
 further, that you have those moneys in said court, at the court- 
 house in the city of San Francisco, on or before the day of 
 A, D. 18—, to render to the said in satisfaction of said 
 judgment and decree; and that you duly return to the said court 
 what you shall do in the premises, together with this writ. 
 
 Witness, the honorable Ogden Hoffman, judge of the said court, 
 Jit the city of San Francisco, In the district of California, this 
 <lay of in the year of our Lord one thousand eight hundred 
 
 and eighty- and of our Independence, the one hundred 
 
 Clerk, 
 Writ of Execution in Chancery. 
 
 <3eorge the Third, by the Grace of God, of Gvvat Britain. France 
 and Ireland King. Defender of the Faith, and so forth, to A 
 B and C D, Greeting: 
 Whereafl, by certain final judgment or decree, lately made before 
 
 US iu our court of chancery, in a certain cause there depending.
 
 ■ § 47 THE FORM OF THE ORIGINAL EXECUTION. 220 
 
 wherein E F is complainant, and you, the said A B and C D, are 
 defendants: It is ordered and decreed that ^here insert the things 
 ordered to be done in the decree), as by said decree duly enrolled, 
 and remaining as of record, in our said court of chancery, doth and 
 may appear, 
 
 Therefore, we strictly enjoin and command you, the said A B 
 and C D, that you do severally pay, perform, fulfill, and execute 
 all and every the moneys, matters, and things specified in the paid 
 finally judgment or decree, in all things so far as the same any way 
 relates to or concci'ns you respectively, according to the true mean- 
 ing and import of the said decree, and of these presents, and hereof 
 fail not, at your peril. Witness ourselves at Westminster, the 
 da> of and in the year of our reign. 
 
 Writ of Attachment in Chancery. 
 
 George the Third, etc. ' 
 
 To the Sheriff of Greeting: We command you to attach A B 
 
 so as to have him before us in our court of chancery, wheresoever 
 the said court shall then be, there to answer to us, as well touch- 
 ing a contempt which he, as is alleged, hath committed against us, 
 as also such other matters as shall then be laid to. his cliarge; and 
 further, to abide such order as our said court shall make in his 
 behalf; and hereof fail not, and bring this writ with you. 
 
 Witness ourselves at Westminster, tlie day of in the 
 
 year of our reign. 
 
 Distringas Against a Corporation. 
 
 George the Third, etc. 
 
 To the Sheriff of the County of , Greeting: We command 
 
 you that you make a distress upon the lands and tenements, goods 
 and chattels, of (here name the corporation), within your bailiwick, 
 so as neither the said nor any other person or persons for 
 
 them, may lay his or their hands thereon until our court of chan- 
 cery sliall make other order the contrary; and in the meantime you 
 are to answer to us for the said goods and chattels, rents and prof- 
 its of the said lands, so that the said may be compelled to 
 appear before us in our said coui*t of chancery, wheresoever it then 
 shall be, there to answer to us as well touching a contempt which 
 they, it is alleged, have committed against us, as also such other 
 matters as shall be then and there laid to their charge; and fur- 
 ther to perform and abide such order as our said court shall make 
 in this behalf; and herein fail not, and bring this writ with you. 
 
 Witness, etc., etc.
 
 2_'l THE FORM OF THE ORIGINAL EXECUTION. § 47 
 
 Writ of Sequestration. 
 
 George the Third, etc. 
 
 To A B, C D, E F, etc.: Wliorcas, etc. (here the occasion of the 
 issuing of the writ was recited, showing the suit and the act wlilch 
 defendant liad failed to perform, etc.) 
 
 Know yo, therefore, that we, in consideration of your prudence 
 and fidelity, have given, and by these presents do give to you, any 
 three or two of you, full powur and authority to enter upon all 
 ihe messuages, lands, tenements, and real estate whatsoever, 6t the 
 said I J, and to take, collect, receive, and se«iuester into your hands, 
 not only the rents and profit.s of the said messuages, lands, tene- 
 ments, and real estate, but also all his goods, chattels, and personal 
 estate whatsoever; and therefore, we command you, any three or 
 two of you, that you do, at certain proper and convenient days and 
 hours, go to and enter upon all the messuages, lands, tenements, 
 and real estate of the said I J; and that you do collect, take, and 
 get into your hands, not only all the rents and profits of all his real 
 estate, but also all his goods, chattels, and personal estate, and keep 
 ilie same under sequestration, in your hands, until the said I J 
 shall fully answer'the complainant's bill and clear his contempts, 
 and our said court make other orders to the contrary. 
 
 Witness ourselves at Westminster, the day of , in the 
 
 year of our reign.
 
 § 4S ISSUING ALIAS AND PLURIES VVRIXa 222: 
 
 CHAPTEK IV. 
 
 ISSUIl^G ATJAS AND PLUEIES WEITS. 
 
 § 48. Classification of cases in which may Issue. 
 § 49. The former writ ought to be returned. 
 § 50. When there is an outstanding levy. 
 § 51. May issue after year and a day without scire facias. 
 § 52. When may issue without return of former writ. 
 § 54. Issued, when judgmeut was satisfied fraudulently or by mis- 
 take. 
 § 54. After snle under void writ, or where defendant had no title. 
 § 55. Form of, and consequence of errors in. 
 § 56. Notice to obtain. 
 § 56a. Renewals instead of alias writs. 
 
 § 48. Classification of Cases in Which an Alias Writ 
 may Issue. — The plaintiff is not limited to his original 
 or first writ of execution, but may call to his aid such 
 further writs as may be necessary to enable ^ him to 
 obtain a full satisfaction of his demand.^ It is not 
 necessary that the plaintiff should be able to point to 
 any specific statutory provision giving him a right to 
 an additional writ. It is sufficient that the judgment 
 in his favor remains wholly or partly unsatisfied and 
 that the time within which execution may issue 
 thereon has not terminated. The right to such fur- 
 ther writs as may be necessary to the enforcement of 
 his judgment may be regarded as a common-law right. 
 At all events, it must be conceded to exist, unless ex- 
 pressly taken away by statute. It is not taken away 
 
 1 Steele v. Thompson. 62 Ala. 323; Pennington's Exr. v. Yell, 11 
 Ark. 212, ."2 Am. Dec. 262; Ilayward v. Pimerital, 107 Cal. 386; 
 Woods V. Bryezinski, .57 Conn. 471; Clark v. Reinigor, m Iowa. 507; 
 Chesebro v. Bariiie, 163 Mass. 79; Yetzer v. Young, 3 S. D. 263.
 
 223 ISSUING ALIAS AND PLURIES WRITS. § 49 
 
 by a statute giving some furtlier remedy, unless such 
 remedy appears to be exclusive rather than concur- 
 rent.^ The second writ is usually called an alias, and 
 writs issued subsequently to the alias are plune« 
 writs.^ An alias or f)luries may usually be issued as 
 of course, without leave oi" the court, but there are cir- 
 cumstances in which it is first necessary to obtain such 
 leave. An alias or pluries writ is proper — 1. When 
 the preceding writ has been returned unsatisfied in 
 whole or in part; 2. When the preceding writ has not 
 been returned, and a sufficient reason exists for the 
 issuing of another writ without requiring a return of 
 the former; 3. Where a former writ has been returned 
 satisfied, when no satisfaction has in fact been made. 
 In the first case the writ may issue as of course; but 
 in the last two cases there is usually a necessity for 
 obtaining an order of court. 
 
 § 49. Necessary that Former Writ shall be Returned. 
 It is obvious that to allow plaintiff successive writs of 
 execution to the same county, without requiring him 
 to give any account of his proceedings under former 
 writs, would be likely to lead to great confusion and 
 abuse in the execution of process. As between differ- 
 ent kinds of writs, it is clear that plaintiff may at the 
 common law sue out one kind without returning an- 
 other. Ilence a plaintiff having taken a fieri facias 
 may issue a ca. sa., even where an attempted levy has 
 been made under the former, but abandoned because 
 the property had been previously seized under other 
 process, or was from any other cause no longer liable to 
 
 2 Walter v. Greenwood. 29 Minn. 87; Yetzer v. Young. 3 S. D. 263. 
 
 3 Hamilton v. Lyman, 9 Mass. 14; Swift v. Flanagan, 12 IIow. Pr. 
 438.
 
 § 49 ISSUING ALIAS AND PLURIES W KITS. 224 
 
 seizure.^ But if the levy be consummated, there must 
 be a return of the fieri facias before the ca. sa. can is- 
 sue, although the levy was abandoned or proved unpro- 
 ductive.*"' In some of the United States the plaintiff is 
 by statute allowed at his own cost to take out a sec- 
 ond execution without returning the first." But where 
 no statute has interposed to chauy;e the rule of the 
 common law, it is clear, in this country as well as in 
 England, that no execution can regularly issue if 
 any attempt has been made to execute a former writ 
 to which no return has been made.'^ The rule proba- 
 bly goes further when the second writ is of the same 
 nature as the first, and prohibits the issuing without 
 leave of the court of any alias or pluries execution 
 while the former writ is unreturned, no matter whether 
 a levy has been made or not; ^ and to support this pro- 
 
 4Dicas V. Warne, 3 Moore & S. 814; 10 Bing. 341; Steele v. Mur- 
 ray, 1 Blackf. 179; Edmond v. Ross, 9 Price, 5; Chesebro v, Barme, 
 163 Mass. 79. 
 
 5 Hudson V. Dangerfield, 2 La. GO, liO Am. Dec. 297; Miller v. Par- 
 uell, C. Taunt. 370; 2 Marsh. 78; Dennis v. Wells, Cro. Eliz. 344; 
 Lawes v. Codrington, 1 Dowl. P. C. 30; Turner v. W^alker, 2 GUI & 
 J. 377, 22 Am. Dec. 329; Wilson v. Kingston, 2 Chit. 203; Scott v. 
 Hill, 2 Murpb. 143; Arnold v. Fuller, 1 Ohio, 458; Purdon v. Purdon, 
 
 2 Miles, 173. 
 
 6 Webb V. Bumpass, 9 Port. 201, 33 Am. Doc. 310; Fryer v. Dennis, 
 
 3 Ala. 2.j4; Ilopldn.s v. Laud, 4 Ala. 427; Windrum v. I'arker, 2 
 I^eigh, 3G1. 
 
 7 Allen V. Jolinsou, 4 J. J. Marsh. 235; Gist v. Wilson, 2 Watts, 
 r.O; Cumpston v. Field, 3 W^end. 382; Marshall v. Moore, 30 111. 321 
 Babcock v. McCamant 53 111. 215; Dorland v. Dorland, 5 Cow. 417 
 Ledyard v. Buckle, 5 Hill, 571; Corning v. Burdick, 4 McLean, 133 
 McMurrich v. Tlioinpson, 1 U. C. P. R. 258; Cairns v. Smith, 8 .Johns. 
 337: Chapman v. Pvowlby. 8 Mees. & W. 248; 1 Dowl., N. S., 83; Cop- 
 liondale v. Debo'iiaire. Barnes, 213; but see Green v. Elgie, 3 Barn. 
 Sz. AdoL 437; Fninklin v. Ilodgkinson, 3 Dowl. & L. 5.54; 10 .Tur. 249; 
 15 L. T. Q. B. 1.32; Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598. 
 
 ^ Waters x. Oaton, 1 Har. & McH. 407; Corning v. Burdick, 4 
 McLean, 183; Oviat v. Vyner, Salk. 318; Cutler v. Colver, 3 Cow. 30. 
 But in McXair v. Ragland, 2 Dev. Eq. 42, 22 Am. Dee. 728. it is
 
 225 ISSUING ALIAS AND PLUUIKS W KITS. § -JJ 
 
 hibition it has been maintained that, after the issuing; 
 of execution, a presumption arises and continues till 
 rebutted by the ollicer's return that the juil;^inent has 
 been satisfied by levy on sufficient j^oods." An alias 
 may properly issue after the return of the original 
 writ, thou<ih such return was made before the rc.'turn 
 day.^" To hold otherwise would be to rt <iuire an officer 
 having an execution in his hands to always keep it in 
 his possession until the return day named therein. 
 This, we believe, is nowhere required, unless it be in 
 Pennsylvania, where it has been held that to have an 
 original and an alias, both returnable at the same 
 term, is irregular.*^ In the other states the fact that a 
 writ has been returned before the return day thereof 
 does not impose upon the plaintiff the duty of waiting 
 until that day before he can take out a second or alias 
 writ.*^ The right to an execution continues, notwith- 
 standing the loss or destruction of the record.*^ Hence 
 such loss or destruction constitutes no valid objection 
 to the issuing of an alias writ.** The issuing of a sec- 
 ond writ before the return of the first is a mere ir- 
 regularity. The writ is not void,**' It has been said 
 
 said that a plaintiff may sue out as many writs of oxecuiion as he 
 pleases. Alias writs of execution may issue in Minnesota, notwith- 
 standinj; the statute of that stale providius for the renewal of exe- 
 cutions. Walter v. Greenwood, 2t) Minn. ST: People v. Brayton, 37 
 m. App. ;il9; Mcnitt v. (irover, 57 loWa, 593; 01 Iowa, 99. 
 » Bisliop V. Spruance. 4 Ilarr. (Del.) 114. 
 
 10 Pennington v. Yell, 11 Arlc. 212, ."2 Am. Dec. 262. 
 
 11 Shaffer v. Watkins, 7 "W. & S. 219. 
 
 12 Iyovef;rove v. Brown, GO Me. 592; Chesebro v. Barme. 16.1 Mass. 
 79: Pliillips v. Evans. 04 Mo. 17: Rammel v. Watson, 31 N. J. L. 281, 
 Islay V. Stewart, 4 D. & B. L. 100. 
 
 13 Faust V. Echols, 4 Cold. 397. 
 
 14 Childress v. Marks. 2 Baxt. 12. 
 
 isAtwood V. Bearss. 45 .Mich. 409: Mace v. Dutton. 2 Ind. 309. 52 
 Am. Dec. 510; State v. Page, 1 Spears, 408, 40 Am. Dec. OUS. ' 
 Vol. I.— 15
 
 § 49 ISSUING ALIAS AND PLURIES WRITS. 22G 
 
 that if it were necessary to do so, in order to sustain 
 proceedings taken under an alias writ, the court would 
 direct that a return be entered ui^ou the first writ, 
 nunc pro tunc, as of a day antedating the issuing of 
 the alias.^^ If the plaintiff purchases thereunder, the 
 sale may be vacated, unless the defendant has in some 
 mode waived the irregularity.^'' Such waiver is im- 
 ])lied when, having notice of the existence of both 
 writs, he permits a sale of realty to be made under the 
 second writ, allows the time for redemption to expire, 
 and surrenders possession before attempting to urge 
 the objection that there were two writs in existence 
 at the same time.^** In Georgia it seems that an alias 
 cannot ordinarily issue, and that even when the origi- 
 nal writ has been lost or destroyed the proper mode of 
 proceeding is to establish a copy of sucli original. If, 
 however, an alias is in such case impropeily awarded, 
 the proceedings thereunder are treated as valid. ^'"^ 
 The code of this state now provides that, if an execu- 
 tion issued from a superior court is lost or destroyed, 
 the judge may, upon proper application made and facts 
 proved by affidavit, grant an order for the issuing of 
 an alias in place of the lost original, and that, as to 
 executions issued from justices' courts, the justice, 
 when an original is lost or destroyed, may issue an 
 alias, and, when the clerk of any court has made a mis- 
 take in issuing an execution, either he or his successor 
 in office may correct such mistake by amending the 
 
 10 Miller v. Ilanlcy, 94 Mich. 27j3; Rainmel v. Wafson, 31 N. J. L. 
 281. 
 
 " Merritt v. Grover, 57 Iowa, 493. 
 
 i« Merritt v. Grover, 61 Iowa. 99. Section .''.9.'>." of Ihe code of that 
 state declares that "but one execution shall be iu existence ut the 
 same time." 
 
 19 Rushin v. Shields, 11 Ga. G3G, 5G Am. Dec. 43U; Kcl!o-g v. Buck- 
 ler, 17 Ga. IS".
 
 227 ISSUING ALIAS AND PUJUIKS WRITS. § 50 
 
 execution or by issuing an alias, to be signed and dated 
 by Lim at the time it is issued.-" Where the statute 
 has provided for certain proceedings to renew execu- 
 tions, a defendant who, being duly notilied of such pro- 
 ceeding, fails to make the objection that there is a prior 
 w'rit whieli has never been returned is precluded from 
 urging such objection thereafter.'^ 
 
 § 50. When There is an Outstanding Levy.— When a 
 wnt has been issued and procee<rnigs have been 
 taken thereunder for its satisfaction, there is a 
 manifest propriety in requiring tliem to be pursued 
 to such a point that it can be known whetlier, and 
 to what extent, they Avill be productive before per- 
 mitting the defendant to be harassed by other writs, 
 and this, whether the original execution has been re- 
 turned or not. By the statutes usually prevailing in 
 the United States a writ may be levied upon real prop- 
 erty as well as upon personal estate. If it is levied 
 upon personal i)roperty of sufficient value to ])ay the 
 judgment, a presumed satisfaction thereof arises, and 
 the plaintiff has no right to take out any other writ un- 
 til this presunii)tion of satisfaction is in some manner 
 rebutted. With respect to real estate, however, the 
 rule prevailing in a majority of the states is, that no 
 presumption of satisfaction arises from the levy of a 
 writ thereon, irrespective of the value of the property 
 subject thereto. In the case of personal property it 
 cannot be known, until a sale thereof lias taken i)lace, 
 whether it will satisfy the writ or not. I'^or the pur- 
 pose of issuing a further writ, the presumption ap- 
 pears to prevail that the judgment must be regarded 
 
 encode Or., etl. 1S95, sees. 5115, 4752, 4755; Lowry v. Kicbards. 
 C2 Ga. 370. 
 
 :i Bull V. Kowo, 13 S. C. 355.
 
 § 50 ISSUING ALIAS AND PLUlllES WRITS. 228 
 
 as satisfied, or, at least, as suspended, where personal 
 property' has been levied upon and remains subject 
 thereto. If the writ has been returned, a venditioni 
 exponas may issue requiring the officer, notwithstand- 
 ing the return, to sell the property which has been 
 levied upon under the original writ and to apply its 
 proceeds to the satisfaction of the plaintiff's judg- 
 ment.^^ It is, however, irregular to issue any further 
 writ of execution.^^ Where, however, the levy is upon 
 real estate, the weight of authority is to the effect that 
 such levy does not constitute any satisfaction of the 
 judgment, however valuable may be the property sub- 
 ject thereto.-'^ It is hence claimed that such levy con- 
 stitutes no obstacle to the subsequent issuing of an 
 alias writ.^^ We are inclined to think, however, that 
 whether a levy upon real property can be regarded as 
 producing a suspension of the presumed satisfaction of 
 the judgment or not, still it ought to be disposed of be- 
 fore further writs are issued.^** After a levy is made 
 the plaintiff has no right to wantonly abandon it; and 
 if he does so, and procures the issuing of an alias writ, 
 or if, under any circumstances, an alias issues while a 
 levy under a prior writ remains undisposed of, such 
 
 22 Babcock v. McCamant, 53 111. 214; Freeman v. Brown, 7 T. B. 
 Mon. 262. 
 
 23 Marshall v. Moore, 36 III. 321; Friyer y. INIcNaughton, 110 Mich. 
 22; Hastings F. N. B. v. Rogers, 13 Minn. 407, 97 Am. Dec. 239; 
 Missimer v. Ebersole. 87 I'a. St. 109; Cornelius v. Burford, 28 Tex. 
 202, 91 Am. Dec. 309. 
 
 24 Davidson v. Caston, IG Minn. 2.''>0; Poale v. Bolton, 24 Miss. 630; 
 Sliepard v. Rowe, 34 AVend. 2(M); Cundilf v. Toague, 46 Tex. 475. 
 
 25 Wood V. Conrad, 2 S. D. 40.5. 
 
 26 Anderson v. Fowler, 8 Ark. ;5SS: Macy v. Hollingsworth, 7 
 Blackf. 349; McWilliams v. Myers, 10 Iowa, 325; Downard v. Cren- 
 shaw, 49 Iowa, 296; Grant v. Boyd, Sneed. 348; Hopkins v. Cham- 
 bers, 7 Mon. 257; Arnold v. Fuller, 1 Ohio. 458.
 
 229 ISSUING ALIAS AND PLUKIES WRITS. § 60 
 
 alias may be quashod."'' If, however, a levy Las been 
 abandoned willi the consent or acquiescence of the de- 
 fendant, or, thoii<;li not so abandoned, it has, without 
 the fault of the plaintiff, proved unproductive, and the 
 judgment therefore remains unsatisfied in whole or in 
 part, the ri^^ht to an alias writ exists.^'* So, if it ap- 
 pears that the writ was irregularly issued, or that pro- 
 <*eedings have been irregularly taken under it, the 
 plaintiff has the right to abandon them because of this 
 irregularity, especially if complaint is made thereof by 
 the defendant, and hence the plaintiff niay cause the 
 original writ to be returned and an alias writ to be 
 thereupon issued, or the irregular levy to be abandoned 
 and a new and regular levy to be thereupon made.''** 
 After property has been levied upon, it may be lost 
 through the negligence or misconduct of the officer, as 
 by his permitting it to reniTiin in the possession of the 
 defendant, who loses it through some negligence on his 
 I)art or by his willful misappropriation thereof. In 
 such a case, the plaintiff' undoubtedly has a remedy 
 by action against the officer. This remedy, however, is 
 cumulative, and he may disregard it and pursue his 
 remedy by taking out an alias writ.^** This rule is 
 generally applicable to all concurrent remedies exist- 
 ing in favor of the plaintiff. Thus he may be entitled 
 
 27 Trapnall v. Richardson, 13 Ark. 543, .'^S Am. Dec. 33S; Mclver 
 V. Ballard, i)G Ind. 7U; McWilliams v. Myers, 10 Iowa, 325. 
 
 2» Howaril v. Bennett, 72 111. 297: Lustfield v. Ball, 103 Mich. 17; 
 Clark V. Reiniger, 60 Iowa. 507; Walker v. McDowell, 4 S. & M. US, 
 43 Am. Dec. 47G; I'arlccr v. Dean, 45 Miss. 408: Col man v. Mansfield, 
 1 Miles, 5G; Telford v. Cox. 15 Lea, 298: Bank of Tennessee v. 
 Turney, 7 Humph. 271; Murphy v. Partee, 7 Baxt. 373; Cornelius v. 
 Burford, 28 Tex. 202, 91 Am. Dec. 309. 
 
 2« McKecUy v. Webster, 170 Pa. St. G24; Bole v. Bogardis, 86 Pa. 
 St. 37; (Jrceu v. Burke. 23 Wend. 490. 
 
 »• Cooloy V. Ilarper, 4 Ind. 454.
 
 § 50 ISSUING ALIAS AND PLURIES WIUTS. 230 
 
 to prosecute, and may be in the actual lu'osecution of, 
 supplemental proceedings. These proceedings do not 
 constitute any bar to the issuing of an alias execution, 
 nor does the issuing of such execution suspend or oth- 
 erwise affect such supplemental proceedings.^*- Before 
 a concurrent remedy by way of recovery- of the value of 
 property levied upon can impair the right to issue an 
 alias writ, it must appear that such remedy has sup- 
 planted or taken the place of the judgment. Thus the 
 decisions are not in harmony respecting the result of 
 the forfeiture of a forthcoming or delivery bond condi- 
 tioned that the obligors therein will produce the prop- 
 erty levied upon when required for the satisfaction of 
 the judgment. In some of the states such forfeiture 
 results in a statutory judgment upon which the obligee 
 may issue an execution, and it has hence been claimed 
 that the original judgment is merged in, or satisfied 
 by, this statutory judgment, and hence that no further 
 execution can issue on the former, and, if issued, is 
 void.^^ Where, on the other hand, the effect attrib- 
 uted to tlie forfeiture of a forthcoming or delivery bond 
 is not equivalent to a satisfaction of the judgment, an 
 alias writ may issue notwithstanding the plaintiff has 
 a concurrent and adequate remedy by an action 
 against the sureties upon the bond.^^ Of course, if it 
 appears from the return of a writ of execution, or oth- 
 erwise, that all property levied upon thereunder has 
 been disposed of, and that the proceeds thereof do not 
 
 31 Farqueharson v. Kimball, 18 How. Pr. 33; Lilliendabl v. Feller, 
 man, 11 How. Pr. 528; Vogelalm v. Smith, 95 N. C. 254. , 
 
 32 Douglas V. Tnombly, 25 Ark. 124; Joyce v. Farquhar. 1 A. K. 
 Marsh. 2G; Witherspoon v. Spring, 3 How. (Miss.) GO, 32 Am. Dec. 
 310; Carroll v. Fields, (J Ycrg. 305. 
 
 33 iiopkinc; V. Land. 4 Ahi. 427; Patton v. Ilanimcr, ;!:'> .\la. 307; 
 Tronary v. Cheever, 48 III. 28; Cole v. Itulx'iLsou, G Tex. :j.">G, 55 Am, 
 Dec. 784.
 
 231 ISSU]N(; ALIAS AND rJX'KIES WIUTS. § 50 
 
 satisfy llie judgment, an alias writ may issue for the 
 balance,*'*'^ 
 
 The issuing of an alias instead of a venditioni ex- 
 ponas is an irregularity rather than a nullify; and long 
 delay on the part of the defendant will estop him from 
 urging such irregularity."'^ lu truth, as v/c shall here- 
 after show, an officer levying an execution upon ikt- 
 sonal property is authorized to prorced to the sale 
 thereof, though after the return of the writ; and when 
 .1 venditioni exponas issues commanding such sale, it 
 does not confer additional authority upon the officer, 
 but merely requires him to exercise his authority al- 
 ready existing. Such being the case, the issuing of an 
 alias Avrit and a sale thereunder of property already 
 levied upon cannot prejudice the defendant, and must 
 be regarded as valid, because it would have been so 
 had no alias whatsoever issued."*** There may be cir- 
 cumstances, however, in which the inference is justified 
 that the levy under the original writ was abandoned 
 and a new levy made under the alias writ, in which 
 event a salethereunder must depend uponthe last levy. 
 ITence, where the return under an alias writ showed a 
 levy upon the property therein described, but made no 
 reference to any prior levy having been made there- 
 on, and in Ihe last levy was included some property 
 not seized under the former writ, it was held that these 
 facts disclosed an abandonment under the first levy, 
 and that the validity of the second levy must be de- 
 termined as if no prior levy had been made.^'' As be- 
 
 3* I.loyd V. AVyckoff, 11 N. J. L. 21S; Coming v. Burdick 4 Mc- 
 Lean, 133. 
 
 3B Kerr v. Cominissionors, S Biss. 27G. 
 
 36 Dryer v. Graham, 58 Ala. G23: Stein v. Chambliss, IS Iowa. 474; 
 rotfs Appeal, 20 Pa. St. 253; Beebc v. United States, IGl U. S. 104. 
 
 3T Missinier v. Ebersok-, S7 Pa. St. 109.
 
 § 51 ISSUING ALIAS AND PLURIES WRITS. 232 
 
 tween the j)arties to the writ, however, the issuance of 
 nil alias is no more than prima facie evidence of the 
 waiver of the levy, which may be rebutted by other 
 evidence showing no intention to make such waiver.^** 
 The courts of other states maintain, on the other hand, 
 that after the levy of the original writ there is no au- 
 thority to issue an alias where it appears that the 
 property levied upon has not been disposed of, and 
 hence that the second writ and the proceedings there- 
 under, especially when they include property not 
 levied upon under the original writ, are void.^* 
 
 § 51. May Issue after Year and a Day without Scire 
 Facias. — The provisions of the common law, that exe- 
 cution may issue within a year and a day after judg- 
 ment, and provisions of a like nature in the statutes of 
 the various states of these United States, have no ap- 
 plication to alias and plurles writs. In some of the 
 states the time within w^hich these writs may be sued 
 out is limited by statute. But in tlie absence of statu- 
 tory regulation to the contrary, if an original execu- 
 tion is issued within the time prescribed by law, and 
 is thereafter returned unsatisfied, it is no longer nec- 
 essary as between the original parties to revive the 
 judgment by scire facias. An alias writ may issue at 
 any time subsequent to such return, and while the 
 judgment remains in force.'*^ It has even been held 
 
 3s llarlan v. Harlan, 1-1 Lea, 107, 139. 
 
 ■'•sFriyer v. McNaughtou, 110 Mich. 22; Sullon v. Mayre, 81 Va. 
 329. 
 
 40 Jordan v. Petty, 5 Fla. 320; Dowsnian v. Totter, 1 Mo. 518; 
 Piorce v. Crane, 4 How. Pr. 257; McSmith v. Van Deusen, 9 How. Pr. 
 245; Lindell v. Benton, 6 Mo. 3G1; demons v. Brown, 9 Mo. 718; 
 Flanagan v. Tinen, 53 Barb. 587; Mitchell v. Che.stnut, 31 Md. 521; 
 Tliorp V. Fowler. 5 Cow. 446; Craig v. .Tolinson, Hardin, 529; Lamp- 
 sett V. Whitney, 2 Scam. 441; Payne v. Payne's Ex'rs, 8 B. Mon. 391:
 
 233 ISSUING ALIAS AND rLUUIE.S WKITS. § 5J 
 
 that this rule could be invoked when the orij^inal writ, 
 though isi-nied by the clerk, was never in the sheritl's 
 liands."*^ The souiulness of this decision )ii;i\" well be 
 doubted. The reason of the law requiring plaint ill to 
 revive his judgment by seire facias after a year and a 
 day has i)assed without the issuing of a writ was, that 
 it seems ini[)robable that plaintiff would remain so 
 long inactive unless the judgment had been paid, lie 
 is, therefore, not allowed to proceed without giving de- 
 fendant notice. The failure to take a writ from the 
 clerk's otlice shows a degree of inaction scarcely less 
 than that shown where the writ is not called for at 
 all.*" If it appears that property was sold under an 
 alias writ issued more than a year and a day after the 
 entry of the judgment, it will be presumed, in the ab- 
 sence of evidence to the contrary, that an original writ 
 had issued within a year and a day, or, in other words, 
 that the alias writ was supported by other valid writs 
 preceding it. It will be assumed that if the alias had 
 irregularly issued, the defendant would have taken 
 some proceeding to question or vacate it."*^ 
 
 § 52. When may Issue Vv^ithout Return of Former Writ. 
 The issuing of an alias writ is no doubt always within 
 the power of the court, while the judgment continues 
 
 Jewett V. Hoogland, 30 Ala. 716; Bank of Mississippi v. Catlett, 5 
 How. (Miss.) 17."); Abbey v. Com. Bank of Now Orleans. 31 Miss. 
 434. So alias writs may issue after the dealli of (k'fend.int. witli- 
 out prosecuting any proceedings by scire facias, wliere the orii:inal 
 had issued and been levied in liis lifetime: CollinjrsworTli v. Horn, 
 4 Stew. & P. 237, 24 Am. Dec. 753; Clark v. Kirksey, 54 Ala. 210. 
 
 <i Nicholson v. Tlowsley, I.itt. Sel. Cas. .301. 
 
 <2 Kclley V. Vincent, 8 Ohio St. 415, deciding that "suing out exe- 
 <-ution" requires actual or constructive delivery of the writ to the 
 jjheriff. 
 
 ♦3 Sellers v. Hayes. 17 Ala. 749: Pollard v. Cocke, 19 Ala. ISS; 
 Beebe v. United States, IGl U. S. 104.
 
 § 53 ISSUING ALIAS AND PLUllIES WRITS. 2;u 
 
 in force. This power will be exercised, under the dis- 
 cretion of the court, in a great variety of cast?s. It may 
 often happen that the execution has not been returned, 
 and through some accident cannot be. In all suck 
 cases the court may, no doubt, on a proper showing, al- 
 low an alias or pluries to issue, without requiring the 
 return of the former writ.'" 
 
 § 53. On Judgment Satisfied by Fraud or Mistake— A 
 mistake may occur in issuing a writ by which the 
 amount directed to be collected may be less than that 
 to which plaintiff is entitled under his judgment. In 
 such an event, the plaintiff is not without remedy. The 
 court will not harass the defendant witli the troubh' 
 and expense of two writs without imposing on plaintiir 
 such terms as maj be requisite to indemnify the former 
 from all loss arising from the negligence or mistake of 
 the latter. But if, after notice of the mistake, the de- 
 fendant persists in his refusal to pay the balance due, a 
 new writ will be ordered.*^ But where an execution 
 issued for the proper sum, and by the plaintiff's direc- 
 tions a levy was made for a smaller amount, it was held 
 that no further writ should issue. ''An execution,'^ 
 said the court, '*is an entire thing. If a plaintiff in a 
 judgment issues an execution, and directs an amount 
 less than the whole sum to which he is entitled to be 
 levied, he cannot subsequently issue another execution 
 for the balance. It cannot be permitted that a defend- 
 ant should be harassed by repeated executions." ** 
 
 ** In Georgia, whore an original execution was returned, and 
 then lost, it was held that the alias ought not to have issued with- 
 out an order of court. Watsvon v. ITalsted. (la. 2~~>. 
 
 -•'TTunt V. Passmore, 2 Dowl. P. C. 414; Langdou v. Lnngdon, 1 
 Root. 4.54; People v. .Judges of Chatauqne, 1 Wind. 73. See, also, 
 Moore v. Edwards, 1 Bail. 23; Sims v. Campl)ell, 1 McCord's Ch. 53, 
 10 Am. Dec. 595. 
 
 46 People V. Onondaga C. P., 3 Wend. 331.
 
 235 ISSUING ALIAS AND PLUKIES WKITS. § 5$ 
 
 If an cxetution has been issued fur a sum less lliaii 
 that remaining due on the judgment, ov, tliough issued 
 for the full sum, the officer has been dirccU-d to levy 
 or collect a less sum, there is no longer a right to an 
 alias writ upon mere application to the clei-k of the 
 court. The court may, however, direct an alias to is- 
 sue. It will refuse the demand for an alias if it ap- 
 pears that the action of the plaintiff or his attorney has 
 been induced by a desire to harass the defendant witii 
 numerous writs, and perhaps in some cases where such 
 desire is not clearl^^manifested.but no excuse is never- 
 theless shown for the irregular course ]»ursued. Thus. 
 where the writ failed to specify that interest was to be 
 collected upon the judgment, the plaintiff was re- 
 garded as choosing not to assert the right given to him 
 to collect interest, and it was held that he could not be 
 permitted to trouble the defendant by a second execu- 
 tion.*'' In a case in Wisconsin it appeared that the 
 attorney for the plaintiff endorsed on the writ that 
 the sheriff was to levy and collect the judgment, less 
 one thousand dollars and interest, which it was then 
 supposed would be a part of a judgment of foreclosure. 
 It was subsequently ascertained that this endorsement 
 was made through misapprehension, and an alias writ 
 issued for the amount remaining due on the original 
 judgment. A motion to set aside this writ was denie<l 
 by the trial court, and its action was afllirmed on ap- 
 peal, though the o])inion proceeded partly upon the 
 ground that it would have been necessary for an alias 
 writ to have issued whether this mistake on the part 
 of the plaintiff's attorney had occurred or not.'*^ If a 
 motion is made to vacate an entry of satisfaction, be- 
 
 *- Todd V. Botcliford, SG N. Y. 517. 
 
 *8 Bank of Sheboygan T. Trilling, 73 Wis. 1G3.
 
 ^ 54 ISSUING ALIAS AND PLURIES WRITS. 236 
 
 cause made by an attorney without authority, the su- 
 preme court will not review the action of the subordi- 
 nate court, if there was a conflict of evidence.*'* If an 
 execution creditor by mistake gives a receipt or enters 
 a satisfaction of judgment, he may, upon motion, be 
 relieved therefrom and obtain an order authorizing the 
 issuing of another writ."** 
 
 § 54. After Sale under Void Writ, or where Defendant 
 had No Title. — An execution may be returned satisfied, 
 and yet it may turn out that no actual satisfaction has 
 taken place. This may happen — 1. When the writ or 
 the levy is void, and therefore does not transfer the ti- 
 tle to the property seized and sold under it; 2. When 
 the entry of satisfaction was made, either wrongfully 
 or by mistake; and 3. When the property sold was pur- 
 chased by the plaintifl", but did not belong to the de- 
 fendant, and plaintiff has therefore been compelled to 
 account for it to the true owner. In the first class of 
 cases, the void writ is, in legal effect, no writ; and 
 w^hen the defendant has not lost, nor the plaintiff ac- 
 quired, anything by the writ, it is not to be disputed 
 that a new writ may and ought to issue.-'^ In cases of 
 the second class, the proi^riety of ordering a second 
 writ is also indisputable. "Every court has control 
 over its process, and of entries upon its records; and 
 whenever process is irregularly issued, or the entry of 
 
 48 Fuller V. Baker, 48 Cal. 632. 
 
 60 McNeal v. Huut, 6 Kan. App. 070. 
 
 61 Hughes V. Streeter, 24 111. 647, 76 Am. Dec. 777; Flold v. Tauld- 
 ing, 3 Abb. Pr. 139; cltiug Suydam v. Holden, decided l)y N. Y. court 
 of appeals in October. 1853, and not reported; FrecMiinn on Judg- 
 ments, sec. 478, citing Stoyel v. Cady, 4 Day, 22,"; Arnold v. Fuller, 
 1 Ohio, 466; Townsend v. Smith. 20 Tex. 465, 70 Am. Dec. 400; Tate 
 V. Anderson, 9 Mass. 92; Gooch v. Atkins. 14 :\rass. 379; Ladd v. 
 Blunt, 4 Mass. 402; Watson v, Keissig, 24 111. 281, 76 xim. Dec. 746.
 
 237 ISSUING ALIAS AND I'LUUIES WRITS. § 54 
 
 the s.atisf action of a juclj^ment is improperly made, the 
 court has power to iiKjiiire into the subject, and to 
 cause the former t(^ be set aside and the latter to be 
 vacated. It is believed to be the uniform practice to 
 do so on motion. This, it is true, is a summary mode of 
 procedure, and imijortant rights and interests and dif- 
 ficult questions may be involved which are summarily 
 tried by the court without the intervention of a jury; 
 but these objections have not been regarded as sufii- 
 cient to prevent courts from exercising their jurisdic- 
 tion in this manner." °" In Kentucky, an agent of the 
 plaintiff, through mistake, indorsed a credit on an exe- 
 cution. Some time afterw^ard, the plaintiff sued out 
 another writ, disregarding this indorsement. A mo- 
 tion having been made to quash this last writ, the 
 court of appeals said: "We do not understand that a 
 reeeipt indorsed upon execution, by an agent, so neces- 
 sarily precludes the plaintiff from taking out another 
 execution as that he will have to cause the receipt to 
 be erased by oi'der of the court before he can legally 
 obtain another. It no doubt will be much the most 
 prudent for clerks to refuse a new execution, under 
 such circumstances, without an order of court. But 
 if a second execution does go, and it turns out that 
 plaintifl' was entitled to it, we do not think the issuing 
 of it should be treated as irregular, and subject the 
 proceedings under it to be quashed.'' '^'^ But, no doubt, 
 the better opinion is, that when a judgment appears 
 to be satisfied of record, this satisfaction ought to be 
 
 62 ^Vilson V. Stilhvell, 14 Ohio St. 4G7; see also Ijaii^'hlin v. Fair- 
 banks. 8 Mo. 3G7. In both these cases, satisfaction had been ac- 
 knowledged by persons who were not entitled to the fruits of the 
 iudgments. McMithael v. Branch Bank, 14 Ala. 490; Aycock v. Har- 
 rison, G.'? N. C. 145; Anderson v. Nicholas. 4 Robt. G30. 
 
 •3 Frankfort Bank v. Markley. 1 Dana, 373.
 
 § 54 ISSUING ALIAS AND PLURIES WRITS 238 
 
 vacated before anything further is done under the 
 judgment.'*'* Where property is levied on, but returned 
 unsold for want of title, the supposed satisfaction pre- 
 sumed to arise from the levy is shown to have been no 
 satisfaction whatever. Therefore another writ may is- 
 sue.^° The statute 22 Henry VIII., c. 5, gave a remedy 
 to the creditor to whom the debtor's land had been de- 
 livered, under an elegit, when the tenant by elegit was 
 thereafter evicted without any fault on his part. 
 
 It has been held in New York that this statute be- 
 came a part of the common law of that state, because 
 it was a part of the general law of England when the 
 colony was settled under the charter of the Duke of 
 York; and further, that when the elegit was abolished 
 in that state, the equitable principles of the statute of 
 Henry VIII. remained in force, and were so far appli- 
 cable to sales under execution as to entitle plaintiff to 
 equitable relief on the failure of title to property pur- 
 chased by him under execution against defendant.®** 
 The provisions of the statute of Henry VIII were reen- 
 acted in the territory comprising the present states of 
 Massachusetts, Maine, and New Hampshire. In those 
 states, it is clear that, when plaintiff wholly loses the 
 lands taken by him under an extent or sold under 
 execution on account of the invalidity of defendant's 
 title, or of the proceedings under the writ, he may, by 
 scire facias, obtain a new execution for the whole 
 debt;®'' and when it turns oat that defendant had a 
 
 s* Poor V. Denver, 1 Ired. 391; Hughes v. Streeter, 24 111. (>47, 76 
 Am. Dec. 777; Snead v. Rhodes, 2 Dev. & B. 386; Rikeman v. Kohn, 
 48 Ga. 183. 
 
 B5 reddle v. HolUnshead, 9 Serg. & R. 277; Coleman v. Mansfield, 
 1 Miles. 56. 
 
 56 Bank of Utlca v. Mersereau, 3 Barb. Ch. 586, 49 Am. Dec. 180. 
 
 r.7 Perry v. Perry, 2 Gray, 326; Dewing v. Durant, 10 Gray, 29; 
 r..iikor V. Wi'Ddell, 12 N. H. 119; Green v. Bailey, 3 N. H. 33; Pills-
 
 239 ISSUING ALIAS AND i'l.U'KIES WRITS. § 54 
 
 less estate thau lliat extended, tlu- plaintiff may ob- 
 tain execution to compensate iiim for the difference be- 
 tween tlie value of the estate extended and the estaL«* 
 obtained.'""'' I>ut it must in all cases be clear that the 
 ]>laintiir has lost the benelit of his purchase."® But 
 there frr-quently ari.se cases to Avhich no statute like 
 I hat of ileniy Xlll. can be applied, either because no 
 such statute is in force in the state, or because the 
 I)roperty sold is not of the kind conteiH])lated by the 
 statute. "In such a case, if the plaintill be the pur- 
 chaser, a satisfaction is produced without any result- 
 ing benefit to the plaintiff, or any detriment to the de- 
 fendant. The question then arises. Is this satisfaction 
 irrevocable, or may the plaintiff have it vacated, and 
 ju'ocure a new execution? Upon this question, the au- 
 thorities are quite evenly divided, and are clearly ir 
 reconcilable. On the one hand, it is insisted that, as 
 1he maxim caveat emptor applies to all pui'chasers at 
 sheriff's sales, the purchaser takes all risks; and there- 
 fore, that he cannot have the sale, and the satisfaction 
 thereby produced, vacated on account of the failure of 
 defendant's title. On the contrary, it is claimed tliat 
 "the doctrine of caveat emptor has its leoitimate effect 
 in precludiuijj any idea of warranty by the defendant in 
 
 t)ury V. Smyth. 2.j Mo. 427; Dennis v. Arnold, 12 Met. -H9; Stewart 
 V. Allen, 5 Me. 103; Ware v. Tike. 12 Me. 303. See It. S. of Me. 
 1SS3, p. 713, set'. 143; Grosvenor v. Chesley. 48 Me. 3G9; Soule v. Buck, 
 :>.'> Me. 30; Gen. Stat, of Mass. ISOO. p. 519. sec. 22; Kendiick v. 
 Wentworth. 14 Mass. 57; Wilson v. Green, 10 Pick. 433. whore the 
 rule was applied to personal property; Dennis v. Saylos. 11 Mot. 2.33; 
 Rev. Laws of Vt.. 3.S80, sec. 1593; Pratt v. .Tones. 2.". Vt. 303; 
 Baxter r. Sliaw. 28 Vt. 5G0; Royce v. Stroujj;. 11 Vt. 248: Bell v. 
 Roberts. 13 Vt. 582; Hyde v. Taylor, 19 Vt 599; Briggs v. Green, 
 3.3 Vt. 505. 
 
 58 Coos Bank v. Brooks. 2 N. H. 148; Soule v. Buck, 55 Me. 30; 
 United States v. Poole. 5 Fod. Rop. 412. 
 
 63Batcheldor v. Wason, 8 N. H. 121.
 
 ^ 54 I8SU1NG ALIAS AND PLURIES WRITS. 240 
 
 execution, or by the sheriff'; and therefore, that it in- 
 terposes no obstacle to prevent the plaintiff from ob- 
 taining that relief to which, upon principles of natural 
 justice, he seems entitled."**** In South Carolina, a 
 motion was made to set aside an entry of satisfaction 
 and to permit the issuing of another writ, on the 
 ground that the goods from the sale of which the ap- 
 parent satisfaction had resulted were not the property 
 of the defendant, and their value had been recovered 
 by their owner in actions of trespass against the plain- 
 tiff and the sheriff. The motion was denied because in 
 such a case "the plaintiff levies and sells at his own 
 risk and with notice that the sales will be applied in 
 satisfaction of his execution, though he may be made 
 responsible for damages, if he has tortiously sold the 
 }>r(>perty of another person as the property of the de- 
 fendant." **^ In North Carolina, the statute provides 
 til at a purchaser at execution sale who has been de- 
 prived of the property purchased or been compelled 
 to pay damags to the real owner, in consequence of a 
 defect in the defendant's title, may recover from the 
 defendant in an- action on the case the amount paid for 
 such property, with interest. The remedy given by 
 this statute has been held to be exclusive, and the sale, 
 to the amount realized from it, an irrevocable satis- 
 faction of the judgment.**- In Ohio and Pennsylvania, 
 
 «o Freeman on Juclgnieuts, sec. 478. In Piper v. Elwood, 4 Denio, 
 IC"), plaintiff was allowed to recover in an action on a judgment 
 which had been satisfied, on proving that the satisfaction was pro- 
 duced by a sale of property which defendant had recovered because 
 it was exempt from execution. In Tennessee, the revival of judg- 
 ment where it was satisfied by sale of property not belonging to 
 dpfeiidant is provided for by statute. Edde v. Cowan, 1 Sneed, 290; 
 Swaggcrty v. Smith. 1 Ileisk. A0?>. 
 
 61 .Tones v. Burr, 5 Strob. 147. .53 Am. Poc G99. 
 
 82 Haleombe v. Loudermilk, 3 Jones, 491; ^Vall v. Fairloy, 77 N. C. 
 105.
 
 241 ISSUING ALIAS AND PLUKIES WRITS. § 54 
 
 no relief' can be had at law where the property sold is 
 lost to plaiiitill" because of defects in the defendant's 
 title/'" In the first-named state, manifestly, a doubt 
 has arisen with respect to the propriety of th<* early 
 decisions on the subject, and the rule maintained in 
 such decisions has been limited rather than extended. 
 Thus where a mortj;agee who recovered judgment at 
 law on some of the notes, secured by his mortgage, and 
 sold real property, the title to which he failed to ob- 
 tain on account of a prior conveyance made by the 
 mortgagor, of which he was ignorant, commenced sub- 
 sequently a suit to foreclose the equity of redemption, 
 it was held that the amount bid at the execution sale 
 did not in equity constitute a satisfaction, and could 
 not be asserted by the mortgagor as such.^ The court, 
 however, declined to consider the question whether, on 
 a bill filed by the plaintiff to vacate the apparent sat- 
 isfaction, it would act or not, and restricted itself to 
 determining that it would not, at the instance of the 
 mortgagor, extend him any aid. In Minnesota, it is 
 clear that relief may be obtained in equity by a plain- 
 tiff when the title to lands purchased by him on exe- 
 cution fails without his being guilty of any neglect in 
 making his purchase, as where he relied upon an ab- 
 stract of title, which omitted a previous conveyance 
 made by defendant.""* Like relief was extended in the 
 same state where the plaintiff bid upon certain lots un- 
 der the belief that they were the same lots levied upon 
 under an attachment issued in the case, when in fact 
 the sheriff had, through a mistake on his part, levied 
 
 «3Vattier v. Lytle's Ex'r, G Ohio, 482; Freeman v. Caldwell, 10 
 Watts, 10. 
 
 •♦ Hollister v. Dillon, 4 Ohio St. 198. 
 w First Nat. Bank v. Rogers, 22 Minn. 224. 
 Vol. I.— 16
 
 § 54 ISSUING ALIAS AND PLURIES WRITS. 242 
 
 upon other lots wbicU Avere subject to liens paramount 
 to plaintiff's judgment,'*^' also when it appears that an 
 execution was apparently satisfied by the sale of per- 
 sonal property, but that it proved to be subject to a 
 iiiort£?age, and the mortgagee recovered the full value 
 thereof from the execution creditor.^' 
 
 If the plaintiff obtains some title to the property 
 l.urchased, but less than he supposed to be subject to 
 sale when making his bid, he is not, we believe, enti- 
 tled to relief, whether he proceeds by motion, or by a 
 suit in e(iuity. This was so decided where the purchaser 
 believed that he would acquire the fee, and after the 
 sale discovered that the defendant's estate was for life 
 only. The court said: ''He is not entitled to such relief 
 if he obtains any 'beneficial interest' by his purchase, 
 and the courts cannot measure the benefit or value of 
 the interest acquired if it is substantial." ^"^^ 
 
 Generally, where the relief is allowed at all, it can be 
 procured without resort to equity, as by permitting the 
 sheriff to correct his return so as to show that no satis- 
 faction was realized, or by ordering the apparent satis- 
 faction vacated on motion or by scire facias and direct- 
 ing an alias writ to issue,^^ and in some states relief 
 can be had either by motion in the original case, or by 
 a suit in equity to revive and reinstate the judgment.*"* 
 
 68 Lay V. Shanl'hut, 6 Minu. 182, 80 Am. Dec. 44G; Shaubhut v. 
 Hilton, 7 Miuu. 50G. 
 
 67 Osltorne v. Wilson, 37 Minn. 8. 
 
 67a Gonco v. McCoy, 101 Tenn. 587, 593, 70 Am. St. Rop. 714. 
 
 esMagwire v. Marks, 28 Mo. 103, 75 Am. Dec. 121; Whiting v. 
 Bradley, 2 N. H. 79; Adams v. Parmeter, 5 Cow. 280; Richardson v. 
 McDougall, 19 Wend. 80; Townsend v. Smith. 20 Tex. 465. 70 Am. 
 Dec. 400; Andrews v. Richardson. 21 Tex. 287; Ritter v. Henshaw, 
 7 Iowa, 98; Tndor v. Taylor. 2»> Vt. 144; Cowlos v. Bacon, 21 Conn. 
 4.51, 5C Am. Dec. 371; CliaiiiluM-s v. Cochran, 18 Iowa, 159. 
 
 69 Cross V. Zane, 47 Cal. 002; Schorr v. Himmelman, 53 Cal. 312.
 
 ^43 ISSUING ALIAS AND I'LUHIES WRITS. § 55 
 
 The statute in Iowa i)iovides that an execution sale 
 may be sot aside "where the judgment on which execu- 
 tion issued was not a lien" on the property sold. If, 
 however, the jud.unient was a lien on the property, the 
 l)laintin" i>nreliasin^ is without redress, though the 
 I)roperty is ultimately lost to liim by reason of para- 
 mount liens. '^" Section seven hnndred and ei;^ht of the 
 Code of Civil Procedure of California provides that if 
 the purchaser of property at sheriff's sale, or his suc- 
 cessor, fail to recover possession in consequence of any 
 irregularity in the proceedings concerning the sale, or 
 because the property sold was not subject to execution 
 and sale, the court having jurisdiction thereof must, 
 after notice and on motion of such party in interest or 
 his attorney, revive the original judgment in the name 
 of the petitioner for the amount paid by such pur- 
 chaser at the sale. This statute has by the courts of 
 that state been held to be remedial in its character, 
 and therefore to be liberally construed, and hence that, 
 when the property sold does not belong to the defend- 
 ant in execution, it must be held not to be subject to 
 execution and sale within the intent of the statute, 
 and, therefore, if the purchaser loses possession of the 
 property after its purchase, because it was not the 
 property of the defendant in execution, he is entitled 
 to the remedies afforded by this act.'^^ 
 
 § 55. Form of Alias. — An alias writ should contain 
 all the paitieulars embraced in an original writ; and 
 in addition, should show the issue of the former writ, 
 the amount realized thereon, and the sum remaining 
 
 70 Holtzinger v. Edwards. 51 Iowa, 383. 
 
 71 Hitchcock V. Caruthers, 100 Cal. 100.
 
 § 55 ISSUING ALIAS AND PLURIES WRITS. 244 
 
 due, and for wliich the officer is to levy."- As the alias 
 cannot properly issue before the return of the original, 
 it ought not to be tested before such return. In Eng- 
 land an original writ of fieri facias was tested in term 
 time and made returnable at some other term, and 
 "in all continued writs the alias or testatum must be 
 issued the day the former was returnable." By this 
 practice there was a continuity in time between the 
 original and the alias writs, or, in other words, there 
 was no intervening period between them.'''^ It should 
 appear on the face of the writ that it is an alias or plu- 
 ries, and not an original. Hence, the command in the 
 body of the alias was: "You are commanded as you 
 have been before," and in a pluries: "You are com- 
 manded as you have been often before." "^^ 
 
 Mere errors in issuing an alias or pluries writ, 
 whether in regard to its form or to the time and man- 
 ner of its issue, while they may make it voidable, do 
 not render it void.'^^ These errors may, however, con- 
 stitute grounds for vacating the writ. Thus in Ver- 
 mont, where a judgment had been satisfied in part, but 
 an alias execution issued thereon, as if no partial sat- 
 isfaction existed, the writ and the levy thereof made 
 
 T2 Chapman v. Bowlby, 8 Mees. ^ W. 249; Lee v. Neilson, 3 U. C. 
 Law J. 72; Oviat v. Vyner, 1 Salk. 318: Smith v. Jones, 2 All. N. B. 
 176; Watson v. Halsted, 9 Ga. 275; Bingham on Judgments and 
 Executions, 2G0; Scott v. Allen, 1 Tex. 508; Maupin v. Emmons, 47 
 Mo. 304; Fairbanks v. Devereaux, 48 Vt. 550. 
 
 73 Touchin's Case, 2 Salk. 699; Union Bank v. McCIung, 9 Humpb. 
 91. 
 
 74 Kellogg V. Buckler, 17 Ga. 187; Scott v. Allen, 1 Tex. 508. 
 
 75 Rammel v. Watson. 2 Vroom, 281; Rushin v. Shields, 11 Ga. 636, 
 56 Am. Dec. 436; State v. Tago, 1 Spears, 408, 40 Am. Dec. 608; 
 Bryant v. Johnson, 24 INIe. 307; Mace y. Dutton, 2 Ind. 309, 52 Am. 
 Dec. 510; McMichael v. Knapp. 7 Cow. 413; Graves v. Hall, 13 Tex. 
 379; Schroeder v. Young, 161 U. S. 334.
 
 245 ISSUING ALIAS AND i'LUUIES WRITS. § 56 
 
 upon real property were set asideJ^ A second execu- 
 tion will not be quashed on tli<.' sole ground that it does 
 not purport to be an alias."' Manifestly the rules re- 
 specting variances and other defects in the form of 
 original are equally applicable to alias and pluries 
 writs. If, by the decisions in the state, the omission of 
 the words of command is fatal to an original, it must 
 be equally fatal to an alias writ.'^ 
 
 § 56. Notice of Motion for. — Where the original exe- 
 cution has been returned unsatisfied, wholly or in part, 
 an alias may issue without any notice to the defend- 
 ant.'^^ * In other words, where the propriety of issuing 
 a second writ is apparent from an inspection of the 
 record in a cause, there is no necessity of judicial ac- 
 tion. The clerk of the court, in the discharge of his 
 ministerial duties, should issue the writ on application. 
 If at some stage of the proceedings there has been a 
 conditional satisfaction, as where the defendant has 
 been seized in execution, and it appears he has been re- 
 leased on taking the poor debtor's oath, or personal 
 property has been levied upon sufficient to satisfy the 
 execution, but the writ or the levy has been vacated,''" 
 so that from the whole record there can be no question 
 but the judgment remains unsatisfied, the clerk is au- 
 thorized to issue an alias writ without being directed 
 to do so by any order of the court.^** In Massachusetts, 
 it seems to be the usual practice, before issuing an alias 
 on a judgment for alimony, to give defendant notice, 
 that he may have an opportunity of showing that pay- 
 
 T8 Fairbanks v. Devereaux, 48 Vt. 550. 
 
 T7 Bushons V. Taylor. S2 Mo. tJTl. 
 
 T8 MaupLn v. Emmons, 47 Mo. 304. 
 
 Tsa .Johmson v. Huutiufftou. IV, Conn. 50. 
 
 " Westbrook v. Hays. 89 Ga. 101. 
 
 80 McMauaman's Petition. IG II. I. 338.
 
 § 56 ISSUING ALIAS AND TLURIES WRITS. 24G 
 
 ment has been made;**^ but the court may, in its dis- 
 cretion, issue an alias without such notice.^" When 
 the application for an alias is made without returning 
 the original, as where the latter is alleged to be lost, 
 notice should be given to the defendant.^^ It also 
 should be given in all cases where it does not clearly 
 appear from an inspection of the record that the plain- 
 tiff is entitled to further execution. Thus, where the 
 first writ M'as issued or levied for a sum less than that 
 due, and such lesser sum w^as collected thereunder, the 
 plaintiff has no absolute right to further execution. 
 Leave to issue another writ may be granted in the dis- 
 cretion of the court, but until that discretion has been 
 exercised and an order made directing another writ, 
 the clerk has no authority to issue it.^ So if the judg- 
 ment appears to be satisfied, but it is claimed that such 
 satisfaction was entered by mistake, or that it resulted 
 from a sale of property to the plaintiff, the title to 
 which did not pass by the sale, or that for any other 
 reason he has not received satisfaction of his judg- 
 ment, he may move the court to vacate the record or 
 entry of satisfaction and for leave to take other writs 
 of execution, but unless such leave has been granted, 
 the clerk has no power to issue an alias or pluries 
 writ.®^ 
 
 Without, so far as we ran discover, any auflScient 
 reason therefor, the courts of Florida have held that a 
 
 81 Newcomb v. Newcomb, 12 Gray, 28. 
 
 82 Chase v. Chase, 105 Mass. 385. 
 
 83 Douw V. Burt. 1 Wend. 89. In Georgia, notice of motion to l»- 
 sue an alias wlien the original has been lost is not necessary. 
 Lowry v. Richards, ♦52 Ga. .370. 
 
 84 Todd V. Botchford, 80 N. Y. 517; Sheboygan Bank v. Trilling. 
 75 Wis. 1G3. 
 
 f>5 Williams v. Cable. 7 Conn. 119; Zeigler v. McCormick, 13 Neb. 
 25; Tudor v. Taylor, 26 Vt. 444.
 
 -47 LSSUINU ALIAS AND i'LUltlliS WUiT.S. § 06a 
 
 citTk lias lU) aulliorUy to issue au alias (.'Xccutiuii upon 
 a decree in cliaiu-ci y. A rule of c-ourt in iliaL state pro- 
 vided that linal process lo cxci utc any (1c<i-(M' may, if 
 it be solely fur the payincut of inouey, be by a writ of 
 execution in the form used in suits at conuiion law. It 
 was held that this ruh> gave no power to the clerk, 
 except to issue au orii^lual writ, and that power hav- 
 ing been exhausted by its issuance, any further writ 
 issued by him, except iu obidience to au order of court, 
 was void.*^ "" 
 
 If there is in fact a right to execution, or rather to 
 an order of court directing au alias to issue, but it is- 
 sues without such order, it has been held not to be 
 void. If it is a writ purporting to authorize the arrest 
 and imprisonment of the debtor, it is a sufficient justi- 
 fication to the officer who takes him in execution, and 
 his "remedy is not by habeas corpus, but by some 
 proper proceeding in the court from which the execu- 
 tion issued, to recall it or set it aside.'' ^'' ^ 
 
 § 56 a- Renewals instead of Alias Writs.— In some in- 
 stances, without statutory authority therefor, clerks 
 and other officers authorized to issue alias writs of 
 execution have, instead of doing so, sought to accom- 
 plish substantially the same object by some indorse- 
 ment upon, or alteration in, a pre-existing writ, as by 
 changing its date or by writing thereon some state- 
 ment or indorsenu'ut intended to show tliat it was to 
 continue in force. In the absence of any statute ex- 
 pressly authoriziug it, any act of this character is un- 
 doubtedly irregular;***' it is not, however, necessarily 
 
 85a White v. Slaloy. 21 Fla. 390. 
 sibMoMannmau, Petitioner. 10 K. T. 36l. 
 
 S6 Calhouu County v. Burcli. 27 111. 446; Mills v. Lombard, 32 Minn. 
 2D9; Love v. Gates. 2 Ired. 14.
 
 § 56a • ISSUING ALIAS AND PLUKIES WRITS. 248 
 
 void. Where the attempted renewal is by striking out 
 the date irregularlY written in the writ, and inserting a 
 later one, as the result of such a change it would not 
 necessarily appear from the face of the writ that it had 
 been previously issued or was otherwise irregular, and 
 therefore it would necessarily i)rotect an ofhcer in exe- 
 cuting its commands and a stranger in purchasing 
 property levied upon and sold thereunder.**'' In North 
 Carolina, however, a writ attempted to be renewed by 
 altering its date has been adjudged absolutely void.**'' * 
 In Connecticut, on the other hand, this mode of renew- 
 ing writs is not improper. The practice in that state of 
 renewing executions by changing their dates is said to 
 have been sanctioned by immemorial usage.^® 
 
 In many of the states statutes have been enacted 
 specially authorizing the renewal of writs. Where 
 such statutes are in force it would seem that the issu- 
 ing of an alias writ can rarely or never be necessary in 
 cases falling within the statute, and that, in lieu of is- 
 suing these writs, the plaintiff may i^rocure such re- 
 newals of the original writ as may seem necessary. In 
 Iowa, an execution, if not satisfied when returned, may 
 be renewed from time to time by an indorsement there- 
 on to that effect, signed by the justice and dated as of 
 the date of such renewal. The indorsement must state 
 the amount paid thereon, and continues the execution 
 in force for thirty days from the date of the renewal.**^ 
 Statutes of very similar import exist in some of the 
 
 87 Mills V. Lombard, 32 Minn. 259; Faris v. State, 3 Oh. St. 159; 
 Sawyer v. Doane, 19 Vt. 598. 
 
 87a Love v. Gates, 2 Ired. 14. 
 
 88 Roberts v. Church, 17 Conn. 142. 
 
 89 Code of Iowa, ed. 1897, sees. 4542, 4543. ''
 
 1>49 LSSUIX!; ALIAS AND PLUllIES WRITS. § 56a 
 
 other stales,"" and, where they exist, it is sullicieut 
 that the proueediiigs takeu or the iiKhjrseiueiits made 
 for the i»urpose of renewing the writ be in substautial 
 conforiuily with the statute, and they will be held to 
 be of such coiiforniity from any memorandum or en- 
 dorsement from whieh it appears that the writ is to be 
 coiitiuued in force."* The direction requiring the sign- 
 inn' of tlic endorsement is generally regarded as manda- 
 tory, and, therefore, if it be not signed, the writ has 
 not been renewed."^ In South Carolina, a proceeding 
 is prescribed which purports to authorize the renewal 
 of writs of execution. It requires a summons to be 
 served upon the judgment debtor, his heirs, executors 
 or administrators, requiring them to show cause, if any 
 he or they may have, why the writ should not be re- 
 newed. The written consent of the judgment debtor 
 dispenses, however, with the necessity of serving sum- 
 mons upon him.'*^ This proceeding is, rather, one for 
 the revival of the judgment than for the renewal of an 
 execution, and after the judgment is thus revived, it 
 appears that a new execution is authorized rather than 
 an old execution renewed.*^* 
 
 A writ of execution, whether it be an original or an 
 alias, may be lost or destroyed. In either event, a pro- 
 ceeding may be taken in the court whence it issued to 
 re-establish it, and to thus restore the record evidence 
 
 80 BigaJow V. Barro, 30 Mich. 1; Howell's St., ed. 1882, see. G975; 
 State V. Boettiger, 3'J Mo. App. US4: Decker v. Lidwell, 3 Mo. App. 
 58G: Winne v. Iloughtallng. K4 Hun. IGG. 
 
 91 Wiokbam v. Miller, 12 Johns. 320; Chapman v. Fuller. 7 Barb. 
 70; Pr(>ston v. Leavitt. G W'end. GG3; Wilson v. Gale. 4 Wend. G33. 
 
 92 Barhydt v. Valk, 12 Wend. 145, 27 Am. Dec. 124; Ostrani'er v, 
 Walter. 2 Hill, 332. 
 
 •3 Carrier v. Thompson, 11 S. C. 79. 
 
 »* McNair v. Ingraham, 21 S. C. 7G: Sullivan v. Shell. .3G S. C. 578, 
 81 Am. St. Rep. 894; McLaurin v. Kelly. 40 S. C. 4SG.
 
 § 5t5a ISSUING ALIAS AND PLURIES WRITS. 25^ 
 
 of its existence/^'* In New York and Pennsylvania, the 
 practice pursued has been to take a rule that the clerk 
 or prothonotary issue a new or duplicate fieri facias 
 nunc pro tunc.^ Such a proceeding does not result in 
 the issuing of an alias or pluries writ; it merely sup- 
 plies competent evidence of the issuing and contents of 
 a pre-existing writ, whether an original, an alias, or a 
 pluries. 
 
 95 Tonont v. Suiter. 67 Ga. 32; Wallis v. Smith, 19 C.a. 8; Free- 
 man V. Coleman, 88 Ga. 421; Miluer v. Akin, 58 Ga. S")."). 
 
 »« White V. Lovejoy, 3 Johns. 448; Chichester v. Crane, 3 Cow. 39^ 
 15 Am. Deo. 238; Clark v. Field, 1 Miles. 224.
 
 251 THE W KIT Uk' VENl^lTIOM EXPONAS. f 67 
 
 CHAPTER V. 
 
 THE WRIT OF VENDITIONI EXPONAS. 
 
 { 57. Definition and object. 
 
 § 58. Gives no authority. 
 
 § 59. May issue witli a fieri facias clause. 
 
 § 60. Effect of sale under. 
 
 § CI. Collatoral attack upon and ameuduient of. 
 
 I 62. To whom directed. 
 
 § 57. Definition of Object. — The venditioni exponas 
 is sometimes spoken of as a brancli of the writ of fieri 
 facias.* It is issued when an original, alias, or pluries 
 writ of fieri facias is returned with an indorsement, 
 showing that the oHicer has levied on property, and 
 has the same in his hands unsold. In all such cases, 
 the plaintiff may wish to compel a sale of the property 
 levied, in order that he may have it applied to the 
 satisfaction of his debt, and may, in case it does not 
 produce a complete satisfaction, have execution for 
 the sum remaining unpaid. Without this writ, the plain- 
 tiff's remedy against the officer would be inadequate; 
 with the aid of the writ, such rcnuHly is complete. 
 The officer is bound to return tlie writ of fieri facias by 
 the return day thereof, and is liable to suit if he does 
 not return it, citlu'r executed or with a sufficient excuse 
 for not executing it. In case he returns that he has 
 made a levy, and gives a sufficient excuse for not hav- 
 ing sold the property levied, then the pbuiitilT may, by 
 procuring a writ of venditioni exponas, compel him to 
 
 1 Hughes V. Rees, 7 Dowl.r. C. 50, 4 Mees. & W. 46S, 1 H. & H. 
 847.
 
 § 57 THE WRIT OF VENDITIONI EXPONAS. 252 
 
 proceed \\illi the sale. This writ is, therefore, prop- 
 erly defined as the writ which compels au officer to 
 proceed with the sale of property levied upon under a 
 fieri facias.- 
 
 The right to issue this writ is necessarily suspended 
 or destroyed by anything which makes the execution 
 of the judgment improper at that time. Hence its is- 
 suing is irregular if there has been some motion or 
 proceeding operating to stay the execution.^ If by the 
 statutes in force in a state where the writ issues, some 
 proceeding is required without which the iDlaintiff is 
 not entitled to it, any issuing, in the absence of such 
 proceeding, is irregular and perhaps void."* Thus in 
 Pennsylvania, the sale of a life estate in real property 
 may be authorized by the issuing of a venditioni ex- 
 ponas, but the statute declares that this writ shall not 
 issue for this purpose unless by direction of the proper 
 court and on the application of a lien creditor, of which 
 the tenant for life shall have notice for at least ten 
 days. A writ issued without an order of court is, in 
 that state, held to be absolutely void, and therefore in- 
 capable of supporting a sale made in pursuance of its 
 directions.^ In some of the states, if a levy has been 
 made upon real property, after which the defendant 
 dies, his heirs are required to be brought before the 
 court as a condition precedent to any further proceed- 
 ings against such real estate, and to this end it is nec- 
 essary to prosecute a scire facias against them. 
 
 2 Cameron v. Reynolrls. Cowt). 4fM5: Welch v. Sullivan. 8 Cal. 105; 
 Holmes V. Mclncloe, 20 "Wis. 657: Bellinj^all v. Duncan. 3 Gilm. 477; 
 Tvockiidse v. Baldwin, 20 Tex. 308, 70 Am. Dec. 385; Fiisch v. Mil- 
 ler, 5 Pa. St. 310. 
 
 ?. Windsor v. Tiliotson, 1.35 Pa. St. 208. 
 
 * T>pfeuntun v. Veronneau, 22 Can. S. C. 203 
 
 sKlintz V. Lon?r. 30 Pa. St. 501; Snyder v. Christ, 30 Pa. St. 499: 
 Kunselman v. Stine, 183 Pa. St. h
 
 253 THE WRIT OF VENDITIONI EXPONAS. § 58 
 
 Where this xjriictice prevails, it has been held that ihe 
 issuing- of the writ, in the absence of a scire tacias 
 against the heiis, is a millity." Because a writ issued 
 under such circumstances is void, its issuing by the 
 clerk has been held to create no liability against him, 
 though by it a sak' of the property of the defendant 
 may have taken place and he may have been subjected 
 to the inconvenience and expense of litigation against 
 him based upon such writ and saleJ 
 
 § 58. Gave the Officer No Authority.— The venditioni 
 exi)onas was so frequently issued as to create the im- 
 pression that it was a writ of authorization as well as 
 of compulsion, and was necessary to enable the oflicer 
 to proceed with the sale. Such was not the fact; it 
 gave the officer no authority not previously possessed 
 by hira.** Kotwithstanding the return of the fieri 
 facias, he could sell the property levied on as well with- 
 out as with a venditioni exponas. If he was willing to 
 proceed, the issue of this writ was a clear superfluity.'** 
 One of the natural consequences of the rule that this 
 writ gives no additional authority, is that a sale can- 
 not be authorized by it whicli the original writ could 
 not have authorized. If the property levied upon was 
 not that of the judgment debtor, a writ of venditioni 
 exponas, commanding him to sell it, cannot protect the 
 
 6 Sims V. Eslava. 74 Ala. 594; Samuel v. Zacbery, 4 Ired. 377; 
 Barficld v. Barfield, 113 N. C. 2:{0. 
 
 7 Eslava v. Jones, 83 Ala. 139, 3 Am. St. Rep. 699. 
 sManahan v. Sammon. 3 Md. 463; Buehler v. Rogers, G8 Pa. St. 
 
 9; Toung v. Smith, 23 Tex. .')98, 76 Am. Dec. 81; Smith v. Spencer, 
 3 Ired. 256; Cummins v. Webb. 4 Pike, 229; Borden v. Tillman, 39 
 Tex. 262; Ilastinirs v. Bryant. 11.5 111. 75. 
 
 » Ritchie v. Iliir.einbotham, 2G Ivan. 645; Ayre v. Aden, Oro. .Tao. 
 73; Irvin v. Pickott. 3 Bibb. ?,Ar,: Clerk v. Withers. I.d. Raym. 1073; 
 Colyer v. Iliggins, 1 Duvall. 7; Keith v. Wilson, 3 Met. (Ky.) 204.
 
 t 68 THE WRIT OF VENDITIONI EXPONAS. 254 
 
 officer from an action against him by the true owner of 
 the property who was not a party to the judgment.^" 
 Where a levy had been made, and thereafter a super- 
 sedeas issued, it was held that the levy, having been 
 rommenced, gave the ollicer a special property which 
 the supersedeas did not affect, and that he could, 
 therefore, by a venditioni exponas, be compelled to 
 proceed with the sale.^^ If the property mentioned in 
 the venditioni exponas was sold without satisfying the 
 judgment, the proper remedy was to procure an alias 
 tieri facias for the balance due.^^ 
 
 From the well-established proposition that a ven- 
 ditioni exponas confers no authority upon an officer, 
 and is, in its effect, confined to inciting, or compelling, 
 him to pursue an authority otherwise possessed, it fol- 
 lows that in determining the validity of an execution 
 sale, the venditioni exponas may be disregarded, for it 
 can neither detract from a sale otherwise valid, nor 
 ii'iye force to a sale otherwise void. The power of the 
 <jfficer depends solely on the prior writ and the pro- 
 ceedings thereunder. ^^ Hence, if acting under this 
 writ an officer sells property in a case where no fieri 
 facias had issued,** orwhere the property sold had not 
 l>een levied upon,**^ or where the judgment had been 
 satisfied or merged into another judgment,*^ such sale 
 is clearly void: for in neither of these instances is there 
 any power to subject the property to a compulsory sale. 
 
 10 Burgin v. Raplee, 100 Ala. 433. 
 
 11 Charter v. Peeter, Cro. Ellz. 597; Milton v. Eldrington, 1 Dyer, 
 98 b; Overton v. Perkins, Mart. & Y. 367. 
 
 12 Den on dem. of Smith v. Fore, 10 Ired. 37, 51 Am. Dec. 376; 
 <'h.'imbers v. Dollar. 29 U. C. Q. B. 599. 
 
 1 •• Frink v. Roe. 70 Cal. 290. 
 
 i^Iiurst V. I>iford. 11 TI(>isk. 622. 
 
 I'Bf.rflen v. McBae. 46 Tex. ?,96: Wood v. Ancrnstine, 61 Mo. 46. 
 
 5 6 Wright V. Yi-ll, 13 Ark. 503, 58 Am. Dec. 336.
 
 255 THE Willi OF VENDITIONI EXE'ONAS. § 58 
 
 At the common law, this w rit issurd only to compel 
 a sale of i)ersoual property, for the very obvious reason 
 that the policy of that law did not pi-nniL the divesting 
 of the title to real property by an execution sale. In 
 this country a dilTerent policy prevails — one under 
 which the sale of realty under execution is regarded 
 with but little less favor than that of personal estate. 
 Whenever under the local statutes, a levy upou real 
 estate is sanctioned, and when made constitutes a cou- 
 t inning lien notwithstanding the return of the execu- 
 tion, the property so levied ujion may, after the return 
 day of the writ, be sold under a venditioni exponas.*'^ 
 The doubtful question is, whether lands may be sold 
 after the return day of the execution in the absence of 
 this writ. In the case of personal estate, it is con- 
 ceded that the officer levying the writ obtains a right of 
 possession and a special property in the goods seized, 
 which continue after the return day, and authorize him 
 to sell as effectually as if the original writ remained in 
 full force. But a levy upon real estate gives no special 
 property, and no right of possession to the officer mak- 
 ing the levy, and hence it has been inferred that, after 
 the return day of the writ under which the levy was 
 made, he occupies no official or other relation toward 
 such property, and has no power to dispose of it, and 
 thereby make effectual the lien created by the levy. 
 Where this view prevails, an exception exists to the 
 general rule that a venditioni exponas confers no au- 
 thority, and it is then necessary after the return day of 
 an execution that this writ issue to empower the officer 
 
 IT liorden v, Tillman, 39 Tex. 262; Locliridge v. Baldwin. 20 Tex. 
 303, 70 Am. Dec. 385; Borden v. McRae, 46 Tex. 396. It lias, how- 
 ever, been denied that a venditioni exponas can give power to sell 
 liinds after the return day: Rogers v. Cawood, 1 Swan, 143, 55 Am. 
 DiC. 729.
 
 § 53 THE WRIT OF VENDITIONI EXPONAS, 2:(> 
 
 to sell real estate levied upon but not sold, and a sale 
 without such writ is void.^** In our judj^ment, the 
 special property and the right of possession vested in 
 an officer upon the levy of a writ upon personal prop- 
 erty are not the foundation of his authority to sell, but 
 are mere incidents of that authority designed to make 
 its exercise effectual. His authority is derived from 
 the judgment, the writ and its levy. That this author- 
 ity may be pursued the more effectually, the officer is 
 vested with a special property and a right of posses- 
 sion, for otherwise the chattels seized might be taken 
 out of bis possession with impunity, and their applica- 
 tion to the satisfaction of the writ delayed or wholly 
 avoided. The authority" to sell real estate may, on the 
 other hand, be prudently and effectively exercised with- 
 out divesting the owner of possession, or conferring- 
 any special property on the levying officer. It can 
 neither be hidden, nor seized and removed beyond his 
 bailiwick; and the recording of the levy may give 
 notice to all intending purchasers or encumbrancers 
 and prevent the creation of any new rights or interests 
 not subordinate to the levy. By the levy, a lien is 
 created whose duration is not limited to the return day 
 of the writ, and from this it must necessarily follow 
 that the officer has authority, notwithstanding the 
 passing of such return day, to make his levy productive 
 by a sale of the realty levied upon; and this authority 
 is not dependent on the issuing of a venditioni exponas, 
 for this writ does nothing more than to compel the per- 
 formance of a pre-existing duty,*^ 
 
 18 Hester t. Diiprey, 46 Tex. 027; Mitchell v. Ireland, 54 Tex. 306; 
 Bardon v. MoKiunie, 4 Hawks, 279, 15 Am. Dec. 519; Porter v, 
 Neelan, 4 Yeates, 108; Smith v. Mnndy, 18 Ala. 185, 52 Am. Dec. 
 221; Sheppard v. Rhea, 49 Ala. 125, and see post, § 106. 
 
 19 Rose V. Inpn-am, 98 Ind. 276; Knox v. Randall, 24 Minn. 479; 
 Johnson v. Bemls, 7 Neb. 224; Frink v. Roe, 70 Cal. 296; Cox v.
 
 257 THE WKIT OF VENDITIONI EXl ONAS. §§ 5'.t, CO 
 
 § 59. May have Fieri Facias Clause. — Tho vonditioni 
 exponas could be issued with a iii ri facias clause. It 
 then united the powers of the two writs, compelling 
 the sale of the property under levy, and authorizing 
 the seizure and sale of such other jaopeity as might be 
 necessary to satisfy the judgment. But if the fieri 
 facias clause was not inserted its omission could not be 
 treated as a clerical error, to be thereafter cured by 
 amendment. A levy and sale, w^here there is no fieri 
 facias clause, are therefore entirely unauthorized and 
 absolutely void.'" The property must be sold as re- 
 quired by the venditioni before any lawful seizure can 
 be made of other property under the fieri facias 
 clause.^^ 
 
 § 60. The Effect of a Sale Under a Venditioni Ex- 
 ponas is the same as though the sale had been made 
 under the original writ before the return day. The 
 purchaser can obtain no better nor greater title than 
 would have passed under the original writ;" but, on 
 the other hand, the lien of the original writ and of the 
 levy thereunder continue under the venditioni exponas, 
 and confer as ample a title as could have been trans- 
 ferred under and by virtue of such original liens.^^ 
 
 Joiner, 4 Bibb, 94; Stein y. Obarabless, 18 Iowa. 474: Cultcrficld v. 
 Walsb, 21 Iowa. 101; Pliillips v. Dana, 3 Scam. 557; Moreland v. 
 Bowlius, 3 Gill, .500; Rfmin,u;toii v. Liutbicum, 14 Pet. 84; Bnsey v. 
 Tuck, 47 Md. 171; see post. § lOG. 
 
 20 Maupin v. Emmons. 47 Mo. 304; Qiiinn v. Wiswall, 7 Ala. 645; 
 Zugr V. Lau?:hlin. 23 Ind. 170; Lee v. Howes. 30 U. C. Q. B. 292. 
 
 21 Canaday v. Nuttall, 2 Ired. Eq. 2G5; Dunn v. Nicbols, G3 N. C. 
 107. 
 
 22 Badlmm v. Cox. 11 Ired. 4.5G; Bursin v. R.aplo<>. 100 Ala. 433. 
 
 23 Yarborouiib v. State Bank. 2 Dev. 23; Zusr v. L.uii^bliii. 2:? Ind. 
 170; Doe v. Ilayo.s. 4 Ind. 117; Taylor v. Mumford, 3 Humpb. 66; 
 Hicks V. ElUs, Go Mo. 177. 
 
 Vol. I.— 17
 
 §§ 61, 62 THE WRIT OF VENDITIONI EXPONAS. 258 
 
 § 61. Collateral Attack Upon, and Amendment of.— A 
 venditioni exponas is as little liable to collateral at- 
 tack, and as much subject to amendment, as the orig- 
 inal writ. Thus where it was issued under the seal of 
 the court, but without the clerk's signature, this 
 omission was regarded as a clerical error, proper foi- 
 amendment, but not destroying the validity of the 
 writ.^* So where the writ omitted some of the articles 
 which were sold under it, it was amended after forty 
 years to sustain the sale, it appearing that all the 
 articles were levied on under the fieri facias.^^ In such 
 a case, there is no need of an amendment; for, as the 
 officer has authority to sell without any venditioni ex- 
 ponas, he cannot be said to have less authority because 
 of informalities in the writ, whether of form or sub- 
 stance.^^ 
 
 § 62. To Whom Directed.— This writ is usually 
 directed to the officer who made the levy, whether he 
 continues in office or not. It may, however, be di- 
 rected to and executed by his successor in office, if the 
 levy be upon real estate; ^'^ but the authorities make 
 a distinction between cases where the venditioni is 
 issued for the sale of personal property, and where it is 
 issued for the sale of land. In cases of the former 
 class, the venditioni must go to the officer who made 
 the seizure; for by the seizure he acquired a special 
 property in the chattels, and a right to their posses- 
 
 «4McCormack v. Meason, 1 Serg. & R. 92. 
 
 25 De Haas v. Bunn, 2 Pa, St. 335, 44 Am. Dec. 201. See, also. 
 Chambers v. Dollar, 29 U. C. Q. B. 599. 
 
 28 See § 58. 
 
 sTBellingall v. Dnnpan, 3 Gilm. 477; Siimnor v. Moore. 2 Mcl>pan, 
 59: Holmes v. Mclndoe, 20 Wis. 657; Tarkiugton v. Alexander, 2 
 Dev. & B. 87.
 
 259 THE WRIT OF VENDliiONi EXl'ONAS. § 62 
 
 Bion.^ If the courts will but cunsistently apply the 
 well-established rule that a VL*u(liti(Hii exp(jua.s is not a 
 writ of authorizatiou, but of compulsiou merely; that 
 the object of its issue is not to create an authority, but 
 to arouse to action one already existing, then the qu<'S- 
 tion whether it shall issue to the sheritt" in ollice, or 
 to his predecessor, by whom the levy was made, is of 
 insignificant import. The important question is, Wiiat 
 acts may a sheritf or other officer lawfully and effectu- 
 ally do, after the expiration of his term of ollice? for 
 such acts may, we think, be done without as well as 
 with the writ of venditioni exponas. The general rule 
 is, that when an oflQcer enters upon the execution of a 
 writ, and at all events when he has proceeded so far as 
 to make a valid levy thereunder, he may, notwith- 
 standing the expiration of his official term, complete 
 the execution of the process, and do every act necessary 
 to completely appropriate to the satisfaction of the 
 writ the property so levied upon, ihcluding, in the event 
 of a sale, the execution of such mmiiments of title as 
 may be required to divest the title of the judgment 
 debtor and vest it in the purchaser, at the execution 
 sale. For all these purposes, he may be considered as 
 if still in office. The authority of his deputies is con- 
 tinued, unless revoked by him, and they may perform 
 acts and execute writings in his name, with like effect 
 as if he remained in office.^*** If the levy w'as upon 
 personal estate, there was never any question that the 
 sale might, and indeed must, be made by the officer 
 
 28Busey v. Tuck, 47 Md. 171; Clark v. Sawyer, 48 Cal. 133; Purl 
 V. Duval, 6 Har. & J. 69. 9 Am. Dec. 490. 
 
 *» Tyree v. Wilson, 9 Gratt. 59, 58 Am. Dec. 213; Lofland v. Ew- 
 Ing. 5 Litt. 42, 15 Am Dec. 41; .Tackson v. Collins, 3 Cow. 89; Bal- 
 lard V. Thomas, 19 Gratt. 24; Tuttle v. Jackson. 6 Wond. 210; Mills 
 V. Tukoy, 22 Oal. 373, S3 Am. Doe. 74; Hunt v. Swayze, 55 N. J. L. 
 33; Holmes v. Crooks, 70 X. W. 1073 (Xeb.)
 
 § 62 THE WRIT OF VENDITIONI EXPONAS. 2G(> 
 
 who levied the writ, though in the meantime he had 
 ceased to hold office.^" "It seems to be a well-settie<l 
 rule of law, a rule of the common law, recognized and 
 confirmed by statute, that when an executive officer 
 has begun a service, or commenced the performance of 
 a duty, and thereby incurred a re.si^onsibility, he has 
 the authority, and indeed is bound, to go on and com- 
 plete it, although his general authority, as such officer, 
 is superseded by his removal or his derivative author- 
 ity terminated by the determination of the office of his 
 principal. His authority attaches by the commence- 
 ment of the service, and will be superseded only when 
 it is completed, whether it be a longer or a shorter 
 time." ^1 
 
 The levy of an execution upon real estate does not, 
 as in the case of its levy upon personal property, vest 
 in the officer any special property, or right of posses- 
 sion; hence it has been decided that, on the termina- 
 tion of his official term, he could no longer sell such 
 real estate,''^ though if the sale had taken place during 
 such term, we believe no doubt has ever been expressed 
 that he could, after the expiration of the term, make 
 his return upon the writ, or execute any conveyance or 
 other evidence of title, based upon the sale,^* or re- 
 ceive from the judgment debtor, or other person enti- 
 tled to redeem, the moneys required to make a valid 
 
 30 Clerk v. Withers, 1 Salk. 322, 6 Mod. 290; Doe v. DonstoD, 1 
 Barn. & Aid. 230; Sauvinet v. Maxwell, 26 La. Ann. 280; People v. 
 Boring, 8 Cal. 400; State v. Iloberts. 7 Halst. 114, 21 Am. Dec. 02; 
 Newman v. Beokwith, 01 N. Y. 20.".; Clark v. Pratt. 55 ^Me. .540; 
 Tukeyv. Smith, 18 Me. 12."., 30 Am. Dec. 704; Loavitt v. Smith, 7 Ala. 
 175; Bilby v. Hartman, 2!) Mo. Aj)!). 125. 
 
 31 Lawrence v. Rice, 12 Met. 5-33. 
 
 82 Leshey v. Gardner, 3 Watts. & S. .314, 38 Am. Dec. 764; Bank 
 of Tennessee v. Beatty, 3 Sneed. 305. 05 Am. Dec .58. 
 
 ssW'elsh V. .Toy. 13 Pick. 477; Allen v. Trimble, 4 Bibb, 21, 7 Am. 
 Dec. 720; post, § 327.
 
 1261 THE WHIT OF VEXDITIUNI EXPONAS. § 62 
 
 redemption from such sale.^* The better opinion is, 
 that if a levy be made upon real estate, the ollieer levy- 
 ing the writ may, after the expiration of his term, com- 
 plete the execution of the writ by a sale and convey- 
 ance; but that his powers in this rt spi ct are concurrent 
 with those of his successor in oliice, and, therefore, ' 
 that the venditioni exponas may properly be issued to 
 and executed by either.*'^ As already suggested, it is 
 not material, at least for the purpose of sustaining a 
 title based upon a sale, that the writ be directed either 
 to the officer who levied it or his successor in office, 
 where the latter possesses authority to make the sale, 
 and hence it is not a sufficient objection to the con- 
 firmation of a sale made by a sheriff that he did not 
 levy the writ, and that the sale made by him was not 
 directed by any writ of venditioni exponas.^** 
 
 34 Elkin V. roople, 3 Scam. 207, 3G Am. Doc. 541; Robertson v. 
 Dennis, 20 111. 315. 
 
 35 Clark V. Sawyer, 48 Cal. 133; Lofland v. Ewiug, 5 Litt. 42, 15 
 Am. Dec. 41; Purl v. Duval. 5 Har. & J. G9, 9 Am. Dec. 490: Jack- 
 son V. Collins, 3 Cow. 89; Bellinscall v. Duncan. 3 Gilra. 480; Holmes 
 V. Mclndoe. 20 Wis. G89; Sumnor v. Moore, 2 McLean, 59; Fowble 
 T. Rayberg, 4 Ohio, 5G; Kano v. McConn. .55 Mo. 181. 
 
 s« Lewis V. Bartlett, 12 Wash. 212, 50 Am. St. Rep. 885.
 
 63 AMENDING WRITS OF EXECUTION. 262 
 
 CHAPTEK VI. 
 
 AMENDING WEITS OF EXECUTIOIT. 
 
 § 63. Power liberally exercised. 
 
 § 03 a. Practice to be pursued. 
 
 § 64. Power extends to all matters of form. 
 
 § 65. Amending direction to the ofticer. 
 
 § 60. Amending omission in words of command. 
 
 § 67. Amending to conform execution to judgment. 
 
 § 68. Amending error in designating the return day. 
 
 § 69. Amending the clause of attestation. 
 
 § 70. Amending by affixing seal. 
 
 § 71. Time within which amendment may be made. 
 
 § 71 a. The effect of amendments. 
 
 § 71 b. Effect of not amending. 
 
 § 72. Persons against whom amendments may be made. 
 
 § 63. Power of is Liberally Exercised. — The power 
 of courts to amend executions was, until a compara- 
 tively recent date, either doubted altogether, or af- 
 firmed with great hesitation. Thus Mr. Bingham, in 
 his work on judgments and executions, says nothing 
 upon this subject, except the following: "But it seems 
 a judicial writ may, in some instances, be amended by 
 the roll, on leave from the court." ^ No subsequent 
 author, in his treatment of this topic, can hope to excel 
 Mr. Bingham in brevity, caution, and uncertainty. 
 But the power to amend executions, and the limits 
 within which it should be exercised, were much better 
 established and understood in Mr. Bingham's time 
 than his cautious sentence and his single citation of 
 authority indicate. At the present day. the power to 
 amend executions so as to correct clerical misprisions 
 
 1 Bingham on Judgments and Executions, 18G.
 
 2C3 AMEND1X(J WillTS OF EXKCUTIOX. § «3 
 
 is universally concoded, and frequently invoked. 'In- 
 deed, it is very difficult to prescribe limits to this 
 salutary power possessed by the courts, of permitting 
 amendments in their process, whether mesne or final. 
 It is a power exercised for the promotion of jiistice, 
 with no i^arsimonious hand; yet, where its allowance 
 would be destructive of the rights of innocent third 
 persons, the court will scan well the grounds on which 
 its action is sought." * "When w'e advert to the doc- 
 trine of amendments, and the casts which have been 
 decided on that subject, it will be praceived that the 
 object of the whole system is to provide a remedy for 
 casual omissions, or negligence of different officers of 
 the court; in a word, to enable the party to do that 
 w'hich the law and the facts in the case would have 
 authorized or did require the officers to have done. 
 The decisions on this subject are so numerous, and 
 amendments so common, and I may almost say unlim- 
 ited, that the difficulty is in selecting such cases as 
 seem most directly to apply to the subject before us." ^ 
 It has been said that there is no absolute right to the 
 amendment of a writ, and that whether leave to amend 
 should be granted or not rests in the discretion of the 
 court to which the application is made, and hence that 
 its action will not be reviewed upon appeal, unless it 
 appears to have treated the question as one of law, 
 rather than of discretion, and to have erred in its inter- 
 pretation of the law."* It is perhaps unfortunate that 
 
 2 Cawthoi-n v. Kniiiht, 11 Ala. 582; McCoUuni v. Iliibbert, 13 Ala. 
 284, 48 Am. Dec. 5(5; Meyer v. Rins. 1 H. Black, 541; Simon v. Gur- 
 ney, 5 Taunt. 605; Atkinson v. Newton, 2 Bos. & P. 33G; Deloach v. 
 State Bank, 27 Ala. 444. Amendments may be made in matters of 
 form, but not of substance. Blanks v. Rector, 24 Ark. 490, SS Am. 
 Dee. 780. 
 
 3 Bou! dt anx v. Treasurers, 3 McCord, 144. 
 •* Hayford v. Everett, OS Me. 5U5.
 
 §G3 AMENDlN(i WRITS OF EXECUTION. 264 
 
 language of this purport should ever have been used; 
 for where there is no question that the facts of two 
 cases are identical, it ought not to bo possible that 
 diverse judgments should be sustained. It is of the 
 utmost imi)ortance, both to purchus rs at execution 
 sales and to defendants whose proi)erty is exposed 
 thereto, that persons learned in the law and conversant 
 with the facts may determine therefrom whether 
 leave will be granted to amend a writ apparently 
 amendable, and this they can never do if the right to 
 amendment is subject to the discretion of the court, if 
 it be a discretion not controlled by settled rules of law. 
 It is, however, settled tliat leave to amend will not be 
 granted where it is not in furtherance of justice. A 
 sale made under the writ may be for an inadequate 
 price, and this fact ma}' probably be due to the inper- 
 fect character of the writ. If so, tlie jirinciples of nat- 
 ural justice dictate the vacating of the sale rather than 
 supporting and making it impregnable by an amend- 
 ment of the writ, and the action of the court in amend- 
 ing the writ and refusing to quash the sale may be re- 
 viewed on appeal.^ 
 
 The theory upon which leave to amend writs is 
 sought and granted is, that the clerk of the court has 
 disregarded the law and the presumed command of 
 the court by issuing a writ which does not conform to 
 the judgment, or is defective in some otlier respect. 
 The court, in directing him to amend it, but requires 
 liim to perform his original duty. It has hence been 
 held that the power to amend applies only to writs is- 
 sued by clerks of courts, or out of courts having clerks, 
 and therefore that a justice of the peace, especially if 
 the writ has been executed, has no power to amend 
 
 « Flint V. Phipps, 20 Or. 3-10, 23 Am. St. Rep. 124.
 
 ■265 AMENDING WRITS OF EXK* UTION. § 63a 
 
 it* On the other hand, it is insisted that the power 
 is inherent in all courts having power to issue writs, 
 including those of justices of the peace.'' If the mak- 
 ing of an amendment is necessarily an exercise of the 
 judicial power, it must be restricted to judicial officers. 
 In some of the states, however, clerks of courts are 
 authorized by statute to amend writs in so far as to 
 coiTect mistakes in issuing them.® So far as we 
 know, the constitutionality of such statutes has not 
 been questioned. 
 
 § 63 a. The Practice to be Pursued in Procuring an 
 Amendment of a Writ is not distinctly disclosed in any 
 of the cases falling vrithin our observation. In many in- 
 stances the defects, on account of which an amendment 
 is sought, are so clearly merely clerical errors, and the 
 case is so free from doubt respecting the writ intruded 
 to be issued, that proceedings taken thereundei- must 
 be sustained, whether any formal amendment is ever 
 made or not. In such cases the practice to be pursued 
 in procurin-g an amendment cannot be material, for, 
 •conceding leave to amend to have been improvidently 
 granted, or disregarding the amendment altogether, 
 the rights of the plaintiff and of all ptTSous claiming 
 under the writ are still j^rotected and secure. If, on 
 the other hand, the amendment sought is of so substan- 
 tial a character, or of such doubtful propriety, that 
 the rights of the parties may be affected by it, or, in- 
 stead of being a matter of course, it is a matter upon 
 which reasonable judges may diffi^r, certainly the par- 
 ties to be affected by it should be brought before the 
 
 « Porter v. Ilaskell, 11 Me. 177; Taaf v. Bentlej', 5 Wend. 276; 
 Stevens v. Chouteau. 11 Mo. 382. 49 Am. Deo. 92. 
 T Sllner v. Buttertield, 2 lud. 24. 
 « Smith V. Bell, 3U S. E. 6S4 (Ga); Gross v. Mims, 63 Ga. 563-
 
 § 63a AMENDING WRITS OF EXECUTION. 26G 
 
 court by some notice warning them of tlie proposed 
 action and giving them an opportunity to resist it.'*^ 
 In the absence of such notice, they should not be held 
 bound by the order granting leave to amend, nor by the 
 amendment made in pursuance of it.^*^ We assume^ 
 therefore, that the proper practice of a person desiring 
 to obtain leave to amend a writ in any substantial 
 particular, and where leave does not follow as a mat- 
 ter of course from a mere inspection of the record, 
 is to give written notice to all persons apparently ta 
 be prejudiced by the amendment, that an application 
 will be made to the court at a time stated for leave to 
 amend the writ in a manner designated in such notice. 
 If, however, a motion is made to quash the writ or 
 levy, and the parties in interest are thereby brought 
 before the court, the plaintiff or other person inter- 
 ested in the writ may meet this motion by a counter- 
 motion for leave to amend and to thereby free the writ 
 from the irregularity complained of, anil this counter- 
 motion need not be preceded by any formal written 
 notice. 
 
 Sometimes leave to amend has been granted in a 
 case other than that in which the writ issued, as where 
 the objection to the writ was interposed in another 
 action and the court engaged in the trial thereof at 
 once ordered an amendment to be made, so as to re- 
 move the objection. The leave thus given to amend 
 may be sustained where both a'ctions are in the same 
 court, and also when no harm could have resulted from 
 the amendment, for the reason that, from an inspec- 
 tion of the record, it is clear that the order is a correct 
 
 » Byboe v. Ashby, 2 Gilm. 451, 43 Am. Dec. 47; Simpson v. Simp- 
 son, 64 N. C. 427. 
 10 Morris V. Ballcliam, 75 Tex. Ill, IG Am. St. Rep. 874.
 
 267 AMENDING WRITS OF EXi:CUTION. § C4 
 
 one, for in lliut event the writ might be treated as 
 amended, whether the record is in that court or not." ** 
 
 § 64. Amendments for Matters of Form.— When we 
 come to examine the different decisions in reference 
 to amendin«i' executions, we tiiid them so various and 
 comprehensive as to fully justify the remarks quoted 
 in the preceding section. These decisions, though not 
 perfectly harmonious, are as nearly so as, from our 
 previous knowledge of judicial doubts and dissensions, 
 we could expect to find them. In the chapter on the 
 form of an original execution we have stated that 
 every execution usually embraces six different parts. 
 We think that each of these parts may be amended, 
 at any time, where the amendment proper to be made 
 can be ascertained, either from reference to the rec- 
 ord, or to the existing law prescribing the form and 
 contents of the writ. Hence, if the w^rit issues in 
 the name of the territory of C, instead of in the name 
 of the state,^' or in the case of an execution against 
 the person of the defendant misnames the town in 
 which the county jail is situated,^^ these are amend- 
 able defects which do not destroy the efficiency of the 
 writ. 
 
 "W^hile an execution should follow and conform to 
 the judgment, it is clear that an amendment may be 
 allowed if the execution can be so identified with the 
 judgment and the record on which the judgment is 
 founded that the court can find data by which to make 
 the amendment." ^^ "The general principle is. that 
 when the judgment is recovered in a court having juris- 
 
 11 Dewey v. Peeler. IGl Mass. 1.35, 42 Am. St. Rep. 309. 
 
 12 Carnahan v. Pell. 4 Ck)lo. 190. 
 
 13 Avery v. Lewis, 10 Vt. .^''.2. 3.3 Am. Deo. 203. 
 
 14 Dewey v. Peeler, IGl Mass. loo, 42 Am. St. Rep. 399.
 
 § 65 AMENDING WRITS OF EXECUTION. 268 
 
 diction, and the execution is issued by the proper offi- 
 cer, irregularities eitlier in the mode of issuing it or 
 in the document itself do not make it void; and that 
 it may be dealt with by the court upon motion of either 
 })arty, and amended or annulled as justice may require, 
 and that service of it, if it is not annulled, or service 
 restrained or suspended, is not invalid." ^^ 
 
 It has been said, and perhaps trulj^, that a void writ 
 cannot be amended.^" The declaration of this general 
 principle is of no greater aid than is that other declara- 
 tion, to be found in so many of the decisions, that an 
 amendable writ is not void. We are still left with- 
 out any test to determine what writs are void and 
 what voidable. This question cannot be answered in 
 a single sentence or section, and the reader must be 
 left to determine it from a vast variety of decisions 
 involving assaults upon writs and proceedings there- 
 under from widely divergent points of attack, attended 
 by an infinite variety of circumstances. 
 
 § 65. Amending the Direction to the Officer.— Where 
 a writ is directed to an improper officer, but executed 
 by the proper officer, the error in the direction does 
 not vitiate the writ, and may be cured by amend- 
 ments.^'^ Where such an eiTor had been committed, 
 the court said: ''This is a judicial writ, and the erro- 
 neous direction is a mere misprision of our own clerk. 
 Judicial writs are more absolutely under the control 
 of the court than original writs. Let the amendment 
 
 isChesebro v. Barme. 1G.3 Mass. 79. 
 
 16 McCorniick v. Wheeler, 3G 111. 114, 8o Am. Dec. r.SS; Clarke v. 
 Miller, 18 Barb. 2(;0. 
 
 17 Rollins V. Rich, 27 Me. 557; Walden v. Davison, 15 Wend. 578; 
 Ilearsiey v. Bradbury, 9 Mass. 95; Wood v. Ross, 11 Mass. 277.
 
 269 AMENDING WrUTS OF KXECUTION. §06 
 
 be made." *** Where the error is in diiectiuj^ the writ 
 to the sheriff of one county, when it is intended to be 
 delivered to the sheriff of aiiotlier count}-, there is 
 some doubt whether it can be amended so as to sup- 
 port proceedings taken in the latter county. In 
 Illinois, it has been held that this is not a proper case 
 for an amendment, and that, as the sheriff acted in 
 the absence of any writ directed to him, a levy and 
 sale made by him aie incurably void.*" If the writ is 
 required to recite some pre-existing writ and to state 
 the county to which it was issued, the omission to 
 comply witli such requirement is a mere irregularity 
 which can be supplied by amendment.^*^ 
 
 § 66. Amending Omission of Words of Command.— 
 Where the law authorized executions to be levied on 
 lands and tenements as well as on goods and chattels, 
 a writ issued, commanding a levy on goods and chat- 
 tels, but omitting the words "lands and tenements." 
 Under this writ, lands were sold and a conveyance 
 made in pursuance of the sale. About fifteen years 
 afterward, this writ and deed, having been offered in 
 evidence, were objected to for this defect, whereupon 
 the court held as follows: "By an act of the legisla- 
 ture, real estate, quoad hoc, is put on the same foot- 
 ing with personal, and a plaintiff has the same right 
 to have his judgment levied as well of the one as the 
 other. An execution is the process which the law 
 gives to enforce a judgment, and ought to pursue the 
 law. It is a remedy which a plaintiff has a right to 
 
 18 CanipboU v. Stiles, 9 :\rass. 217. See Atkinson v. Caicher. 23 
 Ark. 101; Simcoke v. Frederick, 1 Ind. 54; Morrell v. Cook, 31 Me. 
 120. 
 
 i9Byl)oe V. Asbby. 2 r.ilni. ini. 43 Am. Dec. 47. 
 
 20 Eads V. Wynne, 70 IIuu, 4Go.
 
 § 67 AMENDING WRITS OF EXECUTION. 270 
 
 ask of the court, and which the court is bound to 
 extend to him to the utmost extent of the law. The 
 omission, therefore, of the words 'lands and tene- 
 ments,' et cetera, in the execution in the case of 
 Williams v. Eobertson, is clearly a clerical mistake; 
 considering it, therefore, as the act of the court, and 
 not of the party, I should be disposed to think, if it 
 were necessary, that the court would — even at this day 
 — entertain a motion to amend it, so as to render it 
 consistent with, and make it as efficient as, the law 
 itself." 21 
 
 § 67. Amendments to Conform Executions to the 
 Judgments on which they were entered have been of 
 very frequent occurrence. By such amendments, a 
 variance in the name of the plaintiff, ^^ or of the de- 
 fendant,^^ or in the date,^'* or amount ^^ of the judg- 
 
 21 Tooiner v. Purkey, 1 Const. Ct. R. 324, 12 Am. Dec. 634; Treas- 
 urers V. Bordeaux, 3 McCord, 142. 
 
 22 Bank of Kentucky v. Lacy, 1 T. B. Men. 7; Mackie v. Smith, 
 4 Taunt. 322. 
 
 23 Browne v. Hammond, Barnes, 10; Vogt v. Ticknor, 48 N. H. 
 242; Gross v. Mims, G3 Ga. 563. 
 
 24 Chase v. Gilman, 15 Me. 66; Hagerstown Bank v. Weckler, 52 
 Md. 30; Woolwortli v. Taylor, 02 How. Pr. 90; Heidelback v. Fen- 
 ton, 180 111. 312. 
 
 25 Stevenson v. Castle, 1 Chit. 349; Laroche v. Washbrough, 2 
 Term Kep. 737; Doe v. Hue, 4 Blackf. 263, 29 Am. Dec. 368; McCall 
 V. Trevor, 4 Blackf. 40G; Hutchens v. Doe, 3 Ind. 528; Black v. Wis- 
 tar, 4 Dall. 267; Saunders v. Smith, 3 Kelly, 121; Sheppard v. Mal- 
 loy, 12 Ala. 561; Holmes v. Williams, 3 Caines, 98; Waggoner v. 
 Dubois, 19 Ohio, 104; Bissell v. Kip, 5 Johns. 100; Wright v. Wright, 
 6 Me. 415; Paine v. Spratley, 5 Kan. 525; King v. Harrison, 15 East, 
 615; Murphy v. I^wls, Hemp. 17; Robb v. Halsey, 11 Smedes & M. 
 140; Smith v. Keen, 26 Me. 411; Hunt v. Loucks, 38 Cal. 376, 99 Am. 
 Dec. 464; Spenee v. Rutledge, 11 Ala. 557; Williams v. Waring, 5 
 Tyrw. 1128; Cromp. M. & R. 354; Bicknell v. Witherell, 1 Q. B. 914; 
 liinton V. Roach, 95 N. C. 106; Corthell v. Egery, 74 Me. 41; Bach- 
 elder V. Chaves, 5 N. M. 562; Kokomo S. Co. v. Inman, 21 N. T. 
 Supp. 705.
 
 271 AMENDING WRITS OF EXECUTION. § 68 
 
 mont, may be corrected; or the name of a party may 
 be entirely stricken out when its insertion was not 
 wan-anted by the judgment;'** or a name improperly 
 omitted may be inseited."'' Hence, a writ omitting 
 the name of the plaintiff is not void, but may be per- 
 fected by inserting his name."'^ * So, if the judgment 
 was against the defendant in a representative capacity, 
 and the writ failed to state this fact, or stated it in- 
 correctly, it may be amended to conform to the judg- 
 ment. If he is described in the writ as a special ad- 
 ministrator, it may be amended so as to describe him 
 as administrator with the Avill annexed, ^® or, if the 
 writ is against him as administrator of the estate, it 
 may be amended so as to be against assets of the estate 
 which shall thereafter come into the hands of the ad- 
 ministrator to be administered,^" where such amend- 
 ments will harmonize the writs with the judgments 
 intended to be enforced by them. The style of the 
 writ may also be amended so as to agree with the 
 form prescribed by statute.^^ 
 
 § 68. Amending Errors in Regard to the Return Day. 
 — Where the law designates the return day, the omis- 
 sion to designate it in the writ is, according to the 
 majority of the authorities, a mere clerical misprision 
 of no serious consequence. Whether the return day 
 
 28 Goodman v. Walker, 38 Ala. 142; Deloach v. State Bank. 27 
 Ala. 437; Green v. Cole, 13 Ired. 425; Andress v. Roberts, IS Ala. 387; 
 Thompson v. Bonduraut, 15 Ala. 34U, 50 Am. Dec. 136; Ca^vthorn v. 
 Knight, 11 Ala. 579. 
 
 27 Shaffer v. Watkins, 7 Watts & S. 219; Morse v. Dewey, 3 N. H. 
 535; Porter v. Goodman, 1 Cow. 413. 
 
 2Ta Smith V. Bell, 33 S. E. 684 (Ga). 
 
 28 Dewey v. Peeler, 161 Mass. 135, 42 Am. St. Rep. 390. 
 2» HoUIs V. Sales, 103 Ga. 75. 
 
 »o Thompson v. Bickford, 19 Minn. 17; Hanna v. Russell, 12 Minn. 
 80.
 
 § 63 AMENDING WRITS OF EXECUTION. 272 
 
 be improperly designated or altogether omitted, the 
 writ need not be quashed, but may be amended so as 
 to make it to be what it should have been in the first 
 instance.^^ 
 
 § 69. The Clause of Attestation may also be 
 amended.^" Thus an execution tested after the de- 
 fendant's death may be amended so as to bear teste 
 of the first day of the term, ^^ or, if tested out of term, 
 may be amended so as to be tested in term time.^* S<v- 
 if the court, place, or time at which the writ is to be 
 returned is improperly stated, the writ may be 
 amended.^^ And in case the clause of attestation be 
 entirely omitted, it may be inserted as an amendment 
 to the original writ.^** So if the writ be attested 
 in the name of the wrong person as chief justice, it 
 may be amended by striking out such name and in- 
 
 31 Furtade v. Miller, Barnes, 213; KicM v. Crowoll, 17 Ala. C47; 
 Relabel v. Preston, 5 East, 291; Walker v. Hawkey, 1 Marsb. 399; 
 Harrell v. Martin, 4 Ala. 650; Harris v. West, 25 Miss. 156; Saun- 
 ders V. Smith, 3 Kelly, 121; Cramer v. Van Alstyne, 9 Johns. 386; 
 Shoemaker v. Knorr. 1 Dall. 197; Bertlion v. Iveeley, 4 Yeates, 205;; 
 Goode V. Miller, 78 Ky. 235: Perkins v. Woodfolk. 8 Baxt. 480. 
 
 32 Haines v. McCormick, 5 Ark. 0G3; People v. Mont.;,'omery O. P ,. 
 18 Wend. 633; Newnham v. Law, 5 Term Rep. 577; Englehart t. 
 Dunbar, 2 Dowl. P. C. 202; Rex v. Sheriff, 1 Marsh. 344; Jackson v. 
 Bowling, 10 Ark. 578; Ripley v. Wairren, 2 Pick. 592. 
 
 33 Center v. Billinghurst, 1 Cow. 33; Lane v. Beltzhoover, Taney^ 
 110. 
 
 34 Jones V. Cook, 1 Cow. 313; Meyer v. Ring, 1 II. Black, 541; 
 Bprthon v. Keeley, 4 Yeates, 205; Baker v. Smith, 4 Yeates, 185; 
 Shoemaker v. Knorr, 1 Dall. 197. 
 
 35 Van Deusen v. Brower, 6 Cow. 50; Inman v. Griswold, 1 Cow. 
 199; Atkinson v. Newton, 2 Bos. & P. 3.36; Hart v. Weston, 5 Burr. 
 2588; Stone v. M.-irtin. 2 Denlo, 185; Hall v. Ayer, 9 Abb. Pr. 220; 
 Hunt V. Kendrick, 2 W. Black. 836; Simon v. Guruey, 5 Taunt. 605; 
 1 Marsh. 2:37; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Forward v. 
 Marsh, 18 Ala. 645; Harrison v. Agricultural Bank, 2 Smedes & M. 
 307. 
 
 86 Mclntyre v. Rowan, 3 Johns. 144.
 
 273 AMENDING WRITS OF EXECUTION. § Tu 
 
 serting tlio proper oue.^'' The signature of the clerk 
 may be added as an amendment.'*** 
 
 § 70. Amendment by Affixing Seal.— There are au- 
 thorities of a very higli cliararter '*" altirming that 
 the affixing of the seal of the court is essential to the 
 v^alidity of the original writ. Where this view is sus- 
 tained, a motion to amend by affixing the seal would 
 be unavailing, for no amendment could operate to the 
 extent of giving life to a writ which theretofore was 
 dead in law. P>nt where this view is not maintained, 
 the seal of the court, having been omitted at the issu- 
 ing of the writ, may afterward be affixed as an amend- 
 ment.^® It is scarcely necessary for us to add that, 
 in our judgment, if there be any occasion which more 
 than any other justifies the amendment of an execu- 
 tion, it is when it is in other respects in substantial 
 conformity to the law, but the clerk has omitted to 
 impress upon it the seal of the court. From a mere 
 inspection of the writ and of the statute, there can be 
 no doubt what omission has occurred and what will 
 supi)ly it. The writ being a judicial writ, the court 
 should at once, on its attention being called to the mat- 
 ter, direct of its own motion that the clerk perform, 
 
 87 Ross V. Liither. 4 Cow. 158. 15 Am. Dec. 341 ; Brown v. Aplin, 
 1 Cow. 203; Uniteil States v. Hauford, 19 .Tolins. 173; Henry v. 
 Henry, 1 How. Pr. 167; Spooner v. Frost, 1 How. Pr. 192; Nash v. 
 Bropliy. 13 Met. 47G. 
 
 38 Whiting V. Beebe, 12 Arlc. 421. 
 
 39 See § 46; Weaver v. Peasley, 163 III. 251, 54 Am. St. Rep. 460; 
 Gordon v. BodwelJ, 59 Kan. 51. 
 
 ■to Sawyer v. Baker, 3 Greenl. 29; Bridewell v. Mooney. 25 Ark. 
 524; Doniinick v. Eacker, 3 Barb. 17; Arnold v. Nye. 23 Mich. 2S6; 
 Corwith V. State Bank of Illinois. IS Wis. 560, 86 Am. Dec. 793; 
 Purcell V. McFarlnnd, 1 Ired. 34, 35 Am. Dec. 734; Clark v. Hcllen. 
 1 Ired. 421: Hall v. L.ukmoud, 50 Ark 113, 7 Am. St. Kep. bi; Taylor 
 V. Courtney, 15 Neb. 190. 
 Vol. I.— 18
 
 § 71 AMENDING WRITS OF EXECUTION. 274 
 
 nunc pro luiic, the duty so unquestionably resting 
 upon him when he issued the writ. 
 
 § 71. The Time within Which an Execution may be 
 amended has no limit. A sale of property may have 
 been made under execution, and for years may have 
 been confirmed by the silent acquiescence of all the 
 parties in interest. After time has thus elapsed, the 
 execution may for the first time be made subject to ob- 
 jection for some amendable informality. In such a 
 case, the court, irrespective of the lapse of time, will 
 either disregard the informality or order the execu- 
 tion to be amended. At all events, the mere lapse of 
 time does not of itself interpose any obstacle to the 
 amendment, and may even constitute an additional 
 reason for directing it to be made. We have already 
 shown thnt the power to amend is one which will be 
 exercised in the furtherance of justice. The fact that 
 the defendant in the writ has permitted it to be en- 
 forced without objection and that he or third persons, 
 at a distant day, seek to avoid its effect by suggesting 
 some error in its form or issuing is, of itself, a reason 
 for granting, rather than of withholding, leave to 
 amend, and certainly but few courts will reward his 
 or their laches by denying relief.*^ Among these few 
 are the courts of Texas. They make a distinction, 
 which they nowhere clearly explain, between what 
 they style amendments in matters of form and amend- 
 ments in matter of Substance; and hold, with respect 
 
 41 Adams v. Ilissins, 23 Fla. 1.3; Bybee v. Ashby, 2 Gilra. 151, 
 43 Am. Dec. 47; Lewis v. Lindley, 28 111. 147; Vogt v. Ticknor, 48 
 N. H. 242; Pliolps v. Ball, 1 .Tohiis. Cas. 31; Holmes v. Williams. 3 
 Cal. 98; Sickler v. Overtoil. 3 Pa. St. 325; Giles v. Pratt. 1 Hill fS. 
 C.) 239, 20 Am. Dee. 170; Galloway v. !\reKeitbon, 5 Ired. 12, 42 Am. 
 Dec. 153; Saltin v. Austin, 19 Wis. 421.
 
 275 AMENDING WRITS OF EXKCUTION. § 71^ 
 
 to matters of substance, that aiin-nduieuts will iioL be 
 authorized after a sale has been made under a writ. 
 They insist (hat when a writ is substantially defective, 
 any sale thereunder probably resulted in a sacrifice of 
 the def<'ndaut's property throuj^h its rcalizinj;- but an 
 inadequate price, because prudent persons declined to 
 compete at a sale likely or surely to be declare<l in- 
 valid. This result must follow decisions like those in 
 that state, but if they had, on the other hand, sus- 
 tained the ri<;ht to amend writs in proper cases after 
 sales made thereunder the evil they seek to avoid would 
 not have been called into bein<j;. Among the writs 
 held in this state to be nouaniendable after a sale 
 thereunder, because of defects in matter of substance, 
 were an execution against P. B. C. on a judgment- 
 against J. P, C.,*^ against C B. and \\m. 11. on a judg- 
 ment against C. B. and II. W. V. 11.;^=' and an execu- 
 tion commandiug a sale of the property of the execu- 
 tors named therein when the judgment authorized the 
 sale of the property of the estate in their hands as 
 such executors.** 
 
 ^ 71 a. The Effect of Ameniiing an Execution is gen- 
 erally to give the writ the same operation as if origi- 
 nally issued in due form.*"* Unless this were the case, 
 
 <2 Battle V. (;iKHlr.v. 58 Tex. 111. 
 
 « Morris v. I'.allcham. 75 Tex. Ill, IG Am. St. Rep. 874. 
 
 <* McKay v. Paris Exchange Bank, 75 Tex. 181, IG Am. St. Ilep. 
 884. 
 
 •»3 Clugfrage v. Duncau, 1 Serg. & R. Ill; Morse v. Dewey. 3 N. 
 n. 535; Abels v. Westervelt, 24 How. Pr. 284; Bourdoaux v. Treas- 
 urers, 3 McGuril, 142; Toomer v. Purkey, 1 Cons. Rep. 323, 12 Am. 
 Dec. 634; Porter v. Goodman. 1 Cow. 413; MeCormaek v. Melton, 1 
 Ad. & E. 331; Thorpe v. Hook, 1 Dowl. P. C. 501; Sickler v. Over- 
 ton, 3 Pa. St. 325; Jackson v. Anderson. 4 Wend. 474; Den v. Lecony, 
 1 Coxe (N. .T.). m: Hunt v. Kondrick, 2 W. Black. S:^G: Mackic v. 
 Smith, 4 Taunt. 32J; Saunders v. Smith, 3 C.a. 121; Phelps v. Ball.
 
 § 71a AMENDING WRITS OF EXECUTION. 276 
 
 the amendment would accomplish no useful purpose. 
 If an officer is sued for not executing a writ or for 
 negligence in its execution it may be amended pend- 
 ing that action or during the trial.'**^ If a sale has 
 taken place, the writ may be amended and as amended 
 may ever thereafter be offered in support of such 
 sale.^'' If the action is for false imprisonment the 
 defendant may have the ca. sa. under which he acted 
 amended to conform to the judgment on which it 
 issued, and then justify under the writ as amended.'*'* 
 The same action may be taken and the same result 
 accomplished where the defendant is sued for trespass 
 in levying the writ.'*" In many instances the amend- 
 ment of an execution may properly be described as 
 having no effect whatsoever. When the amendment 
 is to cure a clerical error or defect obvious from the 
 record, or, in other words, where the record discloses 
 the error and supplies the data for its correction, no 
 formal amendment is necessary, and the writ will, in 
 all collateral proceedings, be treated as amend^.*'^^ 
 It is true, there are some cases treating the amend- 
 ment of an execution as a matter within the discretion 
 
 1 Johns. Cas. 31; Cherry v. W'oolard, 1 Ired. 438; Suydam v. Mc- 
 Coon, Coleman's Cases, 59; Lewis v. Lindley, 28 111. 147; Durham 
 V. Heaton, 28 111. 264, 81 Am. Dec. 275; Adams v. Higgins, 23 Fla. 13; 
 Hall V. Lackmond, 50 Ark. 113, 7 Am. St. Rep. 84; Ware v. Kent, 
 2(5 So. 208 (Ala.). 
 
 46 Hargrave v. Penrod, Breese, 401, 12 Am. Dec. 201. 
 
 47 Lewis V. Lindley, 28 111. 147; Durham v. He.aton, 28 111. 264, 81 
 Am. Dec. 275; Jackson v. Anderson, 4 Wend. 474. 
 
 48 Holmes v. Williams, 3 Cainos, 98. 
 
 49 Porter v. Goodwin, 1 Cow. 413. 
 
 50 Den V. Lecouy, 1 Coxe (N. J.) Ill; Morse v. Dewey, 3 N. II. 5.35; 
 Sheppard v. P.land, 87 N. C. 163; GriswoUl v. Connolly, 1 W^oods, 193; 
 Corthell v. Egery, 74 Me. 41; Cluggage v. Duncan, 1 Serg. & R. 111. 
 Portis V. Parker, 8 Tex. 23, 58 Am. Dec. 95; Hunt v. Loucks, 38 
 Cal. 372, 90 Am. Dec. 404; Corwith v. State Bank, 18 Wis. .560, 86 
 Am. Dec. 79.".: Durham v. Ileatou. 28 111. 264. 81 Am. Dec. 275; 
 Wright y. Xostrand, 94 N. Y. 32, and other cases cited in § 72.
 
 ■277 AMENDING WRITS OF EXKCUTION. § 7Ia 
 
 of the court, to be granted or refused according to its 
 notions of justice.^^ If this view were correct, then 
 we do not understand how a writ can be treated as 
 amended in advance of an order authorizing its amend- 
 ment, for prior to that time it cannot be known how 
 the discretion will be exercised. But where the 
 amendment is proper, we conceive that its allowance 
 is not a matter of discretion. There being a valid 
 judgment and a writ obviously issued upon it, though 
 tainted by some mere clerical omission or defect, it 
 is the duty of the court to give due effect to such judg- 
 ment and writ, and all proceedings based thereon, at 
 least until some direct motion or proceeding is taken 
 to quash the writ or proceedings for irregularity, and 
 ^ven then the better practice is to amend the writ and 
 purge it of the irregularity rather than to destroy it, 
 and annul the proceedings taken for its enforcement.^^ 
 As a consequence of the general principle that void 
 writs are not amendable, the court, in determining 
 whether leave shall be granted to amend a writ, must 
 consider or determine whether or not it is void. 
 Hence, an order granting leave to amend is necessarily 
 an adjudication that the writ is amendable and not 
 void. Therefore, if such an order has been made and 
 the writ has been amended in conformity therewith, 
 -all persons over whom tlie court had jurisdiction in 
 making the order are bound by it, and are no longer at 
 liberty to assert that the writ is void, and cannot sus- 
 tain sales made, or other proceedings taken under it.'""' 
 
 ci Hayford v. Everett, 6S Me. 505. 
 
 "See § 78: Cheney v. Beall, 69 Ga. 533; but in this state the 
 code provides that the amendment of an exec-ution avoids a previous 
 levy thereunder. Beasley v. Bowden, 58 Ga. 154; Jones v. Parker, 
 €0 Ga. 500. 
 
 M Adams V. Iliggins, 23 Fla. 13.
 
 § 71b AMEM>1N(; WRITS OF EXECUTION. 2T& 
 
 § 71 b. The Effect of not Amending an Execution is 
 apparent from the principles stated and the authori- 
 ties cited in the preceding section. If leave to amend 
 is not sought and obtained, the plaintiff and others 
 claiming under the writ have not the advantage re- 
 sulting from the determination of the court that the 
 writ is amendable, and may therefore sustain sales 
 made under it. In other words, this question remains 
 an open one. Those claiming that the writ is amend- 
 able are, however, at liberty to urge their claim in 
 any proceedings in which it may be material, and if 
 they satisfy the court that such is the case, the writ 
 will usually be accorded the same effect as if it had 
 been amended upon leave granted thert^for.^* From 
 this rule, motions and other proceedings to quash or 
 recall the writ must be excepted. Upon the hearing 
 of such a motion, the court, though of the opinion 
 that tlie writ is amendable, may also reach the con- 
 clusion that justice will be promoted by quashing or 
 recalling it, and may therefore grant the motion in- 
 stead of directing an amendment. It is therefore ad- 
 visable in all cases where a writ is found to be in- 
 fected by amendable defects to procure an order 
 granting leave to remove them by an amendment, for 
 by such order the plaintiff and those claiming under 
 him are protected from the perils attendant upon a 
 motion to quash it, and are secured the advantage of 
 the adjudication involved in the order, to the effect 
 that the defects in question are amendable in their 
 character. 
 
 B4 De Loach v. bobbins. 102 Ala. 28S, 48 Am. St. Eep. 4G; Adams 
 V. Iliggius, 23 Fla. 28; Anderson v. Gray, 134 111. .'..50, 23 Am. St. 
 Kep. fiOO; Corthell v. Egery, 74 Me. 41; Den v. Leeouy, 1 N. J. L. 111.. 
 131; Sabin v. Austin, 19 Wis. 421.
 
 '27J A.MKNlJlN<-i WUILS OF EXECUTION. § T-' 
 
 § 72. Persons against Whom Amendments may be 
 
 Made, in (juite a iiumbcr ol" cases, the j^ciicral dec- 
 laration is made lliat an amendmeut of a writ will 
 not be made when it will prejudice the interests of 
 third persons.'""^ On examining these cases, it will 
 generally be found that the third persons against 
 whom the court refused to authorize an amendment 
 were not in a situation entitling them to any par- 
 tiality from the court. They were, in most cases, 
 cither the assignees in bankruptcy of the defendant, 
 or his personal representatives, the assignment on the 
 one hand and the defendant's decease on the other 
 having taken place subsequently to the issue of the 
 writ sought to be amended. Neither the assignees nor 
 rei)resentatives were purchasers for value, nor in any 
 respect the holders of any special equities; and, being 
 the mere successors of the defendant's interests, we 
 cannot understand why they were in condition to 
 resist anything to whicli his resistance, if made prior 
 to the assignment or decease, would have been un- 
 availing, liut conceding the rule to be too well 
 established by authority to be overthrown by argu- 
 ment, we conceive that it must be given a very re- 
 stricted application and must be confined to those 
 instances where a motion to quash the writ is 
 promptly made, and where no one but the plaintiff 
 can be injured by refusing the amendment. There 
 are two classes of third i)ersons w^liose interests may 
 be affected by a proposed amendment, namely, those 
 
 55 Brooks V. ITo(lsoii.-7 Mnn. & G. ',20. 8 Scott N. R. 22.''.; Hunt v. 
 Pasinan. 4 Manlo v<c S. ?,20; Phillips v. Tanuor. Bins. 237, 3 Moore 
 & P. riG2; Lovett v. Kibblewliito, C Taunt. 483; Webber v. Hutcbins, 
 8 Meos. & W. 319; Johnson v. Dobell, 1 Moore & P. 28; Cape Fear 
 Bank v. "Williamson, 2 Ired. 147; Ohio Life Ins. Co. v. Urbana Ins. 
 Co.. 13 Ohio, 220.
 
 § 72 AMENDING WRITS OF EXECUTION. 2S0 
 
 who have derived title from the defendant, and are 
 therefore interested in avoiding the writ; and, sec- 
 ondly, those who have made purchases, and are de- 
 raigning- title by aid of the writ, and therefore inter- 
 ested in maintaining its validity. The latter class 
 will no doubt be protected by amending the writ, if 
 it be amendable. In fact, it seems, so far as their 
 interests are involved, superfluous to order an amend- 
 ment; for Avhere an amendment is proper, it will, in 
 collateral proceedings, be treated as if actually 
 made.^^ In determining whether an amendment 
 should be allowed against the objection of third per- 
 sons, an inquiry must be made whether such persons 
 had any actual or constructive notice of the facts upon 
 which the claim to the amendment is based. If, by 
 inspecting the whole record in the case, they could 
 have ascertained that the proposed amendment would 
 be authorized, they must be regarded as charged with 
 constructive notice, and as holding their interest in 
 subordination to the right of amendmfMit.^'' "The 
 subsequent purchaser or creditor being chargeable 
 with constructive notice of what is contained on the 
 record — if he has there sufficient to show him that all 
 the requisitions of the statute have probably been 
 complied with, and he will, notwithstanding, attempt 
 to procure a title, under the debtor — he should stand 
 
 B« Den V. Lecony, Coxe, 111; Stephens v. White. 2 W^nsh. (V;i.) 
 20.3; Williams v. Brown, 28 Iowa, 247; Hunt v. Loucks, 38 Cal. 372. 
 IK) Ara. Dec. 404; Cooley v. Brayton, 16 Iowa, 10; Corwith v. State 
 Bank of Illinois, 18 Wis. 560, 8(i Am. Dec. 793; Durliam v. Heaton, 
 28 111. 264, 81 Am. Dec. 275; Morrell v. Cook, 31 Me. 120; Doe v. 
 Gildart, 4 How. (Mi.ss.) 2G7; Toomer v. Purkey, 1 Const. Ct. 324, 12 
 Am. Dec. 634; Hubbell v. Fogartie, 1 Hill (S. C), 1G7; Giles v. Pr.itt, 
 1 Hill (S. C), 2.39, 26 Am. Dec. 170; Owen v. Simpson, 3 Watts, 87; 
 Morse V. Dewey, 3 N. H. 535; Sabin v. Austin, 19 Wis. 421. 
 
 67 Fairfield v. Paine, 23 Me. 498; Rollins v. Rich, 27 Me. 557.
 
 2S1 AMENDING WRITS OF EXECUTION. § 72 
 
 charjijc'jiblo with notice of all facts the existence of 
 which is indicated and rendered probable by what 
 is stated in the record, and the existence of which can 
 be satisfactorily shown to the court. And in such 
 cases amendments should be allowed, notwithstand- 
 ing the intervening interests of such purchaser or 
 <reditor." ^® 
 
 68 Wbittler v. Varney, 10 N. H. SOL
 
 § 73 QUASHING WRITS OF EXECUTION. 28^' 
 
 CHAPTER VII. 
 
 QUASHING WIMTS OF EXECUTION. 
 
 § 73. Void or voidable writs may be. 
 
 § T^a. Classification of grounds Tor vacating. 
 
 § 74. Notice of motion. 
 
 § 75. Who may apply for, and to what cotirt. 
 
 § 7(J. Time Avithiu which motion for should be made. 
 
 § 77. Grounds for quashing for errors in issuing. 
 
 § 78. Quashing for errors in form. 
 
 § 7'J. In Ceorgia, by affidavit of illegality. 
 
 § bO. Consequences of quashing. 
 
 § 73. Void or Voidable Executions may be Quashed. 
 — Whenever an execution has been improperly issued, 
 the most speedy and convenient, and in most cases 
 the only, remedy of him against whom it runs, is by 
 motion to quash or set it aside. Executions which are 
 liable to be thus vacated are divided into two great 
 classes, namely, void and voidable. A void writ is on(' 
 which can have no force whatever, unless perhaps as 
 a justification to an officer having no notice of its in- 
 ^validity; while a voidable writ is one which, though 
 erroneous, is valid until vacated by some proper pro- 
 ceeding. It is true that these definitions may be of no 
 material assistance in enabling the practitioner to de- 
 termine whether a particular writ belongs to the one 
 class or to the other; for they state rather the result 
 of the writ when adjudged to belong to one of these 
 classes than the indicia by which it may be properly 
 classified. Nor, in view of the many conflicting deci- 
 sions, is it possible to state these indicia with any de- 
 gree of confidence. An execution from a court having
 
 2S3 QUA.SlllNG WlllTb OF EXECUTlUN. § To 
 
 uo authority to issue executions, or from a court no 
 louj^er in existence, or upon a voi<l jiHlj^nieut, or a 
 judgment never rendered, would uii(l(nil)i(M]ly be void. 
 The same may be attirmed of executions issued by 
 some one having no authority to issue executions. 
 Executions on satisfied judgments, or against a de- 
 fendant whose property cannot be taken in execution, 
 or for or against a sole plaintiff or defendant who died 
 prior to the teste of the writ, when there has been no 
 revivor — are, according to a preponderance of the au- 
 thorities, void. Various errors in issuing the writ, .as 
 at an improper time, or in an improper form, may be 
 urged as grounds for declaring it void, and will be re- 
 ceived with different degrees of attention in different 
 courts. The decisions upon these subjects have been 
 considered in the second and third chapters of this 
 worlc. AN'lien a writ is void, it can derive no validity 
 from the defendant's inaction. He is not compelled to 
 move to have it vacated, lie may disregard it alto- 
 gether, and may, at any time, successfully resist any 
 claims based upon it. It may, however, be employed 
 to cloud his title, or to subject him to various an- 
 noyances. The better course for him is to have it 
 quaslied. And that courts will vacate void process, 
 and also process based on void judgments, and there- 
 by relieve the defendant from annoyance, there can bo 
 no doubt.^ Hence, if a judgment, as originally en- 
 tered, foreclosing a lien, does not declare any personal 
 liability against the defendant, and the pleadings are 
 not such as to necessarily establish such a liability, and 
 
 1 Mabry y. State, 9 Tors:. 208: Avery r. R.ibcock. :;.-. 111. 17.-; 
 Kroess v. Hotiilinir. 90 Cal. 017; lUcb v. Kisor, Gl Ca. P,70: Amy v. 
 Smith. 1 Mot. (Ky.> 529: Ex parto Jamos. '>9 "Mo. SO: Xcwton v. New- 
 ton, 32 Mo. App. 1G2; Cuuniugham v. Wrigbt, 27 111. App. 334.
 
 § 73 QUASHING WRITS OF EXECUTION. 284 
 
 the court af terwaid orders the judgment to be amended 
 and directs the docketing of a judgment against 
 the defendant for a deficiency arising after the sale of 
 the property subject to the lien, such amendment be- 
 ing void, the court may quash the execution, though it 
 refused to vacate the order directing the amendment/'* 
 The statement that an execution will be quashed if is- 
 sued on a void judgment is but another mode of affirm- 
 ing that an execution must be supported by a judg- 
 ment. If no judgment has in fact been rendered, 
 there can be no right to execution though the jury has 
 returned a verdict on which a judgment might or 
 should have been entered, and any writ issued in ad- 
 vance of the rendition of the judgment should be 
 quashed.^ 
 
 This power is not, so far as we are aware, restricted 
 to courts of any class. On the contrary, it may be ex- 
 ercised by courts of every class. A justice of the peace 
 who has issued an execution in which he has included 
 illegal fees may recall it before action has been taken 
 thereunder and thereby relieve himself from liability 
 for his wrongful act.* Courts of chancery also exer- 
 cise a superintending authority over their writs and 
 will quash or recall them when they have been improp- 
 erly issued, and even when properly issued, if it is no 
 longer proper to execute thern.^ 
 
 The remedy by motion to quash is often exclusive. 
 Instead of resorting to such a motion or proceeding, a 
 suit may be brought to enjoin or prohibit further action 
 under the writ. It is usually a sufficient answer to 
 
 2 Scamman v. Bonslett, 118 Cal. 293, 62 Am. St. Rep. 226. 
 s Lowther v. Davis. 33 W. Va. 132. 
 * Chase v. De Wolf, 69 111. 47. 
 
 sWindnim v. Porker, 2 Leish, 3G1 ; Chapin v. .Tamos, 11 R. I. 86. 
 23 Am. Rep. 412; Snavely v. Ilarkrader, 30 Gratt. 492.
 
 285 QUASHING WRITS OF EXECUTION. S 73a 
 
 such a suit or proceeding that au adequate remedy e^i. 
 isted iu the court whence the writ issued hy motion to 
 quash or recall it." 
 
 § 73 a. Classification of Grounds for Vacating.— An 
 execution may be quashed — 1. When no writ could 
 properly issue at the time of the issuance of the writ 
 in question; and 2. AYhen, though a writ of execution 
 could properly issue, the one sought to be vacated was 
 issued without authority, or by some person not author- 
 ized to issue it, or is irregular in form, or not warranted 
 by the judgment on which it is based, or although 
 warranted when issued, some fact subsequently occur- 
 ring has made its enforcement improper. The cases of 
 the first class may in turn be classified as including, 
 1. Writs issued upon void judgments. 2. Writs issued 
 upon judgments which have been satisfied or other- 
 wise rendered inoperative, and 3. Writs issued on valid 
 judgments but at a time when the right to execution 
 had not accrued or had been suspended by operation 
 of law, by an order of court, or by the agreement of the 
 parties. 
 
 The motion to quash is, in no sense, a revisory or ap- 
 pellate proceeding directed against the judgment. An 
 irregular or erroneous judgment will, as long as it re- 
 mains in force, support an execution. Hence an exe- 
 cution will not be vacated because the judgment was 
 erroneous or irregular, nor will such error or irregular- 
 ity, antecedent to the judgment, be considered by the 
 court on motion to quash the execution.'^ By this we 
 
 « Atkins V. Siddons, GG Ala. 4ri3; Martin v. Atkinson, lOS Ala. 
 314; "Wordehoff v. Evirs. IS Fla. 399; Coward v. Cliastaln. 99 N. C. 
 443, 6 Am. St. Rop. 533: Dnclioneau v. Ireland. ."> Utah. lOS. 
 
 7 Sohultzo V. Stato. 43 Md. 29."); Galena & S. W. R. R. v. Ennor. 9 
 III. App. 159; Ila'l v. Clafjuvlt, c.', Md. .^7: Boyle v. Robinson, 7 Har. 
 & J. 2U0; Stephens v. WiLsou, 14 B. Mou. SS.
 
 5 73a QUASHING WRITS OF EXECUTION. 2SG 
 
 mean to assert only that no errors or irregularities in 
 tbe proceedings anterior to the judgment, or at the 
 Time of its entry, are available as grounds for relief, 
 unless they are of such a character that the judgment, 
 if permitted to stand, and the proceedings taken by 
 virtue of its authority, must be held void. Hence it is 
 not material that the error or irregularity complained 
 of is manifest from an inspection of the record and 
 that the complaint should have been adjudged insuffi- 
 cient,® or for some other reason the court ought not to 
 liave given tlie judgment which it in fact rendered.^ 
 This proceeding cannot be resorted to for the purpose 
 of escaping from any error of law or in fact, inducing 
 or influencing the rendition of the judgment, except 
 tliat of proceeding to render it when the court was 
 without jurisdiction of the subject matter or of the 
 parties.^^ A motion to quash an execution may 
 <loubtless be joined with a motion to vacate the judg- 
 ment on which it was founded on the ground that such 
 judgment is void, but the mere motion to quash the 
 writ cannot itself involve any change in or correction 
 of, the judgment. "A motion to quash an execution, it 
 would seem, could never involve interference with, or 
 change of, the judgment of the court. The inquiry on 
 such motion must needs be whether or not, under the 
 judgment rendered and the attendant facts, the process 
 of execution and its enforcement are justified under 
 the law." 
 
 Nor is a motion to quash the execution the proper 
 
 8 Seaman v. Paddock, 51 Mo. App. 4oG. 
 
 9 Edwards v. llollinfrs, 103 Cal. 204; Town of Hay ward v. Pi- 
 iiK'ntnl, 107 C:il. 380; Green v. Alexander, 88 Ga. 161; Johnson v. 
 Grave, GO Mo. App. 170. 
 
 loindinn etc. D. Dist. v. Root, 28 111. App. 59G; Gerhart v. Fout, 
 7] -Mo. App. 138.
 
 2S7 QUASHING WRITS OF EXECUTION. § 74 
 
 raode of revising or controlling the aets of tlie officer 
 who is seeking to enforce it. If he h'\ i( s upon property 
 not subject to execution, this does not make the writ 
 irregular. The remedy in such case is by some pro- 
 ceeding against the officer to recover the property 
 improperly seized. His unlawful act furnishes no 
 ground for vacating the writ.*^ This rule is equally 
 applicable whether it be claimed that the officer has 
 seized proix-rty not subject thereto/" or has insisted 
 upon charging excessive fees,*^ or denied the judgment 
 (k'btor some privilege to which he was entitled,^* or the 
 writ, being for the sale of specified articles, the sheriff 
 h'vied upon others.*'"^ This must necessarily be so be- 
 cause the motion is directed against the writ and 
 founded upon a supposed invalidity either in it or the 
 judgment, and the writ is not the act of the sheriff, nor 
 <an it be rendered invalid or inoixa-ative by him excej^t 
 through his taking proceedings resulting in its satis- 
 faction or suspension. 
 
 A motion to quash may be acted on at any time when 
 the court is in session, without any regard to the term 
 of the court at which the judgment was rendered. The 
 <'ourt in such action simply supervises the action of its 
 ministerial officers so as to prevent misuse and abuse 
 of its process.*^ 
 
 § 74. Notice of Motion for. — Whenever the defend- 
 ant seeks to have a writ against him quashed, he should 
 apply to the court on motion, giving his adversary 
 
 11 Hnsty V. Simpson, &4 N. C. 500. 
 
 12 itoth V. Insloy. Sij Cal. 134; Gallon v. Lafayette Co., 125 Mo. 
 i;7; Hasty v. Sinii»son, 84 N. C. 590. 
 
 't Sheboysiiu Uauk v. Trilliiij?. 75 Wis. 163. 
 
 14 Dougla.'? V. Sln,aer M. Co., 102 Ga. 5G0. 
 
 15 Fisher v. .Tones. 0.'^> Ca. 717. 
 lailanisin v. Ilniinu^r. ;>".) Ala. i;00.
 
 § 74 QUASHING WRITS OF EXECUTION. 2SS 
 
 notice of the intended application, and of the grounds 
 upon which it is based. The party whose writ is 
 sought to be vacated, and any purchaser deraigning 
 title therefrom, are entitled to this notice, and any 
 action against them in its absence is erroneous. This 
 is particularly the case where the existence of the ir- 
 regularity complained of cannot be determined from an 
 inspection of the record.*" In truth, the failure to 
 serve notice upon new parties to be affected is of more 
 consequence than a mere error or irregularity. The 
 notice is jurisdictional and one who is not served with 
 it is not bound by an order based upon it and may still 
 rely upon the quashed writ to the same extent as if no 
 proceeding had been taken to vacate or recall it.*^ The 
 notice should be served personally on the parties inter- 
 ested. After judgment has been recovered, the author- 
 ity and duty of the plaintiff's attorney generally cease. 
 Service of notice of motion to quash should therefore be 
 served upon the plaintiff, and not upon his attorney in 
 the case, unless it appears that such attorney is still 
 retained by plaintiff, and has authority to represent 
 him on the hearing of the motion.*^ The proceeding 
 to quash is a new or original proceeding, from which 
 fact two results follow: 1. It may, though the party 
 appeared in the action by one attorney, be prosecuted 
 
 17 Dazey v. Orr, 1 Scam. 535; Irou v. Callard, 1 A. K. Marsh. 423: 
 Bentley v. Cummins, 8 Ark. 490; Osburn v. Cloud, 21 Iowa, 238; 
 Eckstein v. Calderwood, 34 Cal. 658; Linn v. Hamilton, 34 N. J. L. 
 305; Payne v. Tayue's Ex'r, 8 B. Mon. 391; Mann v. Nicbols, 1 
 Smedes & M. 257; State Bank v. Marsh, 10 Ark. 129; McKissack v. 
 Davis, 18 Ala. 315; Irons v. McQuewan, 27 Pa. St. 39(5, 67 Am. Dec. 
 4.56; Lyster v. Brewer, 13 Iowa, 461; McKinney v. Jones, 7 Tex. 
 598, 58 Am. Dec. 83; National F. Co. v. McClintock, 162 Pa. St. 141. 
 
 IS Lock V. Slusher (Ky.), 43 S. AV. 471; Duncan v. Brown, 15 S. C. 
 414; Freeman v. Dawson, 110 IT. S. 264, 
 
 18 Duncan v. Brown, 15 S. C. 414.
 
 289 QUASHING WRITS OF EXFX'UTION. § 75 
 
 in his behalf by another without takin*^ any measures 
 to discharge the orij^inal attorney or to substitute any 
 one in his stead,-" and 2. Though the person or persona 
 to be affected by the granting of the motion have ap- 
 peared iji the action by an attorney, they cannot be 
 brouglit before the court merely by serving notice on 
 him. He does not, by virtue of his original employ- 
 ment, continue to represent them after the entry of 
 the judgment in respect to proceedings commenced to 
 vacate the writ issued for its enforcement. They must 
 again be brought before the court by some notice of a 
 jurisdictional character.-^ The notice, especially if 
 the ground of the motion is that there was no author- 
 ity to issue the writ, need not describe the precise irreg- 
 ularity upon which the moving party will rely, but is 
 sufficient if it states that the motion is to quash or 
 recall the writ "for the reason that it was wrongfully, 
 unlawfully and improperly issued." ^^ 
 
 § 75. Who may Apply for and to What Court. — 
 The general rule that none but the parties to a suit 
 will be allowed to interfere with its management is 
 equally applicable to the writ of execution wiiich may 
 be issued at the termination of the action. None but 
 the parties to the writ, who are liable to be injured by 
 it, can complain of irregularities with which it may be 
 infected. Hence no stranger to the action can obtain 
 an order quashing the execution.^^ To this rule an ex- 
 
 20 Bu.'U V. Buell, 92 Cal. 393. 
 
 21 Duncan v. Brown, 15 S. C. 414. 
 21! BueU V. Bu(>ll. 92 Cal. 393. 
 
 23 Bonnell v. Nocly. 43 111. 2SS; Fiske v. T.amoroanx, 4S Mo. 523; 
 
 GouTt-rnour v. Warner. 2 Sand. G24; Oakley v. Becker, 2 Cow. 4ri4; 
 
 Ilowland v. Kalph. 3 Johns. 20; Frink v. Morrison. 13 Abb. Vr. 80; 
 
 Perrin v. Bowes, 5 U. C. L. J., O. S., 13S; Wallop v. Scarburgh, 5 
 
 Vol. I.-19
 
 § 76 QUASHING WRITS OF EXECUTION. 290 
 
 ception probably exists in favor of persons who, though 
 not parties to the action, must necessarily be preju- 
 diced by the enforcement of the writ, such as subse- 
 quent purchasers, lienholders, and execution or attach- 
 ment creditors. They may not move to vacate the writ 
 for the purpose of taking advantage of an error in form 
 or any other irregularity not of a substantial character; 
 but if the writ as issued must prejudicially affect them, 
 and this result could not have followed a writ issued in 
 the proper form or for the proper amount, then per- 
 sons thus claiming under the defendant should have 
 the right to have the writ quashed to the extent that it 
 erroneously injures them.^* Application to quash a 
 writ must always be presented to the court whence it 
 issued. One court will not entertain a motion to set 
 aside the process of another court.^^ 
 
 § 76. The Time Within Which a Motion to Quash an 
 
 execution may be made appears to have no limit. 
 The motion may be made and granted after the writ 
 has been returned fully executed,^^ except in Texas, 
 where such motion appears not to be entertained after 
 the return day, and the actual return of the writ.''' If 
 the writ was void, so that no delay or acquiescence on 
 the part of the defendant could give validity to pro- 
 ceedings taken under it, doubtless the court wherein it 
 
 Gratt. 1; Morton v. Gahona, 70 Ga. 569; Hanika's Estate, 138 Pa, 
 St. 330. 21 Am. St. Rep. 1)07. 
 
 24 .Taffiay v. Saussinan. 52 Hun. 5G1. 5 N. Y. Supp. 629. 
 
 25 Pettus V. Elgin, 11 Mo. 411; McDonakl v. Tillman, 17 Mo. 6('3; 
 Nelson v. Brown, 23 Mo. 13; Mellier v. Bartlett, 89 Mo. 134; Arthurs 
 V. Villeres, 43 La. Ann. 414; Scrutehfield v. Sauter, 119 Mo. 61.5. 
 
 28 Pinckney v. Hegeman, .53 N. Y. 31 ; Page v. Coleman, 9 Port. 
 275; Isaacs v. The Judge, .5 Stew. & P. 408. 
 
 2 7 Meader Co. v. Aringdale, 58 Tex. 447; Berry v. Perry, 81 Ala. 
 103.
 
 129.1 QUASHING WRITS OF EXECUTION, § 77 
 
 issued may, regardless of the lai)se of time, vacate it on 
 the same principle that it wouhl strike from its records 
 a void judj^nient. ^^'ll(*^e, however, the writ, if per- 
 mitted to stand, may support sales made by virtue of it, 
 and such sales have been made and conveyances exe- 
 <'uted thereunder, by virtue of which strangers to the 
 action have become interested, the courts will, as a 
 general ruh^, not interpose, but will leave the defend- 
 ant and those claiming under him to assert any claim 
 they may have by some independent action or suit.^** 
 While courts have the power to quash executions at 
 any time, they are not disposed to exercise this power 
 in behalf of the negligent. They require motions in 
 ordinary cases to be made and prosecuted with dili- 
 gence; and where the error complained of consists in a 
 mere irregularity, any considerable delay on the part of 
 the applicant will be treated as a waiver of the irregu- 
 larity, and an irrevocable renunciation of liis right to 
 ijuash the writ."'*^ 
 
 § 77. Grounds for Quashing.— We have already 
 endeavored to show the time and circumstances in 
 which executions may properly issue; ^" and have at 
 the same time attempted to show the consequences of 
 any irregularity in such issuing when the writ was, by 
 the parties, permitted to stand. In case, however, that 
 the party against whom the writ runs seeks to avail 
 himself of its erroneous issuance, he may do so by a 
 
 28 Day V. Graham, 1 Gilm. 435; Jenkins v. Merrlweather, lOl) 111. 
 C47. 
 
 -9 Henderson v. Henderson, GO Ala. 556; Bristow v. Payton, 2 T. 
 B. Mou. 91. 15 Am. Dec. 134; Frean v. Garrett, 24 Hun, 161; Bow- 
 man V. Talman. 2 Robt. 633; Hapgood v. Goddard, 26 Vt. 401; Mc- 
 Kinney v. Scott, 1 Bibb. 155; Murphrey v. W'ood, 2 Jones, 63; De 
 Crano v. Mussdniau, 27 Leg. Int. 358; Berry v. Perry, 81 Ala. 103- 
 
 30 See Chapter II.
 
 § 77 QUASHING WRITS OF EXECUTION. 292 
 
 motion to quash; and such motion, at least when 
 promptly made, will ordinarily be granted. Hence, a 
 motion to quash will prevail Avheu the judgment on 
 which it issued was satisfied ,^^ or the writ was issued 
 by the clerk without the direction of the proper author- 
 ity,^- or before the time for issuing had arrived,'^^ or 
 contrary to the agreement of the parties,^^ or after a 
 year and a day without reviving the judgment,^^ or 
 when, in the absence of such revivor, the writ was 
 tested after the death of a sole plaintiff,^^ or of a sole 
 defendant,^" or after the marriage of a female, she be- 
 ing sole plaintiff,^^ or when issued after the defendant 
 had, in bankruptcy proceedings, been discharged from 
 
 31 McHeiiiT V. Watkins. 12 111. 233; Russell v. Hugunin, 1 Soam. 
 502, 33 Am. Dtc. 423; Adams v. Siuallwood, 8 Jones, 2.j8; Barnes v. 
 Robinson. 4 Yers. ISO; Smock v. Dade, 5 Rand. 639, IG Am. Dec. 
 TsO; Thompson v. Eaughliu, 91 Cal. 313; Conley v. Maher, 93 Ga. 
 781; Sandlierj? v. Fapiueau, 81 111. 440; Wyatt v. Fromme, 70 Mo. 
 App. 013: Scutt V. Phillips, 140 Pa. 51; Howell v. Thomason, 34 W. 
 Va. 794. 
 
 3- Shackelford v. Apperson, 6 Gratt. 451. 
 
 33 Allen V. Poi-tlaud Stage Company, 8 Greenl. 207; Bartlett v. 
 Stinton, L. R. 1 C. P. 483; 3 L. J. Com. P., N. S., 238; Blashfield v. 
 Smith, 27 Hun, 114; Knights v. Martin, 155 111. 480; Lowther v. 
 DaA'is, 33 AV. \ii. 132; Folan v. Folan. 59 Me. 506. 
 
 3 4 Feagley v. :Norbeck, 127 Pa. St. 238. 
 
 36 Bacon V. Red, 27 Miss. 409; Bolton v. Lansdown, 21 Mo. 39f>; 
 Azcarati v. Fitzsimmons, 3 Wash. C. O. 134; Lytle v. Cinn. Manf. 
 Co., 4 Ohio, 459; Reynolds v. Corp, 3 Caines, 270; Blayer v. Baldwin, 
 2 Wils. 82; Sympson v. Gray, Barnes^ 197; Noe v. Conyers, 6 J. J. 
 Marsh. 514; Goodtitle v. Badtitle, 9 Dowl. P. C. 1009; Moore v. Bell, 
 13 Ala. 409; Trail v. Snouffer, 6 Md. 308; State v. Brookover, 38 W. 
 Va. 141. 
 
 30 Wingate v. Gil son, 1 Mnrph. 492; Harwood v. Murphy, 1 Green 
 (N. J.), 193; Morgan v. Tayler, 38 N. .1. L. 317. 
 
 37 Bentley v. Cummins, 4 Eng. 487; Davis v. Helm, 3 Smedes & M. 
 17; Harrington v. O'Reilly, 9 Smedes & M. 216, 48 Am. Dec. 704. A 
 fieri facias issued at two o'clock P. M. was set aside on showing 
 that the defendant died at eleven o'clock A. M. of the same day. 
 Chick V. Smith, 8 DoavI. P. C. ,337; 4 .Tur. 86. 
 
 88 Johnson v. Parmley, 17 Johns. 271.
 
 *JU3 QUASHINC; WILITS OF EXECUTION. § 77 
 
 all fiii'llicr liability iindor the judgment; '"* but not 
 when defendant had merely tendered the plaiutill" the 
 amount of tho judgment, wKliout bringing the money 
 into eouit.'^* An execution may also bequashed because 
 it states a dilTeivnt rate of interest from that stated in 
 the judgment,^* or varies from the judgment in some 
 other respect,'*^ as when, being in replevin, it omits the 
 clause permitting the ollicer to accept the return of the 
 property,^^^ or is against defendant personally when it 
 ougiit to be against him as surviving trustee,"" or is 
 against two defendants for amounts for which they are 
 severally liable, or is issued by a person acting as clerk 
 without any authority to so act,*^ or where some mo- 
 tion is pending which has the effect to stay execution,*** 
 or because it does not name the person whose property 
 is to be seized. "*' 
 
 The grounds for quashing executions which we have 
 considered in this section are of a substantial charac- 
 ter, and some of them, if maintained, extend beyond the 
 vacating of the writ in question and show that no 
 further writ should ever be issued. Thus, if it is 
 claimed that the Avrit assailed issued when the court 
 had no longer any authority to enforce the judgment, 
 the sustaining of the motion is in effect an adjudica- 
 
 39 r.inn V. Hamilton, 34 X. ,T. L. 305; Davis v. Shaploy. 1 Barn. & 
 Ado'..5!; Barrow v. I'oile, 1 Barn. & Adol. (>29; Ilumplircys v. Kniglit, 
 6 Biui,'. .".72; Alcott v. Avery, 1 Barl>. Cli. 347; Millious v. Aicardi, 51 
 AlA. .5!M; Ilerrlidi v. McDouald. 80 Cat. 472. 
 
 *■• Sliuiuaktr v. Niclu^ls. ti Gratt. ."92. 
 
 ♦1 FowHces V. Puppeiilioinier. 4 Lea, 422. 
 
 *- Dawes v. I'aw(S. 43 Atl. 984 (N. J. L.). 
 
 *i Diirnan v. Benliam etc. Co., 52 S. W. 38 (Tenn.). 
 
 ** Alser V. Conner. 17 Hun. 4.'j. 
 
 ♦3 Taney v. Woodinansee, 23 W. Va. 709. 
 
 «6 Danii'Isnn v. Northwestern F. Co.. 55 Fed. Rep. 49. 
 
 •*7 Uaynes v. Kicliardsoii, 01 (Ja. 390.
 
 § 78 QUASHING WRITS OF EXECUTION. 2D4 
 
 tion that no writ can ever issiio,'*^ while, on the other 
 hand, if the ground of the motion is that the writ issued 
 without first aslving leave of the court, the quashing of 
 the writ must leave the plaintiff at liberty to make 
 proper application; and perhajis the court in hearing 
 the motion to quash may deny it on the ground that if 
 leave had been sought it must necessarily have been 
 granted.'*'* 
 
 If the ground of a motion to quash or recall a writ 
 is that the judgment has been satisfied or that the 
 defendant has been relieved by his discharge in bank- 
 ruptcy or insolvency proceedings, and the facts are 
 conceded or established by record evidence, there can 
 be no impropriety in the court's proceeding, but if, on 
 the other hand, a substantial issue of fact is presented, 
 it is manifest that the parties should not be required to 
 try it upon a mere motion, in the hearing of which there 
 can be no jury trial and rarely any opportunity for the 
 oral examination and cross-examination of witnes.ses. 
 "Where the judgment is alleged to have been satisfied 
 in fact, the court may doubtless entertain a motion to 
 have the satisfaction entered of record, and may grant 
 such motion and quash any outstanding execution, if 
 the facts are alleged or clearly established. If, how- 
 ever, the facts are not conceded, and an issue of fact 
 is presented, the court ought not to d(^termine such 
 issue upon motion, but should leave the parties at lib- 
 erty to try it in some appropriate suit." ®* 
 
 § 78. Quashing for Errors in Form.— The quashing 
 
 of executions which were authorized to be issued at 
 
 4 8 Bnell V. Buoll, 92 Cal. 393; Dorland v. Hansou, 81 Cal. 202, 15 
 Am. St. Rep. 44. 
 
 4« Frean v. Garrett, 24 Iliin, 161. 
 60 Freeman on Judgments, § 4S0. -
 
 205 QUASHING WRITS OF EXECUnON. § 78 
 
 tho timo wlion tlicv were sued out, but which are not 
 in propor form, is a question upon which the practice 
 of the courts is variant. I'or substantial iiTegularities 
 in the form of tlie writ, such as are of so serious a 
 character as to be incurable by amendment, there can 
 be no doubt of the propriet3' of setting aside the whole 
 writ. But what irregularities are substantial in this 
 sense, and to this extent, is something about which the 
 courts do not usually agree, as we have shown in the 
 chapter on the form of original executions. The vast 
 majority of writs liable to objection for matters of form 
 are capable of being set right by comparison with the 
 judgment. The informality is usually a clerical mis- 
 prision for whicli the parties are not justly blamable, 
 and which is not so culpable that it ought to be fol- 
 lowed by any severe penalty. In all probability, it 
 has not injnn d the complainant; and, if capable of 
 inflicting such injury, its power to do so may be 
 destroyed by an amendment making it conform to the 
 judgment. Numerous cases may, no doubt, be found 
 in the reports, in which, for harmless informalities or 
 variances, writs have been quashed. The decisions, 
 however, show a tendency, strong at the first and still 
 increasing, to correct rather than to destroy; to re- 
 spond to a motion to quash by refusing such motion, 
 and ordering the writ to be so amended as to free it 
 from all objection, ^^ whenever this can be done by 
 reference to the record. There are cases which seem to 
 afiBrm the general proposition that an execution will be 
 
 61 Newnliani v. Law. .5 Term Hop. ~u~: Sliaw v. ^Maxwell. G Term 
 Bep. 4.")0; Mouys v. Leake, 8 Term Rep. 41G. note a: Stevenson v. 
 Castle. 1 Chitty. .340; Saunders v. Ky. Ins. Co., 4 Bibb. 471; Mitch- 
 ell V. Chesnut, 31 Md. 521: Goodman v. Wallver. 38 Ala. 142: Deloach 
 T. State Panic. 27 Ala. 437: Thompson v. Roiidurant, 15 Ala. 34G. 50 
 Am. Dec. 13G; Sheppard v. Malloy, 12 Ala. 5G1.
 
 § 78 QUASHING WRITS OF EXECUTION. 296 
 
 quashed for a variance between it and the judgment. ^^ 
 In Kentucky, when an execution was issued for too 
 small an amount, it was said that the projjer remedy 
 of the plaintiff was by motion to quash.^* No doubt 
 there are other reported cases, in which the proposi- 
 tion that an execution may be quashed because for 
 either too large or too small ^* an amount finds encour- 
 agement. But the preponderance of authority, both 
 English and American, negatives this proposition, and 
 establishes the rule that for variance in amount an 
 execution may be corrected by the record, but will not 
 be entirely set aside. ^^ Of course, the refusal of the 
 courts to quash writs because of some irregularity 
 therein and the directing amendments instead is based 
 upon the ground that the irregularity has been of no 
 injury to the moving party and that it is unjust to pun- 
 ish the plaintiff, and to deprive him of some right, be- 
 cause of an error of an officer in issuing the w^rit, to 
 which the jdaintiff did not contribute. Where, on the 
 contrary, it appears probable that the error has prej- 
 udiced the moving party, relief should be granted him, 
 especially where to do so will work no substantial 
 wrong to the plaintiff. Thus, property may have been 
 sold for a sum so far below its market value as to jus- 
 
 62 Noe V. Lawless, 6 J. J. Marsh. .^.14; Reese v. Burts, 30 Ga. .505; 
 Newman v, Willi tts, 60 111. 519; Flint v. Phipps, 20 Or. 340, 23 Am. 
 St. Rep. 124. 
 
 63 Brown v. .Julian. 5 .T. .T. Marsh. 312. 
 
 64 Coltbolrl V. Childer, 4 Scott N. R. GTS; 4 Man. & G. 62; 1 Dowl., 
 N. S.. 726; Webber v. Iliitchins, 8 Mees. & W. 319; 1 Dowl., N. S.. 95. 
 
 65 Mouys V. Leake, 8 Term Rep. 410, note a; Kin.iJC v. Harrison. l."» 
 East, 615; Murphy y. Lewis, Hemp. 17; Todd v. McClanahan's Heiis, 
 1 J. J. Marsh. 356; Knight v. Applegate's Heirs, 3 T. B. Mon. 3:18; 
 Commonwealth v. Hamilton, 4 T. B. Mon. 133; Sheppard v. Malloy, 
 12 Ala. .501; Hunt v. Loucks, 38 Cal. 376, 99 Am. Dec. 464; Ilollings- 
 worth V. Floyd, 2 Har. & G. 87; Tilby v. Best, 10 East. 103; Bogle 
 V. Bloom, 36 Kan. 512; St. Louis etc. R. Co. v. Rierson, 38 Kan. 359.
 
 297 QUASHING WRITS OF EXECUTION. § 79 
 
 tify tlio infercnco that the biddiiij; may have been de- 
 pressed by the fear that the irrej^uhnity, ai)i)arent from 
 an inspection of the writ and jud^ni iit, would iiiii>air 
 the purchaser's title, and, where such is the case, the 
 writ should be (plashed rather than amended.''" In 
 Texas, an error in the style of the writ has been spoken 
 of as a possible ground for (juashinj^-, but no positive 
 opinion was required or given.'' In Kentucky, an exe- 
 cution in detinue may be quashed when it is for the 
 value of the properly, instead of being for the return or 
 for the value in ease a return cannot be had.''^ Execu- 
 tions have also been (]ui;shed for varying from the 
 judgment in being against a party not named in the 
 judgment,'^'* or in incorrectly stating the name of the 
 plaintiff.''** An erroneous taxation of costs, or an er- 
 roneous indorsement on an execution, furnishes no 
 ground for quashing the writ. The former error may 
 be corrected on motion to r(4ax costs,"^ and the latter 
 by quashing the indorsement.*^^ An execution not sub- 
 scribed by the plaintiff nor by his attorney, where the 
 law requires it to be subscribed by one or the other, 
 may be quashed.*^^ 
 
 ? 79. In Georgia, by Affidavit of illegality. — The 
 judiciary act of the state of Georgia of the year 1799 
 
 B« Flint V. Pliipps. 20 Or. 340. 23 Am. St. Rep. 124. 
 
 BT Tort is V. P;irk(M-. 8 Tox. 2.3. 58 Am. Dec. 95. 
 
 8^ Boyd V. Williauis, 5 .1. .1. Marsh. 5G. 
 
 89 Morrel v. Baruer, 4 Litt. 10; Treadwell v. Herndon. 41 Miss. 
 38: (Irayham v. Rol)erds, 7 Ala. 71'.); Bridges v. Caldwell. 2 A. K. 
 Marsh. 195. 
 
 60 .Jennings v. Pray. S Yerjr. 85; Smith v. Kniirht, 11 Ala. <!1^. 
 
 61 Walton V. Brasliears. 4 Bibb. IS; Chase v. De ^^■olf. 6'.> III. 47; 
 Adriance Co. t. Ileiskell. 8 Ai)p. D. C. 240. 
 
 «2 McGowan v. Hoy, 2 Dana. 347: McDaniel v. .lohiistun, llu Ala. 
 626. 
 
 «3 Bonesteel v. Orvis. 23 Wis. 500, 9t> Am. Per. 201.
 
 § 79 QUASHING WRITS OF EXECUTION. 29S 
 
 makes provisions, " in all cases where execution issued 
 illegally," by which plaintiff may make affidavit of 
 such illegality, and thereby procure a suspension of 
 the proceedings until the alleged illegality can be de- 
 termined by the court. This act was construed to pro- 
 vide a remedy where there was anything illegal, either 
 in issuing the execution, or in subsequent proceedings 
 under it.**^ This was a forced interpretation, by which 
 the word "issued" was given an effect equivalent to 
 the Avords "issued, or is proceeding." The statute has 
 since been amended in such a manner that it no longer 
 requires judicial aid to extend its provisions.^^ The- 
 present code declares that when an execution against 
 the property of any person shall issue illegally, or shall 
 be proct^eding illegally, and such execution shall be 
 levied on property, he make oath in writing stating- 
 the causes of the illegality, and deliver it to the sheriff 
 or other officer together with a bond and good security 
 for the forthcoming of the property. When the levy 
 shall have been made and the affidavit and bond deliv- 
 ered to the officer, it becomes his duty to suspend 
 further proceedings, and to return the execution, affi- 
 davit, and bond to the next tt^rm of the court from 
 which the writ issued, which court shall, at the first 
 term thereof, unless the plaintiff or his attorney de- 
 sires to controvert facts contained in the affidavit, 
 determine the claim of illegality; but if the plaintiff 
 desires, he may controvert the facts stated in the affi- 
 davit, in which case an issue shall be joined, to be tried 
 by the jury at the same term, unless good cause is 
 shown for a continuance.*'"^ The proceeding by affi- 
 
 «< Robl on V. Banks. 17 Ga. 211. 
 
 cs Code of Georgia, sees. 3G14-.'i621, revised by Irwin. 
 
 «6 Code of Georgia, ed. 1805, sees. 473U to 4738.
 
 299 QUASHING WRITS OF EXECUTION. § 79 
 
 davit of illegality amounts substantially to a suit or 
 action. The allidavit itself must aver the facts re- 
 quired to support the relief sought with as much direct 
 ness and particularity as would be required in a com- 
 plaint in an action at law or a bill in a suit in chancery. 
 Indeed, the particularity required of the allidavit is 
 greater than that exacted of a complaint or bill. In 
 either of these it would be sufficient to make a general 
 statement of any ultimate fact, as that the judgment 
 on which the writ issued had been paid; but in an affi- 
 davit the facts themselves must be disclosed, so as to 
 enable the court to determine therefrom whether a 
 cause for staging or quashing the writ exists.*''' If 
 the statement is general or consists of a mere conclu- 
 sion of law, a demurrer to the affidavit should be 
 sustained.**** The proceeding by illegality cannot reach 
 any proceedings prior to the judgment,**^ unless the 
 court did not acquire jurisdiction of the defendant.'^** 
 It may question the judgment as void,'^* but cannot 
 attack it on the ground that the court erred in some 
 matter, as in granting relief not sustained by the plead- 
 ings or findings, or in committing some other error, the 
 remedy for which is by appeal or some other revisory 
 proceeding.'^ The aitidavit must contain all the 
 grounds of illegality of which the defendant intends to 
 complain. No amendment will be allowed,''^^ except for 
 
 G7 Torry v. Ainorioiis Bank, 77 Ga. 528; Bowou v. Groover, 77 Ga. 
 12G; Bakor v. Ackonuan. 77 Ga. 89: East Teun. etc. R. Co. v. Tlieus , 
 91 Ga. ?>\): Briuson v. Birge. 102 Ga. 802. 
 
 6« Bakor v. Ackernian, 77 <;a. 89; Burnett v. Foudie. 77 Ga. 550. 
 
 «o Manjiliam v. Reod, 11 Ga. l.*?7; Emory v. Smith. 51 Ga. 323; 
 Mayor v. Trustees, 7 Ga. 204; Swinny v. Watkins. 22 Ga. 570. 
 
 70 Parker v. Jenninjis, 2(; Ga. 140; Brown v. Gill, 49 Ga. 5-19. 
 
 71 Planters' Bank v. Berry, 91 Ga. 204. 
 
 72 Bowen v. Groover. 77 (ia. 120; Gritlin v. Frick. 97 Ga. 219; 
 Douglas V. Singer M. Co., 102 Ga. 500; Dooly v. Miles, 101 Ga. 797. 
 
 " Hurt V. Mason, 2 Kelly, 3tj7.
 
 § 79 QUASHING WIUTS OF EXECUTION. 300 
 
 the purpose of inserting such new grounds as the de- 
 fendant by his oath shows were not within his knowl- 
 edge when the original affidavit was made.'^ If he 
 files a second or amended affidavit, he must show 
 therein that the facts souglit to be disclosed by it and 
 not stated in the original were not known to him when, 
 it was filed, and, further, that, before making the first 
 affidavit, he had used due and reasonable diligence to 
 discover theniJ^ The jurat to the affidavit may be 
 amended by adding the official designation of the officer 
 who administered the oath."^** The affidavit must be 
 made by the party upon whose person or property the 
 writ is being executed, or by his agent or attorney. It 
 cannot be made by a codefendant, in his own name, 
 when neither he nor his property has been molested by 
 the writ.*^' It cannot be made upon information and be- 
 lief, but must, though made by representatives of a de- 
 ceased person, be positive. If it states that its aver- 
 ments are true to the best of deponent's knowledge and 
 belief, it is fatally defective, though he also states that 
 it is based upon the testimony of reliable witnesses.'^* 
 The applicant must also give the bond exacted by the 
 statutes, or disclose, as a reason for not doing so, some 
 circumstance designated therein as excusing the giving 
 of the bond.'^^ 
 
 The grounds upon which the defendant can prevail, 
 when his objections are directed to the issuing of the 
 writ, seem to be none other than would be sufficient in 
 
 74 Higgs V. IIusoii. 8 Ga. 317. 
 
 75 Bui-uett V. Fouolip, 77 Ga. 550; Baker v. Smith, 91 Ga. 142; 
 BiiidfT V. Ilagsdale. 100 Ga. 400. 
 
 76 Smith V. Walker, 93 Ga. 252. 
 
 77 Van Dyke v. Besser, 34 Ga. 26a 
 
 78 Sprinz v. Vannucki. 80 Ga. 774. 
 
 79 Griffiu V. Lacourse, 31 Fla. 125; Shannon v. Vincent, 70 Ga. 
 1G3.
 
 301 QUA.SI1IN'(; WKITS OF EXECUTION. S 80 
 
 other states under an ordinary motion to quash the 
 writ. Thus an aftidavit of iUegality cannot be sus- 
 tained because of an immaterial variance,^*' nor be- 
 cause the writ was si<;Tied by the deputy clerk and 
 witliont affixing seal of the court.**^ But the affidavit 
 of iUegality reaches one error not to be remedied by a 
 motion to quash; namely, an error committed by the of- 
 ficer in the execution of the writ.'^* 
 
 § 80. The Consequences of an Order Quashing a writ 
 
 may be considered, lirst, with reference to the plaintiif 
 and his attorneys; and second, wuth respect to the offi- 
 cers who have acted under the authority of the writ, 
 and to strangerswho have in good faith made purchases 
 and paid money at sales had thereunder. If an uncon- 
 ditional order is given quashing an execution, the plain- 
 tiff and his attorney are left in no better a position 
 than if the writ had never issued. If they have or 
 either of them has become purchasers of property there- 
 under, an essential muniment of their title is obliter- 
 ated, and the purchase necessarily falls for want of 
 support. For most purposes they must be regarded as 
 never having had any title, and hence they are liable 
 to account for the rents received by them, or to answer 
 for the injuries suffered by the defendant through their 
 taking and withholding possession from him for the 
 period prior aswell as subsequent tothe quashing of the 
 writ.*^'* If they have seized upon ])roperty, or taken the 
 defendant in execution, their act can no longer be jus- 
 
 ROMitclioU V. rriiHup, I'.t Ga. .ITO. 
 
 61 Dever v. Akin. 40 Ga. 421). 
 
 82 Eobison v. Banks, 17 Ga. 211; Force v. Daliloiicfra T. & L. Co., 
 22 Ga. 86. 
 
 S3 McCaulln v. Mnrpliy, SG Ga. 475; Audersou v. Sloaue, 72 Wis. 
 666, 7 Am. St. Rep. S85.
 
 § so QUASHING WRITS OF EXECUTION. 302 
 
 tified, and tliey may be pursued as trespassers.®* With 
 respect to officers, we believe the rule is of universal 
 operation that they may justify under a writ regular on 
 its face, and that the quashing of a writ will not oper- 
 ate retrospectively so as to make them trespassers for 
 acts previously done under its authority. When sales 
 have been made under execution to bona fide purchas- 
 ers, the duty as well as the inclination of the court is to 
 protect them, and a motion to quash the execution for 
 any mere error or irregularity will be denied.®^ But 
 even should the motion be granted, its operation seems 
 not to extend to sales made to such purchasers; and for 
 the purpose of supporting such a sale, the quashed writ 
 retains its original vitality.®* 
 
 84 Freeman on Judgments, sec. 104 b; Turner v. Fel^ate, 1 Lev. 
 9.5; Parsons v. Loyd, 3 Wils. 341; 2 W. Black. 845; Chapman v. 
 Dyett, 11 Wend. 31, 25 Am. Dec. 598; Kerr v. Mount, 28 N. Y. 659; 
 Hayden v. Shed, 11 Mass. 500; Codrington v. Lloyd, 8 Ad. & B. 44y, 
 3 Nev. & P. 442, 1 W. W. & H. 358, 2 Jur. 593; Barker v. Braham, 3 
 Wils. 368; Young v. Bircher, 31 Mo. 136, 77 Am. Dec. 038; Sanders 
 V. Ruddle, 2 T. B. Mon. 139, 15 Am. Dec. 148. 
 
 ^5 Bryan v. Berry, 8 Cal. 130; Day v. Graham, 1 Gilm. 435. 
 
 86 Doe V. Snyder, 3 Hoav. (Miss.) 66, 32 Am. Dec. 311; COx v. Nel- 
 son, 1 T. B. Mon. 94, 15 Am. Dec. 89; Adamson v. Cummins, 5 Eng. 
 545; Chambers v. Stone, 9 Ala. 261.
 
 303 BXECUTION ON DORMANT JUDGMENTS. § 81 
 
 CHAPTER VIIT. 
 
 PROCEEDINGS TO OBTAIN EXECUTION ON DORMANT 
 JUDGMENTS. 
 
 FIRST.-BY, SCIRE FACIAS. 
 
 § 81. Object and dofiuitiou of the -writ. 
 
 § 82. In what actious it may issue. 
 
 § 83. VV'heu uetessary and consequences of not prosecuting. 
 
 §84. Change in the parti(>s other than hj' death. 
 
 § 8."). Change in parlies occasioned by death. 
 
 § SG. Parties phiintitT. 
 
 § 87. Parties defendant. 
 
 § 88. Form of the writ, and amendments thereto. 
 
 § 89. Service of the writ. 
 
 § 90. Proceedinj^s on return of the writ; defenses recelTed. 
 
 § 91. Time in whicli the writ must be sued out. 
 
 § 92. Irre^ruhir writs. 
 
 § 92a. Judj;nieut upon. 
 
 § 93. Second scire facias. 
 
 § 93a. The effect of a judgment of revivor, 
 
 f 94. Form of execution on scire facias. 
 
 SECOND-BY MOTION. 
 
 § 95. :Motion and notice as a substitute for scire facias. 
 
 § 9G. On death of one of the parties. 
 
 § 97. On judiiment dormant by lapse of time. 
 
 § 81. Object and Definition. —Before a judgment is 
 either satisfied by payment or barred by lapse of time, 
 it may become temporarily inoperative so far as the 
 right to issue execution is concerned, and so continue 
 until something is done by which such right is revived. 
 In this condition it is usually called a dormant judg- 
 ment. This dormancy in judgments was, at the com- 
 mon law, usually created either by a change in the 
 parties plaintiff or defendant, or by the lapse of time
 
 § SI EXECUTION ON DORMANT JUDGMENTS. 304- 
 
 witliout the issuing- of execution. "Where any new 
 person (that is, one not originally party to the judg- 
 ment) is to be charged or benefited by the execution, 
 orwhere more than a year and a day have elapsed since 
 the signing of judgment, and that delay has not been 
 caused by the party chargeable, new measures become 
 necessary before execution can be proceeded in."* 
 There were also cases in which execution was to be 
 issued in certain contingencies only, and in which it 
 became necessary to establish the existence of the con- 
 tingency before the writ could be regularly sued out. 
 So the judgment might have been satisfied through 
 fraud or mistake, or by an extent upon property not 
 belonging to the defendant, and it might therefore be 
 necessary' to set aside the apparent satisfaction and ob- 
 tain leave to issue further execution. When from any 
 cause it became necessary to apply to a court for 
 a revivor of the right to issue execution, the remedy 
 of the plaintiff was by scire facias. According to Mr. 
 Bingham's definition, "a» scire facias is a judicial writ, 
 founded on some matter of record, and having for its 
 object 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; whenever such execution is contin- 
 gent, after judgment on the existence of certain circum- 
 stances, to be first proved by the party charging; and 
 lastly, whenever execution has been delayed beyond a 
 year and a day after judgment signed, that delay not 
 arising from the party charged.'' ' But perhaps a bet- 
 
 1 Bingham on .Judgments and Executions. 118: Foster on Scire Fa- 
 cias, f). 
 
 2 Bingliam on .Tudgments and Executions. 122. It w.ns formerly 
 held that an elegit might issue after a year and a day. Seymour v.
 
 305 EXECUTION ON DORMANT JUDGMENTS. § si 
 
 ter definition of .scire facias, as the term will be used in 
 this chapter, is this: It is a writ issued out of the court 
 wherein a judgment has been entered ^ or to which the 
 record has been removed, reciting such judgment, sug- 
 gesting the grounds re(iuisite to entitle plaintiff to exe- 
 cution, and requiring the defendant to make known the 
 reason, if any there be, wh}- such execution should not 
 issue.'* ''The writ, therefore, presents the plaintiff's 
 wholecase,and constitutes the declaration to which the 
 defindant must plead." ^ "It serves the double purpose 
 of a writ and a declaration, and, as its object is to re- 
 vive a dormant judgment and not to create one anew, it 
 isnot an original process,but a judicial writ. But while 
 scire facias is not an original process by which an ac- 
 tion is commenced, it is considered to be so far original 
 that the defendant may plead to it." ® "A scire facias 
 to revive a judgment is not an original but a judicial 
 
 Greonvill, Carth. 2.'?3. But this decision has since been overruled. 
 Putland V. Newman, 6 Maule & S. 179; Rutland v. Newnhan, 2 Chit. 
 384; Brown v. C. & O. Canal Co., 4 Hughes, 584. 
 
 8 A scire facias, being founded on some record, must be issued 
 out of the court where that record is. Hence a scire facias to obtain 
 execution on a jiidgment must issue out of and be returnable to the 
 court where the record of such judgment is. and whence the execu- 
 tion must issue if tlie plaintiff in tlie scire facias prevails. Walker 
 V. Wells. 17 Ga. 547. 03 Am. Dec. 252; Grimke v. Mayraut. 2 Brev. 
 202; Osgood v. Thurston, 23 Pick. 110; Tindall v. Carsou, 1 Harr. 
 (N. J.) 1)4; Barron v. Pagles, G Ala. 422; Carlton v. Young. 1 Aiken. 
 332; Wilson v. Tiornan, 3 Mo. 577; Vallance v. Sawyer, 4 Greenl. 62; 
 Treasurer v. Erwin. Brayt. 218; 2 Sellon's Practice, 198: Foster on 
 Scire Facias, 19; Dougherty's Estate, 9 Watts & S. 1S9, 42 Am. Dec. 
 326; Perkiife v. Hume. 10 Tex. 50; State v. Brown, 41 Me. 535; State 
 V. Kinue, .'^9 N. II. 120; Gibson v. Davis, 22 Yt. 374. 
 
 * Bingliam on Judgments and Executions, 123, 124. 
 
 6 Bouv. Diet., fir. Scire Facias. 5; Hicks v. State, 3 Pike. 313; Blake 
 V. Dodemead, 2 Strange. 77t'>; Ogden v. Smith, 14 Ala. 428; Jueksou 
 V. Tanner, IS Wend. 526. 
 
 • Eddy V. Cold well. 23 Or. ic:;!. 37 Am. St. Rep. G72. 
 
 Vol. I.-20
 
 St SI EXECUTION ON DORMANT JUDGMENTS. SOS 
 
 writ, founded on some matter of record to enforce exe- 
 cution of it; and, properly speaking, is only the con- 
 tinuation of an action — a step leading to the execu- 
 tion of a judgment alreadj' obtained, and enforcing the 
 original demand for Avhich the action was brought. 
 It creates nothing anew, but may be said to reanimate 
 that which before had existence, but whose vital pow- 
 ers and faculties are, as it were, suspended, and with- 
 out its salutary influence Avould be lost." '' A scire 
 facias is sometimes and for some puri)oses spoken of as 
 an action.^ But the object sought and the result accom- 
 plished by a scire facias to revive a judgment both 
 show, beyond all doubt, that it is not a new action, 
 but merely a continuation of an old one.^ No cause of 
 action beyond the old judgment can be asserted. No 
 grounds of defense anterior to the old judgment can 
 be brought forward. No relief beyond that embraced 
 in the old judgment can be obtained; and, finally, the 
 judgment entered upon the scire facias is simply ''that 
 the plaintiff have execution for the judgment men- 
 tioned in the said scire facias, and his costs." ^^ One 
 
 7 Brown v. Harley, 2 Fla. 164; 2 Sellon's Practice, 188. 
 
 8 Fenner v. Evans, 1 Term Rep. 267; Winter v. Kretcliman, 2 Term 
 Rep. 46; Farrell v. Gleeson, 11 CI. & F. 702; Bilbo v. Allen, 4 Heisli. 
 ;^1; Swancy v. Scott, 9 Humpb. 340; State Bank v. Vance, 9 Yerg. 
 471; Howard v. Randall, 58 Vt. 564. 
 
 9 Dicliey v. Craij?, 5 Paige, 283; Dickinson v. Allison, 10 Ga. 557; 
 Reynolds v. Rogers, 5 Ohio, 169; Potter v. Titcomb, 13 Me. 36; Treas- 
 urers V. Foster, 7 Vt. 52; W^olf v. Pouudsford, 4 Ham. 397; Comstock 
 V. Holbrook, 16 Gray, 111; Ingram v. Belk, 2 Strob. 207; W^riglit v. 
 Nutt, 1 Term Rep. 388: Phillips v. Brown, 6 Term Rep. 283; Denegre 
 V. Ilaun, 14 Iowa, 240, 81 Am. Dec. 480; Fitzhugh v. Blake, 2 Cranch 
 C. C. 37; Hopkins v. Howard, 12 Tex. 7; Foster on Scire Facias, 11, 
 18; Cocks V. Brewer, 11 Mees. & W. 50; 2 Dowl., N. S., 759; Adams v. 
 Rowe, 11 Me. 89, 25 Am. Dec. 266; Carter v. Carringer, 3 Yerg. 411, 
 24 Am. Dec. 585; Masterson t. Cundiff, 58 Te.v. 472. 
 
 10 Vredenberg v. Snyder. 6 Iowa. 39; Woolston v. Gale. 4 Ilalst. 
 32; Camp v. Gainer, 8 Tex. 372; Tindall v. Carson, 16 N. J. L. 94;
 
 307 EXECUTION ON DORMANT JUDGMENTS. § 82 
 
 of the consequences inevitably resulting from the fact 
 that a scire facias is not a new acti<jn is that it is a 
 proceeding in the same suit in which the original judg- 
 ment was entered, and therefore within the control of 
 the court liaving jurisdiction over that judgment and 
 its enforcement, and that that court may continue to 
 exercise its jurisdiction for the purpose of authorizing 
 the issuing of execution irrespective of any change 
 which ma^^ have taken place in the residence of the 
 parties.*^ In Pennsylvania, the practice in scire facias, 
 and the judgment therein, are different from what they 
 are under common-law forms of procedure, and accom- 
 plish results very similar to those brought about by an 
 action on a judgment.^^ 
 
 § 82. In What Actions may be Sued Out.— By the 
 common laAV, a plaintiff who failed to take out execu- 
 tion in a personal action Avithin a year and a day had 
 no means of obtaining execution upon that judgment. 
 The right to execution, when once lost through his 
 delay, could not be restored. Ilis only remedy was to 
 commence an action on his judgment, and thereby pro- 
 cure a new judgment. The necessity of bringing a 
 new action was obviated by the statute Westminister 
 2, c. 45, by which a scire facias was given in all per- 
 sonal actions.*^ Independently of statute, the right to 
 
 Murray v. Baker, 5 B. Mon. 172; W^alton v. A'andorhoof. Tenn. 73; 
 Flanly v. Adams, 15 Ark. 232; Eddy v. Coldwell, 23 Or, 1G3, 37 Am. 
 St. Kep. ('>72. 
 
 11 MastersoQ v. Cundiff, 58 Tex. 472; Sclimidtke v. Miller, 71 Tex, 
 103. 
 
 12 Custer V. Dettoror, 3 Watts & S. 2S; Colliugwood v. Carson, 2 
 Watts & S. 220; Shaefer v. Child, 7 "Watts, 84; Maus v. Maus, 5 
 Watts. 315; Fries v. Watson, 5 Serg:. & R. 220. 
 
 13 This statute Is in force in Florida. Union Bank v. Powell. 3 
 Kla. 175, 52 Am. Dec. .3()7. By the code of Georsia. a scire facias 
 may be issued by the clerk of the court in vacation, on the oral de- 
 mand of plaintiff. Hill v. Neal. 52 Ga. 92.
 
 § 82 EXECUTION ON DORMANT JUDGMENTS. 308 
 
 a scire facias to obtain execution of a judgment in a 
 real action was accorded by the. common law. And 
 this remark is equally true of actions of ejectment and 
 actions of a mixed nature, in all of which scire facias 
 was authorized and required to obtain execution after 
 a year and a day.^* It is said that there are some ac- 
 tions in which execution may be taken out after a 
 year and a day without a scire facias. "It is well set- 
 tled that it dges not apply to judgments entered by 
 confession under a warrant of attorney, but only to 
 actions, and judgment thereon by default, confession, 
 or on demurrer, under the statute of 8 and 9 William 
 III, c. 11, sec. 8." ^^ In Kentucky, it has been held that 
 where a decree is for the payment of a sum certain, 
 and may therefore be enforced by execution, it may be 
 revived by scire facias.^** But in other states the opin- 
 ion prevails that as a scire facias is a purely legal 
 proceeding, it cannot be employed in a case in equity, 
 unless authorized by statute,^'' nor to revive a decree 
 of a probate court.^^ When coui*ts of chancery are by 
 statute given authority to issue writs of execution, to 
 enforce the payment of money, substantially similar to 
 that possessed by courts of law, it seems logical to in- 
 fer that they are thereby impliedly granted, as an in- 
 cident of the authority thus conferred, the right to pur- 
 sue remedies such as courts of law may properly pur- 
 
 1*2 Sellon's Traftice, ISO; Hess v. Sims, 1 Yerg. 143; Withers v. 
 Harris, 2 Ld. Kaym. 80G; 1 Ralli. 2r)S; 7 Mod. 04; Proprietors v. Davis, 
 1 (ireenl. 309; rmelor v. Johnson, 2 Salk. 600; Foster on Scire Facias, 
 2-6. 
 
 15 Jones V. DilworTh, 03 I'a. St. 447; T>ongstreth v. Gray, 1 Watts, 
 CO; Slddniore v. Bradford, 4 Pa. St. 296. 
 
 16 Logan V. Cloyd, 1 A. K. Marsh. 201. 
 
 17 Curtis V. Hawn, 14 Ohio, 185; .Jeffreys v. Yarborough, 1 Dev. 
 Eq. 500. 
 
 18 Kirby v. Anders. 20 Ahi. 400; Ilurst v. Williamson. 42 Ala. 29G.
 
 300 EXECUTION ON DOILMANT JL'D(JMi:NTS. § S2 
 
 sue in like coutiugeucies. In .Missi.ssiijpi, the jurisdic- 
 tion previously possessed by courts of probate was 
 transft.-rred to courts of cliancery, and llii rcafter a writ 
 of scire facias was prosecuted iu one of tlie latter 
 courts upon a decree entered in one of tbe former be- 
 fore tbe date of such transfer. This, it was insisted, 
 was irregular and wholly unauthorized, but the court 
 held that the proceeding could have been prosecuted in 
 the probate court but for the transfer of its jurisdiction 
 to chancery, and that, included in this transfer, was 
 the right to issue the writ in question. The court said: 
 "To the objection that scire facias is unauthorized in 
 chancery, we remark that, upon general principles, 
 the objection would be well taken, but, in our opinion, 
 it is unobjectionable, and, in fact, is authorized in the 
 conclusion of the cases originating in the late court of 
 probate. The writ is simple, precisely adapted to the 
 circumstances; it states the judgment or decree sought 
 to be revived, with a prayer for revival and for execu- 
 tion, and notice to the party against whom it issues to 
 show cause, on a day named, why its prayer should not 
 be granted; it fully meets the exigencies of the case, 
 and does so at once in a precise, plain, and practicable 
 mode, suited to the facts and to the simi^licity of our 
 practice in probate cases.'' ^^ 
 
 In suits for divorce, a wife is often awarded ali- 
 mony not payable in one gross sum, but at stated 
 and frequently recurring periods, and the question 
 has arisen whether the pavment of such sums mav 
 be enforced by scire facias as well as by attach- 
 ment for contempt. In such a case, it seems clear 
 iliat execution cannot issue as a matter of course, for 
 it may be that some contingf^u-y has arisen under 
 
 18 Isom V. McGehee, 45 Miss. 712.
 
 § S3 EXECUTION ON DORMANT JUDGMENTS. 310 
 
 which she has no longer any right to exact alimony, or 
 it may have been paid as directed in the decree. Some 
 notice ought to be given the party claimed to be in de- 
 fault before any writ is issued against his person or 
 property. The proceeding by scire facias is well 
 adapted to giving the requisite notice, and there seems 
 to be no doubt that it is an appropriate and perhaps 
 the exclusive proceeding in such cases.^^ This remark 
 is also true with respect to judgments at law, by which 
 sums of money are recovered payable in instalments,^* 
 It is, however, in all cases where resoii: is had to 
 this remedy, necessary to show that there is a judg- 
 ment or order establishing the plaintiff's right to a 
 fixed, definite sum of money, the amount of which can 
 be ascertained by inspecting the record and making 
 the computations justified thereby. If parol or other 
 evidence, not found in the record, must first be heard 
 to enable the court to determine the amount of plain- 
 tiff's recovery, the remedy by scire facias cannot be 
 sustained.^^ 
 
 § 83. When Necessary, and Consequences of Not 
 Prosecuting. — We have already shown that scire facias 
 issued in three cases: 1. To revive an ordinary judg- 
 ment between the parties; 2. To obtain execution 
 where a new party was to be charged or benefited; and 
 3. To obtain execution on a contingent judgment upon 
 the happening of the contingency. In this chapter we 
 shall treat only of the first and second classes of cases. 
 In the chapters on issuing original and alias writs, we 
 have already considered in what instances it is neces- 
 
 20 Morton v. Morton, 4 Cnsh. 518. 
 
 21 Collins V. Collins, 2 Burr. 820; Willougbby v. Swinton. G Bast, 
 550. 
 
 22 Chestnut v. Chestnut, 77 111. 346.
 
 811 EXECUTION ON JJOUMANT JUDGMENTS. § ^Z 
 
 sary to sue out a scire facias between the original par- 
 ties to the judgmeut; aud have found that, as to orig- 
 inal writs, the scire facias was necessary after a lapse 
 of a year and a day, except wliere the delay had been 
 occasioned by the defendant; ^^ wliile if the original 
 isisued within a year and a day, and was returned, the 
 right to issue alias writs could be continued to any dis- 
 tance of time (luring the life of the judgment.^* Within 
 a year and a day, it often became necessary to obtain 
 execution by scire facias, even as between the original 
 parties. The judgment might be satisfied through 
 fraud or mistake, or by a sale to plaintiff of property 
 to which defendant had no title. In these and other 
 cases, where the plaintiff's right to execution seem<d to 
 be extinguished, but in which he had, in fact, obtained 
 no satisfaction, or but a partial satisfaction, he could, 
 by scire facias, bring the defendant before the court, 
 vacate the entry upon the record, or make it conform to 
 the facts, and obtain execution.^^ In T(^xas, a scire 
 facias may become necessary, or at least advisable, be- 
 
 aT See §§ 27, 28; also 2 Sellon's Practice, 189; Foster on Scire Fa- 
 cias, 8-10, <)6-97; Tidd's Pr. 1104. 
 
 24 See § 51; also 2 Sellon's Practice, 189; Tidd's Pr. 1104; Reed v. 
 Williams, 3 A. K. Marsh. r.21; Dodure v. Casey. 1 Miles, 13; Clemens 
 V. Brown, 9 Mo. 718: Blnyor v. Baldwin, 2 Wils. S^i; Seymour v. 
 Green vill, Carth. 283: Thorp v. Fowler, u Cow. 446; Dowsman v. 
 Potter, 1 Mo. .")18; Craig v. .Tohnson. Hardin, 529: Cook v. Batthurst. 
 2 Show. 235; Aires v. Hardress, 1 Strange, 100; Scnil v. Godbolt, 4 
 Ala. 320; Bank of Mississippi v. Catlett, 5 How. (Miss.) 175; Lindell 
 V. Benton, Mo. 3G1; .Tewett v. Hoogland, 30 Ala. 716; Abbey v. 
 Comni. Bank, 31 Miss. 434; Foster on Scire Facias, 84; Messlck v. 
 Russel, 3 Harr. 13; .Ionian v. Petty. 5 Fla. .326; Bracken v. Wood, 12 
 Ark. 605; Kellogg v. Buckler, 17 Ga. 187; Strawbridge v. Mann, 17 
 Ga. 454. 
 
 2R See §§ .5.3. .54; also Arnold v. Fuller. 1 Ham. 4.58; Steward v. 
 Allen, 5 Greenl. I(i3: Wilson v. Green. 19 Pick. 4.3:^: Foster on Scire 
 Facias, 47-57; Dewing v. Durant. 10 Gray, 29; Keith y. Proctor, 8 
 Baxt, 189; McRoberts v. Lyon. 79 Mich. 25.
 
 § S3 EXEl UTION ON DORMANT JUDGMENTS. 312 
 
 fore the judgment lias become so dormant that execu- 
 tion cannot issue thereon. By the statutes of that 
 state, an execution may issue at any time within ten 
 years after the issuing of the last preceding execution; 
 but the lien of the judgment becomes inoperative un- 
 less execution issues ''within one year from the first 
 day when it might issue." The lien after becoming in- 
 operative may be revived by scire facias, though the 
 judgment is not dormant in the sense that no execu- 
 tion can issue upon it.^** 
 
 If the judgment remains unsatisfied, and there is a 
 right to execution upon it, and the plaintiff is required 
 to revive it by scire facias or to prosecute some other 
 proceeding, as a result of which he may obtain leave, 
 or an order, of court, for the issuing of the execution, 
 its issuing, unless authorized by siich proceeding, is of 
 course illegal, and the defendant may move the court 
 to quash or recall the writ. In the absence of such a 
 motion, and until the writ is actually vacated by the 
 court, it must be treated as valid, and will support all 
 steps taken in obedience to its commands, and a sale 
 made thereunder will divest the title of the defendant 
 as completely as if the judgment had been revived in 
 the most formal manner.^'^ Where, however, the pur- 
 pose of the scire facias is to continue, or prevent the 
 expiration of, some lien against the property, the omis- 
 sion to prosecute it is not a mere irregularity which is 
 waived by failing to move to quash the writ. In such 
 a case, to retain the advantage of the lien, it is essen- 
 
 29 Masterson v. Cundiff, .08 Tex. 472. 
 
 2T Draper v. Nixon, 93 Ala. 430; Gardner v. Mobile etc. R. R. Co., 
 102 Ala. 635, 48 Am. St. Rep. 84; De Loach v. Robbins, 102 Ala. 288, 
 48 Am. St. Rep. 40; Gillespie v. Switzer, 43 Neb. 772; Link v. Counell, 
 48 Neb. 574; Eddy v. Cold well, 23 Or. 163, 37 Am. St. Rep. 672; Oduin 
 V. Menafee, 11 Tex. Civ. App. 119; Hill v. Newman. 67 Tex. 26.5.
 
 313 EXECUTION ON DOIIMANT JUDGMENTS. § 84' 
 
 tial not only to prosecute tlio writ, but also that there 
 be made parties to it all persons* claiming; an interest 
 under the defendant; and, if any of them is omitted, the 
 lien as a.^ainst liis interest tenniiialcs, and a siibsc- 
 <ju<'nt sale under the judgment and its revivor cannot 
 prejudice him.~^ 
 
 § 84. When the Parties have been Changed without 
 
 Death of Either.— The rhan^cs in the parties to a judj;- 
 ment whi(di. at the common law, rendered a scire facias 
 essential, usually occui-rcd throu,<;h the death either of 
 a plaintiff or of a defendant, and sometimes, but more 
 rarely, by the introduction of a new party by other 
 means than by the death of either of the original par- 
 ties. The latter class of cases was created chiefly, if 
 not exclusively, by either marriage or bankruptcy. If 
 a feme sole recovers judgment, "and she, before execu- 
 tion taken out, marries, the husband and wife must 
 sue out a scire facias and get judgment thereon quod 
 habeant executionem; and if, after such judgment, but 
 before execution, the wife dies, the husband alone may 
 have a scii'e facias and go on to execution." ^'^ By the 
 scire facias the judgment becomes the x>roperty of the 
 husband. "So, vice versa, if ju<lgment be recovered 
 against a feme sole, and she mai'ries, a scire facias must 
 be sued out against the husband and Avife, and judg- 
 ment had against them; and if the wife then dies, a 
 new scire facias may issue against the husband only, 
 and he will be chargeable, though he was not liable 
 upon the first judgment.'' "" "In cases of bankruptcy, 
 
 2« Lone: V. McConnoll, IHS Ta. St. 373. 
 
 -9 2 SoUon's Practico, VM: Binshaiu on .TiKlsiniontsj and Rxocutions, 
 i;]S; .Tohusou V. Parniley, 17 .lolnis. 271; Woodyer v. (Jroshani. 1 SalU. 
 110. 
 
 so 2 ScUon's Practice, 104; Miles' Ca>t». 1 Mod. 17U; Obrian v. 
 Kanmi. Carth. nO; 3 Mod. ISO.
 
 § 85 EXECUTION ON DORMANT JUDGMENTS. 314- 
 
 a scire facias is necessary before proceeding to execu- 
 tion, inasmuch as a new party (the assignees) are bene- 
 fit! d by the execution and ought tlierefore to show that 
 they have due authority to assume that benefit." ^^ 
 
 In some of the states it is said that when unsound- 
 ness of mind exists, the person found to be so unsound 
 should be regarded, for most purposes, as civilly dead, 
 and statutes have been enacted which, in substance, 
 prevent the execution of a judgment against such a 
 person, unless his guardian or committee is brought be- 
 fore the court. Where statutes of this character exist, 
 they, by implication, authorize and require that pro- 
 ceedings to revive, or obtain execution upon, judg- 
 ments when the defendant is insane, be prosecuted 
 against his guardian.''*^ 
 
 § 85. Change in the Parties by Death.— We have al- 
 ready shown that the teste of the writ and the date of 
 its actual issuing may differ, and that, as a general rule, 
 any change taking place in the parties after such teste 
 does not render any proceeding for revivor necessary.^ 
 While, on the other hand, statutes in some of the states 
 forbid any proceeding under execution after the death 
 of the defendant, and require either some revivor 
 against his estate or that the judgment be presented 
 and allowed in the probate courts, and proceedings 
 looking to its satisfaction be conducted therein.^ 
 Whether the death of a plaintiff or of a defendant ren- 
 
 31 Bingham on Judgments and Executions, 141; 2 Sollon's Prac- 
 tice, 19o. 
 
 32 McNees v. Tliompson, 5 BuiRh, 686. 
 
 33 :\Iontjiomery v. lloalliafer, 85 Tenn. 668, 4 Am. St. Rep. 780; 
 Coffin V. Freeman, 84 Me. 535; Benners v. Rhinehart, 107 N. C. 705, 
 22 Am. St. Rep. 909. 
 
 34 United States v. Insley, 49 Fed. Rep. 776; Hooper v. Caruthers, 
 78 Tex. 432.
 
 315 EXECUTION ON DORMANT JUDGMENTS. § 85 
 
 (1(TS a Rfire facias noressary is to be deteniiined by as- 
 certaining whetlier, tlirou*^!! such death, a new party 
 is char«;ed or benefited by the judgment. Whenever a 
 sole plaintiff or a sole defendant dies, it is obvious that 
 the judgment cannot be enforced without affecting 
 some new party. Here, then, it is clear that a scire 
 facias is necessary. Upon the death of one of several 
 coplaintiffs or codefendants in a personal action, the 
 doctrine of survivorship applies. The judgment, on 
 the death of one of the plaintiffs, may be executed for 
 the benefit (»f the survivors, in which case, as no new 
 party is benefited, no scire ff\cias need be prosecuted. 
 On the death of one of the defendants in a personal ac- 
 tion, satisfaction may be sought of the survivors, in 
 which case a revivor would be useless. If satisfaction 
 is sought from the property of the deceased defendant, 
 a new party is necessarily interested, and must first be 
 proceeded against by scire facias. But in all actions 
 pertaining to the possession or title of real estate, the 
 death of one of several plaintiff's, or of one of several 
 defendants, introduces some new party in interest, and 
 renders a scire facias indispensable."' With respect 
 to the persons who must be proceeded against by scire 
 facias, after the death of a defendant, the law must be 
 consulted to ascertain whose interests may be all'ected 
 by the execution. If the law is such that the property 
 sought to be reached descends to the heirs alone, the 
 personal representatives need not be made parties; 
 and if, on the other hand, it descends to the personal 
 representatives alone, the heirs need not be made par- 
 
 85 Foster on Scire Facias, ITri-lTT; Witlicrs v. Harris. 7 Mod. ftS; 
 Sir William Herbert's Case. 3 Coke, 14: Lamptou v. Collinffwood. 4 
 Mod. :n5; Wright v. Madocks. S Q. B. 122; Dibble v. Taylor, 2 Speers, 
 308, 42 Am. Dec. 368.
 
 § 86 EXECUTION ON DOR-MANT JUDGMENTS. 310 
 
 ties. The qiie^^tiou lias arisen wlietlier on the death of 
 one of several defendants, against Avhoni judgment has 
 been rendered on a joint contract, any scire facias can 
 issue against the representatives of the decedent. 
 Against the issuing of such writ it has been urged that 
 on the death of one of several parties to a joint contract 
 his executor or administrator is discharged from all 
 liability, and only the survivors remain answerable to 
 proceedings for its enforcement; ^^ on the other hand, 
 it has been held that, in such a case, the phiintiff might 
 have a scire facias framed on the special matter, and 
 proceed against the surA^ivor and the pergonal repre- 
 sentatives of the decedent, if personalty was sought to 
 be seized, or against the survivor and the heirs- and 
 terre-tenants of the decedent, if real estate was to be 
 subjected to a judgment lien.*'*'' In Pennsylvania, a 
 scire facias may not be prosecuted against a surviving 
 defendant and the representatives of a decedent, to 
 charge the personal estate of the latter,'**^ though, 
 where a judgment is a lien, it may by scire facias be 
 enforced against the real estate of the survivor upon 
 which such lien had attached.^^ 
 
 § 86. Parties Plaintiff. — As a scire facias must pur- 
 sue the judgment, it follows that all the plaintiffs, 
 while all are living, must join in the writ. Except in 
 the case of the death, marriage, or bankruptcy of the 
 plaintiff, a scire facias must, by the common law, be 
 
 36 Stoner v. Stroman, 9 Watts & S. 8."; Howe v. Gibert, 2 Bail. SOG. 
 
 37 Union Bank v. Heirs of Powell, 3 Fla. 175, 52 Am. Dec. 3f!7; 
 Henderson v. Vanhook, 24 Tex. 358; Austin v. Reynolds, 13 Tex. 
 544; Underbill v. Devereux, 2 Saimd. 72; note to Tretheny v. Ack- 
 laud, 2 Saund. G7; Iluey v. Redden. 3 Dana, 488. 
 
 88 Stoner v. Stroman, 9 Watts & S. 85. 
 
 88 Commonwealth v. Mateer, IG Serg. & R. 41G.
 
 817 EXKCUTIOX ON DORMANT JUDGMENTS. § 87 
 
 prosecuted iu the name of the plaintill'; '^'^ but by stat- 
 ute this right has sometimes been given to the assignee, 
 or equitable owner of the judgnient.^^ Unless the com- 
 mon-law rules upon the subject have been modified by 
 statute, an assignee cannot prosecute scire facias iu his 
 own narae.'^ If the writ or proceeding should disclose 
 the fact that an assignment has been made, and that 
 the revivor is sought for the benefit of assignees named, 
 this designation of them is surplusage, and cannot 
 limit the eilect of the revivor so as to exclude from its 
 benefit persons having equitable interests in the judg- 
 ment as assignees, but who were not named in the pro- 
 ceedings for revivor.^^ 
 
 ^Vhen a sole plaintiff dies, the scire facias must be 
 prosecuted by the person who represents the dec<*ased. 
 If the judgment is in a personal action, the scire facias 
 should be by the executor or administrator; if in a real 
 action, or an action for the possession of realt}', it 
 should be by the heir. "In a mixed action, it is said, if 
 the lands to be recovered be fee-simple, the heir and 
 the executor shall join in the scire facias, and the heir 
 have execution as to the lanjls, and the executor execu- 
 tion as to the damages." *^ 
 
 § 87. Parties Defendant. — In determining who must 
 be parties defendant in a writ of scire facias, we may 
 consider the question, first, with reference to the orig- 
 inal defendants in the suit; and second, with refer- 
 ence to new persons Avho are to be affected by the pro- 
 
 40MoKinney v. Mehaffoy, 7 Watts & S. 276. 
 
 41 Murphy v. Cochran, 1 Hill, 330; Clark v. Dieses. 5 Gill. 118; 
 McRoborts v. Lyon, 79 Mich. 25; Wonderly v. Lafayette County, 74 
 Fed. Rop. 702. 
 
 42Wolls V. Craham, 30 W. Va. G05. 
 
 43 Erust's Estate, 104 Pa. St. 87. 
 
 44 Foster on Scire Facias, ISO.
 
 § 87 EXECUTION ON DORMANT JUDGMENTS. 318 
 
 posed revivor. A scire facias should conform to the 
 judgriient, and must therefore be joint when the judg- 
 ment is joint.*^ Where there is a judgment against 
 two or more defendants, it may be revived against one 
 alone if he consents thereto; for, as he is the sole person 
 injured bj such revivor, he is the sole person who can 
 object, and even his objection should be interposed be- 
 fore the judgment on the scire facias is entered against 
 him.^^ In an early English case, one of two judgment 
 debtors having died, a scire facias was prosecuted 
 against the survivor alone, correctly describing the 
 original judgment, and suggesting the death of the 
 other defendant. This scire facias was sustained, be- 
 cause it was said that the court could not know but 
 that the plaintiff intended to take out a fieri facias and 
 levy it on the personal estate of the survivor, which he 
 could lawfully do; but, at the same time, the court 
 stated that the jjlaintiff could not be allowed to talTe 
 out and execute an elegit on such revived judgment.*'^ 
 But at the present day, the rule seems to almost uni- 
 versally prevail that, where there is a joint judgment 
 against two or niore, there must, unless the nonjoinder 
 is waived, be a joint scire facias. The judgment must 
 be revived against all the defendants, when all are still 
 living; and when one has died, his representatives 
 must be made parties in his stead. The plaintiff can 
 neither proceed against the survivors without joining 
 the representatives of the deceased, nor against the 
 representatives of the deceased without joining the 
 survivors."** And it is said that a discontinuance as to 
 
 *5 Rowland v. Harris (Tex. Civ. App.), 34 S. W. 295. 
 40 Edwards' Appeal, G6 Pa. St. 89. 
 
 47 Edsar v. Smart. T. Kaym. 26. 
 
 48 I-'oster on Scire Facias. 20; Sainsbury v. Prin^le, 10 Barn. & C. 
 751; Grenell v. Sharp, 4 "Whart. 344; McAfee v. Patterson, 2 Smedes
 
 31'J EXECUTION ON DORMANT JUDGMl!:NTS. § 87 
 
 liny of the necessary parties to a scire facias operates 
 as a discontinuance as to all.'^* The (•omnion-law rules 
 upon tliis subject may be modified by implication by 
 cbanninj]^ the character of the liability to be revived. 
 Thus, by the common-law rule a judgment against two 
 or more persons is construed to be joint, and to every 
 action thereon all the defendants are required to be 
 made parties. By statutes in some of the states, judg- 
 ments upon specified causes of action are several as 
 well as joint. Where such is the case, a revivor, 
 whether by scire facias or any other authorized pro- 
 ceeding, may be, if the plaintiff so elects, against any 
 of the defendants without including the otliers."'^** If 
 
 & M. 593; Fowler t. rviikerby. Dowl. P. C. 082; Murray v. Baker. 5 
 B. Mon. 172; Trriiy v. ^IcDowcll, 5 T. B. Mou. 501; Iloliler v. Common- 
 wealth, 3 A. K. Marsh. 407; I'anton v. Hall, Salk. 59S; Rex v. Chap- 
 man, 3 Austr. 811; lleudorson v. Vandhook, 24 Tex. 358; Austin v. 
 Reynolds, 13 Tex. 544; :Mitchell v. Smith, 1 Litt. 243; Coleman v. 
 Edwards, 2 Bibb, 595; Williams v. Fowler, 3 T. B. Mon. 31G; Bolinger 
 V. Fowler, 14 Ark. 27; Greer v. State Bank, 5 En.?. 45G; 2 Saund. 51, 
 note 4, to case of Trethewy v. Ackland; but in Alabama plaintiff may 
 discontinue as against either defendant; Hanson v. Jacks, 22 Ala. 
 549; and in Arkansas and Iowa may proceed against a survivor 
 without joining the representatives of a deceased defendant. Vre- 
 denberg v. Snyder, G Iowa, 39; Finn v. Crabtree, 7 Eng. 507. But 
 ■when a scire facias recites the judgment properly, and calls on all 
 the defendants to show cause, and when part are summoned, it ap- 
 pears that the others are insolvent, or dead, or out of the state, or 
 have nothing, it has been held that judgment might be entered 
 against those summoned; and "that the award of execution is not 
 necessarily to pursue the form of the scire facias, but may bo accom- 
 modated to what shall be judicially ascertained to be the law fit 
 for enforcing the judgment; and also, that if it appear of record 
 that one of the defendants to the judgment cannot be summoned and 
 need not be summoned, for that he has not the ability to be con- 
 tributory to the payment of the judgment, the execution for the 
 whole may rightfully issue against the other." Blnford v. Alston. 
 4 Dev. 355. 
 
 *» Morton's Exrs. v. Croghan's Terre-tenants, 20 Johns. 106; Mc- 
 Afee V. I'atterson. 2 Smedos & M. 593. 
 
 80 Patterson v. Walton, 119 N. C. 500; United States v. Houston, 
 48 Fed. Rep. 207.
 
 § S7 EXECUTION ON DORMANT JUDGMENTS. 32a 
 
 one of the parties (lefendant to a judgment has been 
 released therefrom, as by his discharge in bankruptcy,, 
 and it can no longer be enforced against him, it is said 
 he need not be made a party to any scire facias there- 
 on.^^ 
 
 Strangers to the original judgment may be affected 
 by its revivor against the original defendant; and this 
 may happen whenever he sells or encumbers the lands 
 upon which the judgment is a lien. Whether those 
 who have thus acquired interests under the defendant 
 must be joined with him in the scire facias is a dis- 
 puted question, upon which the authorities are some- 
 what meager. In ^Maryland it seems that, although 
 the defendant be living, the judgment cannot be re- 
 vived against him so as to affect his grantees unless 
 they are made parties.^- But in Pennsylvania and in 
 New York an opposite view has been taken, one show- 
 ins that it is onlv "in the case of the death of the or- 
 io'inal defendant that the terre-tenants are to be made 
 parties, and not wliere the original defendant is liv- 
 ing." ^^ This view, we think, is sustained bv the books 
 of practice. In none of these works do we find any 
 reference to any case in which the successors in inter- 
 est of a living defendant need be summoned as terre- 
 tenants. On the contrary, it seems always to be as- 
 sumed that the only instances in which it can be neces- 
 sary to summon others than the original defendants 
 are where new persons have become interested, either 
 tlirough the death, marriage, or bankruptcy of the de- 
 fendant. 
 
 81 Hanson v. Jacks. 22 Ala. r.40: Greor v. State Bank, 10 Ark. 458. 
 
 52 Doub V. Barnes, 4 Gill, 11, explaining Miupli.v v. Cord. 12 Gill 
 & J. 182. See, also, Lusk v. Davidson. ?, Pen. & W. 220. 
 
 c". Youni,' V. Taylor, 2 Binn. 228: Jneksou v. Shaffer, 11 Johns. 513;. 
 Kighter v. Eitteuhouse, 3 Kawle, 278.
 
 321 EXFX'UTION ON DORMANT JUDGMENTS. § i>7 
 
 Upon the death of a defendant, leaving a judgment 
 which is not a lien on any real estate, no one but his 
 personal representative need be a party to the scire 
 facias. But where the judgment is for the possession, 
 or affects the title, or is a lien on real estate, the rule 
 is different; and it becomes necessary to warn all per- 
 sons whose interests in the real estate are liable to be 
 prejudiced by a revivor.^^* In New York and Missis- 
 sippi it is said to be improper to join the heirs with 
 the personal representatives of the deceased.^* But in 
 other states the heirs, personal representatives, and 
 terre-tfuants of the deceased may all be joined in one 
 scire facias.^^ In ejectment, where the judgment is 
 for the possession of lands and for damages, both the 
 heirs and representatives of the deceased are neces- 
 sary parties to its revivor; ^** but where the judgment 
 is for possession alone, the personal representatives 
 need not be warned, if, under the law prevailing in the 
 jurisdiction where the lands lie, such representatives 
 are not entitled to be in possession thereof."'^ If the 
 judgment be for money, it is primarily chargeable 
 against the executor, and no revivor ought to be en- 
 tered against the heirs until after a return of nihil as 
 to the executor.^* Persons entering as tenants of the 
 
 ■3a Tiers v. Codd, 87 Md. 447. 
 
 04 Lee V. McClosky, 44 How. Pr. 60; Barnes v. McLemore, 12 
 Smedes & M. 316. 
 
 55 Calloway v. Eubank, 4 J. J. Marsh. 2S6; Reynolds v. Henderson, 
 2 Gilm. 110; Rowland v. Harbaugh, 5 Watts, 3Go; Graves v. Skeels, 6 
 Ind. 307. 
 
 66 Mitchell V. Smith, 1 Litt. 243. 
 
 BT Thompson v. Dougherty, 3 J. J. Marsh. 564; Walden v. Craig, 
 14 Pet. 147. 
 
 68 Pantou V. Hall, Carth. 107; Alston v. Munford, 1 Brock. 206; 
 Brown v. Webb, 1 Watts, 411: Bingham on .Judgments and Execu-?- 
 tlons. 131; Roland v. Harbaugh, 5 Watts, 305. 
 Vol. I.-'21
 
 § 87 EXECUTION ON DORMANT JUDGMENTS. 322 
 
 defendant in ejectment after the entry of the judg- 
 ment are said to be unnecessary parties to a scire fa- 
 cias, because their holding is in subordination to the 
 defendant, and they may properly be dispossessed un- 
 der a habere facias against him."** In Alabama, if 
 there are two executors of the deceased defendant, one 
 of whom is beyond the jurisdiction of the court, he may 
 be omitted from the scire facias.^® Where a defend- 
 ant is imprisoned for life upon a conviction for felony, 
 and is by the law civilly dead, he cannot be a party to 
 a scire facias. It ought to be directed to his heirs or 
 representatives; and, if directed to and served upon 
 him personally, is entirely inoperative.**^ None but 
 those who are made parties to the scire facias are af- 
 fected by the judgment of revivor.^^ One about to 
 prosecute a scire facias to revive a judgment lien 
 against the successors in interest of a deceased defend- 
 ant, in determining who are to be made parties, must 
 be governed by the same principles which would be 
 applicable to the foreclosure of a mortgage or other 
 lien. He must bring in all persons holding title under 
 the defendant, but subordinate to the lien; but he need 
 not and cannot proceed against- persons whose claims 
 are adverse to the defendant's title, or paramount to 
 the lien.**^ "It is the usual way to join the heir and 
 terre-tenants in the writ of scire facias; but it is said 
 that if it be returned that the heir has no lands, the 
 writ may proceed against the tenants of the lands 
 
 69 Lunsford v. Turner, 5 J. J. Marsh. 104; Von Puhl v. Rucker, 6 
 Iowa, 187. 
 60 Hanson v. Jacks, 22 Ala. 549. 
 ei Troup v. Wood, 4 .Tohns. Ch. 228. 
 
 62 Campbell v. Rawdon, 19 Barb. 494. 
 
 63 Morton v. Crogban, 20 .Tolins. lOG; Lusk v. Davidson, 3 Pen. & 
 W. 229; Polk v. Pendleton, 31 Md. 118; Jarrett v. Tomliuson, 3 Watts 
 & S. 114.
 
 323 EXECUTION ON DORMANT J L'pLlMENTd. §68 
 
 without him, and it may be against the tenants of the 
 lands generally, without naming them, or against 
 them by name, but the former is the usual form; for if 
 the plaintill' undertakes to name them, he must name 
 them all, and if he do not, those who are named may 
 plead in abatement. It seems, however, to be the bet- 
 ter opinion that the terre-tenants alone are not to be 
 charged until the heir be summoned, or it be returned 
 that there is no heir, or that the heir hath not any 
 lands to be charged." ^ 
 
 § 88. Form of the Writ.— The writ of scire facias an- 
 swered the double purpose of a writ and of a declara- 
 tion.^^ Its form, therefore, necessarily varied to cor- 
 respond to the various contingencies in which it might 
 issue. It was directed to the sheriff, and recited: 1. 
 The recovery of a judgment, showing the court, 
 amount, and parties; 2. The change, if any, in the par- 
 ties to the judgment, stating what new parties had be- 
 come interested; 3. That, notwithstanding the judg- 
 ment, execution still remains to be done; 4. That plain- 
 tiff demands that he be provided with a proper rem- 
 edy; 5. It commanded the officer to make known to the 
 defendant, or other person designated in the writ, that 
 he should be before the court, at a date specified, to 
 show cause why plaintiff ought not to have execution 
 of the judgment. Xo petition or complaint is neces- 
 sary to obtain a scire facias; or perhaps it would be 
 more correct to say that the scire facias is a complaint 
 
 «4 Foster on Scire Facias, 190. 
 
 «5 Foster on Scire Facias, 340; Blake v. Dodomead, 2 Stransre. 77r>; 
 Bank of Scotland v. Fenwick, 1 Ex. 70C; Xunn v. Claxton, 3 Ex. 
 715; State v. Robinson, 8 Yerg. 370; Farris v. People. 58 111. 26; 
 ralhoun v. Adams. 43 Ark. 238; Lassello v. Godfroy. 1 Blackf. 29S; 
 VVhitworth v. Thompson, S Lea, 480; McVeigh v. Old Dominion 
 Bank, 76 Va. 207.
 
 § 8S EXECUTION ON DORMANT JUDGMENTS. 324 
 
 as Mell as a writ. It is tlierefore essential that it state 
 all the facts necessary to authorize the relief sought/'^ 
 
 68 Huey V. Eedden, 3 Dana, 488; McVickar v. Ludlow, 2. Ohio, 24G; 
 Hicks V. State, 3 Ark. 313. 
 
 The followiug is the form of the writ cmiiloyed in IMichigan in a 
 somewhat peculiar and complicated case, and sustained by the court: 
 
 "State of Michigan, ) 
 
 > ss 
 Clinton county. ( ' 
 
 "To the sheriff of the county of Clinton, greeting: 
 
 "W-hereas, William N. McRoberts lately, to wit, on January 9» 
 18SG, in the circuit court for the county of Clinton, by the judgment 
 of said court, recovered against Charles W. Lyon $300 for his dam- 
 ages, which he had sustained by reason of the not performing of 
 certain promises and undertakings then lately made by the said 
 Charles W. Lyon to the said William N. Mcltoberts, and also $68.50 
 for his costs and charges by him about his said suit in that behalf 
 expended, whereof the said Charles W. Lyon was convicted, as ap- 
 pears to us of record. 
 
 "And whereas, of the said damages the sum of $105 was lawfully 
 and in good faith assigned fcy the said William N. McRoberts to one 
 David G. Baxter on .January 9, 1886, of which the said Charles W. 
 Lyon then had due notice. 
 
 "And whereas> on November 3, 188G, there had been paid on said 
 judgment of the said damages, the sum of $90, but no part of the 
 said $195 assigned as aforesaid to said Baxter had been paid, and 
 there was then due and unpaid on the said judgment, of the damages 
 aforesaid, the sum of .$210, besides the costs and interest, in all 
 amounting to $217.31. 
 
 "And whereas, on the said third day of November (execution of 
 said judgment having been theretofore stayed by the court), an 
 execution was duly issued out of and under the seal of the court, 
 to the sheriff of said county of Clinton directed, commanding him to 
 make of the goods and chattels, lands and tenements, of said Charles 
 W. Lyon and one Warner Bunday, against whom, the said Bun- 
 day, judgment had been entered on motion as the surety of said 
 Lyon on his appeal bond, the amount of such judgment and costs, 
 to render to said William N. McRoberts in sixty days from the is- 
 suing of the same. 
 
 "And whereas, on December 21, ISSG, the said Charles W. Lyon 
 recovered in the circuit court for the county of Clinton, by the judg- 
 ment thereof against the said William N. McRoberts, the sum of 
 $132.69 for his damages, and .$22.60 cnsts. 
 
 "And whereas, on DeceinVx'r 22. 1<SS(;. execution was duly issued 
 on said judgment to the said sheriff directed.
 
 525 EXECUTION ON DORMANT JUDGMENTS. § 88 
 
 and if it fails to do this, it may, in some of the states, 
 
 "Aud wlioreas, the sherilT, then Laviu;; the two executions afore- 
 said iu bis liauds. oiroucously, and without auihurity, thcruuijou set 
 oft' the amount of said hist execution iu favoi* of said Charh'S W. 
 Lyou against said ^lelloberts, aj;ainst the said execution of said Mo 
 Itoberls ayaiust said Lyon and Buuday, to wit, the sum of $15tJ.U7. 
 
 "And whereas, the said sheriff aiso set off against said execution 
 a further suiii of $76.02. being the amount of au execution issued by 
 William Brunson. a justice of the peace of the township of Bingham, 
 iu said county, on a judgment rendered by hlin In favor of said 
 Charles W. Lyon against said AVilliain N. Mcltoberts, and, having 
 collected the further sum of $G1.24, returned said execution In favor 
 of said William N. Mcltuberls against said Charles W. Lyon and his 
 said surety, Warner Bunday, satislied in full, although there was 
 then due to said David G. Baxter, assignee of said William N. Mc- 
 Roberts, on the said judgment and said execution, the sum of 
 $14LG7 and interest, no part of which has been paid to him, aud in 
 which amount said judgment still remains and Is unsatisfied. 
 
 "And now, ou behalf of tlie said William N. McRoberts, in our 
 said circuit court, Ave have been informed that although judgment 
 be thereupon given, wnlch he avers still remains in full force and 
 effect, in no wise set aside, reversed, paid off, or satistied, to the 
 amount of the said $141.67 and interest, yet execution of the said 
 judgment to the amount of the said $141.67 still remains to be made 
 to him. 
 
 "Therefore, the said William N. McRoberts has besought us to 
 provide him a proper remedy In this behalf; and we, being willing 
 that what is just iu this behalf should be done, command you that 
 you make known to the said Charles W. Lyon and Warner Bunday, 
 his surety as aforesaid, that they appear before the circuit court on 
 February 15, 1888, that being a day in term of said court, to show 
 if they know or have anything to say for themselves why the said 
 William N. McRoberts ought not to have execution against him aud 
 his said surety, Warner Buuday, of the balance of said judgment, 
 to "wit: the said sum of $14(5.30, which Is yet unpaid, according to 
 the force, effect, and form of said recovery. If it shall seem expedi- 
 ent for him so to do, and further to do and receive what the court 
 shall then and there consider them in this behalf, and have you then 
 and there this writ. 
 
 "Witness, the Hon. Vernon H. Smith, Circuit Judge, at St. Johns, 
 In said county, this 9th day of February, ISSS. 
 
 CHARLES H. PALMER. Clerk. 
 "To Charles W. Lyon and Warner Bunday: 
 
 "Take notice that, ou filing an amended writ in this cause (of 
 which within is a true copy^, a rule was entered in the book of the 
 common rules, kept by the clerk of the court at his office in St. 
 Johns, requiring you to appear and plead to said writ withiu twenty
 
 § 88 EXECUTION OX DORMANT JUDGMENTS. 326 
 
 like an}' other confessedly defective complaint, be de- 
 murred to,*'" and in others may be quashed upon mo- 
 tion.^^ The failure to demur or to move to quash only 
 admits the facts stated, and, if they are not such as will 
 warrant the judgment given, it may be reversed on ap- 
 peal or by writ of error, as may other judgments by de- 
 fault based upon complaints which are radically defect- 
 ive,**'"* With respect to designating heirs and terre-ten- 
 ants, it has been said that they ought to be named in the 
 writ,'** or at least that it is preferable that they be so 
 named. But there seems to be no doubt that this is 
 unnecessary.''^ Instead of specifically naming the 
 heirs and terre-tenants, the writ may and generally 
 does command the sheriff as follows: ''That by honest 
 and lawful men of your bailiwick, you make known to 
 the heirs of the said C D, and also to the tenants of all 
 the lands and tenements in your bailiwick, of which 
 said C D, or any person in trust for him, was or were 
 seised on the day of , on which day the judg- 
 ment aforesaid was given, or at any time after.'""^ The 
 judgment must be stated in the writ with as much par- 
 ticularity as would be required in a complaint, though 
 we apprehend that neither in a complaint nor in a scire 
 
 days after return-day of said amended writ and notice of said rule 
 or judgment, etc. 
 
 J. H. Fedewa and Martha Strickland, 
 
 Plaintiff's Attorneys." 
 McRoberts v. Lyon, 79 Midi. 25. 
 
 67Prather v. Manro, 11 Gill & J. 261; Graham v. Smith, 1 Blackf. 
 413. 
 
 68 Evans v. Froeland, 3 Munf. 119. 
 
 6» Waller v. Huff, 9 Tex. 530; Wray v. Williams, 2 Yerg. 301. 
 
 70 Chahoon v. Hollenbach, 16 Serg. & R. 425, 16 Am. Dec. 087. 
 
 71 Seawell v. Williams. 5 Hayw. (Tenn.) 280; Williams v. Fowler, 
 3 T. B. Mon. 316; Hughes v. Wilkinson, 28 Miss. 600. 
 
 72 For forms of writs of scire facias, see Tiild's Forms, 305-335; 
 Foster on Scire Facias, 379-388; Tillinghast's Forms, 39-58.
 
 327 EXECUTION ON DORMANT JUDGMENTS. § 8S 
 
 facias would an immaterial variance be fatal, if from 
 what is set forth it is clearly apparent what judgment 
 is sought to be revived by the jjroceedingJ^ Of this 
 there is as little doubt upon the authorities as there is 
 in reason. Uence, Avhere a claim was made that a 
 scire facias did not correctly describe the parties and 
 the judgment, and therefore did not continue its lien, 
 the court in overruling this claim said: "It seems to us 
 that all that is necessary here is to ascertain that there 
 is such an identity to these proceedings that one of 
 these judgments is a revivor of the other," '"'* If the 
 judgment stated is such that some further action is 
 necessary after its entry to make it final and effective, 
 such additional action should be shown by the writ.'"' 
 If the judgment on which execution is sought is in 
 ejectment, the writ must state the term recovered by 
 such judgment, for otherwise it cannot be known that 
 such term has not expired, and with it the plaintiff's 
 right to executionJ^ While original actions of eject- 
 ment were brought to recover a term of years, such is 
 not the case in many parts of the United .States. Such 
 an action, or, at all events, an action for the recovery 
 of real property, may involve the fee as well as a lesser 
 interest in the land. If it does not appear from the 
 scire facias, or the terms of the judgment as stated 
 therein, that the recovery was of the fee, it is still 
 necessary to show in the writ what the recovery was 
 for, so that it can be seen therefrom that under it the 
 plaintiff remains entitled to the possession of the prop- 
 's Wolf V. ronnsford, 4 Ohio. 397; Ward v. Prather, 1 J. J. Marsh. 
 4; Barron y. Tart, 19 Ala. 78. 
 
 74 Landou v. Brown, IGO Ta. St. 538; Wood v. Codding, 134 Pa. 
 St. 91. 
 
 75 Evans r. Freoland, 3 Mnnf. 119. 
 TeCrillith v. Wilson, 1 J. J. Marsh. 209.
 
 § 88 EXECUTION ON DORMANT JUDGMENTS. 328 
 
 ertj."' If, on the other hand, it appears from the writ 
 tliat by the judgment, or the findings of the court, the 
 plaintiff was found to be entitled to the fee, no further 
 statement need be made therein to show that he re- 
 mains entitled to a writ to place him in possession^* 
 
 If any facts are disclosed by the writ from which the 
 satisfaction of the judgment is inferable, then such 
 probable satisfaction must be negatived. Thus if it 
 appears that a ca. sa. has been issued, and the defend- 
 ant arrested thereon, such facts must be disclosed as 
 would establish i^laintiff's right to execution, notwith- 
 standing such taking of the person of the defendant in 
 execution.''^ So if property has been levied upon and 
 sold, but has been lost to the plaintiff by reason of 
 some paramount title or lien, that fact should be 
 stated.«<> ^ 
 
 It ought to appear from the writ that it is necessary 
 to entitle the plaintiff to execution. If he is not enti- 
 tled to execution because the judgment has become 
 dormant from lapse of time, that fact ought to be sug- 
 gested. Hence, a scire facias is defective if it fails to 
 state the date of the judgment, because, in the absence 
 of such statement, it does not appear but plaintiff 
 may have execution without proceeding by scire fa- 
 cias.*^ It is not, however, essential or usual to state 
 that no execution issued within a year and a day. This 
 fact, as well as the fact that the judgment remains in 
 force, seems to be sufficiently suggested by the aver- 
 ment, "that although judgment aforesaid, in form 
 aforesaid, is given, execution nevertheless, for the debt 
 
 "Smith V. Stevens, 133 111. 192. 
 
 T8 Wilson V. School Trustees, 144 111. 29. 
 
 79 Dozier v. Gore, 1 Litt. 163. 
 
 80 Baxter v. Shaw, 28 Vt. r^QQ. 
 
 81 Hough V. Norton, 9 Ohio, 45; Buckner v. Pipes, 5G Miss. SCO.
 
 329 EXECUTION ON DORMANT JUDGMENTS. § 88 
 
 and (lamngcs aforesaid, remains to be made to him," 
 the plaintili".'^- The proposition that the phiiutill" is 
 not entitled to scire facias unless tlie lime iuterveninir 
 after the entry of the judgment is such as to render the 
 writ necessary has been vigorously and, we, thiuk, suc- 
 cessfully, conibattcd. In a case in which the <iuestioii 
 arose, the statutes of the state declared that the plain- 
 tiff might, at any time within a designated number of 
 years specified therein, sue out scire facias to revive 
 his judgment and lien, A plaintiff sued out his writ 
 within less than that time, and it was objected that the 
 proceeding was unnecessary and to maintain it was to 
 permit any plaintiff to needlessly subject the defend- 
 ant to repeated writs and the costs incident thereto. 
 To this it might well have been answered that, what- 
 ever was the common-law rule upon the subject, the 
 statutes in question gave the plaintiff an absolute right 
 to the writ at any time within the dates specified; 
 but the courts eiamined the question by the aid of 
 the common-law authorities and reached the conclu- 
 sion therefrom that, independently of any statute, a 
 plaintiff could sue out this writ whether the time with- 
 in which he was entitled to execution without it had 
 <?xpired or not, and that the only penalty is, ''if the 
 plaintiff sue out a scire facias within a year after the 
 judgment, he cannot afterward have a capias ad satis- 
 faciendum within the year, till he hath a new judgment 
 in the scire facias." ^^ 
 
 Where an executor or administrator is sought to 
 be brought before the court by scire facias, it must 
 show the facts making him answerable to the writ, 
 
 82 Albin V. People. 46 111. 372; Wenvcr v. Reose. 6 Ohio, 418. 
 
 83 Roberts v. rosing, Rolle's Ad. 900; Lambson v. Moffett, Gl Md. 
 42C; Wonderly v. I^afayette County, 74 Fed. Rep. 702.
 
 § 88 EXECUTION ON DORMANT JUDGMENTS. 330 
 
 and hence it must suggest the death of the judg- 
 ment defendant, and the appointment of such execu- 
 tor or administrator.^ Where still other facts are 
 required to establish the plaintiff's right to execu- 
 tion, they must be stated. Therefore, a scire facias 
 against the administrator of one of several codefend- 
 ants is demurrable, unless it shows cause for proceed- 
 ing against such administrator in the absence of the 
 other defendants.^^ If the object of the proceeding is- 
 to make an administrator answerable personally, the 
 scire facias must aver that he has converted or wasted 
 the goods of his intestate which came to his hands "to 
 be administered upon, to the value of said debt and 
 costs, with intent that the execution aforesaid should 
 not be made," and must notify him to appear to show 
 cause why plaintiff should not have "execution against 
 him of the debt, et cetera, to be levied out of his own 
 proper goods, chattels, lands, and tenements."®'' When 
 heirs are proceeded against to subject to execution 
 lands descended to them, it appears to be unnecessary 
 to describe such lands in the scire facias,**'' though the 
 practice of so describing them has been commended 
 as the better one.*® Regarded as a pleading, the writ 
 of scire facias as sanctioned by the approved pre- 
 cedents is essentially defective, in not designating the 
 heirs or terre-tenants who are in effect made parties 
 
 84 Walker v. Hood, 5 Blackf. 266. 
 
 88 Graham v. Sa^ith, 1 Blackf. 414. 
 
 88 Wray v. Williams, 2 Yorg. 301. For scire facias to enforce pay- 
 ment of sum awarded as owelty in partition, see Davis v. Norris, 
 8 Pa. St. 122. 
 
 87 Commercial Bank v. Kendall, 13 Smodes & M. 278; Union Bank 
 V. Meigs, 5 Ohio, 312. But in Tennessee, before a scire facias can 
 Issue against heirs, it must be suggested to the court that certain 
 real estate has descended to them, etc. Hillmhn v. Hickerson, 3 
 Head, r)73; Frierson v. Harris, 5 Cold. 146. 
 
 88 Union Bank v. Meigs, 5 Ohio, 312.
 
 331 EXECUTION ON DORMANT JUDGMENTS. g 89 
 
 (It'fc'udant, and in not describing the lands against 
 which the execution, when issued, will operate. This 
 defect is generally supplied by the retuiii to the writ. 
 From the writ and return together, it must always 
 appear who were proceeded against as heirs and terre- 
 tenants, and with respect to what land they were sum- 
 moned to appear. The writ need not negative the 
 various matters which, if existing, would constitute 
 a defense, because it is the business of the defendant 
 to plead these if he wishes to make them available.**'** 
 A scire facias seems to be subject to amendment to the 
 same extent as an original execution.^* 
 
 § 89. Serving the Writ.— "Although the intent of the 
 scire facias is to give the party against whom execution 
 is about to issue notice or warning thereof, yet by the 
 general practice it is wholly defeated, for the defend- 
 ant may be summoned or not, as the party thinks fit; 
 and indeed, the usual way is to revive the judgment 
 without giving the party any notice." ^^ "On the return 
 day of the writ the sheriff either returns 'scire feci,' 
 that is, that he has warned the party, or 'nihil,' that is, 
 that the party has nothing by which he can warn him. 
 Where the sheriff returns 'nihil,' the party must sue 
 
 89 Rogers v. Denliatn, 2 Grntt. 200. 
 
 90 Thompson v. Douglierty, 3 J. J. ]\rarsh. 504; Arripon v. Com- 
 monwealth, 1 Watts, 374; Kainey v. Commonwealth, 10 Watts, 343; 
 Holland v. Phillips, 2 Perry & D. 33G; 10 Ad. & E. 149; Foster on 
 Scire Facias, 375; Buxom v. Hoskius, 6 Mod. 2G4; Rex v. Ayro, 1 
 Strange, 43; Rex v. Aires, 10 Mod. 2.^9, note; Thorpe v. -Hook. 1 
 Dowl. P. C. r.01; Klos v. Dodd. 4 Dowl. P. C. G7; Baker v. Neaver. 1 
 Cromp. & M. 112; 3 Tyrw. 233; Webb v. Taylor. 1 Dowl. & L. 076; 
 Anthony v. Humphries, 4 Eng. 170; Bryant v. Smith, 7 Cold. 113; 
 Otterback v. Patch, 5 App. Dec. 00; Whitworth v. Thompson. S I^a, 
 480. 
 
 •1 2 Sellon's Practice, 197; Bingham on Judgments and Execu- 
 tions, 120.
 
 § S9 EXECUTION ON DORMANT JUDGMENTS. 332 
 
 out a second or alias writ of scire facias, and, if the 
 slieriff returns nihil also to the second writ, and the 
 party do not appear, there shall be judgment against 
 him." "- In other words, two returns nihil are equiva- 
 lent to one return of scire feci,"'* with this exception, 
 that when a judgment is revived without any actual 
 notice, the defendants may, either on motion or by 
 audita querela, be relieved if the revivor was im- 
 proper.^* While this co^structive service is permitted, 
 yet with respect to what it does require the law seems 
 to be quite exacting. If the writ is served by a sheriff 
 to whom it was not directed,^^ or the service is by giv- 
 ing a copy to a member of the defendant's family, the 
 service is a nullity.^^ So if there are two or more 
 persons to be proceeded against, the service of the writ 
 upon one of them will not justify any judgment against 
 the others.^'^ But the constructive service of scire 
 
 82 Bingham on Judgments and Executions, 124. 
 
 »3 Cox V. McFerron, Breese, 10; Kearns v. State, 3 Blackf. ."34; 
 Barrow v. Bailey, 5 Fla. 9; Barratt v. Cleydon. Dyer, 168; Ratcliffe's 
 Case, Dyer, 172; Gumming v. Eden, 1 Cow. 70; 2 Wm. Saund. 72 s, 
 note to Underliill v. Devereux; Cliambers v. Carson, 2 Wliart. 9; 
 Warder v. Taiuter, 4 Watts, 274; Compher v. Anawalt, 2 Watts, 490; 
 Bromley v. Littleton, Yelv. 11,3; Barcock v. Thompson, Styles, 281, 
 288; Sans v. People, 3 Gilm. 327; Andrews v. Harper, 8 Mod. 227; 
 Kandal v. \Vale, Cro. Jac. 50; Besimer v. People, 15 111. 440; Dunlevy 
 V. Ross, Wright, 287; Woodford v. Bromfield, 1 IMurph. 187; Choate 
 V. People, 19 111. 03; Kearns v. State, 3 Blaekf. 334; Brown v. Wy- 
 gant, 163 U. S. 618. But under more recent rules and decisions, a 
 judgment will not be entered on two nihils unless efforts have been 
 made to summon Ihe defendants. Sabine v. Field, 1 Cromj^. & M. 
 466; Foster on Scire Facias, 355. 
 
 94 Anonymous, Salk. 93; Ludlow v. Lennard, 2 Ld. Raym. 1295; 
 Wharton v. Richardson, 2 Strange, 1075; Randal v. Wale, Cro. Jac. 
 59; Wicket v. Cremer, 1 Ld. Raym. 439; Salk. 264; 12 Mod. 240; Holt 
 V. Frank, 1 Maule & S. 199; Foster on Scire Facias, 357; Barrow v. 
 Bailey, 5 Fla. 9. 
 
 95 Kennedy v. People, 15 111. 418. » 
 
 96 McCombs V. Feeter. 1 Wend. 19. 
 
 97 Breckenridge v. Mellon, 1 How. (Miss.) 273.
 
 333 EXECUTION ON DORMANT JUDGMENTS. § 'JO 
 
 facias by two returns of nihil, or not found, operates 
 against those defendants only whose names are stated 
 in the writ. To a scire facias against the heirs and 
 terre-tenants, ''the sheriff returns either that there 
 are none, or that he has warned them to appear; in the 
 latter case, if the writ be general against the terre- 
 tenants, without naming them, .the sheriff should re- 
 turn that he has warned certain persons, describing 
 them, being tenants of all the lands in his bailiwick, 
 or certain persons tenants of certain lands, and that 
 there are no others." ^* The methods of warning the 
 defendants in scire facias have been modified by stat- 
 utes in many of the states where the w^it is still em- 
 ployed.*'** Unless the service of the writ is made in 
 some of the methods authorized by law, the judgment 
 of revivor is inoperative.***** While it is conceded that 
 the writ need not be personally served, there are doubt- 
 less cases in which the fact that it was not so served 
 may limit the operation of the judg-ment thereon in 
 so far as it is relied upon to create or continue a per- 
 sonal liability against the defendant, as where he was 
 beyond the jurisdiction of the court at the time. This 
 subject will receive attention in a subsequent sec- 
 tion.*«i ^ 
 
 § 90. Proceedings on Return of the Writ -Defenses 
 Which may be Made. — if the party summoned makes no 
 appearance, judgment will be entered against him. 
 "So where a scire facias is sued out on a joint judg- 
 
 •8 2 Win. Saund. 72 r; Gumming v. Eden, 1 Cow. 70. 
 
 89 Calloway v. Eubank, 4 J. J. ^Marsli. 280; Combs v. Youn?. 4 
 Yerg. 218, 26 Am. Dec. 22.">; Crutchfiold v. Stewart, 10 Yerg. 237; 
 Rice V. Taluiadge, 20 Vt. 378: Comstock v. Holbrook. IG Gray, 111. 
 
 100 Simmons v. Wood. 6 Yers:. .518; People v. The .Judges, 1 Wend. 
 19; Eddy v. Coldwell, 23 Or. 1G3, 37 Am. St. Rep. G72. 
 
 101 Post, § 93 a.
 
 § 90 EXECUTION ON DORMANT JUDGMENTS. 334 
 
 ment against two, if it be returned that one was sum- 
 moned, and he makes default, and that the other has 
 nothing, the plaintiff may have execution for the whole 
 against him who was summoned and made default. 
 So if it be returned that one of them is dead, and the 
 other was summoned, and he makes default." ^**^ If 
 the defendant appears, the plaintiff may declare 
 against him. The so-called declaration is, however, 
 nothing more than a recital setting forth a copy of the 
 writ, and praying for execution thereon.-^^^ The de- 
 fendant may plead either in bar or in abatement.^*** 
 "Thus to a scire facias on a judgment, the defendant 
 may plead nul tiel record, or payment, or a release, or 
 that the debt and damages were levied fieri fadas, 
 or that his lands were extended for them upon an 
 elegit, or his person taken in execution on a capias ad 
 satisfaciendum. So a terre-tenant may plead in bar 
 to a scire facias anything w^hich shows his lands not 
 liable to execution, or nonjoinder of other terre-ten- 
 ants. Hence, if the object of the writ is to subject 
 land to the lien of a judgment against defendant, a 
 terre-tenant may show that such defendant did not 
 have any interest in the property at the entry of the 
 judgment which was subject to execution, and that 
 he merely held it in trust for such terre-tenant.^^^ A 
 defendant may plead to a scire facias anything which 
 has been done under the original judgment which 
 exonerates him from liability." ^^ With respect to the 
 
 102 Bingham on Judgments and Executions, 125, 
 
 103 See Tldd's Forms, adapted to state of New York, 342; People v. 
 Society for Propagating the Gospel, 1 Paine, 652. 
 
 104 Alice V. Gale, 10 Mod. 112; Rex v. Hare, 1 Strange, 146. 
 106 Roller V. Caruthers, 23 Wash. L. R. 169. 
 
 108 Foster on Scire Facias, 353; Phillipson v. Tempest, 1 Dowl. & 
 L. 209; Giles v. Hutt, 5 Dowl. & L. 387; 1 Ex. 704; Mounteney v.
 
 335 EXECUTION ON DORMANT JUDGMENTS. § 90 
 
 judgment itself, manifestly the same defenses are 
 admissible as in an action upon a judgment, and none 
 other. If the judgment was by confession, it may be 
 shown to have been entered by a clerk who was not 
 authorized to receive or enter it.*^'^ Any circum- 
 stances may be proved which tend to show that the 
 judgment is void,^"* as that the court never obtained 
 jurisdiction of the person of the defendant.^'*" But 
 error or irregularity in the proceedings anterior to the 
 judgment cannot be urged by the defendants on scire 
 facias.**^ 
 
 "The principles of estoppel, attached to final adjudi- 
 cations, are as operative and conclusive in proceedings 
 in scire facias as in any other cases. No defense can 
 be made which existed anterior to the judgment," *" 
 
 Andrews, Cliff. G75; 4 Leon. 194; Glascock v. Morgan. 1 Lev. 92; 
 Scott V. Peacock, 1 Salk. 271; Holmes v. Newlands, 5 Ball & B. 
 370; Jefferson v. Morton, 2 Wms. Saund. 6; Clerk v. Withers, Ld. 
 Raym. 1075. The pendency of a writ of error is said not to bar 
 a scire facias to make an executor a party to the judgment. Snook 
 V. Mattock. G Nov. & M. 783^5 Ad. & E. 239; 2 liar. & W. 188. 
 
 107 Phelps V. Hawkins, 6 Mo. 197. 
 
 los L'lrich v. Voneida, 1 Pen. & W. 245; Griswold v. Stewart, 4 
 Cow. 457. 
 
 109 Clinton Bank v. Hart, 19 Ohio St. 372. 
 
 110 Anthony v. Humphries, 9 Ark. 176; Barber v. Chandler, 17 Pa. 
 St. 48, 55 Am. Dec. 5.33; Langston v. Abney, 43 Miss. 164; McAfee 
 V. Patterson, 2 Smedes & M. 595; Betancourt v. Ebeilin, 71 Ala. 
 461; Strong v. Baruliardt, 6 Or. 93. 
 
 111 Freeman on Judgments, sec. 445; Bowen v. Bonner, 46 Miss. 
 10; Aliens v. Andrews, Cro. Eliz. 283; Cook v. Jones. Cowp. 727; 
 Proctor V. Johnson, 2 Salk. GOO; Camp v. Baker, 40 Ga. 148; Koon v. 
 Ivey, 8 Rich. 37; McFarland v. Irwin, 8 Johns. 77; Davidson v. 
 Thornton, 7 Pa. St. VzS; Alden v. Bogart. 2 Grant Cas. 400; West v. 
 Sutton, 1 Salk. 2; Ld. Raym. 853; Bradford v. Bradford, 5 Conn. 127; 
 Ileller v.Joncs,4 Binn. 61; Sigourney v. Stockwell, 4 Mot. .'.IS; United 
 States V. Thompson, Gilp. 614; Hubbard v. Manning, Kirby, 256; 
 Cardesa v. Humes, 5 Serg. & II. 65; Watkins v. State, 7 Mo. S'U; 
 Dickson v. Wilkinson, 3 How. 57; Miller v. Shackelford, 16 Ala. 95; 
 Mathews. V. Mosby, 13 Smedes & M. 422; Person v. Valentine. 13
 
 § 90 EXECUTION ON DORMANT JUDGMENTS. 336 
 
 nor wliicli is so inconsistent with the judgment that 
 the maintenance of the defense implies or establishes 
 the falsity of the facts upon which the judgment 
 rests.^*- On the other hand, any defense which may 
 be made to an action at law may generally be made to 
 a scire facias thereon.*^^ Counterclaims which have 
 not been reduced to judgment are not available as a 
 defense,^^^ nor is fraud in its procurement. If there 
 was such fraud, the defendant should prosecute some 
 suit or motion to annul the judgment or restrain it» 
 enforcement.^*® Whatever defenses the defendant has 
 he must speciallyplead — he cannot present them under 
 a general denial.**** The principle of res judicata is, 
 however, on scire facias, as in other cases, confined to 
 the parties to the suit, and their privies in person or 
 in estate.**'' Of course, the defendants may show that 
 the judgment has been satisfied, or that, from some 
 cause occurring since the rendition of the judgment, 
 
 Smedes & M. 551; Duncan v. Harjrove, 22 Ala. 150; Smith v. Eaton, 
 36 Me. 298, 58 Am. Dec. 746; Ferebee v. Doxey, 6 Ired. 448; Thomas 
 V. Williams, 3 Dowl. P. C. G.S5; Baylis v. Hay ward, 5 Nev. & M. 
 613; 4 Ad. & E. 256. One who fails to plead his Infancy In the or- 
 iginal action cannot plead it against the scire facias. Kemp v. 
 Cook, 6 Md. .305. The same rule applies to a defendant who ne- 
 glected to plead his discharge in insolvency. Moore v. Garretson, 
 6 Md. 444. 
 
 112 Smith V. Eaton. 36 Me. 298, 58 Am. Dec. 746; I'ollard v. Eck- 
 ford, 50 Miss. 631; Dowling v. McGregor, 91 Pa. St. 410; May v. 
 State Bank, 2 Rob. (Va.) 50, 40 Am. Dec. 726; Koone v. Ivey, 8 
 Rich. 37. 
 
 113 McLeod V. Williams, 122 N. C. 451. 
 
 114 Jenkins v. Anderson (Pa.). 11 Atl. 558. 
 
 115 Bruno v. Oviatt, 48 La. 471. 
 
 116 Wonderly v. Lafayette County, 77 Fed. Rep. 665. 
 
 117 Griswold v. Stewart, 4 Cow. 4.59. In Massachusetts, a judg- 
 ment by default against a person summoned as a trustee is not 
 final, and he may, on scire facias, show that he was not, in fact, 
 chargeable. Brown v. Neale, 3 Allen, 74, SO Am. Dec. 53.
 
 337 EXECUTION ON DORMANT JUDGMENTS. § lO 
 
 the plaintiff is no longer entitled to execution."'* ^ut 
 upon the subject of jurisdiction there is an irreconcil- 
 able conflict of opinion, whether want of it may bt* 
 proved in opposition to the implied findings or express 
 recitals upon the subject contained in the record. The 
 better opinion is, that where there is some ground 
 for avoiding a judgment by some motion in that action 
 or by some indei)endent proceeding, such motion or 
 proceeding should be resorted to, and that the ques- 
 tion cannot be litigated upon scire facias. There is no 
 doubt that, if the want of jurisdiction is apparent on 
 the Ciice of the record, it may be urged as a defense 
 to a scire facias.^*" But if the record affirmatively 
 shows jurisdiction, such showing cannot be dis- 
 l)roved. '^'** To this rule an exception exists in Ne- 
 braska when the return of process shows it to have 
 been left at the defendant's residence, in which event 
 he is at liberty to prove, in answer to a scire facias, 
 that the place named was not his residence at the time 
 of such service. ^^^ 
 
 If the court pronouncing the original judgment had 
 jurisdiction, no defenses which might have been made 
 in that action can be urged on scire facias.-*^^^ There 
 may also be instances in which defenses are shut off, 
 although they could not have been urged in the origi- 
 nal action, as where the plaintiff therein sued upon a 
 
 118 Brown v. Morange, 108 Ta. St. 09; Seymour v. Ilubert, S3 Pa. 
 St. 34<}. 
 
 119 Frankel v. Satterfiekl. Iloust. 201; Harper v. Cunninsliain, 8 
 App. 1). C. 430; Lee v. Watkius. 3 Abb. P. 243; 13 How. Pr. 170. 
 
 120 Prince v. Dickson, 39 S. C. 747. 
 
 121 Haynes v. Aultman, 36 Neb. 257. 
 
 122 Harris v. Hart, 21 111. App. 348; Eddy v. Coldwell. 23 Or. 103, 
 37 Am. St. Rep. 072; Campboll's Appeal, 118 Pa. St. 344. 4 Am. St. 
 Rep. 509; I>aiier v. Ketuer, 102 Pa. St. 2G5, 42 Am. St. Rep. 833. 
 
 Vol. I.— '22
 
 § 90 EXECUTION ON DORMANT JUDGMENTS. 338 
 
 negotiable instrument of wliicli he was an endorsee 
 before maturity' in good faith and for value, and 
 he, after recovering judgment, transferred it to his 
 indorser. The defendant is not permitted to claim, in 
 answer to a scire facias, that he had a defense to the 
 original action which he was prevented from making 
 by the indorsement of the note to the plaintiff.*-^ A 
 terre-tenant cannot successfully defend a scire facias 
 on the ground that he purchased the land sought to 
 be charged without having any actual notice of the 
 judgment.^-^* There are cases which declare, in gen- 
 eral terms, that terre-tenants and other strangers to 
 the judgment may falsify it for fraud or irregularity in 
 its rendition/^^ ^ But we apprehend that the doctrine 
 of these decisions must be confined to such strangers 
 as were prejudiced by the judgment when it was en- 
 tered. For if the defendant was properly before the 
 court so as to give it jurisdiction, he could not attack 
 the judguient collaterally for fraud and irregularity, 
 and certainly he could not, after judgment, transmit to 
 others a right which he did not possess, or which he 
 had forfeited through his own want of diligence.*^^ *" 
 But where the original judgment was procured or suf- 
 fered with the view of prejudicing third persons, they 
 may be allowed to avoid it on scire facias; ^^ ^ for 
 "whenever a judgment or decree is procured through 
 the fraud of either of the parties, or by the collusion 
 of both, for the purpose of defrauding some third per- 
 
 123 Suppler V. Haefmann, 161 Pa. St. 33. 
 
 123a Ridge V. Prather, 1 Blackf. 401. 
 
 123b Proctor V. Johnson, 1 Ld. Pvaym. 669; 2 Salk. 600; Ulrich v. 
 Voneida, 1 Penr. & W. 250; Griswold T. Stewart, 4 Cow. 458. 
 
 123C Hellor V. .Tones, 4 Binn. 61. 
 
 123d Philipson v. Earl of Egremont, 6 Q. B. 587: 14 E. T. Q. B. 2.5: 
 Bosanqnet v. Graham, 6 Q. B. 601. note; Dodgson v. Scott, 2 Ex 
 457; 6 Dowl. & L. 27; 17 L. J. Ex. 321.
 
 :VM) EXECUTION ON DORMANT JUDGMENTS. § 91 
 
 son, ho may escape from the injury thus attempted 
 by showiuj^, eveu iu a collateral proceediug, the fraud 
 or collusion by which the judgment was obtained." ^^ • 
 
 § 91. Time in which the Writ must be Sued out.— In 
 England, a scire facias cannot be sued out to revive a 
 judgment, except within twenty years, unless in the 
 meantime some payment thereon has been made, or 
 «ome written acknowledgment of the continuing force 
 of the judgment has been given, in which cases the 
 scire facias must be sued out within twenty years after 
 the last payment or acknowledgment.*'* If the judg- 
 ment be less than seven years old, the writ issues of 
 course; but after that period, and before the judgment 
 is ten years old, "a side bar or treasury rule must be 
 obtained. If the judgment be between ten and fifteen 
 years of age, a scire facias is not allowed without a 
 motion in term, or a judge's order in vacation. If be- 
 tween fifteen and twenty years old, there must first be 
 a rule to show cause." In the United States, the stat- 
 utes of limitation applicable to proceedings on scire 
 facias prescribe different terms in the different 
 states.*""' Such a limitation may also be implied from 
 statutory provisions restricting the time within which 
 actions may be prosecuted upon, or writs issued for 
 the enforcement of, judgments. It must necessarily 
 'follow, if the right to enforce a judgment has expired 
 from any cause, that it must have carried with it the 
 
 i2ne Freeman on Judgments, sec. 336. 
 
 12* Foster on Scire Facias, 14, 29. 
 
 1-5 Mulllken v. Diivall, 7 Gill &J. 3."); Clark v. Sexton, 23 Wond. 
 477; I.angliam v. Grigsby, 9 Tex. 493; Fursht v. Overdeer, 3 W^atts 
 & S. 470; Green's Appeal. G Watts & S. 327; Code of Ala., sec. 2924; 
 Lansing v. Lyons, 9 Johns. 84; Bank of New York v. Eden, 17 
 Johns. 105.
 
 § 92 EXECUTION ON DORMANT JUDGMENTS. 34a 
 
 right to scire facias.*"^ Hence, if a statute requires 
 the presentation of a judgment as a claim against the 
 estate of a decedent within a time specified, and such 
 presentation is not made, the right to a scire facias 
 thereon is thereby lost.^''^ 
 
 § 92. An Irregular or Erroneous Scire Facias, like an 
 irregular or erroneous execution, is voidable, but not 
 void. If the irregularity is not taken advantage of in 
 some appropriate method, the judgment of revivor is 
 valid. It cannot be collaterally assailed, and will sup- 
 port title derived from an execution issued by its au- 
 thority.*'** Thus, if a plaintiff has become bankrupt^ 
 and the judgment has thereby vested in his assignee, 
 so that any proceeding to revive it should be prose- 
 cuted by him, but it is, notwithstanding, prosecuted by 
 the plaintiff, or, after his death, by his executor or ad- 
 ministrator, without objection on the part of the de- 
 fendant, the latter cannot avoid the effect of the re- 
 vivor by urging this irregularity.^^® A scire facias 
 and a judgment thereon may, however, be so irregular 
 as to be void, or, at least, as not to affect all the parties 
 intended to be affected thereby. If a scire facias is to 
 revive a judgment so that it shall continue to be a lien 
 on the lands of the defendant^ it must so describe the 
 judgment sought to be revived that there can be no 
 reasonable doubt upon the subject; and if the statute 
 prescribed acts to be done for the purpose of imparting 
 notice to persons who may deal with the lands to be af- 
 fected, those acts must be substantially performed. 
 
 128 Jerome v, Williams, 13 Mich. 521; Peters v. Vawter, 10 Mont. 
 
 201. 
 
 127 Scruj?c:s v. Tutt, 23 Kan. 181. 
 
 i28jaclvSon V. Robins, 16 .Tohus. .^)37: .Tackson v. Dolaney, 13 
 Johns. rj37, 7 Am. Dec. 403: Jackson v. Bartlott, 8 Johns. 365. 
 
 129 Brown v. Wygant, 163 U. S. 018.
 
 341 EXECUTION ON DORMANT JUDGMENTS. § 9'Ja 
 
 nonce, if the statute declares that, when a judgment 
 shall be revived by scire facias or otherwise, a note 
 thereof shall be made in the proper judgment docket 
 in the place where the other entries in the cause may- 
 have been made, if the judgment is not correctly re- 
 cited in the scire facias, and no note is made in the 
 judgment docket, the proceeding cannot impart con- 
 structive notice to any one, and may therefore be un- 
 availing against subsequent bona fide purchasers.^^'* 
 
 § 92 a. The Judgment Rendered upon Scire Facias 
 must be consonant with the relief sought. This relief 
 is nothing more than that ijlaintilf be allowed the 
 means necessary to make a pre-existing judgment 
 effectual and productive. No new recovery can be 
 had, and if a judgment is entered up in the nature of 
 an original judgment, or to the effect that plaintiff re- 
 cover a certiiin sum of money or a designated parcel of 
 real or personal property, it is void.-"^^^ The "entry 
 should be that the plaintiff have execution for the 
 judgment mentioned in the scire facias, and for 
 costs." *^^ The effect of a proceeding by scire facias in 
 Pennsylvania has been thus described by the supreme 
 court of that state: "A scire facias to revive a judg- 
 ment post annum et diem is but a continuation of the 
 original action, and the execution thereon is an execu- 
 tion in the former judgment. The judgment on the 
 scire facias is not a new judgment giving vitality only 
 from that time, but it is the revival of the original 
 judgment, giving, or rather continuing, the vitality of 
 
 ISO "Wooniaii's Appeal. 110 Ta. St. 2o. 
 
 131 LAvell V. MoCurdy, 77 Va. 7().*?: Camp v. Gainer, 8 Tex. 372: 
 Bullock V. Ballew. 9 Tex. 408: Tnsrahani v. Champion, S4 Wis. 235. 
 
 132 Vredeuburyli v. Suyder, lowa, 39; Denegre v. Ilauu, 13 Iowa, 
 240.
 
 § 93 EXECUTION ON DORMANT JUDGMENTS. S42 
 
 the original judgment with all its incidents, from the 
 time of its rendition. This is clear on authority. 
 Thus in Bouvier's Law Dictionary, p. 380, he says, cit- 
 ing 1 Term Rep. 388, and 2 Saund. 72, that a scire 
 facias is a judicial writ, founded on some record, and 
 requiring defendant to show cause why the plaintiff 
 should not have advantage of such record. When 
 brought to revive a judgment after a year and a day, it 
 is but the continuation of the original action. Thus in 
 4 Harr. (Del.) 397, and 3 Pet. 300, it is ruled that a scire 
 facias to renew a judgment is only a continuation of 
 the former suit, and not an original proceeding. It 
 would be easy to multiply authorities, if a fact so plain 
 and familiar needed their aid. In England the judg- 
 ment on the scire facias is, that the original judgment 
 be revived. Here the amount of the debt is ascer- 
 tained, and judgment given for the sum due; and this 
 unfortunate departure from precedents has given rise 
 to the erroneous notion in the minds of some members 
 of the profession that the judgment on the scire facias 
 is a new and distinct judgment, and not, as it really is, 
 nothing more than the revival of the original judg- 
 ment, the sum being ascertained for which execution 
 may issue. If we pay any regard to precedent, the exe- 
 cution ought always to be issued on the original judg- 
 ment, and not, as is sometimes ignorantly done, on the 
 judgment on the scire facias — an irregularity which 
 ought never to have been tolerated by the courts." *^* 
 
 § 93. Second Scire Facias. — If the plaintiff who 
 sues out a scire facias to reviVe a judgment does not 
 proceed upon it within a year and a day, it is a discon- 
 tinuance of it, and the plaintiff must commence by 
 
 133 Irwin V. Nixon's Heirs, 11 Pa. St. 419, 51 Am. Dec. 559.
 
 343 KXECL'TION UN DORMANT JUDGMENTS. § y3a 
 
 scire facias de novo. So, if lie does not sue out execu- 
 tion on a judgment on scire facias within a year, he 
 must revive it again.*^^ 
 
 § 93 a. The Effect of a Judgment Resulting from a 
 Proceeding by Scire Facias should be determinable by 
 considering the character of these proceedings, the 
 questions involved in them, and the method taken to 
 acquire jurisdiction of the parties. If an answer is 
 filed and the issues presented by it are tried, the find- 
 ings and judgment thereon are res judicata to the 
 same extent as the findings and judgment in any other 
 controversy. Hence, if the defendant pleads that the 
 judgment has been satisfied, or that he has been re- 
 leased therefrom by any other means, but the court, de- 
 termining this i^lea to be untrue, enters judgment of 
 revivor, the defendant is estopped from again contend- 
 ing that the original judgment had been paid or that 
 he had been released therefrom before such revivor.*^'* 
 A judgment of revivor is impliedly, at least, an adjudi- 
 cation that there is a judgment to be revived, and that 
 it is proper to issue execution thereon. Nevertheless, 
 it is doubtful whether it does establish a pre-existing 
 valid judgment, or is anything more than permission 
 to issue execution on that judgment with like effect as 
 if it had been issued before there was any necessity to 
 apply for this writ. Therefore it has been held that if 
 the original judgment is void upon its face, or appears 
 to be so by the record or judgment-roll, this objection 
 can be urged after its revivor by scire facias.*"** 
 
 IS* Vaiulerhcydon v. Gardonier, 9 .Tolins. 79; Foster on Scire Fa- 
 cias, 27. 
 
 135 Greer v. Major (Mo.), 21 S. W\ 4S1. 
 
 136 Fraukel v. Satterlield, 9 Iloust. 201.
 
 § 93a EXECUTION ON DORMANT JUDGMENTS. 344 
 
 In some instances others than the parties to the 
 judgment and the scire faciass may be bound thereby, 
 as where the object is to keep alive a lien against real 
 estate which has been sold and a conveyance taken, 
 but the grantee has never recorded his conveyance nor 
 taken possession of the jjroperty, and hence is not 
 made a party to the proceeding for revivor, because 
 plaintift' had no notice of his acquisition of title. Un- 
 der such circumstances, the holder of the secret con- 
 veyances is bound, though not a party,^^'^ 
 
 We have shown that a revivor is ordinarily accom- 
 Iplished without giving any actual notice to the defend- 
 ant or any other interested party. This course of prac- 
 tice necessarily invites an abuse of the proceeding by 
 entering judgments of revivor against persons who 
 have no notice of the scire facias, and who, if they had 
 such notice, might be able to present a sufficient de- 
 fense thereto. We assume, though it is not so dis- 
 tinctly stated in any of the decisions coming within our 
 observation, that persons who have been subjected to 
 such judgments of revivor, without any actual oppor- 
 tunity to resist them, must be entitled to relief upon 
 motion promptly made after obtaining knowledge 
 thereof. Where a judgment of revivor was based on 
 an unauthorized appearance of an attorney, it was 
 vacated on motion of the defendant.^^* If the judg- 
 ment is revived against the defendant by collusion 
 with him after it is barred by the statute of limita- 
 tions, third persons whose interests antedated such re- 
 vivor are not bound thereby. ^^^ 
 
 Whether a revivor by scire facias prolongs the life 
 
 137 Lyon V. Cleveland, 170 Pa. St. 611, 50 Am. St. Rep. 620. 
 
 138 Mendenhall v. Robinson, 56 Kan. 633. 
 
 139 Ayre v. Burke, 82 Va. 338.
 
 345 EXECUTION ON bOUMANT JUUGMENT.S. § 93a 
 
 of the oi'i«;iiial jiulj^iiicnt is a «iueslion which we think 
 has uot yet been fully and fairly cousideieJ. If it does, 
 then the statute of limitations to which the judgment 
 is subject ceases to run ui)on such revivor, and, in any 
 subse(iuent action npon the judgment, such statute 
 must be computed as commencing to oi)erate at the 
 "date of the revivor, and not at the date of the entry of 
 the original judgment. This question has been several 
 times presented to courts, which, reasoning from the 
 assumption that a scire facias is a new action and the 
 judgment thereon a new judgment, have maintained 
 that an action upon the original judgment may be sus- 
 tained, notwithstanding the plea of the statute of limi- 
 tations, unless the full period prescribed by such stat- 
 ute had intervened after the entry of the judgment of 
 revivor.^"*® In some instances this results in persons, 
 who have ceased to be residents of the state in which 
 judgment had been recovered against them, having the 
 judgment kept alive by revivors entered against them 
 while nonresidents or absent from the state, and with- 
 out any other service of process upon them than that 
 involved in the two returns of nihil.^^* But a scire 
 facias is not a new action; the judgment therein is not 
 a new judgment; nor is it proper to enter any judgment 
 other than that the plaintiff have execution upon the 
 judgment previously existing.''*^ Such being the case, 
 we do not see how any subsequent action can be 
 <leemed an action upon the judgment of revivor, nor 
 
 140 Fagan v. Bentley, 32 Ga. '>?A; Lambson v, Moffatt. Gl Md. 429; 
 Walsh V. Bosso, 16 Mo. App. 231; Kratz v. Preston, 52 Mo. App. 251; 
 Wonderly v. Lafayette County, 74 Fed. Rep. 70G; Farrell v. Gleason, 
 11 CI. & F. 700: Fan-en v. Beresford, 10 CI. & F. 702. 
 
 1*1 Kratz V. Freston, 52 Mo. App. 2."il; Faiian v. Bentley, 32 Oa. 
 534. 
 
 1*2 Rogers V. Uulliugswortb, 95 Teun. 3-")7; lugrahani v. Champion, 
 84 Wis. 235.
 
 § 03ii EXECUTION ON DORMANT JUDGMENTS. 346 
 
 how that judgment can affect the running of the stat- 
 ute of limitations against the original judgment,^ ^^ un- 
 less upon the ground that the judgment of revivor es- 
 tablishes the continued existence of the debt and oper- 
 ates as an aclvnowledgment or new promise to pay it;, 
 and none of the decisions are grounded upon this the- 
 ory. 
 
 If we assume that the judgment of revivor is a new 
 judgment, then it is essential that the court pronoun- 
 cing it have, at that time, jurisdiction of the parties, 
 and this it cannot have if they are not within the ter- 
 ritorial jurisdiction of the court and do not voluntarily 
 submit themselves to it. It hence follows that a judg- 
 ment of revivor can never create nor extend any per- 
 sonal liability against one who is not a resident of the 
 state wherein the judgment is entered and has not 
 been personally served with notice thereof, though he 
 was such resident at the time of the entry of the orig- 
 inal judgment, and, if sued upon that judgment in the 
 state of which he has become a resident, his plea of 
 the statute of limitations cannot be affected by the 
 judgment of revivor. In other words, a judgment of 
 revivor based upon constructive service has no extrater- 
 .ritorial force in creating or extending a personal lia- 
 bility.*** In so far as a judgment is intended to oper- 
 ate in rem, the rule is otherwise. A judgment on scire 
 facias may be rendered which will be binding on the 
 property situate within the state, though its owner and 
 the defendants are not within the state, and the service 
 of the process or writ is constructive only. 
 
 145 
 
 143 Infrraham v. Champion, 84 Wis. 235. 
 
 144 Robb V. Anderson, 43 111. App. 57.5; Hepler v. Davis, 32 Neb. 
 556, 29 Am. St. Rep. 457: Betts v. Johnson, 68 Vt. 549; Owens v. 
 McCoskey, 161 U. S. 642. 
 
 145 Bertron v. Stuart, 43 La. Ann. 1171.
 
 347 EXECUTION ON DORMANT JUDGMENTS. §§ 94, 95 
 
 § 94. Form of Execution.— When the judgment has 
 been revived by scire facias, the form of the execution 
 must be changed to correspond to the clianged state of 
 the record. It should show the judgment on the sc;r«' 
 facias as well as the original judgment. The fieri fa- 
 cias should refer to and profess to be founded on the 
 judgment in the suit by scire facias; and this is true 
 whether the scire facias was necessary or "entirely 
 supererogatory." **^^ While the execution should pur- 
 port to issue on the original judgment, yet if an error 
 is committed in this respect by issuing it on the judg- 
 ment of revivor, this is a mere irregularity which can- 
 not affect the title of a purchaser thereunder.**'' 
 
 § 95. Motion and Notice as a Substitute for Scire 
 Facias. — it is obvious that the objects sought and ac- 
 complished by the writ of scire facias, in reference to 
 the revivor of dormant judgments, could be as readily 
 obtained by a mere motion and order in the original 
 suit. Practically, a writ of scire facias is nothing be- 
 yond a notice to parties in interest that the applicant 
 will, at a stated time, apply for a writ of execution, 
 which notice is accompanied by a statement of the 
 grounds upon which the application will be based. A 
 notice prepared and signed by the plaintiff or his at- 
 torney, and served by copy on the defendants in the 
 suit, if living, or on their representatives, if dead, 
 would accomplish ever^- useful purpose accomplished 
 by a writ; while the order of the court, made after 
 hearing the motion specified in the notice, would afford 
 relief as adequate as could be granted by a judgment 
 
 i<6 Richardson v. McDoujrnll, 19 Wend. SO; Davis v. Norton, 1 
 BiuR. 13.3; Hall v. Clafjett, G3 Md. 57. 
 
 i*T Scherrer v. Caneza, 33 La. Ann. 314; G rover v. Boon, 124 Pa. 
 St. 399.
 
 § 96 EXP:cUTION ox dormant judgments. 348 
 
 on scire facias. Proceedings by scire facias to revive 
 dormant judgments are gradually becoming obsolete, 
 though the writ is still employed in about one-half of 
 the states of this Union. In those states where this 
 writ is not in use, the relief which it formerly afforded 
 is obtained on motion, petition, or pleading supple- 
 mentary to the judgment. Sometimes the course pre- 
 scribed by statute is by the issuing of a summons out 
 of the court wherein the judgment wa« entered, which 
 writ accomplishes the same purpose as a scire fa- 
 cias.^** Unlike the proceeding by scire facias, these 
 statutory proceedings usually include some notice to 
 be personally served on the parties to be affected, if 
 such service can be made within the state."^ Some 
 of these statutes make special provisions for the re- 
 vivor of judgments in favor of persons who have pur- 
 chased property at sales made thereunder, which has 
 been lost to them through some irregularity in the pro- 
 ceedings concerning the sale, or by the reversal of the 
 judgment, or because the property was not subject to 
 execution and sale. Under a statute of this character, 
 a purchaser of property which proves to be exempt 
 from execution may have the judgment revived in his 
 favor.*"® 
 
 § 96. On Death of One of the Parties.— When a sole 
 plaintiff has died after final judgment, the administra- 
 tor, or other person authorized to represent the de- 
 ceased, may apply to the court, show the death of the 
 deceased and the appointment of the applicant, and 
 
 148 Eddy V. Cold well, 23 Or. 163. 37 Am. St. Rep. 072: Chester etc. 
 Co. V. Marshall, 40 S. C. 59; Lawton v. Perry, 40 S. C. 2r)5. 
 
 i49Selders v. Boyle (Kan.). 49 Pac. 320: Northern Pac. Ry. v. 
 Bender, 13 Mont. 432; Eddy v. Coldwell. 23 Or. 1G3, 37 Am. St. Rep. 
 
 672. 
 
 160 Union N. Bank v. Beardsley, 10 Utah, 404.
 
 349 EXECUTION ON DORMANT JUDGMENTS. § 97 
 
 procure an order entillin^ him to sue out aud control 
 the execution; or, in some states, the executor or ad- 
 ministrator may obtain execution on presenting his 
 letters testamentary or of administration to the clerk 
 of the court/^' ^o, on the death of defendant, his rep- 
 resentatives mny on motion be brouj^ht before the 
 court to show cause why execution ought not to issue; 
 and, in some states, where the judgment is for the re- 
 covery of real or personal property, or for the enforce- 
 ment of a lien thereon, execution may issue notwith- 
 standing the death of defendant, and without leave of 
 the court. The provisions in the different states on 
 this subject are so diverse that we shall not attempt to 
 make any detailed statement of them. 
 
 § 97. Execution on Judgment Dormant by Lapse of 
 Time. — When a jn(l_i;iiieut has become dormant from 
 lapse of time, a motion may be made to the court for 
 leave to issue execution. Usually, no pleadings are 
 required. A notice of the motion, describing the judg- 
 ment with sufficient certainty to inform the defendant 
 and other persons interested of what execution is de- 
 manded, is all that is required to authorize the court 
 to act.*^^ In some states, the notice must be accom- 
 panied by an affidavit/"*** while in others not even a 
 notice of the motion need be given. *^* The defendant 
 cannot resist the application by urging any matter ex- 
 isting anterior to the judgment. The execution must 
 issue unless the judgment has been satisfied, or has 
 ceased to be in force through lapse of time, or the de- 
 
 "1 Paisy Roller :Mills v. Ward, G N. D. S17. 
 
 182 Simpson v. Wilson, 16 Ind. 428; Verden v. Coleman. 23 Ind. 
 49; Plough V. Reeves, 33 Ind. 181; Plough v. Williams, 33 Ind. 182. 
 "3 Turner v. Keller. 38 Mo. 332. 
 16* Bryan v. Stidger, 17 Cal. 270.
 
 § 97 EXECUTION ON DORMANT JUDGMENTS. 350 
 
 fendant has by some means been released from his lia- 
 bility.*^ It is no answer that the defendant has judg- 
 ments or other counterclaims against the plaintiff.*^* 
 The plaintiff must show, to the satisfaction of the court, 
 that the judgment has not been paid, and that he is 
 still entitled to have it enforced.*^'' In New York, 
 where the facts on which the right to execution is 
 based are disputed, the refusal of the court to order 
 the writ to issue will not be reviewed on appeal; but 
 the plaintiff will be turned over to his remedy by ac- 
 tion on the judgment.*^* The application must be 
 made during the lives of the parties,*^** after the judg- 
 ment has become dormant,*®** and before it has become 
 barred by the statute of limitations.*®* In New York, 
 if an original execution is issued within five years, an 
 alias writ may issue at any time thereafter without 
 leave of the court. This was clear under provisions of 
 section 284 of the Code of Procedure, as amended in 
 1858. Before this amendment, this section provided 
 that "after the lapse of five years from the entry of 
 judgment, an execution can be issued only by leave of 
 the court." The courts were very evenly divided upon 
 the effect of this language. On the one side, it was 
 contended that the common-law rule was still in force, 
 allowing an alias to issue at any time, if an original 
 writ issued within the time specified by law;*®^ on the 
 
 155 Lee V. Watkins, 13 How. Pr. 178; 3 Abb. Pr. 243. 
 186 Betts V. Garr, 26 N. Y. 383. 
 167 Reeves v. Plough, 46 Ind. 350. 
 
 188 Shuman v. Straus, 52 N. Y. 404. 
 
 189 Ireland v. Litchfield, 22 How. Pr. 178; 8 Bosw. 634. 
 
 ICO Wilgus V. Bloodgood, 33 How. Pr. 289; Field v. Paulding, 3 
 Abb. Pr. 1.39; 1 Hilt 187. 
 
 i«i Kennedy v. Mills, 4 Abb. Pr. 132. 
 
 iia Pierce v. Craine. 4 How. Pr. 257; McSmith v. Van Deusen, 9 
 How. Pr. 2^5; Kress v. Ellis, 14 How. Pr. 392; Redmond v. Wheeler, 
 2 Abb. Pr. 117.
 
 ^51 EXECUTION ON DORMANT JUDGMENTS. § 07 
 
 Other side, it was insisted that the terms of the statute 
 embraced alias as well as original writs, and therefore 
 that no execution could regularly issue, after five 
 years, Avithout leave of the court.*"^ This last view 
 met the concurrence of the supreme court of Missouri 
 when construing a similar statute, in a case in which, 
 in referring to the common-law rule, the court said:, 
 ^'Certainly we ought not to adopt this worn-out rule 
 in the construction of a new statute, which, after ex- 
 tending the year to five years, prohibits the issuing of 
 execution after that period, unless by leave upon mo- 
 tion after notice to the adverse party. We cannot, 
 and ought not, in this manner, partially repeal the 
 statute, by declaring that the prohibition does not ap- 
 ply to a case like the present, where an execution has 
 been sued out within five years, although more than 
 five years have since elapsed without any proceeding 
 upon the judgment." **^ 
 
 163 Currie v. Noyes, 1 Code R.. N. S., 198: Swift v. Flanagan, 12 
 How. rr. 438; Racia v. Nestle, 13 How. Pr. 572. 
 18* Bolton V. Lansdown, 21 Mo. 402.
 
 § 98 DUXliiJi AiML» LiAiililTIbki 01)' OJj'FKJMlS, 36i 
 
 CHAPTER IX. 
 
 TXQITIEIES CONCEENING THE DUTIES AND LIABIL- 
 ITIES OF OFFICEUS ON RECEIVING WRITS OF 
 EXECFTION. 
 
 § 98. First duty of officer on receipt of the writ. 
 
 § 99. Inquiries by officer into validity of the writ. 
 
 § 90 a. Inquiries concerning competency of officer to execute the 
 
 writ. 
 1 100. How far officer must inquire into the jurisdiction of the 
 
 court. 
 § 101. The officer need not look behind the writ. 
 § 102. Whether the officer's knowledge of void nature of writ Is 
 
 material. 
 § 103. Officer must execute voidable process; otherwise, if it be 
 
 void. 
 § 104. Officer must see that, the writ is enforceable in his county. 
 § 105. Suspension or satisfaction of writ in officer's hands. 
 § lOG. When the authority of the officer terminates. 
 § 107. When the writ must be executed. 
 § 108. Who may control the writ. 
 
 § 98. The First Duty of Officer on Receipt of Writ.— 
 So far, our inquiries have been in regard to the form 
 and issue of execution against the property of defend- 
 ants. We shall now assume that the plaintiff has pro- 
 cured an execution to be issued. For the purpose of 
 our future investigations, it will, in general, be imma- 
 terial to ascertain whether the writ is an original or an 
 alias; Avhether it was sued out on the original judg- 
 ment before the same became dormant, or after such 
 judgment had been dormant and was duly revived by 
 scire facias, or by some similar proceeding sanctioned 
 by statute. The two officers who have most to do with 
 writs of execution are the clerks by whom such writs
 
 353 DUTIES AND LIABILITIES OF OFFICERS. § 1;8 
 
 are issued, and the sbcrifTs or constabk* by whom they 
 are enforced. The precedin*,^ chapters of this wm-k 
 have been mainly employed in the consideration of 
 matters falling within the duties of the clerks; the re- 
 maining chapters will be very largely occupied by 
 questions connected with the duties of sheriffs and 
 constables. 
 
 After the plaintiff procures his execution, his next 
 step should be to i)lace it in the hands of the proper offi- 
 cer for service. This oflicer is usually required, on re- 
 ceiving the writ, to indorse thereon the precise time 
 at which it came into his hands. This requirement is 
 useful because it furnishes data by which to determihe 
 the priority of conflicting writs, and preserves evidence 
 by which to ascertain the exact period when the offi- 
 cer's rights and responsibilities began.* The negli- 
 gence of the sheriff in this respect has no effect what- 
 ever upon the validity of the writ, nor of any subse- 
 quent proceeding taken in the enforcement thereof, 
 for the date of delivery may be ascertained by any 
 competent evidence,^ nor does such negligence impose 
 any liability upon the officer in favor of the plaintiff in 
 the writ unless he can show some actual damage re- 
 sulting therefrom.* If, on the other hand, the offi- 
 cer does indorse upon the writ a date as that of its re- 
 ception, a question may arise as to whetlier the date 
 so indorsed is correct. In Pennsylvania this question 
 
 ^ Willi.ims V. Lowndes, 1 Ilall, 579; Knox v. Webster, 18 Wis. 
 406. Sn Am. Per. 770. 
 
 2 Hale's Appeal. 44 Pa. St. 430; .Tohnson v. McLane, 7 Blackf. 501. 
 43 Am. Dec. 102: Hester v. Keith, 1 Ala. 316: Fletcher v. Pratt, 4 
 Vt. 182; nirich v. Dreyer. 2 Watts. 303: De Witt v. Dunn. 15 Tex. 
 106; Hanson v. Barnes' Lessee. 3 Gill & J. 359. 22 Am. Dec. 322; 
 Jaclvson V. Spink. ."9 TU. 407: Wilson v. Swasey (.Tex.), 20 S. W\ 48. 
 
 8 Abbott V. Edgerton, 30 Vt. 20S. 
 Vol. I.— 23
 
 § 99, 9aa DUTIES AND LIABILITIES OF OFFICERS. 354 
 
 seoms not to be an open one, for in that state the in- 
 dorsement is conclusive.'* We are not able to con- 
 ceive any adequate reason for this conclusion, and 
 none is attempted to be given by the court. The ob- 
 ject of the requirement is to preserve some memoran- 
 dum from which the date of the reception of different 
 writs may be indicated and their respective priorities 
 determined. But the ultimate result sought was to 
 give priority to the writ first in the officer's hands; and 
 this result must be defeated if a mere mistake of the 
 officer in entering the date is to prevail over the actual 
 facts of the case. 
 
 § 99. Inquiries to be Made by Officer Before Executing 
 \/\/pjt. — Before making any attempt to execute the writ, 
 a prudent officer will stop to make such inquiries as are 
 necessary to satisfy him whether it is one which he is 
 authorized by law to enforce; whether it will protect 
 him while acting in obedience to its commands, or will 
 leave him, as a trespasser, without any legal justifica- 
 tion. He may, if he sees proper so to do, after ascer- 
 taining that the writ is one under which he can jus- 
 tify, proceed further, and inquire whether it is one 
 which he is bound to execute. We shall devote this 
 chapter to inquiries likely to be made after the issue 
 of the writ, and before any active steps are taken for 
 its enforcement. 
 
 § 99 a. Inquiries Respecting the Competency of th3 
 Officer to Serve the Writ.— Before undertaking to pro- 
 ceed under a writ, an officer ought always to ascertain 
 whether he is competent to execute it. This inquiry 
 may generally be answered from an inspection of the 
 writ. It may be directed to a different officer from 
 
 * Person's Appeal, 78 Pa. St. 145.
 
 355 DUTIES AND LIABILITIES OF OFFICEIIS. § 99a 
 
 the one to whom it is delivered, in which case we ap- 
 prehend that it cannot justify proceedings taken by 
 the latter.^ Substantially, an officer receiving, or hav- 
 ing charge of, a writ which is not directed to liini, nor 
 to the class of officers of which he is a member, does 
 not, in acting under it, act in his official capacity. 
 ELence, sales made by him thereunder are void, returns 
 made by him thereon are not competent evidence of 
 the facts stated therein, and bonds of indemnity taken 
 by him are not enforceable.** If, however, a statute 
 expressly • auyiorizes sheriffs to serve any process 
 which a constable may execute, officials of the former 
 class may act under process purporting to be directed 
 to officials of the latter.'' 
 
 If the sheriff is by any reason disqualified to serve an 
 execution, it ought to be directed to the coroner. But 
 an error in omitting to so direct it will not require the 
 sheriff to receive and execute it. Even though the 
 sheriff has no interest in the writ or judgment, as where 
 he is a party in a representative capacity, as adminis- 
 trator of a deceased person, he may decline to serve 
 the writ, and cannot be proceeded against by motion 
 for a failure to return such writ.^ With respect to a 
 writ which an officer is disqualified to serve, he must 
 be regarded as holding no official capacity. He has no 
 competency to act; and, though he attempt to act, what 
 he does iSjin contemplation of law, no action whatever.'* 
 
 R Plant V. Anderson, 16 Fed. Rep. 014; Blanee v. Mize, 72 Ga. 9'^ 
 « Porter v, Stapp, G Colo. 32; Johnson v. Elkins. 90 Ky. 163: Gowdy 
 V. Sanders, 88 Ky. 346; Terry v. CHtler, 4 Tex. Civ. App. 570. 
 
 7 Foster v. Wiley, 27 Mich. 244. 15 Am. Dec. 185. 
 
 8 .Tohnson v. McLaughlin, 9 Ala. 551. 
 
 9 Knott V. Jarboe, 1 Met. (Ky.) 504; Mills v. Youns:. 23 Wend. 314; 
 Riner v. Stacy, 8 Humph. 288; May v. Walters. 2 MeCord, 470; Sin- 
 frlelary v. Carter. 1 P.ail. -1(>7. 21 Am. Dec. 480; Knight v. Morrison, 
 79 Ga. 53, 11 Am. St. Kep. 405.
 
 § 99a DUTIES AND LIABILITIES OF OFFICERS. 35S 
 
 He is, therefore, not entitled to the protection of the 
 writ, and for acts which he does in apparent obedience 
 to its commands he may be held answerable as a tres- 
 passer.^^ 
 
 If an officer has no authority to act, he can delegate 
 none to another, and hence his deputy cannot act for 
 him nor in his name in any case in which he is dis- 
 qualified.-^* In truth, a deputy may be subject to two 
 grounds of disqualification because of interest, viz: 
 first, Avhen his principal is interested in the writ, and 
 second, when he himself is so interested, for, though 
 the principal is not disqualified by interest, the deputy 
 may be, and, where such is the case, he has no author- 
 ity to act, though his principal might have acted either 
 in person or by some other deputy not interested in 
 the writ.*^ Sometimes provisions are made by stat- 
 ute for the appointment, or special authorization, of a 
 person to serve a writ, as where a justice is granted au- 
 thority to depute to any discreet person of suitable 
 age, not interested in the action, authority to serve a 
 summons or execution. If one undertakes to exercise 
 such authority under a supposed deputation which is 
 invalid, all his proceedings thereunder are void.*^ 
 
 The disqualification of an officer need not appear 
 from the face of the writ. It does not depend upon 
 his being nominally a party to the writ. He is, in most 
 of the states, forbidden from executing any writ in 
 
 lo.Tackson v. Bowker, 53 N. Y. Supp. 585; Erwin v. Bowman, 51 
 Tex. 513. 
 
 11 Stewart v. Mapness, 2 Cold. 310, 88 Am. Deo. 598: Fairfield v. 
 Hall, 8 Vt. 68; Chambers v. Thomas, 3 A. K. Marsh. 53G. 
 
 12 Samuel v. CommonAvealth,6 T.B. Mon.173; Chambers v. Thomas, 
 1 Litt. 208; Sin^lotary v. Carter, 1 Bail. 407, 21 Am. Dec. 480; Riner 
 V. Stacy, 8 Humph. 288. 
 
 13 McMillan v. Rowe, 15 Neb. 520.
 
 357 DUT1E.S AND LIABILITIES OF OFFICERS. § UOa 
 
 which ht' is interested. Hence, if ho has become the as- 
 si<ine»^ (jf the judgiuent, or if the judgment is bein^ 
 enfoi'Cf'd for his indemnity or benefit, he is disqualified 
 to act, and his attempted action is a nullity.''* There 
 may, perhaps, be instances in which an (dliccr may be 
 affected by the result of a suit without losing his com- 
 petency to serve process therein. Thus, in New Ilamp- 
 shire, it has been decided that a sheriff was not incom- 
 petent to serve process because the maintenance of the 
 action might make him answerable to defendant for 
 the amount of the recovery, though it was conceded 
 that he would be incompetent if he were the real plain- 
 tiff or the real defendant for whose benefit the action 
 was ])r()secuted or defended.^"' If an officer is an in- 
 habitant of a municipal corporation, and under the 
 existing law his propert\^ may be seized under a writ 
 against such corporation, he is incompetent to serve a 
 writ for or against it.*** 
 
 In some of the states a sheriff and his deputies are 
 regarded as one officer, and where any of them is dis- 
 qualified all seem to be. Hence, it has been held that 
 neither a sheriff' nor any of his deputies could exe- 
 cute a writ to which another deputy was a nominal or 
 real party.*'' This is a mistaken view. There is but 
 one office, it is true, but "the only incumbent of that 
 oflice is the principal. If the principal is disqualified, 
 the deputies must be, because what they do is in law 
 not their act, but his. If a deputy, on the other hand, 
 is disqualifiid, this renders him incompetent to act, 
 
 KCarpontor v. Stilwell. 11 N. Y. 61: Barker v. Remick, 43 N. H. 
 23S: Samuel v. Commonwealth. 6 T. B. Men. 173. 
 
 15 Barker v. RiMuiek. 43 N. H. 23.'. 
 
 16 State V. Walpole. lo N. H. 2<): Rnrker v. Remiok. 43 X. IT. 238; 
 Fairfield v. Hall. S Vt. fiS: Town of Essex v. Treutiss, G Vt. 47. 
 
 17 Dane v. Gilmore, 51 Me. 544.
 
 §100 DUTIES AND LIABILITIES OF OFFICERS. 358 
 
 and his principal cannot depute to him authority 
 to levy the writ. But his incompetency does not affect 
 the principal, for the latter derives no authority from 
 his subordinate. Therefore, a sheriff may execute pro- 
 cess for or against any of his deputies.^* 
 
 § 100. Inquiries Regarding the Jurisdiction of the 
 Court. — While sheriffs, and other officers acting in a 
 similar capacity, are protected to a very great extent, 
 they, like other persons, are bound to know the law. 
 They must know" the general jurisdiction of the courts 
 whose process they are called to enforce; for if a writ is 
 placed in their hands which the court had no author- 
 ity under any circumstances to issue, ** or if the court 
 had authority to issue similar writs, but it appears, 
 from this particular writ, that the subject-matter of 
 the action was one over which the court had no juris- 
 diction, then the writ is absolutely void, and cannot 
 justify any one in obeying its commands.'^ The office r 
 must examine the writ, and, when it appears there- 
 from that the judgment was void, either for want of 
 jurisdiction over the subject-matter of the suit or over 
 the parties thereto, he must, if he would protect him- 
 self from liability, refuse to proceed under the writ.^^ 
 
 18 Ford V, Dyer, 26 Miss. 243. 
 
 19 Shergold v. Hollo way, 2 Strange 1002; Brown v. Compton, 8 
 Term Kep. 424; Allen v. Greenlee, 2 Dev. 370; Howard v. Clark, 43 
 Mo. .344; Batchelder v. Currier, 45 N. H. 460. 
 
 20 Hull V. Rlaisdell, 1 Scam. .3,32; Gurney v. Tafts, 37 Me. 130, .5S 
 Am. Dec. 777: W^lse v. Withers, 3 Cr.Tncli, 331; Penrce v. Atwood, 
 13 Mas.s. 324; Brown v. Compton, 8 Term Rep. 424; Stephens v. Wil- 
 kins, 6 Pa. St. 200; Fisher v. McGirr, 1 Gray, 45, 01 Am. Dec. ,361; 
 Howard v, Clark, 43 Mo. 344; Eutick v. Carrington, 2 Wils. 275; 
 Groome v. Forrester, 5 Maule & S. 314. 
 
 21 Baldwin v. Hamilton, 3 W'is. 747; Carratt v. INIorely, 1 Q. B. IS; 
 Campbell v. Webb, 11 Md. 482; Grumon v. Bayniond. 1 Conn. 48,^ 
 6 Am. Dec. 200; Howard v. Gossett, 10 Q. B, 359; Tobin v. Addison^
 
 359 DUTIES AND LIABILITIES OF OFFICERS. § luo 
 
 There are certain circumstances with respect to the 
 form and issuing of the writ to which a sheriff must 
 also give attention. Thus, where the writ disclosed on 
 its face the reasons for its premature issuing, and they 
 were insutlicieut in law, the ollicer was held not to be 
 justified, in enforcing it.^^ While we do not concur in 
 the result reached in this instance, we concede that 
 
 2 Strob. 3; Mississippi Mills v. Meyer, 83 Tex. 433. In the case of 
 Dynos v. Iloovor, 20 How. SO, the action was brou^jlit against a 
 ministerial officer for executing the sentence of a court-martial. It 
 appeared, liowevor. that tlie court had jurisdiction, and the otticer 
 was therefore held not liable. The court undertook, however, to 
 slate the general rules governing ministerial officers, and In doing 
 so, said: "That where a court has no jurisdiction over the subject- 
 matter it tries, and assumes it, or where an inferior court has juris- 
 diction over the subject-matter, but is bound to adopt certain rules 
 in its proceedings, from which it deviates, whereby the proceedings 
 are rendered coram non judice, that trespass for false imprisonment 
 is the proiier remedy, where the liberty of the citizen has been re- 
 strained by process of the court, or by the execution of its judgment. 
 Sucli is the law In either case, in respect to the court which act,<» 
 without having jurisdiction over the sul)ject-matter; or which, hav- 
 ing jurisdiction, disregards the rules of proceeding enjoined by the 
 law for its exercise, so as to render the case coram non judice. 
 Cole's Case, .fohn W. 171; Davison v. Gill, 1 East. (>i; Smith v. 
 Bencher,, Ilardw. 71; Martin v. Marshall, Hob. 63: Weaver v. Clif- 
 ford, 2 Bulst. 04; Yelv. 42. In both cases, the law is, that an officer 
 executing the process of a court which has acted without jurisdic- 
 tion over the subject-matter becomes a trespasser, it being better 
 for the peace of society, and its interests of every kind, that the 
 responsibility of determining whether the court has or has not juris- 
 diction should be upon the officer, than that a void writ should be 
 executed. This court, so far back as the year 1806, said, in the 
 case of Wise v. Withers, 3 Cranch, 331, p. 337, of that case: 'It fol- 
 lows, from this opinion, that a court-martial has no jurisdiction over 
 a ju,stice of the peace as a militiaman; he could never be legally 
 enrolled; and it is a principle that a decision of such a tril)unal, in 
 a case clearly without its jurisdiction, cannot protect the officer 
 who executes it. The court and the officers are all trespassers.' 2 
 Brown, 124; 10 Cranch, 69; Mark's Rep. 118; 8 Term Rep. 424; 4 
 Mass. 2.34." An officer cannot justify under a writ which is not 
 valid in form. Taylor v. Morrison; 7 Chic. L. N. 376. 
 22 Clark V. Bond, 7 Baxt. 288.
 
 § 100 DUTIES AND LIABILITIES OF OFFICERS. 360 
 
 there may be cases in wliicli executions constitute no 
 justification to tlie otticers acting under them, because 
 of a want of jiower to issue them, or because their 
 form and substance are not such as to confer any au- 
 thority upon the persons to whom they are delivered 
 for service. The cases here referred to can only be 
 those in Avhich the writs are void upon their face. We 
 have endeavored in the preceding chapters to show 
 when writs are so void. The decisions upon the subject 
 are not harmonious, and the officer must, for his pro- 
 tection, inform himself respecting the law of his own 
 state. A writ issued out of a court which never had 
 authority to issue it, or whose authority had termi- 
 nated, or upon a judgment which it had in no circum- 
 stances any power to enter, or issued by some officer 
 who had no authority to issue it,-^ is unquestionably 
 void. Beyond this, little or nothing can be affirmed 
 without meeting with dissent in one or more of the 
 states.''* 
 
 A writ issued under a supposed statute, which is in 
 law no statute whatever because unconstitutional, 
 has been held to be absolutely void,"" and he'ace to 
 constitute no protection to an officer obeying its man- 
 date.-'"^ ^ Theoretically, every one is presumed to know 
 the law; and, ordinarily, sound public policy requires 
 that no officer be permitted to excuse his wrongful act 
 or omission by alleging his ignorance of law. When, 
 however, what appears to be a law is printed among, 
 and as one of the statutes, it is too much to expect of 
 
 23 Chalker v. Ives, 55 Pa. St. 81; Hilblsh v. Hower, 58 Pa. St. 03. 
 
 24 See chapters II and III for essential matters respectiu)? the 
 issuing and form of writs of execution. 
 
 25 Fisher v. McGirr. 1 Gray, 45, 61 Am. Dec. 381; Ely v. Thomp- 
 Bon, 3 A. K. Marsh. 70. 
 
 25a Kelly V. Bemis. 4 Gray. 83. PA Am. Doc. 50; Campbell v. Sher- 
 man. 35 Wis. 103; Sumner v. Beeler, 50 Ind. 341.
 
 :361 DUTIES AND LI A HI LIT J E.S OF OFFICEUS. § 100 
 
 an officer tliat he shall correctly tleteriiiiiie its coii- 
 fititutionulitj before acting uu(U*r it, or that he shall 
 respond in (laiiiages for any error made by liiiii in at- 
 tempting such determination. In our judgment pub- 
 lic policy re(iuires that ministerial ollicers yield obedi- 
 ence to acts of the legislature and be given no oppor- 
 tunity to excuse disobedience by suggesting doubts of 
 constitutionality.'^ At all events, for the purpose of 
 protecting public otlicers, we believe that a majority 
 of the courts will henceforth justify such otticers in 
 treating an apparent statute as a valid law until its in- 
 validity, or want of constitutionality, has been judici- 
 ally declared. ^'^ 
 
 An officer is not justified in his action where the tri- 
 bunal whose sentence or judgment is the basis of the 
 writ is not authorized by law,^** or, being authorized by 
 law, has no jurisdiction over the subject-matter in the 
 particular case, as where a state court issues process in 
 rem to enforce a maritime lien,^^ or a justice's court en- 
 ters judgment for a sum in excess of its jurisdiction.^® 
 
 The general expression of many of the cases is that 
 the process must "be fair on its face" to warrant the 
 officer in implicitly relying upon it for protection. By 
 this expression we do not understand them to intend 
 that there must be no irregularity in its features, and 
 no roughness or discoloration in its complexion; for im- 
 perfections so slight in character as these the court may. 
 
 2« Poople V. Salomon, 54 IlL 46. 
 
 27Millor V. Dunn, 72 CaL 4(;2. 1 Am. St. Hop. 07; ITonko v. Mo- 
 Cord, 15 la. 378; Sessums v. Kotts, 34 Tex. 335; State v. MoNally, 34 
 Me. 210, 5G Am. Dec. G50. 
 
 2s Milligan v. Ilovey, 3 Biss. 13. 
 
 2» Campbell v. Sherman, 35 Wis. 103. 
 
 so Rosen V. Fischel, 44 Conn. 371; Gates v. Neimeyer, 54 Iowa, 
 110; Patzak v. Von Cericliten, 10 Mo. A pp. 424.
 
 § 101 DUTIES AND LIABILITIES OF OFFICERS. 3GJ 
 
 compel the parties to overlook, and, where the parties 
 may be required to abide by the process, it always justi- 
 fies an otTficer in whatever he may do by its command. 
 With respect to process proceeding from a court of 
 limited jurisdiction, the inquiries which the officer 
 called upon to enforce it must pursue are not substan- 
 tially variant from the inquiries required in other 
 cases. He must, at his peril, know what is the jurisdic- 
 tion of the court — what judgments it may lawfully en- 
 ter, and what writs it may grant for their enforcement. 
 If the writ issued appears upon its face to have issued 
 in a proper case and by a competent officer, he may 
 safely yield obedience thereto.^* 
 
 § 101. Officer Need not Look Behind the Writ.— The 
 sheriff may limit his inquiries to an inspection of the 
 writ. If the writ is issued by the proper officer, in due 
 form, and appears to proceed from a court competent 
 to exercise jurisdiction over the subject-matter of the 
 suit, to grant the relief granted and enforce it by the 
 writ issued, and there is nothing on the face of the 
 writ showing a want of jurisdiction over the person of 
 the defendant, or showing the writ to be clearly illegal 
 from some other cause, the officer may safely proceed. 
 That from some cause, not shown in the writ, the judg- 
 ment or writ was irregular or void will be of no conse- 
 quence to him,^^ He can justify upon producing the 
 
 31 Billings V. Rusi^ell. 23 Pa. St. 189, (12 Am. Dec. .S.SO; Gott v. 
 Mitcliell, 7 Blackf. 270; Savacool v. Bougliton, 5 AVend. 170, 21 Am. 
 Dec. 181, and note. 
 
 82 Spragne v. Bircliard, 1 Wis. 457, GO Am. Dec. .39.3; Warner v. 
 Shed, 10 .Tohns. 1.38; Kue v. Terry, 63 Barb. 40; Gray v. Kimball, 42 
 Me. 299; Earl v. Camp, 16 Wend. 562; Billings v. Russell, 23 Pa. St. 
 189, 62 Am. Dec. 330; Mason v. Vance, 1 Sneed, 178, 60 Am. Dec. 
 144: Hill V. Bateman, 2 Strange, 710; State v. Crow, 6 Eng. 642;. 
 McDonald v. Willde, 13 111. 22, 54 Am. Dec. 423; Andrews v. Morris,.
 
 363 DUTIES AND LIABILITIES OF OFFICERS. § 101 
 
 writ. It is 1 here fore immaterial to liim that the judg- 
 ment does not correspond to the writ, or that there 
 
 1 Ad. & E., N. S., 4; McLeau v. Cook, 2;j Wis. 'Mk; Clarke v. May, 2 
 <iray, 410; Donahoe v. Shed, 8 Met. 320; Ilargett v. Blackshear, 
 Tavl. (N. C.) 107; Ilarnion v. Gould, Wright (Ohio), 709; Churchill 
 V. Churchill, 12 Vt. (JOl; Iliffdon v. Conway, 12 Mo. 29."j; Taylor v. 
 Alexander, G Ham. 145; Cody v. Quiun, 6 Ired. I'Jl; Howard v. 
 Clark, 43 Mo. .144; Brown v. Henderson, 1 Mo. 134; Smith v. Mile.s, 
 1 Hemp. 34; Whitney v. .Tenkinson, 3 Wi.'!. 407; Twitcliell v. Shaw, 
 10 Cush. 48, 57 Am. Dec. 80; Allen v. Corlew, 10 Kan. 70; Crockett 
 V. Latimer, 1 Humph. 273; Carter v. Purrington, 2 Allen, N. B., 22G; 
 Young V. Wise, 7 Wis. 128; State v. Giles, 10 Wis. 101; Bogert v. 
 Phelps, 14 Wis. 88; Milburn v. Gilman, 11 Mo. 64; Johnson v. Fox, 
 51 Ga. 270; Woods v. Davis, 34 N. H. 328; Keniston v. Little, 10 
 Fost. 318, G4 Am. Dec. 297; Blanchard v. Goss, 2 N. II. 491; Ortman 
 V. Greenman, 4 Mich. 291; McElhaney v. Flynn, 23 Ala. 819; Averelt 
 V. Thompson, 15 Ala. G7S; Cogburn v. Spence, 15 Ala. 549, 50 Am. 
 Dec. 140; Dixon v. Watkins, 4 Eng. l;'>9; Bickerstaff v. Doub, 19 
 Cal, 109, 79 Am. Dec. 204; Watson v. Watson, 9 Conn. 141, 23 Am. 
 Dec. 324; Carter v. Clark, 28 Conn. 512; Neth v. Crofut, 30 Conn. 
 580; Miller v. Hahn, 116 Mich. 607; O'Briant v. Wilkerson, 122 
 N. C. 304; Burnham v. Stone, 101 Cal. 164; Thompson v. Jack- 
 son, 93 la. 376; State v. Devitt, 107 INIo. 573. 28 Am. St. Bep. 440; 
 IJaiidall V. Bosenthal (Tex. Civ. App.). 31 S. W. 822; Rousanville v. 
 McGinness, 93 Ga. 579; Nelson S. Co. v. McKinnon, (jl Minn. 219; 
 Barr v. Combs, 29 Or. 399; Mechem on Public OtKces and Officers, 
 sec. 768: Heath v. Half hill. 106 Iowa. 131; Faull v. Cooke, 19 
 Or. 4.55, 20 Am. St. Rep. 836; Barnes v. Barber, 1 Gilm. 401; Parker 
 v. Smith, 1 Gilm, 411; Hunt v. Ballew, 9 B. Mon. 390; Iloskins v. 
 Helm. 4 Litt. 310, 14 Am. Dec. 133; Clay v. Caperton, 1 T. B. Mon. 
 10. 15 Am. Dec. 77; Percefull v. Commonwealth. 3 B. Mon. 347; 
 Chase v. Fish. 16 Me. 132; Carle v. Delesdernier, 13 Me. 263. 20 Am. 
 Dec. 508: State v. McNally, 34 Me. 210, 56 Am. Dec. 650; AViltou M. 
 Co. V. Butler, 34 Me. 431; Robinson v. Barrows, 48 Me. 186; Deal v. 
 Harris. 8 Md. 40, 63 Am. Dec. 686; Wilmarth v. Burt, 7 Met. 257; 
 Chase v. Ingalls, 97 Mass. 524: Bergin v. Hayward, 102 Mass. 414; 
 Clark V. Norton, 6 Minn. 412; Woodruff v. Barrett. 3 Green, 40; 
 Rainmel v. Watson, 31 N. J. L. 281; Mangold v. Thorpe. 33 N. J. L. 
 134; French v. Willett, 4 Bosw. 649; Cornell v. Barnes. 7 Ildl, 35; 
 Noble V. Halliday. 1 N. Y. 3.30; Hutchinson v. Brand. 9 N. Y. 208; 
 Chegaray v. Jenkins, 5 N. Y. 381; Rosenfield v. Palmer. 9 Alb. L. J. 
 191; State v. Morgan. 3 Ired. 186. 38 Am. Dec. 714: State v. Fergu- 
 son. 67 N. C. 219; McHugh v. Pundt, 1 Bail. 441; Brown v. Wood, 1 
 Bail. 457: ^liller v. Grice. 1 Rich. 147; Traylor v. McKeown. 12 Rich. 
 251; Paris v. State, 3 Ohio St. 159; Fox v. Wood, 1 Rawle, 143; Paul
 
 § JOl DUTIES AND LIABILITIES OF OFFICERS. 364 
 
 never was any siitli judgment in existence.^^ "A min- 
 isterial officer, before executing process placed in his 
 hands, is not obliged to inquire into the regularity of 
 the proceedings of the tribunal from which it ema- 
 nates, and determine, at his peril, whether it was law- 
 fully issued or shall be obeyed. His duty is to execute 
 it, if in due form of law, regular on its face, and comes 
 duly authenticated from a court or magistrate hav- 
 ing jurisdiction of the subject matter." ^* "If an of- 
 ficer in good faith executes a writ, fair on its face, the 
 writ protects him, though there was no judgment upon 
 
 V. Vankirk. 6 Binn. 123; Swires v. Brotherline, 41 Pa. St. 13.5. 80 
 Am. Dec. 601; Atkinson v. Micheaux, 1 Humph. 312; Stevenson v. 
 McLean, 5 Humph. 332, 42 Am. Dec. 434; Barnes v. Hayes, 1 Swan. 
 304; Fall Creek Coal Co. v. Smith, 71 Fa. St. 230; Earle v. Thomas, 
 14 Tex. 583; Hill v. Wait, 5 Vt. 124; Gage v. Barnes, 11 Vt. 195; 
 Pierson v. Gale, 8 Vt. 500, 30 Am. Dec. 487; Brown v. Mason, 40 Vt. 
 157; Loomis v. Wheeler, 21 Wis. 271; Miller v. Brown. 3 Mo. 127. 23 
 Am. Dec. G93; Elsemore v. Longfellow, 76 Me. 128; Erskine v. Hohn- 
 bach, 14 Wall. 613; Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec. 
 229; Orr v. Box. 22 Minn. 485; Yeager v. Carpenter, 8 Leigh. 4.54, 
 31 Am. Dec. 6G5; Barr v. Boyles, 96 Pa. St. 31. Hence the officer 
 is protected though the writ runs against a deceased person. Bragg 
 V. Thompson, 10 S. C. 572. 
 
 33 Turner v. Felgate, Lev. 95; Britton v. Cole, 12 Mod. 178; Jones 
 V. Williams, 8 Mees. & W. 349; Camp v. Moseley, 2 Fla. 171; Barker 
 V. Braham, 3 Wils. 376; Cotes v. Michill, 3 Lev. 20; Moravia v. 
 Sloper, Willes. 30; Gott v. Mitchell, 7 Blackf. 270; Burton v. Sweaney, 
 4 Mo. 1; Andrews v. Morris, 1 Ad. & E., N. S., 4; Etheridge v. 
 Edwards, 1 Swan. 42t); Davis v. Cooper, 6 Mo. 148; Kleissendorff v. 
 Fore, 3 B. Mon. 473; Traylor v. McKeown, 12 Rich. 251: Jackson 
 v. Hobson, 5 111. 411; Keys v. Granuis, 3 Nev. .548; Crowe v. Adams, 
 21 Can. S. C. K. 342. Therefore, if an execution purports to be 
 issued on a judgment of the county court, when in fact it is upon 
 a transcript of a judgment of an inferior court, and is invalid be- 
 cause not issued in the manner provided for executions upon such 
 transcripts, the officer cannot be held responsible as a trespasser, 
 there being nothing to warn him that he was not Jicting under a 
 jiidgment of the county court. Hill v. Hayues, 9 Alb. L. J. 27(); 54 
 N. Y. 153. Contra, that officer must produce judgment, Hamilton 
 V. Decker, 2 South. 813. 
 
 34 Henline v. Reese, 56 Ohio St. 603, 56 Am. St. Rep. 738.
 
 355 DUTIES AND LIABILITIES OF OFFICERS. § 101 
 
 wliicli to baso it. Such a wi'it ran otiIv bo iisfMl as 
 a weapon of defense, and for protection — not for the 
 purpose of attack for offensive purposes. An officer, 
 who, in oood faith, seizes and sells property under an 
 execution, may justify, in a suit for damafjes a?;ainst 
 him in consequence of such seizure or sale, without 
 producing the judgment; and he will be regarded as 
 having acted in good faith, when the writ was fair on 
 its face and he was not advised that there was no judg- 
 ment or that, if there was, it was void. And it will 
 make no difference whether the suit is for damages on 
 an implied contract or upon a tort. A ministerial officer 
 cannot be held personally liable in any proceeding, 
 civil or criminal, for any act done by him in executing 
 a writ fair on its face, unless he knows, or should have 
 kndwn, as a reasonable man, that the judgment upon 
 which it purported to have been issued was void, or 
 that there was no judgment." ^^ 
 
 88 Ilamiier v. Ballantyne, 13 Utah. 342. 57 Am. St. Rep. 73G. 
 
 A somewhat extreme application of the priuciple was made by 
 the court of appeals of Indiana. An execution issued directing a 
 sheriff to sell a house described therein. In executinc: the writ he 
 entered the house and removed therefrom certain household fur- 
 niture and other personal property, and for this an action was 
 brought against him and his sureties by the owners of such property 
 —who were not parties to the writ, and who claimed also to be 
 owners of the house thus directed to be sold. In determining that 
 this writ justified the officer in what he did. the court said: "We 
 think it manifest, from the averments in the complaint, that the 
 alh'ged wrongful conduct of the sheriff is predicated upon the fact 
 that the rel.-itors, altlunigh the owners and in jjossession of the 
 house which the sheriff was ordered to sell, were not made parties 
 to the foreclosure suit in which the writ was issued. It is not 
 shown when the relators became the owners of the house, whether 
 before or after the execution of the mortgage; nor do we see that 
 this is important, so far as this action is concerned. When an exe- 
 cution, or order of sale. Issues from a court of competent jurlsdlc- 
 tlon. and is placed in the hands of the sheriff, it is liis duty to exe-v 
 cute the same according to its terms with reasonable diligence.
 
 § 101 DUTIES AND LIABILITIES OF OFFICERS. 3C6 
 
 The case of Savacool v. Boughton, 5 Wend. 170, 21 
 Am. Dec. 181, is a leading case on this subject when the 
 process issues out of a court of limited jurisdiction. In 
 
 His duty is ministerial, not Judicial. His province is to execute 
 the process regularly delivered to bim, and not to sit in judgment 
 upon the regularity of the proceedings upou which it was obtnined. 
 Out of this duty arises the necessity of protection to the sheriff. 
 If the process, to use the customary legal expression, be fair on its 
 face, it will protect the officer. By this is not meaut that it shall 
 appear to be perfectly regular, and in all respects in accord with 
 proper practice, and after the most approved form, but what is in- 
 tended is that it shall apparently be process lawfully issued, and 
 such as the officer might lawfully serve. More precisely, that pro- 
 cess may be said .to be fair on its face which proceeds from a court, 
 magistrate or body having authority of law to issue process of tliat 
 nature, and which is legal in form, and on its face contains nothing 
 to notify or fairly apprise the officer that it is issued without au- 
 thority. When such appears to be the process, the officer is pro- 
 tected in making service, and he is not concerned with any illegali- 
 ties that may exist back of it. Cooley on Torts, 538; Noland v. Busby, 
 28 Ind. 154; State ex rel. v. Hamilton, 32 Ind. 104; Adams v. Davis, 
 109 Ind. 10; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Ken- 
 iston V. Little, 30 N. H. 318, 64 Am. Dec. 297; Caldwell v. Hawkins, 
 40 Me. 526; Underwood v. Robinson, 106 Mass. 296: People v. War- 
 ren, 5 Hill, 440; Cornell v. Barnes, 7 Hill, 35; Billings v. Russell, 23 
 Pa. St. 189, 62 Am. Dec. 330; Ix)omis v. Spencer, 1 Ohio St. 153; 
 Brother v. Cannon, 1 Scam. 200; Glasgow v. Rowse, 43 Mo. 479. It 
 must not be overlooked, however, that the rule that an officer is 
 justified bv his process, when it is fair upou its face, is one of pro- 
 tection merely; and although the officer may execute such process 
 and be protected, yet, if it is in fact void for want of jurisdiction 
 in issuing it, he may refuse to execute it, and no action will lie 
 against him for such refusal. State ex rel. v. Hamilton, supra-, 
 Newburg v. Munshower, 29 Ohio St. 617, 23 Am. Rep. 769; Reid v. 
 Stegman, 99 N. Y. 646; Earl v. Camp, 16 Wend. 562; Cornell v. 
 Barnes, 7 Hill, 35. When the process seems to be fair on its face, 
 it next becomes necessary to the officer's protection that he proceed 
 upon it as the law directs. And at this point it must be borne in 
 mind that the law constantly presumes that public officers charged 
 with the performance of official duty have not neglected the same, 
 but have duly performed it at the proper time and in the proper 
 manner. In the .absence of evidence to the contrary, this presump- 
 tion will prevail, but it is not an indisputable one. and may be over- 
 come by countervailing evidence. Tlie fact, if it be a fact, that the 
 relators had purchased the house and were in possession of it when
 
 307 DUTIES AND LIABILITIES OF OFFICERS. § 101 
 
 this case, Judge Marcy, after reviewing the English and 
 American authorities then existing, concluded as fol- 
 lows: "In my judgment, the same principle which gives 
 
 tlie foreclosure suit was fomincncod. and thn fnrtlior fa^t tliat tliey 
 were uot made parties to said suit, canuot affect the sheriff and his 
 Kureflos, if the order of snlo under which ho was actihp was fair 
 on its face, ami the sheriff proceeded upon it lawfully. For aujeht 
 that Is shown In the complaint, the order of sale under which the 
 sheriff was actinj; was fair upon its face in all respects. It was a 
 duty, therefore, which the'sherifi' owed the plaintiff in the foreclos- 
 ure suit, to take possession of, and sell, the liouse and other prop- 
 erty named in the writ. The juoper service of this writ upon the 
 property descrllied therein required the sheriff to take jiosse-sion of 
 the property, either actually or constructively. For the purpose of 
 reducing the house to possession, the sheriff had a right to enter it 
 if he saw pi'oper to do so. The house being personal property, the 
 sheriff's possession, when once taken under the writ, was as exclu- 
 sive as if it had been personal property of some other kind. The 
 sheriff was the officer of the law, and his possession was the pos- 
 session of the law. It was the privilege of the sheriff to remove 
 the propei'ty of the relators from the house, so far as can be seen 
 from the complaint, not only that the exclusive possession and con- 
 trol of the house miuht be in himself up to and at the time of the 
 sale, but also that he might thereafter deliver the possession, untram- 
 meled and unqualified, if it could so be, to the purchaser. And it 
 would not matter whether the property of the relators was re- 
 moved from the house before or after the sale. From the time the 
 sheriff, under the order of sale, took possession of the house, it was 
 in his custody as the agent or officer of the law until the proper 
 time for its sale, and for a reasonable time after the sale, to allow 
 the purch.'iscr to receive and remove it. Gilbert v. Moody, 17 Wend. 
 354; Peacock v. I'urvis, 2 B. & B. 3G2; Blades v, Arundale, 1 Maul. 
 & Sel. 711; Bradly Distress, 84. The law confided in the sheriff, ex- 
 pecting him to so exercise the power with which he was clothed 
 as would best promote the interests of the parties, plaintiff and de- 
 fendant, to the writ. He was not acting for and owed no duty offi- 
 cially, as connected with the writ, to the relators. If, in his opin- 
 ion, it would in any way promote the interests of the parties to the 
 writ to remove the relators' property from the house, we do not 
 think his right to do so could be questioned if the removal was not 
 negligently made. In thus holding we do not lose sight of the rule 
 that an officer may so act or interfere with the property of a 
 stranger or third person that his writ, although fair on its face, will 
 not protect him; as, for example, where he takes the goods of one 
 person upon a writ against another. In that case the officer does
 
 § 101 DUTIES AND LIABILITIES OF OFFICERS. 3GS 
 
 protection to a miiiisterial officer, who executes the pro- 
 cess of a court of general jurisdiction, should protect 
 him when he executes the process of a court of limited 
 jurisdiction, if the subject-matter of the suit is within 
 that jurisdiction, and nothing appears on the face of the 
 process to show that the person was not also within 
 it. The following propositions, I am disposed to be- 
 lieve, will be found to be well sustained by reason 
 and authority: That where an inferior court has not 
 jurisdiction of the subject-matter, or, having it, has 
 not jurisdiction of the person of the defendants, all 
 its proceedings are absolutely void; neither the mem- 
 bers of the court nor the plaintiff (if he procured or 
 assented to the proceedings) can derive any protection 
 from them when prosecuted by a party aggrieved there- 
 by. If a mere ministerial officer executes any process^ 
 upon the face of which it appears that the court had 
 not jurisdiction of the subject-matter, or of the per- 
 son against whom it is directed, such process will 
 afford him no protection for acts done under it. If the 
 
 not seize the goods of the defenrlant. or take possession of the iden- 
 tical property named in the writ, and which he is commanded to sell, 
 as under the order of sale in the case at bar; but he voluntarily, 
 and without any authority whatever, takes the propery of one not 
 named, nor liable under the writ at all, to pay the debt of another. 
 It is wholly different, in fact and upon principle, from the case 
 where the act complained of is a part of, or an approi»riate incident 
 to, the principal thing wliich the otficer is commanded by the wx'it 
 to do. In the case at bar the sheriff had no discretion to use, no 
 judgment to exercise, no duty to perform but to seize the property 
 described in the oi'der of sale; and this was the sheriff's duty, al- 
 though the relators were not parties to the* foreclosure suit. Buck 
 V. Colbath, 3 Wall. 334; Wallace v. Holly, 13 Ga. 389, 58 Am. Dec. 
 518. There is a well-recognized distinction between the ordinary 
 execution and an order to sell specifically named property. Where 
 there is a judgment of foreclosure against specific property, it is a 
 mandate iipon the slieriff to sell it. See Harris v. Glenn. ."G Ga. 
 94: Haydeu v. .Tolnison. .j9 Ga. 101: Ghipstead v. I'orter, 03 Ga. 220."*^ 
 Tliompson v. State, 3 lud. App. 371.
 
 3G9 - DUTIES AND LlAlilLiTlES OF OFFICERS. § 101 
 
 subjoft-inatter of a suit is within tlie jurisdiction of 
 a court, but there is a want of jurisdiction as to tlic 
 person or place, the officer who executes process issued 
 in such suit is no trespasser, unless the want of juris- 
 diction appears by sucli process." ^^ 
 
 A ministerial officer is not compelled to make inves- 
 tigations to ascertain whether tho magistrate or other 
 officer issuing the process is an officer de jure, or an 
 officer de facto merely. "The principle is well settled 
 that the acts of officers de facto are as valid and ef- 
 fectual when they concern the jjublic, or the rights of 
 third persons, as though they were officers de jure." ^"^ 
 "It is well settled, therefore, that the lawful acts of 
 a de facto officer, so far as the rights of third persons 
 are concerned, are, if. done witliin the scope and by 
 the apparent authority of his office, as valid and bind- 
 ing as if he were an officer lawfully elected and quali- 
 fied for the office and in full possession of it." ^** This 
 rule applies to justices of the peace and other judicial 
 officers, as well as to clerks and other ministerial of- 
 ficers whose duty it is to issue writs of execution. 
 Hence, if a writ purports to be issued upon a judgment 
 of a court or judicial officer, by an officer having ap- 
 ]>arent authority to issue it, the officer by whom it is 
 received for execution ne^d not investigate the title 
 to office either of the judicial officer pronouncing th<' 
 judgment or of the ministerial officer issuing the writ, 
 for the process will sustain all acts done in obedienc • 
 
 3« Followed in Coon v. Conpdon. 12 Wend. 40r,; Parker v. Walmd. 
 16 Wend. 514, 30 Am. Dee. 124; Che^'aray v. Jenkins, 1 Seld. 37':; 
 Cornell v. Barnes. 7 Hill, 35; Sheldon v. Van Buskirk. 2 N. Y. 477. 
 
 8T Wileox V. Smith. 5 ^Vend. 231. 21 Am. Dec. 213; Tbulemeyer v. 
 Jones, 37 Tex. 5G0; Laver v. McGlachlin, 28 Wis. 3G4. 
 
 88 Mechem on Public Officers, sec. 328. 
 Vol. I.-24
 
 § 101 DUTIES AND LIABILITIES OF OFFICERS. 370 
 
 to its commands, and will support, if it is a writ of exe- 
 cution, all seizures and sales made tliereunder.^^ 
 
 Officers are also protected where, though the court 
 had jurisdiction, the writ is void as between the par- 
 ties thereto on account of something not appearing 
 on the face thereof. The sheriff, therefore, need not 
 make any inquiries to ascertain whether the judgment 
 has been satisfied. He may safely assume that the 
 plaintiff would not ask for, nor the clerk or magistrate 
 issue, a writ to enforce a paid judgment.*^ Therefore, 
 it has been held that though what purports to be a 
 receipt from the plaintiff acknowledging the full sat- 
 isfaction of the writ or judgment is exhibited by the 
 defendant to the officer, he need not proceed to inves- 
 tigate its genuineness, but may, nevertheless, proceed 
 to coerce the satisfaction of the writ without subjec- 
 ing himself to liability to the defendant, when the 
 genuineness of the receipt is established.^^ If such be 
 the law, then the remedy of the defendant must be by 
 some motion to quash or recall the writ, made in the 
 court which issued it.*^ 
 
 The rule that an officer may justify under a writ 
 valid on its face is one of protection merely. If he 
 seeks to maintain an action, he cannot rely upon the 
 process alone, but must support it by a valid judg- 
 ment.*^ * So there are cases in which the process alone 
 
 89 Morton v. Leo, 28 Kan. 287; Carl v. Rhener, 27 Minn. 293; Ex 
 parte .Tolmson, 15 Neb. 512; Mallett v. Gold & S. M. Co., 1 Nev. 18S, 
 90 Am. Dec. 484; Hamlin v. Kassafer, 15 Or. 456, 3 Am. St. Rep. 176. 
 
 40 Mason v. Vance, 1 Snood, 178, 60 Am. Dec. 144; Luddiugton v. 
 Peck, 2 Conn. 700; Lewis v. Palmer, 6 Wend. 367. 
 
 41 Twitohell v. Shaw, 10 Cusli. 46, 57 Am. Dec. 80; Tlerney v. Fra- 
 zler, 57 Tex. 4:i7; Barr v. Combs, 29 Or. 399. 
 
 42 Mason v. Vance, 1 Sneod, 178, 60 Am. Dec. 144. 
 
 42aDunlap V. Hunting, 2 Denio, 643, 43 Am. Dec. 763; Earl v. 
 Camp, 16 Wend. 562; Horton v. Hendershot, 1 Hill, 118.
 
 371 DUTIES AND LIABILITIES OF OFFICERS. § 101 
 
 may not be a protection. Thus, an officer may levy 
 upon property in the possession of a stranger to the 
 writ, who derived title from the defendant in execu- 
 tion prior to the issuance or levy of the writ. Tiie of- 
 ficer may retain the property if he can show that the 
 transfer was actually or constructively fraudulent, 
 and that he is in position to attack it on that ground. 
 He is not in position to maintain such attack unless 
 the plaintiff in execution, whom he represents, is a 
 creditor by judgment, or a creditor having a lien on 
 the properly. That the plaintiff is such creditor is 
 not established by the execution alone. The officer, 
 to make his justification complete, must establish it in 
 some other mode. If he relies upon the execution, he 
 must support it by avalid judgment,'*^ or by some other 
 competent evidence, of the existence of a debt of such 
 a character as to afford a justification for the seizure 
 and detention of the property."*^ This, however, is 
 scarcely an exception to the rule that an officer is pro- 
 tected by a writ regular on its face, for the writ does 
 not purport to confer immunity for any acts not au- 
 thorized by it. It does not expressly sanction the seiz- 
 ure of any property other than the defendant's, and, if 
 the officer undertakes to subject other property to the 
 writ, he must first, at his peril, satisfy himself of the 
 
 ♦3 State V. Rucker, 19 Mo. App. 587; Thatcher v. Maack, 7 111. App. 
 635: Bean v. Loftiis. 48 Wis. 371. 
 
 ** Soxey V. Adkinson, 34 Cal. 346, 91 Am. Dee. 698; Damon v. 
 Rrynnt. 2 Pick. 412: Mamlook v. White. 20 Cal. 600; Rinohey v. Stry- 
 ker. 28 N. Y. 52. 84 Am. Dec. 324; Howard v. Manderfield, 31 Minn. 
 337: Townsly-Myriok D. G. Co. v. Fuller, 58 Ark. 181, 41 Am. St. 
 Rep. 97; Bogert v. Phelps, 14 "Wis. 92; Bugbee v. Lombard. &8 W^ls. 
 271; Brown v. Howard. 82 Me. 342; Palmer v. McMaster, 10 Mont. 
 390: Ilakanson v. Brodke. 36 Neb. 42; Brickman v. Boss. 67 Cal. 
 604; Braley v. Byrnes, 20 Minn. 439; Brown v. Cline, 109 Cal. 159. ,
 
 § 102 DUTIES AND LIABILITIES OF OFFICERS. 372 
 
 existence of all the circumstances essential to justify 
 his action. In taking the property of a stranger to the 
 writ, an officer does not act in obedience to it, unless 
 very exceptional cases render subject to the writ the 
 property of a person not named therein. By taking 
 the property of a third person, unless these very ex-^ 
 ceptional circumstances can be shown, an officer is not 
 within the protecting power of his writ, but is subject 
 to an action brought on behalf of any interested per- 
 son, either to recover the property itself or the damages 
 sustained by its seizure and detention.*^ It is there- 
 fore incumbent on an officer seizing property in satis- 
 faction of a writ to ascertain at his peril whether such 
 property belongs to the defendant in execution and is 
 subject to the writ. An exception to this rule exists 
 when the writ describes specific property, in which case 
 the officer is justified in acting under it, if regular on 
 its face.^® 
 
 § 102. Whether the Officer's Knowledge of Irregulari- 
 ties is Material. — The authorities cited in the preceding 
 section abundantly sustain the proposition that an offi- 
 cer may limit his inquiries to an inspection of the face 
 of the writ; and that he is not to be held responsible for 
 anything of which the writ gives no notice, and of 
 which he has no actual knowledge. But in some in- 
 stances, an officer's knowledge may have placed him in 
 possession of the very facts which render the writ void 
 between the parties thereto. Does this knowledge be- 
 come a material fact in determining whether he is re- 
 sponsible for acting in obedience to the writ? To this 
 
 45 Carpenter v. Tnnes. 16 Colo. 1G5. 25 Am. St. Rep. 25.5, and note; 
 Jones V. Lamon. 92 Ga. 529; Ilig v. Burl)ank, 59 111. 291; Walker v. 
 
 •Wonrlerlick, 33 Neh. 504. 
 
 46 State V. Halley, 71 Mo. App. 200, post, § 254.
 
 373 DUTIES AND LIABILITIES OF OFFICERS. § 102 
 
 question the highest courts in some of the states have 
 given a response in the negative. To go beyond the 
 process would, in the opinion of the courts of New 
 York, ''lead to a new and troublesome issue, which 
 would tend greatly to weaken the reasonable protec- 
 tion to ministerial officers. Their duties, at best, are 
 sufficiently embarrassing and responsible; to require 
 them to act or not at their peril, as they may be sup- 
 posed to know or not the technical regularity of the 
 party or magistrate, seems to me an innovation upon 
 previous cases, and against the reasons and policy of 
 the rule. The experience of the officer will soon enable 
 him to determine whether the process is in regular 
 form or not, or he can readily obtain the necessary ad- 
 vice; but he must be presumed to be wiser than the 
 magistrate, if even a knowledge of the proceedings 
 would enable him to decide correctly if they happen to 
 be erroneous.'' *'' In a later case in the same state a 
 warrant was issued by the inspectors of elections, and 
 was executed by an officer who knew that these inspec- 
 tors were without jurisdiction. The court, in holding 
 the officer justifiable, said: "Although the inspectors 
 had no jurisdiction of the subject-matter, yet, as the 
 warrant was regular upon its face, it was a sufficient 
 authority for the arrest. The knowledge of the officer 
 that the inspectors had no jurisdiction is not impor- 
 tant. He must be governed and is protected by the 
 process, and cannot be affected by anything he has 
 heard or learned out of it." ** It has also been decided 
 
 47 Webber v. Gay. 24 Weud. 4S4. 
 
 <8 People V. Wanou. 5 Hill. 44<); to same effect. Gott v. Mitchell, 
 7 Blackf. 270: Watson v. Watsou. 9 Goun. 140. 2.3 Am. Dec. 324; 
 Tierney v. Ftazier. 57 Tex. 437: Rainey v. State, 20 Tex. App. 4o5; 
 see. also, State v. Weed. 1 Fost. 202. n3 Am. Dee. 18.S: Brainard v. 
 Head, 1.") La. Ann. 489; Wail v. TiumbuU, 10 Mich. 228; Bird v. Per- 
 kins, 33 Mich. 30.
 
 § 102 DUTIES AND LIABILITIES OF OFFICERS. 374 
 
 that an officer is justified in serving an execution, al- 
 though he knew that the defendant had been released 
 in proceedings in bankruptcy from the judgment on 
 which the execution issued.*^ It has been held that 
 notice of the satisfaction of a judgment, or, at least, of 
 facts sufficient to incite inquiry upon that subject, will 
 not render an officer liable for injuries resulting to the 
 defendant from taking further measures under it.*®* 
 We are conscious that the courts incline more and 
 more to the rule which absolutely exempts an of- 
 ficer from liability when the writ is fair on its 
 face, irrespective of his knowledge of facts estab- 
 lishing, or, at least, strongly indicating either that the 
 judgment is void or that it has been previously satis- 
 fied, or for some other reason ought not to be further 
 enforced. It may be said in favor of this rule that, 
 conceding an officer to have knowledge of facts render- 
 ing the further enforcement of the writ wrongful, it is 
 not proper to require him to judge the legal conse- 
 quences of these facts and to thus expose him to peril 
 from the plaintiff, if he incorrectly concludes that the 
 writ ought not to be enforced, and to like peril from 
 the defendant, if the officer erroneously determines 
 that such facts are not sufficient to deprive the plain- 
 tiff of the right to the enforcement of his writ, and 
 furthermore, that it is against sound public policy to 
 encourage officers to be negligent or tardy in rendering 
 obedience to process, and then to permit them to jus- 
 tify their delay on the ground that, from facts which 
 they supposed to exist, they doubted whether the pro- 
 cess should be executed. Where a sheriff was sued in 
 
 «Whitworth v. Clifton, 1 Moody & R. 531; Tarlton v. Fisher, 2 
 DonpT. 671. 
 
 48a Ante, § 101.
 
 375 DUTIES AND LIABILITIES OF OFFICERS. § lu2 
 
 trespass for the seizure of property under executiou, 
 and pleaded bis process in justilication, this plea was 
 sought to be met by evidence that the judgment had 
 been satisfied before the issuing of the writ, and that 
 the sheriff was aware of this fact. This evidence was 
 pronounced incompetent against the sheriff "because 
 the execution on which he seized is admitted to be 
 regular on its face, and to have been issued by a court 
 of compeieui jurisdiction. It was therefore a complete 
 protection to him, although he may have known that 
 the judgment on which it was based had in fact been 
 satisfied. A sheriff cannot be wiser than his process, 
 and if the officer or tribunal by which it is issued has 
 jurisdiction of the subject matter, and the process is 
 regular on its face, showing no departure from the law 
 or defect of jurisdiction, it will afford a complete pro- 
 tection to the officer executing it against any prosecu- 
 tion therefor, and he is not affected as to this rule of 
 protection by anything he may have heard or learned 
 outside of the process." °** 
 
 The rule that protects officers from all jurisdictional 
 and other infirmities not disclosed upon the face of the 
 process, and not otherwise brought home to their 
 knowledge, seems to us sufficiently comprehensive. 
 All mere errors and irregularities in the process, such 
 as are not of so serious a character as to render it void 
 as between the parties thereto, ought not to be noticed 
 by the sherilT; for as long as the parties acquiesce, cer- 
 tainly he ought not to be liable for executing the writ. 
 But there is a class of cases in which the process, on 
 account of some infirmity in the judgment or in the 
 w^rit, has no validity. Not only the plaintiff but also 
 innocent purchasers are precluded from acquiring any 
 
 eo Barr v. Combs. 29 Or. 300.
 
 § 102 DUTIES AND LIABILITIES OF OFFICERS. 376 
 
 benefit therefrom. But as ministerial ofiQcers are con- 
 stantlj called on to execute process, and are therefore 
 frequently exposed to the hazard of being left without 
 protection for their acts done in good faith, the law has 
 wisely interposed in their belialf, in order that their 
 position should not be intolerable. This indisposition 
 has not been such as in all cases to thrust a shield be- 
 tween them and the persons whom they have injured 
 in their attempts to execute void writs. It is clear that 
 if the writ gives notice of the matters rendering it void, 
 the ofilcer is responsible; for while it is reasonable to 
 protect officers against secret vices in the proceedings, 
 it is unreasonable that they should be encouraged in 
 the perpetration of a legal wrong of which they have 
 been notified. But suppose that, though the writ is in 
 due form, the officer has outside of the writ been in- 
 formed of a state of facts which, if set forth in the writ, 
 would make him answerable as a trespasser for its at- 
 tempted execution, is it any greater hardship to re- 
 quire him to know the legal consequence of these facts 
 than it is to make a similar requirement when his 
 knowledge had been obtained from an inspection of 
 the writ? If he is competent to determine the ques- 
 tion in the one case, he is equally so in the other. If 
 the judgment set forth in the writ was not in truth ren- 
 dered, or was rendered in a case where there was an 
 absence of jurisdiction either over the subject-matter or 
 over the parties; or if from any other cause the pro- 
 ceeding about to be taken by the officer is void as be- 
 tween the parties, and can therefore result in nothing 
 but outrage and wrong perpetra^ted under the forms of 
 law — why should he be encouraged to proceed? If he 
 is ignorant, he may properly be awarded the protection 
 we accord to the innocent in the pursuit of a path mis-
 
 377 DUTIES AND LIABILITIES OF OFITCKUS. § 102 
 
 taken for tliat of duty. But if he knows of these de- 
 strojinj; vices, he has no duty to proceed. In pro- 
 ceedinjj:, he is the willful and conscious instrument of 
 legal oppression, voluntarily choosiny; to seize the per- 
 son or property of the defendant in professed obi'di(^nce 
 to a mandate which he knows to be destitute of legal 
 sanction; and he ought to be held answerable as a 
 trespasser as rigorously as any party to the suit, or any 
 other voluntary participant in the wrong/'^ Our 
 views upon this subject have been illustrated and sus- 
 tained by a recent decision of the supreme judicial 
 court of ^[assachusetts. A writ w-as issued against 
 the master of a steamship authorizing his arrest upon 
 a claim that a sum was due plaintiff for work thereon. 
 A constable, charged with the execution of this writ, 
 went to the vessel, and, before making any arrest, was 
 there informed that the vessel was a Norwegian one, 
 that the defendant was its captain, and that the claim 
 of the plaintiff would be adjusted at the consulate of 
 the kingdom of Norway and Sweden in the same city. 
 The constable, nevertheless, arrested and handcuffed 
 the captain and kept him under arrest in the cabin of 
 the vessel until the claim was paid under protest. By 
 virtue of a treaty between the United States and Swe- 
 den and Norway jurisdiction of cases of the class in 
 question was reserved to the consuls, vice-consuls, and 
 other commercial agents, and the court issuing the 
 writ was therefore without jurisdiction. In an action 
 against the constable he claimed that the writ was fair 
 upon its face, and that he could not be charged with no- 
 
 " Sprague v. Birchard. 1 Wis. 4u7. 60 Am. Dec. 393; McDonald 
 V. Wilkie. 13 111. 22. 'A Am. Dec. 423; BatchoUier v. Currier. 4.') N. 
 H. 460; Watson v. Bodell. 14 Mees. iV- W. 57: Grace v. Mifcliell. n 
 Am. Rep. 613, 31 "Wis. 533; Leachmau v. Dougherty, 81 111. 324.
 
 § 102 DUTIES AND LIABILITIES OF OFFICERS. 378 
 
 tice of any facts not disclosed by it. This claim of the 
 defendant was overruled, and it was held, in substance, 
 that after receiving notice from which it appeared 
 probable that the court issuing the writ did not have 
 jurisdiction to do so, that it was the duty of the officer 
 to make inquiry, and that, if he chose to proceed with- 
 out such inquiry and in defiance of the rights of the de- 
 fendant, he was liable for the unlawful arrest.^^ 
 
 62 Tellefsen v. Fee, 168 Mass. 188, 60 Am. St. Itep. 379. The opin- 
 ion of the majority of the court, so far as applicable to this sub- 
 ject is as follows: "It appears, therefore, that the consul of 
 SAveden and Norway had exclusive jurisdiction of the controversy 
 or difference between Johnson and Tellefsen, and that the muni- 
 cipal court of the city of Boston had no jurisdiction either of the 
 subject matter or of the persons of the parties in the action which 
 the seaman saw fit to bring against the master. The officer who 
 arrested the master was therefore acting illegally and without justi- 
 fication, and is liable in this action unless he is protected by vir- 
 tue of his writ. This presents a question of some difficulty and 
 one which is not wholly free from doubt. Before proceeding to 
 consider the principal question, it may be well to state briefly cer- 
 tain principles laid down by the courts in regard to which there is 
 little or no dispute. Where the process is in due form and comes 
 from a court of general jurisdiction over the subject matter, the 
 officer is justified in acting according to its tenor, even if irregu- 
 larities making the process voidable have pi'eviously occurred. 
 Savacool v. Boughton, o Wend. 170, 21 Am. Dec. 181; Earl v. Camp, 
 16 Wend. 5G2; Ela v. Shepard, 32 N. H. 277; Howard v. Proctor. 
 7 Gray, 328; Dwinnels v. Boynton, 8 Allen, 310; Chase v. Ingalls, 
 97 Mass. 524; Hubbard v. Garfield, 102 Mass. 72; Bergin v. Hay- 
 ward, 102 Mass. 414; Rawson v. Spencer, 113 Mass. 40; Chesebro 
 V. Barme, 103 Mass. 79, 82; Hines v. Chambers, 29 Minn. 7; Hann 
 V. Lloyd, 50 N. .T. L. 1. Where, however, the process is void on its 
 face, the officer is not protected. Clark v. Woods, 2 Ex. 395; Pearce 
 V. Atwood, 13 Mass. 324; Eames v. Johnson. 4 Allen, 382; Thurs- 
 ton V. Adams, 41 Me. 419; Harwood v. Siphers, 70 Me. 464; Brown 
 V. Howard, 86 Me. 342; Rosen v. Fischel, 44 Conn. 371; Frazier v. 
 Turner, 76 Wis. 502; Sheldon v. Hill. 33 Mich. 171; Poulk v. Slo- 
 cum, 3 Blackf. 421. An officer is bound to know the law, and to 
 know the jurisdiction of the court whose officer he is. If, there- 
 fore, he does an act in obedience to a precept of the court, and 
 the court has no jurisdiction in the matter, either because the stat- 
 ute under which the court acted is unconstitutional, or there is a
 
 379 DUTIES AND LIABILITIES OF OFFICERS. § 102 
 
 It lias soiiii'tinies boon insistod tliat an oflicor should, 
 or, at loast, might look bohind his writ for the purpose 
 of inquiring rospocting facts which, if existing, might 
 
 want of jurisdiction for any other reason, it wonld seem that the 
 officcx' is not i)rotoeted. There are manj- authorities to this effect: 
 Fislier v. ^MrCirr. 1 Gray, 1, 43, Gl Am. Dee. 381; "Warren v. Kel'ey. 
 
 80 Me. 512; P.atchelder v. Currier, 45 N. II. 400; Thurston v. Martin. 
 5 Mason, VJl; Campbell v. Sherman, o.j AVis. 103; Sumner v. Beeler. 
 50 Ind. 341, 10 Am. Rep. 718; The Marshalsea, 10 Rep. G8b; Crepps 
 V. Durden, Cowp. 640; Brown v. Compton, 8 Term. Rep. 424; 
 Watson V. Bodell. 14 Moes. & W. 57. Whether this doctrine ap- 
 plies to a case lilie the present, where the court had general juris- 
 diction over the subject matter, but no jvu-isdiction over the par- 
 ticular controversy between the parties, and no jurisdiction over 
 their persons, we need not decide, liecause on the facts in this case 
 we are of opinion that the officer may be held liable. He was in- 
 formed before making the arrest that the vessel was a Norwegian 
 vessel, and the captain of the vessel a Norwegian, and that the 
 claim of Johnson would be adjusted at the consiilate of the King- 
 dom of Sweden and Norway. Being informed of the facts, he was 
 bound to know the law, that the court had no jurisdiction over the 
 person of the captain or the subject matter of the action: S]irague 
 V. Bichard, 1 Wis. 457, 404, 409, 00 Am. Dec. 303; Grace v. Mitchell. 
 31 Wis. 533, 539, 545, 11 Am. Rep. 013; Leachman v. Dougherty, 
 
 81 111. 324, 327, 328. There are, without doubt, cases which lay 
 down a more stringent rule, and say that the officer need not look 
 beyond his precept, and is not bound to take notice of extrinsic 
 facts; but all of these are cases which are distinguishable from the 
 case at bar. The leading case on this subject Is People v. Warren, 
 5 Hill. 440. The defendant was indicted for assaulting an officer. 
 The Inspectors of an election issued a warrant to a constable for 
 the arrest of the defendant, for interrupting the proceedings at 
 the election by disorderly conduct in the presence of the inspectors 
 The defendant offered to show that he had not been in the pres- 
 ence of the inspectors at any time during the election and that the 
 constable knew it. This was held to be rightly excluded. The opin- 
 ion is per curiam, and is very brief. While it says that the in- 
 spectors had no jurisdiction of the subject matter, yet the clear 
 meaning is that, if the defendant was not In their presence, they 
 acted in excess of their jurisdiction. Knowledge by an officer 
 that a man was innocent would, of course, be no excuse for assault- 
 ing the officer, if he arrested the man upon a warrant from a court 
 of competent jurisdiction. An officer In a criminal case is obliged 
 to obey his warrant, whatever his knowledge ma.v be. This dis- 
 poses also of the case of State v. Weed, 21 N. n. 2G2, 53 Am. Dec.
 
 § 102 DUTIES AND LIABILITIES OF OFFICERS. 3S0 
 
 give it a more extended operation than its face indi- 
 cates, as where it is claimed that a cause of action upon 
 which a judgment was rendered was such that no.ex- 
 
 188. Severnl cases have been called to our atteution in which there 
 are dicta to the effect that an officer is not bound to looli beyond 
 his precept, even if he has knowledge that the court has no juris- 
 diction; but an examination of these cases shows that the facts 
 known to the officer did not affect the jurisdiction of the court, 
 hut related to irregularities in the prior proceedings, or to matters 
 merely of defense to the action. See cases above cited. Of course, 
 where the court has jurisdiction of the subject matter and of the 
 parties to an action, knowledge on the part of the officer, or in- 
 formation to him that there is some irregularity in the proceeding, 
 can make no difference. Underwood v. Robinson, 106 Mass. 206. 
 Nor can it make any difference that the officer is informed that 
 there is a defense to the action, such as that the defendant has a 
 receipt, Twitchell v. Shaw, 10 Cush. 46, 57 Am. Dec. 80; or a dis- 
 charge in insolvency: Wilmarth v. Burt, 7 Met. 257; or that the 
 defendant is an infant. Gassier v. Fales, 139 Mass. 461. But the 
 question of jurisdiction is a more serious matter, and if facts are 
 brought to the attention of the officer about which he can have 
 no reasonable doubt, and he knows, or is bound to know, that on 
 these facts the court has no jurisdiction of the controversy, he may 
 well be held to proceed at his peril. We can see no hardship upon 
 the officer in holding him responsible in this case for an illegal ar- 
 rest and for a false imprisonment. If an officer has reasonable 
 cause to ddubt the lawfulness of an arrest, he may demand from 
 the plaintiff a bond of indemnity, and so save himself harmless: 
 Marsh v. Gold, 2 Pick. 285, 290. We are not aware that this case 
 has ever been doubted; and, in practice, bonds of indemnity have 
 often been required. In the case at bar. after receiving full in- 
 formation, he chose to proceed, and, iij defiance of the treaty, to 
 subject the subject of a foreign nation to a gross indignity, for the 
 purpose of extorting money from him, under the guise of a pre- 
 cept which the court had no jurisdiction to issue, and which it 
 would not have issued had the facts been before it. We approve 
 of the language of Mr. Freeman in 21 Am. Dec. 204, where, after 
 a discussion of the cases bearing upon the question of the liabil- 
 ity of an officer, he says: 'We apprehend, at all events, that the 
 protection of process cannot so far extend as to protect an of- 
 ficer who, from all the circumstances of the case, does not appear 
 to have acted in good faith, and whose conduct shows that his eyes 
 were willfully closed to enable him not to see and know that hp 
 was a too ready instrument in the perpetration of a grievous 
 wrong.' "
 
 3S1 DUTIES AND LIABILITIES OF OFFICERS. § 103 
 
 emptions from execution could be claimed against it, 
 or that the debt, though apparently the personal debt 
 of the defendant in execution, was in fact a liability ex- 
 isting- against him as a mc-mber of a partnership. The 
 decisions upon this subject are meager. So far as they 
 extend, they indicate that the olUcer need not look be- 
 yond his writ for either of thesie purposes,^" and, per- 
 haps, that he will not be permitted to do so, however 
 willing he may be.°^ 
 
 § 103. Officer Must Execute Voidable Process—Other- 
 wise if it be Void. — When an officer has decided that the 
 execution delivered to him for service will justify him 
 in acts done in obedience thereto, he may next, if he 
 chooses to do so, consider whether he will be justified 
 in refusing to execute it. There are many dicta in 
 which the general assertion is made, that a ministerial 
 officer must execute all process regular on its face, and 
 appearing to emanate from a court of competent juris- 
 diction. This statement is by no means true. A writ 
 may be voidable to the extent that it may be set aside 
 on motion, and yet the parties msLj choose not to make 
 such motion; or if the motion be made, the irregularity 
 may be such that the court will amend but not quash 
 the writ. Whenever the writ is amendable, or is such 
 that, by the failure of the proper party to move for its 
 vacation, it may be lawfully executed, and may. by a 
 sale thereunder, transfer the title of the defendant, the 
 sheriff is bound to execute it, and to take no notice of 
 the irregularity, and is as liable to the plaintiff for any 
 neglect or misconduct in its execution as though it were 
 
 83 Swan V. Gilbert. 67 IlL App. 2.36. 
 
 84 McLaren v. Anderson. SI Ala. 106.
 
 §103 DUTIES AND LIABILITIES OF OFFICERS. 382 
 
 in all respects regular.^** But where the writ, though 
 regular on its face, is in fact void between the parties, 
 the officer is not compelled to execute it. "The cases 
 recognize and affirm a distinction between process 
 which is void and that which is voidable merely, and 
 it is repeatedly stated that when the process is void, 
 the sheriff is not bound to execute it, nor liable for any 
 neglect, partial or total. But otherwise if the process 
 is voidable only; because if the defendant in execution 
 does not seek to avoid the process, and where the court 
 might, if applied to, allow an amendment, the sheriff 
 cannot avail himself of the defects in the process." *** 
 
 B8 BIssell V. Kip, 5 Johns. 89; Cable v. Cooper, 15 Johns, 152; Mar- 
 tin V. Hall, 70 Ala. 421; Milburn v. State, 11 Mo. 188, 47 Am. Dec. 
 148; Reams v. McNail, 9 Humph. 542; Jones v. Cook, 1 Cow. 309, 
 where the writ was tested out of terra; People v. Dunning, 1 Wend. 
 16, where the writ had no seal; Walden v. Davison, 15 Wend. 
 575, the writ lieing directed to wrong officer; Ontario Bank v. Hal- 
 lett, 8 Cow. 192, where writ issued after a year and a day: Parmlee 
 V, Hitchcock, 12 Wend. 96, the writ varying from the judgment; 
 Bacon v. Cropsey, 7 N. Y. 195, where the writ issued prematurely; 
 Samples v. Walker, 9 Ala. 726, where wrong return day was desig- 
 nated; Oris wold v. Chandler, 22 Tex. 637, where officer attempted 
 to excuse himself on the ground that the summons was not prop- 
 erly served: Chase v. Plymouth, 20 Vt. 469, 50 Am. Dec. 52; Stod- 
 dard V. Tarbell, 20 Vt. 321; Ex parte Cummins, 4 Pike, 103; Cody 
 V. Quinn, 6 Ired. 191, 44 Am. Dec. 75; Arnold v. Commonwealth, 8 
 B. Mon, 109; Jordan v. Porterfield, 19 Ga. 139, 63 Am. Dec. 801; 
 Roth V. Duvall, 1 Idaho, 149; Singer S. M. Co. v. Barnett, 76 Ga. 
 377, whore there was a variance between an execution and a judg- 
 ment respecting the date from which interest was collectible: Win- 
 chell V. McKenzie, 35 Neb, 813, where an order authorizing the 
 issuing of a writ was .defective in not having impressed upon it 
 the seal of the court; Bachelder v. Chavez, 5 N. M. 562, where the 
 execution varied from the judgment in the amount of the recovery. 
 
 68 Ginochio v. Orser, 1 Abb. Pr. 434. See, as to the right of 
 ministerial officers to refuse to serve void process, and their ex- 
 emption from all liability for neglect in such service, Stevenson 
 V. McLean, 5 Humph. 332, 43 Am. Dec. 434; Albee v. Ward. 8 Mass. 
 79; Ezra v. Manlove, 7 Black f. 389; .Tones v. Cook, 1 Cow. 309; 
 Earl V. Camp, 16 Wend. 562; Cornell v. Barnes, 7 Hill, 35; McDuffie
 
 3S3 DUTIES AND LIABILITIES OF OFFICERS. § 104 
 
 § 104. Must See that the Writ is Enforceable in His 
 County. — The execution may be regular, and in all re- 
 spects valid where it was issued, and yet not authorize 
 its service by the officer to whom it is delivered. By 
 the rules of the common law, the writs of each court 
 were only capable of enforcement within the territorial 
 limits of its jurisdiction.^'' In most of the United 
 States, statutes have been enacted allowing courts of 
 general jurisdiction to issue writs of execution to any 
 county within the state. But this privilege is not gen- 
 erally accorded to courts of limited jurisdiction. It is, 
 therefore, still necessary for the officer to see, in the 
 service of writs from these latter courts, that he does 
 not act beyond llie limits of tlieir autliority. So when 
 intrusted with the execution of a writ of his own county 
 the officer must remember that his authority under the 
 writ is confined to the county. He has no legal power 
 to levy on lands or property outside of the county.*^® 
 So, if by law, the authority of a constable is restricted 
 to a particular township or district, his acts beyond it 
 are not official, and a levy or sale made by him outside 
 of such township or district is vold.^^ This is true, al- 
 1 hough a tract of land belonging to the defendant is 
 situated partly in one county and partly in another.*^® 
 The acts of an officer outside of his county or baili- 
 wick are unofficial and necessarily void, unless ex- 
 
 V. Boddoe, 7 Hill, 578; Anonymous, 1 Vent. 259; Squibbs v. Ilale, 2 
 Mod. 29; Hill v. Wait, 5 Vt. 124. 
 
 87 Chiles V. Hoy, 6 T. B. Mon. 47; People v. Van Eps, 4 Wend. 3S7. 
 
 58 Kiiitor V. .Tenks, 43 Pa. St. 445; Dinkgrave v. Sloan, 13 La. Ann. 
 393; Kuuk v. St. John, 29 Barb. 585; Short v. nepburn, 75 Fed. 
 Rep. 113; Dederlck v. Brandt, 16 Ind. App. 2G4; Benson v. Smith, 
 42 Me. 418, 6G Am. Dec. 285; Stephenson v. Doe, 8 Blackf. 508, 4S 
 Am. Dec. 489; Needles v. Frost, 2 Okla. 19. 
 
 69 Lewis V. Norton, 164 Mass. 209. 
 
 «o Finley v. R. R. Co., 2 Rich. 5G7.
 
 § 104 DUTIES AND LIABILITIES OF OFFICERS. S£* 
 
 pressly or impliedly authorized by some statute. Stat- 
 utes upon this subject have been enacted in several of 
 the states for the purpose of enabling a sheriff of one 
 county to levy upon and sell a tract of land lying; 
 in two or more counties. Thus, the code of Georgia de- 
 clares that a sheriff or other levying oflicer shall not sell 
 land out of the county in which he is sheriff, or such 
 officer, except when the defendant in execution shall 
 have a tract or tracts of land divided by the line of the 
 county of his residence, in which case it may be sold 
 in the county of his residence, or, if such tract of land 
 is in a county other than that of the defendant's resi- 
 dence, it may be levied upon and sold in either county. 
 Under this statute a levy upon land of the defendant 
 lying in two counties, made by an officer of a county 
 in which he is not a resident, cannot be sustained.*'-*^ 
 In Illinois, lands situate in two counties were sold en 
 masse under a decree in chancery, subject to redemp- 
 tion. Other judgment creditors issued their execution 
 to the sheriff of one of the counties and caused him to 
 pay the amount necessary to effect a redemption from 
 the chancery sale and to thereupon levy upon each of 
 the tracts redeemed. The sheriff sold these tracts en 
 masse and in due time issued his deed pursuant to his 
 sale. This conveyance was assailed as void as to land* 
 situate in the county of which the sheriff was not an 
 officer. It was held, however, that the judgment cred- 
 itor had a right to redeem, and, under the circum- 
 stances, because the original sale was en masse, could 
 exercise this right only by levying upon and selling all 
 the property lying in both counties; that the statute 
 giving the right of redemption contemplated that it 
 
 61 Fambrough v. Amis, 58 Ga. 519.
 
 385 DUTIES AND LIABILITIES OF OFFICERS. § 105 
 
 should be exercised in every case in which a sale of 
 projxfrty had been made under any judgment or decree, 
 and, as it could be exercised in the case before the 
 court only by a single redemption and sale of the two 
 tracts situated in dilTerent counties, the sheriff of one 
 of those counties was impliedly authorized to make a 
 levy and sale affecting the title to the lands in the 
 other*^ 
 
 § 105. Satisfaction or Suspension of the Writ.— An 
 execution, valid when placed in the officer's hands, may 
 thereafter cease to justify the ofiflcer in its fui-ther en- 
 forcement. He is, however, authorized to proceed un- 
 til he has knowledge that it has been satisfied or sus- 
 pended.^ Indeed, it has been held that notice to him 
 of its satisfaction is not alone sufficient to deprive him 
 of authority to proceed, to the extent of making him 
 a trespasser in respect to his future acts, and that he 
 need not proceed to investigate the authenticity of 
 the receipt exhibited to him and purporting to be in 
 full satisfaction of the judgment on which his writ is 
 based.**^ If a supersedeas issues, the sheriff need not 
 question its propriety, except so far as to ascertain 
 that the court had jurisdiction to grant it^ The al- 
 lowance of a writ of error operates as a supersedeas.®* 
 After notice of such allowance, or of any other super- 
 sedeas, an officer who proceeds with the execution of 
 the writ is a trespasser.**'^ 
 
 «2 Oldfield V. Eulert, 148 111. 014, 39 Am. St. Rep. 2,31. 
 
 63 Johnson v. Fox, 51 Ga. 270; Bryan v. Hubbs, 69 N. C. 428. 
 
 64 Ante, § 102. 
 
 65 Williams v. Stewart, 12 Smedes & M. 533. 
 
 «6 Perkins v. Woolaston, 1 Salk. 322; Meagher v. Vandyk, 2 Bos. 
 & P. 370; Braithwaite v. Brown. 1 Chit. 23S. 
 
 cTBolshaw V. Marshall. 4 Barn. & Adol. ;;30; Blea.«;dale v. Darby, 
 » Price. (iOG; O'Dounell r. Mullin. 27 Pa. St. 199, G7 Am. Dec. 458; 
 Vol. I.— 25
 
 § lOG DUTIES AND LIABILITIES OF OFFICERS. 386 
 
 § 106. When the Writ Ceases to be in Force by Ex- 
 piration of Time. — Conceding that the execution placed 
 in the oflicer's hands is valid, and that it has not been 
 satisfied nor stayed by an order of court, the officer 
 will next inquire how long it will continue in force, 
 so as to protect him in its attempted enforcement. Of 
 course it is the duty of the officer to proceed to exe- 
 cute the writ without waiting for the latest period; 
 but it may happen that its execution is hindered by 
 circumstances not attributable to any want of official 
 diligence. Hence, the frequent necessity of acting un- 
 der the writ at the latest period authorized by law. 
 The first act to be done by the officer is that of levying 
 upon the property of the defendant when the execu- 
 tion is against his goods, and of seizing his person 
 when the writ authorizes such seizure. These are 
 initial acts done for the purpose of producing a satis- 
 faction of the writ, but not likely to accomplish their 
 object unless succeeded on one hand by the retention 
 and sale of the goods, and on the other by the imprison- 
 ment of defendant. By the levy on property the officer 
 has entered upon the execution of his writ, and has, if 
 tjie levy be on personalty, acquired a special property 
 in the goods seized. By the principles of the common 
 law, the special property thus acquired was not di- 
 vested by the return of the writ. The officer could, 
 without w^aiting for a venditioni exponas, proceed to 
 sell the property by virtue of the authority conferred 
 by the original writ.*'*' Wherever some statute does 
 not provide otherwise an officer who has entered upon 
 
 Morrison v. Wright, 7 Port. 67; Bryan v. Hubl)s, C9 N. C. 428; Hop- 
 Iviuson V. Sears, 14 Vt. 494, 39 Am. Dec. 23G; Buffandeau v. Ed- 
 mondson, 17 Cal. 436, 79 Am. Dec. 139. 
 68 See § 58.
 
 387 DUTIES AND LIABILITIES OF OFFICERS. § lOu 
 
 the execution of the writ before the return day thereof, 
 by a seizure of or levy ujjon property, may, after the re- 
 turn day, and after the actual return, continue to hold 
 the property, and may prosecute such further proceed- 
 ings as may be necessary to convert such property, 
 whether it be real or personal, into money, for the pur- 
 pose of satisfying;' the judgment."'* The power of an 
 officer to make a sale after the return day of his writ 
 was justified on the ground that by the levy of the writ 
 he acquired a special property and right of possession 
 in the chattels seized, and that in this special property 
 was included the right, independently of the continu- 
 ing force of the writ, to sell the goods in furtherance 
 of the object for which they were seized, to wit, the sat- 
 isfaction of the judgment. This^justification was suffi- 
 cient at the common law, under which nothing but 
 chattels were subject to sale under execution. Very 
 generally, in America, real property may also be sold 
 under execution. Notice of the sale is ordinarily re- 
 quired to be given for a considerable period of time, and 
 unless the officer may make his sale after the return 
 day, many levies must inevitably remain unproductive. 
 It has, nevertheless, been held in several of the statef? 
 
 «9 Phillips V. Dnna. .3 Sram. 5.^1: State v. Eoberts. 1 Halst. 340, 
 21 Am. Dee. fi2; Cox v. .Toiner. 4 Bibb, 94; Lester's Case. 4 Humph. 
 383; Lojrsdon v. Spivey. ."4 111. 104: Savings Tnstltiition v. Chinn. 7 
 Bush. 5.'^9; Heywood v. ITildreth. 9 Mass. 393; Smith v. Spencer. 
 3 Tred. 2.16; Blair v. Compton. 33 ^fich. 414; Barrett v. MeKenzie. 
 24 Minn. 20; Kane v. McCown, .^5 Mo. 181; Remin<!:ton v. Linthicnm, 
 14 Bet. 84; Wlieaton v. Sexton. 4 Wheat. .^^03; Barnard v. Stevens, 
 2 Aiken. 429, 16 Am. Dec. 733; Doe d. Lanier v. Stone, 1 ^a^yks, 
 329; Stewart v. Severance. 43 Mo. 322, 97 Am. Dec. 392: Tayloe v. 
 Gaskins, 1 Dev. 295; .Wriprht v. Howell. 35 Iowa. 288: Gaitber v. 
 Martin, 3 Md. 14('); rottinfrill v. Moss. 3 Minn. 223. 74 Am. Dec. 
 747: Wood V. Colvin, 5 Hill. 230; Moreland v. Bowlinjr. 3 Gill. 500; 
 Devoe v. Elliott. 2 Caines. 243; Bank of Missouri v. Bray, 37 Mo. 
 194; see ante, § 58; Mason v. Bennett, 52 Fed. Rep. 343.
 
 § 106 DUTIES AND LIABILITIES OF OFFICERS. 38a 
 
 that because the officer acquired no special property 
 nor right of possession in lands levied upon, he was 
 without power to sell them after the return day of the 
 writ.'" To so hold was practically to make the writ in- 
 operative against real estate for weeks prior to the re- 
 turn day; for of what avail is a levy when no sufficient 
 notice can be given of a sale? — and yet it is conceded 
 that a levy may be made upon property, real as well as 
 personal, up to the moment when the writ is required 
 to be returned. 
 
 We apprehend that the reason given for the rule at 
 common law was not the true one — that the special 
 property and the right of possession were not the basis 
 of the officer's authority, but mere incidents of it. The 
 authority was conferred by the writ, which commanded 
 him to make the money of the goods and chatteltj of 
 the defendant. This authority could not be pursued 
 except by seizing the property and retaining it till sold, 
 and the possession of the property until a sale could 
 be made could not be secured to the officer except by 
 conceding to him a special property and right of pos- 
 session sufficient to enable him to vindicate his rights 
 against all attempted invasions thereof. When real 
 property was authorized to be levied on and sold, it 
 was not essential to the effectual exercise of the power 
 that the officer should seize the propei-ty, but it was 
 essential that by some act, equivalent to a levy, ho 
 should consecrate the realty to the satisfaction of his 
 
 70 Overton v. Perkins, 10 Yerg. 328; Rogers v. Cawood. 1 Swan, 
 142, 55 Am. Dee. 729; Harden v. McKinnie, 4 Hawks. 279; Seawell 
 V. Bank of Cape Fear, 3 Dev. 279, 22 Am. Dec. 722; Morgan v. 
 Kamsey, 15 Ala. 190; Smith v. Muudy. 18 Ala, 182, 52 Am, Dec. 221; 
 Sheppard v. Rhea, 49 Ala. 125; see ante, § .58; Hawes v. Kueker, 
 94 Ala. 106; Buvkett v. Clark. 40 Neb. 400: Buckley v. Mason, 52 
 Keb. 639; Terry v. Cutler, 4 Tex. Civ. App. 570.
 
 3S'J DUTIES AND LIABILITIES OF OFFICERS. § IOC 
 
 writ, SO tliat no act of the defendant, nor of any one 
 chiiiiiiii;^ under liini, could deprive the plaiutifC of the 
 rij-ht, in the mode provided by law, of appropriating 
 such realty to the extinction of the judgment debt. It 
 was also essential that the lien or right created by the 
 levy should not become abortive from the mere inabil- 
 ity of the officer to make a sale in consonance with the 
 requirements of the statute prior to the return day of 
 the writ. Hence, the better opinion is, that the levy 
 up<m real property before the return day vests in the 
 oflicer a power of sale without which the levy would 
 be an idle act, and that such power may be pursued 
 after such return day as effectively as before.'^^ A few 
 of the states have thought proper to limit this power 
 by statutes forbidding its exercise after the return day. 
 In these states a sale made in defiance of such statutes 
 is undeniably void.'' The rule allowing the officer to 
 make a sale after the return day of the writ, of prop- 
 erty then levied upon by him, is justified on the ground 
 that title, when transferred by a sheriff's sale, relates 
 back to the seizure or levy of the property sold; and 
 on the further ground that otherwise the previous 
 levy, which was authorized when made, might become 
 a vain and purposeless act. But, except for the pur- 
 pose of justifying the detention and sale of the property 
 
 71 Sec 3 Minn. 223; 5 Hill, 230; 4 Bibb, 94; 3 Scam. 551; 14 Pet. 84; 
 4 Wheat. 503; 37 Mo. 194; and 35 Iowa, 288. cited above. Also 
 Mooney y. Maas. 22 Iowa, 380; Reddick v. Cloud. 2 Gilm. GTO; Bel- 
 linunll V. Duncan, 3 Gilm. 477; Tillotson v. Doe. 5 Blackf. 5!)0; 
 Butterfifld v. Walsb. 21 Iowa, 97, 89 Am. Dec. 557: Stein v. Cliam- 
 l)less, IS Iowa, 474, 87 A'm. Dec. 411: Irvin v.- Ticket, 3 Bibb, 34:^; 
 Lowry v. Koed. 89 Ind. 442; Rose v. In.irram. 98 Ind. 270; Knox v. 
 Randall, 24 Minn. 479; .Johnson v. Bemis. 7 Xeb. 224; Southern C. 
 L. Co. V. Ocean Beach H. Co., 94 Cal. 217, 28 Am. St. Rep. 115; OIlis 
 V. Kirkpatrick, 2 Idaho. 97(>; Sjioncer v. Ilaug, 45 Minn. 231. 
 
 7'J Lehr v. Rotrers. 3 Sniedes A: M. 4(!S; Kane v. Preston. 24 Miss. 
 133; Dale v. Medcalf, 9 Pa. St. Kis; Cash v. Tozer, 1 Watts & S. 519.
 
 § 106 DUTIES AND LIABILITIES OF OFFICERS. 39a 
 
 preyiouslj levied upon, an execution after the return 
 day tliereof is functus officio.''^ An officer attempting 
 to furtlier execute it is entirely without justification, 
 and is liable for his acts precisely as he would be if he 
 had no writ in his possession. A purchaser at an exe- 
 cution sale, where the levy and sale were made after 
 the return day of the writ, acquires no title whatever.''^ 
 The fact that a writ has been levied upon property 
 which the sheriff has the right to sell after the return 
 day does not justify the making of any fui-ther levy 
 after that time.''^ If no return day is named in the writ^ 
 it must be regarded as returnable on the latest day 
 which might have been lawfully designated by the of- 
 ficer issuing the writ, and a levy and sale made after 
 that date are invalid. "Whether any day or a proper 
 day be specified or not, the writ in no case can be kept 
 alive in the hands of an officer after the latest day at 
 which the statute requires it to be returned. The writ 
 in this case, whatever time was expressed on its face a» 
 the return day, or whether any time was so expressed, 
 could not be levied after the lapse of sixty days from 
 
 T3 Cook V. AVood, 1 Harr. (N. J.) 254; Hathaway v. Howell. 9 Alb. 
 L. J. 261, 54 N. Y. 97; Finn v. Commonwealth, 6 Pa. St. 4U0; Lo- 
 fland V. Jefferson, 4 Harr. (Del.) .30.3; Castleman v. Griffith, Ky. Pr. 
 Deeis. .348; Carnahan v. People, 2 111. App. G30; AVaklrop v. Fried- 
 man, 90 Ala. 1.57, 24 Am. St. Rep. 77.5; Eand v. Cutler. 155 Mass. 
 451; Evans v. Caiman, 92 Mich. 427, .31 Am. St. Rep. 606; Faull v. 
 Cook, 19 Or. 455, 20 Am. St. Rep. 830; Buckley v. Mason, 52 Neb. 
 
 639. 
 
 74 Bank of Missouri v. Bray, 37 Mo. 194; .Jefferson v. Curry. 71 
 Mo. 85; Wack v. Stevenson, 54 Mo. 481; McDonald v. Gronefekl, 
 45 Mo. 28; Kcmble v. Harris, 36 N. J. L. 526; McElwee v. Sutton, 
 2 Bail. 361; Love v. Gates, 2 Ired. 14; Gaines v. Clark, 1 Bibb, 6(i9; 
 Lehr v. Doe, 3 Smedes & M. 468; Ross v. McCartan, 1 Brev. ."07; 
 Vail v. Lewis, 4 .lohns. 450, 4 Am. Dec. ,300; Collins v. Wai^goner. 
 Breese, ISO; Ranseley v. Goodwin, IS N. H. 217; Frellsen v. An- 
 derson, 14 La. Ann. 05; West v. Sli()ckl(>y, 4 Harr. (D;l.) 2S7. 
 
 75 McDonald v. Groenfeld, 45 Mo. 28.
 
 301 DUTIES AND LIABILITIES OF OFFICERS. § 10(; 
 
 the 29tli of January, 1878, aiid the levy, which was 
 in fact made on April 10, 1878, beyond the latest pos- 
 sible return day, was absolutely void/' ''" An arrest un- 
 der a ca. sa. after the return day is a 'trespass,''''' and 
 so is a levy under a fieri facias."'^* An officer receiv- 
 ing monej^ after the return day, unless in satisfaction 
 of a writ levied before that time, does not act in his 
 official capacity, but merely as the agent of the defend- 
 ant. Such payment does not make the officer's sure- 
 ties responsible, nor does it satisfy the judgment 
 unless accepted by plaintiff.'^^ An execution continues 
 in force to and including the return day thereof; and 
 a valid levy may be made on the return day as well as 
 on any other.**" When, under the law, tlie writ is re- 
 turnable to court, a question has arisen whether it 
 continues in force after the adjournment of the court 
 on the return day. In England,*** it was held that, at 
 the adjournment of the court, the writ became functus 
 officio; and in America some decisions have been made 
 on authority of this English case, and therefore in har- 
 mony with it;**^ but the English case was long since 
 overruled in that country, and the law declared to be 
 
 7« Walflrop V. Friedman, 00 Ala. 157, 24 Am. St. Rep. 775. 
 
 " Stoyel V. Lawrence, 3 Day, 1. 
 
 78 Vail V. Lewis. 4 .Tohns. 450, 4 Am. Dec. 300. 
 
 70 Fanners' Bank v. Reid, 3 Ala. 299; Rndd v. .Tohnson. 5 Lltt. 
 19; Fdwiirds v. Insraliam. 31 Miss. 272; Haralson v. Holeombe, 
 10 Sniodes & M. 5N1; Barton v. Locldiart, 2 Stew. & P. 109; Bobo 
 V. Thompson, 3 Stew. & P. 385; Harris v. Ellis, 30 Tex. 4, 94 Am. 
 Dec. 29G; Planters' Bank v. Scott, 5 How. (Miss.) 24G; GrandstaflP 
 V. Ridccley. 30 f4ratt. 1; Chipman v. Fambro, IG Ark. 291; Wyer 
 V. Andrews, 13 Me, 16S, 29 Am. Deo. 497. 
 
 so Woll<>y V. Mosely. Cro. Eliz. 7G1; Ilarvy v. Broad. Salk. 02G; 
 Gaines v. Clark. 1 Bibb. GOO; Valentine v. Cooley. 1 Ilinniili. 38; 
 Ijowry V. Reid, 89 Tnd. 442; Stinv^cs' Ai^peal. 8G Pa. St. 413. 
 
 "1 Perkins v. Woolaston. G Mod. 3.30; Salk. 321. 
 
 «2 Prcscott V. Wright, 6 Mass. 20; Blaisdell v. Sheafe, 5 N. H. 201.
 
 § 107 DUTIES AND LIABILITIES OF OFFICERS. 392 
 
 that the writ may be executed at any time during the 
 return day.**^ A levari facias de bonis ecclesiasticis 
 differs from other writs of execution in the time it may 
 be enforced. It is a continuing writ. A levy may be 
 made under it from time to time after it is returnable, 
 until satisfaction is produced. A rule may be had 
 against the bishop from time to time, to know what he 
 has levied. If, however, the writ is actually returned, 
 the bishop's authority to act is thereby terminated.** 
 If an officer returns a writ, though before the return 
 day named therein or implied by law, it becomes 
 functus officio, and cannot be given new life by his 
 repossessing himself of it and proceeding to act un- 
 der it, though such action takes phice before the origi- 
 nal return day. It is, for the purpose of authorizing 
 further additional action, without life or effect, and 
 any proceeding taken under it is a trespass, unless it 
 is of a character which the officer might properly per- 
 form after the return day.*® 
 
 § 107. Diligence with Which the Officer should Pro- 
 ceed. — Having satisfied himself that it is his duty to 
 execute the writ, the officer may next inquire when 
 and how he must proceed. The writ will expire on its 
 return day, and ought certain!}^ to be executed by that 
 time, if possible. But the officer has no right to delay 
 its execution for any period of time. If the plaintiff 
 points out property belonging to the defendant, and 
 requests its seizure, the sheriff should comply, though 
 the writ has just come to his hands. If he refuses to 
 
 83 Maud V. Barnard, 2 Burr. S12. 
 
 84 Marsh v. Fawcett, 2 H. Black. 582, 3 Wms. Abr. 46S. 
 
 85 PhiUips V. Dana, .3 Scam. .551; Carnahan v. People, 2 111. App. 
 G30; Pvowley v. Nichols, 14 R. I. 14; Paiue v. Haskius, 3 Lea, 2M.
 
 303 DUTIES AND LIABILITIES OF OEEICEIIS. § 107 
 
 levy, au actiou may bo sustaiued aj^aiust liiin for suck 
 refusal, without waiting for the rctuiii of the writ, pro- 
 vided that the plaintiff can show that he lias been in- 
 jured by the delay.^** The degree of diligence which an 
 officer must disi)lay in the execution of a writ cannot 
 be stated with desirable precision: 1. Because the 
 courts are not exactly agreed in the rules which they 
 have announced on the subject; and 2. Because of the 
 inherent and unavoidable difficulty of finding and ex- 
 pressing any general princii)le which is fit to govern 
 a class of cases, each member of which is n«^cessar- 
 ily affected by peculiar circumstances tending to dis- 
 tinguish it from every other member.**'^ In Lindsay's 
 Executors v. Armfield,^* it is said that "the law de- 
 <'lares it to be the duty of the sheriff to execute all 
 process which comes to his hands with the utmost expe- 
 dition, or as soon after it comes to his hands as the 
 nature of the case will admit." In another case the 
 court said: "A sherifi: is bound to use all reasonable en- 
 deavors to execute process"; and further, that he 
 should make all needful inquiries, and not rely "on 
 vague information obtained from casual inquiries." ^^ 
 An officer, having in his hands an execution, was in- 
 formed by the defendant that an appeal had been taken 
 and a bond to stay execution filed, and hence neg- 
 lected to make a levy until the opportunity to do so 
 liad passed. lie was held to have been guilty of such 
 want of diligence as rendered him liable to the plain- 
 tiff in the writ. The court, after quoting with ap])ar- 
 ont approval an instruction from an early Illinois de- 
 
 8« Shannon v. Commonwealth. 8 Sorg. & R. 444; Farqubar v. 
 Dallas. 20 Tex. 200. 
 
 8T Whitsott V. Slater. 23 Ala. G20. 
 
 «^r', Hawks. 5r.,1. 14 Am. Dec. OOn. 
 
 «» Ilinman v. Borden, 10 Wend. 3GS. 2." Ain. Dec. ".GS.
 
 § 107 DUTIES AND LIABILITIES OF OFFICERS. 394 
 
 cision,'"* * said: "The purport of this instruction is sim- 
 ply to require the sheriff to make reasonable exertions 
 to levy upon the property of the defendant in his 
 county. This, at least, every sheriff and constable is 
 bound to do, and if he fails to exercise due diligence 
 in the discharge of his duty in that respect, he is re- 
 sponsible for whatever loss or detriment the person 
 who commits an execution to his hands may sustain 
 in consequence of such failure."^** An attorney de- 
 livered an execution to a sheriff on behalf of his client, 
 informing him where the goods were on which he 
 wished a levy to be made, and that it was impor- 
 tant that the levy should be made at once. This the 
 officer promised to do. lie, however, put the writ in 
 the hands of one of his deputies, who, not being in- 
 formed of the change which had been made in the time 
 for the departure of trains, was unable promptly to 
 reach the place where the property was, and, before a 
 levy could be made, the defendant executed an assign- 
 ment for the benefit of creditors, and the plaintiff lost 
 the opportunity to procure the satisfaction of his writ. 
 In determining that the trial court correctly held that 
 the officer had been guilty of such want of diligence 
 as made him answerable for the damages sustained, 
 the court said: "The purpose of a writ of execution is, 
 to authorize the officer to whom it is, directed and de- 
 livered, to seize and hold the property of the debtor 
 for the satisfaction of the amount ordered to be made 
 by such writ. And, in the absence of instructions, it 
 is his duty to proceed with reasonable celerity and 
 promptness to execute it in accordance with its man- 
 
 «8a Dtinlap v. Bprry, 4 Scam. 331. 
 
 »o Steele v. Crabtree, 40 Neb. 428; Gilbert v. Gallup, 7G 111. App. 
 230.
 
 395 DUTIES AND LIABILITIES OF OFFICERS. § 107 
 
 dates. If, at the time of the delivery of the Avrit, the 
 plaintiff, being- apprehensive of the loss of his debt, 
 unless it be immediately levied, directs tlie oftlcei- to 
 proceed forthwith, or points out i)roperty belonging 
 to the defendants and requests its seizure, it is his duty 
 to make every i)ossible effort to comply with such di- 
 rections or instructions consistent with a just regard 
 for other duties which may devolve upon him, or he will 
 be answerable for the consequences, if any injury or 
 loss result to the plaintiff by reason of any neglect or 
 omission of such duty." "^ 
 
 While it is doubtless prudent for the plaintiff to 
 point out to the officer property subject to levy, his not 
 doing so does not exonerate the officer from making 
 a levy if practicable. It is his duty to make diligent 
 search and inquiry for property, and, failing to do so, 
 he is answerable for any loss which may be incurred.^^ 
 Nor must he content himself with mere formal inquiry. 
 If sued for his failure to realize the judgment debt, he 
 cannot successfully defend by proving the existence of 
 a general report that the defendant was insolvent,®* 
 nor by showing that he was informed by the debtor 
 and his wife that the property in their possession be- 
 longed to her.*** So it was held that a marshal was 
 bound to serve a subpoena in chancery "as soon as he 
 reasonably could." "^ "The sheriff's liability rests on 
 his breach of official duty. As he is bound to perform 
 his duty, so he is responsible to every one who may 
 
 •1 Haliersham v. Sears, 11 Or. 433; Guitcrman v. Sbarvry. 46 
 Minn. 1S3, 24 Am. St. Rep. 1^3. 
 
 82 Greon v. LoweU. 3 Grcenl. 373: Harsrave v. Penrod, Bit'ese, 
 401; Albany City Bank v. Dorr. Walk. Cb. 318. 
 
 o"* Parks v. Alexander, 7 Ired. 412. 
 
 0+ Robertson v. Beavers. 3 Port. .385. 
 
 65 Koiinedy v. Brent, rrandi. 1S7. A dtlay of eifflit days has 
 been determined to be negligent. Hearn v. Parker. 7 Jones. 150.
 
 § 107 DUTIES AND LIABILITIES OF OFFICERS. 396 
 
 be injured bj liis failure to discliarge it. lu respect to 
 the exe^eution of process, these official duties are well 
 defined by law." The law is reasonable in this, as in all 
 other things. It holds public officers to a strict per- 
 formance of their respective duties. It tolerates no 
 wanton disregard of these duties. It sanctions no neg- 
 ligence; but it requires no impossibilities, and imposes 
 no unconscionable exactions. When process of attach- 
 ment or execution comes to the hands of the sheriff, he 
 must obey the exigency of the writ. He must in such 
 cases execute the writ with all reasonable celerity. 
 Whenever he can make the money on execution, or se- 
 cure the debt on attachment, he must do it. But he is 
 not held to the duty of starting, bn the instant after 
 receiving a writ, to execute it, without regard to any- 
 thing else than its instant execution. Reasonable dili- 
 gence is all that is required of him in such instances. 
 But this reasonable diligence depends upon the parti- 
 cular facts in connection with the duty. If, for exam- 
 ple, a sheriff has execution against A, and he has no 
 special instructions to execute it at once, and there is 
 no apparent necessity for its immediate execution, it 
 would not be contended that he was under the same 
 obligations to execute it instantaneously as if he were 
 so instructed, and there were circumstances of ur- 
 gency." **** In order to sustain an action against an 
 officer for not levying a writ, "it is necessary for the 
 plaintiff to establish by proof that an execution in his 
 favor was received by the sheriff' in time to make the 
 money; and that while in his hands he was required to 
 make a levy by virtue of it, at a time wlien it was in 
 
 96 Whitney v. P.utteufield, 13 Cal. .S38. 73 Am. Dec. 584; State ▼. 
 Leland, 82 Mo. 2(;.5; State v. Finn, 87 :\ro. .114. See. also, .ramler v. 
 Vandever, 3 Harr. (Del). 29; Roe v. Gemmill, 1 Iloust. 9.
 
 897 DUTIES AND LIABILITIES OF OFFICERS. § 107 
 
 his power to do so; and, further, that he failed to make 
 such levy." "^ 
 
 The mere failure to make a levy, though property 
 could have been found subject to such levy, will not 
 invariably make the othcer liable. The court will con- 
 sider what were his other duties at the time, for his 
 diligence must be viewed in the light of all attendant 
 circumstances. If he has a large number of prior writs 
 in his hands, and is also pressed by numerous other 
 official duties, a delay of fourteen days may not estab- 
 lish want of diligence.**** In some of the recent cases it 
 has been held proper to instruct the jury that the 
 sheriff was exonerated if he exercised "skill and dili- 
 gence such as a reasonable man would exercise in the 
 performance of like duties under the same circum- 
 stances." ^ This subject received very careful atten- 
 tion in the supreme court of Wisconsin in consider- 
 ing two appeals taken in the case of Elmore v. Hill.*^ 
 The general rule was there formulated as follows: 
 "The result of the adjudications on the subject seems 
 to be that, on receipt of the execution, in the absence 
 of specific instructions, the officer must proceed, with 
 reasonable celerity, to seize the property of the debtor, 
 if he knows, or by reasonable effort can ascertain, 
 that such debtor has property in his bailiwick liable 
 to seizure or execution. The officer must do this as 
 soon after the process comes to his hands as the na- 
 
 87 Lyendecker v. Martin, 38 Tex. 289. Failing to levy an execu- 
 tion, when in his power to do so, makes the officer responsible. 
 O'Bannon v. Saunders, 24 Gratt. 138, 
 
 68 state V. Blanch, 70 Ind. 204. 
 
 09 Crosby v. Ilungerford. 59 Iowa, 712; State v. Leland, 82 Mo. 
 260. 
 
 100 4G Wis. CIS and 51 Wis. 3G5.
 
 § 107 DUTIES AND LIABILITIES OF OFFICERS. 398 
 
 ture of the case will admit If he fails to execute the 
 process within an apparently reasonable time, the 
 burden is on him to show, by averment and proof, 
 that his delay was not in fact unreasonable. Failing 
 this, he must respond in damages to the party injured 
 by his negligence." In this case it appeared that in 
 the afternoon of April 25, 1876, the execution was de- 
 livered to the sheriff. It was against a threshing- 
 machine company then doing business within a mile 
 and a half of the sheriff's office. In the evening of the 
 same day the under-sheriff called on the secretary of 
 the company, advised him of the execution, and asked 
 him whether he was ready to satisfy it. The secretary 
 replied that the board would have a meeting the next 
 morning and make some arrangement about paying the 
 debt. Nothing further was done by the sheriff. On 
 the 29th of the same month the company made an as- 
 signment. It being admitted that the defendant in exe- 
 cution had property known to the sheriff upon which 
 a levy could have been made, the court had no hesita- 
 tion in declaring as a matter of law that these facts 
 constituted want of diligence on the part of that officer, 
 and rendered him answerable to the plaintiff, even as- 
 suming that no directions were given to proceed at 
 once. To the sheriff's plea that he was required to be 
 in attendance upon the circuit court at that time, the 
 court responded that he was authorized by law to ap- 
 point as many deputies as he saw fit, that the object of 
 this authorization was to secure the speedy service of 
 process; and that if his constant personal attendance 
 upon the court was really necessary, then he ought to 
 have sent a deputy to levy the execution. 
 
 Where the officer has failed to exercise the degree 
 of diligence due from him, and the plaintiff in the writ
 
 399 DUTIES AND LIABILITIES OF OFFICERS. § 107 
 
 has thereby suffered, and the officer seeks to excuse 
 his nonaction, he must generally assume the burden of 
 proof, and satisfy the court that the excuse he now 
 presents is not an after-thought to escape the conse- 
 quences of his negligence. Doubtless, if the oCQcer is 
 entitled to fees in advance, either for himself or to be 
 paid another officer, and demands such fees, and they 
 are not paid, this is a sufficient excuse for not pro- 
 ceeding with the writ. Where, however, fees are to 
 be paid to another officer, it is the duty of the sheriff 
 to proceed as far as he can, and he cannot relieve him- 
 self from liability by alleging that the fees to be paid 
 such other officer were not advanced, there being no 
 demand therefor. Thus, where the sheriff sought to 
 excuse himself for not levying upon certain real prop- 
 erty on 'the ground that he had not been furnished 
 with funds with which to pay the recorder's fees, the 
 court said: "The excuse for this neglect by the sheriff 
 is that the plaintiff in the execution had not fur- 
 nished any funds to pay the fees for filing and record- 
 ing the cer-tificate of levy. This excuse is wholly in- 
 sufficient to relieve the sheriff' from his responsibility 
 in failing to levy, and making and presenting his certi- 
 ficate thereof to the clerk to be filed. It was his duty 
 to make a levy on the land, and present the certifi- 
 cate to be filed of record with the clerk of the circuit 
 court, and if the clerk failed to record it, by reason 
 that his fees were not paid, the sheriff had discharged 
 his duty by presenting the certificate for record. The 
 sheriff should have levied on the land at all hazards, 
 and have made a certificate thereof, which if, on being 
 presented to the clerk, he refused to record, the sher- 
 iff would be exonerated. He should have presented 
 the certificate of levy to the clerk, for the clerk might,
 
 § 107 DUTIES AND LIABILITIES OF OFFICERS. 40O 
 
 for aught the sheritt' could know, have had funds of 
 the plaintiff in his hands to discharge the costs of til- 
 ing and recording. There appears to be no excuse for 
 failing to levy and to present the certificate of levy* 
 lie did none of the acts required of him by the statute, 
 and he must suffer the consequences of his neglect/' ^^^ 
 If an officer receives a writ for service, but makes 
 no demand for indemnity, he cannot excuse himself for 
 not levying on the ground that he received informa- 
 tion which led him to believe it to be unsafe for him 
 to proceed. Therefore, if he fails to levy upon prop- 
 erty on the ground that it is subject to a mortgage, he 
 is answerable if it is proved that such mortgage was 
 fraudulent, and that the property was, notwithstand- 
 ing, subject to the writ.*^^ An officer cannot excuse 
 himself for not levying a writ on the ground that he 
 was ill and unable to do so. If he is a sheriff, it is 
 his duty to provide deputies who can act for him, aud^ 
 if a constable, to turn the writ over to some other of- 
 ficer by whom it can be executed.*^'* An excuse of- 
 fered for not levying a writ, or for not proceeding with 
 its further execution after a levy, must be legally suffi- 
 cient. Hence, a sheriff cannot escape liability by show- 
 ing that, after levying upon the property, it was taken 
 by a United States marshal claiming to be entitled to 
 it by virtue of certain bankruptcy proceedings, if those 
 proceedings did not justify the surrender of the prop- 
 orty.*"'* Nor can a sheriff escape liability on the 
 ground that permission to make the levy was refused 
 by an officer who assumed to have authority over such 
 
 101 Poople V. Palmor, 4G 111. 403. 
 
 102 .Tewett v Siindback, 5 S. D. 11. 
 
 103 FrondonsTPin v. MeXier, SI 111. 208. 
 
 104 Ausouia B. & C. Co. v. Babbitt, 74 N. Y, 395.
 
 401 DUTIES AND LIABILITIES OF OFFICERS. § lOS 
 
 prop<^rty, when such authority did not exist, and also 
 on the ground that an attorney advised such sheriff 
 that he had no right to proceed, such advice being er- 
 roneous.***^ 
 
 § 108. Who may Control the Writ.— The inquiry how 
 the writ is to be executed cannot be answered in 
 detail in this chapter. The best general answer to this 
 inquiry is that given by Bacon in his Abridgement, 
 namely, "that there cannot be a surer rule to go by 
 than a strict observance of what is enjoined by the 
 writ." *'**^ The writ directs the money to be made out 
 of the personal property of the defendant. The first 
 inquiry, therefore, will be with a view of ascertaining 
 whether the defendant has any such property subject 
 to execution; if so, the next inquiry is, How can a 
 valid levy be made on such property? So, if the de- 
 fendant has no personal property subject to execution, 
 the oHIcer should inquire for real estate, and, if any be 
 found, should ascertain whether it be subject to exe- 
 cution, and, if so, should })roceed to levy thereon. And 
 whether the levy be upon real or personal estate, many 
 inquiries must be made to ascertain hoAv the levy is to 
 be made productive of satisfaction. The various steps 
 in the enforcement of the writ, and the inquiries neces- 
 sarily preceding these steps, wall be considered in sub- 
 sequent chapters. One inquiry will be answered here, 
 — who is entitled to control the writ. The officer 
 should always bear in mind that the writ is intended 
 for the benefit of the plaintiff, who alone is interested 
 in its enforcement. ^**' The interests and wishes of the 
 
 105 Stiff T. McLaiishlin, 10 Mont. 300. 
 306 Bao. Abr., tit. SluTiff, N. 1. 
 
 107 Reddick v. Cloud's Adin'is, 7 111. GTO; Morgan v. reople, 59 
 111. r.8. 
 
 Vol. 1.-^6
 
 § 108 DUTIES AND LIABILITIES OF OFFICERS. 402 
 
 plaintiff should at all times be respected. He has no 
 right to insist upon a fraudulent nor oi^pressive use of 
 the writ; ^"** nor in any resj^ect to compel the officer to 
 exercise a severity which would seem to be actuated 
 by malice toward the defendant as much as by the 
 desire to obtain satisfaction of his judgment. But all 
 directions of the plaintiff not savoring of fraud, nor un- 
 due rigor and oppression, must be obeyed, or the officer 
 will be held liable for injurious consequences flowing 
 from his disobedience.*^''* Thus, if upon the day when 
 property is advertised for sale, the sheriff insists upon 
 a postponment in defiance of the instructions of the 
 plaintiff, the officer is answerable for damages result- 
 ing from such j)ostponement, and these are presumed, 
 in the absence of evidence to the contrary, to be the 
 amount of the judgment and costs, and the burden 
 rests upon the officer to show any facts in mitigation.**** 
 If the directions of the plaintiff that the sale be post- 
 poned are not obeyed, and a sale of the property re- 
 sults in a grossly inadequate price, if the defendant is 
 insolvent, the plaintiff is also entitled to relief in equity 
 by a decree cancelling the sale and authorizing far- 
 ther execution upon the judgment.*** The plaintiff 
 may authorize the officer to take a course outside the 
 ordinary method of collection, by receiving notes, in 
 
 108 McDonald v. Neilson, 2 Cow. 1.39, 14 Am. Dec. 431. 
 
 109 Tucker v. Bradley, 1.5 Conn. 46; Rogers v. McDearmid. 7 N. 
 II. 50G; Richardson v. Bnrtlej% 2 B. Mon. 328; Tattou v. Hamner, 
 28 Ala. 018; Toston v. Southern, 7 B. Mon. 289; Walworth v. Reads- 
 boro, 24 Vt. 2o2; Shryock v. .Tones, 22 Pn. St. 303; Isler v. Colgrnve, 
 7.5 N. C. 334; State v. Pilsbury, 35 La. Ann. 408; Scheubert v. Horrel. 
 50 111. App. 597; Wells v. Bower, 12G Ind. 115, 22 Am. St. Rep. 570; 
 Lawyers C. Co. v. Bennett, 34 Fla. 3G2. 
 
 110 Gilbert v. Watts-De Golyer Co., (!G 111. App. G25. 
 
 111 Lawyers' C. P. Co. v. Bennett, 34 Fla. 302.
 
 403 DUTIES AND LIABILITIES OF OFFICERS. § lOS 
 
 payment or giving credit at the sale;*** or be may 
 order the ollicer to suspend the writ, either tempo- 
 rarily or ijermanently; ^'"^ and the latter is liable for 
 making a sale after the plaintiff has directed him not 
 to do so/** The plaintiff may have assigned the judg- 
 ment. If so, all further proceedings are necessarily 
 for the benefit of the assignee, who should be accorded 
 the same right of control to which the plaintiff was 
 entitled before he had parted with his interest in the 
 judgment,**^ Other persons may claim to have rights 
 in the execution or the proceeds thereof, or the prop- 
 erty to be affected thereby. The sheriff", where there 
 is any doubt upon the subject, should obey only the 
 directions of the plaintiff: and not undertake to de- 
 cide the rights of conflicting claimants.**** The fact 
 that officers are interested in fees which may be real- 
 ized by the enforcement of an execution does not enti- 
 tle them to control it; **' nor, as a general rule, unless 
 some right is given them by statute, have other credi- 
 tors or the defendant an^- authority to give directions 
 respecting the execution of the writ against him.*** 
 
 An officer, it is scarcely needless to say, is neither 
 required nor justified in obeying directions of the 
 plaintiff, when, to do so, would be to attain a purpose 
 forbidden by law,**^ or not authorized by the com- 
 mands of the writ.*-* Where several defendants were 
 
 112 Armstrong v. Garrow, G Cow. 40."); Gorham v. Gale, G Cow. 
 467, note a; Atkin v. Mooney, Thil. L. 31. 
 
 113 Jackson v. Anderson, 4 Wend. 474. 
 11* Morgan v. People, 59 111. 60. 
 
 115 Bressler v. Beach, 21 111. App. 423; Owens v. Clark, 78 Tex. 
 547; Clark v. Hogenian, 13 W. Va. 718. 
 118 Dauglierty v. Moon, 59 Tex. 397. 
 11" Fowler v. Pearce, 7 Ark. 28, 44 Am. Dec. 52G. 
 118 Yost V. Smith. 105 Pa. St. G28. 51 Am. Kep. 219. 
 iiaCoville v. Bentley. 7G Mich. 248. 15 Am. St. Rep. 312. 
 120 Swan V. Gilbert, G7 111. App. 23G. .
 
 § lOS DUTIES AND LIABILITIES OF OFFICERS. 404 
 
 equally liable for a debt, it Avas said that the plaintiff 
 had uo right to instruct the sheriff to collect it out of 
 the property of one of them only, or to proceed in any 
 way which might necessarily prejudice the right of one 
 of them to compel another to contribute his just share. 
 "The plaintiff may properly assist the sheriff in the 
 collection of the debt due him by suggestions as to 
 where property may be found, as to which of several 
 defendants has personal propeity that may be reached 
 by a levy, or in any other proper and pertinent man- 
 ner. But a plaintiff ought not to settle other contro- 
 versies than his own by an attempt to intervene be- 
 tween defendants and deprive them of the right to con- 
 tribution which the hiAV gives them. His position is 
 adverse to the defendants, and any of them whom he 
 compels to pay more than his share of the joint in- 
 debtedness has a right to subrogation or contribution, 
 which the plaintiff cannot take away and which he has 
 no right to hinder or obstruct." *-* The principle 
 stated in this quotation, if it exist at all, must mani- 
 festly be restricted to those cases in which obedience 
 to the instructions of the plaintiff must result in de- 
 stroying, or substantially impeding or impairing, the 
 right of one of the defendants to contribution in the 
 event of his being compelled to discharge more than his 
 share of a joint obligation. As we understand the law, 
 when a plaintiff" has recovered judgment against two 
 or more defendants, each of them may be regarded as 
 indebted to the plaintiff in the full amount of the judg- 
 ment, and he may, therefore, properly ])uisue either to 
 the extent of coercing satisfaction of t he judginent. In 
 other words, he is under no ()bligati<m to investigate, 
 for the purpose of determining between them, what 
 
 121 Poiiicioy V. .TiiiiiMta \'all<>y C. Co.. IS:} Ta. St. IT.
 
 405 DUTIES AND LIABILITIES OF OFFICERS. § 103 
 
 each should contribute, aud he may, therefore, direct 
 the sherifl' to levy the writ upou the property of one 
 rather than u])on that of the other, aud it is the duty 
 of the sshcrin' lo obey such direction, and he is answer- 
 able to tile i)!aiuliir for any injury resulting- from the 
 failure so to do.^-' The plaintiff's attorney has, by 
 virtue of his general employment in the case, power to 
 direct an<l control the execution,*"" though he cannot 
 satisfy the writ exc('i>l upon payment to him of the full 
 amount thereof in money,*"* unless the plaintiff has 
 given him special authority to compromise the debt or 
 accept satisfaction in something not a legal tender. 
 The burden of jn'oving such special authority is upon 
 the party claiming under it; for it will never be pre- 
 sumed.*"' In England it seems that the retainer of the 
 attorney ceases at judgment; *"*• but that if an attorney 
 is retained to conduct proceedings under execution, he 
 has authority to make a compromise.*"'' The author- 
 ity of the plaintiff's attorney may be revoked at any 
 time; and. after knowledge of such revocation, the oflfi- 
 
 122 Root V. WacTier. 30 X. Y. 9. 86 Am. Dec. 348; Godfrey v. Gib- 
 bons, 22 Weud. 5159: Starry v .Tolmson, 32 Ind. 440. 
 
 123 Gorhani v. Gale, 7 Cow. 7;>1>. IT Am. Dec. 549; Walters v. 
 Sykes, 22 Wend. 568; State v. Royd. c:', Ind. 428. 
 
 124 Freeman on Judgments, sec. 4(>3; Wrisrht v. Daily. 26 Tex. 
 7;'.0; G.arthwaite v. Wentz, 19 La. Ann. 196: Lewis v. Gamage, 1 
 riclv. 347; Smock v. Dade. 5 Rand. 639. 16 Am. Dec. 780; McCarver 
 V. Nealey, 1 Iowa, 360; Lewis v. Woodruff. 15 How. Pr. 539: Bene- 
 dict V. Smith, 10 Paisre. 126; Beers v. Ilendricksou. 45 X. Y. 66-5; 
 .lacUson v. Bartlett. 8 Johns. 361: Trumbull v. Nicholson. 27 111. 149; 
 Wilkinson v. Hollo way, 7 Lei.uii. 277; Wakeman v. Jones, 1 Cart. 
 517; Chapman v. Cowles, 41 Ala. 103. 91 Am. T)ec. .508: Jones v. 
 Ransom, 3 Ind. 327; Abbe v. Rood, (5 McLean, 107; Jewett v. Wad- 
 leish, 32 Me. 110; Vail v. Conant. 15 Vt. 314. 
 
 '■-•■> Portis V. Ennis, 27 Tex. 574. 
 
 126 Lovejrood V. White, L. R. 6 C. P. 440; Butler v. Knisht. L. R. 
 2 Ex. 109; 36 L. J. Ex. 86: 15 Week Rep. 407: 15 L. T.. X. S 621. 
 
 12T Butler V. Kniuht. L. R. 2 Ex. 109; 36 L. J. Ex. 86; 15 Week. 
 Rep. 407; 15 L. T., X. S.. 621.
 
 § 108 DUTIES AND LIABILITIES OF OFFICERS. 40& 
 
 cer is not justified in pursuing the instructions of the 
 attorney. An assignment of the judgment also oper- 
 ates as a revocation of the attorney's authority. If the 
 officer has notice of such assignment, and that the as- 
 signee has employed another attorney, he must recog- 
 nize the changed condition of affairs, and obey the 
 instructions of the latter.*-® 
 
 128 Robinson v. Brennan, 90 N. Y. 203.
 
 407 PERSONAL PROFEKXY SUBJECT TO EXECUTION. 
 
 CHArTER X. 
 
 PEESONAL PROPERTY SUBJECT TO EXECUTION BY 
 LEVY AND SALE. 
 
 § 109. Introduction— Classification of subject. 
 § 109a. Law of the situs controls. 
 
 KINDS OF PERSONAL PROPERTY SUBJECT TO EXECUTION. 
 § 110. Generally all tangible property. 
 § 111. Money. 
 § 112. Clioses in action. 
 § 112a. Shares or interests in corporations. 
 § 113. Crops not harvested, and other products of the soil. 
 § 114. Fixtures. 
 
 OF THE INTERESTS IN PERSONALTY SUBJECT TO EXE- 
 CUTION. 
 
 § 115. Only the real as contradistinguished from the apparent In- 
 terests of the defendant. 
 
 § 110. Equitaltle estates. 
 
 § 117. Estates of mortgagors. 
 
 § 118. Estates of mortgagees. 
 
 § 119. Leasehold interests in real and personal property. 
 
 § 120. Interests of pawnors and of pawnees. 
 
 § 121. Interests of bailees. 
 
 § 122. Estates in remainder, 
 
 § 123. Inchoate interests. 
 
 § 124. Property held under conditional sale. 
 
 § 125, Interests of cotenants and partners. 
 
 § 12.")a. Property subject to execution in equity. 
 
 DEFENDANTS WHOSE PROPERTY CANNOT BE SEIZED. 
 
 f 12G. Counties and municipalities. 
 
 § 12()a. Property of (luasi-public corporations, 
 
 § 12Gb. Property of insolvent corporations. 
 
 § 127, Married women under judgments against their husbands. 
 
 § 127a. Property expressly or impliedly given by a husband to 
 
 his wife. 
 § 128. Married women under judgments against themselves. 
 § 12Sa. Property of insane persons.
 
 PERSONAL PROPERTY SUBJECT TO EXECUTION. 403 
 
 PEOFERTY NOT SUBJECT TO EXECUTION, BECAUSE IN 
 CUSTODY OF THE LAW. 
 § 129. Property iu the bands of receivers and assignees. 
 § 130. Money iu the liauds of sheriffs, constables, clerks, and 
 
 justices. 
 § 130a. Property taken from a prisoner on his arrest. 
 § 131. Property in the hands of administrators, executors, and 
 
 guardians. 
 § 132. INIoney iu tlie hands of federal, state, and county officers. 
 § 133. Money in the hauds of officers of numicipalities. 
 § 134. Money in the hauds of attorneys. 
 § 135. Goods levied upon, or otherwise taken into the possession 
 
 of an officer of a court. 
 § 13.5a. Property the subject of creditors' suits. 
 § 135b. Termination of the custody of the law. 
 
 PROPERTY CONVEYED OR MORTGAGED TO HINDER, DE- 
 LAY, OR DEFRAUD CREDITORS. 
 
 § 13(;. General rule. 
 
 § 137. Creditors who may avoid a fraudulent transfer. 
 
 § 137a. Creditors who are, within meaning of law against fraudu- 
 lent transfers. 
 
 § 138. Property which may be taken from fraudulent grantee. 
 
 § 139. Origin of the law against fraudulent transfers. 
 
 § 140. Grantees whose interests are not prejudiced by showing 
 fraud iu transfer. 
 
 § 141. Good faith of the holder of the property. 
 
 § 142. Voluntary conveyances. 
 
 § 143. Convej-ances to the use of grantor. 
 
 § 144. Couditioual conveyances. 
 
 § 145. Mortgages. 
 
 § 14G. Assignments for benefit of creditors. 
 
 ABSENCE OF CHANGE OF POSSESSION AS EVIDENCE OF 
 FRAUD IN TRANSFER. 
 
 § 147. Rule of the English cases. 
 
 § 148. Cases iu the majority of the United States. 
 
 § 149. States where continuance of grantor in possession is per 
 
 se fraudulent. 
 § 150. Recapitulation of authorities. 
 
 § 151. Absolute transfers not requiring change of possession. 
 § 152. Transfers to secure payment of indebtedness. 
 § 152a. In conditional sales. 
 § 153. Character and situation of property as dispensing with 
 
 necessity, for change of possession. 
 § 1.54. When the change of possession must be made.
 
 409 TKUStA'AL rilOl'KUTY .SL'BJIXT 10 tXELUilON. § lU'J 
 
 § lo.j. \\'li;it is a sullicifiit chan^^e. 
 
 § lT}i'>. J low long ilie change must continue. 
 
 § ir»7. I'loiieity sold, but never delivered, 
 
 § loS. (jiouds i»urcliased llirough fraud. 
 
 ? 109. Introduction— Classification of Subject.— In 
 
 followiii*;- llic instructions contained in the writ, the 
 officer will fu-st seek to discover i)ersonal property* 
 belon^inji' to the defendant or defendants, and snbject 
 it to execntion and forced sale; for, by the statutes pre- 
 vailing in a majority of the states, it is the duty of an 
 officer to satisfy a writ out of personal property, if 
 such can be found, and to resort to real estate only 
 when liis writ cannot be otherwise satisfied. It is true 
 that some of the earlier English statutes applicable to 
 l)arts of the colonies "stripiied lands in the plantations 
 
 1 Cape Saide Company's Case. 3 Bland. G40; Daniel v. .Tustice, 
 Dud. (da.) 2; Coe v. Wiekham, 33 Conn. 389; Neilson v. Xeilson, 5 
 Barb. 505; Simpson v. Iliatt, 13 Ired. 470; Hassel v. Southern Bank, 2 
 Head. 381; Thatcher v. Dowell, G Wheat. 118. But in Illinois it is the 
 duty of the officer tirst to levy upon real estate. Pitts v. Magie, 24 111. 
 (510; Farrell v. McKee. .3G 111. 225. A levy may be made on the lands 
 of the judgment debtor, although he has personal property, by his 
 consent. Smith v. Randall, Cal. 47, G5 Am. Dec. 475; Springer 
 V. Johnson. 3 Harr. (Del.) 515. Or where he did not produce per- 
 sonal property for levy. Graves v. Merwin. 19 Conn. 9G; Sloan v. 
 Stanly, 11 Ired. G27. "Against a debtor, refractory or negligent, 
 the proper legal remedy is to lay hold of his effects for i)aying his 
 creditors. Tliis is the metliod prescribed by the Roman law, with 
 the following limitation, that the movables, as of less importance, 
 must be sold first. But the Roman law Avas defective in one par- 
 ricular, that the creditor was disappointed if no buyer was found. 
 The defect is supplied by a rescript of the emperor, appointing 
 that, failing a purchaser, the goods shall be adjudged to the cred- 
 itor by a reasonable extent. Among other remarkable innovations 
 of the feudal law, one is, that land was withdrawn from commerce, 
 and could not be attached for payment of debt. Neither could tht; 
 vassal be attached personally, because he was boimd personally to 
 the superior for service. The movables, therefore, which were al- 
 ways the chief subject of execution, came now to be the only sub- 
 ject." Karnes' Law Tracts, 338-
 
 § 109 PERSONAL PROPERTY SUBJECT TO EXECUTION. 410 
 
 of the sanctity with which thev had been guarded, and^ 
 by subjecting them to sale, no longer considered them 
 as a secondary fund for the payment of debts in the 
 hands of the debtor, but rendered them equally liable 
 with his personalty;"^ and it is probably true that, in 
 the absence of any statute upon the subject, real and 
 personal property may be treated as equally liable to 
 execution, and the plaintiff, and, in the absence of di- 
 rections from him, the officer, may elect upon which a 
 levy shall be made.^ In the greater part of the United 
 States, however, an officer must seek personal property 
 and must not levy upon real estate, unless personal 
 property of the defendant sufficient to satisfy the writ 
 cannot be found."* 
 
 In proceeding to discover property, the officer must, 
 of course, exercise diligence, and proceed with such 
 wisdom and perception as would characterize the ef- 
 forts of a man of ordinary intelligence in transacting 
 his private business. In reference to this part of the 
 officers business, we can make no suggestions likely to 
 be of any practical assistance, unless it be that he 
 must exercise that degTee of diligence which a pru- 
 dent man would exercise were his own interests at 
 stake, and that the diligence which a prudent person 
 would exercise would manifestly be controlled by the 
 circumstances appearing on the face of the writ, or 
 otherwise made known to him. If he is directed to 
 
 2 Hansen v. Barnes' Lessee, 3 Gill & J. 359, 22 Am. Dec. 322. 
 
 8 Dowdell V. Neal, 10 Ga. 148. 
 
 4 Weir V. Clayton, 19 Ala. 132; Wallver v. Hnkill, 1 Harr. 347; 
 Eoljinson v. Burpo. 71 Ga. r,2(',; Hopidus v. Bnrcli. 3 Kelly. 222; 
 W^ri.Klit V. Dick, llfi lud. .>3S; Collius v. liitchie, 31 Kan. 371; Jakob- 
 sen V. Wi}?an, 52 Minn. 6; Flanders v. Batten, 50 llxin. 542; Farrier 
 V. Houston, 100 N. C. 309, Am. St. Rop. 597; Wright v. Young,. 
 6 Or. 87: Aldrich v. Wilcox, 10 R. I. 405.
 
 411 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 109 
 
 seize or sell goods whicli are in the hands of receiptors, 
 and nothing is disclosed to him showing any reas(jn for 
 special promptness, he is suihciently diligent if he so 
 proceeds that the satisfaction of the writ may be rea- 
 sonably anticipated within the time allowed for its re- 
 turn.'"' AYheuever, on the other hand, "he has knowl- 
 edge or reasonable ground to believe that there will 
 be danger resulting to the plaintiff by delaying the ser- 
 vice, he is bound to act with greater diligence.'' ** Usu- 
 ally the plaintiff is able to assist the ollicer by pointing 
 out property subject to execution or advising him 
 where such property may be found, but the failure of 
 the plaintiff to do this does not relieve the officer from 
 the duty of seeking to discover property subject to his 
 writ. The absenc'e of information from the plaintill 
 will not excuse the inaction of the officer, nor relieve 
 him from liability to the plaintiff if his writ remain'.^ 
 unsatisfied, when diligence on the part of the officer in 
 seeking to discover property must have resulted in the 
 making of a levy sufficient to satisfy the writ in whole 
 or in part.' 
 
 When property is discovered, it is essential that the 
 officer should know whether it is such as he is author- 
 ized to seize under his writ. Uence, this chapter will 
 be devoted to answering the inquiry. What personal 
 property may be *ized under execution? Before i)ro- 
 ceeding to answer this question in detail, we must stop 
 to remark that while a fieri facias authorizes the officer 
 to levy only upon "property subject to execution,'' yet 
 this does not, in I he first instance, require him to con- 
 
 6 Dayton v. T.ynes. 31 Conu. 578. 
 
 6 Tucker v. Bradley. ir> Conn. .")0; post. § 2."4: ante. § 107. 
 
 T Lindsay's Ex. v. .Vnnfieltl. :\ Hawks. ,"-lS. 14 .\m. Dec OOn; State 
 V. Ownby. 4!) Mo. T2; State v. Finn, S7 Mo. 310; Ilinman v. Burden, 
 10 Wend. 3(17.
 
 § 109 PERSONAL PROPERTY SUBJECT TO EXECUTION. 412 
 
 siller the question of exemptiou from execution where 
 the exemption does not arise from the nature of the 
 property. For Ave shall hereafter see that the privi- 
 lege accorded by law to certain persons to hold a speci- 
 fied amount or character of property, as exempt from 
 forced sale, is in most states a personal privilege, of 
 which the officer need take no notice until the defend- 
 ant claims the benefit of the law, and specifies what 
 propert}- he wishes to retain.** Prima facie, all per- 
 sonal property is subject to execution, and an officer 
 may safely proceed on this presumption until his atten- 
 tion is called to the fact that something upon which he 
 has levied, or is about to levy, is of a class which may 
 be exempt, and that the debtor is entitled to an exemp- 
 tion thereof, and wishes to assert his privilege in this 
 respect." Our inquiry, therefore, in this chapter is. 
 What property may the sheriff levy upon where the 
 benefit of exemption is not claimed as a personal privi- 
 lege? We shall treat — 1. Of the kinds of personal 
 property subject to execution; 2. Of the estates there- 
 in which are so subject; 3. Of defendants whose prop- 
 erty cannot be seized; 4. Of property withdrawn from 
 execution because in custody of the law; 5. Of prop- 
 erty transferred or mortgaged with intent to hinder, 
 delay, or defraud creditors; 6. Of the want of change 
 of possession as evidence of fraud ^n the transfer of 
 property; 7. Of property which has been sold, but 
 never delivered to the purchaser; and 8, Of property 
 acquired by fraud. The principles announced in treat- 
 ing of the third, fourth, and fifth subdivisions are as 
 applicable to real as to personal property. If property 
 is not subject to execution, a levy thereon and a sale 
 
 8 See § 211. 
 
 • P.lythe V. .Tett, 52 Ark. ."47; Scanlan v. r.uiling, 03 Ailc. MO.
 
 413 PERSONAL I'KOl'ERTY SUBJECT TO EXElUTION. § lOiia 
 
 thereof, based on such levy, are utterly void.*" But if 
 the exemption of the property is a mere personal privi- 
 lege available to defendant when he may choose to 
 claim it, a sale under execution by his express or im- 
 plied assent is valid. 
 
 § 109 a. Law of the Situs Controls.— The question 
 whether property is subject to execution is one which 
 must be determined by the laws of the state in which 
 it happens to be. The owner of property may send it 
 into another state, or it may alwaj's have been in one 
 state while he resided in another, and, in either case, 
 the question may arise as to whether the right to sub- 
 ject this proi)ert3' to execution is regulated and con- 
 trolled by the law of his domicile, or by that of the 
 state in which the i)ropert3' is found. This question 
 arises most frequently in cases where the owner in the 
 state of his domicile has made some conveyance or 
 transfer of the projK'rty valid there, and which would 
 there remove the property from the reach of his execu- 
 tion creditors, but which is im>}»('rative against such 
 creditors by the laws of the state in which the ])roperty 
 is situate, for want of change of possession or from 
 some other cause known to the laws of the state. In 
 all such cases, the laAV of the state in which the ])rop- 
 ert is, controls, irrespective of the question of the 
 domicile of the parties. If the ]n'operty is seized and 
 sold in such state, pursuant to the laws thereof, and 
 by proceedings sufficient in foi'ui to vest title in the 
 purchaser there, such title must be respected in every 
 other state in Avliich it may be drawn in (]n«'stion, 
 
 10 Barbmir v. ■Rrcckenridiro. 4 F'ibb. r)4S: .TcfFrics v. Slu'iburn. 21 
 Ind. 112: (Jriffin v. SpcnccM-, C TTill. "12.-,: r.i-olow v. Finch, 11 Barb. 
 498; Goocli v. Atkins. 14 Mass. 378.
 
 § 109a PERSONAL PROPERTY SUBJECT TO EXECUTION. 414 
 
 though by the laws of the latter state the property 
 was not subject to execution as the property of the 
 defendant in execution at the time it was seized and 
 sold.^^ 
 
 Possibly there are cases constituting exceptions to 
 the rule that the situs of property necessarily controls 
 the question w^hether it is subject to execution, or, 
 more accurately speaking, there are cases in which 
 equity may interpose to prevent parties from enforc- 
 ing this rule of law, and this on the ground that, equi- 
 tably, property may sometimes be regarded as being in 
 a state or country where physically it is not. Thus, 
 if a debtor and creditor reside in the same state, and 
 the former, there owning property which is not subject 
 to execution by its laws, takes such property for a tem- 
 porary purpose into another state, to the courts of 
 which his creditor resorts in an attempt to there sub- 
 ject the property to execution or attachment before it 
 
 can be returned to the state of the domicile of both par- 
 
 « 
 
 ties, there are courts which will, in the state of the 
 domicile, enjoin the creditor from pursuing his reme- 
 dies in the other state.^^ Upon this question there is 
 much conflict among the authorities, and we shall refer 
 its further consideration to the chapter on exemptions 
 from execution.^' ^ 
 
 Credits, being intangible, have of themselves no 
 situs, unless it be the place where the debtor happens 
 from time to time to be. They may ordinarily be gar- 
 nished in the mode sanctioned by laws of that place, 
 whether the obligation accrued or the creditor resides 
 
 11 Greon v. Ann Kuskirk, 5 Wall. 307; Ilervey v. E. I. Locomotive 
 Works, 93 U. S. 6G4. 
 
 12 Mumper v. Wilson, 72 la. 163, 2 Am. St. Rop. 238, 
 12a Tost, § 209.
 
 415 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 110 
 
 there or not/^ except that, iu some instances, the courts 
 of a state may, by injunction, prevent a creditor, resi- 
 dent therein, from proceeding in another state to sub- 
 ject to execution debts which are not so subject at the 
 domicile of the debtor and creditcn*.'"* This question 
 will be considered more in detail in the chapter upon 
 garnishment. 
 
 KINDS OF PERSONAL PROPERTY SUBJECT TO EXECUTION. 
 
 §110. Generally All Tangible Property is Subject to 
 Levy. — "The general rule of law is, that all chattels, 
 the property of the debtor, may be taken in execu- 
 tion." ^^ Perhaps it would be more accurate to say 
 that all kinds of personal property of the debtor, which 
 can be by him made the subject of a voluntary transfer 
 .of title, can, by execution, be made the subject of an 
 involuntary transfer. It is sometimes said that noth- 
 ing can be seized by the officer which cannot be sold.^* 
 But this is not strictly true. The object of the levy is 
 to obtain satisfaction; and this object is usually, but 
 not universally, consummated by a sale of the property 
 seized. The officer cannot lawfullv seize anvthing" 
 which could not be made to contribute to the satisfac- 
 tion of the judgment. But if a thing can, without sale, 
 
 13 Harwell v. Sharp. 85 Ga. 124, 21 Am. St. Rep. 149; Lancashire 
 I. Co. V. Corbetts, 1G5 111. 592. 50 Am. St. Rep. 275; Missouri P. 
 Go. V. Sharitt. 43 Kan. 375, 19 Am. St. Rep. 143, and note; Berry 
 V. Davis, 77 Tex. 191, 19 Am. St. Rep. 748; Railroad v. Baruhill, 91 
 Tenn. 305, 30 Am. St. Rep. 889. 
 
 14 Miller v. Gittings, 85 Md. GOl, GO Am. St. Rep. 352; Griggs v, 
 Docter, 89 Wis. 824, 46 Am. St. Rep. 824. 
 
 15 Turner v. Fendall. 1 Cranch, 1.34; Crocker on Sheriffs. § 451, 
 Thus boats, though employed in navigation, are subjeet to execu- 
 tion: Knisely v. Parker. .34 111. 481; Nimiok v. Louisiana etc. Co.. 
 16 La. An. 4<": Sibley v. Furuey. 22 La. An. 1G3: Commonwealtb 
 V. Frye, 4 W. Va. 721. 
 
 16 Knox V. Porter, IS Mo. 243; Watson on Sheriffs, 178.
 
 § 110 PERSONAL PROPERTY SUBJECT TO EXECUTION. 416 
 
 be applied upon the writ, it may be taken. Nor is it 
 essential that its sale under ordinary circumstances be 
 lawful. Thus, if it be an article, the sale of which 
 may, upon public policy, be restricted, and perhaps 
 forbidden, yet if it still be recognized as property, it 
 may be seized and sold under execution.^'^ This ques- 
 tion was recently presented in a state w^hich had, by 
 the adoption of a local oi)tion law, forbidden any per- 
 son from selling, bartering,or giving away intoxicating 
 liquors. It was held that the law did not forbid the 
 keeping and owning of such liquors, or even the pledg- 
 ing them as security for a debt, and, hence, that it did 
 not remove them from the class of property subject to 
 execution.^** If, however, a statute can be correctly in- 
 terpreted as destroying property in such liquors, or as 
 rendering every sale thereof obnoxious to the law, then 
 they are not subject to a lev}' under execution, for a 
 levy can be justified only on the ground that it may 
 contribute to the satisfaction of the judgment. Hence, 
 in Maine, Massachusetts and Rhode Island, w'here the 
 statutes prohibit any person from manufacturing or 
 selling any such liquors, and restrict their disjjosition 
 to sales made by agents selected by public officers of 
 towns and cities, it was held that, as there was no ex- 
 ception in favor of sale by judicial process, and as ''to 
 permit such sales would be to afford most ample facili- 
 ties for evading the law," and as the law deems a sale 
 of intoxicating liquors injurious to the public health 
 and morals, their levy u^jon and sale under execution 
 cannot be permitted.*'^ 
 
 17 Tiifker v. Adnms. fr. X. IT. 301; Howe v. Ste^vart. 40 Vt. 14.". 
 
 i« Fears v. State. 102 Ga. 274. 
 
 19 In.iralls y. Baker. 1.'? Allen. 440: Kiff v. Old r'ol,iiiy TI. 11.. 117 
 Mass. .")01. 19 Am. l{ep. 420; Barrou v. Aruold, Kj K. I. 22; Nieliols 
 V. Valentine, 3G Me. 322.
 
 417 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 110 
 
 "It appears to us to comport with good policy, as 
 well as justice, to subject everything of a tangible na- 
 ture, excepting such things as the humanity of the law 
 preserves to the debtor, and mere choses in action, to 
 the satisfaction of the debtor's debts." '^ 
 
 A copyright is "an incorporeal right, secured by stat- 
 ute to the author; and, being intangible, is not subject 
 to seizure and sale at common law." ^^ "There would 
 certainly be great difficulty in assenting to the propo- 
 sition that patent and copyrights, held under the 
 laws of the United States, are subject to seizure and 
 sale on execution. Not to repeat what is said on this 
 subject in 14 How. 531, it may be added that these in- 
 corporeal rights do not exist in any particular state or 
 district — that they are coextensive with the United 
 States. There is nothing in any act of Congress, or in 
 the nature of the rights themselves, to give them local- 
 ity anywhere, so as to subject them to the process of 
 courts having jurisdiction limited by the lines of states 
 and districts. That an execution out of the court of 
 common j)leas for the county of Bristol, in the state of 
 Massachusetts, can be levied on an incorporeal right 
 subsisting in Rhode Island or Xew York, will hardly be 
 pretended. That by the levy of such an execution the 
 entire right could be divided, and so much of it as 
 might be exercised in the county of Bristol sold, would 
 be a position subject to much difficulty." "^ 
 
 20 Handy v. Dobbin, 12 Johns. 220; Twinam v. Swart, 4 Lans. 
 264. 
 
 21 Stephens v. Cady, 14 How. 531. 
 
 22 Stevens v. Gladdinpr, 17 IIow. 451. See Cooper v. Gunn, 4 B. 
 Mon. 504, assuming that copyright is not subject to execution; and 
 Woodworth v. Curtis, 2 Wood. & M. 530, assuming that it is sub- 
 ject. Banker v. Caldwell. 3 Minn. 94, cited by Mr. Herman as 
 showing that (Mipyrights and manuscripts are subject to execution. 
 Is not an authority on eitlu-r side of the question. 
 
 Vol. I.— 27
 
 § 110 PERSONAL PROPERTY SUBJECT TO EXECUTION. 418 
 
 Wliether unpublished manuscripts are subject to 
 execution is a question which seems to have been deter- 
 mined in but one case. In that case a set of abstract 
 books containing, we presume, memoranda compiled 
 from the public records, and so arranged as to facili- 
 tate the examination of titles to real estate, was made 
 the subject of an action of replevin, and the question of 
 their liability to execution was assumed by the court 
 to be involved. The court held that the proprietor of 
 such a manuscript had a right either to publish it or 
 to withhold it from publication; that this right was a 
 personal one, of which he could not be divested other- 
 wise than by his own act; that the value of the books 
 depended on the information contained therein, and 
 not on the books themselves; that "no law can compel 
 a man to publish what he does hot choose to publish; " 
 that "it would be very absurd to hold that books could 
 be seized and sold under execution, which, after the 
 sale, the purchaser could not use" ; and, finally, that 
 the books were not subject to seizure and sale under 
 execution.^" The reasoning of this decision does not 
 seem irresistible. 
 
 In a set of abstract books, or in any other manu- 
 scripts, we see nothing intangible, nothing which 
 makes it difficult or improper to subject them to execu- 
 tion. Confessedly they are property, and, as such, 
 may be valuable to their compiler or owner, and doubt- 
 less he may by his voluntary transfer divest himself 
 of title, and vest it in another. ITis transfer may not 
 divest him of the information contained in them, and 
 certainly will not impair the skill required in their 
 compilation or use. The fact that he does not and 
 
 23 Dart V. Woodbouse, 40 Mich. 399, 29 Am. Rep. 544.
 
 419 PERSONAL PROrERTY SUBJECT TO EXECUTION. § 110 
 
 cannot transfer his iufcn-mation and skill constitutes 
 no ground for denying his ability to transfer so much 
 as is transferable. In a state whose statutes in gen- 
 eral terms declare all property subject to execution, we 
 can perceive no reason for holding abstract books or 
 other valuable writings not subject to execution. If 
 the court meant by saying that it would be "absurd to 
 hold that books could be seized and sold under execu- 
 tion, which the purchaser could not use," that nothing 
 can be sold which a purchaser cannot comprehend or 
 skillfully manage, then a book might be reserved from 
 execution sale because written in a language which 
 none of the bidders understood, or a musical instru- 
 ment, because, like Hamlet's flute, they were not com- 
 petent to play upon it. That the interests held by in- 
 ventors and authors, under grants of letters patent or 
 copyright, are not directly subject to execution sale, 
 is owing to their intangible nature, and the fact that 
 they cannot be said to be located in any particular 
 place, so as to be subject to seizure and sale. The man- 
 uscript, however, is not intangible. If it should be 
 sold under execution, there would be no more difficulty 
 in defining, recognizing, and preserving the rights and 
 in^rests of the purchaser than if his purchase had been 
 made at a voluntary sale. Following the spirit of an 
 earlier decision in the same state affirming that the ab- 
 stract books of searchers of records are not subject to 
 execution, the supreme court of Michigan has held 
 that they are not property subject to taxation,^ but 
 upon this subject the courts of other states have 
 reached an opposite conclusion, and thereby, in effect, 
 affirmed that such books, being property both valuable 
 
 24 Perry v. City of Big Rapids. G7 Mich. UC. 11 Am. St. Rep. 570.
 
 § 110 PERSONAL PROPERTY SUBJECT TO EXECUTION. 420 
 
 and tangible, are subject to execution.^® A chattel 
 mortgage was executed upon a set of abstract records^ 
 maps, and indices of land, but its foreclosure was re- 
 sisted on the ground that the property was a copy of 
 the official records of the county, or indices thereto, 
 that, without knowledge of the arrangement of such 
 copies and indices, the property was of no value, that it 
 was the product of the work and mind of the secretary 
 of the corporation mortgagor, and that none of the 
 property was of any value, "unless the party having 
 possession thereof had the right to publish and copy 
 the same." The trial court, nevertheless, directed a 
 sale of the property mortgaged. The supreme court, 
 in affirming this judgment, approved the views herein- 
 before expressed, Saying: "It seems to us that these ab- 
 stract books were not so intangible or incorporeal that 
 they could not be subject to levy and sale."^® 
 
 Private books and papers, having little or no market 
 value, but containing entries of accounts, memoranda 
 of facts, evidences of property or in support of claims, 
 powers of attorney, or other authorizations, which en- 
 tries and memoranda, while they may give pleasure to 
 their owner or be useful to him even in the management 
 of his property, or the assertion of his rights, and are 
 property which he may recover in some appropriate ac- 
 tion, if wrongfully taken from him, are not subject to 
 levy on an execution against him.^'' 
 
 Though not subject to seizure, patent rights are sub- 
 ject to execution. In England they pass to assignees 
 
 25 Leon L. & A. Co. v. Equalization Board, 86 la. 127, 41 Am. St. 
 Kep. 4SG; Booth v. Abstract Co., 8 W^ash. 549, 40 Am. St. Rep. 921. 
 
 28 Washington Bank v. Fidelity A. etc. Co., 15 "Wash. 487, 55 Am. 
 St. Rep. 902. 
 
 27 Oystead v. Shed, 12 Mass. 505.
 
 421 PERSONAL PUOPEKTY SUBJECT TO EXECUTION. 9 110 
 
 in bankruptcy for the benefit of creditors."** In the 
 United States they may be reached by proceedin<,^3 
 either in chancery or supplemental to execution, where- 
 by the defendant may be compelled to transfer by a 
 proper writing all his right, title, and interest in the 
 patent right to a receiver appointed to sell the same, 
 and apply the proceeds to the satisfaction of the judg- 
 ment.-'* Certainly the right conferred by letters pa- 
 tent cannot be seized upon or taken into possession by 
 the sheriff, though such letters themselves are tangible 
 and susceptible of being seized, if there is any statute 
 to authorize it; but if there can be a state statute sub- 
 jecting to execution the rights conferred bysuch letters, 
 we can scarcely imagine that the mere inability to find 
 and take possession of the letters constituting evidence 
 of the right would be held an obstacle to proceeding. 
 The cases have generally been put upon the broad 
 ground that neither letters patent nor the rights con- 
 ferred thereby were subject to execution by the ordin- 
 ary mode of levy and sale."** Perhaps they may be 
 made so by a statute necessarily directed to the accom- 
 plishment of this result. Tims, one judge has said: 
 "I see no reason, however, to deny the power of the 
 legislature to authorize the taking in execution and 
 sale of a patent right by process of law." ^^ He there- 
 fore sustained a levy upon a patent right belonging to 
 
 28 Hesse v. Stevenson. 3 Bos. &: P. .577; NIas v. Adamson, 3 Barn. 
 & Aid. 225; Coles v. Barrow, 4 Taunt. 754. 
 
 29 Pacific Bank v. Robinson, 57 Cal. 520, 40 Am. Rep. 120; Barnes 
 V. Morgan. 3 Hun, 703; Stephens v. Cady, 14 How. 531; Ager v. 
 Murray. 105 U. S. 12G. 
 
 30 Peterson v. Sherifif, 115 Cal. 211; Cawer v. Peck, 131 Mass. 291; 
 Ager V. Murray. 105 U. S. 12G. 
 
 31 Erie W\ M. Co. v. National W. Co.. G3 Fed. Rep. 248; Flagg v. 
 Farns worth, IG Phi! a. 57, 12 W. N. C. 500.
 
 § 110 PERSONAL PPtOPERTY SUBJECT TO EXECUTION. 422 
 
 a corporation made under a special fieri facias author- 
 ized to be issued by the laws of Pennsylvania. These 
 laws provide that the plaintiff may have execution by 
 fieri facias commanding "the sheriff or other officer to 
 levy the judgment on anj- personal, mixed, or real prop- 
 erty, franchises, and rights of such corporation, and 
 thereupon proceed to sell the same." ^^ The mode of 
 levy does not seem to be pointed out b}' the statute, nor 
 is there anything in the case cited to show what mode 
 was resorted to in levying upon and selling the prop- 
 erty in question. If the patentee of an invention con- 
 structs, though not for sale, one or more of the ma- 
 chines or implements covered by his letters patent, it, 
 being a tangible thing, is subject to seizure, and con- 
 sequently to sale under execution. The purchaser's 
 rights are not limited to the mere materials purchased, 
 but include the right to use the machine as fully as if 
 such machine had been voluntarily sold by the pa- 
 tentee.^ 
 
 Seats in stock-boards in large cities have become, in 
 some instances, of great value, and, though in the na- 
 ture of personal privileges, their transfer from one per- 
 son to another has generally been respected, if made in 
 compliance with the rules or by-laws of the association. 
 They have been spoken of by the courts as property; 
 and it has been said that on bankruptcy they would 
 pass to the assignee, subject to the rules of the stock- 
 board.^* If tliis be true, they must be subject to execu- 
 tion in some mode, perhaps by creditor's bill, or by pro- 
 ceedings supplemental to execution, in which a receiver 
 could be appointed, and a transfer to him compelled. 
 
 82 Pepper & Lewis's Digest, 2006. 
 
 83 Wilder v. Kent, ]5 Fed. Rep. 217. 
 
 84 Hyde v. Woods, 94 U. S. 52^}.
 
 423 PERSONAL PllOPERTY iSUBJECT TO EXECUTION. § llu 
 
 In some states the broad proposition is maintained 
 that seats of this character, however valuable they may 
 be, are not liable to seizure or sale, nor indeed, to be 
 subject to execution by any proceeding, whether legal 
 or equitable.-'^ In Illinois, it appeared that a certifi- 
 cate of membership in the board of trade of Chicago 
 entitled the member to attend the meetings of the 
 board and to deal in various products of the country, 
 and that this privilege was of great value, though no 
 member received any pecuniary profit from the corpo- 
 ration or from its capital or revenue, except the advan- 
 tages derived in the way of trade from the privilege of 
 being a member and permitted as such to transact busi- 
 ness in the rooms of the board. The court held that 
 the certificate of membership and the privileges there- 
 by conferred could not be regarded as propertj^ because 
 property was "the right and interest which a man 
 has in lands and chattels, to the exclusion of others." 
 *'Such certificate," said the court, "is neither lands nor 
 chattels." It further appeared that the member could 
 not dispose of his membership as he pleased, but the 
 disposition of it could only be to such person as the 
 board, through its directors, might determine. Each 
 person becoming a member was required to pay an 
 initiation fee of five thousand dollars, and the evidence 
 showed that a certificate of membership was regarded 
 in the market as Avorth four thousand dollars. The 
 court determined that the rights held by the member 
 under his certificate could neither be levied upon and 
 sold, nor subjected to execution either by garnishment 
 or by proceedings in chancery.^*'' We mny readily con- 
 
 85 Pancoast v. Gowen, 93 Pa. St. GG; Thompson v. Adams, 93 Pa. 
 St. 5o. 
 
 36 Parclav v. Sniitli. 107 111. 349, 47 Am. Pvop. 437.
 
 §110 PERSONAL PROPERTY SUBJECT TO EXECUTION. 424 
 
 cede that privileges like those under consideration are 
 not subject to levy and sale in the mode appropriate 
 to the levy and sale of other property, and that any at- 
 tempt to so levy upon and sell them must be unavail- 
 ing.^" They are, nevertheless, in our judgment, sub- 
 ject to execution in the sense that they may be reached 
 by appropriate proceedings. After considering the 
 authorities upon the subject, the supreme court of 
 California announced the following as its conclusion: 
 *'We conclude, therefore, that the weight of authority 
 and the better reasoning support the proposition that 
 such a seat, or membership, is property, and should be 
 applied, as other property of a debtor, to the payment of 
 his debts. To hold that it cannot be thus applied would 
 be to establish a rule giving to members of such associa- 
 tions the power to invest fortunes under the name of 
 licenses and privileges, and by constitutions and regu- 
 lations to establish a law of exemption for the same." *** 
 The mode of reaching the property sustained in this 
 case was by proceedings supplementary to execution, 
 in which, upon an examination of the judgment debtor, 
 disclosing that he owned the seat in question, a re- 
 ceiver was appointed, with power to sell the same and 
 api)ly the proceeds thereof in satisfaction of the judg- 
 ment. It appeared that, by the constitution and by- 
 laws of the stock and exchange board whose member- 
 ship was in question, the legal title or ownership of 
 the property of the association was vested in certain 
 officers in trust for the benefit and enjoyment of its 
 members, and that "no member, under any circum- 
 stances, shall be deemed to have, or claim, or possess, 
 
 37 Lowenberg v. Greenebaiim, 99 Cal. 162. 
 
 88 Habenleht v. Lissak. 78 Cal. 351, 12 Am. St. Rep. 63; Londheim 
 V. White, 67 How. Pr. 467.
 
 425 PERSONAL I'ilOi'KRTY SUJiJECT TO EXECUTION. § 110 
 
 any individual ri^^lit, title, or interest in the property 
 or assets of tlie association, except when tlie same shall 
 be finally dissolved and its affairs wound up by its then 
 remaining members," and that "every application for 
 membership is subjected to the scrutiny of a com- 
 mittee, whose report, if favorable, entitles the appli- 
 cant to be balloted for, and, whether favorable or un- 
 favorable, the applicant may be rejected by twenty 
 negative votes; that, if a member of the association join 
 any similar organization in this state, he may be im- 
 mediately expelled; that it is distinctly understood and 
 agreed between the board and each member thereof 
 that the board reserves the right to reject any nom- 
 inee." 
 
 A personal lien existing in favor of any person, and 
 not liable to voluntary transfer, can never be subjected 
 to a writ of execution.^'** 
 
 An agreement that the plaintiff will not seek to sat- 
 isfy his judgment except by levy on specified property 
 is valid, and may be enforced against him.'** 
 
 A college was chartered for the education of girls, 
 and a donation was made to it of the sum of five thou- 
 sand dollars, in consideration of which the authorities 
 of the college granted to the donor a perpetual scholar- 
 ship in the college, "which shall give the right to place 
 and keep in the college one pupil, who shall have all 
 the advantages of the college free of charge." The 
 donor subsequently became insolvent, and a bill was 
 filed against him for the purpose of subjecting to sale 
 his right or power to appoint to the scholarship. It 
 
 S9 Holly V. Hufrgeford. S Pick. 73, 10 Am. Dpp. 303; Kittrodcre v. 
 Sumner. 11 Pick. .^0; Lecrg v. Evans. Meos. & W. 3G; S Dowl. 
 P. C. 177; 4 .Tnr. 107. Soo also § 112. 
 . *o Whitney v. Ilavi'iliill Ins. Co., 9 Allen, 3.'.
 
 § 111 PK1;S0NAL PROPERTY SUBJECT TO EXECUTION. 42C 
 
 was held, however, that the right in question was not 
 that "of an ordinary scholarship sold bj an institution 
 to a purchaser, with right to use or sell and transfer 
 it as he might choose, as is often done by schools. Kor 
 is it a power over, or attached to, real estate or tangible 
 property. It is not, in any correct sense of the term, 
 an estate. It is merely a privilege or power to be ex- 
 ercised by, and with consent of, the college, and under 
 its rules and regulations"; that the donor might, sub- 
 ject to the reasonable rules and requirements of the col- 
 lege, appoint whom he pleased, or decline altogether to 
 appoint; that it was a privilege personal to him, and 
 was not such a right as could be seized and sold for 
 debt in any mode whatsoever.^^ 
 
 § 111. Money. — it was at one time insisted that 
 money was not subject to seizure upon execution, be- 
 cause it could not be sold."** But this reason did not 
 long prevail; and it is doubtful whether it ever pre- 
 vailed at all. For while money may not — or, more 
 properly speaking, need not — be sold, in order to apply 
 it to the execution, yet this furnishes no sensible rea- 
 son why it should net be taken and credited on the writ. 
 The rule is now well established that "money, whether 
 in specie or in bank notes (which are treated civiliter, 
 as money), if in the possession of the defendant, or ca- 
 pable of being identified as his property, may be taken 
 in execution." '^^ In England, the decisions on this 
 
 <i P.ank V. Morrow. nO Tenn. 527. <i3 Am. St. Rep. 8.'.",. 
 
 <2 Thus, in Armistoad v. Philpot. Doufr. 231, "Loi'd :\ran«field said 
 he helieverl there were old cases where it had been hold that the 
 Kheriff conld not taTte money in execution, even though found in the 
 defendant's escritoire, and that a quaint reason was given for it, 
 viz.. that money could not be sold." 
 
 43 Crane v. Freese, 1 Ilarr. (N- .T.) 307: Turner v. Fciidall. 1 
 Crauch, 134; State v. Taylor, 5G Mo. 495; Spencer v. l?iait;dell, 4
 
 427 PERSONAL PROPERTY SUBJECT TO EXECUTION. § HI 
 
 subject are infrequent, meager, and contradictory. 
 The cases of Armistead v. Philpot, Doug. 231, and of 
 The King v. Webb, 2 Show. IGl, are clearly in harmony 
 with the American decisions. Some later cases, how- 
 ever, are understood as establishing a different rnle.'*^ 
 These cases, we think, will, on examination, be found 
 to go no further than to establish that money in the 
 hands of a sheriff, or in other words, in custodia legis, 
 cannot be levied upon under either execution or attach- 
 ment — a position which is perfectly agreeable to that 
 of the American courts."*® 
 
 There can be no lawful levy upon moneys unless the 
 identical money levied upon is the property of the de- 
 fendant. It is not sufficient that money be owing to 
 him, or that he has deposited moneys with another, 
 who has undertaken to return him an equal or greater 
 sum. In all these cases the defendant does not have 
 money to be levied upon. There only exists in his favor 
 a mere indebtedness. Thus, when money is depos- 
 ited in bank, it becomes the property of the bank, and 
 cannot be seized by the sheriff as the money of the 
 
 N. H. 198. 17 Am. Dec. 412; Handy v. Dolibin. 12 Johns. 220: The 
 King V. Webb. 2 Show. 16G; Kono v. Wilson, 1 Hemp. 91; Russell 
 V. Lawton, 14 W^is. 202. 80 Am. Dec. 7G9; Dolby v. Mull ins. 3 
 Humph. 437. 39 Am. Dec. 180; Green v. Palmer. 15 Cal. 411, 7G Am. 
 Dec. 492; Taylor's Appeal, 1 Pa. St. 390; Harding v. Stevenson. 6 
 Har. & J. 2CA: Brooks v. Thompson, 1 Root, 216; Doyle v. Sleeper, 
 1 Dana, 534; Prentiss v. Bliss. 4 Vt. 513, 24 Am. Dec. 631; Holmes 
 V. Nuncaster. 12 Johns. 395; Summers v. Caldwell, 2 Nott & McC. 
 341; Means v. Vance, 1 Bailey. 39; Noble v. Kelly. 40 X. Y. 415. 
 
 ** Fieklhouse v. Croft, 4 East, 510; Knight v. Crid.Ue. 9 East. 48; 
 Willows V. Gall. 2 Bos. t^t P. 376. 
 
 <5By section 12. chapter 110, of statutes of 1 ami 2 A'ictoria. the 
 sheriff may seize, nnder a fieri facias, any money, bank notes, 
 checks, bills of exchange, promissory notes, bonds, specialities, or 
 other securities for moneys. See Wood v. Wood, 3 Gale & D. 532.
 
 § 112 PEHt;ONAL PROPERTY SUBJECT TO EXECUTION. 428 
 
 judgment debtor.^" If one has deposited money with 
 another as a special deposit, so that the latter has no 
 right to use it, and must be deemed a bailee thereof, we 
 see no reason why it may not be levied upon under exe- 
 cution. A statute provided that "in the case of a debt 
 due to the defendant, or of a deposit of money made by 
 him, the same may be attached and levied, in satisfac- 
 tion of a judgment." Where a deposit of money had 
 been made and the right to seize it under this statute 
 was claimed, the court said: "A deposit, jn'operly so 
 called, is a naked bailment, and exists where one of the 
 contracting parties gives something to the other to 
 keep, who is to do so gratuitously, and obliges himself 
 to return it in individuo when he shall be requested. 
 When one deposits money with another for safe-keep- 
 ing, the latter to return, not the sj^ecific money, but an 
 equal sum, the transaction is also called a deposit, but 
 it is an irregular deposit. Now, the transaction be- 
 tween Rozelle and Tillinghast was undoubtedly a de- 
 posit of money, plain and simple; the money was left 
 with Tillinghast for safe-keeping, to be returned, not 
 in money of like amount, but in the identical money de- 
 I)osited." It was held to be liable to execution.'*'^ 
 
 § 112. Choses in Action.— By the common law 
 
 choses in action were not subject to seizure and sale 
 
 under execution. This common-law rule still prevails, 
 
 u except where it has been changed by statute; ^ but in 
 
 46 Carroll v. Cone. 40 Barb. 220; McMillan v. Richards, 9 Cal. 
 30'. 70 Am. Dec. G55; Moorman v. Quicli, 20 Ind. 67; Scott v. Smith. 
 2 Kan. 428. 
 
 47 Rozelle V. Rhodes, 116 Pa. St. 129, 2 Am. St. Rep. 591. 
 
 4« AVilliams v. Reynolds, 7 Ind. 622; Taylor v. Gillean, 23 Tex. 
 .^08; Watkins v. Dorsett, 1 Bland. .530; Grogan v. Cooke. 2 Ball & 
 B. 233; Totten v. McManus. 5 Ind. 407; Price v. Brady. 21 Tex. 
 <j14; Stewart v. English, lud. 176; Smith v. K. & I'. R. R. Co., 43
 
 429 PERSONAL PUUPKRTY SUBJECT TO EXECUTION.; § 112 
 
 most states provisions have been made by statute, un- 
 der which many clioses in action may be reached by 
 garnisliment, and thereby made to contribute to the 
 satisfaction of executions. It appears to be indispen- 
 sable to work a change in the common-law rule upon 
 this subject that the statute refer to, or otherwise ne- 
 cessarily include, choses in action. The statutes of Illi- 
 nois declare that the personal property of every defend- 
 ant in a judgment before a justice of the peace, not ex- 
 empt from execution, shall be bound for the payment 
 of such judgment, while the words of command author- 
 ized to be inserted in the writ direct the officer that, of 
 the goods and chattels of the defendant, he make the 
 amount of the judgment and costs. In construing 
 this section, the court held, (1) that the words "personal 
 property," as used in one clause of the statute, were re- 
 stricted by the other clause to the words "goods and 
 chattels," and (2) that the terms "goods and chattels" 
 did not include choses in action.^** 
 
 In some of the states, choses in action may be levied 
 upon and sold in the same manner as other personal 
 estate.^" It is, of course, essential that the chose in 
 
 Me. 547; McGohee v Cherry, 6 Ga. H.jO; Ellison v. Tuttle, 26 Tex. 
 283; Harding v. Stevenson, liar. & J. 204; Denton v. Livinsstou, 
 9 Johns. 9<;, G Am. Dec. 204; McClolland v. Hul)bard. 2 Blackf. 361; 
 McFerran v. Jones, 2 Litt. 222; Johnson v. Crawford. 6 Blackf. 377; 
 Moore v. Pillow, 3 Humph. 4S8; Humble v. Mitchell, 11 Ad. & E. 
 205; Nash v. Nash, 2 Madd. 133; Ransom v. Miner, 3 Sand. 692; 
 Ingalls V. Lord, 1 Cow. 240; Field v. DaAvson. .'. Pike, 376; Green- 
 wood V. Spiller. 2 Scam. 504; People v. Auditors, 5 Mich. 223; 
 Rhoads v. Megonigat. 2 Pa. St. 30; Pool v. Glover, 2 Ired. 129. 
 
 49 Crawford v. Schniitz. l."0 111. 564. 
 
 60 By section 688, California Code of Civil Procedure, "all goods, 
 chattels, moneys, and other property, both real and personal, or any 
 interest therein of the judgment debtor not exempt by law', and all 
 property and rights of property seized and held under attachment 
 In the action, are liable to execution. Shares and interests in cor-
 
 S 112 PERSONAL PROPERTY SUBJECT TO EXECUTION. 430 
 
 action be of a character of which possession may be 
 taken by the officer, and generally, that such possession 
 be voluntarily surrendered to him by the defendant, or, 
 at least, that it be not taken by force. *^ These stat- 
 utes will not, however, be construed as authorizing an 
 involuntary transfer of that which the judgment debtor 
 could not transfer voluntarily. Thus the vendor s lien 
 held by one who has sold real estate is, in some of the 
 states, subject,^^ and in others not subject, to volun- 
 tary transfer,^^ though the indebtedness secured by 
 such lien may be assigned. Hence, while such indebt- 
 edness can be sold under execution as a chose in action, 
 such sale cannot entitle the purchaser to the, benefit of 
 the lien,^* in those states where the voluntary transfer 
 of such lien cannot be made. But it seems, at least in 
 California, that all kinds of choses in action may be lev- 
 ied upon and sold,^^ except contingent and compli- 
 cated contracts, of which the true amount and value 
 cannot be ascertained. 
 
 poration or company, and debts and credits, and all other prop- 
 erty, both real and personal, or any interest in either real or per- 
 sonal property, and all other property not capable of manual de- 
 livery, may be attached on execution. In like manner as upon writs 
 of attachment." A similar statute existed in Louisiana. Sec. 647 
 of Code of Practice. Hence, in that state a promissory note may be 
 levied upon and sold. State v. Judge, 20 La. Ann. 589; Nugent v. 
 McCaffrey, 33 La. Ann. 271; Brown v. Anderson, 4 Martin, N. S. 
 416; W'ilson v. Munday, 5 La. 483; Fluker v. Bui lard, 2 La. Ann. 
 338; Stockton v. Stanbrough, 3 La. Ann. 390. Choses in action are 
 also subject to levy and sale in Iowa (section 3971 of the code), and 
 In Indiana (Bay v. Saulspaugh, 74 Ind. 397). 
 
 61 People V. National M. I. Co., 46 N. Y. Supp. 102. 
 
 82 Hunt V. Selleck, 118 Mo. 588, 
 
 53 Schnerl)ly v. Eagan, 7 Gifl. & J. 120. 28 Am. Dec. 195. and note; 
 Baum V. Grigsby, 21 Cal. 172, 81 Am. Dec. 153; Lewis v. Covlllaud, 
 21 Cal. 178; Williams v. Young, 21 Cal. 227. The same rule ap- 
 plies to mechanics' liens: Lovett v. Brown, 40 N. H. 511. 
 
 54 Ross V. Heintzen. 30 Cal. .313; Bray v. Booker. 6 N. D. 526. 
 
 55 Davis V. Mitchell, 34 Cal. 87; Adams v. Hackett, 7 Cal. 187.
 
 431 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 112 
 
 When personal property is held adversely to its 
 owner, his interest therein is a mere cho«e in action, 
 and cannot be reached by execution, ^^ unless by virtue 
 of the provisions of some statute. By this we under- 
 stand that the officer having a writ against one per- 
 son has no right to forcibly take property from the pos- 
 session of another who claims it adversely to the 
 former, nor can the ofiQcer levy without taking such 
 possession, for he is required to have personal property 
 present at any sale he may make thereof. It is, there- 
 fore, a sufficient answer for an otlicer sued for not levy- 
 ing on property for him to show that it was in pos^ses- 
 sion of a stranger to the writ who claimed title thereto 
 adversely and in good faith. If, however, the officer 
 should levy upon and sell, we do not understand that 
 the defendant in the writ can avoid the levy or sale on 
 the ground that, prior to the levy, the property was 
 held adversely to him.^'' 
 
 There are many choses in action, which, from their 
 intangible character, seem to be incapable* of being 
 made the subjects of direct levy and sale. Of this 
 character are all debts and credits not evidenced by 
 writing, or by something capable of being seized and 
 taken into possession,or in some manner made to bear 
 witness to a change in their ownership. A chose in 
 action evidenced by a book-account is also of this char- . 
 acter. The account book is not so intimately connected 
 with the demands charged therein, that the seizure of 
 the book is equivalent to the seizure of the demands. 
 There is no means by which these demands can be 
 
 68 Commonwealth v. Abell, r> T. J. Marsh. 470: Thomns v. Thomas. 
 2 A. K. Marfsh. 430; Wier v. Davis, 4 Ala. 442: Carlos v. Ansley. 8 
 Ala. 900: Horton v. Smith. 8 Ala. 7X 42 Am. Dec. G28. 
 
 B7 State V. Judge, 48 I.a. Ann. GG7.
 
 § Il-J PERSONAL PROPERTY SUBJECT TO EXECUTION. 4Si 
 
 transferred by a diroct \o\y and sale. ^*^ Speaking of 
 an effort to snstain a levy upon certain boolcs contain- 
 ing accounts and other evidences of indebtedness, the 
 court said: "These books of account and trial balances 
 are not property- of such tangible character that they 
 can be made subject to such levies. They may be evi- 
 dences of debt, but their seizure is not the attaching or 
 seizure of the debt itself. They are not so intimately 
 connected with the demands charged therein that the 
 seizure of the books is equivalent to the seizure of the 
 demands, and there is no means by which these de- 
 mands can be transferred by a direct levy and sale." ^^ 
 They must be reached by garnishment, trustee process, 
 or proceedings supplemental to or in aid of execu- 
 tion.'"' 
 
 A judgment may be subjected to execution as a credit 
 or chose in action in most of the states in which choises 
 in action may be subjected to execution. The mode 
 of levying upon a judgment, and of applying it toward 
 the satisfaction of the writ, is a matter of some diffi- 
 culty. Tha.t it is property is everywhere conceded. 
 But though it is evidenced by some writing or matter of 
 record, such writing or record is not the judgment, but 
 only evidence thereof. It would be impossible to seize 
 the judgment, for it is intangible, and it is improper 
 to seize the evidence of it, for that should remain in the 
 custody of some public officer. In this dilemma, the 
 major portion of the courts considering the question 
 have concluded that a judgment cannot be levied upon 
 
 68 Clark V. Warren, 7 Lans. ISO; Brower v. Smith. 17 Wis. 410. 
 
 •".0 Rosonthal v. Muskegon Circuit Judge, 98 Mich. 208. 39 Am. 
 St. Rep. .53.5. 
 
 CO Brisco r. Askoy. 12 Ind. CCCr. Chandlpv v. Koaton. 17 Tnd. 215; 
 Chandler v. Davis, 17 lud. 2G2; Lake Erie R. R. Co. v. Eckler. 13 
 Ind. 67.
 
 433 PERSONAL PROPERTY SUBJECT TO EXlXL'TiON. § 112 
 
 nor sold, and can be subjected to gariiisliiiicnt only.^* 
 In Louisiana, a jud^nienl may be reached by j^aruish- 
 ment,"- or seized and sold under execution;*'^ while 
 in Oregon it is not a subject of garnishment/''* but 
 whether of levy and sale the decisions do not state. 
 The objection urged in this state against permitting 
 the garnishment of a judgment is that, to render the 
 garnishment ellVctive, it may be necessary to proceed 
 to judgment against the garnishee, and that there will 
 then be two judgments against him in favor of differ- 
 ent persons, based upon the same debt. In Minnesota, 
 the statutes include, in the list of property subject to 
 execution, "bills, notes, book accounts, debts, credits, 
 and other evidence of indebtedness," and declare that 
 the assignment of a judgment shall have no effect as 
 against creditors levying upon and attaching the same, 
 unless such assignment shall be filed as prescribed, 
 and that judgments recovered for the seizure of exempt 
 property shall be exempt from attachment, execution, 
 or other proceedings. These provisions, in the opinion 
 of the courts of that state, amply evince the legislative 
 intent to subject judgments to execution by levy and 
 sale.*"^ A similar conclusion was reached in South 
 Dakota, but the statutes of that state are so explicit 
 
 «i INIcBrkle v. Fallon, Go Cal. 301; Wilson v. Matheson. 17 Fla. 
 630; Dore v. Donshorty. 72 Cal. 232, 1 Am St. Rep. 48; Latham v. 
 Blake, 77 Cal. G4G; Osborn v. Cloud, 23 Iowa, 104, 92 Am Dec. 413. 
 The rule has been changed in Iowa by section 3971 of the code. In 
 Colorado a judgment is not subject to execution except on a writ 
 issued out of the court wherein it was rendered: Ilamill v. Peck, 
 11 Colo. App. 1. 
 
 82 Ilanna v, Bry, 5 La. Ann. Gol, 52 Am. Dec. GOG; Righter v. 
 Slidoll, 9 La. Ann. 602. 
 
 63 Safford v. Maxwell, 23 La. Ann. 34.5. 
 
 »■-» Despain v. Crow. 14 Or. 404: Norton v. Winter, 1 Or. 47. 
 
 «B Henry v. Trayuor, 42 ^liun. 234. 
 Vol. I.-28
 
 § 112 PERSONAL PROPERTY SUBJECT TO EXECUTION. 434 
 
 upon the subject that it is difficult to conceive a doubt 
 that a levy upon and sale of judgments are authorized 
 thereby.^"^ 
 
 The Code of Civil Procedure of New York authorizes 
 a levy to be made upon personal property, including a 
 bond, promissory note, or other instrument for the pay- 
 ment of money by taking the same into the actual cus- 
 tody of the officer. It has been held, however, that 
 the terms "instrument for the payment of money" em- 
 ployed in this statute mean only those writings made 
 primarily for the x^ayment of money, commonly trans- 
 ferable by delivery or endorsement, and usually dealt 
 with "like other tangible properly," and hence do not 
 include a life insurance policy which has not matured 
 and on which premiums are still to be paid,*^*^ and 
 probably it is not material whether the policy has ma- 
 tured or further premiums are to be paid or not.**** 
 Hence, while these instruments and the rights depend- 
 ent upon them may be subject to execution, the officer 
 need not take them into his custody. 
 
 A statute purporting to authorize the levy of an exe- 
 cution upon a bond or other instrument for the pay- 
 ment of money executed, and which was issued, by the 
 governor, state, county, public officer, or municipal cor- 
 poration, and is in terms negotiable and payable to the 
 bearer or holder, does not warrant a levy of the writ 
 upon a liquor tax certificate, though such certificate 
 has a surrender value to which the holder may become 
 entitled upon offering to surrender it. ** 
 
 66 McLaughlin v. Aloxanrter, 2 S. D. 220. 
 
 67 Kratzenstein v. Lehman, 46 N. Y. Supp. 71. 
 
 68 Trepagnier v. Piose, 4G N. Y. Supp. 397; contra, Hankison v. 
 Page, 19 Abb. N. C. 274. 
 
 «» McNeely v. Welz, 47 N. Y. Supp. 310.
 
 435 PERSONAL rROPEKTY SUIUECT TO KXKCfTlON. § 112a 
 
 § 112 a. Shares or Interests in a Corporation, 
 
 wlirllicr represented by cerlilicaLes (*[ stock or not, 
 wore, by the common law, deemed to be mere choses in 
 action, and iience were included in the j^cik ral rule ex- 
 empting from execution all that class of property.''" 
 Even where they were subject to execution, the transfer 
 of title by a sale thereunder could not give the pur- 
 chaser any definite or undivided interest in the assets 
 of the corporation, but could only substitute him in 
 place of the defendant in execution, and give him the 
 same rights and remedies to which such defendant was 
 entitled/^ Statutes in a majority of the states have 
 made property of this class subject to execution in 
 some mode/^ But to ascertain whether it is so sub- 
 ject, and in what manner a judgment creditor must 
 proceed, the statutes of the state in which the question 
 arises must be consulted. 
 
 The situs of stock for the purpose of attachment or 
 execution is at the domicile of the corporation. There- 
 fore, unless, perhaps, in a case where a corporation has 
 been, in effect, so admitted into, or adopted, in a state 
 other than that of its creation, that it may be deemed to 
 have become a resident of both states, a levy of an exe- 
 cution upon shares or interests of the defendant in a 
 corporation can be made only in the state wherein the 
 corporation was organized and of which it remains a 
 
 70 Denton v. Liviusston, 9 Johns. 96, 6 Am. Dec. 2G4; Williamson 
 V. Smoot, 7 Mart. (O. S.) 31, 12 Am. Dec. 494; Rhea v Powell. 24 
 111. App. 77; Nabrinjr v. Bank of Mobile, 58 Ala. 204; Van Norman 
 V. .Taclvson County, 48 Mich. 204; Foster v. Potter, 37 Mo. 525; 
 Cooper V. Canal Co.. 2 Murph. 195. 
 
 71 Princeton M. Co. v. First N. B., 7 Mont. 530. 
 
 "2 Berney N. B. v. Pinckanl. 87 Ala. 577; Trimble v. Van(le2:riff, 
 7 IToust. 451; Memphis etc. Co. v. Poke, 9 Heisk. 097; Younu: v. 
 Sontli etc. Co.. 85 Tenn. 189. 4 Am. St. Rep. 752; Tufts v. Vnlkening, 
 122 Mo. 631; Cook on Stock and StockhoUlors. section 482.
 
 § 112a PERSONAL PROPERTY SUBJECT TO EXECUTION. 43& 
 
 resident.''^ In a case arising in Tennessee, it appeared 
 that the corporation upon whose stock a levy was 
 sought to be made had been organized in the state of 
 Missouri, but to carry on business in the state of Ten- 
 nessee, and its charter provided that it should have two 
 oflSces, one, called the home oflflce, in St. Louis, Mis- 
 souri, and the other at Chattanooga, Tennessee. The 
 laws of Tennessee provided that every corporation cre- 
 ated by the laws of another state, for the purpose of car- 
 rying on certain businesses specified therein and desir- 
 ing to carry on business in the state of Tennessee, might 
 file with the secretary of state a copy of its charter and 
 cause an abstract of the same to be registered in the 
 county in which it proposed to engage in business, and 
 that corporations complying with the statute should 
 be deemed to be corporations of the state and subject 
 to its jurisdiction. It did not appear whether the cor- 
 poration in question had complied with these laws or 
 not. It had, however, carried on business in Tennessee, 
 and its by-laws declared its office to be in Chattanooga, 
 where its books were required to be kept, its elections 
 to take place, and its directory to meet. Its whole tan- 
 gible property was in Tennessee. Its stockbook had 
 however, been removed from that state. The court 
 held that, in view of all these facts, it must presume 
 that the corporation had filed its charter with the sec- 
 retary of state, and was lawfully exercising its facul- 
 ties within the state under legislative permission, and 
 that, while a foreign corporation in one sense, it was 
 yet, by legislative power, a domestic cor])oration, and 
 
 73 Winston v. Fletcher, 53 Conu. 390, 'lo Am. Rep. 122; Plimpton 
 V. Bigelow, 93 N. Y. 592; Ireland v. Globe Mill etc. Co., 19 R. I. 
 180, 61 Am. St. Rep. 756; Pinney v.^Nevills, 86 Fed. Rep. 97; Youni? 
 V. Soutli Tredegar I. Co., 85 Tenn. 189, 4 Am. St. Rep. 752.
 
 437 PERSONAL PUOPEUTY SUBJECT TO EXECUTION. § llJa 
 
 that the situs of its stock was tlierefore in Teunesisee, 
 so as to be subject to attaclimeut like tlie stock of a cor- 
 poration originally created by that state/"* 
 
 A statute of a state purporting to authorize a levy 
 upon shares of stoclc in corporations is applicable to cor- 
 porations organized under the laws of the United 
 Ktates, where such statute does not tend to impair the 
 power of the United States to i)rovide for, control, and 
 regulate such corporations.'^ 
 
 Certificates of stock are merely evidences of the inter- 
 ests of the holder thereof in the corporation. The levy 
 of an execution thereon by taking such certificates into 
 the possession of the officer is not usually authorized, 
 add, when not so expressly authorized, is unavailing.'^" 
 Statutes purporting to authorize the levy upon shares 
 or interests in a corporation will usually be construed 
 as referring only to shares or interests having a com- 
 mercial value. Hence, it was held that where a cor- 
 poration was organized, not to carry on a business for 
 profit, but only for the purpose of "yachting, hunting, 
 fishing, rowing, or other lawful sporting purposes," it 
 was not of a class the stock of which the legislature in- 
 tended to make subject to execution, under a statute 
 declaring that ''any share or interest of a stockholder 
 in any bank, insurance company, or other joint stock 
 company that is, or may be, incorporated under the au- 
 thority of, or authorized to be created by, any law of 
 this state, may be taken in execution." '''' 
 
 T* Young V. South Tredejiar I. Co., 85 Tonn. 189, 4 Am. St. Rep. 
 752. 
 
 T' Oldacre v. Butlor. IIG Ala. G.'2; Re Braden's Estate. 165 Pa. 
 St. 184. 
 
 '<* Young V. South Tredesrar I. Co., 85 Tenn. 189, 4 Am. St. Rep. 
 752. 
 
 7T Lyou V. Denison, SO Mich. 371.
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 43S 
 
 Ml 3. Crops, Whether Growing or Standing in the 
 Field ready to be harvested, are, when produced by an- 
 nual cultivation, no part of the realty. They are, there- 
 fore, liable to voluntary transfer as chattels.'"^ It i s 
 equally well settled that they may be seized and sold 
 under execution.'^ While there is no dissent from the 
 proposition that growing crops ar;' subject to execution, 
 the time when they become so subject is in controversy. 
 In some of the states, acting, doubtless, upon the as- 
 sumption that, until they are in a condition to become 
 a subject of commerce, they must be regarded as part 
 of the realty on which they are growing and from which 
 they cannot be severed without their destruction, or, 
 
 78 Harris v. Frink, 49 N. Y. 24, 10 Am. Kep. 318; Graff v. Fitch, 
 56 III. 373, 11 Am. Kep. 85; Whipple v. Foot, 2 Johns. 418, 3 Am. 
 Dec. 442; Cratldock v. Riddlesbarger, 2 Dana, 205; Matlock v. Fry, 
 15 lud. 4S3; Evans v. Roberts, 5 Barn. & C. 829; Pourrier v. Ray- 
 mond, 1 Hann. 512; Farker v. Staniland. 11 East, 362; Austin v. 
 Sawyer, 9 Cow. 39; .Jones v, Flint, 10 Ad. & E. 753; Poulter v. 
 Killingbeck, 1 Bos. & P. 398; Mumford v. W^hitney, 15 Wend. 387, 
 30 Am. Dec. GO; Westbrook v. Eager, 1 Harr. (N. J.) 81; Purner v. 
 Piercy, 40 Md. 212. It is immaterial whether the growing crop be 
 such as can be severed, like corn or wheat, or such as must be dug 
 out of the gi'ound. as turnips or potatoes. Dunne v. Ferguson, 
 Hayes. 542; Sainsbury v. Matthews, 4 Mees. & W. 343; Warick v. 
 Bruce. 2 Maule & S. 205. Some of the English decisions, however, 
 deny that crops are personal property, and affirm that they cannot 
 be transferred except as real estate. Emmerson v. Heelis, 2 Taunt. 
 38; Earl of Falmoutli v. Thomas. 1 Cromp. & M. 89; 3 Tyrw. 963. 
 
 79 Northern v. State, 1 Ind. 113; Hartwell v. Bissell, 17 Johns. 12S; 
 Coombs V. Jordan. 3 Bland, 312, 22 Am. Dec. 236; Casilly v. Rhodes, 
 12 Ohio, 88; I'arham v. a'hompson, 2 J. J. Marsh. 159; Peacock v. 
 Purvis, 2 Brod. & B. 362; Bloom v. Welsh, 3 Dutch. 178; Crine v. 
 Tifts, 65 Ga. f)44; Thompson v. Craigmyle, 4 B. Mon. .391, 41 Am. 
 Dec. 240; Preston v. Ryan, 45 Mich. 174; Throop v. Maiden, 52 Kan. 
 2.58; Polley v. Johnson, 52 Kan. 478; Erickson v. Paterson, 47 Minn. 
 .525; Johnson v. Walker, 25 Neb. 736; Sims v. Jones. .54 Neb. 7(!9: Ed- 
 wards V. Thompson, 85 Tenn. 720, 4 Am. St. Rep. 807; contra, Norris 
 V. Watson, 22 N. H. 364, 55 Am. Dec. 160.
 
 430 TEKSONAL PROPERTY SUIiJECT TO EXECUTION. § lib 
 
 at least, their diminution in value, it has been held 
 that it is only when they have been reaped, or are fit 
 to be severed from the soil, that they can be deemed 
 personal property, and subject to levy and sale as 
 Buch.**" In some of the other states the legislature has 
 interposed by restricting their levy,'^* or their sale,**^ 
 to tiie time Avhen they have actually matured, or when 
 it is assumed that they will be so. 
 
 "Various growing vegetables, termed in law emble- 
 ments, and, properly speaking, the profits of sown land, 
 but extended in law not only to growing crops of corn, 
 but to roots planted, and other annual artificial profit, 
 are deemed personal property, and pass as such to the 
 executor or administrator of the occupier, if he die be- 
 fore he has actually cut, reaped, or gathered the same. 
 All vegetable productions are so classed when they are 
 raised annually by labor and manure, which are con- 
 siderations of a personal nature. At common law, 
 fructus industriales, as growing corn and other annual 
 produce which w^ould go to the executor upon death, 
 may be taken in execution." *^ "We have no doubt 
 that corn, or any other product of the soil raised an- 
 nually by labor and cultivation, is personal estate. It 
 is, tlierefore. liable to be seized on execution, and may 
 be sold as other personal estate." *'* A growing crop, 
 
 80 EHitborpe v. Reidesil. 71 Ga. 315; Burleigh v. Piper, 51 la. &49; 
 Heard v. Fairbauks, 5 Met. 111. 38 Am. Dec. 394; Penhallow v. 
 Dwight. 7 Mass. VA, 5 Am. Doc. 21. 
 
 «i Farmers' Bank v. Morris, 79 Ky. 157; Edwards v. Thompson. 
 85 Tenn. 720, 4 Am. St. Rep. S07. 
 
 S2 Gillett V. Truax, 27 IMinn. 528; Rosier v. Cornolison, 98 X. C. 
 SS3. 
 
 83 SuiiTIi V. Tritt. 1 Dev. & B. 241, 28 Am. Dec. .505; Poole's Case. 
 1 Salk. 3t«; Scorell v. Boxall, 1 YoxmRe & J. 398; Shanuon v. Jones, 
 12 Trod. 200. 
 
 6* Penhallow v. Dwight, 7 Mass. 35, 5 Am. Dec. 21.
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 440 
 
 raised annually by labor and cultivation, is, as respects 
 an execution against the owner, a mere chattel, and 
 subject as such to be taken and sold. A purchaser, 
 on such sale, acquires the rights and interests of the 
 defendant in execution to the crop, with the right of 
 ingress, egress, and regress, for the purpose of gather- 
 ing and carrying it away.**^ When a product of the 
 soil is claimed not to be subject to seizure and sale 
 under a fieri facias, the claim must be determined by 
 ascertaining whether such product is real or personal 
 estate; and this last question is, in turn, to be settled 
 by inquiring w^hether the product is chiefly the result 
 of roots permanently attached to the soil, or of the 
 labor and skill of the defendant in sowing and culti- 
 vating the soil. 
 
 The decisions holding certain crops to be personal 
 estate, and therefore subject to execution, have gener- 
 ally embraced nothing beyond those crops which, being 
 sown or planted, are capable of reaching perfection 
 within one year. But we think a crop which could not 
 reach perfection in less than tw^o or three years w ould 
 also be personal property, if its growth must be re- 
 garded as chiefly attributable to the skill and labor of 
 the owner. We think, too, that the purpose for which 
 the product is cultivated may be taken into considera- 
 tion in determining its character as real or personal 
 
 85 Shepard v. Philbrick, 2 Denio, 175; Stewart v. Doughty. 9 
 .Tohns. 108. At an early date, in Alabama, an execution could not be 
 levied on a fn"owing or unfathered crop. Adams v. Tanner. .^) Ala. 
 740; Evans v. Lamar, 21 Ala. 33.3. At a later period the common- 
 law rule prevailed: McKenzie v. Lampley, 31 Ala. .526. At present, 
 growing and ungathered crops are exempt from execution: Code of 
 Ala., sec. 2893. Statutes have also been enacted in Kentucky. Michi- 
 gan, and Tennessee, providing when crops may be taken in exe- 
 cution.
 
 441 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 113 
 
 estate. Thus fruit-trees, planted in an orchard to 
 permanently enhance the value of the real estate, ought 
 to be regarded in a very difierent light from trees grow- 
 ing in a nurseiy for llic purposes of sale, and which the 
 owner treats as merchandise, to be sold to whomsoever 
 may apply.**** But the general rule undoubtedly is, 
 that "growing trees, fruit, or grass, the natural produce 
 of the earth, and not annual productions raised by the 
 manurance and industry of man, arc parcel of the land 
 itself, and not chattels." •**' The fact that a crop is 
 produced by perennial roots is by no means conclusive 
 that it is to be ranked as real estate. The true test is, 
 whether the crop is produced chiefly by the manurance 
 and industry of the owner. Thus hop roots are peren- 
 nial, and, unlike potatoes, are regarded as real estate; 
 but the crop grown from such roots, being almost en- 
 tirely dependent for its value on manurance and indus- 
 try, is personal estate.*^* Hops growing and maturing 
 on the vines may therefore be levied upon and sold un- 
 der execution.**'** 
 
 A question of considerable importance and one not 
 so frequently decided nor so well discussed as to en- 
 able us to answer it with confidence is, whether fniit 
 growing upon trees, which confessedly constitute a part 
 
 R<"> Miller v. BakiT, 1 Met 27; Whitmarsli v. Walkor, 1 Met. 31.">. 
 
 ST (Jreon v. Armstronp;, 1 Denio, d')G: Toal v. Auty, 2 Brod. «& li. 
 99; Sloeiim v. Seymour, 3C- X. J. L. 138; Crosby v. Wailsworth. G 
 East. 002: Rodwell v. IMiillips. 9 ^fees. & W. 501; I'utney v. D:iy. 
 6 N. H. 430. 25 Am. Dec. 470; Olnistead v. Niles, 7 N. H. .a22; Bank 
 of I.ansingfburgh v. Crary. 1 Barb. 542; Adams v. Smith. Bveese, 
 283. 
 
 8« Latham v. Atwood. Cro. Car. olri; Auonymous Case. Freem. Ch. 
 210; Fisher v. Forbes, referred to 9 Vin. Abr. 373, pi. S2. See also 
 Evans v. Roberts, .5 Barn. & C. 829: Craves v. Weld, 5 Barn. & 
 Adol. 105. 
 
 8» Frank v. Harrington. 30 Barb. 415.
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 442 
 
 of the realty, is, before its severance therefrom, subject 
 to execution as personal property. The trees them- 
 selves are permanent accessions to the realty, and, in 
 an age when they bore their fruit without much aid 
 from the industry of man, there might be but little 
 doubt that such fruit was not, prior to its severance, 
 personal property, or subject to execution as such, ^^ 
 nor have we discovered any decision directly affirm- 
 ing that the common-law rule upon the subject has 
 been modified or rendered inapplicable by the change 
 which has taken place in the modes of cultivation. 
 When, however, it has been claimed that such fruit was 
 real property, and therefore that all contracts for its 
 sale while remaining on the trees were within the stat- 
 ute of frauds, and must be evidenced by a contract or 
 memorandum of sale, in writing, sufficient to sat- 
 isfy that statute, when a sale of land was in ques- 
 tion, the claim has, by the modern authorities, been 
 denied with respect to apples, peaches and fruits 
 of like character, to the successful production 
 of which for the market the labor of man is re- 
 garded as having a prominent part.'*^ Where these 
 views prevail, and fruits of this character may, there- 
 fore, be dealt with by their owner as personal property, 
 we see no reason why they may not as such be subject 
 to execution against him, and yet, as we have already 
 stated, we have not found any decision decLaring such 
 to be the case. Blackberries growing upon bushes 
 have been held not subject to execution either bv the 
 rules of the common law or under any statute author- 
 izing the levying upon and selling of growing crops; 
 
 00 Roo V. Commell, 1 Houst. 9. 
 
 91 Yulifcvicli V. Skiiinor, 77 Cal. 2.30: Pnrner v. Pioroy, 40 Md. 212. 
 17 Am. lU'iJ. 501, Smock v. Smock, 37 Mo. App. 50.
 
 443 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 113 
 
 and the court i)roposed the following test to aid in the 
 determination of the question, whether any given fruit 
 or crop was personal property, and, as sucli, subject to 
 sale under execution: "It is sometimes stated that the 
 test whether the unsevered product of the soil is an em- 
 blement, and as such, personal property, is whether it 
 is produced chiefly by the manurance and industry of 
 the owner; but while this test is correct as far as it goea, 
 it is incomplete. Under modern improved methods all 
 fruits are cultivated, the quality and quantity of the 
 yield depending more or less upon the annual expendi- 
 ture of labor upon the trees, bushes, or vines; but it 
 has never been held that fruit growing upon cultivated 
 trees was subject to levy as personal property. No 
 doubt all emblements are produced by the manurance 
 and labor of the owner, and are called 'fructus industri- 
 ales' for that reason; but the manner, as well as pur- 
 pose, of planting is an essential element to be taken 
 into consideration. If the purpose of planting is not 
 the pennanent enhancement of the land itself, but 
 merely to secure a single crop, which is to be the sole 
 return for the labor expended, the product would natu- 
 rally fall under the head of 'emblements.' On the 
 other hand, if the tree, bush or vine is one which re- 
 quires to be planted but once, and will then bear suc- 
 cessive crops for years, the planting would be naturally 
 calculated to permanently enhance the value of the 
 land itself, and the product of any one year could not 
 be said to essentially owe its existence to labor ex- 
 pended during that year; and hence it would be classed 
 among 'fructus naturales,' and the right of emblements 
 would not attach."" This classification is, of course, 
 
 »2 Darliugton on Personal Property, 26.
 
 S 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 444 
 
 more or less arbitrary, but it is tlie one uniformly 
 adopted by the courts, unless hops be an exception, 
 and it is the only one which will furnish a definite and 
 exact rule. Blackberry bushes are perennial, and when 
 planted once yield successive crops. They grow wild, 
 but, like every other kind of fruit or berry, are improved 
 by cultivation. The quantity and quality of the yield 
 is largely dependent ux^on the amount of annual care 
 expended upon them, but the difference in that respect 
 between them and other fruits is only one of degree. It 
 seems to us quite clear that, at common law, such ber- 
 ries, while growing upon the bushes, were not subject 
 to levy on execution as personal property, and we 
 have no statute changing the rule. Evidently the main 
 purpose of 1878 Gen. Stats., c. 66, sec. 315, was, while 
 permitting immature growing crops to be levied on, to 
 prohibit their sale until they were ripe and fit to be 
 harvested." "^ 
 
 Some classes of property, which, under ordinary cir- 
 cumstances, would be regarded as real estate, may, 
 under peculiar circumstances, acquire or retain the 
 character of personal estate. Thus, a building or 
 fence placed on lands by a tenant may, by agreement 
 between him and his landlord, retain its character of 
 personalty.'^^ So the owner of land may, by a trans- 
 fer in writing, sell the trees thereon, and thus separate 
 them from the realty. Or grass or trees may belong 
 to a tenant according to the terms of his lease. In 
 such cnse. they nre personal property, and liable to be 
 seized and sold under an execution against their 
 
 »3 Sparrow v. Tond. 49 Minn. 412. P,2 Arn. St. Rop- •">"'l. 
 94 Sheldon v. Edwards. 35 N. Y. 279; Ford v. Cobb, 20 N. Y, 344; 
 Smith V. Benson, 1 Hill, 176.
 
 il5 PERSONAL rilOl'EUTY SUBJECT TO EXECUTION. § 113 
 
 owner.^-' It seems to be conceded that where lands are 
 leased to a professional yaideucr or nurseryman, for- 
 the purpose of carrying on his trade, the shrubs, trees, 
 and flowers which he may plant and have growing on 
 such lands are regarded as trade fixtures. They are, 
 therefore, during the continuance, of his term, to be 
 treated as personal property."* In Louisiana, a grow- 
 ing crop is regarded as part of the realty when it be- 
 longs to the owner of the land; but when the property 
 of a lessee, it is a mere chattel, and is subject to execu- 
 tion as such.'^'^ 
 
 Where a mortgage is given upon real estate it does 
 not affect the right of the mortgagor to deal with the 
 crops growing thereon as personal property. He may 
 transfer or encumber them either voluntarily or invol- 
 untarily. If they are seized upon execution, the rights 
 of the seizing creditor become paramount to those 
 of the mortgagee. If the latter, upon showing that the 
 mortgagor is insolvent, obtains a receiver of the rents 
 and profits, the appointment of such receiver cannot 
 operate retroactively so as to vest in him a right to 
 crops previously attached. In such cases the rights of 
 the receiver seem not to relate to the date of the mort- 
 gage, but to be such only as were vested in the mort- 
 gagor at the time of the appointment."® 
 
 »5 Smith V. Jpnks, 1 Denio. 580, affirmed as Jenks v. Smith. 1 N. Y. 
 90; Wintermute v. Light, 46 Barb. 278. One who, under a timber 
 lease, has the right to cut and remove timber, has a mere chattel 
 interest, Avhich is subject to sale. as personalty. Caldwell v. Fifield, 
 4 Zab. 101. 
 
 »<5 Penton v. Robart, 2 East. 91: Wyiulliam v. Way, 4 Taunt. 31fi: 
 Maples V. Millon, 31 Conn. ,")98: Miller v. Baker, 1 Met. 27. For 
 essay on growing crops, see 7 Chic. L. N. 391. 
 
 07 Torche v. Bodin, 28 La. Ann. 7(51 ; Pickens v. Webster, 31 La. 
 Ann. 870. 
 
 98 Favorite v. Deardolf, 84 Ind. G5G; Kider v. Vrooman, 12 Hun, 
 29a.
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 446 
 
 While growing crops are generally subject to execu- 
 tion as personal estate, it may happen that the interest 
 of the defendant therein at the time of the levy is not 
 such as to warrant a levy thereon. Thus, in Indiana, 
 where lands are held by husband and wife as tenants 
 by the entireties, and he is without power to sell or en- 
 cumber them, the crops raised thereon are held not to 
 be subject to execution against him.**^ Whether they 
 are subject to execution against either of the spouses 
 must, in our judgment, depend upon whether or not 
 he or she may voluntarily dispose of them, or of some 
 interest in them, without the concurrence of the other. 
 Where, as at common law, a husband has a right to the 
 possession and control of the property during the joint 
 lives of himself and his wife, and to receive the rents 
 and profits thereof, his life interest and his right to 
 growing crops, as they were subject to his voluntary 
 disposition, must have been subject to execution with 
 the limitation that a sale under execution, like his vol- 
 untary transfer, could not prejudice the rights .of his 
 wife in the event of her surviving him. But if, either 
 by a statute enacted in the state or by the con- 
 struction by its courts of the common law, a husband 
 cannot voluntarily dispose of growing croj^s without 
 the consent of his wife, because they hold the lands 
 upon which they grew by the entireties, they are not 
 subject to execution against either of the spouses.**" 
 In some of the states a conclusion has been reached 
 that, under their statutes, a husband and wife must be 
 regarded as tenants in common of the products of the 
 
 B9 Patton V. Rankin, C8 Ind. 245, 34 Am. Rep. 254. 
 
 If" riielps V. Simons, 159 Mass. 41 5. 38 Am. St. Rep. 4.30; Dickey 
 V. Converse (Mich.), 7G N. W. 80; Hiles v. Fisher, 144 N. Y. 306, 43 
 Am. St. Rep. 702.
 
 447 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 113 
 
 land held by tbp entireties, witli power to each to dis- 
 pose of his or licr moiety during their joint lives. 
 Where such is the law, the interest of each is subject 
 to execution aj;ainst liim or her.^*^^ 
 
 Wh(U'e crojjs have been raised by one person on the 
 land of another, under a lease or contract by which he 
 and the owner of the land share in such crops, there is 
 some doubt concerning the nature of the interests of 
 the parties, and tlierefore some ditticulty in determin- 
 ing when and against whom they are subject to execu- 
 tioii. They are in some instances subject to execution 
 against the land-owner only, in other instances against 
 the cropper only, and in still other instances against 
 both the land-owner and the cropx^er. In by far the 
 greater number of cases the contract or leasing is such 
 that both parties at all times have an interest in the 
 crops prior to their division as tenants in common 
 thereof; '*^^ and where this is so, the interest of each is 
 necessarily subject to an execution against him. The 
 question is one of intention, to be determined from the 
 whole contract. If the contract shows that it was the 
 intention of the parties to divide the specific products 
 of the premises, the intention would seem to be mani- 
 fest that each should at all times prior to the division 
 
 101 Bnttlar v. Rnsonblath. 42 N. .T. Eq. 051, 59 Am. Rep. r>2; Hlles 
 V. Fislior. 144 N. Y. 30G. 43 Am. St. Rop. 7(52. 
 
 102 Freeman on Cotenancy and Partition, sec. 100; Foote v. Col- 
 vin. 3 .Johns. 210. 3 Am. Dec. 478; De Mott v. Hagerman. 8 Cow. 
 220. IS Am. Dec. 443; Putnam v. Wise, 1 Hill, 234, 37 Am. Dec. 
 309; Wentworth v. Portsmouth R. R., 55 N. H. 540; Guest v. Op- 
 dyke, 31 N. J. L. 552; Cooper v. McGrew, 8 Or. 327; Esdon v. Col- 
 burn. 28 Vt. 031, 07 Am. Dec. 730; Bernal v. Hovious. 17 Cal. 541. 
 79 Am. Dec. 147; Delany v. Root, 99 Mass. 546; Johnson v. Hoff- 
 man, 53 Mo. 504; Lowe v. Miller, 3 Gratt. 205. 40 Am. Dec. 188; 
 Thompson v. Ma whinny, 17 Ala. 302, 52 Am. Dec. 176; Schell v. 
 Simon, 00 Cnl. 204.
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 44a 
 
 have a title to his moiety of such products. If, on the 
 other hand, the lease or contract contains words im- 
 porting a present demise and a reservation of a portion 
 of the crop as rent, the parties seem to stand toward 
 each other in the relation of debtor and creditor, the- 
 debt being payable in produce; and the tenant is the 
 sole owner of such produce until the part due the land- 
 lord is segregated and paid to him.^^^ Where this is 
 the case the crops are subject to an execution against 
 the tenant, but to none against the landlord.^^* The 
 leasing or contract, taken as a whole, may, in sub- 
 stance, provide that the cropper give his services in 
 consideration of receiving a portion of the crop. In 
 this event he is regarded as having possession of the 
 land merely for the purposes of cultivating and har- 
 vesting his crop; the obligation of the landlord to him 
 is in the nature of a debt merely, and he has no title 
 to any part of the crop until its segregation and pay- 
 ment to him. His interest is not subject to execu- 
 tion.^"^ The difference between a cropper and a ten- 
 
 103 Deaver v. Rice, 4 Dev. & B. 431. 34 Am. Dec. 3SS; Woodruff v. 
 Adams, 5 Blackf. 317, 85 Am. Dec. 122: Harrison v. Ricks, -71 N. C. 
 7; Walls v. Preston, 25 Cal. 59; Dixon v. Niccolls, 39 111. 372, 89 
 Am. Dec. 312; Sar.ueut v. Courrier, 66 111. 245; Front v, Hardin, 56 
 Ind. 165: Townsend v. Isenberger. 45 Iowa, 670; Warner v. Abbey, 
 112 Mass. 355; Darling v. Kelly, 113 Mass. 29; Dockbam v. Parker,. 
 8 Greenl. 137, 23 Am. Dec. 547. 
 
 104 W^altson v. Bryan, 64 N. C. 764. 
 
 105 Brazier v. Ansley, 11 Ired. 12, 51 Am. Dec. 408; Jeter v. Penn, 
 28 La. Ann. 230, 26 Am. Rep. 98; McNeely v. Hart. 10 Ired. 63. 51 
 Am. Dec. 377; State v. Burwell, 63 N. C. 661; Porter v. Cbandler. 
 27 Minn. 301. 38 Am. Rep. 293; Hammock v. Creedmore, 48 Ark. 
 264; Christian y. Crocker, 25 Ark. 327, 99 Am. Dec. 22:3; Bryant v. 
 Pugh, 86 Ga. 525; Appling v. Odiim, 46 Ga. .583; Chase v. McDon- 
 nell, 24 111. 236; Edgar v. .Tewell, 34 N. J. L. 259; Andrew v. New- 
 comb, 32 N. Y. 417; McCormick v. Skyles. 168 Pa. St. 590; Adams 
 V. McKesson. .53 Pa. St. 81, 91 Am. Dec. 183; Consolidated etc. Co. v. 
 Hawley, 7 S. D. 229.
 
 449 TERSOXAL PROPERTY SUBJECT TO EXIXUTION. § ]13 
 
 ant is that the latter has an estate or interest in real 
 property demised to him, entitlinjj;- him to the posses- 
 sion thereof for the time and in the manner designated 
 in the lease, and it is not material whether the con- 
 tract giving him his rights is called a lease or not. It 
 is to be adjudged by its legal effect, and not by its 
 name only. "A cropper has no estate in the land; that 
 remains in the landlord. Consequently, although he 
 is in some sense a possessor of the crop, it is only the 
 possession of a servant, and is in law that of the land- 
 lord. The landlord must divide to the cropper his 
 share. In short, he is a laborer receiving pay in his 
 share of the crop." *^^ The owner of the land may al- 
 ways, it has been held, by apt words in his contract 
 or lease, provide that the title to all the crops raised 
 shall remain in him until the tenant's or cropper's part 
 shall be segregated and delivered to him; and where 
 such words are employed, no one other than the land- 
 owner has any interest in the crops subject to seizure 
 and sale under execution.^"'' There are unquestion- 
 ably many cases which make no distinction between a 
 tenant and a cropper, and which affirm that a coten- 
 ancy exists between a landlord and the person who 
 has cultivated or produced crops on his land under a 
 contract by which he should have a share therein, 
 though such contract manifestly gives to the person 
 
 jort Harrison v. Kicks, 71 N. C. 11; Steel v. Frick, 56 Pa. St. 172: 
 Adams v. McKesson, 53 Pa. St. 81. 91 Am. Dec. 183; Ponder v. 
 Rhea, 32 Ark. 435; Brown v. Coats, 56 Ala. 439; Gray v. Robinson, 
 (Ariz.) 33 Pac. 712. 
 
 107 Wentworth v. Miller. 53 Cal. 0; Ponder v. Rhea, 32 Ark. 435; 
 Esdon V. Colburn, 28 Vt. r>31; Moulton v. Robinson, 27 X. H. 550; 
 Kelley v. Weston. 20 Me. 232; Howell v. Foster, 65 Cal. 169; Smith 
 V. Atkins. IS Vt. 461; Andrew v. Newcomb, 32 N, Y. 417. 
 Vol. I.— is
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 450 
 
 producing the crops a right of possession, and to all 
 intents and purposes makes him a tenant.^"^ 
 
 In many of the states are statutes containing pro- 
 visions respecting mortgages of chattels, including 
 crops, requiring such mortgages to be executed and 
 recorded in the manner designated in such statutes, 
 and pronouncing them to be otherwise void; and con- 
 tracts entered into between landowners and persons 
 leasing their lands, or otherwise accorded a right to 
 cultivate them, and providing that the landowner shall 
 remain the owner of the crops until his rent has been 
 paid or his share delivered to him, have been closely 
 scrutinized for the purpose of determining whether 
 they are not chattel mortgages in disguise. As we un- 
 derstand the decisions upon this subject, where these 
 statutes are drawn in question, it becomes necessary 
 to inquire whether the relation between the parties is 
 that of landlord and tenant, or landowner and cropper, 
 for, if the relation be the former, and the object of any 
 provisions seeking to retain or reserve to the landlord 
 title to the crops, or some portion thereof, is to secure 
 him thfe payment of something due to him, then, un- 
 less the contract is so executed that it may be held 
 valid as a crop or chattel mortgage, the whole of the 
 crop is subject to execution under a writ against the 
 tenant. It is not material in what form the contract 
 has been put, nor what legal effect the parties have by 
 it attributed to its provisions; for if it is in substance 
 a lease, the crops produced are the tenant's, and may 
 be seized under execution against him until he has 
 turned over to the landlord the share reserved by 
 
 los Williams v. Nolen. 84 Ala. 1G7; Ponder v. rJion, .32 Ark. 4.3.'): 
 Fiquot V. Allison, 12 Mifh. 328. 86 Am. Dec. '>4: Betls v. Ratliff. ."^O 
 Miss, ani: Daniels v. Brown. 34 N. H. 454, G9 Am. Dec. 505; Mc- 
 Casl.an v. Nance, 46 S. C. 568.
 
 451 PERSONAL PROPEllTY SUBJECT TO EXECUTION. § 113 
 
 j^-jjj io» rj^2ie parties may assume toward each other 
 
 109 Farnum v. Heffner, 70 Cal. 175, 12 Am. St. Rep. 174; Stockton 
 etc. Soc. V. ruivis, 112 Cal. 23G, 53 Am. St. liep. 210; Bailey v. Fille- 
 brown, 9 Me. 12, 23 Am. Dee. o21); Synionds v. Hall, 37 Me. 354. 59 
 Am. Dec. 53; Koss v. Swaringer. 9 Ired. 4Sl. 
 
 In the case of Stockton etc. Soc. v. Purvis, 112 Cal. 230, 53 Am. 
 St. Hep. 210, it appeared tliat a laudowuer outcred into a contract 
 with one Dallns, letting land to the latter for the term of one year 
 upon an oral agreement to farm the land at an aiiuual cash rental 
 of two thousand dollars, and that the title to the crop should, durinis? 
 the term, remain in the landowner; that the crops were to be hauled 
 to the nearest warehouse and stored in his name and by him sold; 
 that out of the proceeds he should retain the rent stipulated for and 
 pay the residue to Dallas, but that no part of the crop should be 
 in any way subjcL-t to his disposition. He entered into possession 
 of the land and planted a crop of wheat, which, while growing, 
 was attached as his property. Thereupon the landlord brought an 
 action against the oflicer levying the attachment for the conversion 
 of the property. The appellate court said: "The legal soundness 
 of pl.nintiff's claims is wholly dependent upon the true construction 
 of this contract of lease, and the general rules of law for the in- 
 terpretation of contracts are applicable here. The fact that it is a 
 contract between a lessor and a lessee of land, for the farming 
 thereof, in no wise proves it an exception to the application of the 
 general rules of interpretation; and the first and controlling rule 
 for such interpretation is. What was the intention of the parties at 
 the time of the making of the contract? Another rule of interpreta- 
 tion, equally controlling and binding, is that such intention must, 
 be gathered from the contract taken as a whole, considering all its 
 provisions together, and not from any one clause considered as 
 standing alone. Plaintiff insists that the title to this growing crop 
 was in it. and points to the clause in the contract to support its 
 contention which provides: 'It is understood and agreed between 
 plaintiff herein and Robert Dallas that the title to said crops raised 
 thereon during such term is to remain in said plaintiff.' Testing 
 this contract by this clause alone, plaintiff's position is impregna- 
 ble. Closing our eyes to all other provisions, we would be bound 
 to hold the title to be in plaintiff. But this court is not authorized 
 by the rules of law to measure the intentions of these contracting 
 parties in any such manner. No clause in a contract in terms lo- 
 cating the title to the property forming the subject- matter of the 
 contract in one of the parties is controlling upon a court, as against 
 the provisions of the contract, taken as a whole, locating the title 
 In the other party. There is nothing in the name given an instru- 
 ment whirl! will be in any way binding or controlling upon the 
 court. Calling a contract a lease or a sale will not make it a lease
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 452 
 
 sncli reciprocal obligations as give them not only a 
 
 or a sale. The agreement, whatever it may be. when coming before 
 a court, will be named accoreliug to its provisions, and any technical 
 christening of it by the parties cannot control its true interpreta- 
 tion. As was said In Park etc. Co. v. White River etc. Co., 101 
 Gal. 39, referring to a certain written Instrument: 'This paper was 
 not a lease. Calling it a lease did not establish the fact. This is 
 peculiarly a case where there is nothing in a name, for the con- 
 tents of the paper determine its true character.' Again in Heryford 
 v. Davis, 102 U. S. 23.5, in speaking as to the true construction of a 
 contract, the court said: 'The answer to this question is not to be 
 found in any name which the parties may have given to the instru- 
 ment, not alone in any particular provision It contains, discon- 
 nected from all others, but in the ruling intention of the parties, 
 gathered from all the language they have used. It is the legal 
 effect of the whole which is to be sought for. The form of the in- 
 strument is of little account.' In Putman v. Wise, 1 Hill. 246, 37 
 Am. Dec. 309, the court quotes from AVoodfall's Landlord and Ten- 
 ant, where the author says: 'The most proper and authentic form of 
 words may be overcome by a contrary intent appearing in the deed 
 of demise.' Keeping the foregoing principles in view, let us weigh 
 and measure this contract by considering all its parts together. 
 Plaintiff leased this land for a cash rent of two thousand one hun- 
 dred and forty dollars. There was an express promise to pay this 
 amoimt of money, and its payment was in no way dependent upon 
 the raising of any crop. There was an independent personal lia- 
 bility. The crops may have proved a total failure, and still the 
 money called for by the contract was a present binding liability. 
 There is not even a provision in the contract that the title to the 
 crops should return to the lessee upon the payment of the rent 
 money. Under plaintiff's contention, this money may have been 
 paid within a feAv days after the execution of the lease, and still the 
 crops would have remained the lessor's property. According to 
 plaintiff's construction of the contract, it owned both the money 
 demand for the rent and the growing crop. It could have sold the 
 demand for full value and, at the same time, have mortgaged the 
 crop, or even sold it, giving perfect title to both demand and crop. 
 Plaintiff may have transferred or collected its claim, and still the 
 crop of growing grain might have been sold under an attachment 
 and execution issued at the hands of its creditors. All these things 
 could have happened if plaintiff's contention be true. We think 
 that such was not the intention of the parties, certainly not the in- 
 tention of the lessee. Where a person pays cash rent for the ex- 
 clusive use of a tract of farming land, with the intention and for 
 the express i)urpose of raising croT)s of grain thereon, it would 
 seem that such crops would belong to the lessee. Certainly, that
 
 453 rEilSOXAL PllOPKRTV SUliJECT TO KXECUTION. § 113 
 
 riglit to share iu the protits of their veiiiure, but also 
 
 should l>p the construction of the contract, unless reasons for a dif- 
 ferent construction stand out in bold relief upon its face, and they 
 do not present tliemselves here. It further appears that the uraiu 
 was to be hauled to a certain warehouse when harvested, and 
 thereupon sold by plaintiff, and the proceeds applied tirst, to the 
 payment of its cash rent of two thousand one hundred and forty 
 dollars, and the balance. If any. to po to the lessee. It would l)e a 
 peculiar construction of this contract, and even an al^surd one, to 
 hold that plaintiff was to sell his own crop of grain, and apply the 
 proceeds to tlie paj'uieut of a claim owned and held by it a^^ainst 
 its lessee. This clause of the contract plainly indicates an attempt 
 by the lessor to hold the crop, when harvested, as security for the 
 rent. Takiutr the whole contract tofiether, it clearly indicates the 
 purpose of these parties was to create a lien upon the {jrowinj; crop 
 to secure the payment of the cash rent; and any direct statement 
 in the contract itself that such was not the purpose, or that the title 
 to the crop was to remain in the lessor, must go down as against 
 the plain intention of the parties, as evidenced by the entire con- 
 tract when held before us by its four corners for consideration. In 
 the examination of the question here presented we are not at all 
 loth to arrive at the conclusion reached. Under the law of this 
 state, there is no reason why a transaction of the character here 
 presented should ever have been entered into. It was secret in 
 every respect. It was Dot even iu writing. As indicated by the 
 amount of rent to be paid, the lessee was farming a large tract of 
 plaintiff's land. It undoubtedly appeared to the public that he had 
 an interest, at least, in the crops which he ■u'as cultivating. Under 
 this contract of lease, as plaintiff asks to have it construed, the 
 dealer who furnished the sacks to sack the grain, and the man who 
 furnished the labor and machinery to harvest it, could not attach it 
 for the labor and materials furnished. The public should not be 
 dealt with in this way, and the law is not favorable to any such 
 secret transactions. Again, there was no honest excuse for it, for 
 the plaintiff could well have taken a chattel mortgage upon the 
 growing crop to secure his rent, and thus the world would have 
 had notice of the financial standing of the lessee, and could have 
 dealt with him in the light of day with open eyes. By reason of 
 the opportunities for fraud presented by this character of contract, 
 courts are inclined to scrutinize them closely, and, as we have 
 stated, will not be concluded from such scrutiny by any name 
 given the instrument, or by any single provision contained therein. 
 It is the legal effect of the contract as an entirety tliat points our 
 judgment. The language of this court in Palmer v. Howard, 72 Cal. 
 293, 1 Am. St. Rep. GO. is full of meaning, and sheds a flood of liglit 
 upon this question of construction. It is there said: 'But, in apply-
 
 § 113 PERSONAL PROPERTY SUBJECT TO EXECUTION. 454 
 
 to make tlieir rights and liabilities those of partners, 
 
 ins: this rule, it must be remembered in jieneral that the policy of 
 the law is airaiust upholding secret liens and charges to tlie injury 
 of innocent purchasers or incumbrancers for value, and, in parti- 
 cular, that mortgages of personal property are permitted only in 
 certain specified cases, and then only upon the observance of cer- 
 tain formalities, designed to secure good faith and to give notice to 
 the world of the character of the transaction. These provisions as 
 to mortgages cannot be evaded by any mei'e shuffling of words. 
 When it is clear from the whole transaction that, for all practical 
 purposes, the OAvnership of property was intended to be trausfen-ed, 
 and that the seller only intended to reserve a security for the price, 
 any characterization of the transaction by the parties, or any denial 
 of its legal effect, will not be regarded. The question, it is true, is 
 one of intention; but the Intention must be collected from the whole 
 transaction, and not from any particular feature of it.' See. also. 
 Walls V. Preston, 25 Cal. 63. For the foregoing reasons we con- 
 clude this contract was an attempt to obtain the advantages of a 
 chattel mortgage without complying with the provisions of the 
 statute upon that subject. As a condition precedent to the begin- 
 ning of this action, i^laintiff made a demand upon the attaching 
 officer for the return of the property attached. It is noAV claimed 
 by defendant that the demand was materially defective; but with- 
 out passing upon that question we are able to say the written de- 
 mand is pregnant with meaning, as showing the interest claimed 
 by plaintiff in this grain. In that demand, it is clearly shown what 
 plaintiff considered tl\e status of this property to be, and also the 
 construction put xipon this contract by it. In its demand upon the 
 sheriff, plaintiff did not even claim to be the owner of the prop- 
 erty, but simply asserted a lien thereon. The demand asserts that 
 said crops 'were, and are now, subject to the lien of the Stockton 
 Savings and Loan Society for rent reserved, to the amount of two 
 thousand one hundred and forty dollars.' Above every one else, 
 the plaintiff should know what its own intentions were in entering 
 into this contract. There are some cases which would seem to be 
 opposed to the views here expressed, notably Smith v*. Atkins, 18 
 Vt. 401; Esdon v. Colburn, 28 Vt. 031, 67 Am. Dec. 730, and Andrew 
 V. Newcoml), 32 N. Y. 417. With these cases we will not here deal. 
 Possibly, to a large degree, those decisions were made from ne- 
 cessity, by reason of the absence of any chattel mortgage act, but 
 we pass them by, and come to a consideration of the cases found 
 in our own reports upon this question. Tlie first and principal case 
 In this state, and which at first glance seemingly looks the other 
 way from the views we have expressed, is Howell v. Foster, 65 
 Cal. 169. The conclusion there arrived at is based upon the deci- 
 sions we liave cited from otlier states; but, whatever the court
 
 455 PKIISONAL rUOPERlY SUBJECT TO EXECUTION. § 114 
 
 in which event their property will be subject to execu- 
 tion as other partnership property/*'* 
 
 § 114. Fixtures.— It was formerly thonjjht that fix- 
 tures "* were not liable to be taken in execution. But 
 it is now well settled that they are subject to be 
 made to contribute to the payment of the debts of 
 their owner.**^ The chief difficulty is in deciding what 
 is a fixture. The tests for makinu: a correct decision 
 cannot be fully stated otherwise than by writing a 
 treatise on the subject of fixtures. This we shall not 
 here undertake to do. We shall, nevertheless, give a 
 few of the more prominent tests formulated and ap- 
 
 might do if another case with identical facts to those there shown 
 was proscntcd before it, it is unnecessary to say, for this case is 
 different in material respects from Howell v. Foster, 65 Cal. 109. 
 That was not a case of cash rent. Indeed, there is no agreement 
 to pay any rent whatever. The word 'rent,' or its equivalent, is 
 not found at any place in the contract. It is practically a contract 
 for hiring, the wages of the men performing tlie labor and cultivat- 
 ing the land to be paid by three-fourths of the grain raised upon 
 the land, delivered to him by the owner, after deducting certain 
 moneys for advances previously made. Went worth v. Miller, 53 
 Cal. 9; Sunol v. MoUoy, 63 Cal. 369; and Blum v. McIIugh, 92 Cal. 
 497, which are cited in respondent's brief, are not in point upon the 
 question here involved." 
 
 no Reynolds v. Tool. 84 X. C. 37, 37 Am. Rep. 607. note: Mf-Crary 
 V. Slaughter, .58 Ala. 2.30: Christian v. Crocker. 25 Ark. 327: Donnell 
 V. Ilarshe, 67 Mo. 170: Holifield v. White, 52 Ga. 567: :Musser v. 
 Brink, 68 Mo. 242; Autrey v. Frieze, 59 Ala. 587; Adams v. Carter, 
 53 Ga. 100. 
 
 111 We use the term "fixture" according to the definition given 
 in Amos and Ferard on Fixtures, '"as denoting tliose personal chat- 
 tels whicli have been annexed to the land, and which may be after- 
 ward severed and removed by the party who has annexed them, or 
 his personal represeutative. against the will of the owner of the 
 freehold." See Hallen v. Rundtr, 1 Cronip. M. & R. 270; 3 Tyrw. 
 959. 
 
 112 Amos and F'erard on Fixtures, 321; Brown on Fixtures, sec. 
 193; I'oole's Case, 1 Salk. 308; Pitt v. Slicw. 4 r.arn. & Aid. 207; 
 Lemar v. ]Miles. 4 Watts. 330: Doty v. Gorham, 5 Tick. 4S7. 10 Am. 
 Dec. 417; Ouibony v. Jones. 19 X. Y. 234.
 
 § 114 PERSONAL PROPERTY SUBJECT TO EXECUTION. 45fl 
 
 plied in some of the recent decisions. Where the ques- 
 tion arose between a mortgagee and a grantee of the 
 mortgagor, the court said that, "in order to determine 
 whether a thing is a fixture or not, we must loolv to the 
 manner of its annexation, the intention of the person 
 who made the annexation, and the purpose for which 
 the premises are used." ^*^ "The united application 
 of three requisites is regarded as the true criterion 
 of an immovable fixture: (1) real or constructive an- 
 nexation to the freehold; (2) appropriation or adapta- 
 tion to the use or purpose of that part of the realty 
 with which it is connected; (3) the intention of the 
 party making the annexation to make the article a 
 permanent accession to the freehold. According to the 
 elementarA' rule of the common law, whatever is an- 
 nexed to the freehold becomes, in legal contemplation, 
 a part of it, and is thereafter subject to the same in- 
 cidents and conditions as the soil itself. But the diver- 
 sity of trade and the development of manufactures re- 
 quired that the strict rules of the common law be meas- 
 urably relaxed, and it may now be said that the nature 
 of the articles, and the manner in which they are an- 
 nexed, and the intention of the party making the an- 
 nexation, together with the policy of the law, are con- 
 trolling factors in determining whether an article, 
 which may or may not be a fixture, becomes part of 
 the realty by being annexed to the freehohl. The pur- 
 pose and intention of the parties, the effect and mode 
 of annexation, and the public policy in relation thereto, 
 are all to be considered." ^'"^^ 
 
 In considering the decisions maintaining that the in- 
 tention of the party making the annexation is often 
 
 113 Lavenson v. Standard S. Co.. 80 Cal. 245, 13 Am. St. Rep. 147. 
 113a Burkley v. Forkner, 117 Ind. 180.
 
 457 PERSONAL I'ROPERTi SUBJECT TO EXECUTION. § 114 
 
 controlling, the suprem<,' judicial court of Massachu- 
 setts added this caution: "These cases seem to recog- 
 nize the true principle on which the decisions should 
 rest, only it should be noted that the intention to be 
 souj;ht is not the undisclosed i»ui-i)ose of the actor, but 
 the intention implied and manifested by his act. It is 
 an intention which settles, not merely his own rights, 
 but the rights of others who have, or who may acquire, 
 interests in the property. They cannot know his se- 
 cret purpose; and their rights depend, not upon that, 
 but upon the inferences to be drawn from what is ex- 
 ternal and visible. In cases of this kind, every fact 
 and circumstance should be considered which tends to 
 show what intention, in reference to the relation of the 
 machine to the real estate, is properly imputable to 
 him who put it in position. Whether such an article 
 belongs to the real estate, is primarily and usually a 
 question of mixed law and fact. But the principal 
 facts, when stated, are often such as will permit no 
 other presumption than one of law. It is obvious that 
 in most cases there is no single criterion by which we 
 can decide the question. The nature of the article, 
 and the object, the effect, and the mode of its annexa- 
 tion, are all to be considered. In this commonwealth 
 it has been said that 'whatever is placed in a building, 
 subject to a mortgage, by a mortgagor or those claim- 
 ing under him, to carry out the purpose for which it 
 was erected, and permaui^ntly to inci-ease its value for 
 occupation or use, although it may be removed with- 
 out injury to itself or the building, becomes part of the 
 realty.' " "* 
 
 "4 Hopewell Mills v. Taunton S. B., 150 Mass. 519, 15 Am. St. 
 Rep. 235.
 
 § ] 14 PERSONAL FROPERTY SUBJECT TO EXECUTION. 458 
 
 ''One of the tests of whether a chattel retains its 
 character or becomes a fixture is the uses to which it 
 is put. If it be phiced on the kind for tlie purpose of 
 improving it, and to make it more valuable, that is 
 evidence that it is a fixture." *^® "There must be ac- 
 tual annexation, with an intention to make a perma- 
 nent accession to the freehold, but it is not necessary 
 that there be an intention to make the annexation per- 
 petual. A test so severe would be impracticable in 
 its application. The intention must exist to incorpo- 
 rate the chattels with the real estate, for the uses to 
 which the real estate is appropriated, and there must 
 be the presence of such facts and circumstances as do 
 not lead to, but repel, the inference that it is intended 
 to be a temporary annexation.-' ^^^ "In using the term 
 'fixture,' we of course use it in its legal sense, as some- 
 thing so attached to the realty as to become, for the 
 time being, a part of the freehold, and as contradis- 
 tinguished from a mere chattel." ^^"^ 
 
 The test of physical attachment is often spoken of 
 as materia], if not conclusive, and material it often is,, 
 and conclusive it may occasionally be. Thus, if a chat- 
 tel is so physically incorporated in, and made a part 
 of, the realty that it cannot be detached or removed 
 witliout the substantial destruction of such realty, or 
 of some structure wliich is confessedly a part thereof, 
 then such chattel has become an irremovable fixture, 
 whether attached by the owner of the realty or by a 
 tenant or licensee from him. Thus a baker's oven, 
 made of brick, by a tenant of the leased building, and 
 
 115 Atchison o.tc. R. R. Co., 42 Kan. 28. 16 Am. St. Rep. 471; 
 Winslow V. Bromioh, M Kan. 300, 45 Am. St. Rep. 285. 
 
 iisFeder v. Van Winkle, .o?, N. J. Eq. 370. .51 Am. St. Rep. 628. 
 117 Carlin v. Ritter, 68 Md. 478, 6 Am. St. Rep. 4(;7.
 
 451) PERSONAL PROPERTY SUBJECT TO EXECUTION. § 114 
 
 SO united with it tliat the two are inseparable with- 
 out the destruction of the one and substantial injury 
 of the other, is a fixed and permanent structure, and 
 not removable by the tenant, irrespective oi what his 
 actual intention may have been when he constructed 
 it.'** In the vast majority of cases, however, what 
 is claimed to be a fixture is not so attached that its re- 
 moval will work an}^ substantial detriment to the 
 realty, and leave it of less value than before the an- 
 nexation was made. Ilence, the test of physical an- 
 nexation is dihicult of application, and there is a strong' 
 tendency on the part of the courts to treat it as by no 
 means conclusive, and to look upon it as material in 
 so far only as it aids in ascertaining the intention of 
 the party in making the annexation, and, where it 
 clearly appears that the intention was to make the 
 annexation temporary, to give effect to such intention 
 rather than to the mode of annexation,*''* nor, on the 
 other hand, is the absence of physical annexation to 
 the soil conclusive that the chattel has not become a 
 fixture, for fences which merely lie upon the ground, 
 and which, therefore, can be removed without disturb- 
 ing it, or anything attached to it, are, nevertheless, 
 ordinarily fixtures/"** and so are pieces of machinery, 
 though entirely detached, if they are essential parts of 
 a manufacturing or other plant, which as a wliole has 
 become a part of the realty.*'* The true test, there- 
 fore, is, did the person attaching the chattel to the 
 realty intend to make a permanent annexation to it? 
 
 .118 Collamore v. r.illis, 149 :Mass. 578. 14 Am. St. Kop. 4(;0. 
 
 119 Atchison etc. K. K. Co. v. Moraan, 42 Kan. 2.1. IG Am. St. Rep. 
 471; Vail v. Weaver. 1.'52 Pa. St. 3l>:}. 10 Am. St. Kep. .598. 
 
 120 Bagley v. Columbus S. Ky. Co.. 98 Ga. G20, 58 Am. St. Kep. 
 325. 
 
 121 Dudley v. Ilurst, G7 Md. 44, 1 Am. St. Rep. 3GS.
 
 § 114 PERSONAL PROPERTY SUBJECT TO EXECUTION. 460 
 
 In reacliing a conclusion respecting his intention, 
 much greater importance should be attached to his re- 
 lation to the property at the time than to the mode 
 in which he made the annexation. If he was the 
 owner, or believed himself to be such, and the purpose 
 accomplished or sought was not temporary in charac- 
 ter, and the use of the chattel was such as to indicate 
 an intention to thereafter employ and treat it as a part 
 of the realty, the mode of attachment or annexation 
 is by no means conclusive, and may not be material. 
 He will be presumed to have intended to make it a part 
 of the realty, and such presumption is, for most pur- 
 poses, conclusive. Though he was not the owner, yet 
 if he believed himself to be such and was holding the 
 land adversely under a claim of title,^^^ or if he en- 
 tered upon the land by mistake, supposing himself to 
 be upon his own property,^'^ and made improvements 
 to enhance its value and for permanent use, doubtless 
 they must be judged by the same rules as if annexed 
 by the owner. The same rule must be apjjlied to a 
 vendee of real property, who, while in possession 
 thereof, attached fixtures thereto, though from some 
 cause he did not afterward comply with his contract 
 of purchase, and hence was compelled to surrender 
 possession to his vendor.*^* On the other hand, one 
 occupying real property as a licensee or tenant of the 
 owner must be presumed to have attached a chattel 
 tliereto for a temporary purpose, not to extend beyond 
 the term of his tenancy or license, and, unless the mode 
 of annexation or some other circumstance rebuts this 
 
 122 Campbell v. Reddy, 44 N. J. Eq. 244, 6 Am. St. Rop. 889. 
 
 123 Atchison etc. K. E. Co. v. Morgan, 42 Kan. 23, IG Am. St. Rep. 
 472; Dutton v. Ensley, 21 Ind. App. 46. 
 
 124 Hinkley etc. Co. v. Black, 70 Me. 473. 35 Am. Rep. 340; Kings- 
 ley V. McFarland, 82 Me. 231, 17 Am. St. Rep. 473.
 
 401 PEIWONAL PKOrEllTY SUBJECT TO EXECUTION. § 11^ 
 
 presumption, such chattel retains, durinj,^ such term, 
 its original character of personal property/^^ 
 
 Where the question whether an article is a fixture 
 arises between the owner of the land and the party 
 who affixed it, or between persons acquiring interests 
 under them, or either of them, with notice, then the 
 intent of the original parties, or, more pro^jerly speak- 
 ing, the agreement between the owner of the soil and 
 the person who has attached the thing thereto, is of 
 vital importance in determining whether such thing 
 has become a part of the real estate. For it seems to 
 be well settled that a house or other structure, which is 
 not of such a character that it must necessarily be real 
 estate, but which under ordinary circumstances would 
 be so deemed, may. by agreement between the owner 
 of the freehold and the builder of the house or struc- 
 ture, retain the character of a chattel, and be subject 
 to removal and sale as such.*^^ Thus, though the own- 
 ers of land have on it a fixture and its appurtenances, 
 intended apparently as a permanent annexation to the 
 realty, yet if they have executed a chattel mortgage 
 on such fixture, or otherwise treated it as personal 
 property, they and all persons ac(]uiring interests un- 
 der them, with notice, are bound hj their acts, and 
 
 125 Fischer v. Tolinson. 106 Town. 181. 
 
 126 Curtis V. Riddle. 7 Allen. 187; AVolls t. Bannister, 5 Mass. 514; 
 Fairbnrn v. Eastwood. 6 Mees. & W. 679; Aldrich r. Parsons, 6 N. 
 H. 555; Osgood v. Howard. 6 Greenl. 452. 20 Am. Dec. 322; Curtiss 
 V. Hoyt. 19 Conn. 166; Russell v. Richards. 1 Fairf. 429. 25 Am. 
 Dec. 2.54; Dame v. Dame, 38 N. H. 429. 75 Am. Dec. 195; Wall v. 
 Hinds, 4 Gray. 27.'?. 64 Am. Dec. 64; Hunt y. Bay State Iron Co.. 97 
 Mass. 283; Crippen v. Morrison. 13 :Mich. 37; Ford r. Cobb, 20 N. Y. 
 344; Haven v. Emery, 33 N. H. 66; Merritt v. Tudd. 14 Cal. 70: Teaflf 
 T. Hewitt. 1 Ohio St. 584, 59 Am. Dec. 634: Hopewell Mills v. 
 Taunton. 1.50 Mass. 519. 15 Am. St. Rep. 235; Campbell v. Reddy, 
 44 N. J. L. 224, 6 Am. St. Rep. 889.
 
 §11-1 PERSONAL PROPERTY SUBJECT TO EXECUTION. 4G2 
 
 estopped from claiming that such fixture has become 
 a part of the realty/-'' 
 
 Agreements by which fixtures remain personal prop- 
 erty, though of such a character and so attached to the 
 freehold as to become a part thereof but for the stipu- 
 lation of the parties to the contrar}', appear not to be 
 within the statute of frauds, and may, therefore, be 
 enforced, though not in writing.*-^ 
 
 While a land-owner may, by his agreement, consent 
 that fixtures attached to his land shall retain the char- 
 acter of personal property, he can generally make 
 such agreement for himself only, and cannot by it bind 
 others whose title is paramount to his, or who have 
 liens which they may assert against it, or have other- 
 wise acquired interests under him without notice of 
 his agreement. Such an agreement is, therefore, not 
 binding upon his mortgagee.^^^ In some of the states, 
 however, it is held that such an agreement will be en- 
 forced, if the chattels annexed may be detached with- 
 out so injuring the realty as to make it substantially 
 less valuable than it would have been had they never 
 been attached thereto,^^** even against a purchaser of 
 the realty without notice.*^^ That such an agreement 
 cannot be enforced against a subsequent purchaser or 
 
 127 Horn V. Tnrlianapolis S. B.. 125 Ind. 381, 231; Canada P. S. 
 S. Co. V. Traders' Bank. 29 Ont. 479. 
 
 128 Tyson v. Post, 108 N. Y. 217, 2 Am. St. Rep. 409. 
 
 120 Rowan V. Anderson, 33 Kans. 264, 52 Am. St. Rep. 529; Lan- 
 don V. Piatt, 34 Conn. 517; Case M. Co. v. Garvin, 45 Ohio St. 289; 
 Muir V. .Tones, 23 Or. 332; Meagher v. Hayes, 152 Mass. 228, 23 Am. 
 St. Rep. 819; Ridgeway S. Co. v. Way, 141 Mass. 557; McFadden 
 V. Allen, 1.34 N. Y. 489; Cross v. Weare C. Co., 1.53 111. 499, 4G Am. 
 St. Rep. 902. 
 
 130 Caniplx'll V. Bcddy, 44 N. .T. Eq. 244, G Am. St. Rep. 889; Ger- 
 man S. L. Soc. V. Weber. 16 Wash. 95. 
 
 131 Russell V. Richards, 10 Me. 429, 25 Am. Dec. 254; Godard v. 
 Gould, 14 Barb. 662.
 
 4(33 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 114 
 
 mortgagor in good faith aud without notice .seems too 
 clear for controversy,***- as also does the proposition 
 that a purchaser or mortgagee, with notice, is bound 
 by the agreement.^''*' 
 
 Even where a building is erected under such cir- 
 cumstances that the land-owner may retain it, he may 
 waive his rights and authcnize its removal; and when 
 he does so it becomes the personal property of the ten- 
 ant or other person thus authorized to remove it, and 
 is subject to levy under an execution against him.*** 
 
 Improvements erected on public lands are regarded 
 as private property for most purposes, and as such may 
 be levied ui)on and sold.*""' The right to so levy and 
 sell is manifestly subordinate to the power of the gov- 
 ernment to manage and dispose of such lands. The 
 title of the purchaser cannot, therefore, prevail against 
 the United States, nor against its patentee if the im- 
 provements were so attached as to have become a part 
 of the realty. The fact that the person who attaches 
 fixtures to land does not own it and that it is public 
 land of the United States does not prevent such fix- 
 tures from losing their character of personal property 
 for the purpose of levy and sale under execution. Es- 
 pecially is this true when the object of the annexation 
 
 132 Knowlton v. .Tohnson. 37 Mich. 47; Ridireway S. Co. v. Way, 
 141 Mas8. rt7u: I.andon v. Piatt 34 Coun. 517; vSinker v. Coniparet, 
 <i2 Tex. 470; Ice etc. Co. v. Lone Star etc. Co., 15 Tex. Civ. App 
 694. 
 
 1S3 W'iljrus V. Gettings, 21 la. 177; Coleman v. Lewis, 27 Pa. St. 
 291; Sullivan v. Jones. 14 S. C. 362; Lansing I. & E. W. v. Walker, 
 91 Mich. 409; Sayles v. Natural etc. Co., 41 N. Y. S. R. 856; Horn 
 V. Indianapolis etc. Co., 125 Ind. 381. 21 Am. St. Rep. 231. 
 
 134 Foster v. Mabe, 4 Ala. 402; Jewett v. Patridge, 12 Me. 243. 28 
 Am. Dec. 173. 
 
 135 Switzer v. Skiles. 3 Oilm. .529, 44 Am. Dec. 723; Turney v. 
 Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 604.
 
 § 114 PEllSOXAL PROPERTY SUBJECT TO EXECUTION. 464 
 
 is apparently permanent, as where he who made it had 
 located a mining claim on the laud and had placed 
 thereon, securely attached, an engine, with its boilers- 
 and attachments, for the purpose of operating the 
 claim. The sale of such fixtures, under execution, as 
 personal property, passes no title to the purchaser.^^* 
 It may also be mentioned that the relation to the 
 ownership of the soil of the person attaching the thing 
 claimed to be a fixture is a very material fact in deter- 
 mining w^hether such thing can be seized and sold un- 
 der a fieri facias against him. If, at the time of such 
 attaching, he was the owner of the freehold, it must 
 be a very clear case, indeed, that will warrant a levy on 
 the property so attached. For many things which, if 
 placed on the soil by a stranger to the title, would be 
 clearly regarded as personal property will, if placed 
 there in the same manner by the owner, be regarded 
 as a part of the freehold.*^'' But some things which 
 were fastened to the realty have been held to be sub- 
 ject to execution as personalty on a writ against the 
 owner of the freehold. This is particularly the case 
 with machinery used for manufacturing, when it can 
 be disconnected without any material injury, and when 
 
 136 Roseville A. M. Co. v. Iowa G. M. Co., 15 Colo. 20, 22 Am. St. 
 
 Kep. 373. 
 
 137 Amos and Ferartl on Fixtures, 323; Winn v. Ingleby, 5 Barn. 
 & Aid. 625; 1 Do\vl. & R. 247; I'laee v. Fag?. 4 Man. & R. 277; 
 Steward v. Lombe, 1 Ball & B. 506: 4 Moore, 281; Snodeker v. W'ar- 
 rinjr. 12 N. Y. 170; Minsliall v. I.loyd, 2 Mees. & W. 4.50; Murphy 
 & Hurlston. 125; 1 .Tur. 3.'?6; Mackintosh v. Trotter, 3 Mees. & W. 
 184: Voorhis v. Freeman, 2 Watts & S. 116, 37 Am. Dee. 490; Brown 
 on Fixtures, sec. 172-177 a; Corliss v. McLagiu, 2'J Me. 115; W'inslow 
 V. Merchants' Insurance Co., 4 Met. 30C, 38 Am. Dec. 368; Trull v» 
 Fuller, 28 Me. 545; Morgan v. Arthurs, 3 Watts, 140; Oves v. Ogles- 
 by, 7 Watts. lOfJ; Union Bank v. Emerson, 15 Mass. 1.59; Bishop v. 
 Bishop, 11 X. Y. 123, 62 Am. Dec. 68; Leonard v. Clough, 133 N. Y. 
 292.
 
 465 PERSONAL PRUPERTY SUBJECT TO EXECUTION. § lU 
 
 it was attached only for the purpose of keeping it firm 
 and steady, and enabling its use to be more bene- 
 ficial.^*"* JUit even in snch a case it seems that the 
 intent of the owner in attaching tlie inadiinciy must 
 be considered; and if it appears tliat he attached the 
 property to the realty with a view that it should remain 
 there permanently, it must be treated as real estate.^'*'** 
 This intention is to be "inferred from the nature of the 
 article al'lix^Ml. the relation and situation of the party 
 making the annexation, the structure and mode of an- 
 nexation, and the purpose or use for which the annexa- 
 tion has been made." **** 
 
 13S Toliins V. Francis. 3 Vt. 425, 23 Am. Doc. 217; Sturgis v. War- 
 ren, 11 Vt. 435; Swift v. Thompson, 9 Conn. 63. 21 Am Dec. 71S; Bart- 
 lett V. Wood. 32 Vt. 372; Fnllam v. Stearns, 30 Vt. 443; Hill v. Weut- 
 w-ortli, 2S \t. 428; Gale v. Ward, 14 Mass. 352, 7 Am. Dec. 223; Cre.s- 
 son V. Stout, 17 .Toluis. IIG. 8 Am. Dec. 373; Farrar v. Chauffetete, 
 5 Denio, 527; Vanderpoel v. Van Alien, 10 Barb. l.")7: Murdock v. 
 Cifford. 18 N. Y. 28; Freelaud v. Soutlnvortli. 24 Wend. 191. See 
 Hutchinson v. Kay, 23 Beav. 413; Haley v. Hanimersly, 3 De Ges., 
 F. & J. 587; 7 .Tur., N. S. 7G5; 30 L. .1. Ch. 771; 9 Week. Rep. 5G2; 4 
 L. T.. N. S. 2G9. See note to Pierce v. CJeorge, 11 Am. Rep. 314. 
 
 i:'» Potter v. Cromwell. 40 N. Y. 287, 100 Am. Dec. 485; McKim 
 V. Mason. 3 :\rd. Ch. ISO; Pierce v. George, 108 Mass. 78, 11 Am. 
 Rep. 310; Voorheos v. ^IcGinnis. 48 N. Y. 278; Richardson v. Cope- 
 laud. G Gray, 530. GO Am. Dec. 424; Teaff v. Hewitt, 1 Ohio St. 530, 
 59 Am. Dec. G.34; Stockwell v. Cauipl)ell. 39 Conn. 302, 12 Am. Rep. 
 393; Alvord C. JI. Co. v. Gleason, 3G Conn. 8G; Capen v. Peckham, 35 
 Conn. 88; Plaveus v. Germauia etc. I. Co.. 120 Mo. 403, 45 Am. St. Rep. 
 570; ^lorotock I. Co. v. Rodefer. 92 Va. 747, 53 Am. St. Rep. 84G; 
 Roseville A. M. Co. v. Iowa G. M. Co., 15 Colo. 29, 22 Am. St. Rep. 
 373; McFaddou v. CraAvford. 3G W. Va. G71, 32 Am. St. Rep. 894. 
 
 i-«o Teaff V. Hewitt. 1 Ohio St. 530, 59 Am. Dec. 634. The rolling 
 stock of a railroad must, in Illinois, be sold as real estate. Palmer 
 V. Forbes. 23 111. 301; Hunt v. Bullock, 23 111. 320; Titus v. Mabee, 
 25 III. 257. In New York and Ohio it may be sold as i!>ersonal prop- 
 erty. Beardsley v Ontario Bank. 31 Barb. 619; Stevens v. B. & 
 N. R. R. Co.. 31 Barb. .590; Bement v. P. & M. R. R. Co.. 47 
 Barb. 104; Randall v. Eiwell. 11 Am. Rep. 47, 52 N. Y. 522; 
 Hoyle V. P. & M. Co.. 54 N. Y. 314, 13 Am. Rep. .595: Coe v. R. 
 R. Co., 10 Ohio St. 372, 75 Am. Dec. 518. In New Hampshire it may 
 Vol. I.— 30
 
 § lU PERSONAL PROPERTY SUBJECT TO EXECUTION. 4G6 
 
 The circumstances in which fixtures were attached 
 to the soil maj be such as to show clearly that no per- 
 manent annexation was intended. If so, they remain 
 personal property. Thus, where the contractors by 
 whom a railroad was built laid down sidetracks, fas- 
 tened to the main track by frogs, and used in transport- 
 ing gravel, and left such tracks in place on the request 
 of the president of the road, as a matter of accommo- 
 dation, on his assurance that the materials would there- 
 after be delivered to them free of expense, such tracks 
 were held to be subject to execution as the personal 
 property of the contractors, on the ground that they 
 "were laid entireh^ for temporary and not permanent 
 purposes," were not designed for use in any particular 
 locality, and were "a part of the means used in con- 
 structing a road, but are not a part of the structure, 
 and because" it might as well be contended that the 
 scaffolding, ladders, and appliances used in construct- 
 ing, which a mechanic temporarily leaves about a newly 
 finished house, become the property of the householder, 
 so as to pass as fixtures upon his conveyance of the 
 real estate.^^^ Even with the tests here prescribed, it 
 must be very difficult for an officer or creditor to de- 
 be sold as personalty when not in use. Boston, C. & M. R. R. v. 
 Gilmore, 37 N. 11. 410, 72 Am. Dec. 3oG. In several cases the rolling 
 stock of railroiuls has been regarded as fixtures, so as to pass to a 
 mortgasee of tlie realty. Pennock v. Coe, 23 How. 117; Strickland 
 V. Parker, 54 Me. 2G3; Minnesota Co. v. St. Paul Co.. 2 Vv^all. 644; 
 Phillips V. Wiuslow, 18 B. Mon. 431, 68 Am. Dec. 729. Where, a 
 railroad company constructed a bridge, being a part of its road, 
 and built with stone piers and abutments, and subsequently aban- 
 doned the road, It was held that the piers and abutments did not 
 pass to the owner of the land. Wagner v. C. & T. R. R. Co.. 22 
 Ohio St. 503. 10 Am. Rep. 770; Corwin v. Cowan. 12 Ohio St. 620; 
 Northern C. R. W. Co. v. Canton Co., 30 Md. 347. 
 
 141 Fifield V. Me. C. R. R.. 62 Me. 81; Coos Bay etc. Co. v. Siglin 
 (Or.), 53 Pac. 504; Bellamy v. Davy (1891), 3 Ch. 540.
 
 467 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 111 
 
 termine what may be seized as personal estate. In 
 fact, the judges, with all their oppoiluuity for mature 
 deliberation, and all their skill in precision and exact- 
 ness of expression, have not jet been able to make the 
 law of fixtures harinouious or well understood. It 
 would, therefore, be marvelous if the ministerial oflfi- 
 cers of the court, acting in the haste of pressing emer- 
 gencies, did not often err in attempting to conform to 
 this law. Even the term "fixtures" is popularly em- 
 ployed with diverse significations — sometimes to desig- 
 nate a chattel so attached to the realty that it cannot 
 be removed, and sometimes to designate a chattel so 
 attached that it can be removed. But in the vast ma- 
 jority of cases in which the law of fixtures is involved, 
 the alleged fixture has been affixed by the lessee or 
 Ucensee.^*^ To determine whether a chattel affixed 
 by the lessee or licensee can be seized on execution, we 
 have only to ascertain whether he can lawfully remove 
 it. For whatever rights and interests the lessee has 
 are subject to execution against him. The law of fix- 
 tures has been gradually modified in favor of lessees, 
 in order that trade and manufactures might be encour- 
 aged. "Things set up by a lessee during his tenancy 
 for the purposes of his trade" remain personal prop- 
 erty. ^^^ Tenants occupying property for the purposes 
 of agriculture were less favored than occupants for the 
 purix)ses of trade.^*^ The tendency of the more re- 
 cent decisions is in favor of putting agricultural and 
 
 i«ing:alls v. St. Paul etc. Co.. 39 Minn. 479. 12 Am. St. Rep. 070; 
 Laird v. Railroad. G2 N. H. 2,54, 13 Am. St. Rep. 504. 
 
 i*^ Hill on Fixtures, sec. 17; Pillow v. Love, 5 Hayw. 109; Lemar 
 V. Milns, 4 W^atts, :'>;'.0; Raymond v. White. 7 Cow. 310; Ileermance 
 V. Vernoy, 6 Johns. ."»; Reynolds v. Shuler, 5 Cow. 323; Douuewald 
 V. Turner R. E. Co., 44 Mo. App. 350. 
 
 1" Elwes V. Maw, 3 East, 38,
 
 § 114 PERSONAL PROPERTY SUBJECT TO EXECUTION. 46S 
 
 other tenants upon an equality, in this respect, with 
 tenants for the purj^oses of trade; and of determining 
 the character of alleged fixtures by considering their 
 nature, and the nature and intent of their annexa- 
 tion,^'*'^ and the injury which would be done to the free- 
 hold by their removal, rather than by considering the 
 business in aid of w^hich they have bc^en annexed/*** 
 Domestic and ornamental fixtures, being such as are 
 erected or affixed by the tenant for his convenience or 
 that of his family, or for the purpose of gratifying a 
 taste for the beautiful, retain their character of per- 
 sonal property', unless their removal would occasion 
 some material injury to the freehold. Among the do- 
 mestic and ornamental fixtures which so retain their 
 character as personalty are "all fixtures put up as fur- 
 niture, such as hangings, tapestry, beds fastened to the 
 ceiling, blinds, chimney-glasses, chimney-pieces, clock- 
 cases, coffee-mills, looking-glasses, pier-glasses, pic- 
 tures, shelves, cabinets, chimney backs, cupboards, 
 desks and drawers, frames, gas-pipes, grates, iron 
 chests and iron ovens, iron safes, jacks, lamps, pumps, 
 ranges, sinks, turret-clocks, wainscots fixed by screws, 
 window-sashes not being bedded into frames, but 
 merely fastened by laths and nailed across frames and 
 curtains." **'" 
 
 145 Meiffs' Appeal. 62 Pa. St. 28. 1 Am. "Rep. 372. 
 
 146 Dubois T. Kelly. 10 Barb. 41)6; Van Ness v. Pacard. 2 Pet. 1.37; 
 Harkness v. Sears. 2fi Ala. 493. 02 Am. Dee. 742: WHiitney v. Bras- 
 tow, 4 Pick. 310; Holmes v. Tremper. 20 .Tolms. 20. 11 Am. Doc. 
 238; Rex v. Otley. 1 Barn. <Sr Aflol. 101; Wood v. Hewett. 8 Q. B. 
 913: 10 Jur. .300; 1.5 L. J. Q. B. 247; Mant v. Collins, 10 Jur. 300; 15 
 L. .T. O. B. 248. 
 
 147 Crocker on Sheriffs, sec. 401; Amos and Ferard on Fixtures, 
 64-03; Hill on Fixtures, sees. 29-30; 2 Smith's Lead. Cas. 242. See 
 also, as to domestic and ornamentnl fixtures: for window-sashes. 
 Rex V. Hedges, 1 Leach C. C. 201; 2 East P. C. 590, note; for pumps.
 
 4C'J 
 
 PERSONAL rilOPERTY SUBJECT TO EXECUTION. § 111 
 
 It must be reniembcrcd that the tenant's right to his 
 fixtures may be forfeited by his failure to remove them 
 while he is entitled to do so. When he ceases to be a 
 tenant, he ceases, in the absence of any agreement pre- 
 serving his rights, to have any interest in the fixtures, 
 except when his lease was, without his fault, termin- 
 ated by the happening of some uncertain contingency. 
 Ordinarily, he must remove' the fixtures during his 
 term. The period within which he may make the re- 
 moval may be prematurely terminated by the forfeit- 
 ure of his lease; or it may be prolonged by the extension 
 of his lease, or by stipulation with his landlord. But 
 where no special stipulations to the contrary have 
 been made, and the term is for a certain and definite 
 period, a lessee may remove his fixtures while he is 
 still entitled to regard himself as a tenant, and he can- 
 not remove them afterward."^ By his failure to exer- 
 
 AlcCraekcn v. Hall. 7 Ind. 30; Grymes v. Boweren, 4 Moore & P. 
 143; 6 Biug. 437; for cornices, Avery v. Chesloy, 5 Nev. & M. 372, 
 3 Ad. & E. 75; 1 Har. & W. 283; for chimney-pieces, Leach v. 
 Thomas, 7 Car. & P. 328; Bishop v. Elliott, 11 Ex. 113; 24 L. J. Ex. 
 22!); for show-case and drawers, Cross v. Marston, 17 Vt. .5.33, 44 
 Am. Dec. 353; gas-fixtures and setting-stools. Lawrence v. Kemp, 1 
 Duer, 303; Vaughen v. Haldeman, 33 Pa. St. 522, 75 Am. Dec. G22; 
 chimney-pieces, wainscots, and beds fastened to ceiling. Ex parte 
 Qiiincy, 1 Atk. 477; hangings and looking-glasses. Beck v. Rebow. 1 
 P. Wms. 94; stoves and grates fixed into the chimney, and a cup- 
 board standing on the ground supported by holdfasts. King v. St. 
 Dunstans. 4 Barn. & C. 6SG; book-case screwed to the wall. Birch v. 
 Dawson. 2 Ad. & E. 37. 
 
 14S Wei'ton v. Woodcock, 7 Mees. & W. 14; Dudley v. Warde. Amb. 
 113: Rofley v. Henderson. 17 Q. B. 574; IG Jur. 84; 21 L. .7. Q. B. 49; 
 Davis V. Moss, 38 Pai St. 346; Leader v. Homcwood, 5 Com. B., 
 N. S., 54G: 4 Jur.. N. S. 10G2; 27 L. J. C. P. 316; Heap v. Barton. 12 
 Com. B. 274; 16 Jur. 891; 21 L. J. C. P. 153; Storer v. Hunter, 3 Barn. 
 & C. 368; Lee v. Risdon. 7 Taunt. 188; Overton v. Williston, 31 Pa. 
 St. 155; Lyde v. Russell, 1 Barn. & Adol. 394; White v. Arndt. i 
 Whart. 91: State v. Elliott, 11 N. H. ."i40; Whipley v. Dewey. 8 Cal. 
 36; Merritt v, Judd, 14 Cal. 59; Fitzherbert v. Shuw, 1 H. Black. 258;
 
 § 114 PERSONAL PROPERTY SUBJECT TO EXECUTION. 470 
 
 else his privilege of removal within the time prescribed 
 by law, his fixtures become a portion of the real prop- 
 erty of the landlord, and, of course, are no longer sub- 
 ject to execution against their original owner/'*'* 
 
 A tenant's right to his fixtures seems to be depend- 
 ent upon his continuing rightfully in possession under 
 the lease existing during the term in which they were 
 constructed or affixed, or during extensions of such 
 lease; for he may rightfully remain in possession of 
 the property without retaining any rights acquired un- 
 der the lease by virtue of which he originally entered. 
 Hence, if the landlord demands that the tenant quit 
 possession, or in any other manner terminates the 
 lease, but grants another to the same tenant, which is 
 silent respecting the improvements or other fixtures 
 placed on the property by the tenant during the orig- 
 inal lease, his right to remove them after its expiration 
 is lost.*^" 
 
 Where a tenant retains the right to remove his fix- 
 tures, they may be levied on and sold as personal prop- 
 erty under an execution against him. Creditors can 
 acquire no other rights in them than the tenant him- 
 self has. Hence, they must complete the levy and sale, 
 and make the removal of the fixtures while the tenant 
 
 Kins V. Wik'onil), 7 Barb. 2G3; Amos and Ferard on Fixtures. 94 
 and folIoAving. The opinion of Lord Kenyon in Penton v. Robart 2 
 East, 88, that the lessee could lawfully remove his fixtures while 
 he remained in possession, has, as will be seen from examining the 
 above autliorities. ceased to be regarded as law. 
 
 149 Bcdlow V. New Yorlv etc. Co., 112 N. Y. 263; Beloit S. N. B. v. 
 Merrill, r/J :Miss. .501. 
 
 150 Wright V. MacDonnell (Tex. Civ. App.), 27 S. W. 1024: Hed- 
 derich v. Smith, 103 Ind. 203, o3 Am. Rep. 509; Sanitary T^ist. v. 
 Cook, 1(59 111. 184, 61 Am. St. Rep. 161; Carlin v. Ritter. 68 Md. 478, 
 6 Am. St. Rep. 467; contra, Kerr v. Kingsbury, 39 Micli. 150, 35 
 Am. Rep. 362.
 
 471 PERSONAL PRorERTY .SUBJECT TO EXECUTION. § H:> 
 
 himself retains the right of suL-h removal. Otherwise, 
 anjaction thej maytake is entirely inoperative against 
 the landlord. ^'*^ Of course, after the levy has been 
 made, tlie tenant cannot, by his voluntary surrender 
 of the property or relinquishment of his lease, or other 
 act in apj)ar(nt collusion with his landlord, defeat the 
 lien of his creditor and the right to make it elfective 
 by a sale of the property subject thereto. ''Further- 
 more, as a general rule, the creditor who attaches or 
 levies ni)on removable fixtures as such, or the vendee 
 or mortgagee of removable fixtures as such, must re- 
 move them from the premises while the tenant's right 
 to r(^niove them exists. In other words, the creditor, 
 vendee, or mortgagee, in the cases supposed, acquires 
 no greater rights in this respect than the tenant under 
 whom they claim. If, pending the attachment or lev}-, 
 or before the fixtures are severed and removed by the 
 vendee or mortgagee, the rights of the tenant in and 
 to the fixtures cease, then, as a general rule, the rights 
 of those claiming under him also cease. This rule has 
 been applied and recognized in numerous cases, and, 
 during the evolution and during the present condition 
 of the law concerning 'fixtures,' seems to have been, 
 and still seems to be, necessary and reasonable." ^" 
 
 OF THE ESTATES AND INTERESTS IN PERSONAL PROP- 
 ERTY SUBJECT TO EXECUTION. 
 
 § 115. The Real and not the Apparent Interest of the 
 Debtor may be Taken.— in treating of the lien of judg- 
 ments, we have, in another work, said: "Whenever a 
 
 151 Freidlandor v. ITpwitt, 30 Neb. 7S3; Donnewald v. Turner R. 
 
 E. Co., 44 Mo. App. sr.n. 
 
 "2 Morey v. Hoyt, 62 Conn. 542.
 
 § 115 PERSONAL PROPERTY SUBJECT TO EXECUTION. 472 
 
 lien attaches to any parcel of property, it becomes a 
 cliarge on the precise interest which the judgment 
 debtor has, and no other. The apparent interest of 
 the debtor can neither extend nor restrict the operation 
 of the lien, so that it shall encumber any greater or 
 less interest than the debtor in fact possesses." ^^ 
 This is equally true of the lieu of an execution, and of 
 the interest acquired by the officer by reason of his 
 levy. A transfer may be actually or constructively 
 fraudulent, and may on that account be void as against 
 creditors, while it is valid against the transferrer; or 
 it may, in some states, be void as against creditors for 
 want of delivery. In these cases, it is evident that an 
 execution may reach and transfer a greater interest 
 than that held by the defendant. With these excep- 
 tions, it is believed that no interest is subject to exe- 
 cution beyond w^hat the defendant actually owns, al- 
 though his apparent may be much greater than his 
 real ownership.^^* Hence, where a debtor is garn- 
 ished, he must be released on showing that, before 
 the service of the writ, his creditor had assigned the 
 debt,*^^ or that, by agreement, the debt was to be paid 
 to the creditor's creditor.^'*** It is not essential that 
 the debtor should be notified of the assignment prior 
 to the levy.^*'*" A draft takes precedence over a sub- 
 sequent attachment, though not prt-sented until after 
 
 153 Freeman on Judgments, sees. 356, 357; Walton v. Hargroves, 
 42 Miss. 18, 97 Am. Dec. 429. 
 
 154 WbitAvorth v. Gaugaiu, 13 L. J., N. S., Cb. 288; 3 Hare, 410. 
 
 155 Adams v. Robinson, 1 Piclc. 461; Weed v. Jewett, 2 Met. 608, 
 37 Am. Dec. 115; IJttlofield v. Smitb, 17 Me. 327; King v. Murpliy. 
 1 Stew. 228. See § 170. 
 
 156 Lovely v. Caldwell, 4 Ala. 684; Black v. Paul, 10 Mo. 103, 45 
 Am. Dec. 353. 
 
 157 Pellman v. Hart, 1 Pa. St. 203.
 
 473 PERSONAL PllOI'EKTY .SUBJECT TO EXECUTION. s 115 
 
 the writ is levied,*''** aud the interestof a plt'dj-ee of 
 shares of stock of a corporation cannot be divested 
 by an execution sale under a writ against the i)le(l;;or, 
 althouj^h the pledge was not evi(l<*ncid by any writing, 
 nor noted on the books of the corporation, and the pur- 
 chaser was without notice thereof.'"'" On the other 
 iiand, it is equally well settled that the real interest 
 of a defendant is subject to execution, though he may 
 not appear to have any interest; or, more properly 
 speaking, though the evidence of his title may be con- 
 cealed. Uence, in order to subject real estate to execu- 
 tion, it is not necessary to show that the defendant's 
 evidence of title is on record. It is wholly immaterial 
 Avhether the interest of the defendant appears from the 
 records or not.^**** What is here said about the real 
 interest of the defendant being subject to execution, 
 rather than the apparent interest, meets with an ap- 
 parent exception through the operation of the laws 
 for the registration of instruments affecting the title 
 to real estate. Under those laws, a purchaser in good 
 faith, who records his convcA'ance, is entitled to pre- 
 cedence over a prior conveyance or encumb*'ance of 
 which he had no notice, actual or constructive. A 
 . purchaser at execution sale may also be a purchaser 
 in good faith, and may therefore obtain a greater or 
 better title than the defendant in fact held.**" This is 
 because of the effect of the registry laws, and not be- 
 cause any greater interest than that held by defendant 
 
 188 Nesmitli v. Drum. 8 Watts & S. 9, 42 Am. Deo. 260. 
 
 ir,9 Tort Townsend N. B. v. Port Townsend G. & F. Co., G "Wash. 
 597. 
 
 i»o Vance v. McXairy, 3 Yers. 171. 24 Am. Dec. ."m3; Ready v. 
 Brajrjr, 1 Head, "ill; Shields v. INIitchell. 10 Yerir. 1: I.atlirop v. 
 Brown. 23 Iowa. 40: Nlantic Bank v. Dennis, 37 111. 3S1; Kieliter v. 
 Selin, S Sersr. iS: 15. 425. 
 
 161 See post, § 336.
 
 § IIG PERSONAL PROPERTY SUBJECT TO EXECUTION. 474 
 
 was subjoct to execution; for until the moment when 
 the purchaser in good faith pays his money, notice 
 may be given of the prior unregistered conveyance or 
 encumbrance, and the levy and sale thus made ineffect- 
 ive as against it. 
 
 § 116. Equitable Interests. — By the common law, 
 an equitable interest in x^^rsonal properly could not be 
 seized and sold under a writ of fieri facias. Hence, 
 wherever the common-law rule has not been changed 
 by statute, the sheriff is not authorized to seize and 
 sell any chattels, unless the defendant in execution has 
 the legal as well as the equitable title thereto. **^^ "It 
 was a principle of the common law, steadily main- 
 tained, that an equitable interest in chattels could not 
 be sold under execution. A sheriff must actually seize 
 the property on a fieri facias before he can sell." ^^^ 
 "I do not know of any case in which a court of equity 
 has considered an execution at law as binding an equi- 
 table right. The idea is altogether inadmissible." ^^ 
 AVhen an assignment is made to certain persons, for 
 the purpose of enabling them to sell the property as- 
 signed, and with the proceeds to pay the assignor's lia- 
 bilities, and reserving to the assignor such property as 
 may remain after the debts have all been paid, he has 
 
 162 Boyce v. Smith. IG Mo. HIT; ^NIcLeary v. Snider. 1 West. L. M. 
 270; McNairy v. Eastland. 10 Yerg. .810; Lystor v. Dolland, 1 Yes. 
 Jr. 431; 3 Bro. C. C. 478; WMlson v. Carver. 4 Hayw. 90; Badlam v. 
 Tudver, 1 Pick. 399; 11 Am. Dee. 202; Benton v. Pope, 5 Humph. 
 392; Dargan v. Richardson, Dudley (S. C). G2; Martin v. Jewell. 37 
 Md. .5.30; Brown T. Wood, 6 Rich. Eq. 15.5; Rose v. Bevan. 10 Md. 
 4G0. 09 Am. Dec. 170; Wylie v. White, 10 Rich. Eq. 294; Shute v. 
 Harder, 1 Yerjr. 3, 24 Am. Dec. 427; Roads v. Symmes, 1 Ohio, 281. 13 
 Am. Dec. G21: Van Norman v. Jacl^son Circuit Ct., 45 Mich. 204; 
 Gypsum etc. Co. v. Kent. 97 Mich. G31. 
 
 1C.3 Yeldcll V. Barnes. 15 Mo. 434. 
 
 164 Hendricks v. Robinson, 2 Johns. Ch. 312.
 
 475 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 116 
 
 no interest subject to execution.**'^ In Missouri it has 
 been held that one who was the owner of an equitable 
 interest in stocks, and who also had the rij^ht to retain 
 possession for a definite period of time, had an iuterest 
 in such stocks subject to execution.*"" In some of the 
 states the common-law rule has been abrogated, and 
 has been substituted bj statutory provisions subjecting 
 equitable as well as legal interests to execution and 
 forced sale at law.*"'^ The common-law rule was sus- 
 tained by the theory' that at law only legal interests 
 could be recognized and enforced. It was not founded 
 on any tenderness for equitable titles, but rather upon 
 a desire to ignore them altogether. By proceedings 
 in equity, equitable interests could always be made to 
 contribute to the satisfaction of a judgment against 
 the ow^ner.*"** If such interests are to be subjected to 
 forced sale, it is better to allow them to be taken under 
 fieri facias than to compel the creditor to resort to a 
 separate suit; for the suit, after subjecting both par- 
 ties to delay and expense, without any compensatory 
 advantages, does precisely what might long before 
 have been done under a fieri facias. 
 
 Though, by statute, equitable interests in personal 
 property have been made subject to execution, this 
 
 iw"^ Sprinkle v. Martin. 06 N. C. 5n; McKoithan v. Wallvor. n<5 N. C. 
 95; ^YilIves v. Ferris, 5 Johns. 345. 4 Am. Doc. oCA; Scott v. Scholpy, 
 8 East. 467; Biscoe v. Royston, 18 Ark. 508; Tope v. Bo.vd. 22 Ark. 
 535; Brown v. (Graves, 4 Hawks. 342: Metcalf v. Scholey, 2 Bos. &- P. 
 N. R. 401; Williamson v. Clark. 2 Miles. 15?,. 
 
 166 Foster v. Potter, 37 Mo. 525; Tufts v. Volkeningr, 51 ^fo. App. 
 7. 
 
 167 :\Ii,l(llotown Savings Rank v. Jarvis. 33 Conn. 372; Eastland v. 
 Jordan. 3 Bibb. 186; Samuel v. Salter. 3 Met. (Ky.) 2,19. 
 
 168 Pendleton v. Perkins. 49 Mo. 565; Edmeston v. Lyde. 1 Paipe, 
 637; Tarbell v. Grifffrs, 3 Paige. 207. 23 Am. Dec. 790: nadden v. 
 Spader, 20 Johns. 554; Williams v. Hubbard, Walker's Ch. 28; Bige- 
 low V. Congregational Society. 11 Vt. 283.
 
 § 117 PERSONAL PROPERTY SUBJECT TO EXECUTION. 476 
 
 will not prevent the creation of what are commonly 
 known as spendthrift trusts, hv virtue of which the 
 property is vested in a trustee, who is given a dis- 
 cretionary authority to apply the income, or so much 
 as may be necessary, to the support of the beneficiary. 
 While an owner of property is not permitted to create 
 a trust in his own favor, which will, in effect, entitle 
 him to the beneficial enjoyment of the projierty, irre- 
 spective of the demands of his creditors, this rule is 
 not usually deemed applicable to the creation of a trust 
 in favor of a third person, accompanied by a provision 
 therein which shall secure the object of the trust from 
 impairment at the instance of creditors of the bene- 
 ficiary proceeding against him by attachment or exe- 
 cution. ^'^'^ 
 
 § 117. Mortgagor's Interest.— The equity of redemp- 
 tion held by a mortgagor of chattels is clearly an equi- 
 table interest, and, according to the rules stated in the 
 preceding section, would not be subject to execution.^''** 
 Hence, unless some statute has been enacted making 
 mortgaged chattels subject to execution, the better 
 opinion is that the mortgagor's interest therein cannot 
 be reached by any levy and sale under a writ against 
 him.^^^ 
 ' Where the common-law rule still prevails, the mort- 
 
 169 Seymour v. McAvoy. 121 Cal. 438; Slattery v. Wason, l.')l Miss. 
 200. 21 Am. St. Rep. 448: Partridge v. Cavendar, 96 Mo. 452; Lam- 
 pert V. Haydel. 96 Mo. 439, 9 Am. St. Rep. 3.')8; Patterson v. Cald- 
 well. 124 Pa. St. 4.54; Estate of Beck. 1.33 Pa. St. .51. 19 Am. St. 
 Rep. 023; Garland v. Garland, 87 Va. 7.58. 24 Am. St. Rep. G82; post 
 § 189a. 
 
 iTo Scott V. Scholey, 8 East 407; Metealf v. Scholey. 2 B. & P. 
 <N. R.) 401. 
 
 171 Simonds v. Pierce. 31 Fed. Rep. 137; .Tenninzs v. M^Ilroy, 42 
 Ark. 230, 48 Am. Rep. Gl; Dyer v. Cady. 20 Conn. 503; Rogers v.
 
 477 PEUSOXAL PROPERTY SUB.JECT TO EXECUTION. § 117 
 
 gagor biiuself may rely upon and assert it. It is deemed 
 to operate for his proleeliou by not permitting a sale of 
 the property while his interest therein is uncertain, 
 and may hence be exposed to ruinous sacrifice, and if 
 the ofiieer, nevertheless, proceeds to levy ui>on and sell 
 the property, it has been held that the mortgagor may 
 recover such property of the purchaser at the execu- 
 tion sale. "The authorities cited do not warrant the 
 inference that a debtor is estopped from availing him- 
 self of the want of property in the subject of sale in 
 an action against himself by the purchaser at such sale. 
 The rule prohibiting a sale of the equity of redemption 
 under execution is designed to protect the property of 
 the debtor from sacrifice; to prevent gambling about 
 uncertainties, and, such being its aim, there is a pro- 
 priety in sulTering the debtor to avail himself of this 
 defense." *''' 
 
 But in many of the United States the courts have 
 proceeded upon the theory that, except as between the 
 mortgagor and the mortgagee, the former, while by 
 the terms of the mortgage he is entitled to retain pos- 
 session for a definite time, must be treated as the real 
 owner of the property mortgaged. They have there- 
 fore held that the mortgagor's interest in the chattels, 
 while he has the right to retain possession, may be sold 
 under execution. ^'^ "A mortgagor of chattels has an 
 
 Highland. fiO Ta. 504. r.S Am. Rop. 2P,0: ^rcronnpll v. Donliani. 72 
 la. 404: roclirane v. Rich. 142 Mass. 15; Young v. Scliofield. 132 
 Mo. fi50: Howe v. Teft. 15 R. I. 477. 
 
 172 Yeldell v. Stemmons. 15 Mo. 443. 
 
 173 Hunter v. Hunter. Walk. 104; McWhorter v. Hulins. 3 Dana, 
 349; Randall v. Cook, 17 Wend. 53; Redraan v. Hendricks, 1 Sand. 
 32: Waters v. Stewart, 1 Caines Cas. 47; Hohart v. Frisbie. 5 Conn. 
 502; McOrecor v. Hall. 3 Stew. & P. .307: Purnell v. Hojran. 5 Stew. 
 & P. 102: Ford v. Philpot. 5 Har. t^- .T. 312: Fn?rnte v. Clarkson. 2 
 B. Mon. 41, 36 Am. Dec. 58!); Merritt v. Niles. 25 111. 283; Collins v.
 
 § 117 PERSONAL PPcOPERTY SUBJECT TO EXECUTION. 478 
 
 interest iu the mortgaged property until it has been 
 barred or foreclosed, which may be seized, taken, and 
 disposed of by his creditors. But this is such an inter- 
 est that it must be taken and treated as subservient to 
 the paramount interest of the mortgagee. The latter 
 has a vested right to require that the property be con- 
 verted into a satisfaction of his demand; and, subject 
 to this right, the creditor of the mortgagor may attach 
 or seize the property. He cannot, hovs^ever, deprive 
 the mortgagee of the possession of his security if he has 
 such possession, nor can he assume control and dispose 
 of the property regardless of the prior right of the 
 mortgagee." ^"^^ If the officer levies upon the entire 
 property mortgaged, instead of upon the interest of the 
 mortgagor therein, and assumes to control and dispose 
 of the property absolutely, the writ in some of the 
 states furnishes no justification for his action.^'^^ But 
 in other states, if the defendant is in possession of the 
 property, and entitled to remain in possession for some 
 definite period, the sheriff may lawfully seize and sell 
 
 Gibson, 5 Vt. 243; Garro v. Thompson, 7 Watts. 410; Sclirader v. 
 Wolfin, 21 Ind. 238; Wright v. Henderson, 12 Tex. 43; Van Ness v. 
 Hyatt. 18 Pet. 294; Bailey v. Burton. 8 W^end. 339. 348; Hall v. Samp- 
 son. 35 N. Y. 274, 91 Am. Dec. 56; A«thony v.*Shaw, 7 R. I. 275; 
 Mercer v. Tinsley, 14 B. Mon. 274; Mattison v. Baucus, 1 N. Y. 295; 
 Wooton v. Wheeler. 22 Tex. 3.38; Saxton v. W^illiams. 15 Wis. 292; 
 O'Neal V. W'ilson, 21 Ala. 288; Moore v. Mnrdock. 26 Cal. 527; Ray- 
 sor V. Reed, .55 Tex. 266; Lyman v. Bo we, 66 How. Pr. 481; Sim- 
 mons V. .Jenkins, 76 111. 479; People v. Dickson, 65 111. App. 99; Mar- 
 tin V. Duncan, 156 111. 274; McKnight v. Gordon, 13 Rich. Eq. 222. 
 94 Am. Dec. 164; Myers v. Cole, 32 Kan. 138; Gould -v. Armagost, 
 46 Neb. 897; Curd v. Wunder, 5 Oh. St. 92; Goode v. Rogers, 19 R. I. 
 1; Second N. B. v. Gilbert, 174 111. 485, 66 Am. St. Rep. 306. 
 
 1-4 Second N. B. v. Gilbert, 174 111. 485, 66 Am. St. Rep. 306; Cot- 
 ton V. Marsh. 3 Wis. 241; Cotton v. Watkins, 6 Wis. 629; Ashley v. 
 Wright, 19 Ohio St. 291. 
 
 1715 Frisbee v. Langworthy. 11 Wis. 375; McConeghy v. McCaw, 31 
 Ala. 451; Fox v. Crouan, 47 N. .1. L. 493, 54 Am. Rep. 190.
 
 47 iJ PERSONAL PROPERTY SUBJECT TO KXIXUTJOX. § 117 
 
 the property without taking any notice of the mort- 
 gagee's interest.^''^ It sseenis to us, however, that the 
 general rule that an officer who, having notice of de- 
 fendant's special interest, assumws to sell a greater in- 
 terest in chattels than belongs to defendant in execu- 
 tion, is liable for conversion,*"'^ ought t(» o^jerate in 
 favor of mortgagees.*'** It may be otherwise, however, 
 when the officer has the right to seize and sell the prop- 
 erty because the statute permits, and the debt is not 
 yet due, and he does nothing inconsistent with the 
 rights of the mortgagee, or which impairs his remedy 
 under his mortgage.*'" But when the mortgagor has 
 no right to retain possession of the property except by 
 the permission of the mortgagee, he cei-tainly has little 
 claim to be regarded as the owner thereof. As he has . 
 no right to the possession, it is difficult to understand 
 how his creditors can obtain such right by virtue of 
 process against hm. II is interest in such case is a 
 mere equity; and even the American courts do not re- 
 gard it as subject to execution, except when rendered 
 so by the provisions of some statute. Hence, if the 
 mortgagee is entitled to the possession of the property, 
 the officer has no right to seize it, although it is found 
 in the possession of the mortgagor, such possession 
 being permissive merely, and not a matter of right.***^ 
 
 iT6Hall V. Cnrnlcy. 11 N. Y. .'01; 17 N. Y. 202; Goiilet v. Asseler. 
 22 N. Y. 225; Manning v. Mouaahan. 28 N. Y. 585; Fairbaiik v. 
 Phelps. 22 Pick. 535; Hamill v. Gillespie, 48 N. Y. 556; Ament v. 
 Greer. 37 Kan. 648. 
 
 1T7 Dean v. Whittaker, 1 Carr. & P. 347; Wheeler v. McFarland. 
 10 Weml. 318. 
 
 ITS An officer who, under an execution against a cotenant. assumes 
 to sell the entire chattels, is suilty of a conversion. Freeman on 
 Cotenancy and Partition, sees. 214, 310. 
 
 "ft Locke V. Schreck. .54 Neb. 472. 
 
 "0 Spriggs V. Camp, 2 Spears, 181; Yeldell v. Barnes, 15 Mo. 443;
 
 § 117 PERSONAL PROPERTY SUBJECT TO EXECUTION. 48t> 
 
 If the mortgage stipulates that the mortgagor may re- 
 tain possession, with a condition that if any of the prop- 
 erty be levied upon, it shall be lawful for the mortgagee 
 to take immediate possession, an action may be main- 
 tained by the mortgagee against an officer who has 
 seized and carried away the property under process 
 against the mortgagor/**^ When the mortgage is 
 made to secure a debt already due,**^^ or when, having 
 been made to secure a debt to become due in a specified 
 time, default is thereafter made in the payment, the 
 mortgagor has no right to retain possession, and no 
 interest subject to execution.***^ In other words, 
 whether the right to take mortgaged chattels under 
 execution against the mortgagor is expressly conferred 
 by statute, or, in the absence of statutory provisions 
 upon the subject, has been affirmed by the courts on 
 the ground that, by the terms of the mortgage or the 
 implied rights of the parties, the mortgagor has a right 
 
 Kinc V. Bailey, S Mo. 332; Mattison v. Baucus. 1 N. Y. 295; Perkins 
 V. Mayfiekl. 5 Tort. 182; Talmer v. Forbes, 2:^ 111. 301; Egslestou v. 
 Mundy, 4 Midi. 29."): Favrell v. Ilildreth, 38 Barb. 178; Holbrook v. 
 Baker, 5 Greenl. 309. 17 Am. Dec. 230; Campbell v. Leouard, 11 
 Iowa, 489; Paul v. Hayford, 22 Me. 234; Marsh v. Lawrence, 4 Cow. 
 4G7; Galen v. Brown, 22 N. Y. 37; Tannahill v. Tuttle, 3 Micb. 104, 
 61 A-m. Deo. 480. 
 
 181 W'olcli V. Whittemore, 25 Me. 8G. 
 
 "2 Baltes V. Kipp. 1 Abb. Dee. 78; 3 Keyes, 210. 
 
 182 Thompson v. Thornton, 21 Ala. 808; Baxter v. Gilbert, 12 Abb. 
 Pr. 97; Stewart v. Slater. 6 Duer, 83: Champlin v. Johnson, 39 Barb. 
 606; Ford v. Williams. 13 N. Y. 577. 67 Am. Dec. 83; Tannahill v. 
 Tuttle. 3 Mich. 104, (i1 Am. Dec. 480; Porter v. Parmly. 43 How. Pr. 
 445; Peckinbanjih v. Quillin, 12 Neb. 586; Rowland v. Willett, 3 
 Sand. 607; Mercer v. Tinsley, 14 B. Mon. 272; Farmers' Bank v. 
 Cowan. 2 Keyes, 217; Bacon v. Kiiumel, 14 Mich. 201. But it is 
 now understood that the statute in Michijran authorizes the levy 
 upon jroods in the mortirajioi''s possession at any time before the 
 mortfrajre is actually foreclosed. Gary v. Hewitt, 26 Mich. 228. The 
 same rule prevails in Rhode Island. Arnold v. Chapman, 13 R. L 
 586.
 
 481 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 117 
 
 to remain in possession for some definite period, when 
 he no longer has such right, he has nothing subject to 
 levy and sale under execution. When the mortgage 
 debt ha« become due, or when, from any cause, there is 
 a breach of the condition of the mortgage, the mort- 
 gagor loses, and the mortgagee acquires a right to th(^ 
 possession of the property, and, as the mortgagor re- 
 tains no right to such possession, none can be acquired 
 by an officer levying a writ against him, and, if the mort- 
 gagor retains any interest of value, it cannot be sub- 
 jected to execution, unless by garnishment or some 
 other proceeding involving no infringement of the 
 rights of the mortgagee.*^* 
 
 If an officer having a writ against a mortgagor in- 
 sists upon seizing or otherwise interfering with the 
 property after such breach of condition, he is answer- 
 able to the mortgagee in any appropriate action which 
 the latter may bring either to recover the property or 
 for its conversion. ^^'^ 
 
 In Indiana, it has been held that an officer selling 
 mortgaged chattels, under awrit against the mortgagor, 
 and delivering them to the purchaser, was liable in 
 nominal damages only while they remained within the 
 county, and where no substantial injury had been suf- 
 fered by the mortgagee, because he could, by proper ac- 
 tion, recover the property from the purchaser.**^ 
 
 It must be admitted that the American law deter- 
 
 184 Root V. Davis. 51 Ohio St. 29; Stuart v. Alexander. 14 Neb. 37. 
 
 1S5 State V. Carroll. 24 Mo. App. 358; Pollock v. Douglas, 56 Mo. 
 App. 487; Trice v. Walker, 71 Miss. 968; Metzler v. James, 12 Colo. 
 .322; Lea abetter v. Leadbetter, 125 N. Y. 290. 21 Am. St. Rep. 738; 
 Mauchester v. Tibbetts, 121 N. Y. 219. 28 Am. St. Rep. 816; Norris 
 V. Sowles, 57 Vt. 360; Ex parte Lorenz, 32 S. C. 365, 17 Am. St. Rep. 
 S62. 
 
 180 state V. Bergner, 20 Ind. App. 390, 07 Am. St. Rep. 261. 
 Vol. I.— 31
 
 §117 PERSONAL PROPERTY SUBJECT TO EXECUTION. 4S2 
 
 mining wlietlier an execution can be levied upon mort- 
 gaged cliattels is unsettled, and that different x^ersons 
 are likely to disagree as to the result of the reported 
 cases. Mr. Hilliard says: "The weight of authority 
 would seem to be against the right of taking mortgaged 
 property in execution." ^^"^ Mr. Sumner, in his note to 
 Lyster v. Dolland, 1 Yes. Jr. 431, shows that, "except 
 as against the mortgagee, the mortgagor is regarded 
 as the real owner of the property mortgaged, and, in 
 the United States, the rule has very extensively pre- 
 vailed that an equity of redemptionwas vendible* as real 
 property on an execution at law"; and by his citations 
 shows a decided majority of the cases to be in favor 
 of the practice of seizing equities of redemption under 
 fieri facias. But while there are a few cases in which 
 an equity of redemption in chattels is stated, without 
 qualification, to be subject to execution,^*^*^ and while 
 eases somewhat more numerous than those just alluded 
 to maintain tlie broad proposition that an equity of re- 
 demption in chattels is never subject to execution, '''•* 
 we think the result of a considerable majority of th<^ 
 American decisions is this: that a mere equity of re- 
 demption is not of itself subject to execution; but when 
 such equity is joined with the right to remain for a 
 definite time in possession of the property mortgag(Ml, 
 the mortgagor has an interest which may be seized and 
 sold under an execution at law. 
 
 187 2 Hilliard on Mortgast'S, 2(1 ed., 428. 
 
 188 Dougliteii V. Gray, 2 Stock. 323. 
 
 189 Badlam v. Tucker, 1 Tick. :^>99, 11 Am. Dec. 202; Rose v. P.ovan, 
 10 Md. 4t)G, 09 Am. Dec. 170; Haven v. Low, 2 N. H. 13, 9 Am. Dec. 
 2.5; Myers v. Amey, 21 Md. 302; Lyon v. Coburn, 1 Cush. 278; White- 
 sides V. Williams, 2 Dev. & B. Eq. 153; Laml) v. .Tolmson, 10 Cush. 
 120; Hawkins v. May, 12 Ala. 073; Thornhill v. Gilnior. 4 Smcdes 
 A: M. 103; Ilarbinson v. Harrell, 19 Ala. 753; Commercial Bank v. 
 Waters, 10 Smedes & M. 559.
 
 4S3 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 117 
 
 Willi respect to the authority of an ofhcer to invade 
 the rightful possession of the mortgagee, for the pur- 
 pose of levying on the niortgngor's equity of reilcnip- 
 tion, Avhere he yet retains such ecjuity, the courts are 
 not entirely in harmony. On the one hand, it is in- 
 sisted that, in those states where such equity is subject 
 to execution, the mortgage is accepted with a tacit 
 agreement that it may be so subjected, and that such 
 steps maj' be taken as are necessary thereto, and that 
 these necessarily include the right to seize the property 
 even while in the i>ossession of the mortgagee, and to 
 retain such possession so as to be enabled to have the 
 property present at the sale; ^^" and the case is likened 
 to that of an execution against one of several partners, 
 in which it is generally conceded that the officer may 
 seize the property and sell the partner's interest there- 
 in, though the title conveyed is nothing beyond what 
 may remain after the settlement of the affairs of the 
 partnership. Where the law requires property to be 
 present at the time of the sale, it seems to be necessary 
 to concede either that the levying officer may take it 
 from the possession of the mortgagee. or else that, while 
 in such possession, it is not subject to levy and sale 
 unless by his permission. On the other hand, it is 
 urged that the mortgagee, being in possession and enti- 
 tled to the possession as against the mortgagor, no 
 creditor of the latter can acquire any right which his 
 debtor has not; that no right of possession can be ac- 
 quired by levying a writ against one who is without 
 such right; and, tinally, that it would very seriously 
 impair the rights of the mortgagee if the property 
 could be taken from his hands for an indefinite period, 
 
 190 iinoklomnn v. Coodnian. T." Ind. 204; Loutbaiu v. Miller, 85 
 Ind. IGl; Sparks v. Compton, 70 lud. 393.
 
 § 117 PERSONAL PROPERTY SUBJECT TO EXECUTION. 484 
 
 in order to subject to execution an equity of redemption 
 which might be of no value whatsoever. In some of 
 the states an escape from the dilemma is effected hy 
 holding that a levy and sale may be made, in such cir- 
 cumstances, without taking possession of the mort- 
 gaged property.*^®^ The better rule, however, as we 
 have already indicated, is, that the mortgagor has no 
 interest subject to levy, unless he has, in addition to his 
 mere equity of redemption, the right to remain in pos- 
 session of the property for some ascertainable, definite 
 length of time. 
 
 As will be seen from examining the summary of stat- 
 utes showing property subject to execution, the right 
 to levy upon and sell mortgaged chattels exists, at the 
 present time, in the greater number of these United 
 States. Where this right is given in general terms, it 
 is usually understood to be subject to the limitation 
 that an officer cannot exercise it after a breach of con- 
 dition has deprived the mortgagor of his right of pos- 
 session.'^^ 
 
 Whenever an officer is given the right to take posses- 
 sion of mortgaged personalty, whether before or after 
 condition broken, the statutes so limit his acts or so 
 require them to be attended by such conditions prece- 
 dent that the rights of the mortgagee cannot be imper- 
 iled. This is accomplished by various methods. In 
 Arizona and Nevada an execution creditor must either 
 
 190a Fox V. Cronan, 47 N. J. L. 493. 54 Am. Rep. 190; Srodes v. 
 Caven, 3 Watts, 258; Welch v. Bell. 32 Ta. St. 12; Chicago Lumber 
 Co. V. Fisher, 18 Neb. 334. 
 
 191 Heflin v. Slay, 78 Ala. 180; Durfee v. (Jriiinell, r>9 111. 371; 
 Lewis V. D'Arcy, 71 111. (M8; Simmons v. .Teukiiis, 7(i 111. 479; Broad- 
 head V. McKay, 40 Ind. .595; State v. Millisan. 10(> Ind. 109; Coleman 
 V. Reel. 70 Iowa. 27; Anient v. Greer, P,~ Kan. 048; Butler v. Lee, 
 54 Miss. 470; Blawelt v. Fechtman. 48 N. ,T. L. 4.W; Millor v. Pan- 
 coast, 29 N. J. L. 250; Arnold v. Chapman, 13 K. 1. 580.
 
 485 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 117 
 
 sell the property subject to the ri<;lits of the mortgagee, 
 or must tender him the amount due before taking ac- 
 tual possession. ^"^ In California, Montana^ North Da- 
 kota, Utah, and in Oklahoma Territory, an officer has 
 no right to take possession of mortgaged chattels with- 
 out tendering to the mortgagee the full amount of his 
 debt, and, if he does so, is liable to an action for the 
 full amount of such chattels not exceeding the amount 
 of the indebtedness secured thereby.*^* In Colorado, 
 a creditor may proceed by garnishment against the 
 mortgagee, and procure an order requiring him to ac- 
 cept payment of the money found due, and thereupon 
 to deliver the property to the officer, to be subjected to 
 execution. By the statutes of Connecticut the interest 
 of a mortgagor in the chattels may be appraised, and 
 the whole or any part thereof may be set off to the 
 judgment creditor. He, however, holds his title sub- 
 ject to the mortgage. In Georgia, upon a levy upon 
 chattels subject to a mortgage, the mortgagee may file 
 \¥ith the levying officer an affidavit showing the 
 amount due, and stating that he fears he will suffer 
 loss unless a bond is given. The purchaser of the 
 property at the execution sale must thereupon give a 
 bond in double the value of the property that he will 
 not remove it from the state, and will have it forthcom- 
 ing to answer the lien. The pro visions. of the st<atutes 
 of Florida are very similar to those of Georgia. The 
 chief difference is in permitting the judgment creditor 
 to summon the mortgagor and mortgagee before the 
 court, to answer and ascertain what amount remains 
 due on the mortgage. If a sale is made, the purchaser 
 
 192 Mooney v. Broadway. 11 Par. 114. 
 
 iM Irwin V. MoDowoll. 91 Cal. 119; Wood t. Franks, 5G Cal. 217; 
 Rider v. Edgar. 54 Cal. 127.
 
 § 117 PERSONAL PROPERTY SUBJECT TO EXKe UTION. 4S& 
 
 must give a bond conditioned as in Georgia. In Idaho, 
 a judgment creditor may tender to the mortgagee the 
 amount due on his mortgage, and thereupon take pos- 
 session of such pro])erty. or sucli creditor may, without 
 making such tender, serve a copy of the writ on the 
 mortgagor and the mortgagee, with a notice that the 
 property is levied upon, and may sell the (Miuity of the 
 mortgagor, and the purchaser is entitled to possession^ 
 subject to the rights of the moi-tgagee. In Indiana, the 
 officer may levy upon and take into his i)()ssession the 
 mortgaged chattels, and sell them under execution, 
 and the purchaser is entitled to possession on comply- 
 ing with the terms of the mortgage. If the officer sells 
 and delivers the mortgaged chattels to the purchaser 
 without first requiring the latter to comply with the 
 conditions of the mortgage, such officer is answerable 
 to the mortgagee.^"* In Kentucky, the interest of a 
 mortgagor of chattels may be levied on and sold under 
 execution, but the purchaser obtains no right to pos- 
 session unless he gives security that the property shall 
 not be removed from the county, and shall be preserved 
 and forthcoming to answer the claim of the mortgagee. 
 In :Maine, Massachusetts, Xew Hampshire, and Ver- 
 mont, an officer may, under execution against a mort- 
 gagor, levy upon chattels and take them into his pos- 
 session. Proceedings may subsequently be taken to 
 ascertain the amount of the mortgage debt, and, within 
 a time specified in the statute after it has been ascer- 
 tained, the officer must satisfy it or surrender posses- 
 sion of the property. In :Michigan and Minnesota, 
 mortgaged chattels are subject to execution against the 
 mortgagor, and the purchaser is entitled lo possession 
 
 194 State V. Milligan, lOG Ind. 10.',; Kaekley v. State, 01 Ind. 437.
 
 487 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 117 
 
 on complying with tbe terms of the mortgage. The 
 right to h'vy upon the property continues until the 
 mortgagor loses his right therein by a foreclosure of 
 the mortgage, and, at any time before such foreclosure, 
 the officer is entitled to possession, so far as may be 
 necessary to enable him to make a sale.''*'' In Wash- 
 ington, mortgaged chattels may be levied upon, sub- 
 ject to the lien of the mortgage. The levying officer 
 must notify the mortgagee of the intended sale, which 
 sliall not be within less than thirty days from the seiz- 
 ure. . The statutes of AVisconsin authorize a sale of the 
 mortgagor's interest, but do not permit the officer to 
 deprive the mortgagee of possession, if he is in posses- 
 sion. Otherwise the officer must take possession, but 
 must sell the property in bulk, and must not deliver 
 possession to the purchaser until the latter pays the 
 mortgage debt. 
 
 Although mortgaged chattels were subject to execu- 
 tion at the time of a levy thereon, because the mort- 
 gage debt was not then due, and the mortgagor, there- 
 foa*e, had a right to retain possession for some definite 
 period, yet, if subsequenth', and while the chattels are 
 in possession of the ofhcer, the debt becomes due, or, 
 for any other reason, the mortgagor's right of posses- 
 sion terminates and that of the mortgagee begins, the 
 officer's right to hold the property and to subject it to 
 execution ceases, and he must, on proper demand there- 
 for, surrender it to the mortgagee.^'*** In some of the 
 states the fact that tlie mortgage debt is due does not 
 prevent the interest of the mortgagor from being levied 
 
 195 flaynes v. Loppip:. 40 Mich. G02; :Muellor v. Provo. 80 Mich. 
 475. 20 Am. St. Rop. 525; Schloss v. Joslyn, Gl Mic-b. 267; Wilson 
 V. Montague. 57 Mich. 038. 
 
 i96Aiiiout V. Greer, 37 Kau. 048; Rankine v. Greer, 38 Kan. 343. 
 5 Am. St. Rep. 751.
 
 § 117 PERSONAL PROPERTY SUBJECT TO EXECUTION. 488 
 
 upon under attachment or execution until actual fore- 
 closure, but the right of the mortgagee to foreclose 
 must be recognized and not substantially impaired, 
 and possession must be surrendered to him so far as 
 necessary to such foreclosure.^^^ * 
 
 It necessarily follows from the rule that a levying 
 officer has no right to impair the rights of the mort- 
 gagee — that the officer's acts should be subordinate to, 
 and consistent with, those rights. If the officer or the 
 judgment creditor discharges the mortgage debt, a sale " 
 of the mortgaged property may be made in parcels as 
 in other cases, but if the debt remains unpaid, the 
 mortgagee has a lien on the whole property, with a cor- 
 responding right to pursue the whole by a suit in fore- 
 closure, or by such other remedies as may be accorded to 
 him by the statutes of the state. The officer must, nev- 
 ertheless, levy upon and sell the property as a whole, 
 and has no right to sell separate parcels and to deliver 
 possession thereof to the purchaser.^'*'' It has been 
 held, however, that if a levy be made upon some only 
 of the mortgaged chattels, it is valid as against the 
 mortgagor, and can be objected to only when the mort- 
 gagee's interests are jeopardized.*®* It is obvious that 
 a levy and sale of this character, if sustained, may 
 operate very disastrously upon the interests of the 
 mortgagor, for, as each separate parcel offered for sale 
 is probably subject to a lien for an amount greater than 
 its value, few persons will subject themselves to the 
 risk of loss involved in its purchase, and hence, if each 
 parcel be separately sold, the aggregate sum realized 
 
 i8«a Wilson V. Montague, .57 Mich. 043. 
 
 19T Wortliington v. Ilanna, 2.3 Mich. .530: Wilson v. Montajsrue, 57 
 Mich. 038; Central T. Co. v. Moran, 56 Minn. 188; Manning v. Mana- 
 frhan, 1 Bosw. 4.59. 
 
 "8 Galde v. Forsythe, 72 Minn. 248.
 
 439 PERSONAL PROPERTY SUBJECT TO EXECUTION. § II7 
 
 may be far in excess of what would have beeu produced 
 by a H-dW of the whole, subject to tiie iiiort<;a<ie lien, 
 <ind the better opinion, we think, is, that where mort- 
 gaged chattels arc not subject to levy, or, if subject to 
 levy, not subject in the mode actually i»iirsucd, the 
 mortgagor may himself object that the proceeding 
 taken against him is not sanctioned by law, and should, 
 1 herefore, be dr'emed inoperative,'"" Hence, if the exe- 
 <'Ution to be levied is in favor of the morlgiigee, he must 
 proceed in the same manner as any other creditor, and, 
 if he does not hiake a levy in the manner riMpiired in the 
 vase of mortgaged chattels, such levy and a sale made 
 thereunder are inoperative as against the moilgag- 
 or.'""* 
 
 A mortgage of chattels, if made for the purpose of 
 hindering, delaying, or defrauding creditors, is not en- 
 forceable as against them, and if, for this or any other 
 reason, it is void, they may levy upon the property sub- 
 ject thereto without taking any notice of the mortgage, 
 iind without incurring any liability to the fraudulent 
 mortgagee.^^" A purchaser at an execution sale ac- 
 <iuires a title against which such a mortgage cannot be 
 asserted.^"* 
 
 By whatever mode or to whatever extent an oflQcer, 
 when levying an execution, or in any supplementary 
 X)roceedings thereunder, denies or violates the rights 
 of the mortgagee, the latter may seek and obtain re- 
 dress by any appropriate action, whether the wrong 
 consists in levying upon property when not subject to 
 levy, or in retaining it after the mortgagee becomes en- 
 
 199 Motzler V. Jainos, 12 Colo. 322. 
 199a Cutler V. Gould Co.. 43 Hun. 516. 
 
 200 Kitchen v. Lowery. 127 N. Y. 53; Guilford v. Mills. 18 N. Y. 
 Supp. 275. 
 
 201 i^orter v. Parmley, 52 N. Y. 185.
 
 §118 PERSONAL PROPERTY SUBJECT TO EXECUTION. 490 
 
 titled to its possession because of the default of the 
 mortgagor/'"' or in utterly denying the right of the 
 moi-tgagee, for, though, by the statutes of the state, an 
 officer has the right to levy upon property subject to 
 the mortgagee's lien, and to take possession of it for the 
 purpose of making a sale under execution subordinate 
 to such lien, yet, if it is clear that he made a levy in de- 
 fiance of the mortgagee's claim, and intended to deny 
 and resist it altogether on the ground that the mort- 
 gage was fraudulent, or, for some other reasion, void, 
 the mortgagee may at once maintain an action of re- 
 plevin or trover witliout making any demand for the 
 return or surrender to him of the property.^^* 
 
 § 11 8. Mortgagee's Interests. — in many of the state*? 
 a mortgage is no more than a mere lien, having, before 
 foreclosure, no effect on the title except to make it 
 stand as security for the payment of the mortgagor's 
 debt. In such a case, it is clear, upon principle, and in 
 the absence of all authority, that the mortgagee has 
 no estate in the property mortgaged subject to execu- 
 tion, though a levy on the note or other indebtedness 
 secured by the mortgage, in states where choses in ac- 
 tion are subject to execution, must operate to transfer 
 the indebtedness, and, as an incident thereto, the mort- 
 gage lien. But under the coninioii-law system, while 
 the mortgage, technically speaking, vested the legal 
 title in the mortgagee, yet, for all practical puiiioses, he 
 was regarded merely as a lienholtler. His interest wa® 
 not liable to be taken in execution during the continu- 
 ance of the mortgagor's equity of redemption; for all 
 
 202 Worth in gton v. Hanna. 2?, IMicli. r.nO: Cotton v. Watkins, 
 Wis. 029; Frisbie v. Langworthy, 11 Wis. ?>7^. 
 
 20S Morrill v. Denton, 7.3 Mirli. 028; Malaolii.'^ki v. ytellwagen, Si 
 Mith. 41; Williams v. Kaper, 67 Mich. 427.
 
 491 rERSOXAL PROPERTY SUBJECT TO EXECUTION. § 118 
 
 the purposes of executions it was treated merely as a 
 chose in action.^"-* But when the property becomes 
 that of the mortgagee by reason of its forfeiture under 
 the mortgage, it is liable to execution under a writ 
 against him.-"'* Where, however, notwithstanding the 
 default of the mortgagor, and the taking possession of 
 the property by the mortgagee, the former retains a 
 substantial interest therein, and the rights of the lat- 
 ter are in substance those of a lienholder merely, his 
 interest is not subject to execution.^^ 
 
 20* Chapman v. Hunt. 2 Beasl. 370; Dougbten v. Gray, 2 Stock. Ch. 
 323; Jaclcsou v. Willaid, 4 Johns. 42; Brown v. Bates, 55 Me. 520, 
 92 Am. Dee. 613; Eaton v. Whiting, 3 Pick. 484; Thornton v. Wood. 
 42 Me. 2S2; Huntington v. Smith, 4 Conn. 235; Marsh v. Austin, 1 
 Allen. 2.35; Glass v. Ellison. 9 N. H. G9; Trapnall v. State Rank, 18 
 Ark. 53; Prout v. Root, 110 Mass. 410; Knowles v. Herbert, 11 Or. 
 54. 240. 
 
 205 Ferguson v. Lee, 9 Wend. 258; Thillips v. Hawkins, 1 Fla. 202. 
 
 2oii ^'oorhies v. Hennessy, 7 Wash. 243; Prout v. Root, 116 Mass. 
 410. In this case the court said: "A mortgage of personal property 
 transfers the general property, and. in the al)sence of any agreement 
 to the contrary, the immediate right of possession. The title Is 
 subject to a defeasance; but unless it has been divested by a per- 
 formance of the condition, or by the exercise of the mortgagor's 
 right to redeem, the mortgagee can alone maintain an action against 
 u stranger for its conversion. It differs in this respect from a 
 pledge, where only a special property passes and the general own- 
 ership remains in the pledgor. At law, and without statute inter- 
 vention, the interest of the mortgagor is not liable to be t^iken on 
 execution, because it is a mere equitable interest, and where there 
 is no legal right there can be no legal remedy. Badlam v. Tucker. 
 1 Pick. 389-:U)0. The precise question here presented is, whether 
 the interest of a mortgagee of personal property in his possession, 
 after breach of condition, and before foreclosure, is liable to be so 
 taken. We are referred to no case in Avhich the point has been dis- 
 tinctly passed upon by this court. In the decision of it, regard 
 must be had to existing h\i:islation. and to the course of adjudica- 
 tion with reference to similar rights of property. There is no s>ib- 
 stantial difference at common law. in respect to the nature of the 
 title between a mortgage of real and a mortgage of personal prop- 
 erty. In both, the title vests in the mortgagee, subject to be de- 
 feated by the performance of the condition. In both, upon a breach
 
 ^118 PERSONAL PROPERTY SUBJECT TO EXECUTION. 492 
 
 The writ under which it is sought to justify a levy 
 upon property may be founded upon a judgment 
 against both the mortgagor and the mortgagee for their 
 
 of condition, tlie interest becomes absolute at law; and yet It was 
 held in the case of Blanchard v. Colburn, IG Mass. 345, that land 
 mortsaued could not be levied on for the debt of the mortgagee, 
 unless he had first entered upon the same; for it was said, although 
 to some extent the mortgagee is seised of the estate in fee simple, 
 defeasible only by the performance of the condition or by redemp- 
 tion, j-et, within the meaning of the statutes which provide for the 
 levy of executions, the land is treated as belonging to the mort- 
 gagor, Hable to be taken in execution as his real estate subject to 
 the mortgage. It was called a pledge for the security of a debt, 
 which, if paid to the assignee of the debt, would discharge the mort- 
 gage and defeat any title acquired by the levy of a creditor of the 
 mortgagee. These and other objections were declared Insuperable. 
 And again, in Eaton v. Whiting, 3 Pick, 484, and Marsh v. Austin, 
 1 Allen, 235, the mortgagee's interest was declared to be in fact 
 but a chose in action, at least until entry to foreclose, and not liable 
 to be levied on for his debts. All right of redeeming mortgaged 
 lands had before these decisions long been subject to be taken* 
 on execution for the mortgagor's debt, and the mode of doing so 
 pointed out by the statutes. St. 1783, c. 57, § 2. The rule thus 
 maintained as to mortgages of real estate applies w'ith equal, if not 
 greater, force to mortgages of personal property. The general prop- 
 erty technically passes, but it passes only as needed for the security 
 intended. It is in the nature of a pledge. If it be for the payment 
 of money, then it is treated but as an incident of the debt. An 
 assignment of the mortgage carries the title to the property, and an 
 assignment of the debt, without the mortgage, by operation of law, 
 ♦•arries with it, in the absence of any controlling agreement or 
 waiver of the right, an equitable lion on the property which at- 
 taches to it in the possession of the mortgagee, and all claiming 
 title under him, with notice. Eastman v. Foster, 8 Met. 19; New 
 Bedford Institution for Savings v. Fairhaven Bank, 9 Allen, 175. 
 I'pon payment or tender to the mortgagee of the debt secured, the 
 title, without further formality, is revested in the mortgagor, and 
 he may maintain replevin for it, or recover damages for its deten- 
 tion. Gen. Sts., c. 151, § 5. But what is more to the point, under 
 our statutes, the mortgagor's interest in the property, so long as 
 his right to redeem remains, is liable, as in the case of real estate, 
 to be attached and taken on execution, as well after as before con- 
 dition broken, and whether the property be in the possession of 
 the mortgagee or not Under such an attachment, the property
 
 493 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 119 
 
 joint debt. Their interest in the mortgaged property 
 is not joint nor otherwise analogous to that of paitners. 
 The writ cannot be levied upon the interest of either, 
 unless such levy be justified, though the writ be against 
 him only. If a levy is made in the same manner as 
 though the parties were joint owners, it is void where, 
 by statute, a levy upon the interest of a mortgagor can 
 be made only in the manner therein described, and the 
 interest of the mortgagee is not subject to levy^at 
 all.^^ 
 
 § 119. Leasehold Interests in Real or Personal Prop- 
 erty. — A term of years in real estate was always, by 
 the common law, regarded as a chattel. It was trans- 
 ferred as personal, and not as real, estate. In this re- 
 spect there was no difference between voluntary and 
 involuntary transfers. Hence, a leasehold interest in 
 lands, for whatever term of years it may continue, 
 must, unless some statute directs otherwise, be levied 
 upon and sold as personal property.^**® One who has 
 
 passes into the custody of the sheriff, and there is only left to tho 
 mortgagee the right to redeem, after a demand, within a limited 
 time, of the amount due on his mortgage. If this be paid, the pos- 
 session of the attaching officer cannot be interfered with, and the 
 mortgagee's title is ended. Gen. Sts., c. 123. §§ 62-71. The rights 
 thus given by statute are inconsistent with the existence of a simi- 
 lar right at the same time to attach the same property in favor 
 of the creditors of the mortgagee. It is impossible that two offi- 
 cers should have (>qual rights of possession by virtue ef attach- 
 ments against difftMvnt parties in favor of different creditors." 
 
 207 Murphy v. Calloupe, 143 Mass. 123. 
 
 208McCreery v. Berney, N. B., 116 Ala. 224: Williams v. 
 Downing. IS Pa. St. 60; Barr v. Doe, 6 Blaclvf. 334. 3S Am. Dec. 
 14.5; Buhl v. Kenyon, 11 Mich. 249; Sparrow v. Earl of Bristol. 1 
 Marsh. 10; Dalzell v. Lynch. 4 Watts & S. 2.".; Bigelow v. Finch. 17 
 Barb. .394; Doe v. Smith, 1 Man. & B. 137; Chapman v. Gray. 15 
 Mass. 439; Shelton v. Codman. 3 Cush. 318; Thomas v. Blackmore. 
 5 Yerg. 113; Glenn v. Peters, Busb. 457, 59 Am. Dec. 503. A lease
 
 S liy PERSONAL PROPERTY SUBJECT TO EXECUTION. 494 
 
 hired personal property for a term has an interest 
 therein, subject to seizure and sale under execution. 
 The purchaser at such sale acquires the right to retain 
 and use the property to the end of the term.^**^ But 
 the terms of the hiring may be such as to amount to a 
 mere license to use, and may, therefore, preclude any 
 transfer of interest, whether voluntary or compulsory. 
 Thus, where a wagon was hired with the provision that 
 it should be used only "for the baker business," and 
 should not be sold or loaned, it was held that the legal 
 effect of this hiring was to confer on the beneficiary a 
 mere personal license, not subject to execution.-*** In 
 ^[innesota, certain sheep were lent to W. to keep for 
 three years. W. was entitled to the increase, and was 
 to deliver annually to the owner of the sheep a certain 
 amount of wool. At the end of the term, W. was to 
 return the same number of sheep as were lent to him. 
 Within less than a year after the commencement of his 
 term, the sheep were seized under process against W., 
 whereupon it was held that he had no interest in the 
 sheep subject to execution.^** The grounds of this de- 
 
 for ninety-nine years is subject to execution as a chattel interest 
 (Bisbee v. Hall, 3 Ohio. 449), though it contains a stipulation that 
 it shall be renewable forever (Reynolds v. Commissioners, 5 Ohio, 
 204). But under the laws of Ohio, it is now settled that permanent 
 leascliolds are to be considered as real estate. McLean v. Rockey, 3 
 McLean, 2.35; Northern Bank of Kentucky v. Roosa, 13 Ohio, 334; 
 Loring v. IMelendy, 11 Ohio, Sn.j. In Connecticut, an estate for 999 
 years, though not a freehold, must be sold as real estate. Munn v. 
 Carrington, 2 Root, 15. 
 
 209 Van Antwerp v. Newman, 2 Cow. 543, 15 Am. Dec. 340; Gor- 
 don V. Harper, 7 Term Rep. 11; Ward v. Macauley, 4 Term Rep. 
 4S9; Manning's Case, 8 Coke, 329; Dean v. Whittaker, 1 Car. & P. 
 347; Houston v. Simpson, 1 .Tones, 513; Duffield v. Spottiswoode, 3 
 Car. &: r. 4.35; Allen v. Trqhart. 19 Tex. 487. 
 
 210 Reinmillor v. Skidmore, 7 Lans. 101. 
 
 211 Williams v. McGrade, 13 Minn. 174; Kile v. Giebner, 114 Pa. 
 St. 38L
 
 4y5 PEK.'iONiiL rUOPERTY 8UBJECT TO EXECUTION. § ll'J 
 
 cision arc very imperfectly stated in the opinicm of the 
 court. Talcing the opinion, together with the syllabus 
 of the reporter, we are inclined to believe that the court 
 regarded the transaction as a personal bailment, in- 
 duced by special confidence reposed in W., and confer- 
 ring upon him' certain rights and interests, which, for 
 tlieir continuance, were to depend upon the continued 
 exercise of his skill and labor in managing the prop- 
 erty. 
 
 It is undoubtedly true, as a legal proposition, that 
 a defendant having no estate in property which he can 
 transfer has none which is subject to execution, for the 
 judgment, the levy, and the sale under execution ordi- 
 narily accomplish no other purpose than might have 
 been realized by a transfer made by the defendant at 
 the date of the inception of the judgment or execution 
 lien. It is very usual to insert in leases provisions for- 
 bidding an assignment or underletting without the 
 consent of the landlord, and, in effect, forfeiting them 
 for any assignment or underletting in breach of these 
 l>rovisions. Hence, it has been held that a tenant, hav- 
 ing no right to assign or underlet, has no interest which 
 is subject to levy and sale under execution.^^' This 
 question has nev(T received any thorough or satisfac- 
 ' tory consideration from the courts. So far as consid- 
 ered and determined, the view sustained by the weight 
 of authority is, that conditions' in leases forbidding as- 
 signments or underletting were intended by the parties 
 to apply only to the voluntary acts of the tenant, and, 
 hence, that a lease is not forfeited by any transfer made 
 by operation of law, included in which are sales under 
 execution, unless it is apparent that such sales were 
 
 "2 Moser v. Tucker, 87 Tex. 94; Boone v. First N. B., 17 Tex. Civ. 
 A pp. 3G5.
 
 § 120 PERSONAL PROPERTY SUBJECT TO EXECUTION. 49(> 
 
 brought about by the tenant for the purpose of evading 
 the conditions of the lease against transfers thereof. ^^* 
 To hold otherwise is, in effect, to permit the creation of 
 valuable interests in lessees which may be held by them 
 in defiance of the demands of their creditors. On the 
 other hand, it may be argued that a landlord, by in« 
 serting a covenant of this character in his lease, shows 
 that he intends to deal with the lessee personally, and 
 is unwilling to accept others as his tenants, or to per- 
 mit them, without his consent, to occupy his property, 
 and to enforce, against his protest, a sale of the tenant's- 
 interest under execution is to require him to accept a 
 new tenant, contrary to the stipulations of his lease, 
 and to suffer the great loss which may result to him 
 from the diminution in value of the leased premises, 
 through the bad faith or inefficient character of such 
 substituted tenant. 
 
 § 120. Property Pawned or Pledged.— A pawn or 
 pledge, unlike a mere lien, "gives an actual, though 
 qualified, property in the thing pawned to the credi- 
 tor"; but, unlike a mor-tgage, it does not divest the 
 debtor of the legal title to his property.^** There re- 
 mains in the debtor a legal interest such as the law will 
 recognize. The only obstacle to the sale of pledged 
 property under execution against the pledgor is that 
 the pledgee, being entitled to the possession, the officer 
 has no right to seize upon the property in violation of 
 the rights of the pledgee. Hence, at common law, 
 
 213 Ttijrjrs V. Pinsoll. Ofi N. Y. 10?,: Jnrkson v. SilTornail. in ,Tohng> 
 278: .Tarkson v. Corliss. 7 Johns, nrjl: Smith v. Putnam. 3 Pick. 221; 
 Mitohinson v. Carter. 8 T. R. 57. rjOO. 
 
 214 Turner on Contract of Pawn. 29: Corelyon v. Lansin?. 2 Caincs 
 Cas. 20(): Barrow v. Paxton. f. Johns. 2r)8, 4 Am. Dor. P,'A; Brown v. 
 Bement, 8 Johns. 97; McLean v. Walker, 10 Jolius. 471.
 
 497 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 12C 
 
 pledged property could not be taken under execution, 
 against the pledgor, without first divesting the pledgee's 
 right of possession by paying or tendering to him the 
 amount of his debt,"*^ and we apprehend that, when- 
 ever the right to seize pledged property under execu- 
 tion is claimed, it must be denied, unless some statute 
 can be referred to expressly or impliedly authorizing 
 such seizure.^*® 
 
 Upon the voluntary surrender of the property to the 
 officer by the pledgee, it may doubtless be sold under 
 execution.^*'' In the United States, there are several 
 decisions holding the interest of a pledgor to be sub- 
 ject to levy and sale, independently of statutes declar- 
 ing it to be so.-*** The rights of the pledgee were pre- 
 served by requiring the property to be returned to his 
 possession after the sale. In some of the states the 
 right to seize pledged property under a writ against the 
 pledgor is given by statute. The rights of the pledgee 
 are protected under some of these statutes, by requiring 
 the judgment creditor to pay the amount due before 
 taking the property from the pledgee; ^*^ under others, 
 
 «i5 Lejrg V. Evans. 6 Meos. & W. 3G: 9 L. .T.. N. S.. Ex. 102; Rogers 
 V Kenay, 15 L. J., N. S., Q. B. 381; Story on Bailments, sec. 353; 
 Vlner's Abr.. tit. Pawn, citing Waller t. Hanger. 3 Bulst. 17; Cogs 
 V. Bernard. 3 Holt, 528; Scott r. Scholey. 8 East. 4G7; Badlam v. 
 Tucker. 1 Pick. 380. 11 Am. Dec. 202; Moore v. Hitchcock, 4 Wend. 
 202; Pomeroy v. Smith, 17 Pick. 85; Stief v. Hart. 1 N. Y. 28. In 
 Pennsylvania, the officer may sell, though he cannot seize, pledged 
 goods. Strodes v. Caven. 3 Watts, 258; Baugh v. Kirkpatrick, 54 
 Pa. St. 84, 93 Am. Dec. 675. 
 
 216 Neil! V. Rogers P. Co., 41 W. Ya. 37. 
 
 21T Mower v. Stickney, 5 Minn. .397. 
 
 sisBakewell v. Ellsworth, G Hill. 484; Stief v. Hart. 1 N. Y. 20; 
 Williams v. Gallick. 11 Or. .337; McConeghy v. McCaw, 31 Ala. 447; 
 Mech. B. Sc I.. A. v. Conover. 14 N. J. Eq. 219. 
 
 219 Mills' Ann. Stats. Col., sec. 2738: Rev. Stats. Me., 1883, p, 725^ 
 sec. 20: Pub. Stats. Mass. 1882, e, IGl, sees. 74-78. 
 Vol. I.— 32
 
 «120 PERSONAL PROPERTY SUBJECT TO EXECUTION. 403 
 
 this paTiiient need not be made except from the pro- 
 ceeds of tlie sale."'^ In Indiana and Louisiana, the 
 right to seize and sell does not seem to depend on any 
 prior payment of the amount due.^^^ In several other 
 states the right to levy and sell is conferred by statutes, 
 subject to the rights of the pledgor, but without stat- 
 ing whether the property may be taken from the pos- 
 session of the pledgee without first paying the sum due 
 him.'^^ In New York, Pennsylvania, Texas, and Wis- 
 consin the pledge WiHj be levied on and sold, but with- 
 out disturbing the possession of the pledgee."'*^ In 
 Vermont, the levying officer may seize the property, 
 and then demand of the pledgee a w^ritten statement of 
 the amount due under oath, and the creditor may pay 
 the same within a designated time, and thereupon be- 
 come subrogated to the rights of the pledgee."^* The 
 jiledgee may levy on the pledged property under a writ 
 in his favor against the pledgor. The effect of such a 
 levy upon the pledgee's lien is in doubt, some of the au- 
 thorities intimating that it is a waiver thereof, and oth- 
 ers insisting that it is not."^ Whether the interest of a 
 pledgee is subject to levy and sale is a question which 
 has received very little consideration. As he has a 
 beneficial interest, accompanied by a rightful posses- 
 
 22© Code Gn.. 1R05. sec. 2002. 
 
 221 Ann. Rev. Stnts. Inrl.. 1S94. sec. 7^4: Rev. Code Vr. La. 1S94, 
 fioc. 043; Horn v. Dennis, 34 Lfi. Ann. 380. 
 
 222 Howell's Ann. Stats. M\oh.. 18R2. sec. 7082: Ptats. Minn., 1894, 
 sec. 5458; Oen. Laws N. H. 1878, c. 236, sees. 3, 4. 
 
 223 Sec. 1412, Code Giv. Proc; Reichenbach v. ;MfKpnn. 95 Pa. St. 
 432; Sayle's Tex. Civ. Stats,, 1897, sec. 2353; Ann. Stats. Wis., 1889, 
 sec. 2988. 
 
 224 Rev. Laws Vt., 1S80, sees. 1180-1185. 
 
 225 .Tones on Plodiros. sees. 509-001; Arendale v. IVforc^.nn. 5 Snoed, 
 703; Sickles v. Riohardson, 23 Hun, 559; Legg v. W'illard, 17 Picli. 
 140, 28 Am. Dec. 282.
 
 499 PERSONAL PROPERTY SUBJECT TO EXECUTION. § IJO 
 
 sion, there seems to be no reason for denying to his 
 creditor the power to reach such interest under execu- 
 tion.--'** AVith respect to subjecting to execution the 
 interest of the pledgor by garnishment or trustee pro- 
 cess served upon the pledgee, the rule is, in the absence 
 of statutory regulation, the same as in the case of direct 
 levy and sale. The right to garnish such property is 
 denied, on the ground that no property can be reached 
 by this proceeding except that which is subject to exe- 
 cution."-' 
 
 If the pledgee chooses to waive his rights, there is 
 no impediment to the levy upon and sale of pledged 
 property under a writ against the pledgor. It has 
 been held in one case that a levy by a pledgee upon 
 pledged property was not a waiver of his rights under 
 his pledge.--** This, if ever true, is true only in ex- 
 ceptional circumstances. The pledgee may, doubtless, 
 cause the levying of execution upon pledged property, 
 whether the writ is based on the judgment, founded 
 upon the indebtedness, to secure which the pledge was 
 made, or upon some other debt. The election of the 
 pledgee to proceed in this manner must ordinarily be 
 treated as a waiver or termination of his pledge.--^ 
 Such must necessarily be the case if he parts with pos- 
 session, for, without possession, there can be no pledge. 
 The levy upon the pledged property, at the instance of 
 
 --0 Turner on Contract of Pawn. ISO; Sanl v. Krnjrer, 9 How. Pr. 
 569. "It seems to have been formerly tbouslit that goods pledged 
 could not be taken in execution at all for the debt of the pawnee." 
 Turner, p. 189, citing Com. Dig., tit. Mortgage, A; Moses v. Couham. 
 Owen, 124. 
 
 :-7 Whitney v. Dean, 5 N. H. 249; Howard v. Card. 6 Grocnl. 3.53; 
 Kergin v. Dawson. 1 Gilm. 8G; Patterson v. Harland. 12 Ark. 158. 
 
 -2s Arendale v. Morgan, 5 Sneed, 703. 
 
 :23Legg V. Millard, 17 Pick. 140, 28 Am. Dec. 282; Jacobs v. 
 T.atour, 5 Bing. 130.
 
 § 120 PERSONAL PROPERTY SUBJECT TO EXECUTION. 600 
 
 the pledgee, is valid, because it is no longer pledged, 
 and its sale must vest title in the purchaser, free of 
 the claims both of the pledgor and of the pledgee.^** 
 
 We have met with no cause considering an attempt 
 to subject to execution the interests of a pledgee in 
 the pledged property. He has neither a legal nor an 
 equitable title, and hence apparently has no interest 
 subject to levy under execution in the ordinary mode, 
 though he often has a right of possession for a defin- 
 ite period. Indirectly, his interest may probably be 
 reached, as by garnishment or some other proceeding, 
 by which his debt may be transferred to his creditor, 
 for the latter, upon becoming the owner of the debt, 
 must also become entitled to the right to enforce any 
 lien existing to secure its payment. 
 
 Of course, if a pledge is valid, no proceeding taken 
 against the pledgor only can affect the rights of the 
 pledgee. Therefore, if the pledge has been effected by 
 the indorsement and delivery of certificates of cori^o- 
 rate stock to the creditor, but no entry or transfer has 
 been made upon the books of the corporation, such 
 stock cannot be levied upon, though the execution 
 creditor has no notice of the pledge.'^^ So, if an officer 
 disregards the rights of a pledgee by forcibly taking 
 property from his possession and levying a writ there- 
 upon, this wrongful act does not impair the pledgee's 
 lien.^''^ Though statutes of the state authorize the in- 
 terest of a pledgor to be sold under execution, an of- 
 ficer is not entitled to disturb the possession of ihe 
 
 230 Swett V. Brown, 5 Pick. 178; Whitakor v. Sumner, 20 Pick. 
 399; Sickles v. Richardson, 23 Tlxm, 559. 
 
 231 Port Townsend N. B. Co. v. Port Townsend G. & F. Co., 6 
 Wash. .597. 
 
 232 Lewis V. Dillard, 7G Fed. Rep. 688.
 
 501 PERSONAL PROPERTY SUBJECT TO EXECUTION, § 121 
 
 pledgee, and, if he does so, he commits a trespass for 
 which he is personally auswerabler^^ It is clear that 
 some remedy ought to exist to reach the interests of 
 pledgors witliout im[)airing the rights of pledgees; and 
 also that the remedy which will best accomplish these 
 two objects is by garnishment. Statutes have, there- 
 fore, been enacted in many of the states extending that 
 remedy so as to reach the interest of pledgors in prop- 
 erty while m the possession of pledgees.^^'* 
 
 § 121. Estates of Bailees.— The mere fact that prop- 
 erty is in the possession of a bailee interposes no ob- 
 stacle to its seizure under an execution against its 
 owner.^^'* When the contract of bailment is. such a» 
 to give the bailee some beneficial interest in the prop- 
 erty, the case is different. An officer, acting under an 
 execution, cannot, by his levy, obtain nor transfer any 
 greater interest in the property than was possessed by 
 the defendant at the time of the levy. Hence, if a 
 bailee has. ns against the owner, the right to retain 
 possession of the property for a specified time, he has 
 the same right as against an officer proceeding under a 
 writ against the owner. The officer cannot, in such a 
 case, lawfully seize the property.^^*^ He can only sub- 
 ject it to execution where some statute has provided 
 
 233 Dixon r. W^iite S. M. Co., 128 Ta. St. 397, lo Am. St. Rep. 
 683. W\^lsh V. Boll. 32 Pa. St. 16. 
 
 2S4 Soe soo. 54.'), Code Cir. Proe. of Cal.: Treadwell v. Davis, 34 Cal. 
 €01. 94 Am. Dec. 770: Rev. Stats. Me.. 1SS3. p. 72,"j. sec. 29; Howell's 
 Ann. Stats. Mich.. ISRZ sec. 7GS2: Aldrich r. Woodcock. 10 X. TT. 
 90: ITushes v. Corey, 20 Iowa, 399; Carty v. Fensteniakcr. 14 Ohio 
 St. 457; Blake v. Hatch. 25 Vt. 555; Meyer v. Miller, 51 Neb. G20: 
 Avery v. Monroe. 172 Mass. 132. 
 
 22r, Thomas v. Thomas, 2 A. K. Marsh. 430; Beale v. Diggcs, G 
 Gratt. 582. 
 
 2.16 liartford v. Jackson, 11 N. H. 145.
 
 §§ 122, 123 PERSONAL PROPERTY SUBJECT TO EXECUTION. 502 
 
 him with the means of reaching property of which he 
 is not authorized to take possession. 
 
 § 122. Estates in Reversion or Remainder.— The diffi- 
 culty suggested in tlie preceding section, of levying an 
 execution on the goods of a bailor while the bailee haS" 
 the right to continue in possession, is also to be met in 
 all cases where an execution is ought to be levied on 
 an estate in reversion or remainder in chattels. In 
 such a case the owner of the estate in possession need 
 not surrender the property to the sheriff; and it seems 
 to be conceded that, on common-law principles, the of- 
 ficer cannot sell property of w^iich he cannot take pos- 
 session. Hence, it has been held that an estate in 
 reversion or remainder cannot be sold under execution 
 at law.^^'' But in North Carolina a sale under execu- 
 tion of an estate in reversion or remainder was sus- 
 tained, the owner of the estate in possession having 
 produced the property, and had it present at the 
 sale.^^** An estate in remainder in chattels is now lia- 
 ble to attachment under the statutes of Tennessee.^^® 
 
 § 123. Inchoate Interests.— There may be inchoate 
 interests in property which do not become settled nor 
 perfect until the lapse of a specified time, or the per- 
 formance of certain conditions. Thus, the owner of a 
 flock of sheep may give them into the custody of some 
 other person, on an agreement by Avhich, in considera- 
 tion of care to be bestowed, such person is to become 
 
 237 Allen V. Scurry, 1 Yore 36, 24 Am. Dor. 4?,G: nnto to Strinsr- 
 fellow V. Brownesoppo, Dyer, G7 1); Sale v. Snundcrs, 24 Mi.ss. .38, 
 57 Am. Dec. 157; Goode v. Longmiro, ori Ala. GG8; Smith v. Niles, 20 
 Vt. .31.5, 49 Am. Dec. 7.S2. 
 
 238Blanton v. Morrow, 7 Irod. Eq. 47, 53 Am. Doc. .391; Knight v» 
 Leak. 2 Dev. & B. 133. 
 
 239 I.ockwood V. Nye, 2 Swan, 515, 58 Am. Dec. 73.
 
 603 PERSONAL PROPERTY SUBJECT TO EXECUTION. g 123 
 
 entitled to all or some portion of the wool to be grown 
 on such sheep. In such case, it has been held that the 
 owner continued to be the owner of the sheep and of 
 the wool until shearing: time, or until a full perform- 
 ance of the conditions of the agreement; and, therefore, 
 that the other person had no interest in the wool, prior 
 to shearing time, which was subject to execution.""*" 
 Two bands of sheep were leased, for the i)urpose of be- 
 ing kept by the lessees until a date designated, at which 
 time they were to be delivered to the lessors with one- 
 half of the increase, less fifteen per cent of the original 
 number, the remaining part of the increase to be re- 
 tained by the lessees for the care given to the sheep. 
 If the loss of the sheep proved greater than fifteen 
 per cent, the lessees were to make it up out of other 
 sheep of the same grade. The title to the sheep and 
 their increase was to remain in the lessors until their 
 share of the increase should be delivered to the les- 
 sees. They surrendered possession of one baud of 
 sheep to the lessors, including in which were fifty- 
 eight more sheep than the latter were entitled to out 
 of that band, but it was agreed that these might be 
 kept to make good any loss which might be found to 
 have taken place in the other band when a final di- 
 vision should be made, according to the terms of the 
 lease. AVrits issued against the lessees, under which 
 the sheriff seized sheep in the possession of the les- 
 sors, but it was held that the lessees had no inter- 
 est in the sheep which was subject to execution.^^* 
 A large number of sheep were, by their owner, placed 
 in possession of another jDerson, to be cared for and 
 furnished with feed until ready for market. He was to 
 
 240 Hasbronc'k v. Bouton. 00 Bnrl). 41^; 41 How. Pr. 20S. 
 
 241 Sweeuey v. Darcy (Mont.), 53 Pac. 540.
 
 § l'2-3 PERSONAL PROPERTY SUBJECT TO EXECUTION. 604 
 
 be paid for liis services to tlie sheep what they would 
 bring in the market over the first cost, cost of ship- 
 ment, feed, commission for sale, and interest on the 
 money invested. Writs issued against the person who 
 had received the sheep under this contract and cared 
 for and fed them,and the}' were levied upon as his prop- 
 erty. An action of replevin was thereupon brought 
 against the levying officer by the owners of the sheep, 
 and the court, in construing the contract, held that it 
 did not create any partnership between the owner and 
 the person furnishing the care and feed, nor any prop- 
 erty interest whfftsoever in the latter, and, hence, that 
 a judgment against the officer was proper.^^^ Similar 
 principles apply to the owner of lands and a cropper 
 thereon, when the former is to have one-half of the 
 crop "in the half-bushel." In this and similar cases, 
 it is considered that the title belongs to him who has 
 raised the crop, "until it is threshed, measured, and 
 one part set off to the landlord"; until this division is 
 made, the landlord's part is not subject to execution.^^^ 
 A father, owning a large and well stocked farm, en- 
 tered into an agreement with his son to take the con- 
 trol and management of it, and of all the livestock 
 and implements of husbandry thereon, to maintain re- 
 pairs, pay taxes, replace stock disposed of, and to have 
 for his own the net proceeds. This agreement was sub- 
 ject to be determined at any time at the pleasure of 
 either party. The son, after acting under the agree- 
 ment for several years, became financially embarrassed, 
 and the question of whether he had any interest sub- 
 ject to execution arose. The court held that the ar- 
 
 242 McNamara v. Godair, 161 111. 228. 
 
 243 Williams v. Smith, 7 Ind. 559; Gordon v. Armstrong, 5 IrecL 
 409; Deaver v. Ilice, 4 Dev. & B. 431, 34 Am. Dec. 388.
 
 505 PERSONAL rilOl'EilTV SUJiJlCCT TO KXKCL'TIOX. § 123 
 
 rangoiiiont did not croate the relation of laiidhjid and 
 tenant, but rather that of master and servant, that it 
 was a bailment which did not vest any interest in the 
 son, either in the property placed in liis hands by the 
 father or in the proceeds thereof, though, wliih* tlie re- 
 lation continued, the son had power to sell without fur- 
 ther authority from his father, ;ind, finally that the son 
 had no interest subject to execution."*^ So where A 
 was to cut down trees and haul the l(»jj;s to a certain 
 place for market, and B, the owner of the land, was to 
 sell the lo^s, and, and after deducting stumpage and ad- 
 vances made for supplies, was to pay A the balance, 
 it was held that A had no interest in the logs subject 
 to execution.-**^ If a land-owner stocks his farm and 
 puts it in charge of a tenant, under an agreement that 
 the tenant shall have one-half of the growth of the 
 stock and one-half of the wool produced by th? sheep, 
 the latter, prior to the expiration of his lease, has a 
 mere inchoate interest, which is not subject to execu- 
 tion."^" If, however, one obtains the ownei-ship of 
 property, with a light to its possession, his title is not 
 to be regarded as inchoate merely because he has not 
 paid for it. Thus, where a contract was entered into, 
 by the terms of which the ownt^rs of a stone quarry 
 l>ermitted certain contractors to quarry and remove 
 stone for two outlet locks in the Pennsylvania canal, 
 the quantity to be ascertained by measurement when 
 
 24* Hatch V. Helm, 86 Fed. Hop. 4,m 
 
 245 Pelton V. Temple, 1 Hann. (N. B.) 2~:^. See Provis v. Clieves. 
 R. I. 53, 98 Am. Dec. 867. But in cases like tliose referred to in 
 the above section, it may be that the defendant has a special in- 
 terest subject to execution. See Weaver v. Darby. 42 Harb. 411. 
 where D. was to cut, hew. and raft certain timber to be sold by B.. 
 nnd D. was to have ten and one-half cents per cubic foot for the 
 timber sold. 
 
 2*6 Smith V. Meech, 26 Vt. 233.
 
 § 124 PERSONAL PROPERTY SUBJECT TO EXECUTION. 506 
 
 in the locks, and to be paid for as soon as payments 
 were made to contractors on the canal, it was held 
 that as soon as the stone was quarried, though it re- 
 mained at the mouth of the quarry, it was subject to 
 execution against the contractors, on the ground that 
 the land-owner had trusted to their personal responsi- 
 bility.'^^ 
 
 § 124. Conditional Sales.— In Martin v. Mathiot,24« 
 property was delivered into possession of a person un- 
 der an agreement that the title w^as not to pass until 
 he made payment of a sum stipulated as the purchase 
 price. This transaction was regarded by the court as 
 fraudulent as against the creditors of the person in 
 possession; and they were therefore allowed to seize 
 the property under execution. It was said that, by en- 
 couraging such transactions, people would be enabled 
 to obtain a fictitious credit, by bein^^ invested with the 
 apparent ownership of the property of others; and that 
 creditors would necessarily be defrauded. In a subse- 
 quent case of a conditional sale in the same state, 
 where there was no open, visible change of possession, 
 it was held that, as nothing had been done to deceive 
 creditors, they could not seize upon the property as 
 that of the vendee.-^^ With the exception of the case 
 first referred to, conditional sales have been every- 
 where upheld. Contracts of this character have been 
 supposed to be well calculated to promote fraud and to 
 expose innocent purchasers to the peril of loss from 
 dealing with persons as owners of property, because 
 
 247 Watts V. Tibbals. 6 Pa. St. 447. 
 
 248 14 Serj;. & R. 214, 16 Am. Dec. 491. Seo TTank v. Lindorman, 
 64 Pa. St. 400. 3 Am. Rf-p. fil2: Ketohnni v. W'atson, 24 111. 592. 
 
 249 Lehigh Co. v. Field, 8 Watts & S. 232.
 
 607 PERSONAL PROPEIITY SUBJECT TO EXECUTION. § 124 
 
 thej had been invented with the ordiuary indicia of 
 ownership. Hence, in several states, statutes have been 
 enacted, requiring contracts for conditional sales to be 
 in writing and to be recorded in some public office, and, 
 where these statutes are not complied with, the salc^ 
 are treated as absolute against the vendor, and, hence, 
 third persons may safely deal with the vendee in pos- 
 session, unless the contract of sale has been executed 
 and recorded as prescribed by statute, or they have 
 otherwise been given notice thereof. Such substan- 
 tially are the statutes of Connecticut,'''^* Georgia,''*'*^ 
 Iowa,-''"'" Kansas,-''" '^ :Maine,-"'*' '^ Minnesota,-''*"^ Mis- 
 issippi, -^*^ ' Missouri,^^** ^ Nebraska,^^** ^ New Hamp- 
 shire,2=<* i ^ew Jersey,^^^ ^ New Yorlv,-=" ^ North Caro- 
 lina,2^<* ^ Ohio,-=<* °^ South Carolina,--'" " Texas,^-'" ° Ver- 
 montr''**P Virginia,-^" ^1 Washington,--'" «■ West Yir- 
 
 250 Lee Brothers i^'. Co. v. Cram, G3 Conn. 4.33. 
 
 25oa]sranu v. Thompson, 86 Ga. 347; Rhode Island L. W. v. Em- 
 pire L. Co., 91 Ga. 639. 
 
 250b Wright V. Barnard, 89 la. 160; Pash v. Weston, 52 la. 675. 
 
 2."i0c First N. B. v. Tufts. 53 Kan. 710. 
 
 25od Holt V. Knowlton. SO Me. 456; Field v. Gellerson, 80 Me. 270. 
 
 25oe Kiniioy v. Cay, 30 Minn. 210. 
 
 250f Tufts T. stone, 70 Miss. 54; .Tennin.cs v. Wilson, 71 Miss, 42. 
 
 25og Oestor v. Sitlington, 115 Mo. 247; Bodenl'.aush v. Kelton, 130 
 Mo. 558; Peters v. Featherstun, 01 Mo. App. 400. 
 
 25oh Peterson v. Tufts, 34 Neb. 8; McCormick H. M. Co. v. Gallon, 
 48 Neb. 840. 
 
 2601 Gerrish y. Clark, 64 N. 11. 492. 
 
 250j Knowlcs L. W\ v. Vacher, 57 N. J. L. 490. 
 
 250k Moyor v. Molntyre. 43 Hun, 58. 
 
 26oiBri"ni V. Lockhart, 93 N. C. 101; Clark v. Hill, 117 N. C. Ill, 
 53 Am. St. Ren. 574. 
 
 250m Weil V. State, 46 Oh. St. 450. 
 
 250n Herring v. Cannon, 21 S. C. 212. 53 Am. Rep. 661. 
 
 2500 Loving P. Co. v. Johnson, 08 Tex. 27:»; Knittel v. Gushing. 
 57 Tex. 354, 44 Am. Rep. 598; Parlin v. Harrell, 8 Tex. Civ. App. 
 368. 
 
 250p]si,.phai! V. Gerry. ,55 Vt. 174: Church v. McLeod. .58 Vt. 541. 
 
 260q Hasli V. Lore, 88 Va. 716; Callahan v. Young. 90 Va. 574. 
 
 250r Peterson v. Woolery. Wash. .".!)(l.
 
 § 1-24 PERSONAL PROPERTY SUBJECT TO EXECUTION. 508 
 
 gmiar''^^ and Wisconsin.-"'**'^ These statutes make 
 it very desirable, in the several states in which 
 they are in force, to be able to determine when a 
 contract or transaction amounts, in contemplation 
 of law, to a conditional sale. In other states are 
 statutes in effect declaring: that mortgages of chat- 
 tels must be executed and recorded in the modes pre- 
 scribed, to be effective against creditors and subsequent 
 purchasers and incumbrancers, and, under these stat- 
 utes, contracts which purport to be leases or condi- 
 tional sales may be challenged on the ground that they 
 are in substance mortgages not executed or recorded 
 in the mode prescribed. 
 
 The transactions which have received, and must con- 
 tinue to invite, the most frequent judicial considera- 
 tion for the purpose of determining whether or not 
 they are conditional sales ai'e (1) the consigning of 
 goods to a dealer, factor, or other agent with authority 
 to sell them, but seeking to retain title in the principal 
 or vendor, and at the same time to make the agent 
 or dealer responsible for the purchase price or for 
 the value of the goods; (2) leases which contemplate 
 that the lessee shall become the owner of the leased 
 property on the payment of a designated sum or sums 
 at the times and in the manner specified in the con- 
 tract: and (3) professed sales in which the vendor stipu- 
 lates that he shall retain title until full payment is 
 made of the purchase price. In the first place, it may 
 be conceded that the legal effect which the parties at- 
 tribute to their contract, or the name by which they 
 
 250s P,aldwin v. Van Wagner, 'iP> W. Va. 293, 
 
 25ot Kellogg V. Costello, 93 Wis. 232; Sheldon Co. v. Mayors, 81 
 Wis. 627.
 
 509 PERSONAL PROPERTY SUBJECT TO EXE' UTIOX. § 124 
 
 designate it, is not controlling, and that it is their real 
 intention or purpose, as manifested by the terms of 
 their contract, which must be given effect. ''"^^ 
 
 The fact that possession is delivered under a con- 
 tract of sale does not enlarge the rights of the vendee; 
 nor does it authorize his creditors to regard the sale 
 as absolute. Until the purchase-money is paid, or the 
 other conditions of the contract are performed, the title 
 remains with the vendor, if he so stipulated in his con- 
 tract. The vendee is powerless to transfer a title which 
 he does not possess, although the purchaser from him 
 is ignorant of the true condition of the title.^'^ This 
 rule has sometimes been held to be inapplicable as 
 against purchasers of the property from the vendee in 
 possession, having no notice that his title was not ab- 
 solute.*^^ 
 
 Ordinarily, the vendee of a conditional sale has no 
 interest subject to execution.^^* Or, more accurately 
 
 SBi Andrew v. State Savings Bank. 20 Colo. 313. 46 Am. St. Rep. 
 291; Foster v. Ropes. Ill Mass. 10: Hamilton v. Gordon. 22 Or. 5.")7; 
 Rnffier v. Womack. 30 Tex. 332; Hudson v. Wilkinson. 45 Tex. 444. 
 
 252 Kohler v. Hayes, 41 Cal. 455; Ash v. Putnam, 1 Hill, 302; 
 Bailey v. Harris, 8 Iowa, 331, 74 Am. Dec. 312; Sargent v. Met- 
 calf, 5 Gray, 306, 66 Am. Dec. 30.S: Wliitwell v. Vincent. 4 Pick. 
 449, 16 Am. Dec. 355; Baker v. Hall, 15 Iowa, 279; Dunbar v. 
 Rawles, 28 Ind. 225. 92 Am. Dec. 311; Ballard v. Burgett. 40 N. Y. 
 314; Lane v. Borland, 14 Me. 77, 31 Am. Dec. 33; Luey v. Bnndy, 
 9 N. H. 208. 32 Am. Dec. 359; Burbank v. Crooker. 7 Gray, 158. G6 
 Am. Doc. 470; Ketchum v. Brennan. 53 Miss. 596; Mount v. Harris, 
 1 Smedes & JI. 185. 40 Am. Dec. 89; note to Palmer v. Howard, 1 
 Am. St. Rep. 63: Rose v. Story, 1 Pa. St. 190. 44 Am. Dec. 121; 
 Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; Hirschorn v. Can- 
 ney, 98 Mass. 150; Cole v. Berry, 42 N. J. L. 308. 
 
 253 Jones V. Clark. 20 Colo. 353; George v. Tufts. 5 Colo. 192; 
 Murch V. Wright. 46 111. 487. 95 Am. Dec. 455; Lucas v. Campbell, 
 88 111. 447; Van Duzor v. Allen. 90 111. 499. 
 
 254 Sage V. Sleutz. 23 Ohio St. 1: Gambling v. Read. Meigs. 281; 
 Buckmaster v. Smith. 22 Vt. 20:i; Woodbury v. Long. S Pick. 543, 
 19 Am. Dec. 345; Bigelow v. Huntley, 8 Vt. 151; Herring v. Hop-
 
 § 124 PERSONAL PROPERTY SUBJECT TO EXECUTION. 510 
 
 speaking, the title retained by the vendor cannot be 
 taken away or impaired by writs against the vendee. 
 The latter, though the sale is conceded to be condi- 
 tional, may have a valuable interest in the property. 
 The contract may give him a right to retain possession 
 for a specified time, or as long as he complies with the 
 contract of purchase, and, where such is the case, we 
 see no reason why his interest may not be subject to 
 execution, the purchaser at the execution sale acquir- 
 ing the rights of the defendant in the writ, to wit, the 
 right to take possession of the property, and, on com- 
 pliance with the contract of purchase, to be vested 
 with the complete title thereto.^^" It is otherwise 
 
 pock, 3 Duer, 20; 15 N. Y. 409; Cardinal v. Edwards, 5 Ner. 36; 
 Hart V. Carpenter, 24 Conn. 427; Strong v. Taylor, 2 Hill. 32G; 
 Harkness v. Russell, 118 U. S. 6G3; Bradsliaw v. Warner, 54 Ind. 
 58; Blanchard v. Child, 7 Gray, 157; Armington v. Houston, 38 Vt. 
 448, 91 Am. Dec. 366; Rowan v. State Bank, 45 Vt. 160;. Reeves v. 
 Harris, 1 Bail. 563; Baylor v. Smithers, 1 Litt. 105; Hussey v. 
 Thornton, 4 Mass. 405, 3 Am. Dec. 224; Marston v. Baldwin, 17 
 Mass. 006; Clark v. Wells, 45 Vt. 4, 12 Am. Rep. 187; Barrow v. 
 Coles, 3 Camp. 92; Barrett v. Pritchard, 2 Pick. 512, 13 Am. Dec. 
 449; Wilder v. Stafford, 30 Vt. 399; Reed v. Upton, 10 Pick. 522, 20 
 Am. Dec. 545; McFarland v. Farmer, 42 N. H. 386; Lucas v. Birdsey, 
 41 Conn. 357; Edgewood D. Co. v. Shannon, 60 Ark. 133; Rodgers 
 V. Bachman, 109 Cal. 552; Ellis v. Holland, 98 Ga. 154; Nichols v. 
 Ashtou, 155 Mass. 205; Dewes B. Co. v. Merritt, 82 Mich. 198; Hart 
 V. Livermore F. & M. Co., 72 Miss. 809; Silver Bow M. Co. v. Lowry, 
 6 Mont. 288; Stoddart v. Price, 143 Pa. St. 537; Russell v. Hark- 
 ness, 4 Utah, 197, 118 U. S. 663; Aultman v. Sitka, 85 Wis. 359; 
 Gerow v. Costello, 11 Colo. 560, 7 Am. St. Rep. 260; McComb v. 
 Donald's Ad.. 82 Va. 903; Prentiss T. etc. Co. v. Sehirmer, 136 N. Y. 
 305, 32 Am. St. Rep. 737; Holt M. Co. v. Ewing, 109 Cal. 353; Ver- 
 mont M. Co. V. Brow, 109 Cal. 230, 50 Am. St. Rep. 37. For law In 
 force In Iowa, see Pittsburgh L. & C. Works v. State Bank, 8 Chic. 
 L. N. 41; Moseley v. Shattuck, 43 Iowa, 540. 
 
 255 Tanner v. Hall, 89 Ala. 628; Bingham v. Vandergriflf, 93 Ala. 
 283; Newhall v. Kingsbury. 131 Mass. 445; Hervey v. Diamond, 67 
 N. H. 342; Ilurd v. Fleming, 34 Vt. 169.
 
 511 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 124 
 
 wTion the vendee has never had any right of possession, 
 or, having once had that right, has hjst it.^" 
 
 Goods are often consigned to a dealer, factor, or other 
 agent for the purpose of sale, and there can be no doubt 
 that this does not of itself give liiui any interest in 
 them, subject to execution. ''"'' Whether goods placed 
 in the hands of another for sale are so placed as the 
 result of a conditional sale t<» him, or in pursuance of 
 an agreement that he shall receive and sell them and 
 account for the' proceeds, there is no doubt that he ac- 
 quires no interest in them Miiicli can be subjected to 
 execution in prejudice of the rights of the owner. The 
 latter may, however, by his contract seek to secure to 
 himself advantages which are not consistent with any- 
 thing less than a sale of the property, and, where such 
 is the case, the transaction must be treated as an ab- 
 solute sale, no matter by what name the parties thereto 
 may agree to call it. The chief difficulty is in deter- 
 mining whether, when the parties themselves by their 
 contract disclaim a sale of the property, such dis- 
 claimer cannot be accepted, because the rights and ob- 
 ligations resulting from the contract are consistent 
 with nothing but a sale. A contract by which a per- 
 son agrees to receive goods on consignment, to be sold 
 by him as agent of the owner, to make monthly re- 
 ports of sales, all proceeds of sales to belong to the 
 consignor until the contract price is paid in cash, which 
 is to be done for each article as soon as a sale is made, 
 and with no provision for the acquisition of title by 
 the consignee, and expressly reserving such title to the 
 consignor, is not a contract of sale, but of bailment 
 
 256 Sage V. Sleuth, 23 Oh. St. 1. 
 
 25T Berry v. Allen. .W 111. App. 149; Bentz v. Geissell, 24 Minn. 
 1C.9; Men-ill v. Kiiiker, Bald. 52S.
 
 § 124 PERSONAL PROPERiY SUBJECT TO EXECUTION. 512 
 
 merely, notwithstanding tlie contract provides tliat the 
 compensation of the consignee shall be whatever he 
 shall receive for the goods, above the contract price, 
 and that, if any be removed from his place of business, 
 they shall be paid for immediately; that he shall keep 
 the goods insured for the benefit of the consignor, shall 
 pay freight, safely store and keep the goods in good 
 condition, hold them free from all charges and taxes, 
 and assume all risk of damage or loss from any cause, 
 and that he shall sell in a reasonable time, and, on his. 
 failure to do so, his agency shall terminate at the op- 
 tion of the consignor, and the unsold goods be subject 
 to his order, free from all charges.^^* In truth, the 
 general rule would seem to be that, where the contract 
 does not look to an absolute acquisition of title by the 
 consignee, agent, or vendee, or to his becoming ab- 
 solutely responsible for the purchase price, the sale can- 
 not be regarded as absolute, or as creating in his favor 
 any interest in the goods, rendering them subject to 
 execution against him.^^® It seems to make no differ- 
 ence that the vendee has been intrusted with the ap- 
 parent ownership of the property, with power to dis- 
 pose of it in the ordinary course of business. Where 
 E. furnished G. with a stock of ready-made clothing, 
 with which to go in business in G.'s name, the prop- 
 erty to remain E.'s, and G. was to purchase of no other 
 person but K., was to do a cash business only, and to 
 remit the proceeds to R after taking out his salary and 
 
 25S National Bank v. Goodyear. 00 Ga. 711; Walker v. Butterick, 
 105 Mass. 237; Milburn M. Co. v. Teak, 89 Tex. 209; Sturm v. Boker, 
 150 U. S. 132. 
 
 259 Dean v. Lombard. 61 111. App. 94; Lenz v. Harrison, 148 111. 
 598; Chickerinff v. Bastress, 130 111. 206, 17 Am. St. Rep. 309; 
 Barnes S. & L. Co. v. Bloch Bros. T. Co., 38 W. Va. 158, 45 Am. St. 
 Rep. 486.
 
 613 PERSONAL PROl'EKTY SUBJECT TO EXECUTION. § 124 
 
 expeDScs, it was held that the goods were not subject 
 to execution against G.^"^ This rule is also applica- 
 ble to a consignment of property to a dealer, to be by 
 him sold and the proceeds remitted to the consignor, 
 the property to remain the consignor's till paid for.'*** 
 But this principle in regard to conditional sales will 
 not be allowed to support mere devices, resorted to for 
 the purpose of avoiding creditors. Hence, where liq- 
 uors were sold to a saloonkeeper, to be by him re- 
 tailed in the course of his business, with an agreement 
 that the portion not sold should continue the property 
 of the wholesaler, the court regarded the transaction 
 as an absolute sale, and the agreement as colorable 
 only.^"* ^ If these decisions can be harmonized with the 
 prevailing authorities on the subject, it must be upon 
 the ground that the peculiar character of the property 
 and the circumstances of the particular case indicated 
 that the transaction was not in good faith, but was a 
 mere device resorted to for the purpose of defrauding 
 creditors. 
 
 Where an apparent absolute liability on the part of 
 the consignee or vendee for the property is created by 
 the contract, the sale must be deemed unconditional 
 or absolute, though such contract declares that it is 
 not, and seeks to reserve title to the vendor until pay- 
 ment of the purchase price. By a contract entered 
 into between two persons, it was agreed that one of 
 them should deliver certain property to the other 
 which the latter was to sell on commission, at retail 
 prices, and that such commission should be the differ- 
 
 260 Robinson v. Chapline, 9 Iowa, 91. 
 
 261 Cole V. Mann, 62 N. Y. 1. 
 
 26ia Ludden v. Ilazen, 31 Barb. 650; Bonestell v. Flack, 41 Barb. 
 435, 27 TTow. Vv. 310. 
 Vol. I. -33
 
 § 124 PERSONAL PROPERTY SUBJECT TO EXECUTION. 614 
 
 enco between the price at which the property was sold, 
 and the price at which it was billed on the consign- 
 ments. The consignee agreed to sell either for cash 
 or to take notes froiii his customers on blanks fur- 
 nished by the consignor, and in the latter's name and 
 payable to his order, such notes to be guaranteed by 
 the consignee, and, if not paid at maturity, should at 
 ouce be paid by the consignee. If sales were made for 
 cash the consignee should at once turn it over to the 
 consignor. The consignee also agreed to advance to 
 the consignor notes when goods were received to the 
 full amount of their value, but it was stipulated that 
 such notes should not be in settlement for the goods, 
 but the proceeds of all goods sold should, when turned 
 over to the consignor, be credited on the consignee's 
 notes. This contract was held to amount to an abso- 
 lute sale of the goods received by the consignee. The 
 court distinguished this case from others decided by it 
 on the ground that the contract, in providing that 
 Rotes be given for the purchase price, when interpreted 
 in accordance with legal principles, or the common un- 
 derstanding of men, meant that an absolute indebted- 
 ness should exist against the consignees and in favor 
 of the consignors, and this was inconsistent with any 
 other than an absolute sale.^"^ A like effect was 
 attributed to an agreement, purporting to appoint 
 agents to sell tobacco at such prices as the principal 
 might, bv his price card, from time to time, require; the 
 compensation to be a specified sum for each pound of 
 tobacco sold, and that the agent warranted every ship- 
 ment made to him should be paid for. He was required 
 to send notes on the receipt of each invoice, or to make 
 advances in cash, and to insure all goods shipped to 
 
 262 Peoria M. Co. v. Lj'ons, 153 III. 427.
 
 515 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 124 
 
 him, to protect his warranty.^"^ Wholesale dealers in 
 coffee appointed persons, desii^nated as aj^ents, who 
 agreed to sell, in the regular course, the goods con- 
 signed to thera, tlie title to remain in the consignor. 
 The goods were to be sold in the names of the con- 
 signees at such prices as the consignors should dictate. 
 The consignees were to guarantee the sale of each con- 
 signment and to pay therefor within sixty days from 
 its date, and to assume all risks as to the credit of the 
 parties to whom sales should be made, to remit the full 
 amount of the consignment, less commissions, by the 
 end of sixty days, whether it should have been sold or 
 not, or whether the proceeds had been collected or not. 
 The consignees insured against any decline in prices, 
 and were, on their part, entitled to all advances in the 
 price of unsold goods. The relations between these 
 parties were held to be those of vendors and purchasers, 
 and the title of the goods received by the consignees 
 to be in them.^^'* 
 
 Sometimes, instead of putting the contract of trans- 
 action in the form of a consignment, with authority to 
 sell, or of a conditional sale, with a reservation of title 
 until payment of the purchase price is made, it is guised 
 in the form of a lease, by the terms of which the lessee 
 agrees to pay a stipulated sum as rent, and, after mak- 
 ing all the payments provided for, is to become the 
 owner of the property. Such a contract is not a lease, 
 but a sale, complete or conditional.^"^ Whether it is 
 
 263 Mack V. Drninniond. 48 Neb. 397. 58 Am. St. Rep. 691. 
 
 264 Aspinwall M. Co. v. .Tohnson. 97 Mich. 431; Kellam v. Brown, 
 112 N. C. 4.'1: Brnunn v. Koally. 146 Pa. St. 519. 28 Am. St. Rep. 
 811: ArlMickle v. Kirkpatriok. 98 Tonn. 221. 60 Am. St. Rep. fCA. 
 
 265 Parke etc. Co. v. White River Co., 101 Cal. 37: ITine v. 
 Roberts, 48 Conn. 267. 40 .\m. Rep. 170; T>ooinis v. Braqrir. ."0 Conn. 
 228, 47 Am. Rep. 638; Cromptou v. Beech, 62 Conn. 2.3, 36 Am. St.
 
 § 124 PERSONAL PROPERTY SUBJECT TO EXECUTION. 51(7 
 
 to be deemed an absolute sale, and the money stipu- 
 lated to be paid as reut an unconditional indebtedness, 
 so that the property is subject to execution against the 
 person designated as the lessee, is to be determined by 
 the test hereafter stated. 
 
 Where the memorandum of a sale was as follows: 
 "Brighton, July 7, 1873, John McDonald bought of D. 
 McKinney and Son one roan mare for |300. Paid |50. 
 The mare to be paid for August 1st; if not, to be re- 
 turned to D. McKinney and Son" — it was held that this 
 was not a conditional sale, and that the title therefore 
 vested in the purchaser on the delivery of the property 
 to him.^*'" A few cases, while conceding that, as be- 
 tween the original parties, a conditional sale does not 
 transfer the title until compliance with the condition, 
 hold that a purchaser from the vendee in possession, in 
 good faith and for value, acquires a perfect title freed 
 from the condition.^"'' These cases have, except in the 
 
 Rep. 323; Ross v. McDuffie. 91 Ga. 120; Latham v. Snmner, 89 111. 
 233. 31 Am. Rep. 79; Greer v. Church. 13 Bush. 430; Grovss v. Jor- 
 dan, 83 Me. 380; Ham v. Cerniglia, 73 Miss. 290; Singer M. Co. v. 
 Bullard, 62 N. H. 129; Gerrish v. Clarlc, 64 N. H. 492; Clark v. Hill, 
 117 N. C. 11, 53 Am. St. Rop. 574; Dearborn v. Raysor, 132 Pa. St. 
 231; Farquhnr v. McAlevy. 142 Pa. St. 233, 24 Am. St. Rep. 497; 
 Singer ]\I. Co. v. Cole, 4 Lea, 430, 40 Am. Rep. 20; Cowan v. 
 Singer M. Co., 92 Tenn. 376; Whitfomb v. Woodworth. 54 Vt. 544; 
 CoUender Co. v. IMarshall. 57 Vt. 232; Quinn v. Parlje etc. Co., 5 
 Wash. 276; Baldwin v. Van Wagner, 33 W. Va. 293; Kimball v. 
 Mellon, 80 Wis. 1.33; Sanders v. WHlson, 8 Mackey, 555; Gerow v. 
 Costello. 11 Colo. 560. 7 Am. St. Rep. 2(;0. 
 
 2G0 McKinney v. Rradlee, 117 Mass. ,321. 
 
 267 Vaughn v. Hopson, 10 Bush. 337; Jones v. Clark, 20 Colo. 353; 
 George v. Tufts, 5 Colo. 192; Murch v. Wright, 46 111. 487, 95 Am. 
 Dec. 4.55; Lucas v. Campbell. 88 111. 447; Van Duzor v. Allen. 90 
 III. 499; W'ait v. Green, 36 N. Y. 556; Smith v. Lynes, 5 N. Y. 41. 
 But these, and earlier New York cases in harmony with them, are 
 either explained away, or overruh-d by R.-illard v. Burgett, 40 N. Y. 
 314; Austin v. Dye. 46 N. Y. .500; :Maynard v. Anderson. 54 N. Y. 
 641. In the opinion of the court in Vaughn v. Hopson, 10 Bush,
 
 617 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 124 
 
 ' states of Colorado aud Keutucky, been overruled. 
 Transactions have very frequent!}' been put in the form 
 of conditional sales, when the real relations of the par- 
 ties were those of mortgagors and mortgagees. The 
 advantages of chattel mortgages have thus been se- 
 cured, even Avhcn security of that character was for- 
 bidden with respect to the class of property in contro- 
 versy, riecently the courts have been inclined to scru- 
 tinize these transactions more closely, and to refuse to 
 be bound by the name and form given them by the par- 
 ties, if satisfied from the whole transaction that it was 
 not a conditional sale. AVith respect to the construc- 
 tion of contracts claimed to be conditional sales, the 
 supreme court of the United States has very wisely 
 said: "The answer to this question is not to be found in 
 any name which the parties may have given to the in- 
 strument, and not alone in any particular provision it 
 contains, disconnected from all others, but in the ruling 
 intention of the parties, gathered from all the language 
 they have used. It is the legal effect of the whole 
 which is to be sought. The form of the instrument is 
 of little account." ^**** The contract here in question 
 was between two corporations, one of which was a 
 builder of cars, and the other the owner and operator 
 
 337, it is said that "numerous authorities niiplit be cited sustaining 
 what we conceive to be the true doctrine on this subject, holding 
 that where there is a conditional sale of chattels with an actual de- 
 livery of possession to the vendee, a purcliaser from the latter, in 
 good faith, and without notice of the condition, acquires a perfect 
 title." Whence tliese authorities minht be cited we cannot imasrine, 
 and nothing loss tlian imagination can supply them. There was not, 
 when that decision was rendered, a single uuoverrulod case in har- 
 mony with it, except in the states of Illinois and Pennsylvania 
 Murch V. Wright. 46 111. 4S7, 95 Am. Dec. 455; Schweitzer v. Tracy, 
 70 111. 345; Stadtfield v. Huntsman, 92 Pa. St. 53, 37 Am. Rep. 661. 
 26sHeryford v. Davis, 102 U. S. 243.
 
 § 124 PERSONAL PRO.rERTY SUHJECT TO EXECUTION. 518 
 
 of a railway. It recited that the former had con- 
 structed certain cars, to be used on the railway of the 
 latter for hire, and that the former loaned the latter the 
 said cars for hire on such railway for the period of four 
 months, and not elsewhere; that the railway company 
 had executed to the manufacturing company three cer- 
 tain notes, which were to be collected at maturity, and 
 their proceeds held as security for the return of the cars 
 when demanded; that the railway company had the 
 privilege of purchasing the cars at any time on paying a 
 price fixed by the contract; that until such payment it 
 should have no right, title, or interest in the cars, ex- 
 cept to use them, and no power to dispose of, mortgage, 
 or pledge them; that the cars were to be redelivered 
 to the manufacturing company when demanded, in de- 
 fault of the payment of said fixed sum, with interest; 
 that, on default in the payment of any of said notes, the 
 manufacturing company might take possession of all 
 said cars, and retain all payments made on any of such 
 notes, and would sell said cars and return to the rail- 
 way company any surplus remaining out of the net pro- 
 ceeds of the sale, over and above the amount due on 
 the unpaid notes; and, finally, that on payment of all 
 of the notes, the manufacturing company would convey 
 the cars to the railway company. This contract was 
 construed not to be a conditional sale, but an attempt 
 to obtain or reserve a lien in a form forbidden by the 
 laws of the state; and the property was held to be sub- 
 ject to execution against the railway company. The 
 grounds of this decision were, that no price for the hire 
 was mentioned or alluded to; that the manufacturing 
 company took notes for the full price of the cars, and 
 exacted security for their payment, and would thereby
 
 519 PKRSOXAL PilOri^iii'i .-^UBJEL'T TO EXELUTIOX. § 1-J4 
 
 realize the price of the cars before the four months had 
 e]ai)st'cl; no part of the money was to be returned to 
 the railway comx^any in any contingency, and, in the 
 event of the cars beinj^ taken from the railway company 
 and sold, it was entitled to such portion of the proceeds 
 of the sale as remained after paying the demands of the 
 manufacturing- company. ''In view of these provi- 
 sions," said the court, ''we can come to no other con- 
 clusion than tljat it was the intention of the parties, 
 manifested by the agreement, the ownership of the 
 cars should pass at once to the railroad company in con- 
 sideration of their becoming debtors for the price. 
 Notwithstanding the efforts to cover up the real nature 
 of the contract, its substance was an hypothecation 
 of the cars to secure a debt due to the vendors for the 
 price of a sale. The railroad company was not ac- 
 corded an option to buy or not. They were bound to 
 pay the price, either by paying these notes or surren- 
 dering the property to be sold, in order to make pay- 
 ment. This was in no sense a conditional sale. This 
 giving the property as a security for the payment of a 
 debt is the very essence of a mortgage, which has no 
 existence in a case of conditional sale." 
 
 The case of Palmer & Key v. Howard,-^^ was very 
 similar in its features. The plaintilTs delivered to one 
 St. Clair an agreement reciting that he had borrowed 
 and received of them certain articles in good order; 
 that if the price named should be paid, the property to 
 belong to the bornnver, otherwise to remain the prop- 
 erty of Talmer •& Rey; that the borrower would keep 
 the property in good ord^r; pay the price as per memo- 
 randum; keep the property insured for the benefit of 
 
 209 72 Cal. 293, 1 Am. St. Rep. 60, and note.
 
 § 124 PERSONAL PHOPERTY SUBJECT TO EXECUTION. 520 
 
 Palmer & Rey; that it should not be removed from 
 certain designated premises; and that, if the borrower 
 failed to meet any of the payments, Palmer & Key 
 might take the property, sell it, and render the bor- 
 rower all surplus after paying "the price agreed upon 
 and the expenses of removal and sale." The court was 
 of opinion that it was clear from the whole agreement 
 that the plaintiffs had sold the property to St. Clair, 
 who, on his part, had made an absolute engagement to 
 pay therefor, and had acquired a right to such jiart of 
 the net proceeds of the sale as might remain after pay- 
 ing any installments in the payment of which he had 
 made default; and that the manifest scope and pur- 
 pose of the contract could not be defeated by the state- 
 ment therein made that the property "remains the 
 property of Palmer & liey." ^^^ 
 
 As it is still conceded, where statutes have not in- 
 terposed to change the rule of the common law, that 
 conditional sales are valid, and that a vendor may, by 
 his contract of sale, impose any legal condition which 
 to him shall seem proper or advisable, and reserve 
 title in himself until such condition has been per- 
 formed,"^* it is of the utmost importance to be able to 
 distinguish a conditional from an absolute sale, and 
 the contract evidencing it from a chattel mortgage. 
 
 270 other cases holding that the real nature of the transaction 
 must be considered, and cannot be destroyed by the name given it 
 by the parties, are Hervey v. R. I. L. WorlvS, 93 U. S. G(>4; Murch 
 V. Wright, 46 111. 488, 95 Am. Dec. 455; Hart v. B. & S. Mfg. Co., 
 7 Fed. Rep. 543; Greer v. Church, 13 Bush, 430; Aultman v. Sillia, 
 85 Wis. 359. 
 
 271 Gerow v. CostelJo, 11 Colo. 560, 7 Am. St. Rep. 260; McComb 
 V. Donald's Ad., 82 Va. 903; Prentiss T. etc. Co. v. Schirmer. 130 
 N. Y. 305, 32 Am. St. Rep. 737; Vermont M. Co. v. Brow, 109 Cal. 
 236; Holt M. Co. v. Ewing, 109 Cal. 353; Rodgers v. Bachman, 109 
 Cal. 552.
 
 521 TERSONAL J'llOPERTY SUBJIX'T TO EXECUTION. § 124 
 
 The tost seoms to be this: if, at the inception of the 
 contract, or at any later date, one of the i>arties has an 
 absolute right to the whole purchase price, or to the 
 balance thereof remaining unpaid, and the other is un- 
 der an absolute obligation to pay it, then the sale is 
 absolute, and not conditional, and any attempt to se- 
 cure the balance due on the purchase price by a con- 
 tract purporting to reserve the title for that purpose is, 
 in legal contemplation, a chattel iiutrtgage, and not 
 valid unless executed, acknowledged, and recorded in 
 the manner required by law for instruments of that 
 character. Hence, if a promissory note, taken by the 
 vendor for the purchase price, is secured by a mort- 
 gage of property- other than that sold, the sale cannot 
 be deemed conditional.^'^^ "\There a sale is conditional, 
 notes or other evidence of indebtedness being given for 
 the purchase price, the vendor may, on default of pay- 
 ment, pursue either of two remedies. He may treat 
 the property as still his, and sue for and recover posses- 
 sion of it, or, treating the sale as absolute and uncon- 
 ditional, he may sue and obtain judgment for the bal- 
 ance of the purchase price. lie cannot do both. If 
 the vendee has died, the presentation of a claim 
 against his estate, if it is allowed, is equivalent to ob- 
 taining a judgment thereon. The sale must, therefore, 
 be deemed absolute, and the vendor as having parted 
 with the title to the property.^'* "The optional pay- 
 ment of the purchase price is as essential to constitute 
 a transaction a conditional sale as the conditional pass- 
 ing of the title; and a transaction that in express terms 
 imposes an unconditional liability upon the vendee to 
 pay the purchase price for the property delivered, how- 
 
 272 Silver Bow M. Co. v. I.^iwry. 6 Mont. 288. 
 
 273 Holt M. Co. V. Ewiuj,', 109 Cal. 3.'3.
 
 § 1-25 PERSONAL PROPERTY SUBJECT TO EXECUTION. 522 
 
 ever characterized by the parties, is essentially and in 
 legal effect an absolute, and not a conditional, sale. 
 'If, by the terms of an agreement, the purchaser be- 
 comes liable unconditionally for the purchase price, al- 
 though by the agreement he may never get the title and 
 ownership of the property, then the agreement is an 
 evasion of the registration statute, as its purpose is 
 simply to retain a secret lien.' " ^'^■* 
 
 § 125. Interests of Cotenants and Partners.— The in- 
 terests of partners and cotenants may be considered 
 with reference (1) to writs of execution against all the- 
 meinbers of a partnership or cotenancy, and (2) to writs 
 of execution against one member only. Writs of exe- 
 cution against all the members of a partnership may 
 be based (1) upon a partnership liability, or (2) upon a 
 liability against all the members of the firm, but not 
 connected with, nor arising out of, its business, and, 
 therefore, not constituting a partnership obligation. 
 Upon an execution against a partnership, there can be 
 no doubt of the right to levy upon any of its assets sub- 
 ject to execution in the same manner and with the 
 same effect as in other cases.^'^^ So, when there are 
 several defendants in the execution, a levy may be made 
 upon property held by them as cotenants in the same 
 manner as upon property held in severalty. 
 
 If a judgment is recovered against all the members 
 of a partnership, but not upon a firm liability, and exe- 
 cution issues thereon, it may undoubtedly be levied 
 upon the firm property. The only question of especial 
 interest which may arise out of such a levy is this: May 
 
 274 Andrews v. Colorado R. P,.. 20 Colo. 313, 40 Am. St. Rop. 291. 
 
 275 xoto to Smith v. Smith, 43 Am. St. Rep. 3G4; Hall v. Richard- 
 son, GO N. II. 205.
 
 523 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 125 
 
 it be enforced both at law and in equity w hen the firm 
 is shown to be insolvent and its assets are therefore re- 
 quired to satisfy partnership oblij^ations? The better 
 opinion ui>on this subject is, that the cicdilors of tiie 
 piU'tnership have no right to insist upon the application 
 of its projx'rty to the satisfaction of partnersliip, rather 
 than to individual, obligations, except when some mem- 
 ber of the linii retains this right, and that, when there 
 is a joint debt against all the members, though not 
 founded upon a partnership obligation, neither of them 
 has any right to insist that it shall not be satisfied out 
 of the partnership assets, and hence none of the part- 
 nership creditors can complain if such assets are volun- 
 tarily applied by the partners to the payment of such 
 debts or are taken by an officer under a writ against 
 them for the purpose of making such ai)plication; and, 
 finally, that a levy upon partnership assets to satisfy 
 a judgment against all the members, though not for a 
 partnership liability, is valid, and cannot be controlled 
 or set aside in equity for the purpose of compelling the 
 property levied upon to be applied to the extinction of 
 partnership obligations.^'^® 
 
 Where a writ is upon a partnership debt, there is a 
 right to satisfy it out of partnership assets, to the exclu- 
 sion of all claims of the creditors of the partners as 
 individuals, and hence there must be a right to take 
 the partnership assets, though they have already been 
 levied upon under writs against some of the partners 
 as individuals, but not based upon partnership obliga- 
 tions, for, whether the interest of a partner in the 
 
 278 Menagh v. Whitwell. 52 N. Y. 146. 11 Am. Rep. G83; Saun- 
 ders V. Reilly. 105 N, Y. 12, 59 Am. Rep. 472: Stanton v. Westover, 
 101 N. Y. 2(m; Davis v. Delaware etc. Co., 109 X. Y. 47, 4 Am. St. 
 Rep. 418.
 
 § 125 PERSONAL PROPERTY SUBJECT TO EXECUTION. 524 
 
 partnership obligations is subject to levy under execu- 
 tion or not, and whatever be the mode of making the 
 levy, the property still remains answerable for partner- 
 ship obligations, and a writ of attachment or execution 
 for a partnership debt takes precedence over any previ- 
 ous levies or sales under writs against one member of 
 the partnership only, and a purchaser under the former 
 writ acquires title paramount to that of a purchaser 
 under the latter writ, irrespective of the date of the 
 respective levies and sales.^'' In some of the states it 
 has been held that any act of the members of an insol- 
 vent firm tending to impair the right of the firm credit- 
 ors to seek satisfaction out of its assets is fraudulent 
 against such creditors, and therefore void.^''* 
 
 Though a writ is against one of several partners or 
 cotenants, there can be no doubt that his interest in 
 real'or personal property, unless held by a tenancy by 
 the entireties, is subject to execution the same as a like 
 estate in severalty. Some difficulty may be experi- 
 enced in determining how the interest is to be seized 
 and sold. In the case of cotenants,-''^ it is clear that 
 the officer's levy should, except in the case of severable 
 chattels, purport to be upon the defendant's moiety 
 only. The officer may, however, take exclusive posses- 
 sion of the chattel, retain possession until the sale, and 
 
 277 Conroy v. Woods, 13 Cal. 13G, 73 Am. Dee. 605; Switzer v. 
 Smith, 35 Iowa, 2G9; Cox v. Russell, 44 Iowa, 556; Pierce v. Jack- 
 son, 6 Mass. 242; Williams v. Gage, 49 Miss. 777; First N. B. v. 
 Brenneisen, 97 Mo. 145; Roop v. Herron, 15 Neb. 73; Watt v. John- 
 son, 7 Jones, 190; Coover's Appeal, 29 Pa. St. 9, 70 Am. Dec. 149; 
 Wasliburn v. Bank of Bellows Falls, 19 Vt. 278; Powers v. Large, 
 69 Wis. 621. 2 Am. St. Rep. 767. 
 
 278 Franklin S. R. Co. v, Henderson, 86 Md. 452, 63 Am. St. Rep. 
 
 525. 
 
 279NewtoiJ V. Howe, 29 Wis. 531, 9 Am. Rep. 616; Freeman on 
 Cotenancy and Partition, sec. 252.
 
 625 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 125 
 
 deliver it to the purehascT,-*"" except in thoBe states 
 which have by statute forbidden an officer from taking 
 a chattel from the possession of a part owner without 
 his consent, and have, in effect, authorized him to make 
 a levy without taking such possession.^**^ It is uni- 
 versally conceded that, except where some statutory 
 provision to the contrary has been enacted, the interest 
 of a partner is liable to execution for his individual 
 debts. ^*^^ In New York, the interest of a special or 
 limited partner is a mere chose in action, and is not sub- 
 ject to execution. ^'^•' In Georgia, the interest of a co- 
 partner may, by statute, be reached only by garnish- 
 
 280 Freeman on Cotenancy and Partition, sec. 214; "Waldnian v. 
 Broder, 10 Cal. 378; Treon v. Enierick, 6 Ohio, 391; Thomas v. Tur- 
 vey, 1 Har. & G. 435; McElderry v. Flanna.iran. 1 Har. & G. 308; 
 Walsh V. Adams. 3 Denio. 125; Bernal v. Hovious, 17 Cal. 541, 79 
 Am. Dec. 147; Whitney v. Ladd. 10 Vt. 105; Kilby v. Ha.ssin. 3 .T. J. 
 Marsh. 215: Darant v. Ciibbage. 2 Hill (S. C), 311: Caldwell v. 
 Anger, 4 :Minn. 217; 77 Am. Dec. 515; Waddell v. Cook. 2 Hill. 48, 
 37 Am. Dec. 372; Reed v. Shepardson. 2 Vt. 120, 19 Am. Dec. 697; Phil- 
 lips V. Cook, 24 Wend. 389: Welch v. Clark, 12 Vt. 686, 36 Am. Dec. 
 368; Reed v. Howard, 2 Met. 40; Islay v. Stewart, 4 Dev. & B. 100; 
 Hayden v. Binney, 7 Gray, 416; Veach v. Adams, 51 Cal. 611; Heald 
 V. Sargeant. 15 Vt. 500. 40 Am. Dec. 694; Lawrence v. Burnham, 4 
 Neb. 361; 97 Am. Dec. 540; Burton v. Kennedy, 63 Vt. 350. 25 Am. St. 
 Rep. 769. 
 
 281 Vicory v. Strausbaugh, 78 Ky. 425; Blumenfield v. Seward, 71 
 Miss. 342. 
 
 282 Parsons on Partnership, 352; Knox v. Summers. 4 Yeates, 477; 
 Watson V. Gabby, 18 B. Mon. 658; Haskins v. Everett, 4 Sneed, 531; 
 Wilson V. Conine, 2 Johns. 280; Walsh v. Adams. 3 Denio. 125; 
 Jones V. Strattou, 32 111. 202; Nixon v. Nash. 12 Ohio St. 647. 80 Am. 
 Dec. 390; Kuerr v. Hoffman. 05 Pa. St. 120: Scrugham v. Carter, 12 
 Wend. 131; Shaw v. McDonald, 21 Ga. 395; Chapman v. Koops, 3 
 Bos. & P. 289; Holmes v. Mentze, 4 Ad. & E. 131; Douglas v. Wins- 
 low, 20 Me. 90; Dow v. Say ward, 12 N. H. 271; Moody v. Payne, 2 
 Johns. Ch. 548; Burgess v. Atkins, 5 Blackf. 337; Jones v. Thomp- 
 son, 12 Cal. 191. 
 
 283 Harris v. Murray, 28 N. Y. 574, SG Am. Dec. 268.
 
 § 125 PERSONAL PROPERTY SUBJECT TO EXECUTION. 526 
 
 ment.-**'* In Iowa, the manner of levying upon the in- 
 terest of a partner has also been provided for by stat- 
 ute.-**^ Confessedly, a sale under an execution against 
 one partner does not divest the title of the partnership 
 in the property. It transfers only such interest as may 
 remain in the judgment debtor upon the settlement and 
 adjustment of the affairs of the partnership. As the 
 rights of the partnership are paramount, it would seem 
 that they must preclude the officer serving the writ 
 from taking the property into his exclusive possession, 
 even for the purposes of levy and sale; and this view 
 has been maintained with great force in several deci- 
 sions pronounced in the supreme court of New Hamp- 
 shire.^'^^ It also meets with favor in Pennsylvania. 
 The courts of that state have declared that the levy of 
 separate writs against the members of a firm for their 
 individual debts upon the goods of the firm is unauthor- 
 ized, creates no lien on those goods, and is as nugatory 
 as if levied upon the property of a stranger.^*'^ So, in 
 Massachusetts, it is settled that the assets of a part- 
 nership cannot be levied upon under a writ against one 
 partner only.^**** The authorities elsewhere are almost 
 unanimous in affirming that the officer may, in levying 
 on the interest of a partner, assume exclusive posses- 
 sion of the chattels of the firm, and retain it until the 
 
 284 Willis V. Hendorson, 43 Ga. 32.5; Anderson v. Chenney, 51 Ga. 
 372. 
 2«5 Richards v. Haines, 30 Iowa, 574; Code of Iowa, sec. 3977. 
 
 256 Gibson v. Stevens, 7 N. H. 352; Garvin v. Paul, 47 N. H. 158; 
 Morrison v. Blodsett, 8 N. IT. 238, 29 Am. Dec. G53, and note; Tread- 
 well V. Brown. 43 N. H. 290. 
 
 257 Kichard v. Allen, 117 Pa. St. 226, 2 Am. St. Rep. G52; White 
 V. Rech, 171 Pa. St. 82. 
 
 288 Russell V. Cole, 167 Mass. 6, 57 Am. St. Rep. 432, and note; 
 Sanborn v. Royce, 132 Mass. 594.
 
 527 PERSONAL PKOPERTY SUBJECT TO EXECUTION. § 125 
 
 sale.-''" It is also uudoubtcd that the interest subject 
 to execution is, at least iu equity, in no respect greater 
 than that held by the defendant; that it is subject to 
 the paramount claims against the partnership, and is, 
 in fact, nothing beyond the right to demand an account- 
 ing, and to share in the surplus that may remain after 
 all the partnership obligations have been discharged.-"" 
 Whether the levy can be upon any specific part of 
 the goods of the firm, and whether by the sale the pur- 
 chaser acquires any interest in the i)roperty sold, be- 
 yond the right to call for an accounting, are questions 
 upon which the authorities are not agreed. The earlier 
 cases were determined when partnerships were re- 
 garded as mere cotenancies. Hence those cases, and 
 
 2S9 Clark V. Gushing. 52 Cal. 617; Saunders v. Bartlett, 12 Heisk. 
 *J17; Branch v. Wiseman, 51 Ind. 3; De Forest v. Miller, 42 Tex. M; 
 Atkins V. Saxton, 77 N. Y. 195; Hacker v. Johnson, 60 Me. 21; Par- 
 ker V. Wright, G6 Me. 392; United States v. Williams. 4 McLean. 
 230; Rachurst v. Clinkard, 1 Show. 173; Mayhew v. Herriek, 7 Com. 
 li. 229; Newhall v. Buckingham, 14 111. 405; Parker v. IMstor, 3 Bos. 
 & P. 28S; Pope v. llaman. Comb. 217; Heydon v. Heydon, Salk. 
 :592; White v. .Tones. 38 111. 159; Johnson v. Evans, 7 Man. & G. 
 240; Davis v. White. 1 lloust. 228; Andrews v. Keith, 34 Ala. 722; 
 Smith v. Orser, 42 N. Y. 132; AVilliams v. Lewis, 115 Ind. 45, 7 Am. 
 St. Rep. 403; Ilershfield v. Clafiin. 25 Kan. 1G6, 37 Am. Rep. 237; Peo- 
 ple's Bank v. Shyrock, 48 Md. 427, 30 Am. Rep. 476; Nixon v. Nash, 
 12 Ohio St. 647. 80 Am. Dec. 390; Graden v. Turner, 15 Wash. 136; 
 Trafford v. Iiuhl);ird. 15 R. I. 326. 
 
 290 Eighth N. B. v. Fitch. 49 N. Y. 539; Clagett v. Kilbourne. 1 
 Black, 346; Lyndon v. Gorham, 1 Gall. 367; Chandler v. Lincoln. 52 
 111. 74; Deal v. Bogue, 20 Pa. St. 228, 57 Am. Dec. 702; Bowman v, 
 O'Reilly, 31 Miss. 261; Atwood v. Impson. 20 N. J. Eq. 1.50; Dutton 
 V. Morrison, 17 Yes. 193; 1 Rose. 213; Garbett v. Veale, 5 Q. B. 408: 
 8 Jur. 335; Dru. & M. 458; Robinson v. Tevis. 38 Cal. Oil; Skipp v. 
 Ilarwooil. 2 Swans. ,580; In matter of Wait, 1 Jacob & W. (;()5; Filloy 
 V. Phelps. IS Conn. 294; Taylor v. Fields, 4 Ves. 396; Hanker v. 
 G.irratt. 1 Ves. Jr. 239; Doe v. Hunt. 11 Ired. 42; Marston v. Dew- 
 berry, 21 La. Ann. 518; Knox v. Shepler, 2 Hill (S. C.) 595; Jarvis 
 V. Hyer, 4 Dev. 367; Barber v. Bank, 9 Conn. 407; United States 
 V. Hack. 8 Pet. 271; Pierce v. Jackson, 6 Mass. 242.
 
 § 125 PERSONAL PROPERTY SUBJECT TO EXECUTION. 528. 
 
 such modern cases as have been controlled by them, 
 place sales under execution for the separate debt of a 
 copartner very much on the same ground as a sale for 
 the separate debt of a cotenant. Therefore, according 
 to this view, an officer can, under such an execution, 
 levy upon a part a,s well as upon the whole of the chat- 
 tels of a firm; ^** and can, by his sale, transfer a moiety 
 of the legal title, together with the right to take and 
 hold possession against the other partners,^^^ leaving 
 them without any other means of enforcing the rights 
 of the partnership than by proceedings in chancery. 
 But the courts have gradually progressed toward a 
 realization of the true nature of partnerships, and have 
 therefore come to understand that they are materially 
 different from cotenancies. A copartner has no right 
 to any specific chattel belonging to the firm, nor has 
 he any right, as against the firm, to take or hold exclu- 
 sive possession of any such chattel. The real owner- 
 ship of all the chattels is vested in the firm; the interest 
 of each partner is merely a right to share in the pro- 
 ceeds of those chattels after all the partnership obliga- 
 tions have been satisfied. Upon what principle can the 
 purchaser at an execution sale be sustained in the exer- 
 cise of rights to which the defendant was never enti- 
 tled? Clearly, upon no principle whatever. The pre- 
 cedents made at an early day, when the law of partner- 
 ship was imperfectly understood, are losing their force 
 as authorities. Their place is being supplied by a line 
 
 291 Wiles V. Maddox, 20 Mo. 77; Fogg v. La wry, G8 Me. 78, 28 Am. 
 Rep. 19; Hershfield v. Claflin, 25 Kan. 160, 37 Am. Rep. 237; Randall 
 V. .Johnson, 13 R. I. 338; .Tones v. Richardson, 99 Tenn. 614; Graden 
 V. Turner, 15 Wash. 130; Snell v. Crowe, 3 Utah, 2(>. 
 
 292 Walsh V. Adams. 3 Denio, 125; Berry v. Kelly, 4 Robt. 100; 
 Phillips V. Cook, 24 Wend. 3S9; Haskins v. Everett, 4 Sneed, 531.
 
 529 PERSONAL PROPERTY SUBJECT TO EXECUTION. § li'o 
 
 of decisions, destined to grow in favor and number, de- 
 claring that the creditor of an individual partner can- 
 not sell any specific article, but only the partner's inter- 
 est in the whole of the partnership assets,'"'* and that 
 
 «»8 Thomas v. Lusk, 13 La. Ann. 277; Vandike v. Rosskam, 67 Pa. 
 St 330; Atwood v. Meredith, 37 Miss. 63o; Whigham's Appeal, 03 
 Pa. St. 194; Pittman v. Robicheau, 14 La. Ann. lOS; Siirlne v. 
 Brlggs. 31 Mich. 443; Haynos v. Knowles, 36 Mich. 407; Williams 
 T. Lewis, 115 Ind. 43, 7 Am. St. Rep. 405; Gerard v. Bates, 124 III. 
 150, 7 Am. St. Rep- 350; Sanborn v. Royce, 132 Mass. 594; Russell 
 V. Cole. 167 Mass. 6, 57 Am. St. Rep. 432; Levy v. Cowan, 27 La. 
 Ann. 556; Doner v. Stauffer, 1 Pen. & W. 198, 21 Am. Dec. 370; 
 Richard v. Allen, 117 Pa. St. 199. In the last-named case the goods 
 of a partnership wore levied upon and sold under two several writs 
 against the two members thereof individually, and subsequently 
 under another writ against the partnership. The plaintiffs claimed 
 under the first levy and the defendants under the second. In dis- 
 posing of the case the court said: "We may admit, for the purposes 
 of this case, however doubtful the proposition, that a constable may 
 levy an execution which he holds against an individual member of 
 a firm on his interest in the goods and assets of the partnership; 
 yet, even with this admission, the case in hand is by no means 
 determined in favor of the plaintiffs in error. The constable's levies 
 were necessarily confined to the property of the individuals against 
 whom they were issued, qua individuals, and his seizure of the 
 goods of the firm was a trespass, and legally void. A partnership 
 Is a distinct entity, and the joint effects belong to it, and not to 
 the several partners: Doner v. Stauffer, 1 Pen. & W. 198, 21 Am. 
 Dec. 370. It follows that the levies on the goods of the firm of 
 Sargent & Holt, for the several debts of the individual members 
 of that firm, created no lion upon those goods, and were, in fact, 
 as nugatory as though levied upon the properly of a stranger. Ad- 
 mittedly, had the sale been on but one of the writs, the purchaser 
 would have taken no right in the firm assets, but only the right 
 to compel an account with the continuing partner, and such, also, is 
 the purport of the first section of the act of the 8th of April, 1873. 
 If, however, a levy on the interest of a single partner would have 
 created no lien on the goods in controversy, we cannot see how a 
 levy on the individual interests of both could alter the legal aspect 
 of affairs, for in either case those interests were several, and the 
 firm rights remained unaffected. The action of the constable did 
 not deprive the partnership of the control of its own goods: the 
 several partners still continued to be agents of the firm, and it 
 Vol. I.— 34
 
 § 125 PERSONAL PROPERTY SUBJECT TO EXECUTION. 630 
 
 the purchaser does not acquire the right to hold pos- 
 Bession of the property purchased, as against the other 
 members of the firm, but only an interest in the pro- 
 ceeds after the business of the firm shall have been set- 
 tled.^*'-** 
 
 would not be proper to say that a sale by both or either of them, 
 as such, would not have passed a good title to a purchaser of those 
 goods regardless of the levies. But the sheriff's levy, made by 
 virtue of an execution issued on a judgment against the partnership, 
 w-as a lien on the goods themselves, and his sale was not the dis- 
 position of a mere right in the firm, but of the property itself, and 
 therefore vested in his vendee the absolute ownership thereof, leav- 
 ing to the constable's vendees the right to have so much of the 
 proceeds of the sale as remained after the satisfaction of the sheriff's 
 writ. Had there been no levy by the sheriff on the property in 
 question until after the sale to the plaintiffs, their case would have 
 been different; in that event, the interest of both parties having 
 been disposed of, there would thereafter have been no partnership 
 in existence, hence no firm goods on which to levy. Doner v. Stauf- 
 fer, supra. The equities of partnership creditors depend on the 
 equities of the partners, and as long as a partner continues to 
 have an interest in the partnership, so long do the equities of the 
 firm creditors continue; but when the rights of all the partners 
 have been disposed of, either by judicial or private sale, neither pai't- 
 nership nor partnership rights remain; and consequently they, the 
 creditors, have no longer anything to which they can look for a 
 satisfaction of their claims, except individual responsibility. But 
 as a levy on the right of a partner neither divests that right nor 
 dissolves the partnership, clearly the power of the firm to dispose 
 of its own goods is not thereby affected, and as a consequence the 
 equities of the firm creditors remain. That the judgment was con- 
 fessed by the firm subseciuently to the levies by the constable, even 
 though the debt for which it Avas given was contracted after those 
 levies, is not of material couseqiience; it was, nevertheless, a debt 
 of the firm, for the payment of which the goods might have been 
 assigned, or converted into cash; and as the levies by the constable 
 created no lien, the property was entirely fi*ee for seizure on the 
 execution against the partnership." 
 
 294 Deal V. Bogue, 20 Pa. St. 228, 57 Am. Dec. 702: Ileinheimer v. 
 Hemingway, 35 Pa. St. 432; Crane v. French. 1 'Wend. 311; Gibson 
 V. Stevens, 7 N. H. 3.12; Carvin v. Paul, 47 N. IT. 158; Clagett v. 
 Kilbourne, 1 Black, 340; Sutcliffe v. Dohrman, IS Oliio. 181, 51 Am. 
 Dec. 4.50; Sitler v. Walker, Freeman Ch. 77; Beviiu v. Allee, 3 Harr.
 
 631 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 125 
 
 There is such an inhereut dilliculty attending; the 
 levying upon the interest of a partner in personal prop- 
 erty that the legislature ought to inlcrjjose in every 
 state and authorize the subjecting of the interest of a 
 partner to execution without any other than a formal 
 levy, or, perhaps, better still, by proceedings in garnish- 
 ment, whereby, upon serving a notice upon the other 
 members of the tirni, the debtor's interest therein 
 should be made subject to the execution; for, if an offi- 
 cer is permitted to seize upon specific chattels and sub- 
 ject them to execution, the other partners must be very 
 greatly inconvenienced, and the interest of the debtor 
 partner is likely to be sacrificed, because, until an ac- 
 counting can be had, it cannot be known what the pur- 
 chaser at the execution sale will acquirer If, as many 
 of the cases maintain, every levy of the writ agaimit a 
 partner must be upon all the personal property of the 
 partnership or upon all his interest in the firm, start- 
 ling consequences must ensue. "Though the debt were 
 trifling in amount, it would require the entire property 
 of a great partnership to be seized and the interest of 
 the defendant therein sold, and, in cases where the per- 
 sonal property of the partnership was located in difl!er- 
 ent places, though widely distant from one another, it 
 would seem to require a levy and seizure everywhere 
 to give validity to a seizure or sale anywhere." ^'"^^ 
 
 Though the right of the officer to seize the property 
 of a partnership under an execution against one of its 
 members is conceded, it must be exercised "as far as 
 
 (Del.) SO; Parsons on Partnership. 352: 3 Southern L. R. 2.'t0-273. 
 In Ahibama, It seoms that the purchaser is entitled to be in pos- 
 session jointly with the partners, but not to their exclusion. An- 
 drews V. Keith. 34 Ala. 722. 
 
 295 Note to Russell v. Cole, 57 Am. St. Rep. 441.
 
 § 125a PERSONAL PROPERTY SUBJECT TO EXECUTION. 532 
 
 possible in harmony with the rights of the other part- 
 ners, and not in hostility to them. Ilis power to take 
 and deliver possession of the corpus of the property is 
 merely incidental to the right to reach the interest of 
 the debtor, and is to be exercised only as a means to 
 that end. Consequently, if he exceeds that limit, and 
 undertakes to interfere with the rights of the other 
 partners to a greater extent than is necessary to reach 
 the interest of the debtor partner, and dispose of it, as, 
 when, instead of selling the interest of the debtor part- 
 ner, he undertakes to sell the entire property, though 
 his act is nugatory, such interference renders him liable 
 as a trespasser ab initio." *^® 
 
 § 125 a. Property Subject to Execution in Equity.— 
 Under statutes now in force in England and in the 
 United States, writs of fieri facias may be issued to en- 
 force decrees directing the payment of specific sums of 
 money. These writs may unquestionably be levied 
 upon any property which would be subject to levy un- 
 der like writs issued upon judgments at law. Courts 
 of law formerly took no notice of mere equitable estates 
 and interests, and hence they were generally not sub- 
 ject to execution at law. These estates and interests 
 were, however, always regarded in (Hjuity. In fact, a 
 large portion of its jurisdiction was devoted to their 
 consideration and maintenance, and for most purposes 
 they were, in its tribunals, not less potent than though 
 united with the legal title. Will such estates and in- 
 terests be ignored, when proceeding niuler a fieri facias 
 issued upon a decree in chancery, in those states where 
 
 298 Atkins V. Saxton. 77 N. Y. 109; Neary v. Cahfll, 20 111. 214; 
 Waddell v. Cook, 2 Hill, 47. 37 Am. Doc. .372; Edgar v. Caldwell, 1 
 Morris, 434; Snell v. Crowe, 3 Utah, 2G.
 
 633 PERSONAL PROPERTY SUBJECT TO EXECUTION. § lL'5a 
 
 they are not subject to execution at law? We have 
 discovered no case considering this question. Unless 
 the statute conferring the power to use this writ in 
 enforcing decrees expressly restricts its use to cases 
 where it might be employed at law, we think that it 
 ought to be adjudged to authorize the seizure and sale 
 of property of which the debtor has the equitable title, 
 and which would be subject to execution at law if he 
 were also vested with the legal title. 
 
 In many instances, specific property is directed to 
 be sold by the decree. In these cases, the officer con- 
 ducting the sale, and intending purchasers thereat, 
 need only consider the directions of the decree, if ju- 
 risdiction has been obtained over all the parties inter- 
 ested in the, property ordered to be sold. Whatsoever 
 has been decreed to be sold, and no more, is subject to 
 sale. 
 
 According to the practice of the court of chancery 
 prior to the introduction of any statutory innovations, 
 no property was subject to execution in equity, in the 
 sense in which those terms were understood at law. 
 It is true that sequestrators were authorized to take 
 possession of certain property of the defendant. A 
 commission or writ of sequestration was said not to be 
 a writ of execution, but a mere process to punish a con- 
 tempt of court.^'^ While it nominally issued to pun- 
 ish contempts, it was an efficient means of enforcing 
 decrees, and therefore answered the purposes of writs 
 of execution.^'^ The issue of the writ did not create 
 any lien on any property, nor give the sequestrators 
 any precedence over any bona fide lessee, purchaser, or 
 
 297 Brune v. Robinson, 7 I. R. Eq. 1^8. 
 
 29^ BfKldinsifield v. Zoucb, 2 Fieem. IGS; Hide v. Petit, 2 Freem. 
 135; 1 Cli. Cas. 91.
 
 § 125a PERSONAL PROPERTY SUBJECT TO EXECUTION. Sol 
 
 encumbrancer thereof, whose title accrued at any time 
 prior to their taking possession.^^ Prior encum- 
 brances were respected if made in good faith; ''^"** but 
 transfers and encumbrances made for the purpose of 
 rendering the sequestration abortive, to one having 
 notice of this purpose, were disregarded."'**^^ With re- 
 spect to lands, it is quite certain that the sequestrators 
 acquired no title, and hence could make no sale.®®^ 
 They were, however, b^' their writ, authorized to take 
 possession of the defendant's lands, tenements, goods, 
 and chattels, and to receive the rents and profits there- 
 of. When these rents and profits were payable in kind, 
 or when the sequestrators received the natural produce 
 of the lands seized, an order of court might be obtained 
 for the sale of such chattels,^***** and, perha])s, other per- 
 sonal property of a party in contempt for the nonpay- 
 ment of money might be ordered sold."*^* All property 
 of a tangible character, of which the sequestrators 
 could obtain possession without suit, was subject to se- 
 questration, and they might open boxes and rooms 
 which were locked to obtain possession of the goods 
 
 200 Vicars v. Colocloiish. 5 Brown Pari. C. 31; Ex parte Nelson, 
 L. R. 14 Ch. D. 41; 49 L. J. Bankrnptcy, 44; 42 L. T. 389; 28 Week. 
 Rep. 5."4. 
 
 300 Burne v. Robinson. 7 I. R. Eq. 188; Tatbam v. Parker. 1 Smale 
 & G. 506; 17 Jxir. 929; 22 L. J. Cb. 203. 
 
 301 Ward v. Bootb, L. R. 14 Eq. 195: 41 L. .7. Cb. 720: 27 L. T., 
 N. S.. 3G4; 20 "Week. Rep. 880; Coulston v. Gardiner. 3 Swans. 279. 
 note. 
 
 302 Coats V. Elliott, 23 Tex. GOO: Sbaw v. W^rii.'bt. 3 Ves. 22: Rut- 
 ton V. Stone. 1 Dick, 107: Foster v. Towusbend. 2 Abb. N. C. 29; 68 
 N. Y. 203. 
 
 303 Shaw V. Wright, 3 Ves. 22. 
 
 304 Cavil V. Smith, 3 Brown Ch. 362: In re Rush. L. R. 10 Eq. 442; 
 18 Week. Rep. 417; 22 L. T., N. S., 116; Cowper v. Taylor, 16 Sim. 
 314.
 
 535 PERSONAL rilOPEKTY SL'liJECT TO EXECUTION. § rJ3a 
 
 therein.**"'* Property seized by them thereby became 
 in the custody of the law, and any interference with 
 their possession not authorized by the court was pun- 
 ished as a contempt.^^* If the property seized was 
 claimed by a stranger to the Avrit, it was necessary for 
 him to come before the court and present his claim; 
 and, if convinced of its validity, the court would order 
 the restoration of the property, and sometimes award 
 damages for its detention.^"*^ Where iiKmeys were due 
 for rents of lands of the defendant, subject to the se- 
 questration, they might be ordered paid to the seques- 
 tra tors.-"*"* AMiere funds or moneys are under the con- 
 trol of the court, which the defendant is entitled to re- 
 ceive, they may be subjected to the sequestration by 
 obtaining an order of the court for their payment to 
 the sequestrators.^*"^ The pay of a public officer, for 
 which the government is entitled to any services, is, on 
 principles of public policy, not subject to sequestra- 
 tion.^^" Tensions granted for past services may be 
 secured to the sequestrators by obtaining an injunction 
 restraining the defendant from receiving them.^^^ 
 Choses in action have sometimes been spoken of by the 
 
 305 Pelham v. Newcastle, 3 Swans. 290, note; White v. Geraerdt, 
 1 Edw. Ch. 33(). 
 
 306An?:el v. Smith. 9 Ves. ?>P,G; Copoland v. Mape, 2 Ball & B. 06. 
 
 307 Franclclyn v. Colhoun, 3 Swans. 310; Telham v. Newcastle. 3 
 Swans. 290. note. 
 
 sot Wilson V. Metcalfe, 8 L. .T. Ch. 3.31; 1 Beav. 203. 
 
 309 Claydon v. Finch, L. R. l.^i Eq. 200; Conn v. Garland, L. R. 9 
 Ch. 101; 22 Woel<. Ilep- l"-'^: Slade v. liulme. L. R. IS Ch. D. 653; 50 
 L. J. Ch. 729; 45 L. T.,. N. S.. 276: .30 Week. Rep. 2S. 
 
 310 McCarthy v. Goold. 1 Ball & B. 3S9: Kenton v. Lowther. 1 Co.x, 
 315; Spooner v. Bayne, 1 De Gex. M. & G. 388. 
 
 811 McCarthy v. Goold. 1 Ball <S: B. 3S9: Willcock v. Terrell, L. R. 
 3 Ex. D. 323; Dent v. Dent, L. R, 1 V. & D. 366.
 
 § 125a PERSONAL rKOPEKTY SUBJECT TO EXECUTION. 636 
 
 courts as subjects of sequestration; ^^' but they are so 
 to a very limited extent. If the person from whom 
 they are owing is a party to the suit, or otherwise before 
 the court, or, if he voluntarily appears and assents 
 thereto, an order may be made directing him to pay to 
 the sequestrators the amount due from him to the de- 
 fendant."*^ It was formerly insisted that if a person, 
 owing moneys to the defendant, did not voluntarily ap- 
 pear, there was no mode of proceeding against him, 
 and of thereby enabling the sequestrators to obtain pos- 
 session of the funds in his hands. In Miller v. Huddle- 
 stone, L. R. 22, Ch. Div. 233, a writ of sequestration is- 
 sued against the real and personal estate of the defend- 
 ant M., in pursuance of which the sequestrators at- 
 tached his balance on the books of his bankers, but they 
 declined to give any information respecting the amount 
 thereof. A motion w^as then made that they pay into 
 court the amount in their hands. The judge to whom 
 the motion was submitted was of the opinion that he 
 had jurisdiction to make the order asked for, and an or- 
 der was thereupon made that the bankers verify the 
 balance of the defendant by affidavit, unless it w^as ad- 
 mitted at the bar; and, the amount having subsequent- 
 ly been admitted, an order was made that the bankers 
 pay that sum into court to the credit in the suit of the 
 sequestration account. This and other decisions would 
 seem to indicate that a chose in action may be reached 
 by sequestration, not only in those cases in which the 
 person having it in possession, or from whom it is due, 
 is a party to the suit, but, further, that he may be, in ef- 
 fect, made such a party by an application to the court, 
 
 312 Wilson V. Metcalfe. 1 Beav. 2^3; 8 L. J. Cli. 331 ; Grew v. Breed. 
 12 Met. 363; White v. Geraerdt, 1 Edw. Ch. 336. 
 
 813 Crispin v. Cumano, L. It. 1 P. & D. 622; .Johnson v. Chipplndall, 
 2 Sim. 55; McCarthy v. Goold, 1 Ball & B. 389.
 
 «37 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 126 
 
 upon notice to him, for an order re(iiiiiing him to de- 
 liver possession of such chose in action or to pay the 
 amount thereof when due from him into court for the 
 benefit of the sequestration account."'""* 
 
 DEFENDANTS WHOSE rROrEKTY CANNOT BE LEVIED 
 UPON AND SOLD. 
 
 § 126. Property of a County or of a Municipal Corpora- 
 tion. — We have shown, in a precLMliny section,"*'* that it 
 was, under ordinary circumstances, erroneous to award 
 an execution against a county or a municipal corpora- 
 tion. Where this rule of law i)revaiis, it is clear that 
 no property of a county or a city is subject to seizure 
 under execution; for, in contemplation of law, there 
 can be no valid execution. Thus, in California, a suit 
 was regularly prosecuted against a parcel of land for 
 delinquent taxes thereon, and a judgment in rem ob- 
 tained. A sale having been made under this judgment, 
 the purchaser applied to be let into possession of the 
 property. He was resisted, on the ground that the land 
 belonged to a city, and was used by it as a public ceme- 
 tery. The court held the tax suit unauthorized, and the 
 judgment therein coram non judice; and that the sale 
 was, therefore, void.^^** 
 
 In Illinois, the question of what classes of property 
 belonging to a municipality may be subject to execu- 
 tion against it can never arise, for in that state there ap- 
 pears to be no contingency in which an execution may 
 
 si4Ward v. Booth. L. R. 14 Eq. 201. 
 
 315 City of Rloominffton v. Brokaw. 77 IlL 194; City of Morrison 
 V. Hinkson. 87 111. r>S7. Soo § 22. 
 810 People V. Doe G. 1034, 36 Cal. 220.
 
 § 126 PERSONAL PROPERTY SUBJECT TO EXECUTION. 53& 
 
 be awarded or issued against a municipal corpora- 
 tion.^^^ 
 
 The question whether or not a parcel of property be- 
 longing to a municipal or other public corporation is 
 subject to execution must be determined by ascertain- 
 ing the uses and purposes for which such property is, 
 held. In some of the states, all property belonging to 
 a municipal corporation is presumed to be exempt from 
 execution, and, hence, he who seeks to justify such a 
 levy, or to support title thereunder, must assume the 
 burden of proving that the property in question was of 
 a character which, notwithstanding its ownership, ren- 
 dered it subject to execution.^** Such a corporation is 
 generally either a part of the government or an instru- 
 mentality through which some portion of the functions 
 of government are exercised. It may acquire and use 
 property for the purposes of public schools, hospitals, 
 prisons, courts, and for divers other uses in which the 
 public is concerned, its welfare promoted, and the func- 
 tions of government discharged. When held for sucli 
 purposes, the property does not partake of the charac- 
 ter of private ownership, and is clearly not subject to 
 execution.^^'* "We do not hesitate to declare that city 
 property, owned or used by the corporation for public 
 purposes, such as public buildings, public markets, hos- 
 pitals, cemeteries, engine houses, fire engines, and their 
 apparatus, and other property, real or personal, of kin- 
 
 317 City of Morrison v. Hinkson. 87 111. r),S7. 20 Am. Rep. 77; Flora 
 V. Nancy, 13^ 111. 45; City of Tokin v. Mc:Mnlion. IM 111. 1."!, 45 
 Am. St. Eep. 114; City of Danville v. Mitchell, G3 111. App. G47. 
 
 818 Curry v. Savannah. 64 Ga. 200. .37 Am. Rop. 74. 
 
 310 state V. Tiofloman, 69 Mo. 306, 33 Am. Rep. 40S; Gooch v. 
 Groffory, O.^ N. C. 142; Virden v. Fishback, 111. App. 82: T.yon v. 
 Elizabeth. 43 N. J. L. 158; City of Davenport v. P. M. & F. I. Co., 
 17 Iowa, 27G.
 
 539 PERSONAL PROPERTY SUBJECT TO EXECUTION. § I'Jti 
 
 dred utility, caDnot be taken in execution for the debts 
 of the city. But if the city owns private projierty, not 
 useful or used for corporate puri)oses, such jjroperty 
 may be seized and sold under final process, precisely as 
 similar property of individuals is seized and sold." ^"" 
 It would be intolerable that these instrumentalities 
 should be seized and the functions of government either 
 suspended or destroyed. Nor would a mere change in 
 the form of the property subject it to execution. Hence, 
 there cannot be any garnishment of moneys due a mu- 
 nicipality for insurance upon a school-house which ha^ 
 ,been destroyed by fire.^^* Blocks of land used by a 
 city for wharf and levee purposes, and upon which 
 charges are made by the city for wharfage, are not sub- 
 ject to execution; for the providing of such wharves, 
 and the collecting of tolls thereon, are matters of gov- 
 ernmental regulation."'^^ Kor is it necessary to exempt 
 the property of a city that it be then in actual public 
 use, if it has formerly been so used, for it will be pre- 
 sumed to be intended for such use until the contrary is 
 shown.^^^ "Property held for public uses, such as 
 public buildings, streets, squares, parks, promenades, 
 wharves, landing-places, fire-engines, hose and hose-car- 
 riages, engine-houses, engineering instruments, and, 
 generally, ever3'thing held for governmental purposes, 
 cannot be subjected to the payment of the debts of the 
 city. Its public character forbids such an appropria- 
 tion." "^* And this rule has been held to extend to 
 judgments obtained under the mechanics' lien law, for 
 
 820 Mayor of Birminchnm v. Ruinsoy, 63 Ahi. 356. 
 82iFloishel v. Hijrhtowor. C,2 Oa. 324. 
 
 822 Klein v. New Orlonns. 00 F. R. 140. 
 
 823 Curry v. Savauiuili. 04 O.a. 200. 37 Am. Rop. 74; 21 Alb. L. J. 
 34. 
 
 S24 Meriwether v. Garrett. 102 U. S. 501.
 
 § 126 PERSONAL PROPERTY SUBJECT TO EXECUTION. 54U 
 
 work done and materials furnished toward the erection 
 of a public school-house.^^® This immunitj^ from exe- 
 cution extends to all the public revenues of a city, 
 whether derived from taxes or other sources; for to 
 permit their seizure would necessarily suspend the gov- 
 ernmental functions of the city almost as effectually 
 as the repeal of its charter.*''** Nor do such revenues 
 become subject to seizure because deposited in a pri- 
 vate bank or other depository.^*' Doubtless, it is with- 
 in the power of the legislature to authorize the creation 
 and enforcement of mechanics' and materialmen's liens 
 against public buildings and other property of munici- 
 pal corporations. The presumption is, however, against 
 an intention to exercise this power, and hence, any stat- 
 ute declaring, in general terms, that every contractor 
 or materialman shall have a lien upon a building or 
 structure toward the erection or repair of which he has 
 furnished labor, or given material, must be construed 
 as applying to private property only, and as not extend- 
 ing to that class of the property of municipal corpora- 
 tions not ordinarily subject to execution.^^* "For rea- 
 sons of public policy, and the public necessity, courts, 
 in construing statutes that create liens against build- 
 
 325 Brinclvprhoff v. Board of Erinoation. fi Abb. Pr.. N. F?.. 428: 37 
 Ho-^v. Pr. 400; 2 Paly, 443: Lnrinsr v. Small. ISO Iowa. 571. 32 Am. 
 ■Rpp. 13R: Charnock v. Colfax. 51 To^va. 70; Dillon on Municipal 
 norporations. sec. 577: IMayrhofer v. Bd. of Ednration. 80 Cal. 110; 
 23 Am. St. Rep. 451. 
 
 326BroTvn v. Gates. 15 W. Ya. 131: Eserton v. Municipality. 1 La. 
 Ann. 435: Municipality v. Hart. H La. Ann. 570: N. O. & C. R. R. 
 V. Municipality. 7 La. Ann. 148: Police .Tury v. ^Michel, 4 La. Ann. 
 84: City of Chicagro v. Hasley, 25 111. 505; Hart v. City of New Or- 
 leans. 12 Fed. Rep. 202. 
 
 327 Peterkin v. New Orleans, 2 Woods, 101. 
 
 328 Park Co. v. O'Connor, 86 Ind. 531: McKnicht v. Grant. 30 La. 
 Ann. 361. 44 Am. Rep. 338; Ripley r. Gacre County. 3 Neb. 397j 
 Leonard v. City of Brooklyn, 71 N. Y. 498. 27 Am. Rep. 80.
 
 641 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 1C6 
 
 ings generally do not include within the operation of 
 the statute buildings and grounds used and devoted to 
 public purposes and uses, and that are constructed for 
 such purpose. The weight of authority numerically, 
 and also for the better reason, asserts the rule that 
 builders' and mechanics' liens can only be created 
 against public buildings and grounds when the right is 
 expressly conferred by the statute; that the grant of 
 lien against ''all buildings'' will not be held to include 
 public buildings and grounds, unless they are, by the 
 express terms of the statute, included within its opera- 
 tion." ^^^ ^ Hence, a system of waterworks provided by 
 a city for the protection and convenience of its inhabi- 
 tants is not subject to a mechanics' lien for material;* 
 furnished to be used, and used, in its construction.*'^-''* 
 This rule is necessarily equally applicable to execu- 
 tions issued upon ordinary money judgments and seek- 
 ing to reach such waterworks or shares of stock therein 
 owned by the municipality. Hence, it was held that a 
 statute purporting to exempt from execution such 
 shares of stock could not be successfully assailed as im- 
 pairing the contracts or rights of pre-existing creditors 
 of the city. In a case in which this question arose, it ap- 
 peared that the state legislature had, by statute, auth- 
 orized a city to convert its ownership in property held 
 for its use into shares of a joint stock corporation, and 
 declared that they should be exempt from judicial sale 
 for the debts of the city. It was admitted that the 
 property thus authorized to be converted, to wit, cer- 
 tain waterworks, was not liable to be sold for the debts 
 
 82RaAtacosa County v. Angus. 83 Tex. 202, 29 Am. St. Rep. 637 
 829 Chr.pnian M. Co. v. Oconto W. Co., 89 Wis. 204. 46 Am. St 
 
 Rep. 830; Wilkinson v. TToffnian. ni Wis. r>?,7: cninrn. X;ition.Tl F. 
 
 & P. W. v. Oconto W. Co., 52 Fed. Rep. 43, 59 Fed. Rep. 19, 7 Cir. 
 
 Ct. App. G03.
 
 § 126 PERSONAL PROPERTY SUBJECT TO EXECUTION. 542 
 
 of the city, and the court said that, though this aduiis- 
 eion had not been made, it was clear that the works in 
 question "were of such public utility and necessity that 
 they were held in trust for the use of the citizens. In 
 this respect they were the same as public parks and 
 buildings, and were not liable to sale under execution 
 for ordinary debts against the city;" that, such being 
 1he case, the legislature had merely changed the form 
 of the city's ownership in the property, the shares rep- 
 resenting the waterworks, and the statute in question 
 but continued the property in the hands of the city in a 
 changed form, subject to the same exemption which 
 had before existed, and, hence, it did not impair the 
 rights of any creditor of the municipality.^""^® 
 
 An intention to subject property of a municipal cor- 
 poration to execution will not be presumed in the ab- 
 sence of language necessarily indicating it. Therefore, 
 it has been held that, though a statute enumerated 
 specified classes of property belonging to a city as be- 
 ing exempt from sale under execution, this did not im- 
 ply that all its property not so enumerated was subject 
 to execution. In this case an execution in favor of a 
 judgment creditor of a county was levied upon prop- 
 erty consisting of scrapers, plows, estray brands, etc., 
 and the same was sold to satisfy the execution. The 
 county thereupon brought an action against the plain- 
 tiff in the writ, the sheriff who took the property, the 
 justice who rendered the judgment, and the attorney 
 who advised the suit, charging them with conspiracy 
 and unlawful conversion of the property of the county. 
 The question presented was whether such property was 
 liable to be levied upon and sold, and the defendants 
 
 330 New Orlofins v. Morris, 105 U. S. GOO.
 
 543 PERSONAL PROPERTY SUBJFXT TO EXECUTION. § 12G 
 
 insisted that it was subject to levy and sale for the rea- 
 son that it was not included within the classes of prop- 
 erty enumerated in the statute as not being subject to 
 execution under a writ against the county. The court 
 said: "The nature, objects, and liabilities of political, 
 municipal, or public corporations, like a county in a 
 state, stand upon a different ground from private cor- 
 porations. A county is one of the political divisions of 
 the state, signifying a community, Clothed wilh such 
 extensive authority and political power as may be 
 deemed necessary for the superior controlling power of 
 the state for the proper government of its people re- 
 siding within its borders, and for the proper adminis- 
 tration of its local affairs. A county can raise revenue 
 by taxation, make public improvements, and defray the 
 expenses of the same by taxation, exercise certain speci- 
 fied judicial powers, and generally act within the au- 
 thorized sphere created and abridged by the statute or 
 constitution of the state. The power of taxation fur- 
 nishes the means by which it may pay its debts and 
 meet obligations necessarily incurred for the many pur- 
 poses of its existence and welfare. The county has 
 control of the county property to be used and disposed 
 of to promote corporate purposes. It does not possess 
 property liable to execution in the same sense that an 
 individual possesses it. Levying upon and selling the 
 property or revenues of a county, or removing it, may 
 work irreparable injury, and ruin its inhabitants. We 
 are unable to find, nor has our attention been called to, 
 any statute in this state expressly giving authority to 
 levy an execution, and sell property of the county for a 
 debt. It is a general rule that the people or the sover- 
 eiffn are not bound bv general words in a statute re- 
 strictive of a prerogative right, title, or interest, unless
 
 § 126 PERSONAL PROPERTY SUBJECT TO EXECUTION. 5U 
 
 expressly named Section 3419 of the Compiled 
 
 Laws of Utah of 1888, giving a party in whose favor a 
 judgment is rendered a right to execution, and subdi- 
 vision 10 of section 8129, exempting certain classes of 
 property from execution against a county, cannot be 
 extended so as to include the right to levy an execution 
 against the property of the county, state, or municipal 
 organization, in the absence of a statute expressly 
 granting such right in express terms." ^^^ This is mani- 
 festly so, because it is the purpose of the funds, and not 
 their situation, which withdraws them from execution. 
 Pueblo lands held by towns and cities under the Mexi- 
 can laws, in trust for their inhabitants, are not subject 
 to execution against such towns and cities, because 
 they have no beneficial interest therein.^"'- In some of 
 the states, certain property belonging to cities has been 
 decided to be subject to execution, on the ground that 
 it was not held or used for governmental purposes, and 
 that its seizure would not suspend or impair the exer- 
 cise of the governmental functions delegated to such 
 cities.^^^ Thus, in California, lands were held subject 
 to execution which were granted to a city by the state, 
 with a proviso that the city should "pay into the state 
 treasury, within twenty days after their receipt, twenty- 
 five per cent of all moneys arising from the sale or other 
 disposition of the property." ^^* 
 
 331 Emery Co. v. Biirreson, 14 Utah. 32S. 60 Am. St. Rep. 808. 
 
 332 Hart V. Burnett, 15 Cal. 530; Townseud v. Greoly, 5 Wall. 
 326. 
 
 333 City of New Orleans v. H. M. I. Co., 23 La. Ann. 61; City of 
 New Orleans v. Morris. 3 Woods, 103. 
 
 834 Smith V. Morse, 2 Cal. 524; Holladay v. Frishie, 15 Cal. 630; 
 W^heeler v. Miller, 16 Cal. 124. See, also, Darlington v. Mayor of 
 N. Y., 31 N. Y. 164: Lyell v. Supervisors of St. Clair Co.. 3 McLean, 
 580. It is said that the apparatus and funds of the metropolitan
 
 645 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 12Ga 
 
 TBe tax collector of a city having failed to pay taxes 
 collected by him to meet the obligations of the city on 
 outstanding bonds, a suit was brought against him and 
 his sureties, resulting in a compromise and in the con 
 veyauce to the municipality of certain real property, 
 which it accepted in satisfaction of its demand. This 
 property the city was unable to sell, and it was there- 
 fore rented and the proceeds used in paying the ex- 
 penses of the city. One of its judgment creditors 
 caused an execution to be levied on the property and 
 sought to defend his action on the ground that such 
 property was not adapted to, nor used by, the city for 
 any public purpose, but was, on the other hahd, resi- 
 dence property not occupied by the city, but rented by 
 It to private individuals. The court was of the opinion 
 that, though the property was of a character which or- 
 dinarily would render it subject to execution when held 
 by a municipal corporation, yet, under the circum- 
 stances in which the city acquired it, it must be held to 
 stand in the same position as would moneys collected 
 by the tax collector for the purpose of discharging the 
 bonded indebtedness of the municipality. In other 
 words, that the property in question must be regarded 
 as a special fund, disbursible only for the purposes for 
 which it was created, and hence that a creditor of the 
 municipality could not acquire any right to subject it to 
 execution.^' 
 
 § 126 a. The Property of Certain Quasi Public Cor- 
 porations is held by them for the purposes of private 
 
 fire department of New York and Brooklyn are subject to execution 
 In satisfaction of judgments against the department. Clarissy v. 
 Metropolitan Fire Department, 7 Abb. Pr., N. S., ,352; 1 Sweeny. 224. 
 In Alabama the creditor of a municipal corporation may garnish 
 moneys in the hands of a city marshal. Smoot v. Hart. .33 Ala. GO. 
 835 City of Sherman v. Williams, 84 Tex. 421, 31 Am. St. Rep. 6G. 
 Vol. I.— 35
 
 § l-26a PERSONAL PROPERTY SUBJECT TO EXECUTION. 546 
 
 gain, and has, so far as its ownership is concerned, all 
 the advantages of private property; but such corpora- 
 tions are generally created and given especial privi- 
 leges, with a view to the advantages which may ac- 
 crue to the public. The public is, therefore, regarded 
 as having an interest in the continued performance of 
 the corporate duties; and any alienation, whether vol- 
 untary or involuntary, of the franchises of the corpora- 
 tion, or of the property necessary to the exercise of such 
 franchises, is looked upon with disfavor, and in some of 
 the states has been peremptorily forbidden. Hence, if 
 a corporation is authorized to construct and maintain 
 a turnpike or canal, and to collect tolls thereon, neither 
 the turnpike, nor canal, nor the toll-houses, or other 
 property indispensable to the maintenance of such 
 road or canal, can be sold under execution.^^** "Most 
 people acquainted at all with corporate action under- 
 stand that corporations other than municipal, which 
 are purely public, naturally divide into public and pri- 
 vate corporations; that is, into those that are agencies 
 of the public, directly affecting it, and those which af- 
 fect it indirectly, by adding to its prosperity in devel- 
 oping its natural resources, or in improving its mental 
 and moral qualities; of the former, are corporations 
 for the building of bridges, turnpike roads, canals, and 
 the like. The public is directly interested in the re- 
 sults to be produced by such corporations in the facili- 
 ties afforded to travel, and the movements of trade and 
 commerce. It is well settled that this use is not to be 
 disturbed by the seizure, of any part of their property 
 essential to their active operations, by creditors. They 
 
 836Ammant v. N. A. & P. T. Co.. 13 Serg. & Tl. 210. 15 Am. Dec. 
 593; Susquehanna C. Co. v. Bonham, 9 Watts & S. 27, 42 Am. Dec. 
 315.
 
 547 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 12Ga 
 
 must recover their debts by sequestering their earn- 
 ings, allowing them to progress with their undertaking 
 to accommodate the public." ^'^'' It was, therefore, 
 held that a corporation for introducing water into a 
 town for the use of its inhabitants was a public cor- 
 poration, and that its lauds and buildiugs necessary to 
 the enjoyment of its franchises were not subject to exe- 
 cution nor to a mechanic's lien.^**^ This rule has been 
 applied to a public toll-bridge which, though belong- 
 ing to a private corporation, had been aided by a do- 
 nation from a municipality, and was, after its construc- 
 tion, used as a part of a public highway, though the 
 execution issued upon a judgment recovered by the 
 plaintiff for moneys due him as a contractor for the 
 erection of such bridge. The court, in announcing its 
 conclusion, said: "We believe the rule deducible from 
 all the cases may be safely stated as follows: The 
 property of strictly private corporations, such, for in- 
 stance, as manufacturing, mining, and trading compa- 
 nies, and, perhaps, those in which the public is indi- 
 rectly interested, as libraries, hospitals, and the like, is 
 liable to be taken on execution precisely as the prop- 
 erty of an individual debtor, but the property of corpo- 
 rations which are classed as public agencies, such as 
 railroad and bridge companies, which is essential to 
 the exercise of their corporate franchise and the dis- 
 charge of the duties they have assumed toward the gen- 
 eral public cannot, without statutory authority, be sold 
 to satisfy a common-law judgment, either on execution 
 or in pursuance of an order or decree of court." ^^*** 
 The same rule applies to railroad corporations. "As 
 
 837 Foster v. Fowler, GO Pa. St. 30. 
 33S ibici. 
 
 839 Overton B. Co. v. Means, 33 Neb. SoT. 29 Am. St. Rep. 514.
 
 § 126a PERSONAL PROPERTY SUBJECT TO EXECUTION. 54S 
 
 to land which has been appropriated to corporate ob- 
 jects, and is necessary for the full enjoyment and ex- 
 ercise of any franchise of the company, whether ac- 
 quired by purchase or by exercise of the delegated 
 power of eminent domain, the company hold it entirely 
 exempt from levy and sale; and this on the ground of 
 prerogative or corporation immunity, for the company 
 can no more alien or transfer such land by its own 
 act than can a creditor by legal process; but the ex- 
 emption rests on the public interests involved in the 
 corporation. Though the corporation in respect to its 
 capital is private, yet it was created to accomplish ob- 
 jects in which the public have a direct interest, and 
 its authority to hold lands was conferred that these 
 objects might be worked out. They shall not be balked, 
 therefore, by either the act of the company itself, or 
 of its creditors. For the sake of the public, whatever 
 is essential to the corporate franchises shall be re- 
 tained by the corporation. The only remedy which the 
 law allows to creditors against property so held is se- 
 questration." ^"*" Such was the law of Pennsylvania,, 
 until the statute of 1870 authorized the levy of execu- 
 tion upon the franchises and property of corpora- 
 tions.^" / 
 
 The theory of the exemption of the property of quasi- 
 public corporations from levy and sale under execu- 
 tion is that, if such levy and sale were permitted, the 
 corporation would no longer be able to discharge its 
 duties to the public. When this reason ceases, the 
 rule becomes inapplicable. Hence, if a cor|)oration 
 has property which is not necessary to the exercise of 
 
 840 riymonth R. R. v. Colwell. 39 Pa. St. 387, 80 Am. Dec. 526; 
 see, also. Richardson v. Sibley, 11 Allen. (>,^, S7 Am. Dec. 700. 
 
 841 Thiladelphia & B, C. R. R. Co.'s Appeal, 70 Ta. St. 355.
 
 549 PERSONAL PROPERTY SUBJECT TO EXECUTION. S 126» 
 
 its franchises and the discharge of its duties, or if, 
 though such property is necessary, it has ceased to be 
 used, because the corporation has ceased to exercise 
 its corporate franchises, the property becomes subject 
 to execution."*^ 
 
 In some of the states, statutes have been enacted 
 modifying the common-law rule by making the prop- 
 erly of the corporations therein mentioned subject to 
 execution, though the franchises possessed, and the 
 duties performed by them, are of a public or quasi-pub- 
 lic character.^^^ In the other states the courts have 
 conceded that francliises were not subject to execution, 
 unless made so by statute; but they have hesitated to 
 declare that the exemption of franchises drew with it 
 that of all other property essential to their enjoyment. 
 That the involuntary sale of such property might 
 render the franchise unproductive of the public good, 
 and to some extent thwart the public will, and impair 
 the public welfare, has always been conceded. On the 
 other hand, the evil of withdrawing a vast and con- 
 stantly increasing amount of the wealth of the coun- 
 try from the reach of creditors has been regarded as so 
 real and serious that the courts have not given it their 
 countenance or support; and at the present day the 
 property of corporations other than municipal, though 
 essential to the enjoyment of the corporate franchises, 
 is almost universally treated as subject to execution.^^ 
 
 342 Gardiner v. Mobile & N. R. R., 102 Ala. 635, 48 Am. St. Rep. 
 84; Benedict v. Ileinebers:, 43 Vt. 231. 
 
 343 Simmons v. Worthington. 170 Mass. 203; Williams v. East 
 Wareham etc. R. Co., 171 Mass. 61. 
 
 844 Risdon I. W. V. Citizens' T. Co.. 122 Cal. 94, 68 Am. St. Rep. 
 2.0 ; State v. Rives. 5 Ired. 306; Arthur v. C. & R. R. Bank, 9 Smedes 
 & M. 431. 48 Am. Dec. 719: Coe v. C. P. & I. R. R.. 10 Ohio St. 372, 
 75 Am. Dec. 51S; Coe v. Peacock, 14 Ohio St. 187; R. R. Co. v.
 
 § 126b PERSONAL PROPERTY SUBJECT TO EXECUTION. 55» 
 
 *^Tlie idea that property, either real or j^ersonal, may 
 become a mere incident to a franchise, so that the fran- 
 chise and property shall constitute an entire thing, i» 
 not found in any of the books of the common law, so 
 far as we are aware. The right to a ferry is such a 
 franchise, and the boats required for the transporta- 
 tion of passengers and their property are entirely in- 
 dispensable for the discharge of the public duties of 
 the owner; yet we have found no instance in which it 
 has been claimed that such boats were exempt from 
 seizure for the owner's debts." ^^° 
 
 § 126 b. Property of insolvent Corporations.— The 
 property of an insolvent corporation is ordinarily sub- 
 ject to execution in the same manner, and to the same 
 extent, as that of natural persons, with exceptions 
 referred to in the preceding section.^^ If a corpora- 
 tion, however, has become insolvent, and especially if 
 it is clear that it intends to, or must, discontinue its 
 business, its assets have often been spoken of as a trust 
 fund for the benefit of its creditors, and it has hence 
 been held that all creditors have equal rights to share 
 in such fund or assets, and that the corporation has, 
 therefore, no power to make any disposition of them 
 which will prefer one creditor to another, or which may 
 enable one to receive full payment while another may 
 remain without redress, except such remedy as may be 
 allowed him in an action against the shareholders.**'' 
 
 James, 6 "Wall. T.jO; Stewart v. Jones, 40 Mo. 140; Ludlow v. C. L. 
 R. R.. 1 Flip. 25. 
 
 345 B. C. & IM. R. R. V. Gilmore, 37 N. II. 410. 72 Am. Dec. 33fi; 
 Lathrop v. Miadleton, 2.3 Cal. 257, 83 Am. Dec. 112. 
 
 346 Reynolds v. Reynolds L. Co., 169 Pa. St. U2G, 47 Am. St. Rep. 
 935; Guarantee Co. v. First N. B.. 95 ta. 480. 
 
 34T T.arrabee v. Franklin Bank, 114 Mo. .592, .35 Am. St. Rep. 771: 
 Currie v. Bowman, 25 Or. 304; Sabin v. Columbia F. Co.. 25 Or. 15.
 
 551 PERSONAL I'ROrEUTY SUBJECT TO EXELL'TION. § 1261> 
 
 Xotwithstanding some recent accessions to the ranks 
 of the defenders of the trust fund theory, we believe 
 the weight of authority still favors the proposition that 
 a corporation may make preferences in favor of its 
 creditors to the same extent as a natural person, and, 
 at all events, that there can be no doubt of the right to 
 make such preferences as long as the corporation is 
 what may be called a going concern, or, in other words, 
 is proceeding with its business and has not, in effect, 
 placed its assets in the hands of persons who must, in 
 contemplation of law, be regarded as trustees, having 
 no other duty to perform than that of distributing the 
 property among the creditors and others who may be 
 found entitled thereto.^^** Where, however, the rule 
 prevails that a corporation which is insolvent, or in 
 contemplation of insolvency, has no right to prefer one 
 of its creditors to another, this rule must be applica- 
 ble to creditors, proceeding to judgment and execution 
 at the instance of, or by the connivance with, the of- 
 ficers or managers of the corporation, for what they 
 are not permitted to do directly they cannot be al- 
 lowed to accomplish by indirection or collusion.^^'-* In 
 
 42 Am. St. Hop. 75G; Lyons-Tliomas H. Co. v. Terry S. Co., S8 Tex. 
 143; Fowler v. Bell, 90 Tex. 150, 59 Am. St. Rep. 788; Conover v. 
 Hull, 10 Wash. G73, 45 Am. St. Rep. 810. 
 
 »*8 0'Bear J. Co. v. Volfer, 106 Ala. 205, 54 Am. St. Rep. 31; Al- 
 bany etc. Co. V. Southern A. Works, 76 Ga. 135. 2 Am. St. Rep. 20; 
 First N. B. v. Dovetail B. & G. Co. 143 Ind. 550, 52 Am. St. Rep. 
 435; Rollins v. Shaver U. Co., 80 Iowa, 380. 20 Am. St. Rep. 
 427; Warfiold v. Marshall C. C. Co., 72 Iowa, 606. 2 Am. St. Rep. 
 2(«; Wortheu v. Griffiths. 59 Ark. 502, 43 Am. St. Rep. 50; 
 Schufeklt V. Smith. 131 Mo. 280, 52 Am. St. Rep. 628; Trades- 
 man P. Co. V. Knoxville C. Co., 95 Tenn. 634. 49 Am. St. Rep. 
 043: Sweeney v. Grape S. Co., 30 W'. Va. 448. 8 Am. St. Rep. 
 88; note to Conover v. Hull, 45 Am. St. Rep. 826-835; Fogs; v. Blali, 
 1.33 U. S. 534: Hawkins v. Glenn. 131 IT. S. .119: IloUins v. Briertield 
 etc. Co.. ir,0 U. S. 3,84. 
 
 «<9 Conover v. Hull, 10 ^Yash. 673, 45 Am. St. Rep. SIO.
 
 § 1-2GI) PERSONAL PROPERTY SUBJECT TO EXECUTION. 552 
 
 the absence of fraud or collusion between the man- 
 agers of a corporation and an execution creditor for the 
 purpose of giving a x>reference to him, it is doubtful 
 whether in any case the property of a private corpora- 
 tion can be regarded as not subject to execution when 
 not charged with a public trust. lu Texas, it has been 
 held that, after a corporation had become insolvent, 
 abandoned the undertaking for which it was incorpo- 
 rated, and placed its assets in the hands of its direct- 
 ors as trustees for distribution ratably among its 
 several creditors, such assets were not subject to be 
 seized by the sheriff under a writ against such corpo- 
 ration. This decision is founded upon the assumption 
 that the statutes of the state, as construed by its courts, 
 converted such directors into trustees for creditors, and 
 that the circumstances involved in this case practi- 
 cally amounted to a general assignment by the corpo- 
 ration to the trustees for the benefit of its creditors. It 
 further appeared, however, in this case, that the cred- 
 itor seeking to subject the property to attachment had 
 already accepted a dividend from the trustees, and 
 that he was thereby estopped from controverting the 
 validity of the intended assignment to them.^^® Un- 
 der the exceptional circumstances disclosed, this case 
 Avas probably correctly decided, but, in the absence of 
 such circumstances, we think there can be no doubt 
 that the insolvency of a corporation, however great, or 
 however well known or ascertained, cannot prevent its 
 personal property from being subject to an execution 
 n gainst it.^®^ Even where a statute was in force, pro- 
 hibiting any insolvent corporation or any of its officers 
 
 350 Wright V. Euless, 12 Tex. Civ. App. 136. 
 
 351 Jones V. Bank of Leadville, 10 Colo. 404; Broene v. Merchants' 
 & M. Bank, 11 Colo. 97; Arnold v. Weimer, 40 Neb. 216.
 
 553 TERSONAL PROPERTY SURJElT TO EXECUTION. § 12i;b 
 
 from a.s.si<>ning or disposing of its property in payment 
 of its debts, and also prohibiting any assignment or 
 transfer in contemplation of insolvency, it was held 
 that neither the corporation nor its officers were under 
 any duty to take active measures to procure a disposi- 
 tion of its property, without preferences among all its 
 creditors, and that, if an action were commenced 
 against the corporation upon a valid obligation, en- 
 tered into by it, neither it nor its directors were re- 
 quired to take any hostile proceedings, and that a cred- 
 itor, by his vigilance in obtaining judgment and levy- 
 ing an execution, became entitled to the fruits thereof, 
 and, hence, substantially, that the corporation might, 
 under these circumstances, by its inaction, suffer a pref- 
 erence in favor of one of its creditors against which the 
 others could obtain no redress.^"'^^ 
 
 In those states in which an insolvent corporation 
 has the right to prefer one creditor to another, it may 
 execute a judgment note in consideration of pre-exist- 
 ing indebtedness, upon which a judgment may at once 
 be entered, and the property of the corporation levied 
 upon thereunder and sold; and such levy and sale can- 
 not be avoided by another judgment creditor upon a 
 bill against the corporation and its directors, alleging 
 fraud in giving the judgment note while the corpora- 
 tion was known to be insolvent, for the purpose of au- 
 thorizing the sale of its property under legal process, 
 nor is it material that the debt for which the judg- 
 ment note was given was guaranteed by some or all 
 of the directors.^^^ 
 
 «52 Varnura v. Hart, 119 N. Y. 101. 
 
 853 Rockford W. G. Co. v. Staudaid G, & M. Co., 175 111. SO, 67 
 Am. St. Kep. 205.
 
 § 127 TERSONAL PROPERTY SUBJECT TO EXECUTION. 554 
 
 § 127. Property of Married Women for Debts of Hus- 
 band. — Under the provisions of the common law, thf 
 giving of a Avoman in marriage, unless restricted by 
 antenuptial agreements, operated as a gift of all her 
 personal estate, then actually or constructively in her 
 possession, and of all personal estate which might 
 thereafter, during coverture, be acquired by her, and 
 reduced into her possession or that of her husband. 
 And her chattels were deemed, in law, to be in her 
 possession, for the purpose of transferring title to the 
 husband, by mere force of his marital rights, in all 
 cases where such chattels were not held adversely to 
 her. It w^as of no consequence that they were held by 
 her agent or bailee, or by any other person for her bene- 
 fit. Where the rules of the common law still prevail, 
 it is evident that what might, according to justice, or 
 according to the popular acceptation of the term, be 
 called the wife's chattels, are, in contemplation of the 
 law% chattels in w^hich she has no interest, over which 
 she can exercise no control, and for the interference 
 with which she has no legal cause for complaint. They 
 are the property of her husband as absolutely as 
 though possessed by him anteriorly to his marriage.^^^ 
 
 354 As to the vesting of wife's chattels in the husband by virtue of 
 marriage, see Bishop on Married Women, sees. 64. .52; Clapp v 
 Stoughton, 10 ritk. 462; Sheriff v. Buckner, 1 Litt. 126; Gwyun v. 
 ITamilton, 29 Ala. 233; Martin v. Paugue, 4 B. Mon. 524; Washbin-ri 
 V. Ilale, 10 Pick. 429; Carleton v. Lovejoy, 54 Me. 445; Jordan v. 
 .Jordan, 52 Me. 320; Hopper v. McWHiorter, 18 Ala. 229; Bell v. Bell. 
 1 Kelly. 637; Byrd v. Ward, 4 ^McCord, 228; Cram v. Dudley, 28 
 N. H. 537; Pope v. Tucker, 23 Ga. 484; Hill v. W^-nn, 4 W. Ya. 453; 
 Ewing V. Handley, 4 Litt. 346, 14 Am. Dec. 140; ^Miller v. Bingham. 
 1 Ired. Eq. 423, 36 Am. Dec. 58; Daniel v. Daniel. 2 Rich. Eq. 115, 
 44 Am. Dec. 244; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236; 
 Potts V. Gooch, 97 Mo. 88, 10 Am. St. Rep. 286. The possession of 
 the wife can never become adverse to the husband, tliough he has 
 abandoned her and lived in adultery with another. Bell v. Bell's 
 Adm'r, 37 Ala. 5.30, 79 Am. Dec. 73.
 
 555 TERSONAL PROPERTY SUBJECT TO EXECUTION. § 127 
 
 They are not to be thought of as her property; but may 
 be seized and sold under execution against him, and 
 applied to the payment of his debls.^^"' Choses in ac- 
 tion were not regarded as being in the possession either 
 of the husband or the wife. The husband may, by col- 
 lection, reduce them to his possession and make the 
 proceeds his personal estate. If he does not do so dur- 
 ing coverture, they survive to the wife, and do not pass 
 to his administrator.'*^** But in some of the states it 
 has been held that the husband's creditors may reach 
 the wife's choses in action before he reduces them to 
 possession.""'' The view, however, which is best sus- 
 tained by reason and by authority is that, to entitle 
 the husband to the benefit of the Avife's choses in ac- 
 tion, he must at least make some attempt to appro- 
 priate them to his own use, or, by means of suit, to 
 convert them into things in possession; that, in the 
 absence of such attempt, the choses continue to be the 
 property of the wife; that no person but the husband 
 is entitled to exercise his right of depriving her of such 
 property; that a writ against the husband cannot reach 
 the property, because it is not his, and cannot reach 
 the right of reducing the property into possession, be- 
 cause that is a personal privilege, and cannot be trans- 
 
 355 Cunningham v. Gray, 20 Mo. 170; Apple v, Ganong, 47 Miss. 
 189; Tally v. Thompson, 20 Mo. 277; Barbee v. Wimer, 27 Mo. 140; 
 Pawley v. Vogel, 42 Mo. 291. 
 
 356 Bishop on Married Women, sec. 65; Chappelle v. Oliiey, 1 
 Saw. 401. 
 
 357 Wheeler v. Bowen, 20 Pick. 5G3; Holbrook v. Waters. 19 Pick. 
 354; State v. Krebs. 6 Har. & J. 31; Peacock v. Pembroke. 4 Md. 
 280; Strong v. Smith, 1 Met. 476; Alexander v. Crittenden. 4 Allen, 
 342; iHild v. Geiger, 2 Gratt. 98; Vance v. :McLaughlin. S Gratt. 289; 
 Hockaday v. Sallee, 26 Mo. 219; Johnson v. Fleetwood. 1 Harr. 
 (Del.) 442; Babb v. Elliott, 4 Harr. (Del.) 466; Bryan v. Rooks, 25 
 Ga. 622, 71 Am. Dec. 194.
 
 S 127 PERSONAL PROPERTY SUBJECT TO EXECUTION. 556 
 
 ferred."^** ''The common law of England identifies the 
 wife so entirely with the husband as scarcely to tol- 
 erate their separate existence while they live together. 
 She cannot acquire personal property by a direct con- 
 veyance to herself. ITer interest is, by act of law, al- 
 most in every instance transferred to her husband. 
 But this rule does not apply to personal estate to 
 which a female is entitled before marriage, and which 
 has not been reduced to possession. This remains her 
 property, and does not vest in the husband by the mar- 
 riage. The marital right does not extend to the prop- 
 erty while a chose in action, but enables the husband 
 to reduce it to possession, and thereby acquire it. The 
 property becomes his, not upon the marriage, but upon 
 the fact of his obtaining possession. The propr-rty does 
 not become his, nor is it subject to the liabilities which 
 attach to that which is his, until it shall be reduced to 
 possession. Till then his creditors have no claim to 
 it." '"^^^ Therefore, if a husband has not reduced his 
 
 858 Marston v. Carter, 12 N. H. 159; Poor v. Hazleton, 15 N. H. 
 504; Wheeler v. Moore, 13 N. H. 478; Smithhurst v. Thurston, 
 Brightly, 127; Skinner's Appeal, 5 Pa. St. 2G2; Denison v. Nigh, 2 
 Watts, 90; Robinson v. Woelpper, 1 Whart. 179, 29 Am. Dec. 44; 
 Ryan v. Bull, 3 Strob. Eq. SO; Durr v. Bowyer, 2 McCord Ch. 374; 
 Perryclear v. Jacobs, 2 Hill Ch. 509; Short v. Moore, 10 Vt. 446; 
 Probate Court v. Niles, 32 Vt. 775; Arrington v. Screws, 9 Ired. 42, 
 49 Am. Dec. 408; Godbold v. Bass, 12 Rich. 202; Pressley v. Mc- 
 Donald, 1 Rich. 27; Bennett v. Dillingham, 2 Dana, 437; Kilby v. 
 Haggin, 3 J. .1. Marsh. 208; Sayre v. Flournoy, 3 Kelly, 541; Flory 
 V. Beclier, 2 Pa. St. 470, 45 Am. Dec. 610; Scrutton v. Pattillo. L. R. 
 19 Eq. 369; 12 Moalc, 803; Proctor v. Ferebee, 1 Ired. Eq. 143, 36 
 Am. Dec. 34; Kaufman v. Crawford, 9 Watts & S. 131, 42 Am. Dec. 
 323; Widgery v. Tepper, L. R. 5 Ch. D. 516; 22 Moali, 261; Siocomb 
 V. Breedlove, 8 La. 143, 28 Am. Dec. 13.1; Miller v. Miller, 1 J. J. 
 Marsh. 169, 19 Am. Dec. 59; Scott v. HicliS, 2 Sneed, 192, 62 Am. 
 Dec. 458. 
 
 359 Gallego V. Gallego, 2 Brock. 286; Harris v. Taylor, 3 Sneed, 
 536, 67 Am. Dec. 576.
 
 557 PERSONAL PROPERTY .SUBJECT TO EXECUTION. § 127 
 
 wife's Glioses in action to possession before a statute 
 is enacted, vesting them in her as lier separate estate, 
 they cannot thereafter be reduced to his possession by 
 the husband, or reached by any proceeding prosecuted 
 by his creditors, for the purpose of applying them to the 
 satisfaction of his obligations.^"** 
 
 Mere manual possession alone is not sufficient. It 
 must be a reduction to possession with intent to assert 
 the husband's marital right. Hence, where he intends 
 the property to remain his wife's, his intent is not frus- 
 trated by his becoming its custodian,^"^ nor by hold- 
 ing it as trustee,'^^" or as executor. ^^ There must be a 
 union of act and intent. Therefore, the intent without 
 the act is as ineffective as the act without the in- 
 tent.^*^ A wife's chose in action is reduced to the pos- 
 session of her husband, and its proceeds become his 
 property, when he receives payment thereof with in- 
 tent to appropriate the proceeds to his own use,^"^ or 
 accepts in its stead a bond payable to himself, ^^ or 
 executes a transfer thereof, or recovers judgment there- 
 on, in his own name.^**'^ 
 
 With respect to the effect of a transfer for value, 
 made by a husband of his wife's chose in action, not 
 otherwise reduced to his possession, the authorities dis- 
 
 ««o Trapnell v. Conldyn, 37 W. Va. 242, 38 Am. St. Rep. 30. 
 
 ««i Hind's Estate, 5 Whart. 138, 34 Am. Dec. 542: Holmes v. 
 Holmes, 28 Vt. 67.5; McDowell v. Potter, 8 Pa. St. 192; Barber v. 
 Slade, 30 Vt. 191, 73 Am. Dec. 299. 
 
 862 Jackson v. McAliley, 1 Spears Eq. 303, 40 Am. Dec. 620; Resor 
 V. Resor, 9 Ind. 347; State v. Reigart, 1 Gill, 1. 39 Am. Dec. 628. 
 
 863 Walker v. Walker, 25 Mo. 307; Paige v. Sessions. 4 How. 122. 
 
 864 Brown v. Bokee, 53 Md. 155. 
 
 865 Thomas v. Chicago, 55 111. 403; Lowery v. Craig, 30 Miss. 19; 
 Plummer v. .Tarman. 44 Md. 632. 
 
 366 Stewart's Appeal. 3 Watts & S. 476. 
 
 867 Alexander v. Crittenden, 4 Allen. 342; Probate Court v. Niles, 
 32 Vt. 775.
 
 § 127 PERSONAL PROPERTY SUBJECT TO EXECUTION. 558 
 
 agree, some asserting that it operates to vest in the 
 assignee an indefeasible title,^*^** and others contend- 
 ing that the assignee obtains nothing beyond what the 
 assignor held, viz., the right to reduce the chose into 
 possession, and that, if such right is not exercised dur- 
 ing the husband's life, the chose survives to the wife.^"^ 
 The recovery of judgment on a wife's chose in action, 
 where the husband, instead of suing alone, merely joins 
 with her as a party plaintiff, does not vest it in him.^''** 
 Concerning post-nuptial choses in action, there ex- 
 ists the same divergence of judicial opinion as in other 
 cases. So far as the earnings of the wife are con- 
 cerned, they doubtless belong to the husband, unless he 
 has done something to estop himself from claiming 
 them.^'^^ Human beings, less heartless and more dis- 
 criminating than the common law, may, however, rec- 
 ognize the services and kind offices of a married woman, 
 and express such recognition in the form of a chose in 
 action, payable to her, or such chose may be taken in 
 her name in payment of portions of her separate es- 
 ses Siter's Case, 4 Rawle, 4G8; Tritt v. Colwell, 31 Pa. St. 228; 
 Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85; Tuttle v. Fowler, 
 22 Conn. 58; Ware v. Ware, 28 Gratt. G70; Manion's Adm'r v. Tits- 
 worth, 18 B. Mon. 582; Smith v. Atwood. 14 Ga. 402. 
 
 369 state V. Robertson. 5 Harr. (Del.) 201; George v. Goldsby, 23 
 Ala. 32G; Bryan v. Spruill, 4 Jones Eq. 27; O'Connor v. Harris, 81 
 N. C. 279. 
 
 370 McDowl V. Charles. 6 Johns. Ch. 132; Pierson v. Smith, 9 Ohio 
 St. 554, 75 Am. Dec. 48G; Perry v. Wheelock, 49 Vt. 63; Pike v. Col- 
 lins, 33 Me. 38. 
 
 871 Prescott V. Brown, 29 ^le. 305, 39 Am. Dec. 623; Norcross v. 
 Rodgers, 30 Vt. 588, 73 Am. Dec. 323; Matter of Callister, 153 N. Y. 
 294, 60 Am. St. Rep. 620; Evans v. W' elborn, 74 Tex. 530, 15 Am. St. 
 Rep. 858; Abbott v. Wetherby, 6 Wash. 507, 36 Am. St. Rep. 176: 
 Bailey v. Gardner, 31 W. Va. 94, 13 Am. St. Rep. 847. In many of 
 the states, however, the earnings of a wife are expressly exempted 
 from an execution in favor of her husband. Wallace v. Mason. 100 
 Ky. 560.
 
 '>n9 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 127 
 
 late sold by her. Doubtless, there are courts which 
 regard such chose, in either case, as the absolute prop- 
 erty of the husband, and consequently as subject to 
 ■execution against hini.^''^ On the other hand, choses 
 in action taken in the name of a wife, of which she is 
 the meritorious cause, and possibly those taken in her 
 name with the assent of her husband, of which she is 
 not the meritorious cause, have been treated as of the 
 same effect as her antenuptial choses.^'^^ 
 
 Where creditors of the husband find it necessary to 
 ask the aid of equity to enable them to reach choses in 
 action, and appropriate them to the satisfaction of the 
 husband's debts, it is very clear that the relief sought 
 will not be granted unless adequate provision first be 
 made for the support of the wife and her children.'"'"* 
 It will be seen that the exemption of the wife's choses 
 in action from execution or attachment against her hus- 
 band will only be maintained when the circumstances 
 are such that they must still be regarded as her prop- 
 erty. The reason why a sheriff may, ordinarily, under 
 a writ against a married man, seize the personal prop- 
 erty which belonged to the wife at her marriage, is not 
 because the wife's property is liable to be taken in sat- 
 
 3T2 Stevens v. Beals. 10 Cush. 291, 57 Am. Dec. lOS; Common- 
 Tvealth V. INIanley, 12 Pick. 173; Krebs v. O'Grady, 23 AJa. 726, 58 
 Am. Dec. 312; Peacock v. Pembroke, 4 Md. 280. 
 
 s-sDickinson v. Davis, 43 N. IT. 647, 80 Am. Dee. 202; Earlier v. 
 Slade. 30 Vt. 191, 73 Am. Dec. 209; Boozer v. Addison. 2 Rich. Eq. 
 273. 4G Am. Dec. 43, and note; Reed v. Blaisdell, 16 N. H. 194. 41 
 Am. Deo. 722. 
 
 874 Browning v. Iloadley, 2 Rob. (Va.) 340, 40 Am. Dec. 7.'»o; Wiles 
 V. Wiles. 3 Md. 1. .')G Am. Dec. 733; Daniel v. Daniel. 2 Rich. Eq. 
 115. 44 Am. Dec. 244; Wilks v. Fitzpatrick, 1 Iluniph. 54, 34 Am. 
 Dec. 618: Duvall v. Farmers' Bank. 4 Gill & J. 282. 23 Am. Dec. 
 558; Oswald v. Hoover, 43 Md. 368; Van Duzer v. Van Duzer. 6 
 Paisre. 366. r.1 Am. Doc. 257; X.-ipier v. Ilownrd. 3 Kelly. 102: Hays 
 T. Blanks, 7 B. Mon. 347; Bowling v. Bowling, B. Mon. 31.
 
 § 127a PERSONAL PROPERTY SUBJECT TO EXECUTION. 5Ga 
 
 isfaction of judgments against her husband, but be- 
 cause the property seized upon belongs, in contempla- 
 tion of law, to the defendant in execution. But prop- 
 erty which, notwithstanding the marriage, is recog- 
 nized by law as constituting the separate estate of the 
 wife, is no more liable to be taken on an execution 
 against her husband than it is to be taken under a writ 
 against some other person. Whatever interest in the 
 property the laAv concedes to the wife, it will protect 
 from her husband's creditors; ^'^^ and in some of the 
 states, statutes have been enacted which, without 
 changing the wife's legal title to personal estate, 
 owned by her before marriage or afterward acquired, 
 have exempted su.ch property from execution against 
 the husband.^'^*^ In other states, the wife is required to 
 file for record an inventory of her separate personal 
 estate. If she omits to do this, it may be taken in exe- 
 cution to satisfy her husband's debts.^'^'' 
 
 ^ 127 a. Property Expressly or Impliedly Given by a 
 
 Husband to his V\/ife. — A direct gift of property from a 
 husband to his wife is subject to assault upon the same 
 ground as a gift by him to a stranger, and, hence, can- 
 not prevent property so given from being taken under 
 an execution against him, where the gift is m.nde ac- 
 
 876 Unger v. Price, 9 Md. 552; Logan v. McGill, 8 Md. 461; Barnard 
 V. Mix, 35 Conn. 223; Knapp v. Smith, 27 N. Y. 277; Buckley v. 
 Wells, 33 N. Y. 518; Gage v. Dauchy, 34 N. Y. 293; Johnson v. Chap- 
 man, 35 Conn. 550; .Tones v. JEini\ Ins. Co., 14 Conn. .501; Selden v. 
 Merchants" Bank, 69 Pa. St. 424: Van Etten v. Currier, 3 Keyes, 
 329; Kluender v. Lynch, 4 Keyes, 301; TTale v. Coe, 49 Mo. 181; 
 Saunders v. Garrett, 33 Ala. 454. 
 
 378 Harvey v. Wickham, 23 Mo. 112; W'hite v. Dorris, .35 Mo. 181; 
 Pawley v. Vogel, 42 Mo. 291; Hale v. Coe. 49 Mo. 181; Furrow v. 
 Chapin, 13 Kan. 107. 
 
 3'7 AVilliams v. Brown, 28 Iowa, 247: Presuall v. Herbert, 34 lowa^ 
 539; Stewart v. Bishop, 33 Iowa, 584.
 
 561 PERSONAL PROPERTY SUBJECT TO EXECUTION. § l-27a 
 
 tually or presumptively for the purpose of defrauding 
 his creditors."^** The classes of gifts which we wish 
 here to more particularly consider are those arisiug 
 from a contract between a husband and a wife, actual 
 or implied, by which she is permitted to engage in busi- 
 ness, or pei'form services for others under an express 
 or inferred agreement that she shall have, as her sepa- 
 rate estate, the proceeds of such business or compensa- 
 tion for such services. The validity of contracts to 
 the effect that a wife shall be compensated for her ser- 
 vices, or shall have the proceeds of a business con- 
 ducted by hvv, may be questioned in a controversy with 
 creditors, who either claim that their interests require 
 the contract to be observed, or, on the other hand, that 
 it amounts to a gift from the husband to the wife which 
 cannot be sustained as against them. In the first of 
 these classes of cases are involved business transac- 
 tions of constantly increasing magnitude, for which 
 the law has not, up to the present time, made any very 
 careful provision. We refer to those instances in which 
 mercantile and other transactions are conducted by and 
 in the name of a married woman, with the assent, or, 
 at least, without the dissent of her husband, and she 
 acquires property and incurs obligations in the trans- 
 action of such business, and, when her creditors seek 
 to enforce such obligations, they are met by the claim 
 that the property acquired does not belong tp her, but 
 to her husband, and, therefore, is not subject to any 
 writ against her. We have heretofore considered this 
 question, and reached the conclusion that under these 
 circumstances the husband must either be regarded as 
 
 P7S Jones V. Rome G. Co.. 00 Ga. 103; Laird v. Davidson, 124 Ind. 
 412; Talcott v. Field, 34 Neb. Gil, 33 Am. St. Rep. 662. 
 Vou I.— 36
 
 § 127a PERSONAL PROPERTY SUBJECT TO EXECUTION. 502 
 
 having made a gift of property and business to his 
 wife, or, at least, as estopped from denying that the 
 property and business were hers, where such denial 
 would prejudice the rights of creditors whose claims 
 have accrued to them in dealing with her respecting 
 such property and business, upon the assumption that 
 they were hers, and that she was entitled to incur ob- 
 ligations, payment of which might be enforced there- 
 from.^'^ 
 
 Generally, however, the attack upon a transaction by 
 which a wife has been paid something for her personal 
 services, or has invested their proceeds in property, or 
 property has been conveyed to her by her husband in 
 consideration of moneys due for such services, comes 
 from his creditors, who contend that the transaction is 
 ascheme devised for the purpose of defrauding them, or, 
 if not so devised, that it is at least equivalent to a gift 
 which the husband, under the circumstances, could not 
 make without hindering, delaying, or defrauding them. 
 If the services performed by the wife, and for which her 
 husband agreed to pay her, were in the nature of ordi- 
 nary marital or household duties, of course, his agree- 
 ment to pay for them was not binding upon him, be- 
 cause without consideration, and his compliance with it 
 must be deemed a mere gift to his wife, not sustain- 
 able as against his creditors, except under the same 
 conditions as would permit the sustaining of any vol- 
 untary transfer by him, and, therefore, his creditors 
 have the right to any property received from him in 
 carrying out his agreement that they have in any other 
 
 8T9 Partridge v. Stockor, 36 A^t. 108, 84 Am. Dec. GG."i. and note, 
 673-G7G; Diefendorf v. Hopkins, 95 Cal. 343; Cougbliu v. Ryan, 43 
 Mo. 99, 97 Am. Dec. 375.
 
 5C3 PERSONAL PROPERTY SUBJECT TO EXKC'UiloN. § 127a 
 
 property given by him to her.'''*" Nor is it material 
 that the services were not rendered directly to the hus- 
 band if they were in performance of duties resting upon 
 him, as, for instance, in the caring for, and nursing of 
 his mother in illness or old age, he expressly agree* 
 ing to pay his wife therefor, and carrying out his agree- 
 ment by conveying property to her in good faith in sat- 
 isfaction of his contract with her."**^ 
 
 If creditors can lie said to have any right to the ser- 
 Tices of their debtors wife, such right is surely re- 
 stricted to services of the ordinary character, and if she 
 is permitted to reap the fruits of extraordinary ser- 
 vices, though such fruits are paid or turned over to her 
 by her husband, we do not see how the transaction de- 
 frauds or hinders his creditors, or can result in .preju- 
 dice to them. We are aware that there are several 
 cases which maintain the right of a husband to all ser- 
 vices actually rendered ~by his wife, and in which relief 
 has, therefore, been granted to his creditors to the ex- 
 tent of setting aside any conveyance made to her, 
 whether by her husband or others, though the consid- 
 eration therefor was money earned by her after her 
 marriage, in the doing of work which she was under 
 no obligation to perform, as where she assisted her 
 husband in his business,^**' or washed, or cared for per- 
 sons not members of his family, or took in boarders, 
 under an agreement with her husband, whether ex- 
 press or implied, that she might have for her own use, 
 
 3S0 Stirtzer v. Kee, 146 III. 577; Gable v. Columbus etc. Co.. 140 
 Ind. 563; Michigan etc. Co. v. Chapin. 106 Mich. 384. .58 Am. St. 
 Rep. 490; Apple v. Ganony, 47 IMiss. 189; Reynolds v. Robinson. 64 
 N. Y. 589; Bucher v. Ream. 08 Pa. St. 421; Campbell v. Bowles. 30 
 Gratt. 6o2; Elliott v. Bentley, 17 V^'is. 591. 
 
 381 Coleman v. Burr. 25 Ilun. 239. 93 X. Y. 17, 45 Am. Rop. 160. 
 
 «82 Brittain v. Crowther, 54 Fed. Rep. 295.
 
 S 127a PERSONAL PROPERTY SUBJECT TO EXECUTION. 564 
 
 or as her separate estate, the proceeds of these la- 
 bors.^**^ This proposition appears to us unreasonable. 
 If, as the result of representations made by a husband 
 to his wife, she is induced to embark in a business on 
 her own account, or led to discharge duties obYiously 
 not devolving upon her by virtue of her marital rela- 
 tions, under his promise that she shall have the pro- 
 ceeds of such business, or the compensation resulting 
 from the discharge of such duties for her own use, 
 nothing is thereby taken away from his creditors, and 
 they ought not to be entitled to compel him to act in 
 bad faith to the extent of repudiating his contract with 
 his wife, nor to reclaim from her property which ha& 
 been conveyed to her in satisfaction of such agree- 
 ment."**^ Of course, we exclude from this statement 
 those cases in which the attendant circumstances are 
 such as to convince the court or jury that the alleged 
 agreement between husband and wife was a mere 
 device resorted to for the purpose of defrauding hi» 
 creditors. 
 
 As a wife may manage her separate estate, and, in 
 so doing, may have agents and employes, and make 
 valid agreements to compensate them for theirservices, 
 there seems to be no reason why she may not employ 
 her husband as her agent, and enter into a valid agree- 
 ment with him fixing the amount of his compensa- 
 
 883Belford v. Crane. 16 N. .T. Eq. 205, 84 Am. Dec. 15.5: Cramer 
 V. Redford, 17 N. J. Eq. 307. 90 Am. Dec. 594; Blaeckinska v. 
 Howard Mission. 130 N. Y. 490; Bailey v. Gardner, 31 W. Va. 94, 1.? 
 Am. St. Rep. 847. 
 
 384 Gilbert v. Glenny, 75 la. 513; Carse v. Reticker, 95 la. 25, 5S 
 Am. St. Rep. 421; McNaught v. Anderson. 78 Ga. 499. 6 Am. St. 
 Rep. 278; Riley v. Mitchell, 36 Minn. 3; Peterson v. Mnlford, 36 
 N. J. L. 481; Nuding v. Urich, 169 Pa. St. 289; Yake v. Pugh, 13 
 Wash. 78, 52 Am. St. Rep. 17.
 
 665 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 127a 
 
 tion;^'^^ and, if she becomes the debtor of her husband, 
 hits creditors may, by process of <^arui.shmeut, enforce 
 for their own benelit the liability existing against her 
 and in favor of him."**" Whether, in the absence of any 
 express contract upon the subject, there is an implied 
 obligation on the part of a wife to compensate her hus- 
 band for services in the management of her separate 
 estate is a question which has been very little consid- 
 <^red by the courts, the tendency of the few existing 
 decisions upon the subject being to the effect that, un- 
 der ordinary circumstances, there is no such implied 
 •contract upon her part.^^'' 
 
 It has sometimes happened that a husband has de- 
 voted the major part of his time and all of his skill and 
 ability either in the management of the separate prop- 
 erty of his wife, or in the conduct of business carried on 
 in her name, and that her property has been augmented 
 in value or her business caused to realize large profits, 
 and, the husband being indebted and having no other 
 property, his creditors have claimed that they should 
 in some manner be permitted to enforce their obliga- 
 tions against the fruits of the husband's labor and skill, 
 though existing in the form of the wife's separate estate 
 or business, and there are, doubtless, cases indicating 
 that this claim of his creditors ought, under some cir- 
 cumstances and by some mode of i)r()redure. to be sus- 
 tained."**** On the other hand, it is insisted that cred- 
 
 «85 Keller v. Mayer. 55 Ga. 40(1-409. 
 
 888 Keller v. Mayer, 55 Ga. 40G. 
 
 897 Lewis V. .Tohus, 24 Cal. 98, So Am. Dec. 49: Perkins v. Per- 
 "klns, 7 Laus. 19. 
 
 3«'* Nance v. Nance, 84 Ala. 375, 5 Am. St. Rep. 378; Woods v. 
 Montevallo. 84 Ala. 560. 5 Am. St. Rep. 393: Brooks-Waterfield Co. 
 V. Frishie. 99 Ky. 125. 59 Am. St. Rep. 4.52: Trefethen v. Lyman. 90 
 Me. 370, GO Am. St. Rep. 271; Wortman v. Price, 47 111. 22; Patten
 
 § 127a PERSONAL PROPERTY SUBJECT TO EXECUTION. 56& 
 
 itors do not have any right under the existing laws 
 to compel their debtor either to labor for them, or, 
 though he labors for himself or others, to accumulate 
 a fund out of which they may be able to compel the 
 payment of their demand. Where the separate prop- 
 erty of a wife consists of a farm upon which she and her 
 husband reside, or by the tilling of which, though they 
 do not reside upon it, he produces the means of their 
 subsistence, we think the majority of the courts would 
 not hold that there was any implied contract that she 
 should reimburse him for his labors, nor that the result 
 of such labors would make the products of the place 
 his property, rather than hers, and therefore subject 
 to execution against him, where such products would 
 not be subject to execution against him had she em- 
 ployed other agents and servants in their production.^** 
 In a comparatively recent case upon the subject it ap- 
 peared that a husband failed in business, being at the 
 time indebted to his wife; that she, with other creditors, 
 obtained a judgment against him, under which his 
 stock of goods was sold under execution to her and oth- 
 ers of his creditors, who thereafter continued the busi- 
 ness, employing him as a clerk; that ultimately she 
 purchased the interest of the other creditors, and there- 
 after prosecuted the business in her own name, employ- 
 ing her husband to act as manager at a salary of five 
 dollars per week, they and their family being supported 
 
 V. Patten. 7.5 111. 446; O'Leary v. Walter, 10 Abb. Pr. N. S. 439; GIM- 
 den V. Taylor, 16 Oh. St. .501, 91 Am. Dec. 98. 
 
 389 Nance v. Nance, 84 Ala. 375, 5 Am. St. Rep. 378: Eilers v. 
 Conraflt, 39 Minn. 242, 12 Am. St. Rop. ('41: Taylor v. W^ands. 5.^ 
 N. J. Eq. 491, 62 Am. St. Rep. 818; Orr v. Bornstein. 124 Pa. St. 311; 
 Cooper T. Ham, 49 Ind. .393: Buckley v. Wells. 33 N. Y. .517: Abbey 
 V. Deyo. 44 N. Y. .343; Trapnell v. Conklyn. 37 W. Va. 242. 38 Am^ 
 St. Rep. 30; Dayton v. Walsh, 47 W^is. 113, 32 Am. St. Rep. 757.
 
 567 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 127a 
 
 out of the proceeds of the business. After this course 
 of dealing had continued for several years, she sold the 
 business and invested the proceeds in real property 
 which the husband's creditors sought to reach and ap- 
 propriate to the payment of their debts. The court 
 held that the evidence in the case did not sustain the 
 claim that any scheme had been entered into or pur- 
 sued with the view of defrauding the husband's credit- 
 ors; that as against such creditors the wife might law- 
 fully employ her husband, with or without hire, to man- 
 age and assist in carrying on the business; that in avail- 
 ing herself of the services of her husband, she did not 
 subject her separate estate to the claims of creditors; 
 and, finally, "that the time, talents, and industry of a 
 debtor are at his own disposal, and that his creditors 
 have no claim thereto; that he may bestow them gratu- 
 itously upon Avhoni he will, upon his wife as well as 
 upon another; that he cannot be comi)elled to labor for 
 the benefit or advantage of his creditors." ■"*** In a still 
 more recent decision, the court conceded the right of a 
 wife to the assistance and labor of her husband which 
 might be given to her separate property, and, "although 
 it may be changed from a rudeto a manufactured state, 
 it remains her propert}' still, and cannot be levied on 
 by execution or attached for his debts." The court, 
 however, reached the conclusion that there were cir- 
 cumstances under which a court of equity would under- 
 take to grnnt relief as against a wife to the extent of 
 wresting from her part of the profits of a business real- 
 ized through the skill and labor of her husband. After 
 examining many authorities, the court said: "From 
 these and other numerous authorities examined, there 
 
 390 Afnyers v. Kalsor. 85 Wis. 382, 39 Am. St. Kep. 849; Baxter 
 V. Maswell, 115 Pa. St. 4G9.
 
 § 127a PERSONAL PROPERTY SUBJECT TO EXECUTION. 568 
 
 can be no other conclusion reached than that, if a man 
 skilled in an}' employment does business in his wife's 
 name with the capital furnished by her, and large • 
 profits over and above the necessary expenses of the 
 business, including the support of himself, wife, and 
 family accrue therefrom, owing to his skill and experi- 
 ence, and he turns such profits over to his wife, or in- 
 vests them in property for her, a court of equity will 
 treat such arrangement as fraudulent, and will make 
 an equitable distribution of such profits between the 
 wife and existing creditors of the husband. Not that 
 the wife is guilty of any actual fraud, but that her 
 hand, be it ever so chaste, is polluted by receiving as a 
 gift from her husband the funds which he is endeavor- 
 ing to fraudulently conceal, under the cloak of her 
 separate property, from the searching eyes of his cred- 
 itors." ^^^ It is well to remember, in connection with 
 this language, that it Avas applied to a case in which a 
 man, owning property, conveyed it, in contemplation 
 of his approaching marriage, to his intended wife for 
 the purpose of defrauding his creditors, of which pur- 
 pose, however, she had no notice; and that in every sub- 
 sequent act and scheme the husband was, in the opin- 
 ion of the court, actuated by a desire to avoid his cred- 
 itors, and to so manage his business that the very con- 
 siderable profits accruing therefrom and from his labors 
 should not result in any fund or property subject to the 
 satisfaction of their demands; and that he appeared to 
 take special delight in showing how skillfully he had 
 managed to increase the value of his wife's estate "mag- 
 nificently, and yet secure it beyond the reach of the 
 clutches of his own creditors." This, doubtless, in- 
 cited the court to extreme language and measures for 
 
 ' 891 Boggess V. Richards, 39 W. Va. 5G7, 45 Am. St. Rep. 938.
 
 «69 PERSONAL i'llOPERTY SUliJECT TO EXECUTION. § 128 
 
 the purpose of thwarting an unconscionable scheme 
 and t'ormulatJug rules to discourage future attempts of 
 a like nefarious character. The laii,i;ii;i^(' of wi-ath, 
 €ven when justifiable, is rarely applicable to ordinary 
 affairs, and this is especially true when it takes the 
 form of general rules. This applies to tlu' utterance*? 
 of judges and others discharging functions of a public 
 nature, as well as to the less cam ions (lenun<'iations of 
 persons speaking for private interests only. 
 
 § 128. Property of Wife under Execution against 
 
 iHerself. — .Married women are not usnally regarded as 
 exempt from the jurisdiction of the courts. Judgments 
 against them, until vacated in some proper proceed- 
 ings, are generally binding to all intents and purposes, 
 and are capable of being enforced in the sanje manner 
 as judgments similar in other rospects. Hence, when a 
 personal judgment for money is enteivd against a mar- 
 ried woman, either alone or in conjunction with other 
 defendants, it is commonly conceded that execution 
 may be issued, under which the sheriff may seize and 
 sell her separate property.'"'"*- There are, it is true, 
 states in which a judgment against a married woman, 
 when not founded upon a contract, is deemed void, and, 
 where such is the case, an execution issued thereon 
 must be equally void.^"^ Even in those states in which 
 this rule is sustained, it is restricted to judgments upon 
 obligations ex contractu, and not extended to those 
 based upon torts and fixing a liability therefor, or im- 
 
 •"'02 Smith V. Taylor, 11 Ga. 20: Schafroth v. Ambs. 4G Mo. 114; 
 Tloundtree v. Thomas, 32 Tex. 286: ^^us£:rave v. ^tussrave, 54 ill. 
 ISO; Van Metre v. Wolf. 27 Iowa, 341: Merrill v. St. Louis. S,? Mo, 
 ^44. 
 
 3«'^ White V. Manufacturing Co., 2'J W. Va. 385, G Am. St. Rep. 
 <J50.
 
 § 12Sa PERSONAL PROPERTY SUBJECT TO EXECUTION. 570 
 
 posing fines for offenses committed in violation of the 
 penal codes. To judgments and convictions of this char- 
 acter women are subject equally with men, and execu- 
 tious issued therefor may be levied upon their separate 
 property.^'^'* In at least one case it has been held that, 
 when a woman marries, her debt becomes the debt of 
 her husband; that he alone is responsible for its pay- 
 ment; and that in no case, during the coverture, can 
 execution issue against her separate estate, whether for 
 a debt contracted before or after her marriage.^**^ 
 
 § 128 a. Property of Insane Persons. — Where a judg- 
 ment against a lunatic is deemed valid, it must follow 
 that the plaintiff is entitled to some efficient means of 
 enforcing it. The legislature may interpose, especially 
 where the lunacy has been judicially declared and a 
 guardian for- the insane defendant appointed, and re- 
 quire the creditor to proceed, as in the case of a deceased 
 person, by presenting the judgment to the court having 
 jurisdiction of the estate, and may forbid the enforce- 
 ment of a judgment by execution,"*^^' in which event it 
 is evident that the property of the lunatic can be ap- 
 plied to the satisfaction of the judgment only by pro- 
 curing some order of the court having jurisdiction of 
 the estate, directing the sale of such property /^"^ If, 
 on the other hand, the legislature has not taken any 
 action upon the subject, or where, though it has author- 
 ized a proceeding for the appointment of a guardian for 
 
 894 Smith V. Taylor, 11 Ga. 20; Merrill v. City of St. Lonis. 83 
 Mo. 244, 53 Am. Rep. 076; Gill v. State, 39 W. Va. 479, 45 Am. St. 
 Kcp. 928. 
 
 395 HaysTOod v. Harris. 10 Ala. 201. 
 
 896 McNees v. Thompson, 5 Bush, G8G; Wrijrht's Appeal. 8 Pa. St. 
 57. 
 
 897 Geraian N. B. v. Engeln's Committee, 14 Bush, 708.
 
 671 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 121) 
 
 the lunatic, and empowered the court to take posses- 
 sion of his estate, no proceedings have been taken, the 
 property of the lunatic must be subject to execution 
 to the same extent as that of a person of sound mind."^'**** 
 
 PROPERTY IN THE CUSTODY OF THE LAW. 
 
 § 129. Property in the Hands of Receivers and As- 
 signees. — It is very clear that all property in custody 
 of the law is not subject to any seizure or interference 
 by officers acting under writs of execution; ^^ but some 
 difficulty may be experienced in determining when 
 property is so within the custody of the law as to be 
 shielded by this rule. When a court of equity has acted 
 by taking property into its possession by the appoint- 
 ment of a receiver, such propertj', wliether real or per- 
 sonal, is clearly in custodia legis. The whole purpose 
 of the suit might be defeated if an officer could wrest 
 the property from the agent of the court, and sell it by 
 virtue of a writ against one of the contending parties. 
 Such property is not subject to execution.'***** This 
 exemption from execution has been held to continue, 
 though the order appointing the receiver has been sus- 
 
 308 Tomlinson v. Devore, 1 Gill. 345; Pollock v. Horn. 13 Wash. 
 626, 52 Am. St. Rep. 66; Re Clarke, C. A. (1S9S) 1 Ch. 336. 
 
 309 Hackley's Ex'r v. Swigert, 5 B. :Mon. SO, 41 Am. Doe. 2."6; 
 Dunsmore v. Furstenfeklt. 88 Cal. 522, 22 Am. St. Rep. 331; Wal- 
 lace V. ^Vallace, 48 N. Y. Supp. 593. 
 
 400 Goiivornour v. Warner, 2 Sand. 624; Wiswall v. Sampson. It 
 How. 52; Martin v. Davis, 21 Iowa, 535; Field v. Jones, 11 Ga. 413; 
 Nelson v. Conner, 6 Rob. (La.) 339; County of Yuba v. Adam.s & Co.. 
 7 Cal. 35; Glenn v. Gill, 2 Md. 1; Taylor y. Gillian. 23 Tex. 508; Rob- 
 inson V, A. & G. R. R. Co., 66 Pa. St. 160; Bcutlcy v. Slirieve. 4 Md. 
 Ch. 412; Farmers' Bank v. Boaston. 7 Gill & .T. 421, 28 Am. Dec. 
 226; Lan.irdon v. Ix)ckett. 6 Ala. 727, 41 Am. Dec. 78: Jackson v. 
 Lahoe, 114 111. 287; State v. Ellis, 45 La. Ann. 1418; Gardner v. 
 Caldwell. 16 Mont. 221; Reesuer v. Gulf etc. Ry. Co., 89 Tex. 656. 
 59 Am. St. Ren. 84.
 
 § 129 PERSONAL PROPERTY SUBJECT TO EXECUTION. 572 
 
 pended by the giving of a sufficient supersedeas bond, 
 and the consequent surrender of the property by the re- 
 ceiver.'***^ Of course, the court appointing a receiver 
 does not thereby acquire jurisdiction to take possession 
 of property which does not belong to any party to the 
 action,"*"- and the property of a third person may be 
 levied upon and sold, though it is to some extent con- 
 nected with, or related to, property lawfully in the pos- 
 session of the receiver. Thus, if a judgment exists 
 against a person whose property is in the hands of a 
 receiver, this does not constitute any impediment to 
 the levy upon and sale of such judgment, for, though it 
 be levied upon and sold, the possession of the receiver 
 is in no manner interfered with, and the purchaser, 
 when he seeks to assert it, cannot proceed to interfere 
 with such possession to any greater extent than the 
 original judgment creditor could have done had it re- 
 mained his property."***^ 
 
 After the court appointing a receiver has made an 
 order for the distribution of moneys in his hands, so 
 that from such order it definitely appears that persons 
 designated or described therein are entitled to such 
 moneys, and he has no further duty but to pay them 
 over in obedience to such order, he may be garnished 
 therefor.^*** So, if the receivers, in their official capac- 
 ity, employ agents or servants, and become indebted to 
 them, such receivers may be garnished on account of 
 such indebtedness. The garnishment will not sustain 
 an independent suit or proceeding in another court 
 against the receiver, but the garnishing creditors may 
 
 401 Stanton v. Heard, 100 Ala. 515. 
 
 402 Farmers' N. B. v, Scott (Tex. Civ. App.), 45 S. W. 26. 
 
 403 W^heatou v. Spooner, 52 Minn. 417. 
 
 404 Duusmoor v. Furstenfeldt, 88 Cal. -"22, 22 Am. St. Rep. 331.
 
 673 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 123 
 
 apply to the court whose receiver is thus garnished for 
 an order directing him to pay to them the moneys due 
 to the judgment de>btor, and which have been subjected 
 to garnishment.'*"'* No officer has any ri^ht to levy on 
 property in the custody of a receiver without permis- 
 sion of the court. Proceeding without such permission, 
 he may be brought before the court, punished for con- 
 tempt, and obliged to relinquish his levy.**^^ Property 
 has been held to be in custody of law where a receiver 
 had been appointed but had declined to act."*"^ While 
 a levy upon property in the possession of a receiver 
 may be punished as a contempt of court, and the cred- 
 itor levying may, by proceedings against him, be com- 
 pelled to relinquish his levy and surrender the posses- 
 sion of the property to the receiver from whom it was 
 taken, the proceeding to punish for contempt is not the 
 only remedy of the receiver. The levy upon and sale 
 of the property under such circumstances, being en- 
 tirely unauthorized by law. are absolutely void, and pos- 
 session of the property may be recovered by the receiver 
 in any appropriate action commenced either against the 
 officer making the levy or a purchaser under execution 
 sale or any other person to whom possession of such 
 property has come."***® Though the propei-ty for which 
 a receiver has been appointed is partly situated in an- 
 other state, it has been held that the title thereto and 
 
 405 Trwin v. McKochnie. 58 Minn. 145. 40 Am. St. Rep. 49o. 
 
 406 Russell V. East Ansrlican R. W. Co.. 3 Macn. & G. 104: Coe 
 V. C. P. & I. R. R. Co., 10 Ohio St. 403. 75 Am. Dec. 518: Iligrli on 
 Receivers, sec. 163; Sercomb v. Catlin. 128 111. 550. 15 Am. St. Rep. 
 147: Holhrook v. Ford, 153 111. 633. 46 Am. St. Rep. 917; Wallln.i? 
 V. Miller. 108 N. Y. 173. 2 Am. St. Rep. 400. 
 
 407 Skinner v. Maxwell, 08 N. C. 400. 
 
 40MVallin,s v. Miller. 108 N. Y. 173. 2 Am. St. Rep. 400; Texaa 
 etc. R. Co. V. Lewis, 81 Tex. 1. 26 Am. St. Rep. 776.
 
 § 1*29 TERSONAL PROPERTY ISUBJEUT TO EXECUTION. 574 
 
 the constructive possession thereof vest in him by vir- 
 tue of his appointment, so that a citizen of the state 
 wherein he is appointed cannot proceed against such 
 property in the other state v^ithout the sanction of the 
 courts of his domicile, and, if he insists upon doing so, 
 that he may be punished for his contempt.**^^ The ef- 
 fect of the appointment of a receiver, in a suit brought 
 by one partner against another for the dissolution of 
 the partnership and the settlement of its affairs, has 
 been considered in a series of cases in California aris- 
 ing out of the somewhat notorious failure pf Adams 
 & Company. The conclusion there reached was, that 
 until the dissolution of the partnership is decreed and 
 the pro rata distribution of its assets ordered among 
 the creditors, they are, notwithstanding the appoint- 
 ment of a receiver, at liberty to pursue their remedies 
 at law, and entitled to retain any liens resulting from 
 their diligence in such pursuit.^^® The reasons given 
 in support of these decisions were, that the suit was 
 one to which the creditors were not parties, and over 
 which they had no control; that they might settle or ad- 
 just the case between themselves, or the plaintiff might 
 dismiss it at any time; that until the dissolution was 
 decreed, it could not be known that the firm business 
 would be terminated and its affairs settled by the court; 
 and that it would be unwise to deny the creditors the 
 right to pursue the partnership because one of its mem- 
 bers had obtained the appointment of a receiver in a 
 suit which he might dismiss or delay at pleasure. This 
 reasoning is not without force; but we think it more 
 appropriate when presented to the court in opposition 
 
 *09 Sercomb v. Catlin, 128 111. 556, 15 Am. St. Rep. 147. 
 4">Arlams v. Hackett, 7 Cal. 187; .Adams v. Woods, 8 Cal. 1.52, 
 68 Am. Dec. 313; Adams v. W'oods, 9 Cal. 2-1.
 
 did PERSONAL PROrERTY SUBJECT TO EXIX'UTION'. § li'J 
 
 to the appointment of the receiver, or in support (jf a 
 motion for leave to proceed, notwithstanding such ap- 
 pointment;^** for generally courts of equity will not 
 permit a party who has defied their authority, by seiz- 
 ing under execution property in their possession, to ex- 
 cuse himself on the ground that the order appointing 
 the receiver was irregularly or improvidently made.'**- 
 An assignee, appointed in proceedings at law for the 
 benefit of insolvent debtors, seems to stand in the same 
 position as a receiver. He is an officer of the court, and 
 moneys and effects in his hands are in the custody of 
 the law. They cannot be reached by garnishment,"**'* 
 unless a dividend has been declared, and the assignee 
 has been directed to pay it over to the respective cred- 
 itors.'*" One to whom a debtor has made a voluntary 
 assignment of his assets for the benefit of creditors is 
 liable to be garnished. If he has in his hands assets 
 more than sufficient to discharge the claims of the 
 creditors assenting to the assignment, a dissenting 
 creditor may reach the surplus by garnishment.^*® 
 Where, however, an assignment for the benefit of cred- 
 itors is for some reason invalid, and hence vests title 
 in the assignee, the property cannot, though he has 
 taken possession of it, be deemed in the custody of the 
 
 <ii See Jaclvson v. Lahee, 114 111. 287; Waring v. Robinson, Hoff. 
 Ch. 524. 
 
 ♦1! Russell V. East Anglican R. Co., 3 Macn. & G. 104. 
 
 <i3 Colby V. Coates, 6 Cush. 558; Straw v. .Teuks, G Dak. 414; 
 Weimer v. Scales, 74 Miss. 1; Geilinger v. riiillippi. 133 U. S. 246. 
 
 *i* Thayer v. Tyler, 5 Allen, 94; Jones v. Gorham, 2 Mass. 375: 
 Decoster v. Livermore, 4 Mass. 101. 
 
 <i5 Leeds v. Sayward, 6 N. H. 83; Viall v. Bliss, 9 Pick. 13; Ward 
 V. Lamson, 6 Pick. 358; Brewer v. Pitkin, 11 Pick. 208; Copeland v. 
 Weld, 8 Me. 411; Jewett r. Barnard, 6 Me. 381; Todd v. Bucknam, 
 11 Me. 41.
 
 § 130 PERSONAL PROPERTY SUBJECT TO EXECUTION. 57t> 
 
 law. It hence remains subject to execution in favor of 
 the creditors of the assignor."**^ 
 
 § 130. Moneys Collected by Sheriffs, Constables^ 
 Clerks, and Justices. — The authorities are very nearly 
 unanimous in sustaining the proposition that when a 
 sheriff or constable has collected money on execution, 
 it can neither be levied upon nor garnished by the same 
 or another officer, under a writ against the judgment 
 creditor.'*^'' Various reasons have been given in sup- 
 
 416 Bradley v. Bailey. 95 Iowa, 745. 
 
 41T Marvin v. Hawley. 9 Mt). 378,, 43 Am. Dec. 547; Keatinj: v. 
 Spinlt. 8 Ohio St. 124, 62 Am. Dec. 214; Jones v. Jones, 1 Bland. 
 445, IS Am. Dec. 327; Turner v. Fendall, 1 Cranch. 117; Wood v. 
 Wood, 14 Ad. & E., N. S., 397: 3 Gale & D. 5.32; 7 Jnr. 325; 12 L. J. 
 Q. B. 141; Ex parte Fearle and Lewis, 13 Mo. 467, 53 Am. Dec. 155;. 
 Winton v. State, 4 Ind. 321; Thompson v. Brown, 17 Pick. 462; Du- 
 bois V. Dubois. 6 Cow. 494; State v. Lea, 8 Ired. 94; Harding v. 
 Stevenson, 6 Har. & J. 264; Staples v. Staples, 4 Greenl. 532;. 
 Knight v. Criddle, 9 East, 48; Muscott v. Woodworth, 14 How. Pr. 
 477; Baker v. Kenworthy, 41 X. Y. 215; Ileddick v. Smith, 3 Scam. 
 451; Padfield v. Brine, 3 Brod. & B. 294; Collingridge v. Paxton, 11 
 Com. B. 683: State v. Taylor, 56 Mo. 492; Dawson v. Holcomb, 1 
 Ham. 275, 13 Am. Dec. 618; Willis v. Pitkin, 1 Root, 47; Reno v. 
 Wilson, Hemp. 91; Prentiss v. Bliss, 4 Vt. 513, 24 Am. Dec. 631;. 
 First V. Miller, 4 Bibb, 311; Gray v. Maxwell, 50 Ga. 108; Camp- 
 bell V. Hasbrook, 24 111. 243; Stevenson v. Douglas. Bert. 281. In 
 the foregoing cases, attempts were made to levy upon money in the 
 officer's hands. The following cases show that the same principles 
 apply to attempted garnishments: Clymer v. Willis, 3 Cal. 363, 58^ 
 Am. Dec. 414; Burrell v. Letson. 1 Strob. 239: Hill v. Lacrosse & 
 M. R. R. Co., 14 Wis. 293. 80 Am. Dec. 783; Lightner v. Steinagel, 3a 
 111. 516, 85 Am. Dec. 292; Wilder v. Bailey, 3 Mass. 289; Pollard 
 V. Ross, 5 Mass. 19; Robinson v. Howard, 7 Cush. 257; Morris v. 
 Penniman, 14 Gray, 220. 74 Am. Dec. 675; Farmers' Bank v. Beas- 
 ton, 7 Gill & J. 421, 28 Am. Dec. 226; Jones v. Jones, 1 Bland, 443, 
 18 Am. Dec. 337; Overton v. Hill. 1 Murph. 47; Blair v. Cantey, 2 
 Spears, 34, 42 Am. Dec. 360; Zurcher v. Magee, 2 Ala. 253; Drane 
 V. :McGavock, 7 Humph. 132: Marvin v. Hawley, 9 Mo. 382, 43 Am. 
 Dec. 547. P.ut Conant v. Bickoll, 1 D. Chip. 50; Hurlburt v. Hicks, 
 17 Vt. 193. 44 Am. Dec. .329: Lovejoy v. Lee, 35 Vt. 4.30; Crane v. 
 Freese, 1 Har. (N. J.) 305; Woodbridge v. Morse, 5 N. H. 519; Dolby-
 
 577 TERSOXAL rROrKRTY SUBJECT TO EXECUTION. § I.^O 
 
 port of this rule. lu some of the cases, the judges were 
 satisfied to rest their judgment on the general state- 
 ment that such moneys were in custody of law. In 
 other cases, it was urged that money collected on exe- 
 cution does not thereby become the* property of the 
 plaintiff in the writ; that, in theory of law, it is to be 
 brought into court, and by the order of tlie court paid 
 over to the person entitled thereto; that the officer, 
 upon the receipt of such money, does not thereby be- 
 come the debtor of the plaintiff; and, finally, that it is 
 not until the money is paid over to the plaintiff that it 
 becomes his property, and subject to execution against 
 him. It has also been suggested, as a matter of pub- 
 lic policy, that the officers of the law, in the discharge 
 of their duties, should be protected from the hindrance 
 and embarrassment consequent from holding money 
 and other property in their official custody, liable to 
 levy and seizure in other suits. 
 
 Writs of execution may be issued to different officers 
 against the same defendant, and may constitute liens 
 upon his personal property, and it may so happen that, 
 through the diligence of the officer charged with its exe- 
 cution, the junior writ may be first levied. The ques- 
 tion then arising is. Is the officer having the senior writ 
 entitled, because of its priority, to take the property 
 from the possession of the officer who has levied under 
 the junior writ? As the levy under that writ was au- 
 thorized thereby, we know not how to resist the conclu- 
 sion that by such levy the property was placed in the 
 custody of the law. If the officer claiming to have the 
 
 V. Mullins. 3 Humph. 437, 39 Am. Dec. ISO; and Hill v. Boach, 1 
 Beasl. 31, differiiiir from the majority of the authorities, hold that 
 money in the sheriff's liands may be garnished under ^Yrit against 
 the judsnient oroditor. 
 Vol. I.— 37
 
 § 130 PERSONAL PROPERTY SUBJECT TO EXECUTION. 578 
 
 senior writ may forcibly take possession of the prop- 
 ei-ty, it ni-ust follow that a conflict of force may arise 
 between two persons, both acting as officers of the law 
 and in apparent obedience to the commands of valid 
 writs in their hands. If, on the other hand, the officer 
 having the senior writ may not levy it, notwithstanding 
 the prior levy under the junior writ, it ma}' happen that 
 the officer under the latter writ may sell the property 
 and deliver possession thereof to a purchaser who may 
 succeed in removing the property, and may thus pre- 
 vent the satisfaction of the writ having the senior lien. 
 The cases considering this question are infrequent and 
 inadequate. On the one side they affirm that the prop- 
 erty levied upon under the junior writ is in custody of 
 the law, and not subject to any further levy,*^** and, on 
 the other, that the officer having the senior writ is justi- 
 fied in levying it, regardless of the levy previously made 
 under the junior writ.'*^® In some of the states the 
 seller of personal property is entitled, upon recovering 
 judgment for the i^urchase price, to levy upon such 
 property, notwithstanding any claim of exemption, ex- 
 cept only that the levy may not be made as against an 
 innocent purchaser for value without notice of the ven- 
 dor's rights. It has been held, therefore, that when 
 two writs issue against the same defendant, one upon 
 a judgment for purchase money, and the other not, that 
 the plaintiff in the first judgment has a prior right, and 
 hence may levy upon the property, although it has al- 
 ready been levied upon under another writ.^^'^ Money 
 in the hands of a sheriff or constable, belonging to the 
 
 418 Derrick v. Cole, 60 Ark. 394. 
 
 *i9 Rogers V. Dickey, 1 Gilm. 644, 41 Am. Dec. 204; People v. 
 Smith. 20 111. A pp. 577. 
 
 4 20 Bolckow M. Co. V. Turner, 23 Mo. App. 103.
 
 579 PER.SONAL rKOPEKTV SUBJECT TO EXECUTION'. § 130 
 
 defendant, bcinj,^ the surplus or residue reiuaiuini^ iu 
 possession of the oOicer after lie lias satisfied the writ, 
 has sometimes been regarded as in custody of the law, 
 and therefore as not subject to execution. ^'^ ]>ut in a 
 considerable preponderance of the cases a different 
 view has been taken. The execution having been fully 
 satisfied, the ofTieer ceases to hold the money by virtue 
 of the writ. As to the ascertained surplus, he is said 
 to be liable to the defendant as for money had and 
 received. Such surplus can, therefore, while in the offi- 
 cer's hands, be reached by the defendant's creditors."*'^ 
 In Connecticut, where the writ, instead of commanding 
 the officer to have the money in court, directed him to 
 cause the mo,ney to be levied, "and paid and satisfied 
 to plaintiff," the court held that the officer was thereby 
 made the mere agent of the plaintiff, and, as such, that 
 he could be garnished for moneys collected for plaintiff 
 under the wi-it.^^^ Money paid into court in satisfac- 
 tion of a judgment, whether paid to the clerk of the 
 
 421 Fieldhouse v. Croft. 4 East. 510; Fretz v. Heller. 2 Watts & S. 
 397; Harrison v. Tayuter, G Mees. & W. 387; Willows v. Ball. 2 
 Bos. & P. N. 11. 37G; Crossen v. McAllister, 2 Pa. L. J. 199; Beutley 
 V. Clesrg. 2 Pa. L. .T. 62; Oriental Bank v. Grant, 1 Wyatt & W. 16. 
 
 422 Pierce v. Carlton, 12 111. 3o8. 54 Am. Dec. 4a5; Ligbtner v. 
 Steinagel, 33 111. 516, 85 Am. Dec. 292; Orr v. McBride, 2 Car. Law 
 Rep. 257; Davidson v. Clayland. 1 Har. & J. 546; Jacqnett's Adm'r 
 V. Palmer. 2 Harr. (Del.) 144: King: v. INIoore, 6 Ala. 160, 41 Am. 
 Dec. 44; Hearn v. Crutcher, 4 Yerg. 401; Dickson v. Palmer. 2 Rich. 
 Eq. 407; Tucker v. Atkinson. 1 Humph. 300, 34 Am. Dec. 650; Wat- 
 son V. Todd. 5 Mass. 271; Hill v. Beach. 1 Beasl. 31: Lovejoy v. Lee. 
 35 Vt. 430; Wheeler v. Smith, 11 Barb. 345; Hamilton v. W^ard. 4 
 Tex. 356; Walton v. Compton, 28 Tex. 569; Lynch v. Hanahan. 9 
 Rich. 186; Payne v. Billingham, 10 Iowa, 360; Oppenbeimer v. Marr, 
 31 Neb. 811. 28 Am. St. Rop. 5.'59; Roddy v. Erwin. 31 S. C. 36. 
 
 423 New Haven Saw-mill Co. v. Fowler, 28 Conn. 103.
 
 i ISO PERSONAL mOPERTY SUBJECT TO EXECUTION. 58a 
 
 couit,^-^ or to a judge, or justice of the peace,^^^ is in 
 custodia legis, aud exempt alike from levy or garnish- 
 ment. :Monej paid to the clerk of a court in a partition 
 suit was held to be liable to attachment, after the court 
 had ordered it to be paid over to the parties entitled 
 thereto.*-** Money paid to a sheriff, to effect the re- 
 demption of property sold under execution, is protected 
 from seizure, being in custody of the law until it is 
 accepted by the holder of the certificate of purchase.*-'^ 
 Money cannot be placed in the custody of the law 
 by the voluntary and unauthorized act of a party not 
 supported by any order of court or by any writ against 
 him. Hence, where a creditor commenced a suit on his 
 own account to compel the defendants to interplead, 
 respecting their right to moneys due from such plain- 
 tiff, and he, without any order of court, deposited with 
 the clerk of the court the amount which he admitted 
 to be due, it was held that, as the law made no provision 
 for an order permitting the plaintiff, in an action of 
 interpleader, to pay into court the money or property 
 claimed, the act of the plaintiff did not place the money 
 within the custody of the law, and hence that it was 
 subject to attachment or execution.^® One of the rea- 
 
 424 Ross V. Clark, 1 Dall. 354; Sibert v. Humphries, 4 Ind. 481; 
 Daley v. Cunnin.aliara, 3 La. Ann. 5.5: Farmers' Bank v. Beaston, 7 
 Gill & .T. 421, 28 Am. Dec. 226: Overton v. Hill, 1 Mnrph. 47; Alston 
 V. Clay. 2 Hayw. (N. C.) 171: Hunt v. Stevens, 3 Ired. 365: Drane v. 
 McGavock, 7 Humph. 132; Mnrrell v. Johnson, 3 Hill CS. C). 12r 
 Bowden v. Schatzell, Bail. E,-,. 360, 23 Am. Dec. 170; Re Forsyth. 
 78 Fed. Rep. 296; .Tones v. Merchants N. B., 76 Fed. Rep. 683. 
 
 425Corbyn v. Bollman. 4 W^atts & S.,342; Hooks v. York, 4 Tnd. 
 036. Tt Is otherwise in Alabama. Clark v. Boggs, 6 Ala. 809, 41 
 Am. Dec. 85. 
 
 42C Gaither v. Ballew. 4 .Tones. 488. 
 
 427 Davis V. Seymour. 16 Minn. 210: Lislitner v. Steinagel, 33 111. 
 513, 85 Am, Dec. 292. 
 
 428 Kimball v. Richardson-Tvimball Co., Ill Cal. 380.
 
 S81 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 130a 
 
 sons for denying the right to levy upon property in cus- 
 tody of the law is that otherwise a conflict must arise 
 between different officers seeking, in the performance of 
 their duties, to seize the same property. This reason 
 does not exist when two writs are in tlic hands of the 
 same officer. It has, therefore, sometimes been held 
 that a sheriff, having moneys in his hands due a judg- 
 ment creditor, might retain such moneys under a writ 
 'Coming to his hands against such creditor.^-^ 
 
 § 130 a. Property Taken from a Prisoner upon his 
 Arrest, by a sheriff, policeman, or other officer charged 
 with that duty, is not, while in the hands of such offi- 
 •cer, subject to levy, nor can it be reached by garnish- 
 ment or trustee process.'*^^ This exemption is not 
 strictly on the ground that the property is in custody 
 of the law, for the charge under which the arrest was 
 made may not relate to the property taken from the 
 ])risoner, and under no circumstances could it afi'ect the 
 title thereto. But "we should fear that any other con- 
 struction would lead to a gross abuse of criminal pro- 
 cess. Such process might be used to search the person, 
 or otherwise, under cover of lawful authority, to get 
 possession of the property of a debtor, in order to place 
 it in the hands of the officer, and thus make it attach- 
 able by trustee process." *'** "When an officer of the 
 law, acting under police rules or without them, takes 
 
 429 Ex parte Fearle and Lewis. 1.3 Mo. 4fi7. .".•? Am. Dec. 155; 
 Dolby V. Mullins. 3 Humph. 4.37. 39 Am. Dec. ISO; yiann v. Kelsey. 
 71 Tex. 600, 10 Am. St! Rep. 800. 
 
 «o Robinson v. Howard. 7 Ciish. 257; Morris v. Penniman. 14 
 ■Gray, 220. 74 Am. Dec. G75; Commercial Exchange Bank v. Mc- 
 Leod. Go la. 005. 54 Am. Rep. .30; Dahms v. Sears, 13 Or. 47; Rich- 
 ardson V. Anderson, 18 S. W. 195. 
 
 "1 7 Cush. 259.
 
 § 130a PERSONAL TROPERTY SUBJECT TO EXECUTION. 582 
 
 from his prisoner personal property, either for its safe- 
 keeping or to remove from his control that which he 
 might use in effecting his escape, a sound public pol- 
 icy, we think, requires that, for the time, it should be 
 safe from seizure by civil process. We speak now of 
 such property as is in no respect connected with the 
 criminal charge. It would be a dangerous temptation 
 to eager, and, sometimes, unscrupulous, creditors to 
 resort to the machinery of the criminal courts asjainst 
 their reluctant debtors, if it were once understood that 
 whatever of value was taken from the person of the 
 par-ty arrested, by the officer having him in charge,^ 
 could be at once impounded by the levy of an execution 
 or attachment. Such a practice, we are sure, would 
 likely be productive of results oppressive to the indi- 
 vidual, and shocking to the moral sense of the com- 
 munity." "*^^ The decisions upon this subject are not^ 
 however, entirely harmonious. The minority concedes 
 that, if the arrest is made in bad faith and for the pur- 
 pose thereby, and by a search of the prisoner, to obtain 
 possession of property that it may thereafter be gar- 
 nished or levied upon, then that this mere trick shall 
 not succeed, but they insist that, when the arrest is 
 made in good faith, and not for the purpose of subject- 
 ing property to execution or attachment, then that 
 property taken from the prisoner by the arresting offi- 
 cer is not so in the custody of the law that it may 
 not be seized under a writ of attachment or execu- 
 tion.^^-* 
 
 432 Hall V. natch, 99 Tenn. 39. 03 Am. St. Rep. 822. 
 
 433 Ex parte Hnrn, 02 Ala. 1<)2. 25 Am. St. Rep. 23, and notej 
 Closson V. Morrison, 47 N. H. 482, 93 Am. Dec. 459.
 
 5S3 PERSONAL PROPERTY SUBJECT TO EXECUTION. § m 
 
 § 131. Moneys and other Chattels in the Possession 
 of aclmiiiistrators,^=** exocutois/'-'-'' or -uaidiuii.s,'-''' iu 
 their olilicial capacity, are almost universally conceded 
 to be iu custody of the law, and, therefore, are neither 
 subject to levy under execution, nor to auy process of 
 garnishment. ''No person deriving his authority from 
 the law, and obliged to execute it according to the rules 
 of law, can be holden by process of this kind. '-•*•''' AN'iJla 
 have expressly provided that the legacies iu the bauds 
 of the executor should not be subject to execution or 
 attachment against the legatee, and, where such is the 
 "case, the exemption thus created by the will is often 
 respected and enforced independent of the question we 
 are here cousidering."*^** In most instances where de- 
 cisions have been made holding that moueys in the 
 hands of administrators, executors, or guardians could 
 not be reached under process against the creditor, lega- 
 tee, or ward who might become entitled to such moneys 
 on a final settlement of accounts, the courts have pro- 
 fessed to exempt such money, both because it was in 
 custodia legis, and because it could not properly be said 
 
 434 Curlinp v. ITy^e. 10 Mo. 374; Colby v. Coates. G Cnsh. 558; 
 Hancock v. Titus. 39 Miss. 224; Selfridjre's Appeal, 9 Watts & S. G5; 
 Thayer v. Tyler. .5 Alleu, U4; Waite v. Osboru, 11 Me. ISo; Suggs v. 
 Sapp. 20 C.a. 100; Marvel v. Houston, 2 Harr. (Del.) 349; Thorn v. 
 Woo(U-ufF. 5 Pike, 55; Welch' v. Gurley, 2 Hayw. (N. C.) 334; Hartle 
 V. Long, 5 Pa. St. 491; Stout v. La Folette, 64 Ind. 3a5. 
 
 435 Barnes v. Treat. 7 Mass.' 271; Picquet v. Swan. 4 Mason. 443; 
 Young V. Young. 2 Hill (S. C.) 425; Beckwlth v. Baxter. 3 N. II. G7; 
 Stevenson v. Duulap, 33 S. C. 350; Laut v. Mauley. 71 Fed. Rep, 
 7. 
 
 436 Cassett V. (Jrout. 4 Met. 480; Hanson v. Butler, 48 Me. 81; 
 GodboUl V. Bass, 12 Rich. 202; Davis v. Drew, G N. H. 399, 25 Am. 
 Dec. 4G7. 
 
 437 Brooks V. Cook. 8 Mass. 240. 
 
 438 Estate of Goe, 14G Pa. St. 431. 28 Am. St. Rep. 805: Estate of 
 Beck. 1.33 Pa. St. 51. 19 Am. St. R.'p. 023; (iarlaud y. Garland, 87 
 Va. 758, 24 Am. St. Rep. GS2; post, § lS9iu
 
 § 131 PERSONAL PROPERTY SUBJECT TO EXECUTION. 584 
 
 to belong to the defendant in execution until an order 
 of the court had been entered finally establishing his 
 right thereto, and directing that it should be paid over 
 to him in pursuance of such order. We give the fol- 
 lowing extracts from the opinions of the supreme courts 
 of Connecticut and Pennsylvania, showing the reasons 
 influencing those courts when attempts were made to 
 garnish legacies in the hands of executors before a final 
 settlement of the estate: "An executor cannot be con- 
 sidered as the debtor of a legatee. The claim is against 
 the testator or his estate; and the executor is merely 
 the representative of the deceased. There cannot be a 
 debt due from the executor within the meaning of the 
 statute. Xor can a person, like an executor, deriving 
 his authority from the law, and bound to perform it 
 according to the rules prescribed by law, be considered 
 as a trustee, agent, attorney, or factor within the stat- 
 ute; and this for the best of reasons. In the common 
 case of agents, trustees, and factoid, the creditor can 
 easily place himself in the shoes of the absconding 
 debtor, and prosecute his claim without inconvenience 
 to the garnishee. But such would not be the case with 
 an executor. It would not only embarrass and delay 
 the settlement of estates, but would often draw them 
 from courts of probate, where they ought to be settled, 
 before the courts of common law, which have no power 
 to settle his accounts. Such an interference might pro- 
 duce much inconvenience, and prevent the executor 
 from executing his office as the law directs." *^'-* "An 
 executor or administrator is, to a certain extent, an 
 officer of the law, clothed with a trust to be performed 
 under prescribed regulations. It would tend to dis- 
 
 «» Wlnchell v. Allen, 1 Conn. 385.
 
 •585 PERSONAL PROPERTY SUBJECT TO EXECUTION". § 131 
 
 tract and embarrass these officers if— iu addition to the 
 ordinary dnties which the law imposes, of themselves 
 often multiplied, arduous, and responsible — they were 
 ■drawn into conflicts created by interposition of cred- 
 itors of legatees, and compelled to withhold payment 
 of legacies without suit; to sus])end indefinitely the set- 
 tlement of estates; to attend, perhaps, to numerous 
 rival attachments; to answer interrogatories on oath, 
 and to be put to trouble and expense for the benefit 
 of third persons in no way connected with the estate 
 nor within the duties of their trust." "*"*** 
 
 When the share of a creditor, heir, legatee, ward, or 
 other person entitled to moneys in the hands of an 
 administrator, executor, or guardian has been settled 
 by the court and ordered to be paid, it is no longer re- 
 garded as in custody of the law. The right to it has 
 become fixed, absolute, and capable of enforcement by 
 action at law. It may, therefore, be garnished. ^^^ In 
 some of the states the right to garnish moneys in the 
 hands of executors and administrators has been con- 
 ferred by statute.^^ It has also, in a few instances, 
 and contrary to a long line of authorities, been affirmed 
 to exist in the absence of special statutory provisions. 
 Thus, in Alabama and Indiana, an unascertained dis- 
 tributive share in an estate can be bound by garnish- 
 ment while in the hands of the executor.*^^ In New 
 
 440 Shewell v. Keen, 2 Whart. 3.39, 30 Am. Dec. 20(1. 
 
 441 Richards v. Grifjss. Itj Mo. 410, 57 Am. Dec. 240; Adams v. 
 Barrett. 2 N. II. 374; Estate of Nerac. 3.") Cal. 302. 9."> Am. Dec. Ill; 
 Fltchett V. Dolbee, 3 Harr. (Del.) 267; Parks v. Cusbman. 9 Vt. 320; 
 McCreary v. Topper. 10 Pa. St. 419; Bank of Chester v. Ralstou. 7 
 Pa. St. 4S2. 
 
 442Holman v. Fisher. 49 Miss. 472. 
 
 443 Terry v. Lindsay. 3 Stew. & P. 317: Stnitton v. Ham, S Iiul. 
 84, »>.^ Am. Dec. 7i')4; Tillinshast v. .Tnlmson. ."> Ala. r)14; Moore v. 
 fitaintou, 22 Ala. 834; Jackson v. Shipman, 28 Ala. 488.
 
 §131 PERSONAL PROPERTY SUBJECT TO EXECUTION. 58& 
 
 Hampshire, an administrator of a solvent estate can be 
 held as the trustee of a person having a claim against 
 such estate, though such claim has never been pre- 
 sented to such administrator for allowance.*** In 
 Massachusetts, an executor or administrator may now 
 be summoned and charged as the trustee of an heir, 
 legatee, or creditor of the deceased, before distribution 
 of the estate, and before it can be known what there 
 will be to distribute.**^ In Georgia, an administrator 
 may be summoned as a garnishee when more than a 
 year has elapsed since his appointment.**" In Pennsyl- 
 vania, a legacy, and also a distributive share in an es- 
 tate, may be reached by garnishment before the settle- 
 ment of the estate.**' 
 
 AVhat we have said in this section has been in refer- 
 ence to attempts to reach the interests of heirs, credi- 
 tors, or legatees in property in the hands of executor;s^ 
 or administrators, under writs against such heirs, credi- 
 tors, or legatees. But there may be judgments against 
 executors or administrators in their official capacity, or 
 it may happen that a judgment entered in the lifetime 
 of the defendant remains unsatisfied at his death. In 
 either case, satisfaction may be sought out of the assets, 
 of the deceased. The administration of these assets is 
 now chiefly confided to the surrogate and probate 
 courts; and judgments, except where they are liens on 
 specific property of the deceased, are generally satisfied 
 
 444 Qnicrg V. Kittredge. 18 N. H. 137. 
 
 445 Wheeler v. Bowen, 20 Pick. 5G.3; Ilolbrook y. Waters, 10 Pic-lw 
 354; Boston Bank v. Minot, 3 Met. 507; Cady v. Comey, 10 Met. 
 459; Hoar v. Marshall, 2 Gray, 251. 
 
 446 Sclinan v. Millikin, 28 Ga. 36G. 
 
 447 Lorenz v. King, 38 Pa. St. 93; Sinniekson v. Painter. 32 Pa. St. 
 384; Gofhenaur v. Hostettcr, 18 Pa. St. 414; Baldy v. Brady, 15- 
 Pa. St. 103.
 
 5S7 rEKSONAL PROPERTY SUBJECT TO EXECUTION. § 131 
 
 in the due course of administration, and not by levy 
 and sale under execution. Neither the common law 
 nor any of the statutes regulating the settlement of t he- 
 estates of deceased persons will permit an execution 
 against an administrator or executor, personally, to be 
 levied on property held byhim in his ollicial capacity.'"*** 
 On the other hand, while an executor or administrator 
 may, by misconduct in wasting or appropriating the 
 assets of the estate, become personally responsibh^ to 
 the creditors, an execution against him in his official 
 capacity does not, in the absence of such misconduct, 
 justify any interference with his private property.'"'* 
 Where the statute has not restricted the right to issue 
 an execution and to satisfy it out of the assets of an 
 estate, it may, as a general rule, be levied upon the 
 same property as if the judgment debtor were still 
 surviving.'*'^** Hence, it may be satisfied out of prop- 
 erty conveyed to hinder, delay, or defraud the judg- 
 ment creditor;'*'*^ or out of lands devised, and by the 
 devisees conveyed to third persons;'**'^ or out of lands 
 partitioned among the heirs.'*^^ The assets of the 
 deceased may be taken, whether inventoried ^^^ by the 
 
 448 Farr v. Newman, 4 Term Kep. G21; McLeod v. Drnmmond, 17 
 Ves. 168; Quick v. Staines. 1 Bos. & P. 295; Satterwhite v. Carson. 
 
 3 Ired. 549; Lessing v. Yertrees, 32 Mo. 431, oveiTuling Lecompte v. 
 Searjreant. 7 Mo. 351, and Thomas v. Relfe. 9 Mo. 377. 
 
 4*9 In Avorott v. Thompson, 15 Ala. G78, it is held tliat an exern- 
 tion against A as administrator of R, but commandins: tlio orticer 
 to levy on the goods of A, authorizes a levy on the goods of the 
 latter. 
 
 460 Clark v. May. 11 Mass. 233; Beall v. Osbourn. 30 Md. S. 
 
 451 Drinkwater v. Drinkvrater, 4 Mass. 353; Clark v. Ilardiman, 
 2 tieigh, 377; Chamberlayne v. Temple, 2 Rand. .".95. 14 Am. Dec. 
 786. 
 
 452 Gore V. Brazier, 3 ^rass. 523. 3 Am. Deo. 182; Bigelow v. Jones, 
 
 4 Mass. 512; Wyman v. Brigdeu, 4 Mass. 150. 
 
 453 Nowell V. Bragdon, 14 Me. 320. 
 
 454 Weeks v. Gibbs, 9 Mass. 74.
 
 § 131 PERSONAL PROPERTY SUBJECT TO EXECUTION. 588 
 
 administrator, or not.'*^^ In Virginia, a legacy deliv- 
 ered to a legatee, with the assent of the executor or ad- 
 ministrator, is thereby placed beyond the reach of an 
 execution against the assets of the estate."*^^ This rule, 
 though once maintained in Mississippi, "^^^ was soon 
 afterward abandoned.*^^ 
 
 The question of the liability to execution of personal 
 property in the hands of the guardian of a minor or 
 other incompetent person requires further considera- 
 tion. That moneys claimed to be due from a guardian 
 to his ward cannot be garnished is generally conceded, 
 because the court appointing the guardian has juris- 
 diction to settle his accounts, and, until they are settled, 
 either in that or some other court of competent juris- 
 diction, it cannot be known whether a liability exists 
 in favor of the ward or not. The title to the ward's 
 property, whether real or personal, does not vest in the 
 guardian, and, hence, actions at law, whether in favor 
 of or against a minor or other incompetent person, 
 should be prosecuted in his name, process being served 
 on the guardian when the incompetent is the defend- 
 ant, and the guardian being required to manage the 
 action by prosecuting or defeuiiing it for the benefit of 
 his ward. If a judgment is recovered against an in- 
 competent person, execution may, in the absence of 
 statutes declaring the contrary, be issued against him 
 and levied upon his property. Such property does not 
 appear to be within the custody of the law so as to 
 
 455 Prescott V. Tarbell, 1 Mass. 204. 
 
 456 Burnely v. Lambert, 1 Wash. (Va.) 308; Randolph v. Randolph. 
 6 Rand. 194; Dunn v. Amey, 1 Leigh. 472; Sampson v. Bryce, 5 
 Munf. 175. 
 
 457 Turner v. Chambers, 10 Smedes & M. 308, 48 Am. Doc. 7.")1. 
 
 458 Smith V. State, 13 Smedes & M. 140; A'auhouten v. Kelly, 6 
 Smedes & M. 440.
 
 6S9 rEllSONAL rKOl'KllTY .SUBJECT TO EXKCL'TIOX. § \:'.2 
 
 inhibit or avoid such levy,'*'^" If, however, the proj)- 
 erty of a person under guardianship is in possession of 
 the court, and wliether such possession has actually 
 been assumed or not, if tlie court has authority to take 
 his property and apply it to his support or that of his 
 family, notwithstanding the claims of his creditors, 
 then they cannot, by taking out and levying an execu- 
 tion, deprive the court of this power or remove the 
 property from the possession of its officers.'*"" 
 
 § 132. Moneys and Property in the Hands of 
 Federal, State, or County Officers are also exempt 
 from execution or garnishment against a defendant to 
 whom they may be due. In the case of Buchanan v. 
 Alexander, 4 How. 20, attachments issued against cer- 
 tain seamen, and were laid on money's due them as 
 wages, and in the hands of the purser of the frigate 
 Constitution. He, by order of the Secretary of the 
 Navy, disregarded the attachments, and paid over the 
 money to the seamen. Judgment having been entered 
 ag-ainst the purser, an appeal was taken to the supreme 
 court of the United States, where a reversal was ob- 
 tained, and the following opinion given: "The impor- 
 tant question is, whether money in the hands of the 
 purser, though due to the seamen for wages, was at- 
 tachable. A purser, it would seem, cannot, in this 
 respect, be distinguished from any other disbursing 
 agent of the government. If the creditors of these 
 seamen may, by process of attachment, divert the pub- 
 lic money from its legitimate and appropriate object, 
 the same thing may be done as regards the pay of our 
 
 *59 Sanford v. Pliillips. 08 ^Fe. i?A: Crymes v. Day. 1 Bailey L. 
 320; Adriance v. Brooke. 1.3 Tex. 270. 
 
 *60 In re Winkler, L. K. (1S9G) 2 Ch. 519; lu re I'iuk, L. R. 23 Ch. 
 D. 581.
 
 § 132 PERSONAL PROPERTY SUBJECT TO EXECUTION. 590 
 
 officers and men of the army and of the navy; and also 
 in every other case where the public funds may be 
 placed in the hands of an agent for disbursement. To 
 state such a principle is to refute it. No government 
 can sanction it. At all times it would be found embar- 
 rassing, and under some circumstances it might be 
 fatal to the public service. The funds of the govern- 
 ment are specifically appropriated to certain national 
 objects, and if such appropriations may be diverted and 
 defeated, by state process or otherwise, the functions of 
 the government may be suspended. So long as money 
 remains in the hands of a disbursing officer, it is as 
 much money of the United States as if it had not been 
 <lrawn from the treasury. Until paid over by the 
 agent of the government to the person entitled to it, the 
 fund cannot, in any legal sense, be considered a part of 
 his elf ects. The" purser is not the debtor of the seamen." 
 (loods being imported into the United States are, 
 '-from the moment of their arrival in port, in legal con- 
 templation, in custody of the United States." "Now, an 
 attachment of such goods by a state officer presupposes 
 a right to take the possession and custody of those 
 goods, and to make such possession and custody exclu- 
 sive. If the officer attaches on mesne process, he has 
 a right to hold the possession to answer the exigency 
 of that process. If he attaches upon an execution, he 
 is bound to sell or may sell the goods within a limited 
 period, and thus virtually displace the custody of the 
 United States. The act of Congress recognizes no 
 such authority, and admits of no such exercise of right." 
 "In short, the United States, having a lien on the 
 goods for the payment of the duties accruing thereon, 
 and being entitled to a virtual custody of them from the 
 time of their arrival in port until the duties are paid or
 
 691 PERSONAL PROrERTY SUBJECT TO EXECUTION. § 132 
 
 secured, any attachment by a state officer is an inter- 
 ference with such lien and right of custody; and, being 
 repugnant to the laws of the United States, is void." '^"^ 
 The same reasoning applies to property in bonded ware- 
 houses of the United States, upon wliich moneys are 
 <lue for internal revenue taxes. It is in custody of the 
 law, and can neither be reached by direct seizure nor 
 by garnishment,'***^ Proceedings by way of garnish- 
 ment against either a state or the United States are 
 manifestly inadmissible, on other grounds. Thus, the 
 only mode in which a garnishment can be made effec- 
 tive is by the entry of judgment for the debt garnished. 
 Rut the United States and each state thereof is a sover- 
 eign, and not subject to be called before its courts, ex- 
 cept in cases where it has expressly assented to their 
 assuming jurisdiction. Xor will either of these sover- 
 eigns permit their immunity from the process of their 
 courts to be evaded "by ignoring the state in their suits, 
 and proceeding directly against the officer having the 
 custody of the moneys sought to be reached." Hence, 
 for want of power to enter judgment, a garnishment 
 against a state or against the United States is neces- 
 sarily ineffectual.'***"^ Another very serious objection to 
 the garnishment of a state or county, or of the United 
 States, or of any officer of either, is its probable inter- 
 ference with the administration of the government. It 
 is not consistent with the state's "interests, nor the 
 proper administration of public affairs, that her officers 
 shall be arrested iui their public duties and required to 
 
 461 Harris v. Donni, 3 Pet. 30-i. 
 
 462 May V. Hoaglan, 9 Bush. 171; Fischer v. Dandistal. 9 Fed. 
 Rep. 145; McCullou?:h v. Larjre, 20 Fed. Rep. 309. 
 
 4C3 Tracy v. Hornbuckle, 8 Bnsh, 336; Tunstall v. Worthlngton. 
 Hemp. GG2; Rollo v. Andes Ins. Co., 23 Gratt. 511, 14 Am. Rep. 147.
 
 § 132 PERSONAL PROPERTY SUBJECT TO EXECUTION. 5U2 
 
 answer before the courts for funds or securities com- 
 mitted to their custody for a specific purpose, under 
 authority of public law. The treasurer of state is one 
 of the most important officers of the commonwealth,, 
 with grave, arduous, and difficult duties to perform. It 
 is impossible to foresee the mischiefs and embarrass- 
 ments that will ensue, if, in addition to these duties, he 
 is to be involved in the conflict of creditors, to answer 
 innumerable rival attachments, employ counsel, answer 
 interrogatories, and otherwise consume time and at- 
 tention which should be devoted exclusively to public 
 interests." ^*^* When an attempt is made to garnish 
 the salary of any public officer, the further objection ex- 
 ists that his continuance in the service of the public 
 may be dependent on his being able to regularly draw 
 such salary and devote it to the maintenance of himself 
 and family, and that the interest of the public is para- 
 mount in importance to that of the creditors. For these 
 various reasons it has uniformly been held that money 
 in the hands of state ^^^ or county officials, *^^ whether 
 
 464 Rollo T. Andes Ins. Co., 23 Gratt. 509, 14 Am. Rep. 147. 
 
 405 Divine v. Harvie, 7 T. B. Mon. 439. 18 Am. Dec. 194; Bank of 
 Tennessee v. Dibroll, 3 Sneed, 379; Wild v.' Ferguson, 23 La. Ann. 
 752; Stillman v. Isham, 11 Conn. 124; McMeekin v. State, 4 Eng. 
 553; Train v. Herrick, 4 Gray. .534; Swepson v. Turner. 76 N. C. 
 115; Wilson v. Bank of La., 55 Ga. 98; Lodor v. Baker, 39 N. J. L. 
 49; Dewey v. Garvey, 1.30 Mass. 80. 
 
 466 Nathans v. Satterlee, 18 Abb. N. C. 310; State v. Tyler, 14 
 Wash. 495, 53 Am. St. Rep. 878; Riggin v. Hilliard, 56 Ark. 476, .3.5 
 Am. St. Rep. 113; Sterner v. Bd. of County Commrs., 5 Colo. App. 
 579; Dotterer v. Bowe. 84 Ga. 709; Stevens v. St. Mary's T. School, 
 144 111. 336, 36 Am. St. Rep. 438; Merrell v. Campbell, 49 Wis. 5.35, 
 35 Am. Rep. 785; State v. Eberly. 12 Neb. 616; Edmoudson v. De 
 Kalb Co., 51 Ala. 103; Gilman v. Contra Costa County, 8 Cal. 52. 
 68 Am. Dec. 290; Garnishees v. Root. 8 Md. 95; Wallace v. Lawyei. 
 54 Ind. 501, 23 Am. Rep. 661; contra: Adams v. Tyler. 121 Mass. 
 380: Geer v. Chapel. 11 Gray. 18; Ward v. Hartford Co.. 12 Conn. 
 409; Chealy v. Brewer, 7 Mass. 259. In this last case the court said:;
 
 693 TEUSONAL PROPERTY SUBJECT TO EXECUTION. g 132 
 
 for the purpose of paying salary due an officer or em- 
 ploy^, or of satisfying any other claim, is not subject 
 to execution nor garnishment. The doctrine is also ap- 
 plicable to money in the hands of school directors, or of 
 their treasurer, and due to teachers for services per- 
 formed in the public schools.*^'^ 
 
 The decided weight of authority affirms that counties 
 are not subject to garnishment unless expressly made 
 so by statute, and, furthermore, that general words in 
 a statute, purporting to authorize the garnishment of 
 persons or corporations, will not be held to apply to 
 counties or other quasi-municipal corporations.'**'^ It 
 must be conceded that Waterbury v. Commissioners, 10 
 Mont. 512, 24 Am. St. Rep. 67, is in conflict with the 
 rule as thus stated. The statutes of Montana declare 
 that all persons having in their possession or under 
 their control any credits or other personal property be- 
 longing to the defendant or owing debts to him, shall 
 be liable to process of garnishment, and that the word 
 
 "A public officer, who has money in his hands to satisfy a demand, 
 but which is upon him merely as a public oflicer, cannot for that 
 cause be adjudged a trustee. A contrary decision would be mis- 
 chievous, as will appear from this sinjErle cause: that it would sus- 
 pend, during the pendency of an action, a possibility of settling 
 the accounts of the officer, and. it may be added, that it would 
 unreasonably compel him to attend courts in every county of the 
 commonwealth." 
 
 4ti7 Bulldey v. Eckert, 3 Pa. St. 3G8, 45 Am. Dec. 650; Millison v. 
 Fisk, 43 111. 112; Ross v. Allen, 10 N. H. 96; Bivens v. Harper, .50 
 ni. 21; Allen v. Russell. 78 Ky. 105; Kein v. School Dist, 42 Mo. 
 App. 460; Chamberlain v. Wattors, 10 Utah, 298; Skelly v., Westmin- 
 ster School Dist.. 103 Cal. G52; School Dist. v. Gage, 39 Mich. 481, 
 33 Am. Rep. 421; Dollman v. Moore, 70 Miss. 267; Spencer v. School 
 Dist.. 11 R. I. 537. 
 
 *68 Wallace v. Sawyer, 54 Ind. 506, 23 Am, Rep. 661; Switzer v. 
 Wellington, 40 Kan. 250, 10 Am. St. Rep. 196; Mayor v. Root, 8 
 Md. 95, 63 Am. Dec. 692; Kein v. School Dist., 42 Mo. App. 460; 
 Chamberlain v. Watters, 10 Utah, 298. 
 Vol. I.— 38
 
 « I8i2 TER^OXAL PROPERTY SUBJECT TO EXECUTION. 594 
 
 ''person"' may be applied to bodies politic dnd corpo- 
 rate, and that counties are bodies ^>olitic and corporate. 
 The supreme court of that state hence reached the con- 
 clusion that counties are subject to garnishment. The 
 court was also of the opinion that it was not true that 
 principles of public policy forbade the garnishment of 
 counties, saying: "Eeturning to the case at bar, we can- 
 not agree that there is any reason why the great public 
 duties of a county need be imperfectly x)erformed, or 
 that its business is in any danger of derangement, if it 
 be compelled, by process of a court, to pay the salary of 
 a servant to that servant's creditors. The county has 
 no suit to defend, no counsel to employ, no witnesses to 
 collect and pay. It has no burden cast upon it, and no 
 duty to perform, except to act as temporary stake- 
 holder, to await the determination of a court, in an 
 action in which the county has no interest. The argu- 
 ment of public policy as to inconvenience to the county 
 and its officers does not reach our mind with sufficient 
 force to imi^air another view of law and of right that is 
 recognized throughout the civilized world ; that is, .that 
 debtors should pay their debts. This, of course, with 
 the modification that the means of livelihood should be 
 left to the debtor, which view is embodied in the laws 
 of exemption from execution, which in this state are 
 very liberal. The debtor's earnings for thirty days 
 prior to the levy of a writ are exempt from seizure. 
 The servant of the county is thus secured in his sup- 
 por-t, if he earns it, and the county is not liable to lose 
 the services of competent officers. Indeed, it has never 
 been observed that a county has difficulty in obtain- 
 ing employees to do its work, and the county may 
 surely obtain as good service from those who pay their 
 debts as from those who avoid such payment, and are
 
 61)5 PERSONAL TROPERTY SUBJECT TO EXECUTION. § 133 
 
 protected in the avoidance by the unsatisfying doctrine 
 of public policy. We conclude tli<'i-(* is no substantial 
 argument from public policy which requires us to read 
 the law as to garnishment of counties differently^ from 
 what its letter seems to declar(\ Counties are not ex- 
 empted from garnishment by statute. On the contrary, 
 their liability to the process is within the letter of the 
 law. We find nothing in the spirit of the doctrine of 
 public policy which induces us to add to or take from 
 the letter." 
 
 § 133. Money Held by Officers of Municipal Cor- 
 porations has, in Connecticut, *^^ Iowa, *^** Ken- 
 tucky, '^^^ Rhode Island,^"- New ITampshire, ^''^ 
 Ohio, ^''* been held subject to garnishment under writs 
 against the persons to whom such money was due. In 
 the three last-named states, the statute authorized the 
 garnishment of any corporation possessed of any money 
 of the debtor. These terms were considered to be so 
 comprehensive as to embrace municipal as well as other 
 corporations. In the two other states named, no stress 
 was, in the decisions, laid upon any special or peculiar 
 statutory provisions. In Colorado, municipal corpora- 
 tions have, by statute, been subjected to garnish- 
 ment.*''** In New York and Texas they have been 
 
 469 p.rny V. Wallinsford, 20 Conn. 41G. 
 
 470 Wales V. City of Muscatine. 4 Iowa. 302. But the statute has 
 now taken away the risht to jrarnish a municipal corporation in 
 this state. Clapp v. Walker, 25 Iowa, 31.5. 
 
 4T1 Kodman v. ISIussolman, 12 Bush, 354, 23 Am. Rep. 724. 
 
 472 W^ilson V. Lewis. 10 R. I. 285. 
 
 473 Whidden v. Drake, 5 N. H. 13; Wendell v. Price. 13 X. H. 502: 
 but we know not how to reconcile these decisions with Brown v 
 Heath. 45 N. H. 108. 
 
 474 City of Newark v. Funk. 15 Ohio St. 402. under statute au 
 thorizinsr garnishment of bodies politic. 
 
 474a City of Denver v. Brown, 11 Colo. .337.
 
 § 133 PERSONAL PROPERTY SUBJECT TO EXECUTION. 59& 
 
 held subject to garnishment in the absence of any 
 statute exempting them therefrom, and the courts 
 of those states deny that any sufficient reason ex- 
 ists, founded upon public policy, for denying the 
 right to proceed by garnishuient against munici- 
 palities.^^® Upon principle, there is no reason why 
 the rule applicable to a state or county official, or 
 
 475 In Mayor v. Horton, 38 N. J. L. 88, 91, in deciding that a mu- 
 nicipal corporation was subject to garnishment, the court said: 
 "These public corporations have, with legislative sanction, a very 
 liberal power of contracting debts, and, in many instances, are large 
 borrowers of money. A public policy which would place these large 
 sums wholly beyond the reach of creditors is not so clear as ta 
 justify this court in denying to suitors the beneficial remedy by 
 attachment against this class of debtors." "No one," says Willie, 
 C. J., in Laredo v. Nalle, 65 Tex. 359, "should be allowed to place 
 his property beyond the reach of his creditors by keeping it in the 
 possession of a municipal corporation." "The argument, drawn from 
 the impolicy and inconvenience of calling off municipal officers from 
 their duties to answer writs of garnishment, can be used," said the 
 chief justice, "with equal force to show that no suit whatever should 
 be allowed against such corporations. The officers of a city are 
 drawn from their duties to malie answer as much in the one case 
 as in the other. Yet, we find them constantly called upon to an- 
 swer suits for debt or for damages caused by the alleged neglect 
 of the city's agent, or to writs of mandamus issued to compel them 
 to perform their duties. To answer to these proceedings and prop- 
 erly defend them, the officers are frequently forced to leave their 
 posts of duty, and to continue in attendance upon court for days, 
 or weeks, if necessary, no matter how inconvenient it may be to 
 the city government to dispense with their services. The policy 
 of keeping the operations of municipal government free from the 
 interference of lawsuits must yield to the more important policj' 
 of securing to the creditors and injured parties payment for their 
 debts and redress for their wi-ongs, to be enforced by the appro- 
 priate process of the law. It is not the ])olicy of the law that Ihe 
 citizen should be wronged, rather than that the city government 
 should suffer inconvenience. Little difference, if an/, exists between 
 the inconvenience of answering to an ordinary suit and that of an- 
 swering to a writ of garnishment. The latter is nothing more than 
 a suit by the plaintiff in the writ against the city, the matter in 
 dispute, if there be any dispute at all, being the alleged Indebted- 
 ness of the city to the debtor of the plaintiff. It is not required to 
 take i)art in the controversy between the plaintiff and the party
 
 697 i'EIUSOXAL PIIOPERTY SUBJECT TO EXECUTION. § 133 
 
 to a treasurer of a board of school directors, should not 
 also be applied to officers of towns and cities. They 
 are all mere custodians of public moneys, with their 
 duties and responsibilities created and prescribed by 
 the laws creating their respective offices, and prescrib- 
 ing the duties thereof. "As municipal corporations are 
 parts of the state government, exercising delegated 
 political i^owers for public purposes, the rule which 
 prevents an attachment from being levied upon a claim 
 of one state officer upon funds in the hands of another, 
 applicable to its payment, must apply with equal force 
 to a case like the present. If an argument against the 
 right to attach, based upon inconvenience, can have an 
 influence, in any case, it surely should do so where the 
 officers of a large city are, necessarily, very numer- 
 ous." ^''^ Where an attempt was made to attach money 
 due from a city to a police officer for his services, the 
 
 for whose debt it is garnished. It cannot, therefore, be said that, 
 in requiring a city to answer to a writ of garnishment, it is neces- 
 sarilj' drawn into a controversy with which it has no concern. 
 Neither is the public money thereby diverted from the channel in 
 which it should How. A payment to the plaintiff in garnishment 
 is, in effect, a payment to the original creditor of the city. Public 
 policy may demand that a fund set apart for erecting a public 
 building should not be taken for the debt of the person contracting 
 to do the work during the progress of its construction, for this 
 may prevent its completion. But. when the work is finished, and 
 the money earned, and standing to the credit of the contractor with 
 the city, it should be subject, like any other property, to the pay- 
 ment of his debts." Laredo v. Nalle. (m Tex. .359. 361. 
 
 4T6 Holt V. Experience, 26 Ga. 113; McLellan v. Young. 54 Ga. 
 399. 21 Am. Rep. 276; iloore v. Mayor. 8 Heisk. S-IO; Memphis v. 
 Laski, 9 Heisk. 511. 24 Am. Rep. 327: Buffham v. City of Racine, 
 26 Wis. 449: Mayor of Baltimore v. Root. 8 Md. 102. 63 Am. Dec. 
 692: Hawthorn v. City of St. Louis. 11 Mo. 59. 47 Am. Dec. 141; 
 Fortune v. City of St. Louis, 23 Mo. 2.'59: Merwin v. Chicago, 45 111. 
 1.33, 92 Am. Dec. 204; Triebel v. Colburn. 64- 111. 376; McDougal v. 
 Hennepin Co.. 4 Minn. 184; Bradley v. Cooper. 6 Vt. 121: Burnham 
 V. City of Fond du Lac. 15 Wis. 193. 82 Am. Dec. 668; City of Erio 
 T. Knapp. 29 Pi. St. 173. See Fellows v. Duncan. 13 Met. 332.
 
 § 133 lERSONAL PROPERTY SUBJECT TO EXECUTION. 598 
 
 supreme court of Alabama said: "But does not public 
 policy protect the wages of a police officer from attach- 
 ment? Money due from a government or state is thus 
 guarded for the benefit of the public. The law says 
 the state must be permitted to select its own officers, 
 from any condition or position in society, and cannot 
 be made subject to the power of individual creditors to 
 drive their selection from service when they choose; nor 
 can the creditor be permitted to paralyze the energy, or 
 in any way to cripple the efficiency, of a state's officer 
 by taking from him the means afforded by the state^ 
 which gives bread and clothing to himself and family. 
 The government of a city is a part of the state govern- 
 ment. It is the exercise of a portion of the state 
 sovereignty, and should, in like manner, be upheld by 
 the same public policy." ^'"^ Municipal corporations 
 are, therefore, held not to be subject to garnishment in 
 the states of Alabama, Georgia, Illinois, Iowa, Kansas, 
 Maine, Maryland, ]\rassachusetts, Minnesota, Missouri^ 
 Nebraska, Pennsylvania, Tennessee, Utah, Vermont, 
 Washington and Wisconsin.**''® 
 
 Whether a municipal corporation may waive its ex- 
 
 477 Mayor of Mobile v. Rowland, 26 Ala. 501; Clark v. Scbool 
 Commissioners, 36 Ala. 621. 
 
 478 Porter etc. Co. v. Perdue, 105 Ala. 293, .53 Am. St. Rep. 124; 
 Leake v. Lacey. 05 Ga. 747, 51 Am. St. Rep. 112; Triebcl v. Colburn. 
 C4 111. 376; Jenks v. Osceola Tp., 45 Iowa, 554; Switzer v. Wellington, 
 40 Kan. 2.50, 10 Am. St. Rep. 196; First N. B. v. Ottawa, 43 Kan. 
 295; Buffham v. City of Racine, 26 Me. 449; Mayor of Baltimor.' 
 V. Root, 8 Md. 102, 63 Am. Dec. 692; Hadley v. Peabody, 13 Gray. 
 200; Walker v. Cook, 129 Mass. 577; Sandwich M. Co. v. Kralce, 66 
 Minn. 110, Gl Am. St. Rep. .'',!)5; Pendleton v. Perkins. 49 Mo. .565; 
 People V. Omalia, 2 Neb. 166; Erie v. Knapp, 29 Pa. St. 173; Mem- 
 phis V. Laski, 9 Ileisk. 511, 24 Am. Rep. 327; Chamberlain v. Wal- 
 ters, 10 Utah, 298; Bradley v. Cooper, 6 Vt. 121; Marx v. Parker. 
 9 Wash. 473, 43 Am. St. Rep. 849; Merrell v. Campbell, 49 Wis. 
 535, 35 Am. St. Rep. 785.
 
 699 PKilSUNAL I'UOl'ERTV SUBJECT TO EXECUTION. § lU 
 
 emption from garnislimeiit is a qucsLion upou which 
 the courts of the dillereut states decidiuj.; it have not 
 agreed. In Colorado, before the statute had been en- 
 acted making municipal corporations subject to gar- 
 nishment, it was held that it might waive its exemp- 
 tion,'*'^** '^wliile ir) T^lah Mic opjxtsite view was taken.'*''* ^ 
 So, in Alabama, it has been said that, if muni- 
 cipal corpoi-ations "are not within the statute at all, 
 no court has, nor by consent can acquire, jurisdiction to 
 proceed against them in this way, and, if it is a mere 
 matter of exemption, the same public policy which 
 gives life to it is potent also to prevent the officers and 
 agents for the time being of such corporations from 
 waiving the exemption by appearing without objection 
 and admitting indebtedness for the corporation. The 
 fact that the money due from a corporation to the de- 
 fendant in execution and sought to be thus reached has 
 been segregated from the general fund of the corpora- 
 tion, and is held by its treasurer for the specific pur- 
 pose of paying a particular debt, does not alter the case. 
 It is still only a debt from the corporation to the de- 
 fendant, and the process of garnishment, whether nom- 
 inally issuing against the officer or against the corpora- 
 tion, is in reality a proceeding by garnishment against 
 the corporation itself, and not maintainable," "*'" 
 
 § 134. An Attorney at Law is, for some purposes, a 
 public officer. As such officer, he is so far under the 
 control of the court that it may, in some instances, 
 compel him to perform gratuitous services; and may, in 
 all cases, require him to discharge the duties of his 
 office faithfully, honestly, and without any breach of 
 
 •♦Tsa Board of Commissioners v. Bond, 3 Colo. 411. 
 
 "TsbVnn Cott. V. Pratt. 11 T'tali. 2<t!). 
 
 470 Porter etc. Co. v. Perdue. 107^ Ala. 203. '^3 Am. St. Pa'p. 124.
 
 § 135 PERSONAL PROPERTY SUBJECT TO EXECUTION. COO 
 
 professional decorum. But, when an attorney collects 
 moneys for bis client, even by means of a suit, such 
 money is never treated as being in custody of the law, 
 but rather as money collected by an agent for the 
 benefit of his princiiDal. It is, to the same extent, as 
 money in the hands of any other agent, liable to exe- 
 cution."***" 
 
 § 135. Property Levied upon or Otherwise Lawfully 
 Taken into the Possession of an Officer of the Court 
 is undoubtedly in the custody of the law, and, hence, 
 ordinarily not subject to further levy by any other 
 officer. By a levy upon the goods of the defendant by 
 virtue of an execution or attachment, the officer ac- 
 quires a special property therein, entitling him to their 
 possession and control. They are thereby placed in 
 the custody of the law. Another officer, acting under 
 another writ of attachment, has no right to interfere 
 with them. As he cannot reduce them into his pos- 
 session, he can, according to the preponderance of the 
 authorities, make no valid levy ; ^^^ but in one case it 
 was said that he could levy, though he could not re- 
 move.^**^ By this is undoubtedly meant that a levy 
 
 4S0 Riley V. Hirst, 2 Pa. St. 34G; Staples v. Staples. 4 Greeul. 532; 
 IStann v. Buford, 3 Ala. 812, 37 Am. Dec. 601; Tucker v. Butts, ti 
 Ga. 580; Coburn v. Ansart, 3 INIass. 319; Thayer y. Sherman. 12 
 Mass. 441; Woodbridge v. Morse, 5 N. H. 519; Carr v. Benedict. 48 
 Ga. 431; White v. Bird. 20 La. Ann. 188. 96 Am. Dee. 393. 
 
 481 Winegardner v. Ilafer, 15 Pa. St. 144; Buckey v. Suouffer. 10 
 Md. 149. 69 Am. Dec. 129; Van Loan v. Kline, 10 Johns. 129; Dubois 
 V, Harcout, 20 Wend. 41; Moore v. Withenburg, 13 La. Ann. 22; 
 Lewis V. Buck, 7 Minn. 104, 82 Am. Dec. 73; Hartwell v. Blssell, 
 17 .Johns. 128; Rogers v. Darnaby, 4 B. Mon. 241; Taylor v. Carryl. 
 20 How. 583; Hamilton v. Reedy, 3 McCord. 38; Hagan v. Lucas. 
 10 Pet. 400; The Oliver Jordan, 2 Curt. 414; Pock v. Jenness, 7 
 How. 612; Jones S. & P. Co. v. Case, 26 Kan. 299, 40 Am. Rep. 310; 
 Jones S. & P. Co. v. Hentig, 29 Kan. 75. 
 
 *82 Benson v. Berry, 55 Barb. 620.
 
 COl I'KU.SOXAl. l'ilUi'i:UTY fciUliJEUT TO EXECUTION. § 135 
 
 may be made uotwithstanding a pre-existing levy, pro- 
 vidiug the possession of the ulhcer making the hrst 
 levy is not disturbed and no unseemly eonfiict is 
 brought about between the ofificei-s represent ing th(? 
 two writs. In Arlcansas and Missouri it is held that a 
 levy may be made without disturbing the possession 
 of the oflieer making the first levy, by simply notifying 
 him that the property in his possession is levied ui)on, 
 subject to the previous levy made by him.''^-' AVe are 
 not aware of any other states in which a levy of this 
 character has been sanctioned by the courts. This 
 mode of proceeding impresses us as worthy of legisla- 
 tive consideration, though we believe, except where it 
 has received legislative approval, the courts are not 
 justified in adopting it. 
 
 There are cases which strongly tempt the courts to 
 hold that, in exceptional circumstances, property al- 
 ready levied upon by one officer may be subject to fur- 
 ther levy by another in those instances in which the 
 officer making the first levy does not object, and also 
 where it appears that the officer making the second 
 levy does so under a writ which, as a lien, has a priority 
 over the writ under which the previous levy has been 
 made. We have already considered this (juestion, and 
 discovered the decisions in irreconcilable conflict and 
 so infrequent that no rule upon the subject is sustained 
 by any decided preponderance of autliority. We think, 
 however, the better opinion is, that the second levy 
 cannot be sustained when the goods are in the lian<ls of 
 an officer under legal process, ^-^^ * except in states 
 whose statutes manifestly intend to authorize succes- 
 
 ■ <^3 Goodbar v. Brooks. 57 Ark. A7^Ct: Stato v. Ciirrnn. 4." Mo. Api>. 
 ^42: Patterson v. Stephenson. 77 Mo. ^'29: Bates v. Days. 17 Fed. 
 Kep. 107; Brooks v. Fry, 45 Fed. Rep. 770. 
 483a Ante, § 130
 
 § 135 PERSONAL PROPERTY SUB.TECT TO EXECUTION. GO-^ 
 
 sive levies of writs upon the same property, whether 
 in the hands of dillerent officers or not. Where 
 this exception prevails, the second levy must be 
 constructive in character and effected merely by giving 
 notice to the officer having the property in his custody, 
 and not by wresting the property from his possession. 
 Even if the goods are taken from the officer under a 
 writ of replevin and delivered over to a third person, 
 they still remain in custodia legis, to the extent that 
 they cannot be levied upon under process against the 
 originarl defendant.'**** But the officer who has levied 
 upon property may hold the same to answer for subse- 
 quent writs which come into his hands while the first 
 levy remains in force. The mere receipt of the subse- 
 quent writ operates as a constructive levy upon all 
 property actually or constructively in his possession 
 under a prior writ.***^ A levy by one deputy operates 
 as a constructive levy on the same property under a 
 subsequent execution delivered to another deputy of 
 the same sheriff. And this is true, although, before the 
 receipt of the second writ, the property was removed 
 to another state, and remained there until after the 
 return day of such writ."**^ But an unauthorized levy 
 does not put property in custody of law. Hence, prop- 
 erty seized by an officer contrary to plaintiff's instruc- 
 tions was held to be liable to seizure under another 
 writ.*«^ 
 
 4«4 Acker v. Whltp, 25 Wend. fil4: Pihines v. Phelps. P> Oilm. 455: 
 Selleck v, Phelps, 11 Wis. 380; Hagan v. Lucas. 10 Pet. 400; Ward 
 V. W^hitney, 13 Phila. 7; Bates Coiinty National Bank v. Owen, 7!> 
 Mo. 429, Pipher v. Forrlyce, SS Ind. 4.36. 
 
 4»5 Tan Winkle v. T'dall. 1 Hill. 5.59; Cresscn v. Stout. 1? .Tohns. 
 116. 8 Am. Dec. .373: Birdseye v. Uny. 4 Hill. 160; Collins v. Yowens, 
 10 Ad. &: E. 570: Bank of Lnnsinsburgh v. Orary, 1 Barb. 542. 
 
 ■•ffi Russell V. dibits. 5 Cow. 390. 
 
 *87 Sherry v. Schuyler, 2 Hill, 204.
 
 603 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 135 
 
 The clairii that property is in the custody of the law, 
 because it has been taken by an olhcer professedly act- 
 ing under a writ, may be resisted on the ground that 
 the levy upon which he relies is invalid, or the writ or 
 the judgment or other proceeding upon which it is 
 founded is void. If the levy is invalid and the officer has 
 not obtained possession of the property, it is clearly not 
 in legal custody, and there is no impediment to a jjroper 
 and valid levy, though made by an officer acting under 
 a different writ.^**** Possibly, if a writ or judgment is 
 void, so that an officer, if sued for trespass in acting 
 under it, could not successfully justify, his possession 
 is not the custody of the law, and, hence, does not pre- 
 vent a second levy by another officer. Indeed, there are 
 several cases asserting, in general terms, that "when 
 property is lawfully taken by virtue of legal process, it 
 is in the custody of the law, and not otherwise." '*'^'* It 
 would surely be dangerous to the peace of the com- 
 munity to require, or authorize, an officer having a writ 
 to determine whether the judgment or writ under 
 which another officer had already made a levy was 
 void. We doubt not the propriety of the rule main- 
 tained in the national courts that property "levied on 
 by attachment, or taken in execution, is brought by the 
 writ within the scope of the jurisdiction of the court 
 whose process it is, and, as long as it remains in the 
 possession of the officer, it is in custody of the law. It 
 is the bare fact of that possession under claim and color 
 of that authority, without respect to the ultimate right, 
 to be asserted othenvise and elsewhere, as already suffi- 
 
 ^RsPump Co. V. Miller. 10.-. Towa. r,74. HI Am. St. Eep. ?,22: Front 
 St. eto. Co. V. Dralco. 0.' Fori. Rop. ".."JO. 
 
 ^''B Campbell v. Williams. HO Towa. f!-P": Rnrr r. ^fathors. nl Mo. 
 App. 470; Gilman v. Williams, 7 Wis. 829. 70 Am. Dec. 219.
 
 § 135 PERSONAL PROPERTY SUBJECT TO EXECUTION. 604 
 
 cientlj explained, that furnislies to the officer complete 
 immunity from the process of every other jurisdiction 
 that attempts to dispos-sess him." '*'•*'* If a marshal or 
 other officer acting under a writ issued by one of the 
 national courts takes possession of property, claiming 
 the right to do so under a writ in his hands, but the 
 writ or the proceedings taken under it are insufficient 
 in laAv to justify him in withholding the property from 
 an officer of a state court seeking to levy thereon, under 
 a writ against the owner of the property, the remedy of 
 the latter officer is to notify the marshal of the writ 
 and of the desire to levy it upon the property, and if the 
 marshal, nevertheless, persists in retaining the posses- 
 sion, and in refusing the right to make a levy, then ap- 
 plication should be made to the national court under 
 whose writ the marshal claims the right to act and to 
 retain the possession of the property, and if his claim is 
 found to be invalid, the court will take such measures 
 as the justice of the case may require for the correction 
 of the wrong done by the marshal.^"^ 
 
 Generally a court cannot bring before it, or subject to 
 its jurisdiction, except in proceedings in rem, the titles 
 or interests of any persons other than the parties to 
 the suit and those acquiring from or under them. It 
 would seem that in an action between A and B, nothing 
 could be brought into the custody of tlie law which 
 did not belong to A or B. It is true that an officer 
 seizing property under process acts as the agent of the 
 court out of which the process issued, and his possession 
 becomes the possession of the court. But he is gener- 
 ally regarded as the agent of the court only while he 
 
 490Covell V. Heyman, 111 U. S. 184; note to Plume & Atwood M. 
 Co. V. Cladwell, 29 Am. St. Rep. .".11. 
 *9i Gumbel v. Pitkin, 124 U. S. 131.
 
 605 ' I'EUSONAL rilOPERTY SUBJECT TO EXECUTION. § 135 
 
 does what the i^rocess lawfully comniands him to do; 
 and his seizure of something which he had no right to 
 seize ought not to be regarded as the act of the court, 
 for the court ought not to be presumed to intend that 
 its agent should act wrongfully. The courts of each 
 state or nation are, however, unwilling that the courts 
 of any other sovereignty should exercise any authority 
 which might impair the jurisdiction of the former by 
 taking property out of the i)OSsession of their officers j 
 and they will not permit the courts of another jurisdic- 
 tion to determine whether such possession was taken 
 rightfully or not. If an officer, acting under a writ of 
 execution or attachment, issued out of a court of the 
 United States, seizes the property of a stranger to the 
 writ, he is confessedly guilty of an act for which his 
 writ affords no justification, and he may be sued in a 
 state court for the tort committed by him.'*^- But the 
 property thus wrongfully seized is, by the national 
 courts, nevertheless, treated as in their custody, and 
 they will not permit it to be taken by an officer of a 
 state court under any writ whatsoever. If the true 
 owner wishes to secure its return to him he must re- 
 sort to the court in w'hose custody it is, and vindicate 
 his claim by some ancillary proceeding there taken. ^^'^ 
 The taking of property by an officer acting under a 
 writ of replevin, places it within the custody of the 
 law, and, therefore, precludes it from being levied upon 
 under an execution to the same extent as if it had 
 been levied upon for the purpose of subjecting it to 
 
 <92 Buck V. Con)ath, 7 Miun. 310, 82 Am. Dec. 91. affirmed 3 Wall. 
 343. 
 
 <83 Beckett v. Sheriff, 21 Fed. Rep. 32; Covell v. ne.vmau. Ill 
 U. S. 170; Freeman v. HoAve. 24 How. 4riO: Krippendorf v. Hyde, 
 110 U. S. 270; Lewis v. Buck. 7 Miun. 104, S2 Am. Dec. 73; United 
 States V. Dautzler, 3 Woods, 719.
 
 § 135a PERSONAL PROPERTY SUBJECT TO EXECUTION. .. 606 
 
 the satisfaction of a judgment. No levy can be per- 
 mitted wliicli, if elfective, might defeat the object of 
 the action of replevin.^^* 
 
 Property may also be placed in the custody of the 
 law in some cases, though possession of it is not de- 
 livered to, nor taken by, any sheriff or other officer 
 of the court, provided it is subject to some proceed- 
 ing authorized by law, the object of which is to make 
 it answerable for some judgment already entered, or 
 which is sought to be procured. Thus, a statute may, 
 instead of requiring property to be seized and taken 
 into the possession of the officer, provide for some pro- 
 ceeding by way of garnishment, effected by service of 
 notice on the person in whose possession the property 
 is, and making it his duty to deliver the propei-ty in 
 satisfaction of a judgment existing or to be recovered. 
 By the service of such notice the property is put in 
 custody of the law.*^^ 
 
 § 1 35 a. Property the Subject of Creditor's Suits.— Or- 
 dinarily the mere pendency of a suit, touching the 
 ow^nership of property, does not place it in the custody 
 of the law, nor inhibit the levy of execution thereon.^^** 
 A creditor's bill to subject personal property to the pay- 
 ment of debts does not, prior to the appointment of a 
 receiver, put it in the custody of the law. The rule is 
 well settled in New York that the plaintiff in a cred- 
 itors' action acquires, by the commencement of the 
 suit, a lien upon the choses in action and equitable as- 
 
 494Tremalne v. Mortimer, 7 N. Y. Supp. 681; First N. B. v. Dunn, 
 97 N. Y. 149, 49 Am. Rep. 517; Williamson v, Nealy, 119 N. O. 
 339. 
 
 495 Northfipld N. Co. v. Sharpleigh, 24 Nob. 6.^j, 8 Am. St. Rep. 
 224; Grand Island B. Co. v. Costello. 4.' Neb. 119. 
 
 48« Joseph V. Boldridge, 43 Mo. App. 333.
 
 €07 PERSONAL PKOPERTY SUBJECT TO EXECUTION. § i33b 
 
 sets of the debtor, which entitles him, in the success- 
 ful event of the action, to priority of payment thereout 
 in preference to other creditors, irrespective of the 
 priority of the respective judgments,"*"' and tiiis lien 
 is not displaced or defeated by the death of the 
 debtor before judgment.*"'^ But in respect to chat- 
 tels, subject to be taken on execution, the rule seems 
 to be that, unless the action is brought in aid »»r an 
 execution, the mere commencement of the action 
 creates no lien as against other creditors, and, if any 
 lien whatever exists, it is so incomplete and imperfect 
 that it is subject to be overreached by a subsequent 
 levy in favor of other creditors, made before the ap- 
 pointment of a receiver.*^" When a receiver is actually 
 appointed without an intervening levy having been 
 made, the appointment operates as an equitable levy 
 and a sequestration of the chattels for the benefit of 
 the plaintiff. It is the appointment of the receiver 
 which makes the lien eiTective and gives the plaintiff 
 priority.'*"" 
 
 § 135 b. Termination of the Custody of the Law.— 
 Property once in the custody of the law remains so as 
 long as it is held by some officer or person subject to 
 the duty of delivering it in obedience to, or in satis- 
 faction of, a judgment existing or contemplated in the 
 action or proceeding in which it has been placed in 
 
 <07 Edmoston v. Lyde. 1 Paige, G37, 19 Am. Dec. 454; Corning v. 
 White, 2 Paige, 5G7, 22 Am. Dec. 5G9. 
 
 <88 Brown v. Nicliol.s, 42 N. Y. 20. 
 
 *oo Lansing v. Easton, T Paige, 3G4; Beclier v. Torrance. ."31 N. Y. 
 «31; Van Alstyne v. Coolv, 25 N. Y. 4S9; Davenport v. Kelly, 42 
 N. Y. 193; Storms v. Waddell. 2 Sand. Ch. 494. 
 
 BOO First N. B. v. Shuler, 153 N. Y. 1G3, 60 Am. St. Rep. GOl; King 
 V. Goodwin. 1.30 111. 102, 17 Am. St. Rep. 277; Ex parte Piedmont 
 M. Co., 34 S. C. 554.
 
 § 135b PERSONAL PROPERTY SUBJECT TO EXECUTION. 60S. 
 
 legal custody. "So long as the property is in the cus- 
 tody of the officer for the purpose of enabling him to de- 
 liver it according to the exigency of the writ, it can 
 not be taken from him by any one, even though acting 
 under a valid writ, issuing out of a court of competent 
 jurisdiction. But w^hen the court's officer parts with 
 the possession of the property, and, according to the- 
 directions of his writ, makes delivery to the plaintiff 
 in replevin, the property is no longer under the care 
 of the court, and any third person may claim it, to 
 make service of his writ upon it." °"^ It was, there- 
 fore, held in the case last cited that, after a marshal, 
 who had taken goods under a writ of replevin, had de- 
 livered them to the plaintiff, that they had passed out 
 of the custody of the court and become subject to a 
 writ of attachment, issued out of another court against 
 the plaintiff. In another case in a national court it 
 was held that the direction of the court to its marshal 
 to deliver property to a person terminated the cus- 
 tody of the law, and subjected it to attachment, though 
 still in the hands of such marshal.^**^ Other decisions 
 indicate that a mere direction or judgment that an of- 
 ficer of the court deliver property does not, ipso facto, 
 terminate the custody of the law, if the goods yet re- 
 main in the possession of such officer.®**^ 
 
 The fact that property no longer remains in the cus- 
 tody of some officer of the court is by no means con- 
 clusive that it is free from the custody of the law, so 
 as to become subject to seizAire under execution. It 
 may have been delivered to a party to the action or 
 to some other person, and may yet remain subject t'l- 
 
 Boi Animarinm Co. v. Bright. 82 Fed. Rep. 197. 
 
 602 Daniels v. Lazarus, (m Fed. Rep. 71S. 
 
 603 Pace V. Smith, 57 Tex. 555; Curtis v. Ford, 78 Tex. 2G2.
 
 COD I'ERSONAL PROPERTY SUBJECT TO EXECUTION. § 135b 
 
 the final jiK]y,ment to bo entered in the iiclioii. If so, 
 the party or person to whom it was thus delivered has 
 become charged with the duty of jjreserving and safely 
 keei^ing it, and of prcnlucing it in response to the judg- 
 ment or orders of the court, and it, therefore, is still 
 in the custody of the law. If goods are attached, and 
 the defendant obtains possession of them fruia the of- 
 ficer on executing a bond conditioned that he will sur- 
 render them in satisfaction of any judgment which may 
 be entered in the action, they cannot be seized under 
 another writ issued against him, until the duty to keep 
 them as stipulated in the bond has ended/"'*^ The 
 same result follows when an officer has levied upon 
 property and it has been taken from his possession by 
 proceedings in replevin, and the plaintiff in the action 
 remains under obligation to restore the property to the 
 officer or to the defendant, if the action of replevin 
 terminates in the latter's favor. During the pendency 
 of the action of replevin, the same goods are not sub- 
 ject to levy under another writ against the defendant 
 in execution.'"***^ In Texas, it was held that when a 
 claimant of attached property filed a bond, by virtue 
 of which he became entitled to, and received possession 
 of, the property attached, such bond took the place 
 of the property and freed it from the custody of the 
 law, and it, therefore, became subject to other writs.^^ 
 Subsequently a statute was enacted, declaring prop- 
 erty to be in custody of the law after the giving of a 
 bond and the surrender of the property to the claim- 
 
 B04 Stevenson v. Palmer, 14 Colo. 5Go, 20 Am. St. Rep. 295; Edison 
 V. Woolery, 10 Wash. 22o. 
 
 605 Beagle v. Smith, 50 Neb. 446; Coos Bay etc. Co. v. Wieder, 20 
 
 Or. 453. 
 
 606 Frieberg v. Elliott, G4 Tex.^ 367. 
 
 Vol. I.-39
 
 § 136 PERSONAL PROPERTY SUBJECT TO EXECUTION. 610 
 
 ant, and that it should not be taken out of his pos- 
 session by any other writs, but that such writs nii<;ht 
 be levied by giving notice to him, in which case the 
 bond should enure to the several plaintiffs in such writs 
 according to their respective priorities.""'' 
 
 If personal property is attached and then taken from 
 the possession of the attaching officer by a writ issued 
 in an action of replevin, but the actioii is collusive, 
 there being no bona fide controversy between the par- 
 ties, they cannot thereby place the property in the cus- 
 tody of the law. It remains subject to execution or at- 
 tachment, regardless of their collusive proceedings.^"^ 
 
 § 136. Property Conveyed in Fraud of Creditors— Gen- 
 eral Rule. — The struggle between fraud and justice 
 seems to be as old as time, and bids fair to prove as 
 endless as eternity. Fraud has always sought to in- 
 terpose itself as a shield to save the debtor from the 
 execution of the law. The law has retaliated by put- 
 ting its mark of condemnation upon fraud in every dis- 
 tinguishable form; and fraud, to escape the just judg- 
 ment of the law, has concealed its identity by every 
 conceivable disguise, and pursued, by artifice and am- 
 buscade, the struggle in which open contest was sure 
 defeat. Whoever goes out with an execution to seek 
 the fruits of his judgment is too apt to find that fraud 
 has forestalled him. It then becomes his business to 
 pursue those fruits, wherever fraud has taken them; 
 to wrest them from the possession of his adversary, 
 wherever they may be found; and to prepare himself 
 to show that the refuge whence he has wrested tliem 
 
 B07 United States C. Co. v. Bay City B. W' orlvs. 12 Tex. Civ. App. 
 
 52. 
 608 Kingman F. N. B. v. Gorson, 50 Kan. 582.
 
 611 PERSONAL PROPERTY SUbJLCT TU EXECUTION. § 136 
 
 is Still the refuge of fraud. In uianj instances the aid 
 of equity is invoked. But generally this is unneces- 
 sary; for a transfer made to hinder, delay, or defraud 
 creditors, while as between the parties it conveys the 
 title, has as against a creditor proceeding under exe- 
 cution no such effect. As against the fraudulent trans- 
 feree, the creditor may seize the property, whether real 
 or personal, as that of the fraudulent vendor, and may 
 proceed to sell it under execution. The title transferred 
 by such sale is not a mere equity — not the right to 
 control the legal title, and to have the fraudulent trans- 
 fer vacated by some appropriate proceeding; it is the 
 legal title itself, against which the fraudulent trans- 
 fer is no transfer at all.^"^ A creditor having a judg- 
 ment may, if he thinks it advisable, ask the aid of 
 equity, but he cannot be compelled to do so. Ilis judg- 
 ment is an effective lien against real estate fraudu- 
 lently conveyed, and he may rely upon it as such in 
 
 509 Daisy R. M. v. Ward. 6 N. D. 317; Berjron v. Snedeker. 8 Abb. 
 N. C. 58; O'Brien v. Browning, 49 How. Pr. 113; Warden v. Brown- 
 ing, 12 Hun, 499; High v. Nelms, 14 Ala. 350, 48 Am. Dec. 103; 
 Johnston v. Harvey, 2 Penr. & W. 82, 21 Am. Dec. 42G; Stewart v. 
 McMiun, 5 Watts & S. 100, 39 Am. Dec. 115; Scully v. Keans. 14 
 La. Ann. 436; Gleises v. :M(IIatton, 14 La. Ann. 5(X); Hall v. Sands, 
 52 Me. 355; Gormerly v. Chapman, 51 Ga. 421; Pratt v. Wheeler, 
 6 Gray, 520; Austin v. Bell. 20 Johns. 442, 11 Am. Dec. 297; Lowry 
 V. Orr. 1 Gilm. 70; Gooch's Case, 5 Coke, GO; Jacoby's Appeal, 67 
 Pa. St. 434; Hoffman's Appeal, 44 Pa. St. 95; Eastman v. Sehettler, 
 13 Wis. 324; Pepper v. Carter. 11 Mo. 540; Barr v. FTatch. 3 Ohio, 
 527; Russell v. Dyer. 33 N. H. 186; Duvall v. Waters. 1 Bland. 509, 
 18 Am. Dec. 350; INIiddlcton v. Sinclair. 5 Cranch C. C. 409; Lau- 
 rence V. Lippencott. 1 Halst. 473; Croft v. Arthur. 3 Desaus. Eq. 
 223; Shears v. Rogers. 3 Barn. & Adol. 303; Allen v. Berry, .50 Mo. 
 90; Ryland v. Callison, 54 Mo. 513; Staples v. Bradley, 23 Conn. 
 167, 60 Am. Dec. 630; FoMier v. Trebein. 16 Ohio St. 493, 91 Am. 
 Dec. 95; Manhattan Co. v. Evertson. 6 Paige, 457; Foley v. Bitter. 
 34 Md. 646; Shur v. StaUer, 1 West. L. Mo. 317. But Yocum v. 
 Bullit. 17 Am. Dec. 184. Payne v. Graham, 23 La. Ann. 771. and 
 Collins V. Shaffer, 20 La. Ann. 41. seem to oppose the general rule.
 
 § 13G PERSONAL PROPERTY SUBJECT TO EXECUTION. 612 
 
 all contests not involving the rights of bona fide pur- 
 chasers or encumbrancers who have acted upon the 
 apparent title and without any actual or implied no- 
 tice of the fraud.°^" If other creditors proceed in 
 equity to have the conveyance adjudged fraudulent, 
 and a receiver of the property appointed and a sale 
 made by him, such sale is subordinate to any pre-exist- 
 ing judgment liens, and the holders of such liens can- 
 not be compelled to relinquish them nor to accept any 
 distribution of the proceeds which ignores their priori- 
 ties.°^^ If the vendor of a sale, fraudulent as against 
 creditors, were to die, the vendee might at the com- 
 mon law be charged as his executor de son tort, "and 
 this, too, although there was a rightful executor or 
 administrator"; °^^ and, if the vendee were to die also, 
 his executor or administrator could also be proceeded 
 against as executor de son tort.^*^ And what is true 
 of fraudulent transfers is equally true of fraudulent re- 
 leases,^" mortgages, liens, judgments, executions, and 
 all similar devices for hindering, delaying, or defraud- 
 ing creditors. Property held under and by virtue of a 
 fraudulent lien, execution, or transfer is subject to exe- 
 cution precisely as if such transfer had not been made 
 and such lien had not been given.'*^ That such lien 
 
 BIO See §§ 140, 141. 
 
 Bii Chautanqiie Co. Bank y. Risley 19 N. T. .3G0, 7.5 Am. Dec. 347; 
 Sanders v. Wagonseller, 19 Pa. St. 252. 
 
 512 Babeock v. Booth, 2 Hill, 181. 38 Am. Dec. .^)78; Osborne v. 
 Moss, 7 Johns. 161, 5 Am. Dec. 252; Ashby v. Child. Style, 384; 
 Tucker v. Williams. Dud. 329. 31 Am. Dec. 561. 
 
 B13 McMorine v. Storey, 4 Dev. & B. 189. ,34 Am. Dec. 374. 
 
 B14 Bement v. Ohio B. & B. Co.. 99 Ky. 109. .'9 Am. St. Rep. 44,5. 
 
 B15 Walton V. First N. B.. 13 Colo. 265, 16 Am. St. Rop. 200; Wil- 
 kinson v. Goohm, 71 Mo. App. 394; Ttobinson v. Holt. 39 N. H. 557, 
 75 Am. Dec. 233; Fischel v. Keer. 45 N. .T. L. .507; Switzer v. Skiles, 
 3 Gilm. 529, 44 Am. Dec. 723. As to mortgages, see Angier v. Ash,^
 
 <J1.J PERSONAL PROPERTY SUBJECT TO EXECUTION. § 13G 
 
 is pursued to judgment, and the judgnienc iis in turn 
 followed by execution and sale, is immaterial as 
 against a creditor who is not a party to such judgment, 
 for the lien, judgment, and sale, taken in the aggregate, 
 amount only to a fraudulent conveyance. Hence, if 
 a fraudulent mortgage be given and foreclosed, a cred- 
 itor, not a party to the foreclosure, may proceed to sell 
 under his execution with like effect as if no mortgage 
 had been executed, and no decree of foreclosure en- 
 tered.'*^" No distinction can be made between a trans- 
 fer or lien, partly honest and partly in fraud of cred- 
 
 26 N. H. 99; Brown v. Snell, 46 Me. 490. In the case of Booth v. 
 Buuee, 33 N. Y. 139, 88 Am. Dec. 372, membei-s of an embarrassetl 
 corporation formed a new corporation, to which they transferred 
 all the assets of the old one. This transaction was declai'ed void 
 as against the creditors of the old corporation, and they were al- 
 lowed to levy upon the property as though no transfer had been 
 made, the court quoting, with approval, the following language from 
 another decision: "Deeds, obligations, contracts, judgments, and 
 ■even corporate bodies, may be instruments through which parties 
 may obtain the most unrighteous advantages. All such devices 
 and instruments have been resorted to to cover up fraud; but. when- 
 ever the law is invoked, all such instruments are declared nullities; 
 they are a perfect dead letter; the law looks ui>on them as if they 
 had never been executed. They can never be jusliticd fior sanc- 
 tified by any new shape or cover, by forms or recitals, by cove- 
 nants or sanctions, which the ingenuity, or skill, or genius of the 
 rogue may devise." Substantially the same conclusion was reached 
 in Kellogg v. Douglas Co. Bank. 08 Kan. 43. G2 Am. St. Rep. 596. 
 where it appeared that an embarrassed debtor organized a corpo- 
 ration and transferred to it his stock of merchandise and the 
 bouse in which he conducted his business, in consideration of which 
 the entire stock of the corporation was issued to him and to mem- 
 bers of his family. The court said: "Clearly a fraud may be com- 
 mitted in the transfer of a debtor's property to such a corporation, 
 as well as by a transfer to another individual for the purpose of 
 placing it beyond the reach of creditors. In such case the court 
 jvas clearly warranted in closely scrutinizing the transaction and 
 declaring its real purpose, notwithstandinsr the elaborate fabrica- 
 tion of charters. l>y-laws. and paper transfers." 
 
 516 Beeler v. Bullitt, 3 A. K. Marsh. 280. 13 Am. Dec. 101,
 
 § 136 PERSONAL PROPERTY SUBJECT TO EXECUTION. 614 
 
 itors. If any portion of its purpose is to hinder, de- 
 lay, or defraud creditors, tlie law denounces it as void, 
 not with respect to such purpose merely, but wholly 
 and unconditionally. "The unlawful design of the par- 
 ties cannot be confined to one particular parcel of prop- 
 erty. Entire honesty and good faith is necessary to- 
 render it valid; and whenever it indisputably appears- 
 that one object was to defraud creditors to any extent, 
 the entire instrument is, in judgment of law, void.-' ®*'' 
 
 617 Russell V. Winne, 37 N. Y. 591; 4 Abb. Pr., N. S., 384, 97 Am. 
 Dec. 755; Collins v. Blantern, 2 Wils. 351; Maleverer v. Redshaw, 1 
 Mod. 35; Norton v. Simmes. Hob. 12 c; Grover v. Wakenian, 11 
 Wend. 194, 25 Am. Dec. 024; Mackie v. Cairns, Hopk. Cb. 373; 5 
 Cow. 547, 15 Am. Dec. 477; Hyslop v. Clarke, 14 .Tobns. 464; Mc- 
 Kenty v. Gladwin, 10 Cal. 227; Termor's Case, 3 Coke, 78; Weedoa 
 V. Hawes. 10 Conn. 50; Wimbush v. Tailbois, Plow. 54; Scales v. 
 Scott, 13 Cal. 77; Tickner v. Wiswall, 9 Ala. 305; Burke v. Murphy^ 
 27 Miss. 1G7; Mead v. Combs, 19 N. J. Eq. 112: Hall v. Heydon, 41 
 Ala. 242; Coolidge v. Melvin, 42 N. H. 510; Jobnson v. :Murchison, 1 
 Winst. 292; Hawes v. Mooney, 39 Conn. 37; Barrett v. Nealon. 11^ 
 Pa. St. 171, 4 Am. St. Rep. 628; Beidler v. Crane, 135 111. 92, 25 Am. 
 St Rep. 349. In this case the court in its opinion said: "It is urged 
 that there was error in the decree of the circuit court, in that it 
 did not prefer the claim of the appellant to the amount of the 
 moneys by him actually advanced and paid for, and on account of 
 the several patents in the record named, over and as against the 
 claims and demands of the several appellees. It is without doubt 
 the rule in equity that, where a conveyance or transfer of property 
 is set aside solely upon the ground that it is constructively fraudu- 
 lent as to creditors, it will yet be upheld to the extent of the actual 
 consideration, and be vacated only as to the excess. Phelps v. Curts, 
 SO 111. 109, Lobstein v. Lehn, 120 111. 549. The difficulty, however,, 
 with this claim of appellant is, that both the circuit and the ap- 
 pellate courts have foxmd that the deeds of assignment by which 
 the letters patent were transferred were fraudulent in fact, as well 
 as from mere implication of law, and that we, after a very careful 
 examination of all the evidence found in the record, concur is the 
 view. A transfer of property must not only be upon a good con- 
 sideration, but it must also be bona fide. Even though the grantee- 
 or assignee pays a valuable, adequate, and full consideration, yet, if 
 the grantor or assignor sells for the i)urpose of defeating the claims- 
 of his creditors, and such grantee or assignee knowingly assist*
 
 C1.3 1'1':RS0NAL property SUIUECT to EXELL'ilON. § l-M 
 
 An impression to some extent prevails when a trans- 
 fer lias been maJe for the purpose of defrauding the 
 creditors of the fraudulent vendor, that the legal title 
 passes to the vendee as against such creditors, and 
 that in any proceeding to reach the property thus 
 transferred and subject it to the payment of their 
 debts, they must, by their pleadings, allege the facts 
 upon which they claim to be entitled to relief, or, in 
 other words, that they must, in some mode, set aside 
 the fraudulent transfer or enjoin the transferee from 
 claiming under it. This, as we have already indicated, 
 is erroneous. As against the creditors of the fraudu- 
 lent transferrer, the legal title remains in him, and they 
 may, under execution, levy upon the property thus 
 transferred to the same extent as if it still belonged 
 to hini.^*** The judgment creditor may, it is true, pro- 
 ceed in equity and there obtain relief by annulling the 
 
 In offeotnating snch fraudulent intent, or even has notice thereof, 
 he will be I'ejrarded as a participator in the fraud, for the law 
 never allows one man to assist in cheating anotlicr. Bump on 
 Fraiidulont Conveyances. 2d ed.. 1!)7 et seq. A deed fraudulent in 
 fact is absolutelj'^ void as against creditors, and is not permitted 
 to stand for any purpose of reimliursement or indemnity. Lobstt-in 
 V. Lehn. 120 Til. o49; Phelps v. Curts. 80 111. 100." 
 
 In equity, however, there are cases in which this rule has not 
 been rigidly applied, as where the fraud was constructive ratlier 
 than actual, and where there was doubt whether the grantee par- 
 ticipated in the fraud. Thus, in a case in New Jersey where the 
 court had a well grounded suspicion as to the adequacy of the con- 
 pideration and the fairness of the transaction, but was not free from 
 doubt "whether the grantee had knowledge of, or participated in th'> 
 fraudulent intent of the grantor." it permitted the deed to stand as 
 security for the consideration actually given. Withcrow v. WarniT, 
 56 N. J. Eq. 795. 07 Am. St. Rep. HOI. 
 
 BIS Sonter v. Williams. 61 Ark. ISO. M Am. St. Rep. 200; Wondarrl 
 V. Mastin. 106 ^Mo. ."'.24; Loos v. Wilkin.son. 110 N. Y. 19."; Renninger 
 V. Spatz. 128 111. ."24. 1.") Am. St. Rep. 002: Adams v. Paletz (Tenn. 
 Ch. App.). 43 S. W. 133; Hamburg v. Taletz (Tenn. Ch. App.\ 42 
 S. W\ 807.
 
 § 136 PERSONAL PROPERTY SUBJECT TO EXECUTION. (J16 
 
 iraudulent transfer or eujoiuiug the fraudulent trans- 
 feree from claiming under it, but he is not obliged to 
 resort to this proceeding.^^* ^ If he proceeds to sell the 
 proi)erty levied on, the purchaser at such sale obtains 
 a perfect legal as well as equitable title.^*'^ If the 
 officer making the levy is sued by the fraudulent ven- 
 dee, seeking to recover possession of the property or 
 damages for its conversion, such oflicer, under a de- 
 nial of the title of the plaintiff and without any addi- 
 tional plea, may offer evidence tending to show fraud 
 in the transfer, and if he establishes such fraud to the 
 satisfaction of the court or jury, he must prevail, for 
 the proof of the fraud establishes, for the purposes of 
 that controversy, that the property in question re- 
 mained at the time of the levy the property of the 
 fraudulent transferrer.^^^ 
 
 From the proposition that a transfer of property, 
 made with intent to defraud the creditors of the trans- 
 ferrer, is void as against them, it follows that they may 
 pursue such property in the hands of a fraudulent 
 transferee or of any person receiving possoi-^sion thereof 
 from him without consideration, or without notice of 
 the fraud, and that any disposition of such property 
 made by either of such persons which will prevent 
 such creditors from subjecting it to execution, is an 
 injury to them for which they are entitled to redress, 
 and, upon a sale of such property, the moneys received 
 may be regarded as held in trust fOr such creditors, 
 
 618a Logan V. Logan. 22 Fla. 501, 1 Am. St. Rep. 212. 
 
 C19 Judson V. Lyford, 84 Cal. 505; Thompson v. Baker, 141 U. S. 
 648. 
 
 620 Bull V. Ford, 66 Cal. 176; Humphreys v. Ilarkey, 55 Cal. 284; 
 Mason v. Vestal, 88 Cal. 396, 22 Am. St. Rep. 310, modifying and 
 explaining Albertoli v. Branham, 80 Cal. 633, 13 Am. St. Rep. 200, 
 and Seekforth v. Lord, 87 Cal. 3t)9.
 
 4)17 TERSONAL I'KOl'EKTY iJUDJ HCT TO EXECUTION. g laC 
 
 aud IhcY may, by a proper acLi(jii, compel the paymeut 
 tlierc'or uj them.^-' A debior in lailing circumslances 
 may seek to avoid bis creditors by purchasing prop<*rty, 
 and having the title tali.en in the name of some friend 
 or relative. This, being a device to hinder, delay, or 
 ilefraud creditors, may be thwarted; or, more properly 
 speaking, the property thus conveyed may be made to 
 contribute to the payment of the debts of its real 
 owner. This object cannot, however, be accomplislied 
 at law. The aid of equity must be sought, ^^'here a 
 debtor has fraudulently conveyed his properly, it may 
 be taken on execution against him, because, in favoi- 
 of his creditors, he is still considered as the owner of 
 the legal as well as of the equitable title. But wh<'n 
 he has fraudulently bought property, and had the title 
 taken in the name of another, the circumstances are 
 different, though the object is the' same. If the trans- 
 fer were treated as void, the title would remain in the 
 person of whom the purchase was made; and this would 
 be of no advantage to the creditors. The transfer must, 
 therefore, be treated as valid, and as transmitting the 
 legal title to the person named in the deed. This legal 
 title cannot be reached by the levy of an execution 
 against the debtor, because he has never owned it. The 
 creditors must, therefore, resort to equity,''"- except 
 
 521 Ilulley V. Chedic, 22 Nev. 127. 5S Am. St. Reji. 729; Murth.i 
 T. Curley, 90 N. Y. 372; Ferguson v. Ilinman, 55 Wis. 181; La 
 Crosse N. B. v. Wilson, 74 "Wis. 91. 
 
 622 Bolford V. Crane. 16 N. .T. Eq. 205, 84 Am. Doc. 1.55: Williams 
 V. Council, 4 Jones. 20C; Howe v. Bishop. 3 Met. 28; Dockray v. 
 Mason. 48 Me. 178; Low v. Marco. 53 Me. 45; Hamilton v. Cone, 
 99 Mass. 478; W^ebstor v. Folsoni. 58 Me. 230; Parris v. Thompson. 
 1 .Tones. 57; Jimmerson v. Duncan. 3 Jones. 537: Trask v. Green. 
 9 Mich. 358; Smith v. Ilinson. 4 Heisk. 2.50; Carfielil v. Hatmakcr. 
 15 X. Y. 47G, reaffirming Brewster v. Power. 10 Paige. 5(>2. and 
 overruling Wait v. Day, 4 Denio, 439; Worth v. York, 13 Ired. 200;
 
 § 137 PEllSONAL PROPERTY SUBJECT TO EXECUTION. CIS 
 
 in a few states, where statutes have been enacted to 
 enable them to reach it at law.^^^ 
 
 § 137. What Creditors may Levy on Property Fraudu- 
 lently Conveyed. — To authorize a phiintiff to seize prop- 
 erty which has been transferred with a view of defraud- 
 ing or delaying creditors, it is not necessary for him 
 to show that the transfer was made to avoid the pay- 
 ment of his particular debt. If an intent existed to 
 defraud any single creditor, the transfer is void as 
 against all creditors. A transfer made for the purpose 
 of hindering, delaying, or defrauding existing creditors 
 is void as against subsequent creditors.^^* It would 
 seem that the only persons entitled to treat a convey- 
 ance as fraudulent and void should be those against 
 whom it might have operated as a fraud at the time 
 it was made, or whom the grantor at that time had 
 a design to defraud. It seems, however, to be settled 
 by the decided preponderance of the authorities that a 
 conveyance made with the intent to defraud creditors 
 
 Page V. Goodman, 8 Ired. Eq. 16; Davis v. McKinney, 5 Ala. 719; 
 Gray v. Faris, 7 Yerg. 155; Dewey v. Long, 25 Vt. 564; Garret v. 
 Rhame, 9 Ricli. 407, 67 Am. Dec. 557; Robertson v. Sayre, 134 N. Y. 
 97, 30 Am. St. Rep. 627. 
 
 623 Tevis V. Doe, 3 Ind. 129; Pennington v. Clifton, 11 Ind. 162; 
 Clarli V. Chamberlain, 13 Allen, 257; Dunnica v. Coy, 24 Mo. 167,. 
 09 Am. Dec. 420; Ranldn v. Harper, 23 IMo. 579; Eddy v. Baldwin, 
 23 Mo. 588; Thomas v. Walker, 6 Humph. 93; Cecil Banlc v. Snively. 
 23 Md. 253; Kimmel v. McRight, 2 Pa. St. 38; Howe v. Waysman,. 
 12 Mo. 169, 49 Am. Dee. 126; Stix v. Chaytor, 55 Ark. 116. 
 
 624Wyman v. Brown, 50 Me. 139; Clark v. French, 23 Me. 221. 
 39 Am. Dec. 618; Barling v. Bishopp, 29 Beav. 417; Vertner v.. 
 Humphreys, 14 Smedos & M. 1.30; Iley v. Niswauger, 1 McCord 
 Ch. 518; Carpenter v. Roe. 10 N. Y. 227; Madden v. Day, 1 Bail. 
 337; Parish v. Murphree, 13 How. 92; Beach v. White. Walk. Ch. 
 495; Ilurdt v. Courtenay, 4 Met. (Ky.) 1.39; Lowry v. Fisher, 2 Bush,. 
 70, 92 Am. Dec. 7.54; Ridgeway v. Underwood, 4 Wash. C. 0. 129; 
 Doyle V. Sleeper, 1 Dana, 531.
 
 C19 TEIISONAL PROPERTY SUBJECT TO EXECUi'ION. § \-^l 
 
 may be disregarded and treated as void by subsequent, 
 as well as by antecedent creditors.^'"' This rule must, 
 we think, be qualified so as to exclude from its ijrotec- 
 tion all those subsequent creditors whose debts were 
 contracted with notice of the precedent transfer, and 
 whom it, therefore, could by no possibility defraud.'*'** 
 A decided preponderance of the authorities still main- 
 tains that if a conveyance was made with a fraudu- 
 lent intent, or, in other words, with an intent to hinder, 
 delay or defraud creditors of the grantor, existing or 
 contemplated, it may not only be disregarded and 
 treated as void by those creditors, but also by subse- 
 quent creditors of the grantor, whom he is not shown 
 to have had in contemplation at the time of making 
 the fraudulent transfer.^^'' This proposition has not, 
 however, received universal acquiescence. Thus, in 
 Minnesota, it is said that its courts have always held 
 that a subsequent creditor cannot avoid a conveyance 
 by his debtor "not intended to, nor operating to, de- 
 fraud him on the ground that it was executed with in- 
 tent to defraud existing creditors." They admit that 
 an intention to defraud creditors may, in connection 
 with other circumstances, be evidence of an intent to 
 
 B2B Hutchison V. Kelly, 1 Rob. (Va.) 32.3, 39 Am. Dec. 2.".0; 
 Nicholas v. Ward, 1 Head, 323, 73 Am. Dec. 177. But in Maine, 
 on the other hand, a creditor cannot treat his debtor's conveyance 
 as void unless every part of the debt on which the execution issued 
 accrued prior to the making of such conveyance. Usher v. Hazol- 
 tlne, 5 Greonl. 471, 17 Am. Dec. 2o3; Miller v. Miller, 23 Me. 22. 
 39 Am. Dec. 597. 
 
 626 Lehmlierg v. Biberstein. 51 Tex. 457; Lewis v. Castleiiian. 
 27 Tex. 407; Monroe v. Smith, 79 Pa. St. 459; Suydor v. Christ, 39 
 Pa. St. 499. 
 
 627 Rudy V. Austin, 56 Ark. 73. 3o Am. St. Bop. 85; Ilniormnu v. 
 Buchanan. 45 N. .T. E<i. 292. 14 Am. St. Kep. 732; Marsliall v. Roll. 
 139 Pa. St. 399, 23 Am. St. Kep. 198.
 
 § 137 rERSONAL rilOFEKTY 8UBJECT TO EXECUTION. 620 
 
 defraud subsequent or prospective creditors, and that, 
 wlieu the inteut to defraud them is established, the 
 transfer may be treated as invalid as against them, but 
 it must be treated a£ valid as against them in the ab- 
 sence of intent to defraud them, whatever may have 
 been the intent respecting the creditors, existing at the 
 time the transfer was made.""^-^ ' In Iowa, its supreme 
 court, after an exhaustive review of the i^rior decis- 
 ions, recently said, "We think the correct rule is 1. A 
 conveyance which is merely Voluntary, and when the 
 grantor has no fraudulent view or intent, cannot be im- 
 peached by a subsequent creditor; 2. A conveyance ac- 
 tually and intentionally fraudulent as to existing cred- 
 itors, as a general rule, cannot be impeached by sub- 
 sequent creditors; 3. If a conveyance is actually fraudu- 
 lent as to existing creditors, and merely colorable, and 
 the property is held in secret trust for the grantor, 
 who is permitted to use it as his own, it will be set 
 aside at the instance of subsequent creditors. The sec- 
 ond rule above laid down is subject to some excep- 
 tions, among which may be mentioned cases in which 
 the conveyance is made by the grantor with the express 
 intent and view of defrauding those who may there- 
 after become his creditors; cases wherein the grantor 
 makes the conveyance w-ith the express intent of be- 
 coming thereafter indebted; cases of voluntary convey- 
 ances, when the grantor pays existing creditors by con- 
 tracting other indebtedness in a like amount, and 
 wherein the subsequent creditors are subrogated to the 
 rights of the creditor whose debts their means have- 
 been used to pay; cases in which one makes a convey- 
 ance to avoid the risks, or losses, likely to result from 
 
 B28 Fnllinpton v. Northwostorn pto. Assn.. 48 'NTinTi. 4^0, HI Am. St. 
 Rpp. GG3; Bloom v. Moy, 43 Minn. 307. 10 Am. St. Rep. 24.3. .
 
 621 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 1.^7 
 
 new business ventures, or speculations. Tlie follow- 
 ing authorities will be found to support the above rules 
 and exceptions: Wait on Fraudulent Conveyances, §§ 
 96, 97, 98, 100; Bump on Fraudulent Conveyances, 4th 
 ed., §§ 290, 203, 290, 300; 2 Pomeroy's Equity Jurispru- 
 dence, §§ 971-973; 1 Am. Lead. Cas., 5th ed. 42, notes. 
 We have not overlooked the fact that there are 
 respectable authorities holding that a conveyance ac- 
 tually fraudulent as to the existing creditors may, 
 for that reason alone, be avoided by subsequent credit- 
 ors. We are not, however, prepared to assent to the 
 correctness of such a doctrine." °^ Fraudulent con- 
 veyances may be divided into two classes: 1. Those 
 made with intent to defraud creditors; and 2. Those 
 made without any evil intent, but deemed fraudulent 
 because their operation may result in witlidrawing 
 property from the reach of creditors. Of this latter 
 class are voluntary conveyances made under the im- 
 pulse of friendship or affection, and without any de- 
 sign to injure any one. The law deals more leniently 
 with them, and does not permit them to be avoided 
 by persons upon whom they could inflict no injury. A 
 voluntary conveyance made bona fide is valid a2:ainst 
 subsequent creditors. They cannot complain because 
 their debtor, prior to the debt, chose to give his prop- 
 erty away. If the grantor was free from debts when 
 bis conveyance was made, but it can be shown that he 
 intended to become indebted to another, and defraud 
 him by means of such conveyance, then it is void as 
 against creditors.**^® A voluntary conveyance free 
 
 B29Brunda!re v. Clieneworth. 101 Ta. 250. fi3 Am. St. Rop. 382; 
 Rollins V. Shaver etc. Co.. 80 la. 380. 20 Am. St. Rep. 427. 
 
 030 Littleton v. Littleton. 1 Dev. & B. 327: Ridseway v. T'nder- 
 wood, 4 Wash. C. C. 129; Stileman v. Ashdown. 2 Atk. 481; Barlin?
 
 § 137a PERSONAL PROPERTY SUBJECT TO EXECUTION. G22 
 
 from any intent on the part of the grantor to defraud 
 his creditors, while it cannot be sustained as against 
 existing creditors whom it must hinder, delay, or de- 
 fraud, if permitted to stand, can, nevertheless, not be 
 avoided by them, except to the extent to which it 
 prejudices them in contemplation of law when made. 
 Hence, if a judgment is recovered based upon indebted- 
 ness, part of which existed before the voluntary con- 
 veyance was made and the remainder of which was 
 created afterward, the judgment creditor is not enti- 
 tled to relief from the voluntary conveyance, except as 
 to the portion of the indebtedness merged in the judg- 
 ment and existing anterior to the conveyance as- 
 sailed.^^^ 
 
 § 137 a. Who are Creditors in Favor of Wliom a 
 Transfer may be Held Fraudulent.— The term "creditors," 
 as employed in the statutes and decisions concerning 
 fraudulent and voluntary conveyances, is not used in 
 any narrow or technical signification, but includes all 
 persons whose interests might be defrauded by the 
 transfer. Wherever there exists a right or obligation 
 for the invasion or disregard of which a judgment may 
 be entered, a transfer made with the view of render- 
 ing such judgment ineffectual is doubtless fraudulent, 
 and therefore void as against the interest sought to be 
 defrauded. Thus, if one has committed any tort for 
 
 V. Bishopp, 29 Beav. 417; Howe v. Ward, 4 Me. 195; Black v. Nease, 
 37 Pa. St. 433; Graham v. O'Keeffe. 16 Irish Ch. 1; Tarback v, 
 Marbury, 2 Vern. 509; New Haven St. Co. v. Vanderbilt, 16 Conn. 
 420; Cook v. .Tolinson, 1 Beasl. 51, 72 Am. Dec. 381; National Bank 
 V. Sprague, 20 N. .T. Eq. 13; Murphy v. Abraham. 15 Irish Eq. N. S., 
 371; Miller v. Wilson, 15 Ohio, 108; Lyman v. Cessford, 15 Iowa, 
 229; Bogard v. Gardley, 4 Smedes & M. 302; Williams v. Banks. 
 11 Md. 198. 
 
 631 Henderson v. Henderson, 135 Pa. St. 399. 19 Am. St. Rep. 6.50.
 
 €23 PERSONAL PJIOPERTY SUBJECT TO EXIX UTION. § 137a 
 
 which he may be answerable in daniaj^es, the p<'r.sou 
 entitled to recover such damages is a creditor, and, as 
 such, in proceeding to obtain satisfaction of a judg- 
 ment for such damages, may treat as void any transfer 
 made with a view of hindering or delaying him in his 
 attempt to realize such satisfaction.'-'- Lhnce, a 
 transfer to prevent the satisfaction of a judgment 
 which might be recovered against the grantor for a 
 slander uttered by him,'"'"^-' or for seduction or breach of 
 promise of marriage, •'^^* or for alimony, or other mon- 
 eys to which a wife is entitled from her husband,""'^^ 
 may be regarded as fraudulent and void. "^Vhile it is 
 true that a claim for alimony is not a debt within the 
 ordinary meaning of that term, and that it must be as- 
 certained and allowed according to equitable prin- 
 ciples, yet it is also true that it is a right, contingent 
 to some extent, which becomes vested with the right 
 to divorce. It can no more be defeated by a fraudu- 
 lent conveyance than it could be if it were fixed and 
 certain as to amount." °^° 
 
 532 Barlinp: v. Bishopp. 29 Beav. 417; Fox v. Hills. 1 Conn. 205; 
 Westmoreland v. Powell, 59 Ga. 25G; Bougard v. Block, 81 111. 186, 
 25 Am. Rep. 276; Weir v. Day. 57 Iowa. 87; Cooke v. Cooke. 4.3 
 Md. 522: Hoffman v. Junk, 51 Wis. 613; Harris v. Harris. 23 Gratt 
 737; Patrick v. Ford. 5 Sneed, 532. note; Philbrick v. O'Connor. 15 
 Or. 15. 3 Am. St. Rep. 1.39. 
 
 533 Walradt v. Brown. 1 Gilm. 397, 41 Am. Dec. 190; Lillard v. 
 McGee, 4 Bibb. 165; Farnsworth v. Bell. 5 Sneed, 531; Helms v. 
 Green, 105 N. C. 251, 18 Am. St. Rep. 893. 
 
 634 Lowry v. Pinson, 2 Bail. 324, 23 Am. Dec. 140; Smith v. Cul- 
 bertson, 9 Rich. lOG; HoCfman v. Junk, 51 Wis. 613; Greer v. Wright. 
 6 Gratt. 154, 52 Am. Dec. Ill; McVeigh v. Retenour, 46 Oh. St. 107; 
 Tyler v. Tyler, 126 111. 525. 9 Am. St. Rep. 642. 
 
 635 Feigloy v. Feigley, 7 Md. 537, 61 Am. Doc. 375; Sanborn v. 
 Lang, 41 Md. 107; Taylor v. Wyld, 8 Beav. 159; Draper v. Draper. 
 <>8 111. 17; Chase v. Chase, 105 Mass. 385; Bouslough v. Bousloiigh. 
 68 Pa. St. 495; Livermore v. Routelle, 11 Gray, 217, 71 Am. Doc. 
 7aS; Boils v. Boils, 1 Cold. 2S4; Plunkett v. Plunkett, 114 Ind. 484. 
 
 636 Picket V. Garrison, 70 la. 347. 14 Am. St. Rep. 220.
 
 § 137a PERSONAL PROPERTY SUBJECT TO EXECUTION. 624 
 
 Sometimes it has been held that one having a claim 
 for a tort is not entitled to protection as a creditor,, 
 unless he has commenced an action for the damages oc- 
 casioned to him thereby.^^'' This question has not been 
 very carefully considered, but, upon principle, there 
 seems to be no reason for attaching any importance to 
 the pendency of the action, except that the known pen- 
 dency of an action might render it more probable that 
 the transfer was fraudulent, and intended to avoid a 
 claim which the parties had reason to believe would be 
 prosecuted to judgment. But a plaintiff is no more a 
 creditor after commencing an action than before. His 
 cause of complaint, whatever it may be, must exist an- 
 terior to the commencement of his action, and is of 
 precisely the same character after such commencement 
 as before. If any change takes place in the cause of 
 action, it cannot be prior to its merger in the judg- 
 ment. Nor does the mere pendency of the action cre- 
 ate any lien upon any property. The better opinion, 
 therefore, is, that one having a claim for a tort is a 
 creditor before the commencement of an action thereon 
 as well as after, and, as such creditor, is, upon recover- 
 ing judgment, entitled to avoid a fraudulent transfer 
 antedating the commencing of hi« action. ^^^ 
 
 If a judgment is based on a contract, the judgment 
 creditor's right to be treated as a creditor relates back 
 to the date of the execution of the original contract. 
 Hence, he ma^'' treat as void any fraudulent transfer 
 executed subsequently to the contract on which the 
 judgment was based. The transfer cannot be supported 
 
 637 Hill V. Bowman. 3.'» Mich. 101. in which case tho opinion is upoa 
 this snbicct a mere dictum. 
 
 53« Coi-fler V. Williams, 40 Iowa, 582; Shean v. Shay, 42 Ind. 375, 
 13 Am. Rep. 3G6.
 
 C25 PERSONAL rilOPERTY SUBJECT TO EXECUTION. § I37a 
 
 by showing that when it was made the judgment cred- 
 itor's debt had not become due,'"'"* and it could not then 
 have been known that any cause of action against him 
 would ever result from the contract. Tlicrcfore, if a 
 bond be given, a fraudulent transfer, made subse- 
 quently, but before breach of its condition, may be 
 avoided as well as if executed after such breach.'*'** 
 "Another principle equally well settled is, that the lia- 
 bilit}' of the surety on an administrator's bon<l, or other 
 contingent obligation, makes him a creditor Avithin the 
 statute of frauds, from the date of the contract, and 
 though, generally, he has no cause of action until he 
 has paid the debt, he is entitled to protection against 
 fraudulent conveyances executed by the principal 
 debtor in the meantime." ^^^ The same rule prevails re- 
 specting other contingent liabilities,'''*^-as where the 
 transferrer was, at the date of the transfer, a surety, 
 guarantor, or indorser, and it was not known that he 
 would ever be called upon to pay the debt.^^^ The 
 liability of a grantor, under his covenant of warranty, 
 does not differ in principle from other contingent lia- 
 bilities, and a fraudulent conveyance, made at any 
 
 639 Howe V. Ward, 4 Me. 195; Cook v. .fohuson, 12 N. J. Eq. 51, 
 72 Am. Dec. 381; Wooten v. Steele, 109 Ala. 5G3, 55 Am. St. Rep. 
 947; Du Rant v. Dii Rant. 3G S. C..49. 
 
 540 Thompson v. Thompson. 19 Me. 244, 36 Am. Deo. T.")!; Stone 
 V. Myers, 9 Minn. 303, 80 Am. Dec. 104; Carlisle v. Rich. 8 N. H. 
 44; Anderson v. Anderson, 64 Ala. 403; Sodcn v. Soden, 34 N. J. 
 Eq. 115. 
 
 641 Yeend v. Weeks, 104 Ala. 331, 53 Am. St. Rep. 50. 
 
 642 Bibb V. Freeman, 59 Ala. 612; Post v. Stiger, 29 N. J. Eq. 554. 
 543 Jackson v. Seward, 5 Cow. 67; Cramer v. Reford, 17 N. J. 
 
 Eq. 367, 90 Am. Dec. 594; McLaughlin v. Bank, 7 How. 220; Bay 
 V. Cook, 31 111. 336; Gibson v. Love, 4 Fla. 217; Crane v. Stickles, 
 15 Vt. 252; Curd v. Millers Ex'r, 7 Gratt. 185; Keel v. Larkiu, 72 
 Ala. 493. 
 
 Vol. I.— 10
 
 g i:57a PERSONAL TROPERTY SUBJECT TO EXECUTION. 626 
 
 time after such covenant, ought to be regarded as void 
 as against a judgment thereon.*^^* 
 
 If debts exist when a fraudulent conveyance is made, 
 a change in their form, or in the persons to whom they 
 are due, is immaterial. Subsequent creditors from 
 whom means were obtained to pay off the antecedent 
 creditors are entitled to treat the conveyance as 
 void.**^^ So, if the grantor of a voluntary conveyance 
 is then indebted to one with whom he continues to do 
 business and to have an account, and the payments 
 afterward made by the debtor are sufiicient, if applied 
 to the debt existing at the transfer, to extinguish it, 
 but by reason of subsequent purchases by, or other 
 proper charges against, the grantor, the balance due 
 from him exceeds that due at the date of the transfer, 
 then the creditor has all the equity of one whose debt 
 wholly antedated the transfer.®"*® 
 
 In New Jersey, the decisions are, we think, not capa- 
 'ble of reconciliation with the rules hereinbefore stated. 
 In that state it appeared that the maker of a note pro- 
 cured an accommodation indorser thereon, and there- 
 after, but before the dishonor of the note, made a 
 voluntary conveyance of real proi>erty without any in- 
 tention to defraud. The note was afterward dishon- 
 ored, and the indorser compelled to pay it. The ques- 
 tion then arose whether he was a creditor of the gran- 
 tor of the voluntary deed at the time of its execution, 
 
 B44 Rhodes V. Green, 36 Ind, 7; Gannard v. Eslava, 20 Ala. 741; 
 Bement v. Ohio Valley etc. T. Co., 99 Ky. 109, 59 Am. St. Rep. 445; 
 contra, Bridgeford v. Riddell, 55 111. 261. 
 
 645 Paulk V. Cooke, .30 Conn. 566; Barbydt v. Perry. 57 Iowa. 416: 
 Mills V. Morris, Hoff. Ch. 410; Savage v. Murpliy, .34 N. Y. 50S, 90 
 Am. Dec. 733; McEhvee v. Sutton, 2 Bail. 128; Kellogg v. Douglas 
 Co. Bank, .58 Kan. 43. 62 Am. St. Rep. .506. 
 
 646 Whittington v. Jennings, 6 Sim. 403; 3 L. J., N. S. 157.
 
 €27 PERSONAL I'llOPEUTY SUBJECT TO EXECUTION. § 138 
 
 SO that it must be presuinod to be fiaudiileut with re- 
 spect to his debt. The court answered this question 
 in the negative, saying: "When a man is in debt, espe- 
 cially if such debts be due, it is certainly not irrational 
 to infer, if he give away his property-, that the inten- 
 tion was to defeat such claims, but such deduction 
 would seem to be most extravagant if, instead of a 
 present indebtedness, he has incurred a mere liability 
 as a warrantor of title, as a tort feasor, or as surety on 
 an administrator's bond. If such responsibilities as 
 these latter, which may, in the long run, be transformed 
 into debts, should have the effect of invalidating volun- 
 tary' settlements of property, then such settlements 
 would be the most uncertain of legal transactions. It 
 is plain that by force of so absurd a principle all dona- 
 tions would, in a measure, be made contingent, and 
 would many times remain so beyond the lives of the 
 donor and donee. The result, therefore, is that, in or- 
 der to bring a case within the operation of the rule in 
 question, there must be a present indebtedness, and 
 not a mere probability of future indebtedness." ^^"^ 
 
 § 138. What Kinds of Property may be Taken from 
 Fraudulent Grantee. — The kinds of property which may 
 be levied upon as that of the fraudulent grantor em- 
 brace everything which could have been subjected to 
 execution in his hands if no conveyance had been made. 
 In other words, the laws against fraudulent convey- 
 ances are applicable to every species of property which 
 the grantor's creditors could have lawfully had appro- 
 priated to the payment of their demands.""'^** But it 
 
 547 Severs v. Dodson. 53 N. .T. Eq. 033, 51 Am. St. Rep. nil. 
 
 548 Bump on Fraudulent Conveyances, 2(13. 2(14: Bank v. Ballard, 
 12 Rich. 259; Garrison v. Monaghan, 33 Pa. St. 232.
 
 § 139 PERSONAL PROPERTY SUBJECT TO EXECUTION. C2S 
 
 is evident that creditors cannot be defrauded, hindered, 
 nor delayed by the transfer of property which, neither 
 at law nor in equity, can be made to contribute to the 
 satisfaction of their debts.^"*'** Hence, it is almost uni- 
 versally conceded that property which is by statute 
 exempt from execution cannot be reached by creditors 
 on the ground that it has been fraudulently trans- 
 ferred.^^" The transfer is effectual between the par- 
 ties, and neither will be permitted to evade its force by 
 showing that it was without consideration and in- 
 tended to defraud creditors. If the fraudulent gTantee 
 of a homestead should reconvey the property to the 
 grantor, it must be regarded as a new acquisition, and 
 subject to execution to the same extent as if the first 
 conveyance had not been intended to defraud credit- 
 
 § 139. Origin of the Law against Fraudulent Trans- 
 fers. — Whether the result of fraudulent transfers, as> 
 stated in the three preceding sections, was fully recog- 
 nized at common law, may, perhaps, admit of some 
 doubt. At all events, Parliament saw proper not to 
 rest entirely upon common-law rules, but to enact sev- 
 
 B49 Winebrinner v. Weisiger. 3 T. B. Mon. 33; Dearman \. Dear- 
 man, 4 Ala. 521; Planters' Bank v. Henderson, 4 Humph. 75. 
 
 550 Bond V. Seymour, 1 Chand. 40; Smith v. Allen. 39 Miss. 4<i9: 
 Legro V. Lord. 10 Me. ICA: Lishy v. Perry, 6 Bush. 515; Yaughan v. 
 Thompson, 17 111. 78; Pike v. Miles, 23 Wis. 164. 09 Am. Dec. 148; 
 Wood V. Chambers, 20 Tex. 247, 70 Am. Dec. .382; Foster v. Mc- 
 Gregor, 11 Vt. 505. 34 Am. Dec. 713; Cox v. Shropshire. 2.". Tex. 113; 
 Bean v. Smith, 2 Mason, 252; post, § 218; Crummen v. Bennett, OS 
 N. C. 494; Dortch v. Benton, 98 N. C. 390; Bank of Versailles v. 
 Guthrey, 127 Mo. ISO. 48 Am. St. Rep. 021; Pipkin v. Williams, 57 
 Ark. 242, 38 Am. St. Rep. 241: Union P. Ry. v. Sinersh. 22 Neb. 751, 
 3 Am. St. Rep. 300; Blair v. Smith. 314 Ind. 314. 5 Am. St. Rep. 503; 
 Freehling v. Bresnahan, 01 Mich. .540, 1 Am. St. Rep. 617; Ansgoro 
 V. Barth, 88 Wis. 5.53, 43 Am. St. Rep. 920. 
 
 651 Butler V. Nelson, 72 Iowa, 732.
 
 <i29 TERSONAL PllOrEllTY SUBJECT TO EXECUTION. § 139 
 
 «ral vStatutes, ^^^ all desij^ned to prevent persons from 
 taking advantage of their own frauds. It is claimed 
 that these statutes were but declaratory of the common 
 law, and that every wrong to which they have been 
 xipplied was susceptible of equally successful treat- 
 ment without their aid.^'^^ At all events, it seems not 
 to be necessary, at the present day, to show that an 
 alleged fraudulent device falls within the provisions of 
 either of these statutes; and we may, therefore, assume 
 that every transfer, pledge, or lien made with intent to 
 delay, hinder, or defraud creditors is, as against such 
 creditors, void, whether it assumes some one of the 
 forms designated by these statutes, or takes some 
 shape hitherto unknown and undescribed.'"'^ It be- 
 comes, therefore, of the highest importance that per- 
 sons seeking to harvest the fruits of their judgments 
 should be enabled to determine whether property, 
 formerly belonging to the defendant, but transferred 
 by him to another, may still be taken and appropriated 
 to the payment of his debts, on the ground that the 
 transfer was void as against creditors. The subject of 
 fraudulent liens and transfers is of such importance, 
 
 552 Stat. 50 Edw. Ill, c. G; 3 Hen. VII. c. 4; 13 Eliz., c. 5; 27 Ellz., 
 
 <. 4. 
 
 553 Cadosran v. Kennett, Cowp. 432: Clnvk v. Douglass. 02 Pa. St. 
 408; Barton v. Vanheythuysen. 11 Hare. 1.32; Clements v. Moore, fi 
 Wall. 312; I'eck v. T^and, 2 Kelly, 10. 4G Am. Dec. 3GS; Hudnal v. 
 W'ilder. 4 McCord. 294, 17 Am. Dec. 744. 
 
 654 "Whenever the statute is ineffective, either throiiirh a chancre 
 of custom or the introduction of a now kind of property, or the 
 concocting of some now device, there the common law intervenes 
 with it.s pure and elevated principles of morality and justice, and 
 enforces the dictates of common honesty and common sense. In 
 other words, the common law supplements the statute, to the end 
 that justice may be done and every species of fraud suppressed." 
 Bump on Fraudulent Conveyances, oO; Blackman v. Wheaton, 13 
 Minn. .320; Fox v. Hills, 1 Conn. 20.": State v. Fife. 2 Bail. .337; Lil- 
 lard V. McGee, 4 Bibb. IG."); Taylor v. Ilcriot. 4 Desaus. 227.
 
 § 140 PERSONAL PROPERTY SUBJECT TO EXECUTION. 630 
 
 and has given rise to so many reported adjudications^ 
 that it cannot be treated with desirable fullness within 
 the limits of this work. And, fortunately, such treat- 
 ment is not now necessary, because of the research and 
 ability already devoted to it in the notes to Twyne's 
 Case in 1 Smith's Leading Cases; in the notes to Sexton 
 V. Wheaton, Salmon v. Bennett, Thomas v. Jenks, and 
 Grover v. Wakeman, 1 American Leading Cases; in 
 Kerr on Fraud and Mistake, with American notes by 
 Mr. O. F. Bump; and, finally, in a more elaborate form, 
 in Mr. Bump's excellent treatise on fraudulent convey- 
 ances. The subject is, however, so intimately con- 
 nected with the law of executions that we mu^t give 
 it some further consideration. We shall endeavor to 
 show, in the briefest manner possible — 1. Who are the 
 persons from w^hose hands the property cannot be 
 taken under execution against the fraudulent vendor; 
 2. The most important classes of cases in which trans- 
 actions are regarded as fraudulent, prima facie or per 
 se, owing to the nature of the transfer, and independent 
 of any evidence showing the actual intent; and 3. When 
 and where the retention of possession by the vendor 
 is conclusive proof of fraud. 
 
 § 140. Persons whose Rights cannot be Affected by 
 Showing that Transfer was Fraudulent.— The general 
 statement that transfers or liens made to hinder, de- 
 lay, or defraud creditors are void against the persons 
 sought to be so prejudiced or defrauded, must always 
 be understood with this qualification — that the rule is 
 not to be applied against persons who have obtained 
 interests in the property in good faith, and for a valu- 
 able consideration.'*^^ The law does not intei'pose in 
 
 1555 A pnroliasor from a fr;ni(lul(>nt vondco. in sicxhI faitli and for 
 value, will hold the propei'ty against a creditor wlio had issued an
 
 *J31 I'EllSONAL rilOPERTY SUaJECT TO EXECUTION. § 140 
 
 favor of creditors as against persons who are i:inocent 
 of all participation in the fraud; Avbo have not assisted 
 it by act, design, or neglect; who have had neither no- 
 tice nor knowledge of its existence; and have parted 
 with valuable consideration upon their faith in the 
 transfer, which, in the end, may be shown to have been 
 fraudulent. •'•'*" It is not sufficient that the person in 
 whose hands the property is found can show that he 
 has acquired it for a valuable consideration, or that he 
 has acquired it in good faith. Tie must surrender the 
 property to the creditors, unless he can show that his 
 acquisition is sustained both by good faith and by a 
 valuable consideration. "An inquiry into the good 
 faith of the grantee is only necessary when there is a 
 valuable consideration for the transfer. The mere ac- 
 ceptance of a transfer, without a valuable considera- 
 tion, is of itself sufficient evidence of a participation in 
 the debtor's fraudulent intent." ^^"^ If no valuable con- 
 sideration existed, the transaction is per se fraudulent 
 as against creditors whom it would hinder or delay if 
 permitted to stand. No evidence of the intent of the 
 parties can be received. The inference of the law is 
 irresistible. But the consideration paid, though valu- 
 
 executlon, but bad not levied it when such purchase was made. 
 Younfr V. Lathrop, G7 N. C. G3, 12 Am. Eep. 603. 
 
 556 Smith V. Selz, 114 Ind. 229; Carnahan v. McCord. 116 Ind. 67; 
 Des Moines I. Co. v. Lent, 7.5 la. 522; Iledman v. Anderson, 6 Neb. 
 392; Paul v. Bauirh. 8."> Va. 955. 
 
 557 Bump on Fraudulent Conveyances. 229; Taylor v. .Tones. 2 Atk. 
 600; Stronjx v. Slnuiir, IS Beav. 40S; Goldsmith v. Russell. 5 De Gex. 
 M. & G. 547; Belt v. liasuet, 27 Tex. 471; Newman v. Cordell, 43 
 Barb. 44S; Peck v. Carniichael. 9 Yerg. 325; Gamble v. Johnson. 9 
 Mo. 605; Swartz v. Hazlett, S Cal. 118; Wise v. Moore. 31 Ga. 148; 
 Lee V. Figg, 37 Cal. 328. 99 Am. Dec. 271: Hicks v. Stone. 13 Minn. 
 434; Clark v. Chamberlin. 13 Allen. 257; Lyons v. Leahy. 15 Or. 8, 
 3 Am. St. Rep. 133; note to Ilagerman v. Buchanan, 14 Am. St. Rep. 
 748.
 
 § HI PERSONAL PROPERTY SUBJECT TO EXECUTION. 632 
 
 able, may have been inadequate. The inadequacy of 
 the consideration does not necessarily avoid the trans- 
 fer. It is, however, a material fact, to be considered 
 by the jury as a badge of fraud; and may operate to 
 avoid the transfer when, either alone or in connection 
 with other facts, it produces the conviction that the 
 transfer was not made in good faith.®*"'* Though the 
 vendee had guilty knowledge of the fraudulent purpose 
 of the transfer, he may, in turn, transfer to another, 
 and this latter may hold the property, notwithstanding 
 the knowledge of his immediate vendor, if he himself 
 was innocent and purchased for a valuable considera- 
 tion.®^'* On the other hand, if the original vendee was 
 innocent, and therefore entitled to hold the property 
 against the vendor's creditors, he may transfer an in- 
 defeasible title to another, whether the latter had 
 guilty knowledge or not.®^** 
 
 § 141. Good Faith of the Holder of Property Trans- 
 ferred in Fraud. — The mere payment of a valuable and 
 sufficient consideration is by no means conclusive in 
 favor of the holder of property which has been fraudu- 
 lently transferred. On the contrary, if it be shown 
 that the holder did not acquire the property in good 
 faith, it is immaterial whether he paid full value or no 
 
 558Monoll V. Sfherrick. 54 111. 209; Kaine v. Weisloy, 22 Pa. St. 
 179; Trimble v. Ratcliff, 9 B. Mon. 511; Robinson v. Robards, 15 Mo. 
 459; Lee v. Hunter, 1 Paige, 519; Barrow v. Bailey. 5 Fla. 9: Sea- 
 mans V. White, 8 Ala. 656; Knykendall v. ISIcDonald. 15 Mo. 416. 
 57 Am. Dec. 212; Arnold v. Bell, 1 Hayw. (N. C.) 396; Bryant v 
 Kelton, 1 Tex. 415; Penhall v. Elwin, 1 Smale & G. 2.58. 
 
 B59 Zoeller v. Riley, 100 N. Y. 402, 53 Am. Rep. 157; Neal v. Greg- 
 ory, 19 Fla. 356; Scheble v. Jordan, 30 Kan. 353; Mansfield v. Dyer, 
 131 Mass. 200. 
 
 oco Evans v. Nealis, 69 Ind. 148; Stiidabaker v. Langard. 70 Ind. 
 320; Fulton v. Woodman, 59 Miss. 159; Allison v. Hagan, 12 Nev. 
 38.
 
 <33 PEllSONAL I'lLOrEUTV SUBJECT TO EXECUTION. § Ul 
 
 value. ^"*' That the transaotion was to liindor, delay, 
 or defraud creditors is suilieieut to annul it, unless tlie 
 person into whose hands the property has c-ome is guilt- 
 less of all complicity- in the fi'au(lul<-nt intent, and is 
 ignorant of its existence. The aciiuisition of the prop- 
 erty, though for full value, is not in good faith when 
 the purchaser participated in the grantor's fraudulent 
 intent, nor when, without participating in such inti'ut, 
 he had notice of its existence. The cases in which ac- 
 tual knowledge can be proved are not likely to be fre- 
 quent; for people engaged in the in'osecution of fraudu- 
 lent schemes seek to conceal all direct evidences of 
 their purposes and intentions, and true relations to the 
 business in hand. But notice may be inferred where 
 actual knowledge cannot be established. The pur- 
 chase will be regarded as mala fide where, at any time 
 prior to the payment of the purchase money,'"- the 
 purchaser had "knowledge of facts sufficient to excite 
 
 Bci W^orseley v. De Mattos. 1 Burr. 474; Bott v. Smith, 21 Boa v. 
 516; Ilarman v. Richards, 10 Hare, SI; Thompson v. "Webster, 4 
 Drew. 628; 7 Jur. N. S. 531; Lloyd v. Attwood. 3 De Gex & J. 655; 
 Fraser v. Thonii)son, 4 De Gex & .J. 650; Corlett v. Radeliffe. 14 
 Moore P. G. C. 121; Holmes v. Penney. 3 Kay & J. 90; Harrison 
 V. Kramer. 3 Clarke, 543; Wood v. Chambers. 20 Tex. 247. 70 Am. 
 Dec. 382; Stein v. Hermann. 23 Wis. 132: Pulliam v. Newberry, 41 
 Ala. 168; Harrison v. Jaquess. 20 Ind. 208; Sayre v. Fredorieks. 16 
 N. J. Eq. 205; Robinson v. Holt, 39 N. II. 557, 75 Am. Dec. 233; 
 Zerbe v. Miller, 16 Pa. St. 488; Pettus v. Smith, 4 Rich. Eq. 197; 
 Brown v. Force, 7 B. Mon. 357, 46 Am. Doc. 510; Boidlor v. Crane. 
 135 111. 92, 25 Am. St. Rep. 349; State v. Parsons, 147 lud. 570. 62 
 Am. St. Rep. 430; Lane v. Starkoy. 15 Neb. 2S5; ClialVoe v. Gill. 4:'. 
 La. Ann. 1054; Eiirenbrun v. Siiiiili, 98 N. C. 207; Rennlnijor v. Spatz, 
 128 Pa. St. 525, 15 Am. St. Rop. ()!>2; Fluo-iol v. Ilonscliol, 7 N. D. 76. 
 ■66 Am. St. Rep. 642. 
 
 5C2 Parkinson v. Ilanna. 7 Blackf. 400; Story v. Windsor. 2 Atk. 
 €30; Hardingham v. Nicholls, 3 Atk. 304; Yonns: v. Kellar. 04 Mo. 
 581. 4 Am. St. Rep. 405; Schloss v. Feltus, 90 Mich. 619; Price v. 
 McDonald, 1 Md. 403. 54 Am. Dec. 657,
 
 § 141 PERSONAL PROPERTY SUBJECT TO EXECUTION. Uot 
 
 the suspicions of a prudent man, and put liim on in- 
 quiry,^**^ or to lead a person of ordinary perception to 
 infer fraud." °"* It is sufiflcient to charge the purchaser 
 with notice, that by ordinary diligence he might have 
 known, or that he had reason to know or believe, what 
 was the intent of the transfer.^"^ The notice to the 
 vendee which renders his purchase mala fide must be 
 in regard to the intent to hinder, delay, or defraud. 
 His knowledge of the financial embarrassment or in- 
 solvency of the vendor is not sufficient; "'''*''' for every 
 man, regardless of his solvency, has the right to sell 
 and transfer his property at any time before it is made 
 subject to writs issued by his creditors. As has already 
 been intimated, the claim to protection as a bona fide 
 purchaser can only be supported by showing that a 
 conveyance of the title was received and payment made 
 in full prior to receiving notice of the equity against 
 which the claim is made. It is not sufficient that the 
 money was secured to be paid prior to receiving such 
 
 663 Green v. Tantum, 19 N. J. Eq. 105; 21 N. J. Eq. 3G4; Atwoo-T 
 V. Impson, 20 N. J. Eq. 150; .Tackson v. Mather. 7 Cow. .301 : INIills 
 V. noAveth, 19 Tex. 257, 70 Am. Dec. 331; Smith v. Henry, 2 Bail. 
 118. 
 
 664 WMght V. Brandis, 1 Ind. 336. 
 
 065 Humphries v. Freeman, 22 Tex. 45; Farmers' Bank v. Doug- 
 lass, 11 Smedes & M. 409; Foster v. Gi-igsby, 1 Bush, 86; Garahy 
 V. Bayley, 25 Tex. Sup. 294. But there are authorities which seem 
 to require that the vendee should participate in the intent, or his 
 I)urchase will be deemed in good faiili. Seavy v. Dearborn, 19 N. H. 
 351; Brown v. Foree, 7 B. Mon. 357, 46 Am. Dec. 519; Sterling v. 
 Pvipley, 3 Chand. 166. 
 
 606 Atwood V. Impson, 20 N. J. Eq. 150; Sisson v. Roath. 30 Conn. 
 15; Bunyard v. Seabrook, 1 Fost. & F. 321; Hughes v. Monty, 24 
 Iowa, 499; Loeschigk v. Bridge, 42 N. Y. 421; Meroliants' N. B. v. 
 Northrop, 22 N. .T. Eq. 58; Boals v. Guernsey, 8 .Tohns. 446: 5 Am. 
 Dee. 348; Lyon v. Rood, 12 Vt. 233; Albertoli v. Branham. 80 Cal. 
 621, 13 Am. St. Rep. 200; Toohler v. Cautonnet. 40 La. Ann. 327- 
 Contra, Reinheimer v. Hemingway, 35 Pa. St. 432.
 
 635 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 141 
 
 notice,'*"'' tlioiigh there seems to be a growing lendeiicy 
 to protect a purchaser pro tanto, who in good faith paid 
 a portion of the purchase money before receiving no- 
 tice.°«« 
 
 When a vendee or mortgagee of property wliich has 
 been conveyed or pledged to him by an insolvent debtor 
 seeks to retain it on the ground tiiat he is a purcliawer 
 in good faith and for valuable consideration, two ques- 
 tions necessarily arise for consideration: (1) Had he 
 made payment therefor; and (2) Was such payment 
 comjileted before he had actual knowledge of the 
 fraudulent purpose on the part of the vendor, or, at 
 least, before he had notice of facts which were, in con- 
 templation of law, equivalent to such actual knowl- 
 edge? The vendee or pledgee may have also been a 
 creditor, and the property may have been given or 
 pledged to him in satisfaction of, or as security for, 
 his debt, and, if so, the transfer will, to some extent, 
 operate to hinder and delay otlu^r creditors, but not in 
 any unlawful sense. The rule is unquestionably set- 
 tled that it is no objection to the validity of a convey- 
 ance by a debtor in failing circumstances to his credi- 
 tor that it operates to hinder and delay other creditors, 
 that it was mnde with an intent on the part of the 
 debtor that it should so operate, and that the creditor 
 
 067 Dnjran v. Vattier, 3 Blackf. 245. 2.'> Am. Deo. lO.'; Naiitz v. 
 McPherson. 7 T. B. :Mon. 597, 18 Am. Dec. 210; Callion v. McCaslin. 
 
 I Blackf. 91, 12 Am. Dec. 208; .Tewett v. Palmer. 7 .Tolins. Cli. fi.j, 
 
 II Am. Dec. 401: Jackson v. McCliesney. 7 Covr. .1f!0. 17 Am. Dec. 
 521; Union Canal Co. t. Youn?. 1 Whart. 410. ?,() Am. Dor. 21:i: 
 Blanchard v. Tyler. 12 Mirli. 330, 8G Am. Dec. 57; Lewis v. PJiillips, 
 17 Ind. 108. 79 Am. Dec. 457. 
 
 668 Fessler's Appeal, 75 Pa. St. 483; Kit(criil;.'e v. Chapman. .36 
 Iowa, 348; Hardin v. Harrington, 11 Bush. 307: Haughwout v. 
 Murphy, 21 N. J. Eq. 118; Digby v. Jones, G7 Mo. 104.
 
 § 141 PERSONAL rROrERTY SUBJECT TO EXECUTION. 636 
 
 receiving it was aware of that intent, provided he re- 
 ceived it with the honest purpose of securing his debt; 
 but, if he acted from a desire to aid the debtor in de- 
 feating other creditors, or in covering up his property, 
 or in giving him a secret interest therein, or in locking 
 it up in any way for the debtor's own use and benefit, 
 the conveyance will be held fraudulent and void.^**^ 
 
 The rule is generally expressed to be, that a creditor 
 may receive payment of an honest debt in property of 
 his insolvent debtor, although he may know at the 
 time that the debtor's intent in making the payment 
 is, and that the necessar}^ effect of his act will be, to 
 place the property beyond the reach of other credi- 
 tors.^"*^ This rule may be illustrated as follows: A 
 surety may buy property of his principal to protect 
 himself or his suretyship, although the purchase may 
 operate to hinder and delay creditors of the principal 
 of their demands, and, although the surety knew that 
 the debtor intended the sale to have that effect, pro- 
 vided he did not participate in the fraudulent purpose 
 of the debtor,^''^ A chattel mortgage is not invali- 
 dated by the mere fact that ^he creditor knows the 
 debtor to be in failing circumstances, and that the in- 
 tended effect of taking such security will be to delay 
 or defeat other creditors in the collection of their 
 debts.^'^ In this case it was said : "When two or more 
 
 569 Holmes V. Braitlwood. 82 Mo. 610; Shelly v. Boothe. 7.3 Mo. 74, 
 39 Am. Rep. 4Sl; Brown v. Force, 7 B. Mon. 3~u, 46 Am. Dec. 519; 
 Brown v. Smith, 7 B. Mon. 361; Antlerson v. "Warner, 5 111. App. 
 4l6. 
 
 570 Lewy v. Fischel, Go Tex. 311; Owens v. Clark, 7S Tex. 547; 
 Knower v. Central Nat. Bank, 124 N. Y. 522. 21 Am. St. Rep. 700: 
 Worland v. Kimberlin, 6 B. Mon. 008. 44 Am. Dec. 78-"); Schroeder 
 V. Mason, 25 Mo. App. 190; Ross v, Sedgwick, 69 Cal. 247. 
 
 571 Albert v. Besel, 88 Mo. 1.50. 
 
 572 Olmstead v. Mattison, 45 Mich. 617; Chase v. Wallers. 28 la. 
 460-469.
 
 637 PERSONAL PROPERTY SUIiJEL'T TO EXECUTION. § 141 
 
 bona fide creditors arc cng-a<;ed in a race for priority, 
 the one securing it cannot have his riglit defeated and 
 be postponed to a more tardy or less fortunate one by 
 showing the fraudulent motive, and knowledge of it 
 by the creditor, which prompted the debtor to give 
 such priority. Fraud, in its legal sense, cannot, with- 
 out more, be predicated upon such a transaction." A 
 sale and conveyance of goods by a husband to his wife 
 will not be held fraudulent as to his creditors, although 
 accompanied by many badges of fraud and circum- 
 stances of suspicion and bad faith on his part, when the 
 evidence fails to implicate his wife, or to charge her 
 with notice of the husband's fraudulent intent. If a 
 creditor purchases property from his debtor, who is 
 insolvent, and who the creditor knows is attempting to 
 dispose of his property to defraud his creditors, the 
 purchasing creditor must act in good faith, and pay or 
 allow his debtor adequate prices or fair value for the 
 property purchased.^'^ But the purchasing creditor 
 cannot go beyond the permissible purpose of securing 
 his own debt. In effecting this purpose he must not un- 
 necessarily hinder or delay other creditors, nor impair 
 their rights, by placing it in the power of th? debtor to 
 effectually screen from execution a part of the proceeds 
 of the sale, when he has knowledge of facts sufiticient 
 to create a reasonable belief of such intention on the 
 part of the debtor; and when his purchase is made 
 partly in money and partly in an antecedent debt, the 
 same rule is applicable as to third persons purchasing 
 for a new consideration, and the payment of the past 
 debt is only a circumstance to be considered in deter- 
 mining the good faith of the vendee in the transac- 
 
 678 Lewis V. Hughs, 49 Kan. 23.
 
 § 141 PERSONAL PROPERTY SUBJECT TO EXECUTION. 638 
 
 tion.^'* When a creditor purchases a stock cf goods 
 of a failing debtor, and, in addition to the settlement of 
 the claim due to him from the debtor, pays the latter a 
 part of the purchase price of the goods in money, with 
 full knowledge of his insolvency, and also of his intent 
 to hinder and delay his other creditors from collect- 
 ing claims due them from such debtor, the sale is 
 void.^''" If, in such case, the creditor has no actual 
 knowledge of the fraud, or the fraudulent design of his 
 debtor, but the surrounding circumstances are such as 
 would put a prudent man on inquiry, which, if prose- 
 cuted diligently, would disclose the fraud, he cannot be 
 deemed a bona fide purchaser for value. ^'^^^ 
 
 With respect to the second question the decisions 
 are not in harmony. Some of them require that the 
 vendee should have had at the time of the transfer to 
 him actual notice of the fraudulent purpose of his 
 vendor, others that he should have had, at least, a be- 
 lief that the purpose was fraudulent, but the great 
 majority apply the rules usually applicable to the 
 question of notice, which is, that every person is 
 chargeable not only with the facts of which he has 
 knowledge, but also with notice of such other facts as 
 would have been disclosed to him had he acted in a 
 prudent and reasonable manner. "If he has knowl- 
 edge of such facts as would lead any honest man using 
 ordinary caution to make further inquiries, and does 
 not make, but on the contrary avoids making such ob- 
 vious inquiries, he must be taken to have notice of 
 these facts, which, if he had used such ordinary dili- 
 
 874 Levy V. Williams, 79 Ala. 171; Meyberg v. Jacobs, 40 Mo. App. 
 128; Black v. Vaughan, 70 Tex. 47. 
 
 675 Davis V. McCarthy, 40 Kan. 18; Herman v. McKinney, 47 Fed. 
 Rep. 7r)8. 
 
 576 McDonald v. Gaunt, 30 Kan. 693.
 
 ii-.iO rKRSONAL PROPERTY SUBJECT TO EXECUTION. § 141 
 
 gencQ, he would readily have ascertained."' '''' "Wliat- 
 ever will put a purchaser upon inquiry and lead to 
 knowledge is notice, lie is bound to make in(iuiries 
 where there is anything that would lead a prudent 
 man to make it, and he is therefore presumed to have 
 known all that inquiry would have revealed to 
 him." '^^^ 
 
 In determining whether or not the vendee had knowl- 
 edge of the fraudulent intent of the vendor, the jury 
 should take into consideration the acts and declara- 
 tions of the respective parties, and all circumstances 
 preceding or attending the sale or conveyance, and if 
 the knowledge of the purchaser is sufficient to put him 
 on inquiry, then the jury has the right to infer guilty 
 knowledge on his part of the fraudulent character of 
 the transaction."''** "In cases of this nature, two 
 facts are to be shown in order to establish the defense: 
 1. Fraud on the part of the vendor of the property in 
 making the sale; and 2. Knowledge of such fraud on 
 the part of the purchaser or vendee at the time of pur- 
 chasing, or knowledge of such other facts and circum- 
 stances by the vendee as ought to have put him upon 
 inquiry, and would have led to an ascertainment of the 
 trutli. or as will afford reasonable ground for the infer- 
 ence that he purposely or negligently omitted to make 
 those inquiries which an ordinarily cautious and pru- 
 
 B77 Converse v. Blnmrich. 14 IMich. 109, 90 Am. Dec. 2.30. 
 
 6T8 Gibson v. Winslow, 46 Pa. St, 380, 84 Am. Dec. 552; Litch- 
 field's Appeal. 28 Conn. 127, 73 Am. Dec. 6G2; Lumbard v. Abbey, 
 73 111. 178; IMoiTison v. Kelly, 22 111. 010, 74 Am. Dec. 109; Cliicairo 
 R. R. Co. V. Kennedy, 70 111. 3G2; Codfroy v. Miller. SO Cal. 320; 
 Gollober v. Martin, 33 Kan. 252; Kellogg v. Aherin, 48 la. 299; At- 
 wood V. Impson, 20 N. .T. Eq. 151; David v. Bircbard, 53 Wis. 402; 
 Biddinger v. Wiland, G7 Md. 359; Holcombe v. Ebrmanntraut, 4C. 
 Minn. 397; Hooser v. Hnnt. 65 Wis. 71. 
 
 B7» Greenwell v. Nash, 13 Nev. 287.
 
 § 141 PERSONAL PROPERTY SUBJECT TO EXECUTION. 64a 
 
 dent man in the same situation would have made. 
 Knowledge by the vendee of the fraudulent intent, or 
 the existence within his knowledge of other facts and 
 circumstances naturally and justly calculated to 
 awaken sjispicion of it in the mind of a man of ordin- 
 ary care and prudence, thus making it his duty to pause 
 and inquire, an(^ a wrong on his part not to do so, be- 
 fore consummating the purchase, is essential in order to- 
 charge the vendee in every such case with a knowl- 
 edge of the facts so calculated to arouse suspicion that 
 the vended cannot shut his eyes, but must look about 
 him and inquire." ^**** "It is not, however, necessary 
 in order to ascertain fraud, that direct, affirmative, or 
 positive proof of fraud shall be produced. Concern- 
 ing the actions of men, and especially when prompted 
 by the secret, unexpressed, hidden motives of the 
 actors, demonstration certainly is not attainable, nor is- 
 it required. As is the case with resix'ct to knowledge 
 on other matters, fraud may be inferred from the facts; 
 that are established. It is enough if facts be estab- 
 lished from which it would be impossible for the mind 
 fairly and reasonably to conclude anything other than 
 that there must have been fraud in the transac- 
 tion." ^**** ^ "A person who deals in the avails of a 
 scheme to defraud creditors, to keep what he gets, must 
 not only pay for it, but he must be innocent of any pur- 
 pose to further the fraud, even to protect himself. 
 Actual notice need not be shown. If the purchaser 
 has before him, at the time of his purchase, facts and 
 circumstances from which a fraudulent intent, either 
 past or present, on the part of the vendor, is a natural 
 and legal inference, or such facts or circumstances of: 
 
 5*-o Hopkins v. Lanston, .30 Wis. :Md-?,Sl. 
 B30a Hickman v. Trout, 83 Ya. 478-490.
 
 641 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 141 
 
 suspicion as would naturally prompt a prudent mind 
 to further inquiry and examination, which, if pursued, 
 would lead necessarily to a discovery of the corrupt- 
 ing facts, he is chargeable with notice. A person who 
 willfully closes his eyes to avoid seeing what he be- 
 lieves he would see if he kept them open, must be con- 
 sidered to have seen what any man with his eyes open 
 would have seen." ^^^ 
 
 "It is contended that, to render a sale of goods void 
 as to creditors and vendors, it must appear from the 
 evidence, not only that the intent to defraud his cred- 
 itors by such sale existed in the mind of the vendor, 
 but, also, that such intent was known to the vendee, 
 and participated in by him; that the court below erred 
 in refusing to instruct as asked; and that the instruc- 
 tion given was erroneous. But this is not true. To 
 avoid a sale, actual notice to the purchaser of the 
 fraudulent intent of the vendor is not necessary. If 
 the facts and circumstances within his knowledge are 
 sufficient to put a man of common sagacity upon in- 
 quiry, and, with the use of reasonable diligence, to lead 
 him to the discovery of the fraudulent purpose of the 
 vendor, and he neglects to make the inquiry, he will 
 be charged with notice of the fraudulent intent. Xo 
 purchaser put upon inquiry has a right to remain will- 
 fully ignorant of facts within his reach. It is not suffi- 
 cient for his protection to show that he is a purchaser 
 for value; he must also be an innocent purchaser. By 
 aiding a debtor to convert his property into money or 
 promissory notes, w^hich can be easily concealed from 
 his creditors, and placed beyond his reach, witli no- 
 tice, actual or constructive, that he is doing so to dc- 
 
 681 DeWitt V. Van Sickle, 29 N. J. Eq. 209-215. 
 Vol. I —11
 
 §141 PERSONAL PROPERTY SUBJECT TO EXECUTION. 642 
 
 fraud his creditors, he participates in the fraud of the 
 debtor by assisting him in carrying out his fraudu- 
 lent purpose." ^^^ When a mortgage is made with 
 intent to defraud creditors, and the circumstances are 
 such as should awaken the suspicion of the mortgagee, 
 and put him upon inquiry as to the intent with which 
 the mortgage is made, he is chargeable with notice of 
 that intent.^**^ As against this vast array of author- 
 ity, cases from two states only are found which 
 squarely maintain the opposite doctrine. One of these 
 states is Missouri,^^* in which state the doctrine an- 
 nounced in that case may now be said to be fairly es- 
 tablished, that, in order to avoid a conveyance or trans- 
 fer of property as fraudulent against the creditors of 
 the vendor, the vendee must have actual knowledge 
 of the debtor's fraudulent intent, and must participate 
 therein, and that constructive notice, or a knowledge 
 of facts which would put a prudent man on inquiry 
 and lead to a discovery of the fraud, is not suflacient 
 to charge him with notice thereof. In a prior Missouri 
 case,°**^ the court held that when a vendee has paid a 
 valuable consideration, and it is sought to avoid the 
 sale, because he has notice or knowledge of a fraudu- 
 lent intent on the part of his vendor, such notice is not 
 imputed to him from his knowledge of facts sufiftcient to 
 put a prudent person on inquiry, unless the jury is sat- 
 isfied from such knowledge that he had actual notice of 
 the fraudulent intent. The courts of New York main- 
 tain the same doctrine, namely, that, to render a sale for 
 a valuable consideration invalid as to creditors of the 
 vendor, the purchaser must have actual knowledge or 
 
 682 Dyer v. Taylor, 50 Ark. 314-320. 
 
 683 Moore v. Williamson, 44 N. J. Eq. 49G. 
 
 684 state V. Mason, 112 Mo. 374, 34 Am. St. Rep. .300. 
 
 685 Van Raalte v. Harrington, 101 Mo. 603, 20 Am. St. Rep. 626,
 
 €43 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 141 
 
 belief that the sale is being made to kinder or defraud 
 such creditors; that no duty of active vigilance is cast 
 upon the purchaser which requires him to susjicct or 
 investigate the motives of the seller, and fraud can- 
 not be imputed to him from constructive notice; and 
 that, in charging the vendee with actual knowledge 
 or notice of the fraudulent intent of the vendor, it may 
 be inferred from the circumstances, but his mere neg- 
 ligence or want of diligence in not inquiring into facts, 
 known to liim and calculated to put him on inquiry, is 
 not sufficient to charge him with notice of the fraud. 
 Hence, the question to be submitted to the jury is, 
 whether or not the vendee did in fact know or believe 
 that the vendor intended to defraud his creditors, and 
 not whether or not he was negligent in failing to dis- 
 cover the fraudulent intent.^^^ The doctrine of these 
 cases has met with severe condemnation in many in- 
 stances, and the court, in Hooser v. Hunt, 65 Wis. TI- 
 TO, expressly refused to follow them or approve the doc- 
 trine announced. On the other hand, however, the doc- 
 trine that when the title of the vendee is attacked, on 
 the ground of an intent on the part of the vendor to 
 defraud his creditors by the sale or conveyance, it is 
 necessary to avoid the transfer to show that the vendee 
 had actual knowledge 'or belief that the vendor had 
 such intent, and that, although this belief may be in- 
 ferred from the circumstances, it is not enough that 
 the vendee had reason for the belief, if he did not in 
 fact have it, and it is shown by the proof to have ex- 
 isted, has been adopted in Knower v. Cadden etc. Co., 
 5T Conn. 202, and in Seavy v. Dearborn, 10 X. H. 351. 
 Under the rule established by the great weight of au- 
 
 688 Stearns v. Gasre, 79 N. Y. 102; Parker v. Conner, 98 N. Y. U.S. 
 45 Am. Rep. 178; Bush v. Roberts, 111 N. Y. 27S, 7 Am. St. Rep. 741.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 044 
 
 tliority, uamely, that when the buyer has knowledge 
 of facts and circumstances such as would put an or- 
 dinarily prudent man on inquiry, and which, by the 
 exercise of reasonable diligence on his part, would lead 
 to knowledge of the fraudulent intent of the vendor 
 in making the sale, then such sale is fraudulent and 
 void as to creditors of the vendor, the vendee must be 
 in possession of facts suflQcient to put him on inquiry, 
 and need not heed mere suspicion of the vendor's in- 
 tent, not founded on any known facts, for a mere sus- 
 picion on the part of the purchaser that the grantor 
 intends to defraud creditors by the sale is not suffi- 
 cient to put the purchaser on inquiry or vitiate the 
 sale.°«^ 
 
 § 142. Voluntary Conveyances. — Transfers which are 
 regarded as fraudulent per se, or prima facie, will be 
 considered in the following order: 1. Absolute convey- 
 ances; 2. Mortgages and trust deeds, purporting to be 
 made to secure existing indebtedness; 3. Assignments 
 for the benefit of creditors. Of conveyances, we shall 
 first treat of those wliioh are voluntary. A voluntary 
 conveyance has been described as one made without 
 any consideration Avhatever.^**** The fact that a trans- 
 fer was made upon an inadequate consideration, is 
 doubtless one which may, and ought* to be, consid- 
 ered by a court or jury, in determining whether or not 
 the transfer was made with intent to defraud the cred- 
 itors of the grantor, and if, in connection with other 
 
 5S7 Tntenr v. Chase, GG Miss. 47G, 14 Am. St. Rep. .577; Dodd v. 
 Gaines, S2 Tex. 429; Mercliants' Nat. Bank v. Northrup, 22 N. .7. 
 Eq. 58. 
 
 588 Jackson v. Peck, 4 Wend. 300; Shontz v. Brown, 27 Pa. St. 
 123; Seward v. Jackson, 8 Cow. 406.
 
 645 PERSONAL rKOl'EUTV .SUBJECT TO EXIX'L'TION. S 142 
 
 oircumslancos, it satisfies tbeni of such fraudulent in- 
 tent, the transfer should be disregarded. ■'''^'•* 
 
 The expression frequently to be found in the opin- 
 ions of the courts and elsewhere, that a voluntary con- 
 veyance is one entirely without consideration, is, in 
 our judgment, inaccurate and misleading. It cannot 
 be that a nominal consideration, one which neither the 
 grantee nor the grantor could have regarded as other 
 than grossly disproportionate to the value of the 
 [)r()perty, is sufficient to give the transfer the same im- 
 munity from the attacks of creditors as one which is 
 a fair equivalent for the property transferred. The con- 
 sideration must be substantial, and, though it is more 
 than nominal, it may well be so inadecjuate as to con- 
 vince any reasonable, unprejudiced person that the 
 transfer was voluntary, either in whole or in part. 
 Speaking of such a transfer, the court of appeals of 
 Maryland very justly said: "But it has been strongly 
 urged in argument that this fact was an immaterial 
 circumstance, and that the deed, if it rests upon a 
 moneyed consideration, must be supported, even 
 though that consideration bears no adequate relation 
 to the real value of the property. This proposition, 
 as a universal rule, is not correct, so far, at least, as 
 third persons are concerned. It is true that it gives 
 to the deed, in contemplation of law, the character of 
 a bargain and sale, and subjects it to all the rules of 
 interpretation, and the like which govern such instru- 
 ments. Nevertheless, a deed, valid in all respects as 
 between the parties, may be assailed in chancery by 
 creditors, solely upon the ground of inadequacy of con- 
 sideration; as, for instance, where land is sold and 
 <:'onveyed at private sale, as this was, and a cousidera- 
 
 B89 Wasbbnnd v. Washband, 27 Conn. 424.
 
 § 142 PERSONAL PPwOPERTY SUBJECT TO EXECUTION. 64G 
 
 tion in money is received therefor, palpably less than 
 its real value or what it would bring at a public sale 
 in the market. In such circumstances a court of equity 
 will regard the transaction as evidence, either of fraud 
 or a design on the part of the grantor to make a gift 
 to the grantee of the difference between the price paid, 
 and the actual value of the property; and, if the latter, 
 the deed, to the extent of the difference, will be re- 
 garded as voluntary, or resting upon the consideration 
 of natural love and affection. If this were not so, fraud 
 could be perpetrated upon creditors with impunity, by 
 converting the deeds, based in fact upon the considera- 
 tion of love and affection, into those based upon a 
 moneyed consideration, by merely agreeing to receive 
 a trivial price in money for the property sold." ^^** 
 
 There are circumstances in which transfers will not 
 be adjudged voluntary, though the consideration can 
 hardly be considered of any value, as where a transfer 
 is in payment of an obligation, which could not have 
 been enforced, and which the grantor might have omit- 
 ted to discharge, had he thought proper. We think it 
 is a mistaken view of the proper relation of a debtor 
 to his creditors to leave him at liberty, as self-inter- 
 est or caprice may suggest, to withdraw his property 
 from his creditors, having enforceable claims, and to de^ 
 vote it to the discharge of claims which are supported 
 merel}' by a moral obligation, and which would proba- 
 bly never have been discharged had not approach- 
 ing insolvency warned the debtor that he could not 
 hope to keep the property as his own. These moral 
 obligations constitute a perpetual menace to creditors 
 having claims enforceable by action, while they con- 
 fer no rights upon their holders, except such as the 
 
 BOO Worthington v. Bullitt. 6 M<1. 198.
 
 C47 PERSONAL PROPERTY SUBJECT TO EXECUTION. § U2 
 
 caprice or self-interest of the debtor may from time 
 to time concede. He can, of course, make any tei^ms, 
 or come to any understanding be chooses with the 
 holders of them. As these holders have no means of 
 coercing payment, they will grant him any concession 
 he may suggest. Lie may go on and do business and 
 obtain credit, because his assets are far in excess of 
 the liabilities which can be enforced against him, and, 
 having made purchases on credit, he may turn the j>ro- 
 ceeds of the purchases over to the payment of claims, 
 from which he had long been practically released, 
 through the operation of the statute of limitations, or 
 of a discharge in bankruptcy or insiolvency proceed- 
 ings. The theory of the adjudications upon this sub- 
 ject is that, notwithstanding the operation of the stat- 
 ute, or of the discharge, the debt yet remains, and 
 that the debtor has merely obtained the privilege of 
 pleading the statute or discharge, as he may deem 
 proper; that this is a privilege which his creditors have 
 no right and no power to compel him to exercise; and 
 that he may, therefore, pay the debt, either in money 
 or by a transfer of the whole or any part of his prop- 
 erty; and, unless the transaction is otherwise objec- 
 tionable, they have no cause of complaint.'*''*^ 
 
 So if the transfer is made to discharge an obligation, 
 which the debtor might have escaped by pleading the 
 statute of fraudt"!, it must be deemed supported by a 
 valuable consideration. ''The casc^ seem to establish 
 the rule that a conveyance or security, given for a debt 
 or in fulfillment of a contract, which could have been 
 
 B81 Wilson V. I^nssoll, IH Mrl. 404. 17 Am. Dor. CATi: Koon v. Kleck- 
 ner. 42 Pa. St. .'29: TJpdike v. Titus. 1.? X. .T. Eq. l."l: Shonron v. 
 Hendersort. ."^S Tex. 24.': Fronrh v. Motley, G3 Me. 32G; Biookville 
 Nat Bank v. Tnimble, 7G Ind. 195.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 648 
 
 recovered or enforced in au action, were it not for some 
 legal maxim or statutory provision which prevents 
 such recovery by reason of the contract not being in 
 the form prescribed by statute, is not a voluntary con- 
 versance or security, and, therefore, fraudulent and 
 void as to creditors, if the evidence shows that there 
 was a sufficient consideration for tlie debt or promise 
 to support the same, were it not for the statutory' re- 
 quirements/' ^''*' 
 
 It is, perhaps, not correct to say that a mere obli- 
 gation is a sufficiently valuable consideration to sup- 
 port a transfer, and to relieve it from the imputation of 
 being voluntary. The obligation must be one which is 
 legal and enforceable, but for some statutory defense, 
 which the debtor may elect to waive, as where, to avoid 
 liability, he must plead or otherwise urge the statute 
 of frauds or of limitations, or a discharge under a stat- 
 ute relating to bankrupts or insolvents. Therefore, if 
 a debtor has been released by a composition agree- 
 ment, entered intp between him and his creditors, 
 though the moral obligation to pay them is not less ob- 
 vious than if such release resulted from proceeding in 
 bankruptcy or insolvency, a conveyance of which a 
 debt, thus released by his creditors, is the sole consid- 
 eration, is voluntary.^^" A husband or father may 
 promise to give to his wife or child moneys or j^roperty 
 in payment of services performed, or to be performed, 
 to which the promisor is entitled without making any 
 payment or compensation therefor. In such circum- 
 
 592 First Nat. Bank v. Bertsoh. .^2 Wis. 4.SS: Goff v. Rogers, 71 
 Tnfl. 4.59; Lefferson t. Dallas. 20 Oh. St. OS; Ci-osswoll v. MfCai?. 
 11 Neb. 222; Livermore v. Northrup, 44 N. Y. 107: Stowell v. ITaz- 
 lett, 57 N. Y. 637. 
 
 R93 King V. Moore, 18 Pick. 376; Nightingale v. Harris, 6 R. I. 
 321.
 
 049 I'KUSOXAL TROPERTY SUBJECT TO EXECUTION. § 142 
 
 ♦stances, whatever lie does, thuu^;!! in rullilhucnt of his 
 promise, must, as against his creditors, be deemed 
 j)urely voluntary.'^**'* 
 
 A consideration, valuable in the eyes of the law, does 
 not necessarily consist of mone}' or property, and there 
 is at least one consideration, which, though not con- 
 sisting of money or property, and, whih* in many in- 
 stances of great value, doubtless sometimes eiiabh-s 
 the grantor to ivserve a substantial benefit for liimsi'lf 
 at the expense of his grantors. AVe refer to the consid- 
 eration of marriage. Marriage has always been re- 
 garded as a valuable consideration. Therefore, a con- 
 veyance made by one person to another, in considera- 
 tion that the latter will marry him, is supported by an 
 adequate consideration, and, unless fraudulent, can- 
 not be a\ioided by the creditors of the grantor. A\'hat- 
 ever obligations either of the parties have entered into, 
 by an antenuptial marriage settlement, have the same 
 rank and dignity as if their consideration consisted of 
 money or other property. Hence, nothing that either 
 does, either before or after the marriage, in fulfillment 
 or satisfaction of this obligation, is voluntary, in the 
 judgment of the law. ''Marriage, in contemplation of 
 the law, is not only a valuable consideration to sup- 
 port such a settlement, but is a consideration of the 
 highest value, and from motives of the soundest pol- 
 icy is uj)held with a steady resolution. The husband 
 and wife, parties to such contract, are, therefore, 
 dt^emed, in the highest sense, purchasers for a valua- 
 ble consideration; and so that it is bona fide, and with- 
 
 504Haniday v. :MilIor. 29 W. Va. 424. C> Am. Sr. Rpp. G53; Steiu- 
 t)ach V. Anderson, 40 Kan. 541. 20 Am. St. Ri'p. 121.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 650 
 
 out notice of fraud brought home to both sides, ir be- 
 comes unimpeachable by creditors." ^^^ 
 
 The fact that an intended husband makes a marriage 
 settlement, while at the time financially embarrassed^ 
 and that it embraces the greater portion of his estate, 
 certainly does not render it voluntary, nor does it nec- 
 essarily impress upon such a settlement the stigma of 
 actual fraud. If, however, the wife knew of her in- 
 tended husband's financial difficulties, the court or 
 jury would doubtless be left to determine, from all the 
 attendant circumstances, whether the settlement was 
 fraudulent or not.^^ 
 
 It is not essential that the marriage be consummated 
 to entitle an intended w^ife to the benefit of a marriage 
 settlement, or to projierty conveyed to her in consid- 
 eration of her promise of marriage. The consideration 
 of the conveyance may consist of the promise of one 
 party to marry the other, and when this is the case, 
 the consideration is not incapacitated from sustain- 
 ing the conveyance by the fact that the death of one 
 of the pai-ties, or some other super^^ening cause, pre- 
 vents the fulfillment of the promise.^^'' 
 
 The consideration of marriage is not necessarily con- 
 fined to the parties to the contract of marriage. A 
 
 595 Magniae v. Thompson. 7 Pet. 393; Eppes t. Randolph, 2 Call. 
 103; Bunnell v. WithroTr. 29 Ind. 123; Barrow v. Barrow, 2 Dick. 
 r.04; Pierce v. Harrinsrton, ^8 Vt. 649; Frnnk's Appeal, .o9 Pa. St. 
 190; Spears v. Shroi)sbire, 11 La. Ann. 5.59. 60 Am. Dec. 206; Sat- 
 terthwaite v. Emley, 4 N. .T. Eq. 489. 43 Am. Dec. 618; note to 
 Merritt v. Scott, 50 Am. Dec. 372; Micliael v. Morey. 29 Md. 2.39. m 
 Am. Dec. 106; .Tenkins v. Clement, 1 LTarp. Eq. 72. 14 Am. Doc. 
 698; Prewitt v. Wilson. 103 U. S. 22; Gibson v. Bennett. 79 :Me. 302.. 
 
 596 Herring v. Wickham. 29 Gratt. 628, 26 Am. Rep. 40; .Tones" 
 Appeal, 62 Pn. St. 324; Campion v. Cotton, 17 Ves. 264; Eraser v. 
 Thompson, 4 De Gex & .T. 659. 
 
 5»7 Smith V. Allen, 5 xillen, 454, 81 Am. Dec. 758; Connor v. 
 Stanley, 65 Cal. 183.
 
 esi PERSONAL PROPERTY SUBJECT TO EXECUTION. § 1-12 
 
 parent may settle property on his child in view of licr 
 marriage, and the settlement will be presumed to have 
 been in contemplation of a marriage which follows 
 soon afterward.^"** Even if the gift is made years be- 
 fore marriage, and during the infancy of a daughter, 
 and when no particular marriage could have been in 
 contemplation, and she subsequently marries, such con- 
 veyance, from the date of such marriage, ceases to be 
 voluntary, and is not subject to successful attacks by 
 creditors or purchasers, whose rights have their in- 
 ception after the marriage,*^**^ and it is even doubt- 
 ful whether the conveyance is open to attack by those 
 who were creditors of the grantor immediately pre- 
 ceding the marriage.^^** 
 
 If a marriage settlement is made after, in pursuance 
 of articles entered into or letters written before, a 
 marriage, it is not voluntary, and can withstand the 
 attack of creditors;^"*** but a settlement made after 
 marriage, not supported by any valid agreement, pre- 
 viously entered into, is voluntary, and subject to the 
 same infirmity as any other voluntary transfer or 
 agreement.""* 
 
 A consideration which will relieve a deed from the 
 charge of being voluntary must be legal. It cannot 
 consist of a contract forbidden by law or public pol- 
 iQjfioz ijpnce, a transfer to a mistress in considera- 
 tion either of past or future intercourse, is volun- 
 tary.«"^ 
 
 B98 Hopkirk v. Randolph, 2 Brock. 132. 
 B89 Wells V. Cole. 5 Graft. 64.''). 
 
 600 Huston's Adm. v. Cantrill, 11 Leii;b. 13G; Foncs v. Roca, 9 
 Gratt. fiC58. 
 «ooa Kinnard v. Daniel. 13 B. :Mon. 400. 
 «oi Oucon V. Sampson. 4 Fost. & F. 974. 
 
 eo2Wopks V. Hill. .38 N. H. 100: .lose v. Ilowott. .^)n :\ro. 249. 
 803 Walt V. Day, 4 Denio, 439; Potter v. Garcia, 58 Ala. 303. 29
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. C52 
 
 Though no moneyed or property consideration for a 
 transfer exists, it is not voluntary if made in pursu- 
 ance of a duty, resting on the grantor. Thus, if he is 
 a mere trustee, having no beneficial interest in the 
 property, his conveyance to his cestui que trust is not 
 voluntary.""^ Whatever the grantor can be compelled 
 to do, he may do, without any other compulsion than 
 such as results from the knowledge on his part of the 
 existence of the duty, and of the power of the one to 
 whom he owes it to resort to the proper tribunals to 
 <'nforce its performance. Therefore, if one who holds 
 lands or other property is a mere trustee of the legal 
 title, or if he has entered into some agreement, the 
 ])('rformance of which can be specifically enforced, he 
 need not wait until suit has been brought against him 
 before he conveys to the cestui que trust, or to the per- 
 son otherwise entitled to a conveyance; and if he con- 
 veys without compulsion, his creditors are not injured, 
 and have no ground upon which to avoid the convey- 
 ance,^"^ unless the grantee has by some act or omis- 
 sion estopped himself from insisting upon his rights 
 as against the creditors of the grantor.*'***^ 
 
 There are cases where parties are entitled to speci- 
 fic performance of gifts, made or agreed to be made to 
 them, or at least to have executed the muniments of 
 title, constituting the final evidence of sach gifts. 
 When such a case has arisen, any conveyance or other 
 
 Am. Rop. 748; Sherman v. Barrett, 1 McMull. 47; Ilargroves v. 
 Meray, 2 Hill Ch. 222. 
 
 C04 Seoflors v. Alien. 98 111. 468. 
 
 COS Forbush v. Williams, 16 Tick. 42; McConnell v. Martin, 52 
 Ind. 434; Bancroft v. Curtis, 108 Mass. 47; .Taclvson v. Ham, 15 
 .Tohns. 261; Gudjrol v. Kitterman, 108 111. 50; Caffal v. Hale, 49 la, 
 5.3; Norton v. Mallory, 63 N. Y. 434; Syracuse C. V. Co. v. Wing, 
 85 la. 44. 
 
 606 City Nat. Bank v. Hamiltx)n, 34 N. J. Vai 158.
 
 653 TEKSONAL PROPERTY SUBJECT TO EXECUTION. g 142 
 
 evidence of the triinsniissiun of title wliicL tlie ti.jiior 
 executes is not voluntary. Thus, if a gift is made of 
 lands, and the donee enters into possession, makes val- 
 uable improvements, and does such acts as entitle him 
 to the specific performance of the gift, the donor may 
 then make the conveyance re(iuisite to vest the donee 
 with title, and those who were not creditors of the 
 donor when the gift was originally made, and posses- 
 sion taken, cannot complain."'"" If, however, the gift 
 rests in mere promise or an intent to give, not so fully 
 executed that the donee can compel its consumma- 
 tion, then any instrument executed or act done to com- 
 plete the gift is voluntary', and can be assailed as suc- 
 cessfully as if the intent to give had not previously ex- 
 isted.«"'* 
 
 A transfer may be made by one person to another, 
 without any consideration, to accomplish some tem- 
 porary and perhaps unlawful purpose, and with the 
 understanding, expressed or implied, that the grantee 
 will, at some future time, when the purpocfe has been 
 effected, reconvey to the grantor; and then the ques- 
 tion may arise whether, if the g^'antor does so recon- 
 vey, his conveyance is voluntary, and subject to at- 
 tack as such. In an early case in New York, wherein 
 it appeared that a transfer had been made for the pur- 
 pose of qualifying the donee as a voter, it was held 
 that his creditors had no right to object to a retrans- 
 fer, where he had never taken possession of the prop- 
 erty, nor acquired any credit based upon his supposed 
 
 607 Dozier v. Watson. 94 Mo. S28, 4 Am. St. Rep. ."SS; Vnn Bibber 
 V. Mather, 52 Tex. 406; Kinealy v. Macklin. S9 Mo. 433; Dougherty 
 V. Harsel. 01 Mo. 161. 
 
 608 Rueker v. Abell, 8 B. Mon. 566. 48 Am. Pec. 406: Davis v. Mc- 
 Kinney. 5 Ala. 710; Hubbard v. Allen, 59 Ala. 273; Worthlugton v. 
 Bullitt, C Md. 172.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 654 
 
 ownership of it.**^^ The better rule, however, in our 
 judgment, is, that if the transfer is good between the 
 parties, as, for example, where the transfer is made 
 for the purpose of defrauding creditors, so that the 
 grantor has no power to compel a reconveyance, then, 
 ii the grantee does reconvey, his act is voluntary, and 
 may be assailed as such by his creditors.^^^ This ques- 
 tion has, however, been recently re-examined by the 
 supreme court of Texas, and a conclusion announced 
 not in harmony with the authorities last cited. Real 
 estate was conveyed without consideration, and for the 
 purpose of concealing the property from the creditors 
 of the grantor, and thereby hindering them in the col- 
 lection of their debt. The fraudulent grantee subse- 
 quently, in compliance with a verbal agreement so to 
 do, made a reconveyance of the property to his fraudu- 
 lent grantor. This reconveyance was assailed by the 
 creditors of such fraudulent grantee, on the ground 
 that, as he could not be compelled to make the con- 
 veyance, it must be regarded as voluntary, and, there- 
 fore, a fraud upon his creditors. The court stated its 
 conclusion as follows: "We conclude that the correct 
 rule, and that which is supported by authority and 
 sound reasoning is, that when the fraudulent grantee 
 has, in compliance with his verbal agreement, made 
 a reconveyance of the property to the fraudulent 
 grantor, the moral obligation under which he placed 
 himself to make this reconveyance is a valuable and 
 
 609 Jackson v. Ham, 15 Johns. 261. 
 
 610 Susong V. Williams, 1 Heisk. 625; Chapin v. Pease, 10 Conn. 
 69, 25 Am. Dec. 56; Allison v. Hagan, 12 Nev. 38; Maher v. Borard, 
 14 Nev. 324.
 
 65J PERSONAL TROPERTY SUBJECT TO EXECUTION. § \i-2 
 
 .sufficient consideration to support the deed of recon- 
 veyance." **^* 
 
 In voluntary conveyances, the intent of tlie grantee 
 is immaterial, because, having paid no consideration, 
 he has no equities, paramount to either existing or 
 subsequent creditors of the grantor. Tlie couveyaiice 
 must, therefore, stand or fall according to the intent 
 of the grantor, actual or presumed. The grante<? can- 
 not support it by proving his entire innocence and his 
 want of knowledge of, or participation in, the intent 
 of the grantor.*'^^ As a voluntary conveyance must 
 either be enforced or disregarded, according to the in- 
 tent which must be imputed to the grantor at the time 
 it was executed, it is of the utmost importance to as- 
 certain from what circumstances the fraudulent in- 
 tent should or should not be presumed. "The law pre- 
 sumes that every man intends the necessary conse- 
 quences of his act, and if the act necessarily delays, 
 hinders, or defrauds his creditors, then the law pre- 
 sumes that it is done with fraudulent intent." ^^^ On 
 
 eii Bicoccbi v. Casey-Swasey Co., 91 Tex. 2.">0, 66 Am. St. Rop. 
 875, citing Mullanphy Sav. Banli v. Lyle. 7 Lea, 431; Swift v. 
 IToldridge, 10 Oil. 231, 36 Am. Dec. S5; Towell v. Ivoy, 88 N. C. 2."G: 
 Clark V. Rucker, 7 B. Mon. 583; Stanton v. Shaw, 3 Baxt. 12; Petty 
 V. Petty, 31 N. J. Eq. 14. 
 
 612 Swartz V. Hazlott. S Cal. 118; Wise v. Moore, 31 Ga. 14«?: Cilli- 
 land V. .Tones, 144 Tnd. 062, 55 Am. St. Rep. 210: Laiialitou v. 
 Harden, 68 Me. 208; Clark v. Chaniborlain. 95 Mass. 2.")7; Hicks v. 
 Stone, 13 Minn. 434; Gamhle v. Johnson, 9 Mo. 597; Thompson v. 
 Dougherty, 12 S. & R. 448; Woody v. Dean, 24 S. C. 499; Peck v. 
 Carmicbael, 9 Yerg. 325. 
 
 613 Bump on Fraudulent Conveyances, p. 282, citing Potter v. 
 McDowell, 31 Mo. 62; O'Connor v. Bernard, 2 Jones. 6.'i4; Freeman 
 V. Pope, L. R. 5 Ch. .538; 39 L. J. Ch. 6S0; Norton v. Norton. 5 Oush. 
 .524; Smith v. Cherrill, L. R. 4 Eq. 390; 30 L. J. Ch. 738; French v. 
 French, 6 De Gex, M. & G. 95; 25 L. J. Ch. 612; Strong v. Strong. 
 18 Beav. 408; Freeman v. Burnham, 36 Conn. 469; Corlett v. Rad- 
 clifife, 14 Moore P. C. C. 121; Reese River M. Co. v. Atwell, L. R.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 65& 
 
 the other hand, it is equally well settled tliat every 
 man is entitled to dispose of his own property as he 
 thinks best, provided that neither the intent nor the 
 result of the act of disposition is to hinder, delay, or de- 
 fraud his creditors. A man free from debt may make 
 a valid gift of his property — one which subsequent 
 creditors cannot successfully assail otherwise than by 
 showing that the gift was made with a view of becom- 
 ing indebted, and of defrauding them.*^*^ Nor is the- 
 mere fact of the donor's existing indebtedness conclu- 
 sive against the gift. Existing creditors cannot avoid 
 the gift, either at law or in equity, if, at the time it was*, 
 made, their claims were amply secured; *^*'^ nor if, when 
 in favor of a member of donor's family, the pecuniary 
 circumstances of the donor, at the time of making the 
 gift, were such that the withdrawal of the property 
 from his assets did not hazard the rights of his cred- 
 itors, nor materially diminish their prospects of pay- 
 ment. '^^^ Upon this last point the authorities are not 
 
 7 Eq. 347: Van Wyck v. Seward, 18 Wend. 375; Thompson v. Web- 
 ster, 7 Jur., N. S. 531. 
 
 614 Sexton V. Wheaton, 8 Wheat. 229; Rnssel v. Hammond. 1 Atk. 
 14; Walker v. Burrows, 1 Atk. 94; Townshend v. W'indham, 2 Ves. 
 1; Stephens v. Olive, 2 Brown Ch. 91; Lush v. Wilkinson. 5 Ves. 
 884; Glaister v. Hewer, 8 Ves. 199; Battersbee v. Farrington, I 
 Swanst. lOG; Faringer v. Ramsay, 4 Md. Ch. 33: Bonny v. Griffitii. 
 1 Hayes. 115; Benton v. Jones, 8 Conn. 18G; Sweeney v. Damrou, 
 47 111. 450; Winebrinner v. Weisiger. 3 T. B. Mon. 32; Baker v. 
 Welch, 4 Mo. 484; Charlton v. Gardner, 11 Leigh. 192; Haskell 
 V. Bakewell, 10 B. Mon. 206; Phillips v. Wooster, 3G N. Y. 412, 3 
 Abb. Pr., N. S. 475; Roberts v. Gibson, 6 Har. & J. 116; Creed v. 
 Lancaster Bank, 1 Ohio St. 1; Thomson v. Dougherty. 12 Serg. & R. 
 448; :\Iartin v. 01 liver, 9 Humph. 501, 49 Am. Dec. 717; Dick v. 
 Hamilton, Deady. 322. 
 
 B15 Manders v. Manders, 4 I. R. Eq. 434; Pell v. Tredwell, 5 W^end. 
 661; Stephens v. Olive, 2 Brown Ch. 90; Johnston v. Zane, 11 Gratt. 
 552; Hester v. Wilkinson. (! Humph. 215; 44 Am. Dec. 303. 
 
 616 Kipp V. Hanna, 2 Bland, 26: Bonny v. Griffith, Hayes. 115: 
 Babcock V. Eckler, 24 N. Y. 623; Taylor v. Eubauks, 3 A. K. Marsha
 
 657 PERSONAL PROPEP.TY SUBJECT TO EXECL'TIOX. § H2 
 
 unanimous. The minority contends that a j^ift is voi.l 
 as to existing creditors, irrespective of its amount and 
 of the circumstances and intention <jf the donor."*'' 
 But when a voluntary transfer is made by an insolvent 
 debtor/**** or by a debtor in such financial circum- 
 stances that the gift tends materially to hinder, delay, 
 or defraud his creditors,"*" it is clearly void us against 
 them. In such case, the inference of law is irresistible, 
 and cannot be overcome by any evidence in regard to 
 the debtor's actual intent."^** 
 
 239; Jacks v. Tunno. 3 Desaus. 1; Bracket v. Walte, 4 Vt. 3S9; 
 Smith V. Lowoll, G N. II. 67; Thonipsou v. Wobstor, 7 Jur., N. S., 
 531; 4 DreAv. G2S; Clements v. Eccles, 11 I. R. Eq. 229; Dodd v. 
 McCraw, 3 Eng. 84. 4G Am. Dec. 301; Williams v. Banks, 11 Md. 
 198; Salmon v. Bennett, 1 Conn. 525, 7 Am. Dec. 237; Abbe v. New- 
 ton, 19 Conn. 20; Posten v. Posten, 4 Whart. 27. 
 
 617 Reade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520; Mooro 
 V. Spence, 6 Ala. 50G; Foote v. Cobb, 18 Ala. 580; O'Daniel v. Craw- 
 ford, 4 Dpv. 197; Kissam v. Edmondson, 1 Ired. Eq. ISO; Bogard v. 
 Gardley, 4 Smodes & M. 302; Choteau v. Jones, 11 III. 318, 50 Am. 
 Dec. 460. 
 
 «i8 Annin v. Annin, 24 N. J. Eq. 184; Phelps v. Morrison, 24 N. J. 
 Eq. 195; Casv/ell v. Hill, 47 N. II. 407; Morgan v. McLelland, 3 Dev. 
 82; Wellington v. Fuller, 38 Me. 61; Reppy v. Reppy, 46 Mo. 571; 
 Stickney v. Borman, 2 Pa. St. 67; Shontz v. Brown. 27 Pa. St. 123; 
 Raymond v. Cook, 31 Tex. 373; Dulany v. Green, 4 Ilarr. (Del.) 285; 
 Waleott V. Almy, 6 McLean, 23; Craig v. Gamble, 5 Fla. 430; 
 Doughty V. King. 2 Stock. 396; Barnard v. Ford, L. R. 4 Ch. 247; 
 Burpee v. Bunn, 22 Cal. 194; Sargent v. Chubbuck. 19 Iowa, 37; 
 Harvey v, Steptoe, 17 Gratt. 289; Catchings v. Maulove, 39 Miss. 
 655; Welcome v. Batchelder. 23 Me. 85. 
 
 619 Holmes V. Penney, 3 Kay & J. 90; .Tones v. Slubey. 5 liar. Sc 
 J. 372; I'arkman v. Welch, 19 Pick. 231; Potter v. McDowell, 31 
 Mo. 62; Wilson v. Buchanan, 7 Gratt. 334; Worthington v. Bullitt, 
 6 Md. 172; Crossley v. Elworthy, L. R. 12 Eq. 158; Townsend v. 
 Westacott, 2 Beav. 340; Skarf v. Soulby, 1 Macn. & G. 364. 
 
 620 Phelps V. Curts, 8 Chic. L. N. 208; Churchill v. Wells, 7 Cold. 
 370; Wooten v. Steele, 109 Ala. 563, 55 Am. St. Rep. 947; Seevers v. 
 Dodson, 53 N. J. Eq. G.33, 51 Am. St. Rep. 641; Rudy v. Austin, 50 
 Ark. 73, 35 Am. St. Rep. 85; Mason v. Vestal, SS Cal. 396, 22 Am. St. 
 Rep. 310. 
 
 Vol. I.— 12
 
 § U-2 rERSOXAL PROPERTY SUBJECT TO EXECUTION, 658 
 
 Considered with respect to existing creditors, tliere 
 appears to be no doubt that the law presumes, prima 
 facie, that a voluntary conveyance is fraudulent and 
 void.*'-^ Many of the authorities go further, and de- 
 clare this presumption to be conclusive.*-^ The duty 
 of a husband or father to provide for his wife or chil- 
 dren is one, however, which is scarcely inferior to his 
 duty to apply his property to the satisfaction of his 
 creditors. There are many cases in which a gift or 
 settlement is made upon a child, wife, or other relative, 
 'which does not operate as a fraud upon the creditors 
 of the donor, though he is at the time somewhat in- 
 debted. Therefore, "the better doctrine seems to us 
 to be that there is, as applicable to voluntary eonvey- 
 ances made on a meritorious consideration, as of Wood 
 and affection, no absolute presumption of fraud which 
 entirely disregards the intent and purpose of the con- 
 veyance, if the grantor happened to be indebted at the 
 
 621 Nicholas v. Ward, 1 Head, 323, 73 Am. Dec. 177; Welcker v. 
 Price, 2 Lea, 6G7; Clieatliam v. Hess, 2 Tenu. Ch. 7G4; Iluteliinson 
 V. Kelly, 1 Rob. (Ya.) 123, 39 Am. Dec. 2.j0; Rudy v. Austin, 5G Ark. 
 73, 35 Am. St. Rep. 85; Driggs & Co.'s Bank v. Nor^-ood, 50 Ark. 
 42, 7 Am. St. Rep. 78; Weed v. Davis, 25 Ga. 684; Goodman v. 
 Wineland, 61 Md. 449; Filley v. Register, 4 Minn. 391, 77 Am. Dec. 
 522; Cole v. Tyler, 05 N. Y. 73; Oliver v. Moore, 23 Oh. St. 473; 
 Jones V. Clifton, 101 U. S. 225. 
 
 622 Cook V. Johnson, 1 Beasl. Ch. 51, 72 Am. Dec. 381; Belford v. 
 Crane, 16 K. J. Eq. 272, 84 Am. Dec. 1.55; Miller v. Thompson, 3 
 Port. 196; Spencer v. Godwin, 30 Ala. 355; Crawford v. Kirksey. 
 55 Ala. 282, 28 Am. Rep. 704; Lockhard v. Beckley, 10 W. Va. 87; 
 ITuggins V. Perrine, 30 Ala. 396, 68 Am. Dec. 131; Severs v. Dodson. 
 53 N. J. Eq. 633, 51 Am. St. Rep. 641; Bohannon v. Combs, 79 Mo. 
 305; Marmon v. Harwood. 124 111. 104, 7 Am. St. Rep. 345; O'Daniol 
 V. Crawford, 4 Dev. 197; Read v. Livingston, 3 Johns. Ch. 481, 8 
 Am. Dec. 520; Kissam v. Edmondson, 1 Ired. Eq. 180; Ruse v. 
 Bromberg, 88 Ala. 020; Spuett v. Willows. 3 Do G., J. & S. 293; 
 Bogard v. Gardley, 4 S. & M. 302; Chamley v. Dunsany, 2 Sehoales 
 & L. 714.
 
 CO'J rEKSONAL PROPERTY SUBJECT TU EXK; UTiON. § 14'J 
 
 time it was made, but that such conveyance under such 
 circumstances affords only prima facie or presumptive 
 evidence of fraud, which may be rebutted and con- 
 trolled." '''■' To rebut the presumption, the financial 
 circumstances of the grantor at the time of the j;]-ant 
 may be shown, and, if it appears that he was then abnn 
 dantly able to pay all liabilities existing against him, 
 that the property donated was an inconsiderable por- 
 tion of his estate, and that after the donation he re- 
 mained able to satisfy all his creditors, then, unle;>s 
 there are other circumstances indicating an intent to 
 defraud, the presumption must be regarded as over- 
 come.**^^ Subsequent creditors can attack a voluntary 
 conveyance only upon the ground that it was made 
 with a fraudulent intent."-^ "The law now appean> 
 to be well settled that a man may, for the sole purpose 
 of protecting his family against the casualties and 
 accidents of trade, settle his property for their benefit, 
 and that such settlement will be upheld against his 
 subsequent creditors, unless it shall appear that the 
 property was so situated that the community could 
 have been easily misled as to the title of the true owner. 
 
 623 Lerow v. Wilmarth, 9 Allen. 3SG; Hoklon v. Burnliam, 6.3 N. Y. 
 74; see note to Jenkins v. Clement, 14 Am. Dec. TOH. 
 
 oiiGridley v. Watson, 53 111. 103; Pratt v. Curtis. 2 Low. 87: 
 Stewart v. Rogers, 25 Iowa, 3^, 95 Am. Dec. 794; Winchester t. 
 Charter, 97 Mass. 140; jNIiller v. Pearce, 6 Watts & S. 101; French 
 V. Holmes, 07 Me. 180; Kuoop v. Nelson, 102 Mo. 150. 
 
 625 Inhabitants of Pelham v. Aklrieh, 8 Gray. 51."). 09 Am. Dec. 
 260; Bangor v. Warren, 34 Me. 324. 56 Am. Dec. 657; Hester v. 
 Wilkinson, Humph. 215, 44 Am. Dec. 303; Cosby v. Ross' Adm'r. 
 3 J. J. Marsh. 290, 20 Am. Dec. 140; Lancaster v. Dolan. 1 Rawle. 2;'!1. 
 IS Am. Dec. 625; Smith v. Vodges, 92 U. S. 183; Rudy v. Austin. 50 
 Ark. 73, 35 Am. St. Rep. 85; Marmon v. Ilarwood, 124 111. 104, 7 
 Am. St. Rep. 345; Brundage v. Cheneworth. 101 Iowa. 250. 63 Am. 
 St. Rep. 382; Hagerman v. Buchanan. 45 N. J. Eq. 292. 14 Am. St. 
 Rep. 732; Jackson v. Plyler, 38 S. C. 496, 37 Am. St. Rep. 782.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 6G0 
 
 The very object of such settlement by a man engaged 
 in commerce is to prefer his family to those who may 
 thereafter become his creditors, and it may be safely 
 admitted that the design was to protect the property 
 against the debts thus contracted, for otherwise the 
 conveyance would be simply an idle ceremony. The 
 right to make the settlement carries with it the right 
 to the beneficiaries to hold and enjoy the property 
 against the claims of the donor, or against those w^ho 
 may assert a title through him. The conveyance, when 
 executed according to the forms and ceremonies of the 
 law, and made a matter of record, is notice to the world 
 not to trust the donor longer upon the faith of the prop- 
 erty conveyed; and, while it may have the effect of im- 
 pairing his credit, it cannot be regarded as a fraud upon 
 those who have ample opportunity to learn his true 
 condition." ^^^ On the other hand, if a voluntary con- 
 veyance is made with intent to defraud subsequent 
 creditors, it is void as against them. "It is perfectly 
 well settled that if there be any design of fraud or collu- 
 sion, or any intent to deceive third persons, in making 
 a voluntary conveyance, although the grantor be not 
 then indebted, the transfer w^ill be voidable by subse- 
 quent creditors; ^^'^ and the design to defraud may be 
 inferred from the fact that the grantor, when he made 
 the deed, was upon the eve of entering into business re- 
 quiring more means than he then possessed, and in the 
 course of which he must necessarily contract debts." *^^^ 
 
 626 Bullitt V. Taylor, 34 Miss. 708. 69 Am. Dec. 412. 
 
 627 Winchester v. Charter. 12 Allen. 610; Elliott v. Horn, 10 Ala. 
 348, 44 Am. Dec. 488; Oilliland v. Jones, 144 Ind. 6G2, 55 Am. St. 
 Rep. 210. 
 
 62S Beofkman v. Montgomery. 1 McCarter, 106. 80 Am. Dec. 22!): 
 Ridjreway v. Underwood, 4 Wash. C. C. 137; Ilaiiorman v. Bn- 
 chanan, 45 N. J. Eq. 292, 14 Am. St. Rep. 732. In this case it was.
 
 <J6l i'EU.SOXAL I'UOi'ERTY SUBJECT TO EXECUTION. § 142 
 
 The circumstances under which a voluntary transfer 
 made with innocent intent may be sustained, though 
 the grantor at the time was somewhat indebted, and it 
 subsequently appears that the transfer tends to preju- 
 dice a pre-existing creditor, are worthy of further con- 
 sideration. If the grantor is at the time financially 
 timbarrassed, or if there are judgments rendered or ac- 
 tions pending against him, or suits threatened, his vol- 
 untary conveyance is unquestionably fraudulent and 
 void as against creditors."'" To render a voluntary 
 transfer fraudulent, it is not essential that the grantor 
 be insolvent at the time of making it. "If a debtor is 
 in embarrassed circumstances, and makes a voluntary 
 conveyance, and is afterward unable to meet his debts 
 owing at the time of the assignment, in the ordinary 
 cou:i;se prescribed by law for their collection, or is re- 
 duced to that condition that an execution against him 
 would be unavailing, such conveyance is void as to 
 those debts, and the property conveyed is subject to 
 their payment." *^^" "It is sulTicient to show that the 
 grantor is embarrassed or in doubtful circumstances, 
 and was not possessed of ample means outside of the 
 
 «ai(l: "Now, it is true that the fact that a person has entered into 
 & hazardous business or en.saired in a speculative enterprise at or 
 soon after the execution of a voluntary conveyance is .strons; evi- 
 <lence of a fraudulent intent. It evinces a desire to reap the benefit 
 for himself, if successful, and escape responsibility, if unlucky. 
 Nevertheless, each case must stand upon its own footinpr, and no 
 legal rule can be adopted as to the quantity of proof or tlie partioi- 
 lar complexity of facts which will annul a conveyance tipon this 
 frround. The character of the business, the decree of pecuniary 
 hazard incurred, the amount of property remaining in the grantor, 
 the value of the property conveyed, the acts and words occurring 
 ooincldently with the transaction, are to be viewed together in 
 solving the question of fraudulent intent." 
 
 C29 Bohannon v. Combs. 79 !Mo. ."05. 
 
 «3o Potter v. McDowell, 31 Mo. 02.
 
 § 142 PERSONAL PROPERTY SUBJECT TO EXECUTION. 6G2 
 
 particular property for the satisfaction of bis tlien ex- 
 isting debts. Wben tbis condition of affairs is proven 
 to exist, tbe conveyance in question — altboiigb none 
 but tbe purest motives may bave prompted its execu- 
 tion — becomes fraudulent in law, and is open to attack, 
 and can be successfully assailed by all who were cred- 
 itors at tbe time of tbe execution of tbe conveyance, 
 and whose debts remain unliquidated and incapable of 
 collection in the ordinary course of proceedings." ®** 
 
 As the object of evidence concerning the debtor's in- 
 ability at tbe date of the transfer is to enable the court 
 or jury to judge what his intent was in making it, and 
 as no conclusive presumption of fraud arises from the 
 fact that he was somewhat indebted at tbe time, it is 
 evident that the precise amount of indebtedness neces- 
 sary to avoid such transfer cannot be stated, and that 
 different courts or juries may reach diverse conclusions 
 from the same facts. If, after the transfer, the grantor 
 still continued to be the owner of property sufficient to 
 pay bis debts, and was not about to embark in some 
 business in which he expected to contract additional 
 liabilities, and the transfer is assailed by a pre-existing 
 creditor, whose debt remains unpaid, it must be left 
 to the court or jury to determine, as a question of fact, 
 from all the attendant circumstances, whether the in- 
 tent of the grantor was fraudulent or not.^'"'^ The gen- 
 eral principle which ought to govern courts and juries 
 in determining this question has been thus stated by 
 the court of appeals of Kentucky: Although the gran- 
 tor "may not at tbe time have been insolvent, or so 
 
 631 Patten V. Casey. 57 Mo. 118. 
 
 "■^s Sanders v. "Wagonsellor, 19 Pa. St. 248; Lerow v. Wilmant. f> 
 Allen. 382: Chambers v. Spence, 5 AVntts, 404; Mntoer v. Hissim. 3 
 Penr. & W. IGO; Posten v. Posteu, 4 Whart. 27; Poniery v. Bailey, 
 43 N. H. 118.
 
 603 PERSONAL rROrERTY SUBJtXT TO EXIXUTION. § 142 
 
 much involved at the date of I lie deed as to render tho 
 residue of his estate then necessarily insullicicnt to pay 
 his debts, yet if he was involved 'to a material extent,' 
 by which we are to understand an extent which might, 
 in view of ordinary contingencies, endanger the rights 
 of his creditors, then the deed was constructively 
 fraudulent as to subsequent as well as pre-existing 
 debts; for in such a case a fraudulent intent is implied; 
 and the deed was void for express fraud, if, from tlie ex- 
 tent of the grantor's indebtedness, compared with liis 
 means of paying, the unreasonableness of the convey- 
 ance as an advancement to the appellant, considering 
 the claims of other children, and other attending cir- 
 cumstances, the inference is justified that the grantor 
 made the conveyance for the purpose of avoiding the 
 payment of his liabilities." "''** 
 
 No case has come within our observation in which 
 a voluntary transfer has been sustained against a pre- 
 existing creditor when the grantee was not a member 
 of the grantor's family, and, as such, the natural object 
 of his bounty; nor, on the other hand, have we met with 
 any case declaring that such a transfer could not be 
 upheld because made to a stranger. Doubtless the 
 fact that the donee is bound to the donor by the ties 
 of consanguinity, or even affinity is worthy of great 
 consideration, because it is njftural and commendable 
 for one whose financial standing enables him to do so 
 to provide for, and secure against want in the future, 
 the members of hi>^ family, and it is more probable that 
 a voluntary transfer to them may have been made with- 
 out any fraudulent intention than a like transfer to a 
 stranger. If, however, a voluntary transfer should be 
 made to one not related to the grantor, and not espe- 
 
 «33 Lowry v. Fisber, 2 Bush. TO, 92 Am. Dec. 473.
 
 § 142 PKllSOXAL PR0PP:RTY subject to execution. Go4 
 
 cially entitled to his benefaction, and, from the gran- 
 tors financial ability at the time, and from all the sur- 
 rounding circumstances, the court and jury should be 
 convinced of the absence of all fraudulent intent, we see 
 no reason for denying the validity of the trawsfer, 
 though the grantor may have been indebted at the time, 
 provided that such debts bore an inconsiderable ratio 
 to his remaining assets. 
 
 The right of a husband or father to make convers- 
 ances to his wife or children, notwithstanding the ex- 
 istence of indebtedness against him at the time, is now 
 well established in a majority of the states. Still, the 
 gifts cannot be sustained if they embrace all the gran- 
 tor's property, or even if he is financially embarrassed, 
 or if he ought, as a prudent, practical man, to foresee 
 that they will result in some of his creditors being de- 
 prived of the means of obtaining i3aymeuts of their 
 debts. One has no right to be generous, even to the 
 members of his family, if his generosity will probably 
 be at the expense or detriment of his creditors.*'"^* 
 
 Though it is doubtful whether the property which 
 the gi-antor retains may not be sufficient to discharge 
 all his liabilities, a voluntary conveyance to his wife 
 and children must be pronounced fraudulent, if the 
 amount of his indebtedness is large, and he is fearful 
 that his property may not be sufficient to pay it, an<l 
 especially if his conceded insolvency follows within a 
 short time after the execution of the voluntary trans- 
 fer."^^ If, on the other hand, the property to wliicli 
 the grantor retains the title, after making a voluntary 
 
 634Marmon v. Harwoofl, 124 111. 104. 7 Am. St. Rep. 345; Howe 
 V. Wassman, 10 Mo. 1G9, 49 Am. Dec. 12G; Lewis v. Lowe, 2 B. 
 Mon. 34.5, 38 Am. Dec. 161. 
 
 fi35 Stewart v. Rogers, 25 Iowa, 395. 95 Am. Dec. 794; Driggs v. 
 Norwood, 50 Ark. 42, 7 Am. St. Rep. 78.
 
 €65 PERSONAL PROPKUTY SUBJECT TO EXECUTION. § 143 
 
 transfer, is at the time unquestionably sufficient to dis- 
 charge all his liabilities, and the transfer is no more 
 than a reasonable gift in view of his remaining assets, 
 his ability to earn money, and the demands which are 
 likely to be made upon him, then the transfer sIkjuM 
 be sustained, unless it appears frum other circum- 
 stances to have been made for a fraudulent purpose/*^** 
 Though a donor is considerably indebted at the date 
 of the transfer, if he continues solvent for a long periijd 
 of time afterward, during which his creditors might; 
 have obtained payment of his debt by the exercise of or- 
 dinary diligence, they, after lying supinely by until their 
 debtor's position is changed from one of comparative 
 affluence to one of insolvency, cannot wrest from the 
 voluntary grantees of the latter property w^hich he had 
 transferred to them, without, at the time of the trans- 
 fer, depriving himself of the means to fully satisfy his 
 creditors.**^'^ 
 
 § 143. A Conveyance to the Use of the Grantor is, by 
 the statute of 3 Henry VII., c. 4, void as against cred- 
 itors. The purposes for which such a deed is made and 
 the actual intention of the parties are immaterial. Nor 
 does it make any difference that the grantor was sol- 
 vent or entirely free from debt when he made the trans- 
 fer. "In all the refinements of uses and trusts, in the 
 midst of multiplied distinctions between legal and 
 
 63a Gridlcy v. Watson, 53 111. 193; Cole v. Tyler. 65 N. Y. 78; Arnett 
 ■V. Wanett, 6 Ired. 41; Winchester v. Charter. 07 Mas.s. 140; T;iylor 
 V. Eastman. 92 N. C. GOl; Miller v. Pearce. 6 W\atts & S. 101; Wal.?h 
 V. Ketehnm, 84 ^lo. 427; French v. Holmes, G7 Mo. ISG; Wiles v. 
 Kichards, Walker, 477, 12 Am. Dec. 584; Morgan v. Ilecker, 74 Cal. 
 540. 
 
 637 EiJileberjrer v. Kipler, 1 Hill Eq. 113, 20 Am. Dec. 192; Lloyd 
 V. Fulton, 91 U. S. 479.
 
 § 143 PERSONAL PROPERTY SUBJECT TO EXECUTION. 60^ 
 
 equitable interests wliicli liave abounded in the pro- 
 gress of Anglican jurisprudence, this principle has 
 never been doubted, and the mockery of a transfer by a 
 debtor of his property, to be held for tlie use of the 
 debtor, has never been allowed to defeat the rights or 
 remedies of creditors." ^'^'^ 
 
 While an owner of property may give it to an- 
 other and apply conditions to the gift which may have 
 the effect of exempting it from the claims of the latters- 
 creditors, no one will be permitted to make a convey- 
 ance or transfer of this character for his own benefit. 
 Hence, if a married woman conveys her sei)arate estate 
 to a trustee, to be held in trust, with authority to col- 
 lect the income and pay it to her, the trust deed con- 
 taining an express stipulation that such income shall 
 be paid to her only, and shall not be subject to the 
 claims of her creditors, this stipulation is not enforce- 
 able. On the contrary, a creditor having a claim en- 
 forceable against her separate estate may apply to a 
 court of equity and there obtain an order that the trus- 
 tee satisfy such claim out of such income in his- 
 hands.*^^"** 
 
 "It has been considered as settled long since that if 
 an absolute deed is given with intent to secure a debt, 
 such deed would be void as it respects bona fide credit- 
 ors, as it does not disclose the real nature of the trans- 
 ess Bump on Fraudulent Conveyances, 230. For application of 
 the law against conveyances containing reservations for tbe benctit 
 or advantage of grantor, see Mackie v. Cairns, Ilopk. 370; Wilson 
 V. Cheshire, 1 McCord Ch. 233; Brown v. Donald. 1 Hill Ch. 207; 
 Jackson v. Parker, 9 Cow. 73; Van W'yck v. Seward. 18 Wend. 37ri; 
 Lukins v. Aird. G Wall. 78; Smith v. Smith, 11 N. H. 4G0; Burbank 
 V. Hammond, 3 Sum. 429; Curtis v. Leavitt, 15 N. Y. 9; Sturdivant 
 V. Davis, 9 Ired. 3G5; Ladd v. Wiggin, 35 N. II. 421, G9 Am. Dec 
 551. 
 
 639 Brown v, Macgill, 87 Md. IGl, G7 Am. St. Rep. 334.
 
 667 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 143 
 
 action. It places the parties iu a false position as it 
 respects the public. It holds out the grantee as the real 
 owner, when in fact the grantor is, or may be, the 
 owner. It tends to lull the creditors of both parties 
 into false security, and to conceal from them the real 
 condition of their debtors." *'^*' "Honesty and fair (fil- 
 ing require that the truth of the transaction should con- 
 cur with its appearances; that the whole truth should 
 be developed, and that the transaction should not wear 
 the aspect of a simple sale or preference, and yet iu 
 fact be merely a disguise or color, by means of which 
 the debtor is enabled to enjoy a secret interest in and 
 control over the goods and their proceeds, of which 
 other creditors are not informed by the proceeding 
 itself." «^^ 
 
 The taking of an absolute transfer of propei-ty as 
 security for the payment of indebtedness or for the per- 
 formance of some other obligations is a very usual 
 transaction, and, in many of the states, is not fraudu- 
 lent nor void when there is no purpose to deceive any 
 one or to create a secret trust iu favor of the trans- 
 ferrer.*^^ Still, the rule is maintained in some of the 
 states as laid down in the preceding quotations. Thus, 
 in Illinois it has been said, in a case where an absolute 
 transfer of a patent right was assailed as fraudulent be- 
 cause made merely as security: "A conveyance of prop- 
 erty which is absolute upon its face, but which is really 
 intended as a mortgage or security, is well enough 
 as between the parties, but the settUMl doctrine is, that 
 
 640 North V. BoUlon. 1.3 Conn. 370. rt." Am. Doc. S.3. 
 
 6^1 :sicCnlloch V. Hntchinson. 7 Watts, 4.34. 32 Am. Dec. 77S; 
 Winkle.Y v. Hill. 9 N. IT. .31. 31 Am. Doc. 21.^. 
 
 642 >rcFarlano v. London. 09 Wis. CJO. (;7 Am. St. Rep. 883; Roc'c 
 V. Collins, 99 Wis. 630, G7 Am. St. Rop. 885.
 
 § 143 PERSONAL PROPERTY SUBJECT TO EXECUTION. GGS 
 
 such a transfer of property is fraudulent and void as to 
 creditors. Here, the assignments of the patents were 
 absolute in form, and were duly recorded in the patent 
 office, and they imported unconditional sales. Hence, 
 their natural and necessary effect was to mislead, de- 
 ceive, and defraud creditors. They were, in substance 
 and in fact, the creation of secret trusts for the benefit 
 of the assignor, and, as such, frauds upon the rights of 
 those to whom he was justly indebted. Even if we 
 should assume that the transfers were for valuable and 
 ample considerations, and were not, as a matter of 
 fact, intended to accomplish covinous and dishonest 
 purposes, yet, as there were trusts whrch were not dis- 
 closed by the writings, and were therefore secret trusts, 
 it follows that the law itself regards the transactions 
 as lacking the elements of good faith, and conclusively 
 infers fraud, and the courts are bound so to pro- 
 nounce.*^^ There is no question, then, but that the 
 assignments were constructively fraudulent." **** We 
 understand, however, from the decision as a whole, 
 that what the court meant by declaring the assign- 
 ments constructively fraudulent was, that they would 
 be permitted to stand only for the amounts bona fide 
 advanced and paid therefor, and this only when the 
 conduct of the assignee had not been marked by an en- 
 deavor to conceal the real nature of the transaction and 
 to maintain a secret trust in favor of the assignor. 
 There can be no doubt that whenever a transfer abso- 
 lute in form is made, w^hile the transferrer yet retains 
 some interest in the property, and the purpose of the 
 
 643 Lukins v. Aird, 6 Wall. 78; INIetropolitan Bank v. rJodfrey. 23 
 Til. .579; Moore v. Wood. 10 111. 451; Ilurd v. Asch(n-mau, 117 111. 
 501; Blennerhassett v. Sherman. lO.^i U. S. 117. 
 
 •♦* Beidler v. Crane, 135 111. 92, 35 Am. St. Rep. 340.
 
 669 PERSONAL PKOrERTY SUBJECT TO EXECUTION. § U3 
 
 parties is thereby to conceal the real nature of the 
 transaction, and thus to hinder or embarrass creditors 
 of the transferrer or to prevent them from discovering 
 that he had property out of which their indebtedness, 
 or some part thereof, might be satisfied, then the trans- 
 fer must be treated as void as against such creditors."*'* 
 Nor will the unkiMful purpose to hinder creditors be 
 made valid by declaring it. Tlius, a transfer may be in 
 consideration that the transferee will support the 
 transferrer, or w'ill pay to him the income of the prop- 
 erty transferred, or some part thereof, and this purpose 
 may be declared in the instrument evidencing the trans- 
 fer or otherwise made public. Here the object is to 
 part with the title to property and yet retain a valuable 
 interest therein, and to exempt such interest from the 
 payment of the transferrer's creditors existing or to 
 exist. In Vermont, it has been held that when a trans- 
 fer was made in consideration that the transferee 
 would support the transferrer during the latter's life, 
 and this support was actually furnished and was equal 
 in value to the property received, that the transfer 
 could not afterward be successfully assailed by a cred- 
 itor, though hrs debt antedated the transfer, the court 
 apparently proceeding on the principle that the credi- 
 tor, by his inaction during the time the support was be- 
 ing furnished, had estopped himself from seeking satis- 
 faction out of the property.*^® Decisions in other states 
 proceed on substantially the same principle, that is, 
 they seem to sustain the transfer to the extent of the 
 consideration actually furnished or paid by the vendee, 
 
 645 Robort V. Barnes. 127 :Mo. 40.5. 48 Am. St. Rop. 040; Sabin v. 
 Golumbia F. Co.. 2." Or. 15. 42 Am. St. Rep. 756; Barrett v. Nealon, 
 119 Pa. St. 171, 4 Am. St. Rep. 028. 
 
 •*e Kelsey v. Kelsey, 03 Vt. 41.
 
 § H3 PERSONAL PROPERTY SUBJECT TO EXECUTION. 670 
 
 and to declare that all in excess of that is held by him 
 subject to the claims of the transferrer's creditors, as 
 "it seems to be well settled that, where the considera- 
 tion for a conveyance is an agreement for the future 
 support of the grantor, the transaction is fraudulent in 
 law as to creditors, to the extent which the value of the 
 property is in excess of the support furnished. The 
 authorities proceed upon the theory that it is the legal 
 duty of a debtor to pay his debts, rather than to pro- 
 vide for his future support, and that existing creditors 
 may avail themselves of property conveyed for future 
 support for the payment of their claims, when the 
 debtor has no other property out of which payment can 
 be enforced. And where the parties have acted in good 
 faith, the conveyance may be sustained, so far as the 
 consideration paid by the grantee, without notice, is 
 involved, but will be set aside as to any value in the 
 property in excess of the amount paid; and in such case 
 the grantee is chargeable with the value of the use of 
 the property." *^*'' Probably these decisions go further 
 than can be justified, either by principle or authority, 
 when they accord transfers of this character a qualified 
 or conditional validity as against the creditors of the 
 grantor. If the property conveyed includes all his es- 
 tate, or if he is so indebted that his conveyance will 
 probably withdraw his nssets from the reach of his 
 creditors to tlie extent of leaving his estate insufficient 
 to meet his liabilities, the law must, we think, pro- 
 nounce the transfer void as against all his pre-existing 
 creditors, independently of the good or bad faith either 
 
 C47 Harris v. Brink, 100 Iowa, 36, 62 Am. St. Rep. 578; Farlin v. 
 Sook, 30 Kan. 101, 40 Am. Rop. 100; Walker v. Cady. 106 Mich. 21; 
 Henry v. Hinman. 25 Minn. 109; Loos v. Wilkinson, 110 N. Y. 195; 
 Faber v. Matz, 86 Wis. 370.
 
 tiTl I'EUSONAL niOPERTY SUBJECT TO EXECUTION. § U4 
 
 of the grantor or of the graDtee; and it improperly 
 encourages transactions of this character t-o hold them 
 valid to the extent of the expenditures made by the 
 transferee in performance of his agreement.**^ 
 
 § 144. Conditional Conveyances. — A transfer is not 
 bona tide, when made bj- an insolvent debtor, unless it 
 is unconditional. The contract of sale must be abso- 
 lute. If the debtor retains the right to revoke the con- 
 tract, the sale is fraudulent per se; *^^" and a like result 
 follows a stipulation that the vendee may, before the 
 ]>uyment of the purchase price, return the property and 
 annul the sale.**^" A transfer, of which part of the 
 consideration is that the grantee shall thereafter sup- 
 port the debtor or his family, is, as we shall see,^"** * 
 regarded as an effort to preserve a beneficial interest in 
 l>roperty, and keep it beyond the reach of the grantor's 
 creditors. If the grantor, immediately after making 
 such a conveyance, is unable to pay his debts, the trans- 
 fer is void; *^^^ but it is otherwise when, notwithstand- 
 
 648 Woodall V. Kelley, 85 Ala. 368. 7 Am. St. Rep. 57; Hartin? v. 
 .Tockers, 130 HI. 627, 29 Am. St. Hep. 341; Daridson v. Burke, 143 
 111. 139, 36 Am. St. Rep. 367; Sidensparker v. Sidensparker, 52 Me. 
 4S1, 83 Am. Dec. 527; Graves v. BlondoU. 70 Me. 194; Mackie v. 
 Cairns, 5 Cow. 547. 15 Am. Dec. 477; Johnston v. Harry, 2 P. & W. 
 82, 21 Am. Dec. 420; see post, § 144. 
 
 649 West V. Snodgrass, 17 Ala. 549; Tar])ack v. Marbury, 2 Vern. 
 510; Bethel v. Stanhope, Cro. Eliz. 810: Reacock v. Monk, 1 Ves. 
 Sr. 127; Anonymous, Dyer, 295 a; Jenkyu v. Vaughan, 3 Drew. 419. 
 
 650 Shannon v. Commonwealth, 8 Serg. & R. 444; West v. Snod- 
 grass, 17 Ala. 549. As to the effect of an agreement that debtor 
 may repurchase, see Towle v. Hoit, 14 N. H. 61; Albee v. Webster, 
 10 N. H. 302; Newsom v. Roles. 1 Ired. 179; Glenn v. Randall. 2 
 Md. Ch. 220; Barr v. Hatch, 3 Ohio, 527. 
 
 cr.oaAnte, § 143. 
 
 GUI Church V. Chapin, 35 Vt. 223; Bott v. Smith, 21 Beav. 511; 
 Henderson v. Downing, 24 Miss. 106; Sidensparker v. Sidensparker, 
 52 Me. 481, 83 Am. Dec. 527; Gunn v. Butler, 18 Pick. 248; Morrison
 
 § 145 PERSONAL PROPERTY SUBJECT TO EXECUTION. 072 
 
 ing the conveyance, the grantor retains property suffi- 
 cient to satisfy his creditors.^"^ And it is said that the 
 deed may always be supported by showing that tlie 
 vendee paid the full value of the property. For, in 
 such a case, it appears that the agreement to support 
 the grantor is not made in consideration of property 
 to which his creditors are entitled."^"* A sale made by 
 an insolvent on a long credit indicates an intent to- 
 withdraw his assets from the reach of his creditors; and 
 has often been regarded as sufficient evidence of fraud 
 to avoid the sale.**^* 
 
 § 145. Mortgages. — Mortgages, under which the 
 debtor retains possession of the property, with the 
 power to sell the same, are generally treated as fraudu- 
 
 V. Morrison. 49 N. H. 69; Robinson v. Robards, 15 Mo. 459; Geii;<T 
 V. Welsh, 1 Rawle, 349; Rollins v. Mooers. 25 Me. 192; Hunt v. Knox. 
 34 Miss. 655; Robinson v. Stewart, 10 N. Y. 189; Miner v. Warner^ 
 2 Grant Cas. 448; Jones v. Spear. 21 Vt. 426; Stolces v. Jones, 18 
 Ala. 734; Hawkins v. Moffitt, 10 B. Mon. 81; McLean v. Button. 
 19 Barb. 450; Graves v. Bloudell, 70 Me. 194- " v. Jolinson, 
 
 70 Me. 261; Johnston v. Harvy. 2 Penr. & W^ -. Am. Dec. 426: 
 McClurg V. Lecky, 3 Penr. & W' . 91. 
 
 652 Barker r. Osborne, 71 Me. 71; Usher v. Hazeltine, 5 Greenl. 
 471, 17 Am. Dec. 253; Hapgood v. Fisher, 34 Me. 407, 56 Am. Dec. 
 663; Drum v. Painter, 27 Pa. St. 148; Buchanan v. Clark, 28 Vt. 799; 
 Mills Y. Mills, 3 Head, 705; Johnston v. Zane, 11 Gratt. 552; Eaton 
 V. Perry, 29 Mo. 96; Barrow v. Bailey, 5 Fla. 9; Mahoney v. Hun- 
 ter, 30 Ind. 240; Tibbals v. Jacobs, 31 Conn. 428; Johnson v. John- 
 son, 3 Met. 63. 
 
 653 Slater v. Dudley, 18 Pick. 373; Albee v. Webster, 16 N. H. 362; 
 see, also, Oriental Bank v. Haskins, 3 Met. 332, 37 Am. Dec. 140. 
 
 654 Borland v. AValker, 7 Ala. 209, where the notes were due in 
 from seven to ten years: Pope v. Andrews, 1 Smodes & M. Ch. 135, 
 where the notes were due in nine, ten, and eleven years; Kepner 
 V. Burkliju-t, 5 Pa. St. 478, where the notes were due in six years; 
 Grannis v. Smith, 3 Humph. 179, where the notes were due in from. 
 five to ten years.
 
 673 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 145 
 
 lent and void as against creditors.^^'' Such an instru- 
 ment affords no security to the mortgagee, and, if valid, 
 could have no other effect than to give the mortgagee 
 preference over other creditors. A deed of trust to 
 creditors, or to some one for their benefit, in which the 
 debtor reserves the power to sell the property until de- 
 fault is made in the payment of the debts, is also 
 vpid.**^" But in some of the states, mortgages on stocks 
 of goods in stores, containing a stipulation that the 
 mortgagors may continue their business, retailing the 
 goods mortgaged, and replacing them with other goods 
 of like value, have been upheld."''' Where a chattel 
 mortgage, by its terms, permits the mortgagor to re- 
 main in possession of the property, and to sell portions 
 thereof and retain the proceeds of such sales, it is gen- 
 erally conceded to be fraudulent and void as a matter 
 of law.*'''** But there seems to be no objection to per- 
 
 855 Collins V. Myers. IG Ohio, 547; Harman v. Abbey, 7 Ohio St. 
 218; Griswold v. Sheldon, 4 N. Y. 5S1: Armstrong v. Tiittle, 34 Mo. 
 432; King v. Kenan. 38 Ala. r.3: Constantine v. Twelves, 29 Ala. 
 607; Afhlington v. Etheredge, 12 Oratt. 4:\C,\ Bishop v. "Warner. 19 
 Conn. 400; Raulett v. Blodgett. IT X. TT. 208; Place v. Langworthy. 
 13 Wis. (129. 80 Am. Dec. 758; Freeman v. Rawson, 5 Ohio St. 1; 
 Gardner v. McEwen, 19 N. Y. 123; Barnet v. Fergus, 51 111. 352; 
 Read v. Wilson, 22 111. 377, 74 Am. Dec. 1.59. 
 
 656BroolvS V. Wimer, 20 Mo. .503; Walter v. Wimer. 24 :\ro. G3; 
 Chophard v. Bayard, 4 Minn. 5.33. 
 
 6r.7 Hickman v. Terrin, 6 Cold. 135; .Tones v. Iliiggeford. 3 Met. 
 515: Briggs v. Parkman. 2 Met. 258. 37 Am. Dec. 89; Googins v. 
 Gilmore. 47 Me. 9, 74 Am. Dec. 472; Hughes v. Oory, 20 Iowa, 399; 
 Gay V. Bidwell, 7 Mich. 519. 
 
 658 Edgell V. Hart, 9 N. Y. 213, .59 Am. Dec. 5.32; Marstou v. Vultee, 
 8 Bosw. 131; 12 Abb. Pr. 144; Mittnacht v. Kelly. 3 Keyes. 408; 3 
 Abb. App. 302; 5 Abb. Pr., N. S., 445; Russell v. Winne, 37 N. Y. 
 695; 4 Abb. Pr., N. S., 388; Simmons v. Jenkins. 7C, 111. 483; Hayes 
 V. Westcott, 91 Ala. 143, 24 Am. St. Rep. 875; First N. B. v. Caper- 
 ton, 74 Miss. 857. 60 Am. St. Rep. 540; Eckman v. Munnerlyn. 32 
 Fla. 367, 37 Am. St. Rep. 109; New v. Sailors, 114 lud. 407. 5 Am. 
 Vol. 1—43
 
 § \4o PERSONAL PROPERTY SUBJECT TO EXECUTION. 674 
 
 mittiug the mortgagor to remain in possession and 
 make sales, if be agrees to apply the proceeds of su,cli 
 sales to the satisfaction of the mortgage debt.^^^ In 
 such a case, the mortgage is not fraudulent per se; the 
 retention of possession is mereh' evidence of fraud 
 l)rima facie. If, under such an agreement, the mort- 
 gagors make sales, it is as the agents of and as the act 
 of the mortgagees, and every sale satisfies the mortgage 
 pro tanto, whether the money ever reaches the mort- 
 gagees or not/''*" The cases sustaining mortgages of 
 chattels, notwithstanding the mortgagor is, by the 
 terms of the mortgage or by some independent agree- 
 ment, permitted to remain in possession, and make 
 sales of the property mortgaged, are limited to the 
 classes of property, such as merchandise, kept for sale, 
 and where, therefore, the action of the mortgagor in 
 selling it is in the usual course of trade, and to deny 
 his right to sell would be, in effect, to deprive him of 
 the use of the property, or to compel him to discontinue 
 his usual business."**^ As to whether a mortgage may 
 be sustained where it permits a sale of the property by 
 the mortgagor without expressly stipulating that the 
 proceeds of the property shall be paid to the mortgagee, 
 to be applied upon the mortgage debt, the authorities 
 indicate that it will be presumed, until the contrary 
 appears, that the mortgagor makes sales as agent of 
 
 St. Rep. G32; Ilangen v. Hackmeister, 114 N. Y. SGG, 11 Am. St. 
 Rep. G91. 
 
 659 Ford V. Williams. 1.3 N. Y. 577, 07 Am. Doc. SB; Currie 
 V. Bowman, 25 Or. .364; Roundy v. Converse, 71 Wis. 524. 5 Am. St. 
 Rep. 240; Peabody v. Landon, 61 Vt. 318, 15 Am. St. Rep. 903; Whit- 
 son V. Griffis, 39 Kan. 211. 7 Am. St. Rep. 546; Murray v. Nealy, 86 
 Ala. 234, IT Am. St. Rop. 33; Benliam v. Ham, 5 W^nsh. 128, 34 Am. 
 St. Rep. 8.51. 
 
 060 Conklinsr v. Shelley. 28 N. Y. 360. 84 Am. Dec. 248. 
 
 661 Rieliardson v. .Jones. 56 Kan. .501. 54 Am. St. Rep. 594.
 
 C75 PERSONAL rKOrj:KTY 8UBJKCT TO KXECUTION. § 143 
 
 the mortgagee, and under an agreement to account for 
 the proceeds thereof and to have them ai)plied in liqui- 
 dation of the mortgage indebtedness/"*- 
 
 If the mortgagor is, by agreement of (lie parties, per- 
 mitted to retain any portion of the proceeds of sales 
 made by him, either for his own use, or for the support 
 or benefit of his family, or any member thereof, the 
 mortgage is doubtless fraudulent and void as a matter 
 of law.""-* The fact that a mortgage embraced much 
 more property than was necessary to amply secure the 
 mortgagee has been held to be a circumstance tending 
 to show that it was made to hinder, delay, or defraud 
 the creditors of the mortgagor/"'^ But, on the other 
 hand, it is claimed that the creditors ai"e not prejudiced 
 by such a mortgage, because the}- may release the prop- 
 erty by paying the mortgage debt, or may sell the prop- 
 erty subject t<) the lien.""° A mortgage may be made 
 for the purpose of hindering, delaying, or defrauding 
 creditors, in which case it is void as against them.*^*^*^ 
 If made for a sum in excess of the debt intended to be 
 
 secured, it is fraudulent and void/'"' But if the intent 
 
 / 
 
 662 New V. Sailors, 114 Ind. 407, 5 Am. St. Eep. G32; Roiindy v. 
 Converse, 71 Wis. 524, 5 Am. St. Rep. 240. 
 
 663 Place V. Lansworthy. 13 .Wis. 629, 80 Am. Dec. 758; Blakeslee 
 V. Rossman. 43 Wis. 123; Fisk v. Harshaw. 45 Wis. COS. 
 
 664 Bailey v. Burton, 8 Wend. 330; Mitcholl v. Boal, 8 Yorg. 134, 
 29 Am. Dec. 108; Bennett v. Union Bank. 5 Humph. 012; Hawkins 
 V. Allston, 4 Ired. Eq. 137; Adams v. Wheeler. 10 Pick. 199; Ford 
 V. Williams, 13 N. Y. 577, G7 Am. Dec. 83; Davis v. Ransom. 18 
 111. 396. 
 
 665 Downs V. Kissam, 10 How. 102; Bank of Georg^ia v. Higgin- 
 hottom. 9 Pet. 48. 
 
 660 Glass V. Butaven. 43 Neb. 334. 47 Am. St. Rep. 763; Sabln v. 
 Columl>us F. Co., 25 Or. 15. 42 Am. St. Rep. 756. 
 
 667 Divver v. McLaughlin, 2 Wend. 600; Bailey v. Burton. 8 Wend. 
 339; Tully v. Harloe. 35 Cal. 302, 95 Am. Dec. 102; Thompson v. 
 Richard.son D. Co., 33 Neb. 714, 29 Am. St. Rep. 505, and note; Kea 
 v. Eppstein, 87 Ga. 115.
 
 § 146 PERSONAL PROPERTY SUBJECT TO EXECUTION. 676 
 
 is to secure future advances to be ma(le,as well as an ex- 
 isting debt, the mortgage is not fraudulent, though the 
 fact that it is partly for future advances is not stated 
 therein.*^**** A mortgage to secure future advances or 
 benefits may, however, be fraudulent and void, as 
 where its object is to withdraAv property from the reach 
 of creditors and thereby obtain an advantage for the 
 mortgagor. Hence, it was held that if an insolvent 
 debtor transferred or conveyed his property to an at- 
 torney, or some one for the attorney's benefit, to secure 
 payment of further legal services to be rendered in liti- 
 gation, in which the debtor might thereafter engage, 
 that such mortgage was fraudulent and void as against 
 the mortgagor's creditors.®*** 
 
 § 146. Assignments for Benefit of Creditors.— it 
 seems to be unanimously conceded that an assignment 
 to a trustee for the benefit of creditors, whether general 
 or partial, is, in the absence of statutory prohibition, 
 valid.'*'"'^ It operates to withdraw the property from 
 the reach of all liens and processes taking effect subse- 
 quently to the execution of the transfer. In other 
 words, although such a transfer necessarily tends to 
 hinder and delay creditors, \)j depriving them of the 
 right to take the debtor's property in execution, and 
 
 688Tiilly V. Harloe, 35 Cal. 302, 95 Am. Doc. 102. 
 
 «69 Sholla barker v. Mottin. 47 Kan. 451, 27 Am. St. Rep. 306; Grain 
 V. Gould, 40 111. 204: Nkhol.'; v. McEwen. 17 N. Y. 22. 
 
 670 Brashear v. West, 7 Tot. 609; Kettlowell v. Stewart, 8 Gill, 
 473; Phippon v. Durham. 8 Gratt. 404; De Forost v. Bacon, 2 Conn. 
 633; Niolon v. Douglass, 2 Hill Cli. 443. .10 Am. Doc. 308; Moore v. 
 Collinsrs. 3 Dev. 126; Pearson v. Rockhill, 4 P.. ^Nlon. 290; Ilindman 
 V. Dill, 11 Ala. 689; Hall t. Denison. 17 Vt. 311; Niffhtln.salo v. 
 Harris. 6 R. I. 328; Dana r. Bank of Uuitod Stntos. 5 Watts & S. 
 224: Do Ruytor v. St. Peter's Chureli. 3 N. Y. 2.38: T.ondnn v. Parsley. 
 7 Jones, 319. An assignment of all the assi,iiuor's property, for the
 
 677 i'i:HSOXAL PROPERTY SUBJECT TO EXECUTION. § 146 
 
 apply its proceeds to the payment of their debts, yet, as 
 the creditor had the right to directly turn over his pr(jp- 
 erty to his creditors, in satisfaction of their demands, 
 he is allowed to accomplish the same result through 
 the intervention of a trustee. To deny the right to 
 hinder creditors, in a certain sense, would be to deny 
 the right to make an assignment for the benefit of 
 creditors, for such assignment, if given any operation, 
 must necessarily prevent some of the creditors from 
 reaching under execution or attachment property 
 which they could have reached but for such assign- 
 ment. And the assignor may have foreseen and in- 
 tended this result. He may have desired to prevent 
 the sacrifice of his assets, which must inevitably attend 
 their immediate seizure and sale under execution. To 
 this extent he has the right to hinder his creditors, and 
 the assignment is not rendered void thereby, provided 
 the hindrance is only such as results from turning over 
 the property in good faith, to be applied to the satis- 
 equal benefit of his creditors, is unquestionably valid, and if exe- 
 cuted more than six months before proceediuss in bankruptcy are 
 instituted against the assignor, it cannot be assailed by the assignee 
 in bankruptcy, nor to any extent impaired by proceedings under 
 the bankrupt act. Mayer v. Hellman, S Chic. L. N. 177. Such an 
 assignment is not fraudulent against creditors, nor does it give any 
 creditor a preference over another. It does not in any respect ac- 
 ■complish purposes in hostility to those which the bankrupt act is 
 designed to promote. It will, in all probability, be permitted to 
 stand, though made within less than six months prior to the com- 
 mencement of proceedings in bankruptcy. Sedgwick v. Place. 1 
 Nat. Bank. Reg. 204; Langley v. Perry, 2 Nat. Bank. Reg. .59G: In 
 re Kintzing, .3 Nat. Bank. Reg. 217; Farrin v. Crawford, 2 Nat. 
 Bank. Reg. G02; In re Wells. 1 Nat. Bank. Reg. 171; In re Marter, 
 12 Nat. Bank. Reg. 185. Contra: Globe Ins. Co. v. Cleveland Ins. 
 Co.. 8 Chic. L. N. 2,-)8; 13 Alb. L. J. 305; In re Burt. 1 Dill. 4?,9: In 
 re Goldschmidt. 3 Nat. Bank. Reg. 165; 3 Ben. ."70: In ve Langley. 
 1 Nat. Bank. Reg. 5~^9\ In re Smith. .'^ Nat. Bank. Reg. 377; 4 Ben. 
 1; Spicer v. Ward, 3 Nat. Bank. , Reg. 512.
 
 § 14tJ TEllSONAL rROPERTY SUBJECT TO EXECUTION. C7S 
 
 faction of bis debts.**''-'^ If, however, the bindcring of 
 creditors was tbe object rather than the incident of the 
 assignment; if the assignment was resorted to as a 
 mere device to gain time or to coerce the creditors, or 
 some of them, into malcing some settlement of their 
 claims, to which tbe assignor was not legally entitled — • 
 it is doubtless void.^''^ 
 
 In the absence of any statutory inhibition, a debtor 
 may prefer any one or more of his creditors, either by 
 making payment of his liabilities to them or by turn- 
 ing over property to them to be held as security, or to 
 be applied at once at an agreed value, or by means of 
 a sale, to the extinction of the debt. In many of the 
 states, statutes have been enacted forbidding prefer- 
 ences in assignments for the benefit of creditors; but, 
 in the absence of such statutes, the preferring of any 
 creditor or class of creditors, if free from any fraudu- 
 lent intent, does not render the assignment fraudulent 
 nor void/*'^^ The fact that some of the creditors are 
 
 671 Baldwin v. Peet. 22 Tex. 708, 75 Am. Dec. 806; Hempstead v. 
 Johnston, 18 Ark. 123, 65 Am. Dec. 458; Hoffman v. Mackall, 5 
 Ohio St. 124. 64 Am. Dec. 6.37; Houston E. E. v. "Winter, 44 Tex. 609; 
 Bailey v. Mills. 27 Tex. 437; Pike v. Bacon, 21 Me. 280, 38 Am. 
 Dec. 2.^)9: Hazell v. Tipton Bank, 95 Mo. 60, 6 Am. St. Ptep. 22; Ar- 
 nold V. nairerman. 45 N. .T. Eq. 186, 14 Am. St. "Rep. 712. 
 
 672 Knisht v. Packer. 1 Beasl. Ch. 214, 72 Am. Dec. 388; Kimball 
 V. Thompson, 4 Cush. 441, 50 Am. Dec. 799. 
 
 6T3 Note to Crawford v. Taylor, 26 Am. Dec. 584; Sommerville v. 
 Horton. 4 Yerg. 541, 26 Am. Dec. 242; Buffum v. Green, 5 N. H. 71. 
 20 Am. Dec. 562; "Wilkes v. Ferris, 5 Johns. 335, 4 Am. Dec. 364; 
 Mackie v. Cairns, 5 Cow. 547, 15 Am. Dec. 477; Murray v. Judson, 
 9 N. Y. 73, .59 Am. Dec. 516; Kuykendall v. McDonald, 15 Mo. 416, 
 57 Am. Dec. 212: Arthur v. C. & R. Bank, 9 Smedes & M. 394. 48 
 Am. Dec. 719; Skipworth v. Cunninirhani, 8 Leiiili, 271. 31 Am. 
 Dec. 642; Grover v. Wakeman, 11 Wend. 187, 25 Am. Dec. 624; 
 Hempstead v. Johnson, 18 Ark. 123, 65 Am. Dec. 4.58; Nye v. "Van 
 Husan, 6 Mich. 329, 74 Am. Dec. 690; Bank of Little Rock v. Frank, 
 C3 Ark. 16, 58 Am. St. Rep. 65; Turnipseed v, Schaefor, 76 Ga. 109,
 
 679 rEU.SONAL I'llOl'KllTY .S'JliJlXT TO EXECUTION. £ 11 ; 
 
 preferred to others will doubtless cause an assigniueut 
 to be viewed with suspicion; and may, when eonibincd 
 with other suspicious circumstances, produce the con- 
 viction that it was intended to defraud the other cred- 
 itors. Of course, if any actual design to defraud taints 
 the assignment, it is void. There are several things 
 which, when connected with nn assignment, are well- 
 establislicd ba«lg('s of fi"ni(l,aud some of which rendci- 
 the assignment fi-audulent p(^r se. The most prominent 
 of these will now be mentioned. An assignment will 
 not be allowed to withdraw property from the reach of 
 the creditors, that it may, to any extent, be secured for 
 the benefit of the assignor. He must part with all in- 
 terest in the property, except his right to such surplus 
 as may remain after satisfying the demands of his 
 creditors. Uence, when it appears that the debtor has 
 reserved some portion of the prox^ert}', or some interest 
 therein, for his own benefit; or that he stipulates for 
 some benefit or advantage for himself or for his family, 
 to be reserved out of the proceeds — it is evident that 
 he thereby seeks to withdraw something of value from 
 the reach of his creditors, and the assignment is fraudu- 
 lent per se."''* Nor is it necessary that this reserva- 
 
 2 Am. St. Itcp. 17; I'litton v. Leftwicb. SG Va. 421. 19 Am. St. Rep. 
 002; Hage v. Campbell, 7S Wis. 572, 23 Am. St. Kep. 422; Worthed 
 V. Griffiu, 59 Ark. 5G2. 43 Am. St. Rep. 50; Vaiidorpoel v. CJonn.m, 
 140 N. Y. 508, 37 Am. St. Rep. 001; Kalmiis v. liallin, 52 N. J. Eq. 
 290, 40 Am. St. Rep. 520; Cutter v. I'ollook, 4 X. 1). 205, 50 Am. St. 
 Kep. 644; contra: Malcolm v. Hall, 9 Gill. 177, 52 Am. Dec. 688; 
 Denny v. Dana, 2 Cu.sh. 100, 48 Am. Dec. 055; Johnson v. McGrew, 
 11 Iowa, 151. 77 Am. Dec. 137. 
 
 674 Montgomery v. Goodbar, 69 Miss. 333; Marks v. Bradley, 69 
 Miss. 1; Claflin v. Iseman, 23 S. C. 410; Cliafee v. Blatchford. 6 
 Mackey, 459; Pike v. Bacon, 21 Me. 280, ,38 Am. Dec. 2.59; Niolon 
 V. Douglas, 2 Hill Ch. 443, 30 Am. Dec. 308; Beck v. Burdett, 1 
 Paige, 305. 19 Am. Dec. 4.36; Green v. Trammel. 3 Md. 11: McAl- 
 lister V. Marshall, 6 Binn. 338, 6 Am. Dec. 458; Harris v. Sumner,
 
 § 146 PERSONAL PROPERTY SUBJECT TO EXECUTION. C80 
 
 tion appear on the face of the assignment. As the in- 
 tent to reserve some benefit to the assignor is very often 
 present, many devices have been resortecl to for the 
 jnirpose of accomj)lishing it. But in whatever guise 
 it may be concealed, it will, when discovered, avoid the 
 assignment. As the assignee is chosen by the as- 
 signor, they are usually personal friends, and entirely 
 in accord with respect to any scheme which may aid 
 the assignor at the expense of his creditors. The as- 
 signor may therefore usually rely upon the assignee to 
 carry out any anterior understanding or agreement 
 without inserting it in the assignment, or giving it 
 any other written authenticity. But it may be proved 
 and avoided by any competent evidence.'^'^^ The exist- 
 ence of a fraudulent agreement may be inferred, in the 
 absence of direct proof of its terms, from the conduct 
 of the parties. Thus, where it was shown that the 
 assignor was permitted to remain in the possession of 
 the property assigned, and to receive benefit therefrom, 
 the supreme court of Texas said: "Unquestionably, the 
 deed is to be received in the light of surrounding cir- 
 cumstances, in order to arrive at the real intention of 
 the parties. Unquestionably, the assignor, remaining 
 
 2 Pick. 129; Bratlway's Estate, 1 Asbm. 212; Green v. Branch Bank. 
 33 Ala. 643; Goodrich v. Downs, 6 Hill, 43S; Anderson v. Fuller. 1 
 McMull. Eq. 27. 30 Am. Dec. 290; Faunce v. Lesley. G Pa. St. 121: 
 Shaffer v. ^Vatkins, 7 "Watts & S. 219; Austin v. .Tohnson. 7 Humph. 
 191; Quarles v. Kerr, 14 Gratt. 48. In the followins? cases the as- 
 signment was held void for providing for support of grantor's fam- 
 ily: Richards v. Hazzard, 1 Stew. & P. 1.39; Johnston v. Harry. 2 
 Pen. & W. 82, 21 Am. Dec. 420; Henderson v. Downing, 24 Miss. 
 117. In Mead v. Phillips, 1 Sand Ch. 83, the dehtor reserved money 
 to pay expenses of suits; in Harney v. Pack. 4 Smedes & M. 229. 
 he reserved possession; in McClurg v. Lecky, 3 Pen. & W. 83, 23 
 Am. Dec. 64, he was to be employed by the assignees, at such price 
 as he should judge proper; and in each case the assignment was held 
 void. 
 675 Pettibone v. Stevens, 15 Conn. 19, 38 Am. Dec. 57.
 
 «81 TERSONAL PllOl'ERTY SUBJIXT TO EXECUTION. § 14C 
 
 in possession of the goods to dispose of them as agent 
 for the trustee, must be deemed, prima facie at least, 
 to have conducted himself in his dealing with them in 
 accordance with the understanding between himself 
 and his principal. The latter was bound to take notice 
 of the manner in which he conducted himself in his 
 employment. What the agent did, the principal must 
 be presumed to have assented to; and it is not unrea- 
 sonable to suppose that parties had contemplated in 
 advance a line of conduct which they are shown to have 
 pursued. Although the employment of the debtor by 
 the trustee is not forbidden by law, yet 'if he be per- 
 mitted, as their agent, to use and control the assigned 
 effects in a manner wholly inconsistent with the pur- 
 poses of the trust, and, as his own, it will be evidence 
 that the assignment was not made in good faith.' ^''^ * 
 The fair and natural inference deducible from the 
 evidence is, that the dealing of the parties with the 
 goods after the assignment was consonant with their 
 intention and private understanding at the time of 
 making it; and that it was intended not only to secure 
 the preferred creditors, and those who had incurred 
 liability as sureties of the assignor, but also to secure 
 to the assignor himself certain benefits out of the prop- 
 ertv assigned, to the hindrance of other creditors in the 
 enforcement of their rights. That sucli a i)nrpL)se will 
 render the deed fraudulent and void as to the deferred 
 creditors does not admit of question." ^'^ It must, 
 however, be admitted that there are cases inconsistent 
 with this general rule, and which have supported reser- 
 vations for the advantage of the assignor. The rule 
 itself is not denied. The exceptional cases have been 
 
 eTsaBurrill on Assisinnionts. 174; Smith v. Poavitts. 10 Ala. 92, 105. 
 «76 Liun V. Wright, IS Tex. 317, 70 Am. Dec. 2S2.
 
 §liG PERSONAL PROPERTY SUBJECT TO EXECUTION. CS2: 
 
 occasioned by reservations of trifling value, or of so 
 meritorious a nature that the court strained the law 
 in their favor.^''^ The assignment must be uncondi- 
 tional, and must place the property beyond the control 
 of the debtor. Hence, an assignment to a trustee, per- 
 sonally, for his life, or till his resignation,*'"'* or with a 
 power of revocation,"''*^ or with the right to make loans 
 on the security of the property assigned,*'*^** is void; 
 for in each case<the debtor attempts to withdraw the 
 property, for a time, from his creditors, with the i)rivi- 
 lege of resuming in the future his rights of ownership. 
 In one instance, an assignment, with tlie stipulation 
 that the assignees should hold the property for twenty- 
 five days, during which the debtor had the privilege of 
 paying the creditors, and putting an end to the assign- 
 ment, was held to be void; ^'^^ but in another instance, 
 under a similar assignment, the stipulation in favor of 
 the assignor was held to be a mere circumstance for the 
 consideration of the jury in determining whether there 
 was any intent to delay or defraud creditors."*^^ "Every 
 assignment is absolutely void if it does not appoint and 
 declare the uses for which the property is to be held^ 
 and to which it is to be applied. A provision that the 
 uses shall be subsequently declared will not do. They 
 
 677 Canal Bank v. Cox, 6 Creenl. 30.5; Skipworth v. Cunningham, 
 8 Leigh, 271, 31 Am. Dec. (i42; Kevan v. Branch. 1 (Jratt. 27.5. The 
 cases of ivrurray v. Riggs. 1.5 .Tohns. .571. and Austin v. Bell. 20 
 Johns. 442, 11 Am. Dec. 297. sustaining reservations for the supimrt 
 of the debtor's family, are inconsistent with later cases in the- 
 same state. 
 
 678 Smith V. Hurst, 10 Hare. 30: 22 L. J. Ch. 289: 17 .Tur. ,10. 
 
 679 Rigors V. Murray, 2 Johns. Ch. 5G3: Cannon v. Peebles, 4 Ired. 
 204; 2 Ired. 449; Hyslop v. Clark, 14 Johns. 458. 
 
 6S0 Phcppards v. Turpin, 3 Graft. 373. 
 6^1 Whallon v. Scott, 10 Watts, 237. 
 «S2 Hafner v. Irwin, 1 Ired. 490.
 
 683 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 146 
 
 must accompany the instrument, and appear on its 
 face, in order to rebut the conclusive presumption of a 
 fraudulent intent, wliicli would otherwise arise." *^^ 
 To permit the assignor to declare subsequently the uses 
 for which the property is to be held, or to direct what 
 preferences should be given, would, in effect, allow him 
 to retain a control over the property as valuable to him 
 as though he retained an interest for his own benefit or 
 that of his family. With this power he could easily 
 coerce his creditors into executing releases or granting 
 other valuable privileges. Nor can a power of this ^' 
 character be conceded to the assignee. Where an as- 
 signment classified the creditors of the assignor, and 
 designated the order in which they should be paid, but 
 gave the assignee authority from time -to time, and 
 whenever it shall be for the mutual interest of, the sev- 
 eral parties beneficially interested, to depart from the 
 order of payment hereinbefore appointed and directed, 
 by settling in full or in part, by compromises or other- 
 wise, any of the debts or liabilities specified in tho 
 schedule hereto annexed, it w^as declared void on its 
 face, because there was apparent therefrom a "design 
 to hinder and delay creditors in the collection of their 
 debts, and because" such a provision, if tolerated, 
 would enable a debtor to set his creditors at defiance, 
 and comjiel them to bid against each other for his 
 favors, and would be virtually vesting him with pow- 
 ers Bump on Fraudulent Conveyancos, 382: Orovor v. Wakomnn. 
 11 Wend. 1ST, 2.J Am. T>ec. 024; Harvey v. Mix. 24 Conn. 40<i: Bur- 
 bank V. Hammond, 3 Sum. 420. Hence, the assignor cannot retain 
 the right to designate the order in which his creditors shall be paid. 
 If any preferences are intended, they must be stated and regu- 
 lated in the assignment. Sheldon v. Dodge. 4 Denio, 221: Brainard 
 T. Dunning, 80 N. Y. 214: Strong v. Skinner, 4 Barb. 559; Smith 
 V. Howard, 20 How. Pr. 127.
 
 § 141} PERSONAL rROPERTY SUBJECT TO EXECUTION. 6S4 
 
 ers which no one would suppose he could in terms re- 
 serve to himself in the deed of assignment.^**"* 
 
 The assignment need not fix the time within w'hich 
 the trust thereby- created must be executed. But if a 
 time is specified, it must be reasonable — not so short 
 as to compel a sacrifice of the proi^erty, and not so long 
 as to indicate an intent to unreasonably and unneces- 
 sarily postpone the payment of the debts. Anything 
 unreasonable in either respect is a badge of fraud, and 
 may avoid the assignment.*^**^ An assignment author- 
 izing the trustees to sell on credit is fraudulent per se 
 in some states,*^*^** fraudulent prima facie in others,*'*'' 
 and prima facie valid in others.**®* A difference of 
 opinion exists respecting the signification of certain 
 
 6«iGaz7.ani v. Poyiitz, 4 Ala. 374, 37 Am. Dec. 745; Barnum v. 
 Hempstead, 7 Paige, 5GS. 
 
 6S5 Carlton v. Baldwin. 22 Tex. 724: Robins v. Embry, 1 Smedes 
 & M. Ch. 207; Sheerer v. Lautzerheizer. 6 Watts, .543; Sheppards v. 
 Turpin, 3 Gratt. 373; Shearer v. Loftin, 26 Ala. 703; Vaughan v. 
 Evans, 1 Hill Ch. 414; Repplier v. Orrich, 7 Ohio, part 2, p. 246; 
 Knight V. Paokei', 1 Beasl. 214; Farquharson v. McDonald. 2 Heisk. 
 404; Hafner v. Irwin. 1 Ired. 490; Hardy v. Simpson, 13 Ired. 138; 
 Rundlett v. Dole. 10 N. H. 4-58; Bennett v. Union Bank, 5 Humph. 
 612; Adlum v. Yard, 1 Eawle, 163, 18 Am. Dec. 608; :\ritchell v. 
 Beal, 8 Yerg. 134, 29 Am. Dec. 108; Ward v. Trotter, 3 T. B. Men, 
 1; .Tohnson v. Thweatt, 18 Ala. 745. 
 
 686 Barney v. Griffin, 2 N. Y. 366; Nichol.son v. Leavitt. 6 N. Y. 
 510, 57 Am. Dec. 499; Dunham v. AVaterman. 17 N. Y. 17. 72 Am. 
 Dec. 4m; Bowen v. Parkhurst, 24 HI. 261; Keep v. Sanderson, 2 
 Wis. 42, 00 Am. Dec. 404; Porter v. Williams, 9 N. Y. 142, .59 Am. 
 Dec. 519; Truitt v. Caldwell. 3 Minn. .364, 74 Am. Dec. 764; Inloes 
 V. Am. Ex. Bank, 11 Md. 173, 69 Am. Dec. 190; Jones v. Syer, 52 
 Md. 216. 36 Am. Rep. 366. 
 
 687 Billings V. Billings, 2 Cal. 113, .56 Am. Dec. 319. 
 
 688 Giniell v. Adams, 11 Humph. 285; Shackelford v. Bank of Mo- 
 bile, 22 Ala. 238; Abercrombie v. Bradford. 16 Ala. 560; Hoffman 
 V. Mackall. 5 Ohio St. 124, 64 Am. Dec. 637; Conkling v. Coonrod. 
 6 Ohio St. 611: Baldwin v, Peet, 22 Tex. 712. 75 Am. Dec. 806: Berry 
 v. Hayden, 7 Iowa, 472; Moody v. Carroll, 71 Tex. 143, 10 Am. St. 
 Rep. 734.
 
 685 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 146 
 
 phrases frequently employed in assignments, as where 
 the assignee is directed to sell the property "upon such 
 terms and conditions as in his judgment may appear 
 best and most for the interest of the parties concerned." 
 Perhaps the better opinion is, that these words do not 
 authorize a sale upon credit, because it must have been 
 intended that the discretion conferred should be exer- 
 cised within legal limits, and that they no more sanc- 
 tion a sale upon credit than they do any other illegal 
 mode of disi)()sing of property; such, for instance, as a 
 sale by lottery or raffle.**^* 
 
 So a marked diversit}^ of opinion exists in regard to 
 the validity of assignments which stipulate that the 
 proceeds shall be divided among those creditors only 
 who shall execute a release of all demands against the 
 assignor. This stipulation is clearly a reservation in 
 favor of the debtor, as it provides for his exoneration 
 from legal liability. It is an attempted coercion of the 
 creditors; and is not a full and unconditional relin- 
 quishment of the property for their benefit. If allowed 
 to stand, it must necessarily enable debtors to compel 
 creditors to compromise their claims, because it with- 
 draws property from the reach of execution, and says 
 to the creditors, You shall not obtain relief, except on 
 such terms as the debtor has proposed. By a majority 
 of the authorities, such assignments are declared to be 
 fraudulent per se; *"*" but by quite a respectable minor- 
 ess Keiiocj: V. Slauson, 11 X. Y. ,*^02: Nye v. Van Hnsan. r> Mich. 
 329, 74 Am. Dec. GOO; Booth v. McNair, 14 Mich. 22: Wliipple v. 
 rope. r,:'. in. .ino. Contra: Hntcliinson v. Lord. 1 Wis. 280. GO Am. 
 Dec. 3S1; Sumner v. HiclvS. 2 Blaclc, 532. 
 
 690 iiyslop V. Clarlie, 14 Johns. 45S; Walieman v. Orover. 4 Paise, 
 23; Spaiikluig v. Strang, 32 Barb. 235; Hafner v. Irwin. 1 Ired. 490; 
 Robins y. Eml)ry. 1 Smedes & M. Ch. 208: Wolsoy v. Urner. Wriiilit, 
 606; Swearingen v. Slicer, 5 Mo. 241; Brown v. Knox, 6 Mo. 302;
 
 S 146 PERSONAL PROPERTY SUBJECT TO EXECUTION. GSG 
 
 ity, tliey are asserted to be good and valid, if not other- 
 wise objectionable;^^* and in Arkansas a debtor as- 
 signing all his property for the benefit of creditors may 
 exact releases from creditors as a condition of their 
 participating in the benefits of the assignment.^^^ The 
 known character and circumstances of the assignee 
 may be such as to clearly disqualify him from per- 
 forming the duties of his trust. If so, his selection in- 
 dicates an intent adverse to the interests of the cred- 
 itors, and is, at least, prima facie evidence of fraud. 
 Among the well-established disqualifications of as- 
 signees are, "nonresidence,^^^ blindness,*'*^* want of 
 
 Ingraham v. Wheeler, 6 Conn. 277; Howell v. Edgar, 3 Scam. 417; 
 ■Ramsdell v. Sigerson, 2 Gilm. 78; Malcom v. Hodges, 8 Md. 418; 
 Albert v. Winn, 7 Gill, 44G; Bridges v. Hindes, 16 Md. 104; The 
 Watchman, 1 Ware, 232; Pearson v. Crosby, 23 Me. 261; Yose v. 
 Hoi comb, 31 Me. 407; Hurd v. Silsby, 10 N. H. 108, 34 Am. Dec. 
 142; Atkinson v. Jordan, 5 Ohio, 295, 24 Am. Dec. 281; Conkling v. 
 Carson, 11 111. 503; Graves v. Roy, 13 La. 454, 33 Am. Dec. 568; 
 Miller v. Conklin, 17 Ga. 430; Henderson v. Bliss, 8 Ind. 100; Butler 
 V. Jaffray, 12 Ind. 504; Gimell v. Adams, 11 Humph. 283; Wilde 
 V. Rawlings, 1 Head, 34; Wilson's Accounts, 4 Pa. St. 430, 45 Am. 
 Dec. 701; Duggan v. Bliss, 4 Colo. 223, 34 Am. Rep. 80; Tarbox v. 
 Stevenson, 56 Minn. 510; Clarke v. Baker, 36 S. C. 420. 
 601 Todd V. Bucknam, 11 Me. 41; Borden v. Sumner, 4 Pick. 265, 
 
 16 Am. Dec. 338; Nostrand v. Atwood, 19 Pick. 281; Halsey v. Whit- 
 ney. 4 Mason, 206; Lippiucott v. Barker, 2 Binn. 174, 4 Am. Dec. 
 433; Livingston v. Bell, 3 Watts, 198; Bayne v. Wylie, 10 Watts, 
 309; Skipwith v. Cunningham, 8 Leigh, 271, 31 Am. Dec. 642; Niolon 
 V. Douglas, 2, Hill Ch. 443, 30 Am. Dec. 368; Le Prince v. Guillemot, 
 
 I Rich Eq. 187; Brashear v. West, 7 Pet. 608; Pearpolnt v. Graham, 
 4 Wash. C. O. 232; Lea's Appeal, 9 Pa. St. 504; Hall v. Denison, 
 
 17 Vt. 310; Spencer v. Jackson, 2 R. I. 35; Gordon v. Cannon, 18 
 Gratt. 387; Wolf v. Gray, 53 Ark. 75; Collier v. Davis, 47 Ark. 367, 
 58 Am. Rep. 758; Hewlett v. Cutler, 137 Mass. 285; Smith v. Millett, 
 
 II R. I. 528; Keating v. Vaughn, 61 Tex. 518. 
 
 692 King V. Hargadine Kittrlck Co., 60 Ark. 1; Wolf v. Gray, 53 
 
 Ark. 75. 
 093 Cram v. Mitchell, 1 Sand. Ch. 251; Cox v. Piatt, 32 Barb. 126; 
 
 19 How. Pr. 121. 
 694 Cram v. Mitchell, 1 Sand. Ch. 251.
 
 <5S7 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 14G 
 
 learning, ^"^ conflicting interosts,*^^" and insolvcncj-.'"*'^'' 
 It is manifest that any consideration wliicli we can 
 here give to tlie subject of assignments for the benefit 
 of creditors must necessarily be incomplete.*''*'^ The 
 question involved in this subject most germane to the 
 'topic here under consideration is, does an assignment 
 for the benefit of creditors, because of some fraud or 
 other vice therein, leave the property in such a condi- 
 tion that it may, whether possession thereof has been 
 taken by the assignee or not, be subjected to execution 
 against the assignor^ Though his object was to hinder 
 or defraud his creditors, still the beneficiaries in the 
 assignment are those same creditors, and their equities 
 are, at least, equal to those of any nonassenting cred- 
 itor who may seek to disregard the assignment, and by 
 a levy of his writ thereby obtain a i)reference over other 
 creditors. Whether the assignment is fraudulent or 
 not, the statutes of the state in which it was executed 
 may require it to be free from preferences and to in- 
 clude all the debtor's property subject to execution, or 
 that it be accompanied by specified affidavits or sched- 
 ules, or that the assignee, within a time prescribed, 
 give a bond or take an oath of office, or otherwise qual- 
 ify for the discharge of the trust, and the assignment 
 assailed may have omitted compliance with the statute 
 in some of these respects. In New York it has been 
 held that an assignment for the benefit of creditors, 
 
 605 Cram y. Mitchell, 1 Sand. Ch. 251; Gueriu v. Hunt, 6 Minn. 
 375. 
 
 896 Hays V. Doane, 3 Stock. 84. 
 
 697 An.soll V. Roseubury, 12 ilich. 241; Browning v. Hart. Barb. 
 91; Reed v. Emory, 8 Paige. 417. 3.') Am. Dec. 720; Connah v. Sedg- 
 wick, 1 Barb. 211; Ciirrie v. Hart. 3 Sand. Cli. S.jG. 
 
 6!>7 a For a more ample consideration of this subject, see note to 
 Bank of Little Rock v. Frank, 58 Am. St Rep. 74 to 101.
 
 § 1113 rEK.-SONAL PROPERTY SUBJECT TO EXECUTION. OSS 
 
 not ill compliance witli the statute, may be treated as 
 void by an attachment or execution creditor who has 
 not assented thereto.*'^^ In some of the other states^ 
 the writ may be levied, notwithstanding the assign- 
 ment, if, before the IcAy, the other creditors have not 
 assented and made themselves parties to the assign- 
 ment, but, as to those who have thus assented and be- 
 come parties, a levy cannot be made because of fraud 
 on the part of the assignor, if they have not partici- 
 pated therein.**'**'* Where, from the assignment itself 
 or the subsequent writings connected w^ith it, and 
 which are matters of record, it clearly appears that the 
 assignment is, in contemplation of law, fraudulent, or 
 that it seeks some purpose, the accomplishment of 
 which the law will not permit,'*'** or that compliance 
 with some mandatory provision of the statute has been 
 omitted, there can be no innocent assignee nor innocent 
 creditors, for all persons having knowledge of the as- 
 signment and such proceedings thereunder have notice 
 of the vices connected therewith, and therefore we see 
 no reason for sustaining it as against any nonconsent- 
 ing creditor and no reason why he may not levy a writ 
 upon any of the property sought to be assigned without 
 taking any notice whatever of the assignment.''*** An 
 assignment for the benefit of creditors may be void be- 
 cause it does not comply with the statutory require- 
 ments in relation to making a valid assignment, as 
 where no inventory- is made and filed within the time 
 
 698 Hess V. Hess. 117 N. Y. 300; McConnell v. Sherwood, 84 N. Y. 
 522, 38 Am. Rep. 537. 
 
 699 Copeland v. Weld. 8 Me. 411; Ingraham v. Geyer, 13 Mass. 
 147, 7 Am. Dec. 1.32; Everett v. Walcott, 15 Pick. 94. 
 
 700 Riley V. Carter, 7G Md. .581. .35 Am. St. Rep. 443. 
 
 701 Orcber v. Culver, 84 Wis. 2135; Knigbt v. Packer, 12 N. J. L. 
 214, 72 Am. Dee. 388.
 
 689 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 146 
 
 prescribed/"^ or where the oath required is not 
 made,''"^ or where the assignor's right of redempti'on 
 in certain premises, conveyed for the security of a debt, 
 is omitted from the schedule/""* or where the statutory 
 certificate, that the copy of the assignment, filed as pre- 
 scribed by statute, is a true and correct copy of the orig- 
 inal, has not been indorsed or written on the copy of 
 the assignment,''"^ or where omitted creditors, whose 
 debts are secured by collaterals, or otherwise, are ex- 
 cluded from the benefits of the assignment, or where 
 no definite time is fixed within which such creditors 
 must file their claims/"** or where the deed of assign- 
 ment is not witnessed,'"'" or not acknowledged and re- 
 corded.'^"* Statutory provisions prescribing formali- 
 ties to be observed in making assignments for the bene- 
 fit of creditors are mandatory,'"'"* and an intention to 
 defraud, in any material matter whatever, will always 
 vitiate the assignment.'^" With respect to the omission 
 of assets from the schedule, the question in each par- 
 ticular case should be determined with reference to the 
 number, materiality, and importance of the omissions, 
 and whether they were made by oversight and inad- 
 vertence, or deliberately and with intention to de- 
 fraud.'^^^ An omission of assets amounting to three 
 
 702 Connor v. Omaha Nat. Bank, 42 Neb. G02. 
 
 703 Williams v. Crocker, 36 Fla. 61. 
 
 704MiMillan v. Kuapp, 76 Ga. 171, 2 Am. St. Eep. 29. 
 
 T05 Grever v. Culver, 84 Wis. 295. 
 
 106 Bickliam v. Lake, 51 Fed. Rep. 892. 
 
 T07 Sager v. Summers, 49 Neb. 459. 
 
 708 Seal V. Duffy, 4 Pa. St. 274, 45 Am. Dec. G91; Wright v. Lee, 
 2 S. D. 625; Cannon v. Deming, 3 S. D. 421. 
 
 709 Grever v. Culver, 84 Wis. 295, 298. 
 
 710 Woods V. Haynes, 92 Ga. 180, 186. 
 
 711 Turnipseed v. Schaefer, 76 Ga. 109, 2 Am. St. Rep. 17; Al- 
 
 VOL. L— 44
 
 § 14G PERSONAL PROPERTY SUBJECT TO EXECUTION. 
 
 690 
 
 thousand dollars is enough to vitiate an assignment, 
 under a law requiring the schedules to be "full" and 
 "complete," "^ and, generally, when the statutes of the 
 state appear to be mandatory and to indicate that a 
 compliance with their provisions is essential to an as- 
 signment for the benefit of creditors, assignments in 
 disregard of such statutes, whether actually or pre- 
 sumptively fraudulent, must be disregarded, whether 
 the assignee or the creditors participate in the fraud 
 or not, or had notice of the other vice on account of 
 which the assignment is asisailedJ^^ Where these 
 views prevail, the assignment or the title of the as- 
 signee is subject to collateral attack. There is, how- 
 ever, a growing tendency in the courts, where their de- 
 cisions are not controlled by statutory provisions, to 
 perfect, rather than to disregard, an assignment for the 
 benefit of creditors when not infected with any fraud of 
 which the assignee or the creditors relying thereon had 
 any notice. Hence, such courts, where improper prefer- 
 ences are sought, may disregard such preferences and 
 permit the valid provisions of the assignment to remain 
 in force, and, where improper acts have been done by 
 the assignor, or he has been actuated by improper mo- 
 tives, or where he or his assignee has in some respects 
 failed to comply with the law, the creditors who are 
 
 bany etc. S. Co. v. Southern etc. Works, 76 Ga. 135, 2 Am. St. Rep. 
 26; Woods v, Haynes. 92 Ga. 180. 
 
 712 Turnipsecd v. Schaefer, 76 Ga. 109, 2 Am. St. Rep. 17; Albany 
 etc. S. Co. V. Southern etc. Works, 76 Ga. 135, 2 Am. St. Rep. 26. 
 
 713 Craft V. Bloom, 59 Miss. 69, 42 Am. Rep. 351; Savage v. Knight. 
 92 N. C. 493, 53 Am. St. Rep. 423; Coblentz v. Driver M. Co., 10 
 Utah, 96; Bank of Commerce v. Payne, 86 Ky. 446; Shufield v. Jen- 
 kins, 22 Fed. Rep. 359; Harshman v. Lowe, 9 Ohio, 93; Sutherland 
 V. Bradner, 116 N. Y. 410; Blair v. Black. 31 S. C. 346. 17 Am. St. 
 Rep. 30; Kimball v. Evans, 58 Vt. 655; Summers v. White, 71 Fed. 
 Rep. 106.
 
 691 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 147 
 
 not at fault will not be punished for such misconduct 
 or noncompliance, and the assij^niucut will be treated 
 as creating a valid trust in their I'avor, entitlinj;- all to 
 share pro rata in the assigned property, whether some 
 seek to assail the assignment or not.''^* 
 
 § 147. Necessity of Change of Possession Accompany- 
 ing Transfer of Title.— In many of the s.tates, a sheriff 
 may levy upon personal property under an execution 
 against a vendor thereof, if he finds such property in 
 the possession of such vendor, unless there has first 
 been an open and notorious delivery to the vendee, and, 
 after such delivery and notoriety, the property has, 
 in good faith, been returned to the custody of the 
 vendor. The statute of 13 Elizabeth, c. 5, declared that 
 every feoffment, grant, alienation, conveyance of any 
 lands, tenements, hereditaments, goods, and chattels, 
 and every bond, suit, judgment, and execution made to 
 delay, hinder, or defraud creditors, shall, as against 
 the person delayed or defrauded, be utterly void. This 
 statute does not purport to modify the rules nor the 
 effect of evidence; nor does it declare that, from the 
 existence of any particular fact, an intent to hinder, 
 delay, or defraud creditors shall be conclusively pre- 
 sumed. But in the forty-fourth year of the reign of 
 
 T14 Farwell v. Cohen, 138 111. 216; Wolf v. Slaw.son, 83 Mich. 543, 
 21 Am. St. Rep. 613; Hamilton-Brown S. Co. v. IMorcer. 84 Iowa. 
 537, 35 Am. St. Rep. 331; Second N. B. v. Schranck, 43 Minn. 38: 
 Barrett v. Pollak Co., 108 Ala. 390, 54 Am. St. Itep. 172; Bank of 
 Little Rock v. Frank, 62 Ark. 16. 58 Am. St. Rep. 65; Henderson 
 V. Pierce, 108 Ind. 462; Grubbs v. King, 117 Ind. 243; Truss v. Da- 
 vidson. 90 Ala. 359; Kruse v. Prindle, 8 Or. 158: Paul v. Bansh. 85 
 Va. 9.55; Talley v. Curtain, 54 Fed. Rep. 43; Smith v. Stoker. 8 
 Colo. 286; Hempstead v. Johnson, 18 Ark. 123. 65 Am. Dec. 458; 
 Emerson v. Senter. 118 U. S. 3; Hassel v. I^yfort, 105 Ind. 534; 
 Moody V. Carroll, 71 Tex. 143, 10 Am. St. Rep. 734.
 
 § 147 PERSONAL PROPERTY SUBJECT TO EXECUTION. 692 
 
 Elizabetli, an information against Twyne, for making 
 and publishing a fraudulent gift of goods, was heard 
 in the star-chamber. One Pierce, being possessed of 
 goods and chattels, made in secret a general deed of 
 gift of all his goods and chattels to Twyne, in consid- 
 eration of the release of antecedent indebtedness. 
 Pierce, however, continued in possession, treating the 
 property in all respects as though it were his own. C, 
 another creditor of Pierce, took out a fieri facias, and 
 was proceeding to levy, when he and the sheriff were 
 forcibly resisted by Twyne, who claimed the goods un- 
 der his gift from Pierce, "and whether this gift, or the 
 whole matter, was fraudulent and of no effect, by the 
 said act of 13 Elizabeth, or not, was the question. And 
 it was resolved by Sir Thomas Egerton, lord-keeper of 
 the great seal, and by the chief justices Popham and 
 Anderson, and the whole court of star-chamber, that 
 this gift was fraudulent within the statute of 13 Eliza- 
 beth. And in this case divers points were resolved: 
 
 "1. That this gift had the signs and marks of frauds 
 because the gift is general, without exception, of his 
 apparel, or anything of necessity; for it is commonly 
 said, quod dolosus versatui in generalibus. 
 
 "2. He continued in possession, and used them as 
 his own; and by reason thereof he traded and trafficked 
 with others, and defrauded and deceived them. 
 
 "3. It was made in secret, et dona clandestina sunt 
 semper suspiciosa. 
 
 "4. It was made pending the writ, 
 
 "5. Here was a trust between the parties; for the 
 donor possessed all, and used them as his proper goods, 
 and fraud is always appareled and clad with a trust, 
 and trust is the cover of fraud.
 
 €93 PERSONAL PROPEIITY SUBJECT TO EXECUTION. § 147 
 
 "6. The deed coutaius that the gift was made hoo- 
 ■estly, truly, and boua fide; et clausulae iucousuet sem- 
 I^er inducuut suspicionem, 
 
 "Secondly, it was resolved that, notwithstanding 
 here wajs a true debt to Twyne, and a good considera- 
 tion of the gift, yet it was not within the proviso of the 
 said act of 13 Elizabeth, by which it was provided that 
 said act shall not extend to any estate or interest in the 
 lands, etc., goods, or chattels, made on good considera- 
 tion, and bona fide; for no gift shall be deemed to be 
 bona fide within said proviso Avhich is accompanied 
 with any trust. As if a man be indebted to five several 
 l)ersons, in several sums of twenty pounds, and hath 
 goods of the value of twenty pounds, and makes a gift 
 of all the goods to one of them, in satisfaction of the 
 debt, but there is a trust between them, that the donee 
 shall deal favorably with him in regard to his poor 
 <?state, either to permit the donor, or some other for 
 him or for his benefit, to use or have possession of 
 them, and is contented that he shall pay him his debt 
 when he is able, this shall not be called bona fide within 
 said proviso; for the proviso saith, on a good considera- 
 tion and bona fide; so a good consideration does not 
 suffice if it be not also bona fide. And, therefore, 
 reader, when any gift shall be to you, in satisfaction of 
 a debt, by one who is indebted to others also: first, let 
 it be made in a public manner and before the neighbors, 
 and not in private, for secrecy is a mark of fraud; sec- 
 ond, let the goods and chattels be appraised, by good 
 people, to the very value, and take a gift in particular 
 in satisfaction of your debt; third, immediately after 
 the gift, take possession of them, for continuation of 
 possession in the donor is a sign of trust." '^** 
 
 715 Twyne's Case, 3 Coke. SO: 1 Sniitirs Load. Cas. 1.
 
 § 147 PERSONAL PROPERTY SUBJECT TO EXECUTION. 694 
 
 In this case, the continuance of the vendor's posses- 
 sion was certainly one of the most material of the 
 grounds upon which the court reached the conclusion 
 that the sale was fraudulent, aud, therefore, void as 
 against other creditors. It does not, however, appear 
 clearly that this ground alone could have produced the 
 same conviction as when aided by the other grounds. 
 Possession was here characterized as a sign of fraud; 
 but it was not asserted to be an indubitable sign. 
 
 Whether justifiably or not, Twyne's Case came to be 
 regarded as authority for the doctrine that, when an 
 absolute sale has been made, the continuance of the 
 vendor in possession of the goods sold is fraudulent per 
 se, rendering the sale void as to creditors, and the prop- 
 erty liable to seizure and sale under execution against 
 the vendor. This doctrine received the support of some 
 subsequent English adjudications;''*** but in that 
 country it was afterward clearly displaced by the other 
 doctrine, that "the question of fraud or no fraud is one 
 for the consideration of the jur^"; that the continu- 
 ance of the vendor in possession of the property sold 
 is to be treated ais a very material fact in such consid- 
 eration, but not as requiring a verdict of fraud where 
 the jury is satisfied that the transaction was bona fide, 
 and without any intent to hinder, delay, or defraud.''*'' 
 
 716 Edwards v. Harben. 2 Terra Rep. oST: Reed v. Blades?, 5 
 Taunt. 212; Paget v. Percliard, 1 Esp. 2^5; Wordall v. Smith, 1 
 Camp. 332; Shears v. Rogers, 3 Barn. & Adol. 303. 
 
 717 Martindale v. P.ooth, 3 Barn. & Adol. 498; Carr v. Burdiss, 5 
 Tyrw. 316; 1 Cromp. M. & R. 782; Laliiiior v. Batson, 4 Barn. & 
 C. 652; 7 Dowl. & R. 106; Kidd v. Rawlinson. 2 Bos. & P. 59; 3 
 Esp. 52; Pennell v. Dawson, 18 Com. B. 355; Hale v. Met. S. O. 
 Co., 28 L. J. Ch. 777; 7 Week. Rep. 316; 4 DreAv. 492; Watkins v. 
 Birch, 4 Taunt. 823; Cole v. Davies. 1 I.d. Raym. 724: Macdona v. 
 Swiney, 8 Irish Ch. L. Rep. 73; Storor v. Hunter. 3 Barn. & C. 
 368; 5 Dowl. & R. 240; Eastwood v. Browne, Russ. & M. 312; Hun- 
 ter V. Corbett, 7 U. C. Q. B. 75.
 
 695 PERGONAL I'ROl'ERTY .Sb-BJECT TO EXECUTION. § 148 
 
 But by the act of 17 and 18 Victoria, c. 3G, "for pre- 
 venting frauds upon creditors by secret bills of sale of 
 personal chattels," every bill of sale of chattels, wheth- 
 er absolute or conditional, whether subject to or free 
 from trusts, must be filed with a public officer, named 
 in the act, within twenty-one days after the making 
 or giving of such bill of sale, or it will, in favor of 
 creditors, be regarded as void ,as to all chattels still in 
 possession of the vendor. 
 
 § 148. Rule as to Change of Possession in Majority 
 of the United States. — Mr. Parsons, in his work on con- 
 tracts, says: "There seems now to be a tendency to con- 
 sider the question of fraud as a question of fact, in 
 relation to which the circumstance of possession is of 
 great weight, though not absolutely conclusive. The 
 question is thus taken from the court, who should infer 
 it from a single fact, and is left to the jury, who may 
 consider all the facts, and determine how far the fact 
 of possession is explained and made consistent with an 
 honest purpose" ; '^^ and he further states, in his foot- 
 note, that "although few questions in the law present 
 a greater conflict of authorities than this, we believe 
 that reason, analogy, and the current of modern au- 
 thority, both English and American, support the prin- 
 ciple laid down in the text." While these remarks are 
 substantially correct, the current of the American au- 
 thority tends in the direction indicated with h^ss force 
 than Mr. Parsons seemed to realize. In fact, the 
 current of these authorities, like that of some of our 
 mightiest rivers, so frequently shifts from one side to 
 the other, and is so obscured by the turbid matter 
 
 718 1 Parsons on Contracts, 4th ed., 442.
 
 § 148 PERSONAL PROPERTY SUBJECT TO EXECUTION. 696 
 
 through which it flows, and of which it is a part, that 
 its course can hardly be descried by the most careful 
 observer; and, w^hen ascertained, must constantly be 
 verified by new observations. If the American decis- 
 ions on this subject were to be ranged in opposing lines, 
 it would be found that neither side far outnumbered 
 the other; while probably- a majority of the jurists of 
 whom Americans have felt most proud would be found 
 to have indorsed the opinions which are now regarded 
 as deviating from the current of authority. The law 
 as stated by Mr. Parsons in the above quotation pre- 
 vails in Alabama,'^-'^** Arkansas,'^^^ and Georgia.'^^^ In 
 Indiana a different rule was at first laid down in refer- 
 ence to mortgages;'''^ but was soon after modified,''^* 
 and was next followed by a case involving the effect of 
 possession retained by a vendor after an absolute sale. 
 We are not sure that we understand the legal principles 
 upheld by this last decision, but we believe that the 
 court intended to hold that fraud was a question of 
 fact for the jury, notwithstanding the want of a change 
 of possession.'^^* The matter is now set at rest by a 
 statute, under which a sale, not accompanied by a 
 change of possession, is presumed to be fraudulent, 
 "until it shall be made to appear that the same was 
 
 719 Mayer v. Clark, 40 Ala. 259; Upson v. Raifortl, 29 Ala. 195; 
 Mellard v. Hall, 24 Ala. 220; Noble v. Coleman. IG Ala. 77. 
 
 720 Cocke V. Chapman, 2 Eng. 197. 44 Am. Dec. 5.3G; Field v. 
 Simco. 2 Eng. 269; George v. Norris, 23 Ark. 128; Smith v. Jones, 
 63 Ark. 232. 
 
 721 Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318; Ector v. 
 Welsh, 29 Ga. 443; Collins v. Taggart, 57 Ga. 357. 
 
 722 Jordan v. Turner, 3 Blackf . 309. 
 
 723 Watson V. Williams, 4 Blackf. 26, 28 Am. Dec. 3G. 
 »24 Foley V. Knight, 4 Blackf. 420.
 
 -697 PERSONAL PROrERTY SUBJECT TO EXECUTION. § 148 
 
 made in good faith." ''^'^ In Louisiana/-'* ^ Maine/^'* 
 Massachusetts,'^^'' Michigan,"-'* Minnesota,"^ and Mis- 
 sissippi,'^^** the rule mentioned by ]\Ir. Parsons is in 
 force. Such is also the case in New Jersev,'*^^ the case 
 of Chumar v. Wood, 1 Ilalst. 155, whicli established a 
 contrary doctrine, having been ov;rruk'd. In Ne- 
 braska, the vendee, notwithstanding his want of pos- 
 session, may, under section 70, chapter 43, of the Re- 
 vised Statutes, be permitted to show that the sale was 
 made in good faith, and without intent to defraud cred- 
 itors.''^^ New York formerly gave her adherence to 
 the rule of the earlier English cases, maintaining that 
 possession by the vendor, in ordinary circumstances, 
 after an absolute sale, gave rise to an indisputable 
 presumption of fraud; but, under the influence of statu- 
 tory provisions, she now regards such possession as 
 
 726 Kane v. Drake, 27 Ind. 32. 
 
 725a Keller v. Blaneliard, 19 La. Ann. 53; •Devonshire v. Gauth- 
 reanx. 32 La. Ann. 1132. 
 
 726 Reed V. Jewott 5 Greenl, 9G; Ulmer v. Hills, 8 Greonl. 32G; 
 Cutter V. Copeland, IS Me. 127; Clark v. French, 23 Me. 221, 39 Am. 
 Dee. GIS; Reed v. Reed, 70 Me. 504; Farrar v. Smith, 04 Me. 74. 
 
 727 Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Harlow 
 V. Hall, 132 Mass. 232; Brooks v. Powers, 15 Mass. 244, 8 Am. Dec. 
 S9; Marden v. Babcock, 2 Met. 99; Adams v. Wheeler, 10 Pick. 199; 
 Martriek v. Linficld. 21 Pick. 325; Ingalls v. Ilerrick. 108 Mass. 351, 
 11 Am. Rep. 3G0: Briirgs v. Parkman. 2 Met. 258, 37 Am. Dec. 89. 
 
 728 .Tackson v. Dean, 1 Doug. 517; Oliver v. Eaton. 3 ^Nlich. 114; 
 Moliter v. Robinson, 40 Mich. 200; Carpenter v. Graham, 42 Mich. 
 191; ITauser v. Beaty, 93 Mich. 499. 
 
 729 Vose V. Stickney, 19 Minn. 3G7; Lathrop v. Clayton, 45 Minn. 
 124. 
 
 730 Ketchum v. Brennan, ."3 -\Iiss. 59G; Ililliard v. Cagle, 4G Miss. 
 309: Comstock v. Rayford, 12 Smedes & M. 3(>9. 
 
 731 Sh(>rron v. Humphreys, 2 Green, 217; Runnyon v. Goshon. 1 
 Beasl. 8(5; Miller v. Pancoast, 29 N. J. L. 250. 
 
 732 pyie V. Warren. 2 Neb. 241; Robinson v. Uhl. 6 Neb. 328; Fitz- 
 gerald V. Meyer, 25 Neb. 77; Powell v. Yeazell, 4G Neb. 225.
 
 § 148 PERSONAL PROPERTY SUBJECT TO EXECUTION. 69& 
 
 prima facie evidence of fraud, liable to rebuttalJ^* 
 North Carolina'^^* and Ohio''^^ have always maintained 
 the rule finally reached in New York. Tennessee at 
 first denied/'*" but subsequently ad'opted, the same 
 rule/^^ In Hudnal v. Wilder, 4 McCord, 306, IT Am. 
 Dec. 744, the court said: "A vendor continuing in pos- 
 session is regarded, as to creditors or subsequent pur- 
 chasers, as the owner, against the most solemn, uncon- 
 ditional deed to a bona fide purchaser not in possession. 
 These are the settled rules of the common law, to 
 which the common sense of the community yields a 
 ready assent, from the obvious tendency to fraud to 
 which a contrary doctrine would lead." Notwithstand- 
 ing this emphatic language, other cases in the same 
 state fully establish that the possession of a vendor 
 after the sale is no more than prima facie evidence of 
 fraud,*^^^ except when the sale was made in considera- 
 tion of a prior indebtedness, in which case it is con- 
 clusive evidence, ''^^ unless the retention of possession is 
 under a contract of hiring made in good faith between 
 
 733 Bissell V. Hopkins, 3 Cow. 1(50, 15 Am. Dec. 259; Thompson 
 V. Blanchard, 4 N. Y. 303; Griswold v. Sholdon, 4 N. Y. 580; Stark 
 V. Grant, 16 N. Y. Svipp. 520. 
 
 734 Boon V. Hardie, 83 N. C. 470; Howell v. Elliott, 1 Dev. 76; 
 Rea V. Alexander, 5 Ired. 644. 
 
 735 Rogers V. Dare, Wright, 136; Burbridge v. Seely, Wright, 359; 
 Collins V. Myers, 16 Oh. .547. 
 
 736 Ragan v. Kennedy, Over, 91. 
 
 737 Callen v. Thompson, 3 Yerg. 475, 24 Am. Dec. 587; Maney v. 
 Kilough, 7 Yerg. 440; Wiley v. Lashlee, 8 Humph. 717; Richmond 
 V. Crudup, Meigs, 581, 33 Am. Dec. 104; Shaddon v. Knott, 2 Swan,. 
 58, 58 Am. Dec. 63. 
 
 738 Blake v. Jones. 1 Bail. Eq. 141. 21 Am. Dec. 530; Kid v. 
 Mitchell, 1 Nott & McC. 334. 9 Am. Dec. 702; Terry v. Belcher, 1 
 Bail. 508; Cox v. McBee, 1 Spears, 195; Belk v. Massed, 11 Rich. 
 614; Smith v. Henry, 2 Bail. 118. 
 
 739 Smith V. Henry, 1 Hill fS. C), 16; Majiles v. Maples. Rice Eq. 
 300; Anderson v. Fuller, 1 McMull. Eq. 27, 36 Am. Dec. 290.
 
 699 PERSONAL PROrERTY SUBJECT TO EXECUTION. § 148 
 
 the vendor and vendee/'*^ Texas, ''^ Wisconsin,''^ 
 and Virginia/*^ also support the rule that possession 
 is never conclusive evidence of fraud; though in the 
 last-named state the contrary doctrine was frequently 
 and uniformly upheld for nearly, if not fully, half a 
 century.'^^* In Kansas '^'' and in Oregon,^"*" statutes 
 have been enacted, under which sales of personal prop- 
 erty, if not accompanied by actual and continued 
 change of possession, are deemed void against pur- 
 chasers or creditors without notice, until shown to 
 have been made in good faith, and for a sufficient con- 
 sideration. Before the passage of this statute a differ- 
 ent rule prevailed in the last-named state.''*'' Rhode 
 Island seems to have adopted a rule similar to that 
 embraced in the statutes of Kansas and Oregon. The 
 adoption, however, was judicial instead of legislative, 
 the supreme court of the state having accepted as law 
 the views expressed in Parsons on Contracts. '^^ 
 
 740 Pringle v. Ehame, 10 Eicb. 72. G7 Am. Dec. 569. 
 
 T41 Bryant v. Kelton, 1 Tex. 415; Morgan v. The Republic, 2 Tex. 
 279; :MiIls v. Walton, 19 Tex. 271; Van Hook v. Walton, 28 Tex. 59; 
 Thornton v. Tandy, 39 Tex. 545; Scott v. Alford, 53 Tex. 82; Till- 
 man V. Janks (Tex.), 15 S. W. 39. 
 
 742 Smith V. Welch, 10 Wis. 91; Grant v. Lewis, 14 Wis. 487, SO 
 Am. Dec. 785; Livingston v. Littell. 15 Wis. 221; Bullis v. Borden, 
 21 Wis. 13C; Cook v. Van Horn, 76 Wis. 520. 
 
 743 Davis V. Turner, 4 Gratt. 422; Forkner v. Stuart, 6 Gratt. 197. 
 
 744 Clayborn v. Hill, 1 Wash. (Va.) 177, 1 Am. Dec. 452; Alex- 
 ander v. Deneale, 2 Munf. 341; Robertson v. Ewell, 3 Munf. 1; 
 Glasscock v. Batton, 6 Rand. 78; Taveuner v. Robinson, 2 Rob. (Va.) 
 280; Thomas v. Soper, 5 Munf. 28: Fitzhugh v. Anderson, 2 Hen. & 
 M. 289; Williamson v. Farley, Gilmer, 15; Land v. Jeffries, 5 Rand. 
 211; Burchard v. Wright, 11 Leigh, 443; Mason v. Bond, 9 Leigh, 
 181, 33 Am. Dec. 243. 
 
 745 Wolfley V. Rising, 8 Kan. .301. 
 
 746 Moore v. Floyd, 4 Or. 101: McCully v. Swackhamer, 6 Or. 43S. 
 74T Monroe v. Hussey, 1 Or. ISS. 75 .\m. Dec. 552. 
 
 748 Anthony v. Wheatons, 7 R. L 490.
 
 § 149 PERSONAL PROPERTY SUBJECT TO EXECUTION. 700 
 
 § 149. States wherein Want of Change of Possession 
 is Per Se Fraudulent. — We shall now notice the deci- 
 sions of the American courts which are opposed to 
 the doctrines mentioned in the preceding section. 
 Hamilton v. Russell^'*'^ determined in the supreme 
 court of the United States, is a leading case. Mr. Chief 
 Justice Marshall delivered the opinion of the court, as 
 follows: "On the 4th of January, 1800, Robert Hamil- 
 ton made to Thomas Hamilton an absolute bill of sale 
 for a slave in the bill mentioned, which, on the 14th of 
 April, 1801, was acknowledged and recorded in the 
 court of the county in which he resided. The slave 
 continued in possession of the vendor; and, some short 
 time after the bill of sale was recorded, an execution 
 on a judgment obtained against the vendor was levied 
 on the slave, and on some other personal property, 
 also in the possession of the vendor. In July, 1801, 
 Thomas Hamilton, the vendee, brought trespass 
 against the defendant Russell, by whose execution and 
 by whose direction the property had been seized; and 
 at the trial the counsel for the defendant moved the 
 court to instruct the jury that, if the slave George re- 
 mained in the possession of the vendor by the consent 
 and permission of the vendee, and if by such consent 
 and permission the vendor continued to exercise acts 
 of ownership over him, the vendee could not under 
 such circumstances protect such slave from the exe- 
 cution of the defendant. The court gave the instruc- 
 tion required, to which a bill of exceptions was taken. 
 The act of assembly which governs the case appears, 
 as far as respects fraudulent conveyances, to be in- 
 tended to be co-extensive with the acts of 13 and 27 
 Elizabeth, and those acts are considered as only de- 
 
 T49 1 Craiicb. 309.
 
 701 PERSONAL PROPERTY SUBJFXT TO EXECUTION. § 149 
 
 claratory of the principles of the common law. The 
 decisions of the English judges, therefore, apply to this 
 case. 
 
 "In some cases a sale of a chattel, unaccompanied 
 by the delivery of possession, appears to have been con- 
 sidered as an evidence or a badge of fraud, to be sub- 
 mitted to the jury, under direction of the court; and 
 not as constituting in itself, in point of law, an actual 
 fraud which rendered the transaction as to creditors 
 entirely void. Modern decisions have taken this ques- 
 tion up upon principle, and have determined that an 
 unconditional sale, where the possession does not ac- 
 company and follow the deed, is, with respect to cred- 
 itors, on the sound construction of the statute of Eliza- 
 beth, a fraud, and should be so determined by the court. 
 The distinction they have taken is between a deed, pur- 
 porting on its face to be absolute, so that the sepa- 
 ration of the possession from the title is incompati- 
 ble with the deed itself, and a deed made upon condi- 
 tion which does not entitle the vendor to the imme- 
 diate possession. The case of Edwards v. Harbin, exec- 
 utor of Tempest Mercer, 2 Term Eep. 587, turns on this 
 distinction, and is a very strong case. 
 
 "William Tempest Mercer, on the 27th of March, 
 1786, offered to the defendant, Harbin, a bill of sale 
 of sundi-y chattels as security for a debt due by Mercer 
 to Harbin. This Harbin refused to take, unless he 
 should be permitted, at the expiration of fourteen days, 
 if the debt should remain unpaid, to take possession 
 of the goods, and sell them in satisfaction of the debt, 
 the surplus money to be returned to Mercer. To this 
 Mercer agreed, and a bill of sale, purporting on the 
 face of it to be absolute, was executed, and a cork- 
 screw delivered in the name of the whole. Mercer died
 
 § 149 PERSONAL PROPERTY SUBJECT TO EXECUTION. 702 
 
 within fourteen days, and, immediately after their ex- 
 jtiration, Harbin took possession of the goods, specified 
 in the bill of sale, and sold them. A suit was then 
 brought against him by Edwards, who was also a 
 creditor of Mercer, charging Harbin as executor in 
 his own wrong; and the question was, whether this 
 bill of sale was fraudulent and void, as being on its 
 face absolute, and being unaccompanied by the deliv- 
 ery of possession. It was determined to be fraudulent; 
 and in that case it is said that all the judges of Eng- 
 land had been consulted on a motion for a new trial in 
 the case of Bamford v. Baron, and were unanimously 
 of opinion that 'unless possession accompanies and fol- 
 lows the deed, it is fraudulent and void'; that is, un- 
 less the possession remain with the person shown by 
 the deed to be entitled to it, such deed is void as to 
 creditors within the statutes. This principle is said by 
 Judge Buller to have been long settled, and never to 
 have been seriously questioned. He states it to have 
 • been established by Lord Coke, in 2 Buls+rode, so far 
 as to declare that an absolute conv . .- or gift of a 
 lease for years, unattended with possession, was 
 fraudulent. 'But if the deed or conveyance be condi- 
 tional, then the vendor's continuing in possession does 
 not avoid it, because, by the terms of the conveyance, 
 the vendee is not to have the possession till he has per- 
 formed the condition.' 'And that case,' continues 
 Judge Buller, 'makes the distinction between deeds or 
 bills of sale, which are to take place immediately, and 
 those which are to take place at some future time. For, 
 in the latter case, the possession continuing with the 
 vendor till such future time, or till that condition be 
 performed, is consistent with the deed, and such pos- 
 session comes within the rule as accompanying and
 
 703 PERSONAL PROPERTY SUBJECT TO EX ECU HON. § U9 
 
 following the deed. That case has been universally 
 followed by all the cases since.' 'This,' continues the 
 judge, 'has been argued by the defendant's counsel as 
 being a case in which the w^ant of possession is only 
 evidence of fraud, and that it was not such a circum- 
 stance, per se, as makes the transaction fraudulent in 
 point of law; that is the point which we have consid- 
 ered, and we are all of opinion that if there is nothing 
 but the absolute conveyance, without the possession, 
 that in point of law is fraudulent.' 
 
 ''This court is of the same opinion. We think the 
 intent of the statute is best promoted by that construc- 
 tion; and that fraudulent conveyances, which are made 
 to secure to a debtor a beneficial interest while his 
 property is protected from creditors, will be most ef- 
 fectually prevented by declaring that an absolute bill 
 of sale is itself a fraud, unless possession accompanies 
 and follows the deed." The principles thus announced 
 and adopted have been reaffirmed in many cases in 
 the federal courts.''^*^ The general rule, that an abso- 
 lute sale, not accompanied and followed by possession 
 by the vendee of the chattels sold, is per se fraudulent, 
 now prevails in several of the states. In siome of them 
 it is subject to the exception stated in Hamilton v. 
 Russell, in favor of conditional sales, but in others this 
 exception is not recognized. In another section we 
 shall refer to conditional sales. In the present section 
 we shall proceed to show in wiiat states the rule of 
 Hamilton v. Russell is accepted and enforced in con- 
 
 T50 Travers v. Ramsey, 3 Cranch C. C. 354; Moove v. Ringgold. 
 3 Cranch C. C. 434; Hamilton v. Franklin, 4 Cranch C. C, 729 
 Meeker v. Wilson, 1 Gall. 419; Phettiplace v. Sayles, 4 Mason, 312 
 D'Wolf T. Harris, 4 Mason, 515; Merrill v. Dawson, Hemp. 563 
 Comly V. Fisher. Taney. 121; Allen v. Massey, 2 Abb. CO. But see 
 Warner v. Norton, 20 How. 448.
 
 § 149 PERSONAL PROrERTY SUBJECT TO EXECUTION. 704 
 
 nection with absolute sales. In California, Colorado, 
 North Dakota, South Dakota, and Utah, all doubts 
 were avoided by clearly incorporating this rule in their 
 statutes,^^^ but by amendment to the statutes of North 
 Dakota, enacted in 1893, the want of a change of pos- 
 session creates a presumption of fraud, which may be- 
 removed by proving that the sale was made in good 
 faith, and without any intent to hinder, delay, or de- 
 fraud creditors, purchasers, or incumbrancers."^^^ In 
 Connecticut, possession by the vendor has always been 
 regarded as conclusive evidence of fraud.'^^^ In Dela- 
 ware, the statute provides that in a bill of sale of chat- 
 tels, the title shall not pass, except as against the ven- 
 dor, unless possession be delivered to the vendee "as 
 soon as conveniently may be" after the sale. Under 
 this act sales without a change of possession are, as 
 against creditors, void.*^^* In Florida and Illinois, the 
 courts have coincided with the views expressed in 
 Hamilton v. Russell.'^^^ In Iowa, a creditor may take 
 
 751 Whitney v. Stark, 8 Cal. 514, 68 Am. D-- ilodgkins v. 
 Hook, 23 Cal. 581; Chenery v. Palmer, 6 Cal. .O Am. Dec. 493; 
 Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500; Bassinger v. Spang- 
 ler, 9 Colo. 175; Allen v. Steiger. 17 Colo. 5.52; Conrad v. Smith, (> 
 N. D. 337; Schauer v. Alterton, 151 U. S. 607; Everett v. Taylor, 14 
 Utah, 243. 
 
 752 Conrad v. Smith, 6 N. D. 337. 
 
 753 Patten v. Smith, 5 Conn. 196; Swift v. Thompson. 9 Conn. 63. 
 21 Am. Dec. 718; Webster v. Peck. 31 Conn. 495; Gaylor v. Hard- 
 ing, 37 Conn. 508; Hatstat v. Blakeslee, 41 Conn. .301; Calkins v. 
 LockM'ood, 17 Conn. 154, 42 Am. Dec. 729; Crouch v. Carrier, 16- 
 Conn. 505, 41 Am. Dec. 156; Mead v. Noyes. 44 Conn. 487. 
 
 754 Bowman v. Herring, 4 Ilarr. (Del.) 458; Taylor v. Richardson, 
 4 Houst. 300. 
 
 75f, Gibson v. Love, 4 Fla. 217; Sanders v. Pepoon, 4 Fla. 465: 
 Thornton v. Davenport, 1 Scam. 296, 29 Am. Dec. 358; Rhines v> 
 Phelps, 3 C4ilm. 455; Smith v. Hines, 10 Fla. 285; Thompson v. 
 Yeck. 21 111. 73; Dexter v. Parkins, 22 111. 143; Ketchum v. Watson, 
 24 111. 591; Corgan v. Frew. 39 111. 31, 89 Am. Dec. 286; Allen v.. 
 Carr, 85 111. 389; Ticknor v. McClelland, 84 111. 471.
 
 706 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 140 
 
 on execution property still in possession of the vendor, 
 unless be has actual notice of the sale, or constructive 
 notice given by recording the bill of sale as required by 
 statute.'"'^^ The decisions made in Kentucky are so 
 cited by Mr. Parsons, in his work on contracts, as to in- 
 dicate that they were conflicting, and that a considera- 
 ble portion of them supported the doctrine that the re- 
 tention of a chattel by the vendor, after its absolute 
 sale, is only evidence of fraud. Upon examination, the 
 decisions in that state will be found to affirm, in the 
 most unequivocal terms, that an absolute sale of per- 
 sonal property, unless followed by the delivery of pos- 
 session to the vendee, is per se fraudulent and void, 
 and cannot be aided by proof, showing that the trans- 
 action was in fact in good faith and of the most meri- 
 torious nature.'^'' Nor can this rule be dispensed 
 with, because the vendor and vendee live in the same 
 bouse,'''*** nor because the execution creditor's debt ac- 
 crued subsequently to the sale.''^'* But where the sale 
 is not absolute, and the title and right of possession 
 are not to be divested, except on the performance of 
 subsequent acts, the retention of possession by the 
 vendor is not per se fraudulent, because not inconsist- 
 
 T6« Miller v. Bryan, 3 Clarke, .58; Courtrialit v. Leonard. 11 Iowa, 
 32; Day v. Griffith, 15 Iowa, 104; Prather v. Parlcor, 24 Iowa, 20; 
 Hickox V. Buell. 51 la. G55; Smith v. Champney, 50 la. 174. 
 
 757 Baylor v. Smither's Heirs, 1 Litt. 105; Goldbury v. May, 1 Litt. 
 256; Daniel v. Holland, 4 J. J. Marsh. 18; Brummel v. Stockton, 3 
 Dana, 134; Anthony v. W^ade, 1 Bush. 110; Miles v. Edelen, 1 
 Duvall, 270; Allen v. Johnson, 4 J. J. Marsh. 2.3.'); Dale v. Arnold, 
 2 Bibb. 605; Stephens v. Barnett, 7 Dana, 257; Hinulley v. Webb, 3 
 J. J. Marsh. 643, 20 Am. Dec. 189; Waller v. Todd, 3 Dana, 503, 28 
 Am. Dec. 94. 
 
 758 Waller v. Cralle, 8 B. Men. 11. 
 »B» Woodrow V. Davis, 2 B. Mon. 298. 
 
 Vol. 1.-45
 
 § U9 PERSONAL PROPERTY SUBJECT TO EXECUTION. 706 
 
 ent with the contract.''*'^ In Wash v. Medley, 1 Dana, 
 269, a deed of slaves was made by one member of a 
 family to another, but was succeeded by no visible 
 change in possession. The court held this not fraudu- 
 lent per se, because the family lived together. In this 
 respect, this decision is in effect overruled by the sub- 
 sequent cases of Waller v. Cralle, 8 B. Mon. 11, and 
 Jarvis v. Davis, 14 B. Mon. 529, Gl Am. Dec. 166. In 
 Louisiana the retention of possession ,by the vendor is 
 conclusive evidence of fraud, and the goods may be 
 taken under execution against him.'^**^ The same rules 
 which we have stated as prevailing in Iowa are equally 
 applicable to sales of chattels in Maryland.''*'^ :Mis- 
 souri, at an early day, was on this subject in full ac- 
 cord with the decisions of the federal judiciary.''^* 
 Subsequently, this state by statute adopted a differ- 
 ent rule; ^^ but still later, by chapter 107, section 10, 
 of statutes of 1866, the legislature declared all sales 
 of personal proper-ty void as to creditors unless posses- 
 sion was taken within a reasonable time. The statute 
 of Nevada and the decisions made under it are in con- 
 sonance with the statute and decisions in California.''^^ 
 "In New Hampshire the principle appears to be nearly 
 the same as in the federal courts, though declared in 
 
 760 Baylor v. Smither's Heirs, 1 Litt. 105; Hundley v. Webb, 3 
 J. J. Marsh. 643, 20 Am. Dec. ISO. 
 
 761 Garritson v. Creditors, 7 La. 551; Jorda v. Lewis, 1 La. Anu. 
 59; Zacharie v. Rich, 14 La. Ann. 433; Lassiter v. Bussy, 14 La. 
 Ann. 699; Civil Code, sees. 1916, 1917. 
 
 762 Bruce v. Smith, 3 Har. & J. 499; Hambleton v. Hayward, 4 
 Har. & J. 443; Hudson v. Warner, 2 Har. & G. 416. 
 
 763 Rocheblave v. Potter, 1 Mo. 561, 14 Am. Dec. 305; Foster v. 
 Wallace, 2 Mo. 231; Sibley v. Hood, 3 Mo. 290. 
 
 764 State V. Evans, 38 Mo. 150; State v. Durant, 69 Mo. .390. 
 765Doak V. Brubaker, 1 Nev. 218; Lavrrence v. Burnham, 4 Nev. 
 
 361; Gray v. Sullivan, 10 Nev. 416.
 
 707 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 149 
 
 a form somewhat different; in fact, instead of the rule 
 of the federal courts being established, the principle 
 and reason on which the rule is based are used as 
 guides." ■""« 
 
 Hence, while the courts of this state have hesitated 
 to declare that the retention of possession by the 
 vendor is conclusive evidence of fraud, they have at 
 the same time held it conclusive evidence of a secret 
 trust, unless explained. What explanation might suf- 
 fice to overcome the presumptive evidence of fraud, 
 they have nowhere clearly indicated. It appears, how- 
 ever, that proof of the actual good faith of the trans- 
 action will not accomplish this purpose, "but a sat- 
 isfactory reason must be shown for allowing the ven- 
 dor to retain the possession of the goods, else it will 
 be presumed that it was intended he should have the 
 use of them. What would be a sufficient explanation 
 of the possession, as a general principle, has not been 
 determined in this state." ''**'' The early cases in New 
 York have, through the construction given to a sub- 
 sequent statute, ceased to control the law of that state; 
 but they will be alluded to here for the purpose of 
 showing the interpretation they gave to the statute of 
 13 Elizabeth while it was still in force. In the case of 
 Sturtevant v. Ballard,'*^* decided in 1S12, Kent, chief 
 justice, delivered the opinion of the court, saying: "The 
 facts lie in a narrow compass. Meeker, on the 2d of 
 
 766 Smith's Lead. Cas. 63. See Havpn v. Low, 2 N. H. 13, 9 Am. 
 Dec. 25; Coburn v. riokering, 3 N. H. 415. 14 Am. Dec. 375; Trask v. 
 Bowers, 4 N. H. 309; Clark v. Morse, 10 N. H. 239: Kendall v. Fitts, 
 2 Fost. 1; raiil v. Crookor. 8 N. H. 288; Parker v. Pattee, 4 N. H. 
 176; Doucet v. Richardson (N. H.). 29 Atl. G35. 
 
 767 Putnam v. Osgood. 52 N. H. 148; Coolidce v. Melvin, 42 N. H. 
 510; French v. Hall, 9 N. H. 137, 32 Am. Dec. 341. 
 
 768 9 Johns. 337, 6 Am. Dec. 281.
 
 § U9 PERSONAL PROPERTY SUBJECT TO EXECUTION. 708 
 
 August, 1810, obtained a judgment against Holt. On 
 the 29th of August, Holt sold his goods and chattels 
 (being a quantity of blacksmith's tools) to the plain- 
 tiffs, partly for cash and partly to satisfy a debt due 
 to them. The articles were specified in a bill of sale, 
 and the bill contained an agreement that Holt was 
 to retain the use and occupation of the goods for the 
 term of three months. Just before the expiration of 
 the term, and while the goods continued in the pos- 
 session of Holt, they were seized by the defendant, as 
 sheriff, by virtue of an execution issued on the judg- 
 ment in favor of Meeker. The question arising upon 
 this case is, whether the sale to the plaintiffs under 
 the above circumstances was valid in law as against 
 the judgment creditor. 
 
 "As between the partie? to it, a sale of chattels un- 
 accompanied by possession may be valid. It may even 
 be valid as against a creditor who was knowing and 
 assenting to the sale. It was so ruled in Steele v. 
 Brown and Pary, 1 Taunt. 381; but this is not such a 
 ease. Here was a judgment creditor affected by the 
 sale. 
 
 "The statute of 13 Elizabeth, and which has been 
 re-enacted with us (Sess. 10, c. 44, sec. 2), makes void 
 all grants and alienations of goods and chattels made 
 with intent to delay, hinder, and defraud creditors. 
 This statute, as it has frequently been observed by the 
 English judges, was declaratory of the common law; 
 and the true principles of law in relation to such sales 
 are to be found in a series of judicial decisions, both 
 before and since the statute of Elizabeth; the great 
 point is, whether the fact of permitting the vendor to 
 retain possession of the goods did not render this sale 
 fraudulent in law, notwithstanding such permission
 
 709 PERSONAL PROPERTY SUBJECT TO EXECUTION. § U9 
 
 was inserted in the deed as a conditiuu of the contract. 
 If there had been no such insertion, but the sale had 
 been absolute on the face of it, and possession had not 
 immediately accompanied and folhtwed the sale, it 
 would have been fraudulent as against creditors; and 
 the fraud in such case would have been an inference 
 or conclusion of law, which the court would have been 
 bound to pronounce. This is a well-settled principle 
 in the English courts. It is to be met with in a vari- 
 ety of cases, and especially in that of Edwards v. Har- 
 bin, 2 Term Kep. 587; and it has been recognized and 
 adopted by some of the most respectable tribunals in 
 this country. But it by no means follows that such a 
 sale, with such an agreement attached to it and ap- 
 pearing on the face of the deed, is necessarily valid. 
 There must be some sutiicient motive, and of which 
 the court is to judge, for the nondelivery of the goods, 
 or the law will still presume the sale to have been made 
 with a view to 'delay, hinder, or defraud creditors.' 
 Delivery of possession is so much of the essence of a 
 sale of chattels, that an agreement to permit the ven- 
 dor to keep possession is an extraordinary exception 
 to the usual course of dealing, and requires a satisfac- 
 tory explanation. This was a voluntary sale made by 
 the debtor soon after the judgment against him, and 
 made to a creditor, partly for cash and partly to sat- 
 isfy an old debt; and why was the sale made three 
 months before possession was to be delivered, if it was 
 not to defeat the intermediate execution of the judg- 
 ment creditor? There is no assignable reason appear- 
 ing for the arrangement, and the time of delivery 
 might have been postponed for three years as well as 
 for three months. The instances in which a sale of 
 chattels, unaccompanied with delivery, has been held
 
 § 149 PERSONAL PROPERTY SUBJECT TO EXECUTION. 710 
 
 valid, are all founded upon special reasons, whicli have 
 no application to this case. 
 
 "The general principle involved in this discussion 
 is extremely important to the commercial interests of 
 the community, and to confidence and integrity in deal- 
 ing. The law, in every period of its history, has spoken 
 a uniform language, and has always looked with great 
 jealousy upon a sale or appropriation of goods without 
 parting with the possession, because it forms so easy 
 and so fruitful a source of deception. Lord Kenyon 
 said he lamented that it w^as ever decided that the 
 possession and apparent ownership of personal prop- 
 erty might be in one person, and the title in another, 
 and he thought it would have been better for the pub- 
 lic if the possession of such property (exoept in the case 
 of factors) were to carry the title. The value of the 
 principle, and its necessity, were perceived and felt as 
 early as the age of Glanville; for he observed, when 
 speaking of pledges, that ^when a thing is agreed to 
 be placed in pledge, by a debtor to a creditor, and de- 
 livery does not follow, it becomes a question what shall 
 be done for the creditor in that case, since the same 
 thing may be pledged to other creditors, both before 
 and after. And it is to be observed that the court will 
 not regard such private arrangements, nor intermed- 
 dle therewith, or sustain a suit thereon.' This was 
 acknowledging the mischief, and admitting the rem- 
 edy, under the same enlightened view of public policy 
 and private interest which some of the decisions of 
 Lord Mansfield announce at the period of the full 
 growth and maturity of the commercial system. There 
 is also a case in the Book of Assizes, f. 101, pi. 72, 22 
 Edw. III., which is much to the present purpose. An 
 action of trespass was brought, for wrongfully taking
 
 711 PERSONAL TROPERTY ^SUBJECT TO KXl-X'UTION. § 14'J 
 
 some cattle, and the jury found that the defendant had 
 received from the bailiff the boasts, on an execution 
 which had issued for him against one B, and that the 
 beasts belonged to B at the time of the judgment, and 
 that he afterward, by deed, g-ave them to the plaiutifl', 
 to delay the execution; and the jury, being required 
 by the court to say who took the profits of the same 
 beasts in the meantime, they answered that the donor 
 did. Then Thorpe, J., declared: 'I conceive the gift 
 to be of no value, and I hold that he to whom such 
 gift was made was only keeper of the beasts to the use 
 of the other, because there was fraud, etc., for other- 
 wise a man could never have execution of chattels.' 
 
 "We may, therefore, safely conclude that a voluntary 
 sale of chattels, with an agreement, either in or out of 
 the deed, that the vendor may keep possession, is, ex- 
 cept in special cases and for special reasons, to be 
 shown to and approved of by tlie court, fraudulent and 
 void as against creditors. This is clearly not one of 
 those cases, and the defendant is, therefore, entitled to 
 judgment." 
 
 The doctrines thus announced in the case of Sturte- 
 vant V. Ballard were reaffirmed on several subsequent 
 occasions in the same state; and there is no doubt that 
 its courts were fully committed to the rules of deci- 
 sion set forth in Edwards v. Harbin and Hamilton v. 
 llusselU^** In Pennsylvania '^'^^ and in Yermout,'^''^ 
 
 769 See Jenniugs v. Carter. 2 Wend. 440. 20 Am. Dee. G35; Divver 
 V. McLaufrliliu. 2 "VVeud. GOG, 20 Am. Dec. 055; Archer v. Hubbell, 
 4 WoiKl. 514; Doane v. Edd.v, 10 Weml. 522; Stevens v. Fisher, 19 
 Wend. 181. 
 
 770 Cunninjiham v. Neville, 10 Sergr. & U. 201; Clow v. Woods. 5 
 Serg. & R. 275, 9 Am. Dec. 340; Brady v. Haines, IS Pa. St. 113; 
 Born V. Shaw. 20 Pa. St. 288, 72 Am. Doc. 033; Milne v. Henry, 4t 
 Pa. St. 352; Dewart v. Clement, 48 I'a. St. 413; Davis v. Bigler, 62
 
 § 150 PERSONAL PROPERTY SUBJECT TO EXECUTION. 712 
 
 llie rule that the retention of possession by the vendor, 
 after an absolute siale, leads to a legal and conclusive 
 presumption of fraud, has always been sustained. 
 
 § 150. Recapitulation of Authorities in Reference to 
 Effect of Want of Change of Possession. —From a recapi- 
 tulation of the authorities, cited in the last two sec- 
 tions, it will be seen that in the states of Alabama, 
 Arkansas, Georgia, Indiana, Kansas, Maine, Massa- 
 chusetts, Michigan, Mississippi, Nebraska, New Jer- 
 sey, New York, North Carolina, Ohio, Oregon, Rhode 
 Island, South Carolina, Tennessee, Texas, Virginia, 
 and Wisconsin, the question of fraud or no fraud is 
 clearly one for the decision of the jury. Of these 
 states, Indiana, Kansas, Nebraska, New York, Ore- 
 gon, and Wisconsin have settled the question by stat- 
 ute. But in saying that the question of fraud or no 
 fraud is one for the jury, we must not be understood 
 as implying that the jury are at liberty to disregard 
 the fact that the vendor retains possession after his 
 sale. If the sale be absolute in terms, or such that 
 the continuing possession of the vendor seems to be 
 inconsistent with the alleged transfer of title, then 
 such possession is everywhere regarded as a badge of 
 fraud. This badge is not a mere suspicious circum- 
 tance; it is prima facie evidence. Standing alone, it 
 
 Pa. St. 242. 1 Am. Rep. 393; Dick v. Lindsay. 2 Orant Cas. 431; 
 Gorman v. Cooper, 29 Leg. Int. 372; Streeper v. Eclvart, 2 Wliart. 
 302. 30 Am. Dec. 258; Forsytli v. Mattliews. 14 Pa. St. 100, .^3 Am. 
 Dec. 522; Stephens v. Gifford, 137 Pa. St. 219, 21 Am. St. Rep. 868; 
 Sweigert v. Fiuley, 144 Pa. St. 266. 
 
 771 Moore V. Kelley, 5 Vt. 34, 26 Am. Dec. 283: Farnsworth v. 
 Shepard, 6 Vt. 521; Hart v. F. & M. Banli, 33 Vt. 252; Sleeper v. 
 Pollard, 28 Vt. 709, 67 Am. Dec. 741; Batchelder v. Carter, 2 Vt. 
 168, 19 Am. Dec. 707; Hildreth v. Fitts, 53 Vt. 684; Weeks v. Pres- 
 <-ott, 53 Vt. 57.
 
 713. PERSONAL PRJIEUTY SUBJECT TO EXECUTION. § 150 
 
 is conclusive against the vendee. lie cannot prevail 
 against a subsequent purchaser, nor against a creditor 
 of the vendor, until he has rebutted the i)resuniption 
 of fraud, arising from his want of possession. The 
 onus of proof is upon him. lie must show clearly, to 
 the satisfaction of the jury, that his purchase was made 
 in good faith, and without any intention to delay or de- 
 fraud creditors. What evidence, on the part of the 
 vendee, may operate to repel the presumption arising 
 from his want of possession, cannot be stated with any 
 degree of cei-tainty. As the question is one of fact, evi- 
 dence sufficient to convince one jury of the gO'Od faith 
 of the transaction might produce no such effect on the 
 minds of another jury. But if the vendee does not pw- 
 duce some evidence, tending to explain why he did not 
 assume possession, and to show the good faith of his 
 alleged purchase, the presumption against him be- 
 comes conclusive.''" The court, in such case, should 
 instruct the jury to find in favor of the creditor of the 
 vendor, and should set aside its verdict, and grant a 
 new trial, in case it disregards such instruction. In 
 New Hampshire, while the general rule seems to pre- 
 vail that possession by the vendor is ncit conclusive 
 against the vendee, yet such strong proof Is required 
 to rebut the presumption arising from such possession, 
 
 772 Ball V. Loomis, 29 N. Y. 412; Mauklin v. Mitchell, 14 Ala. S14; 
 Bank of Mobile v. Borland, 5 Ala. 539; Beers v. Dawson 8 Ga. 5.56; 
 Teck V. Land. 2 Kelly, 1, 40 Am. Doc. HGS: Kane v. Drake. 27 Ind. 
 ;;0; Nutter v. Harris, 9 Ind. 88; Keller v. Blanchard, 19 La. Ann. 
 r>3; Kuykendall v. McDonald. 15 Mo. 41G, 57 Am. Dec. 212: Ilart- 
 raan v. Vogel, 41 Mo. 570; Kendall v. Fitts, 2 Fost. 1; Orubbs v. 
 Oreer, 5 Cold. IW); McQuinnay v. Hitchcock, 8 Tex. 33; Curd v. 
 Miller, 7 Gratt. 185; Brooks v. Powers, 15 Mass. 244. 8 Am. Dec. 99, 
 IJImer v. Hills, 8 Greenl. 326; Young v. Tate. 4 Yerjr. 164; Fleming 
 V. Tn^vnsend, 6 Ga. 103, 50 Am. Dec. 31S; Siedenbach v. Reilly, 111 
 N. Y. 5G0.
 
 § 151 PERSONAL PROPERTY SUBJECT TO EXECUTION. 714 
 
 tliat, in its practical effect, the law of that state ap- 
 proaches more nearly to the law of Hamilton v. Eus- 
 sell than to the opposite line of decisions. In the fed- 
 eral courts, and in the courts of California, Connec- 
 ticut, Delaware, Florida, Illinois, Iowa, Kentucky, 
 Louisiana, Maryland, Missouri, Nevada, rcimsylvania, 
 and Vermont, the possession, continuing in the vendor, 
 is, under ordinary circumstances, treated as fraudu- 
 lent per se. For the guidance of judgment creditors 
 in the states last named, we shall endeavor to show — 
 1. In what cases a change of possession may be omit- 
 ted; 2. What constitutes a sufficient change of posses- 
 ion, where such change cannot with safety be omit- 
 ted; 3. When the change must commence; and 4. How 
 long it must continue. 
 
 § 151. Absolute Transfers, in Which No Change of 
 Possession need be iViade. — The cases in which the in 
 terests of a vendee are not placed in jeopardy by his 
 failure to assume possession of the chattels purchased 
 may be divided into three classes. In the first class 
 are the cases in which the necessity for a change of 
 possession is removed by the nature of the transfer. 
 The second class embraces cases in which the chang(^ 
 of possession may be dispensed with, owing to the char- 
 acter of the property. While, in the third class, an^ 
 those cases in which the nature of the transfer and 
 the character of the property would both, in ordinary 
 circumstances, require a change of possession; but 
 something in the situation of the property, at the tum^ 
 of the sale, renders a change in its possession unnec- 
 essary or impossible. The cases of the first class may 
 again be subdivided into absolute transfers, ainl trans- 
 fers which are not so absolute in their nature, that the
 
 715 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 151 
 
 continued possession of the vendor is inconsistent with 
 the terms and purposes of the transfer. In the states 
 in which the retention of possession by the vendor pro- 
 duces a conclusive presumption of fraud, perhaps the 
 only well-established exceptions, in cases of absolute 
 sales, arising from the nature of the transfer, are in 
 cases of marriage settlements,"'^ and cases where the 
 property of a defendant is sold under an execution 
 or other legal process against him. "The notoriety of 
 a public sale, which, by giving notice to the public 
 that the title has passed out of the former owner, and 
 thereby prevents him from obtaining a delusive credit, 
 from the apparent ownership of property, which be- 
 longs to another, creates a distinction between public 
 and private sales, where there is no change of posses- 
 sion, as to the rights of creditors." ''^ ''Ivetention of 
 possession by the former owner of a chattel sold at 
 sheriff's sale is not an index of fraud, because the sale is 
 not the act of the person retaining, but of the law, and 
 because a judicial sale, being conducted by tlie sworn 
 officer of the court, shall be deemed fair till it is proved 
 otherwise. It may, like a judgment, be shown to be 
 collusive and fraudulent in fact; but the presumption 
 of the law is favorable to it in the first instance. A 
 chattel thus purchased, then, may safely be left in the 
 possession of the former owner on any contract of bail- 
 ment that the law allows in any other case." '"'^ 
 
 TT3 Lniidn v. McMnllin. 40 Ta. St. 20: rimrlton v. Gardner. 11 
 Leigl). 202; Cadogan v. Keunett, CoAvp. 432; Arundel v. Phipp-s, 10 
 Ves. ]?,0. 
 
 774 Simorson v. Bank, 12 Ala. 213. 
 
 775 Matteucci v. Whelan. 123 Cal. 312, T<i Am. St. Rcj). tiO: My- 
 ers V. Harvey, 2 Pen. & W. 481, 23 Am. Doc. 00; Bisbing v. Third 
 Nat. Bank. 93 Pa. St. 70. 39 Am. Rep. 72(i: Ilnoblcr v. Smitli. 
 62 Conn. 183. .36 Am. St. Rep. 337. Tho question wlu>tlior a sale 
 under execution is subject to the general rule rcvjuiring a change of
 
 § 151 PERSONAL PROPERTY SUBJECT TO EXECUTION. 716 
 
 It seems to be almost universally conceded that when 
 a stranger to the writ purchases and pays for property 
 at an execution sale, the fact that he does not choose 
 
 possession to accompany a sale of chattels Avas considered in this 
 case, and the conclusions of the court announced as follows: "That 
 it is not within the letter of the rule is evident, since the retention 
 of possession is not hy the vendor, the transfer of title being In 
 iiivitum. and by operation of law. Nor does it seem to ns to be any 
 more within the spirit. It is a judicial sale, conducted under and 
 by virtue of a lawful precept by an officer of the court. And while 
 it might, like a judgment, be shown to be collusive and fraudulent 
 in fact, it hardly seems in consonance with the well-established 
 and ordinary presumptions attaching to official proceedings to pre- 
 sume at all, and much less conclusively, as a matter of law, that 
 it is so. Such presumption as there may be ought rather to be 
 favorable to it than otherwise in the first instance. Of course, how- 
 over, to be so, the levy and sale must be proceeded with in all re- 
 spects in conformity to the requirements of law. And it is entirely 
 consistent with this view to hold, as we do, that if, as in this case, 
 the execution creditor is himself the purchaser, and if he allow the 
 I)roperty to remain in possession of the dei)tor after the sale on 
 execution, such conduct would raise an inference against the valid- 
 ity of the transaction which it would be incumbent upon him to 
 overcome by proof that his judgment was for an honest debt, and 
 that there was no collusion between him and his debtor to cheat 
 or defraud other creditors of the debtor. And this is what the judge 
 of the court below correctly held, for he said to the jury that it was 
 necessary that the property should be 'taken on execution, and sold 
 at public auction, after compliance with all legal formalities'; that 
 the jury must find from the evidence 'that the property in question 
 was duly, and legally attached by the plaintiff in a suit l>rought by 
 him against Alfred Teweles and wife; that the plaintiff recovered 
 judgment In the suit against them; that execution was issued in 
 the case, and that the property was sold on execution to the plain- 
 tiff, he being the highest bidder, such proceedings being had in 
 good faith,' and that 'the judgment of the plnintiff against said 
 Alfred Teweles and wife was obtained without fraud, for an honest 
 debt, and the property was honestly and fairly sold to the plaintiff 
 on an execution in said case, having been legally levied upon, 
 posted, and advertised.' Indeed, although, as has been stated, this 
 precise question in this precise form has not beon passed upon by 
 iliis court before, it may be determined by the ap])lication of the 
 principle stated by Loomis, J., in delivering Ihe opinion of this 
 court in Pease v. Odenkirchen, 42 Conn. 424. It was there said:
 
 717 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 151 
 
 to remove it from the control of the defendant, 
 neither renders the sale fraudulent per se, nor, unless 
 connected with other circumstances of a suspicioua 
 character, creates any presumption against its giood 
 faith.'^'^" But when the plaintiif in execution becomes 
 
 'The doctrine of the common law, as held with great rigor in this 
 state, is that contiuuod possession by the vendor after a sale of per- 
 sonal property raises a presumption of fraud, which cannot be re- 
 pelled by any amount of evidence showing the transaction to be 
 honest and for a valuable consideration. But there may be a legal 
 excuse for retention of possession, and where the facts and circum- 
 stances amount to a presumption of law that the retention of pos- 
 session by the vendor is consistent with the sale, the presumption 
 of fraud is overcome. In Osborne v. Tuller, 14 Conn. 529, it was 
 held that a valid assignment for the benefit of creditors, under the 
 statute of 1828. was a sufficient legal excuse for the retention of 
 possession by the assignor.' And a reference to the case cited (Os- 
 borne V. Tnttle, 14 Conn. 529), and to the case of Strong v. Car- 
 rier. 17 Conn. 319. to the same purport, will more clearly illustrate 
 the meaning of Judge Loomis in the quotation made. In those 
 cases this court all fully established the limitation which we have 
 given, and which the court below distinctly I'ecognized and stated, 
 saying in Strong v. Carrier, 17 Conn. 319: 'If the assignee permitted 
 the assignor to hold himself out to the world as the owner of the 
 assigned estate, so as to furnish evidence that the assignee con- 
 sidered the assignment a mere pretense and not to be followed up. 
 this would be such evidence of fraud as to subject the assignment 
 to the ordinary consequences of ordinary sales in which there has 
 been no change of possession.' To use another form of statement, 
 it would be substituting in such cases a rebuttable inference of 
 mala fides for the conclusive presumption of fraud which arises in 
 case of ordinary sales unaccompanied by a transfer of possession."' 
 7T6 Kidd V. Rawlinson, 2 Bos. & P. 59; 3 Esp. 52; Abney v. Kings- 
 land, 10 Ala. 355, 44 Am. Dec. 491; Latimer v. Batson, 7 Dowl. & K. 
 106; Anderson v. Brooks. 11 Ala. 953; Stone v. "Waggoner, 3 Eng. 
 204; Perry v. Foster, 3 Ilarr. (Del.) 293; Pennington v. Chandler, 5 
 Harr. (Del.) 394; Greathouse v. Brown, 5 T. B. Mon. 280, 17 Am. 
 Dec. 67; Miles v. Edelen. 1 Duvall, 270; Walter v. Gernant. 13 Pa. 
 St. 515. 53 Am. Dec. 491; Dick v. Lindsay, 2 Grant Cas. 431; Poole 
 V. Mitchell. 1 Hill (S. C). 404; Guignard v. Aldrich. 10 Rich. Eq. 
 253; Coleman v. Bank of Hamburg, 2 Strob. Eq. 285. 49 Am. Dec. 
 671; Boardman v. Keeler. 1 Aik. 158. 15 Am. Dec. 670; Dick v. 
 Cooper, 24 Pa. St. 217, 64 Am. Dec. 652; Garrett v. Rhame, 9 Rich.
 
 § 151 PERSONAL PROPERTY SUBJECT TO EXECUTION. 718 
 
 the purchaser, some of the American cases have coq- 
 sidered that the necessity for a change of possession 
 is as imperative as though the sale were voluntary; ^^ 
 but in England the question has been determined 
 otherwise/^** We apprehend that there can be no well- 
 founded distinction between a purchase by the plain- 
 tiff and a purchase by a stranger to the execution, un- 
 less the circumstances of the sale, taken in connection 
 with the continued possession of the defendant, pro- 
 duce the conviction that the writ was employed in bad 
 faith, for the purpose of withdrawing the property 
 from the reach of other creditors, without affecting 
 the defendant's beneficial interest therein. 
 
 There is some doubt as to the true grounds upon 
 which the exception in favor of sales under execution 
 rests. Some contend that the notoriety of the sale fur- 
 nishes a sufficient protection from fraud, and gives 
 ample notice of the change of title. Others insist that 
 the exception is justified by the fact that the sale is 
 involuntary, and is made by the officers of the law. If 
 the notoriety of the sale furnishes a sufficient reason 
 for this exception, then it wonld seem that the rule 
 ought to extend to other sales attended with equal 
 publicity. Where debtors make assignments of per- 
 
 407, 67 Am. Dec. 557; McMichael v. McDermott, 17 Pa. St. So3, 55 
 Am. Dec. 560. The principle also extends to sales under distress 
 for rent. Waters v. McClellan, 4 Dall. 208. In New York, a pur- 
 chase by a stranger to the execution was deemed fraudulent, where 
 for more than a year he allowed the defendant to retain possession 
 and deal with the goods as his own. Dicl^enson v. Cook, 17 Johns. 
 3,32. But where there is no apparent intent to defraud creditors, 
 the purchaser may, in that state, leave the goods with the defend- 
 ant. Mclnstry v. Tanner, 9 Johns. 135. 
 
 77T Williams v. Kelsey, 6 Ga. 365; Farrington v. Caswell, 15 Johns. 
 430; Gardenier v. Tubbs, 21 Wend. 169. But see Floyd v. Goodwin, 
 8 Yerg. 484, 29 Am. Dec. 130. 
 
 778 W'atkins v. Birch, 4 Taunt. 823.
 
 719 PERSONAL PROPERTY SUBJECT TO EXECUTION. § IJl 
 
 sonal property for the benefit of their creditors, and 
 the assignees thereafter, in pursuance of public notice, 
 sell the property at auction, the purchasers may, ac- 
 cording to a decided preponderance of the authorities, 
 safely allow the goods to remain with the assignors,'''^ 
 But in Vermont the authority of these cases is de- 
 nied,'"'^" and the exception which we are discussing is 
 confined to purchases at sales made under legal pro- 
 cess. Hence, where a constable sold i^roperty by con- 
 sent of the defendant, not having legal process in hi:> 
 hands, the supreme court, by Iledfield, J., said: "It is 
 at present a well-settled principle of the law of this 
 state that sales of personal chattels, unaccompanied by 
 any visible, substantial change of possession, are inop- 
 erative as against the creditors of the vendor. The 
 case of sheriff's sales has been considered an exception 
 from the operation of this rule. It is not now neces- 
 sary, and could not be useful, to go into the reasons of 
 the exception. The cases upon that subject have fol- 
 lowed in the track of Kid v. Eawlinson, 2 Bos. & P. 
 59. The principal reasons there urged in favor of tlie 
 determination are, that the publicity and character of 
 the sale rebut all inference of fraud. For myself. I 
 think this exception rests more upon the fact that it is 
 a transfer of title by operation of law than upon its 
 notoriety. It is the former rather than the latter 
 which distinguishes it from sales b}' contract of the 
 parties; for, if all public sales were to form exceptions 
 to this very salutary rule, it would, doubtless, cease to 
 
 TT9 Leonard v. Baker, 1 Maule & S. 251; Woodham v. Baldock, 3 
 T. B. Moore, 11; 8 Taunt. 676; Wyatt v. Stewart, 34 Ala. 716; Mont- 
 gomery V. Kirksey, 26 Ala. 172; Garland v. Chambers. 11 Sraedes & 
 M. 337, 49 Am. Dec. 63; Ewing v. CargiU, 13 Smedes &, M. 70; 
 Jezeph V. Ingram, 1 T. B. Moore, 189. 
 
 -so Rogers V. Vail, 16 Yt. 327.
 
 § 151 PERSONAL PROPERTY SUBJECT TO EXECUTION. 720 
 
 have any beneficial oiDeration. Sheriffs' sales, and all 
 sales made by officers of the law, must be held prima 
 facie good to transfer the title of the debtor. Now, no 
 law and no practice requires such officer to make any 
 delivery of the property. When he appears to have 
 proceeded as sheriff or other officer, and the sale is in 
 invitum, it will be recognized as an exception to the 
 rule. But where he really proceeds by consent of the 
 parties, and in making the sale acts as the agent of the 
 parties, and not as the minister of the law, his proceed- 
 ings cannot be allowed any greater force than those of 
 any other auctioneer." '^'^ The fact that sales by auc- 
 tion furnish no exception to the general rule ^^^ strong- 
 ly confirms the theory announced by Judge Eedfield, 
 and stated in the preceding quotation. "An execu- 
 tion sale may be resorted to for the purpose of hinder- 
 ing, delaying, or defrauding the creditors of the de- 
 fendant, and, when shown to have been resorted to for 
 this purpose, it will be treated as void. The reten- 
 tion of possession by the defendant after f^uch a sale is 
 not in harmony with his changed relaJon to the prop- 
 erty, and has, therefore, been properly regarded as a 
 suspicious circumstance — one indicating that the sale 
 may have been made in the interest of the defendant, 
 without desiring to deprive him of any beneficial in- 
 terest in the property, but rather to assure him of the 
 continuous enjoyment of such interest by withdrawing 
 it beyond the reach of more hostile creditors. If, in 
 such a case, the plaintiff in execution was the pur- 
 chaser, he must, to maintain his title, show that his 
 
 781 Kelly V. Hart, 14 Vt. r.3: Langhlin v. Fergiison. G Dana, 118; 
 Stephens v. Barnett, 7 Dana. 2r>7. 
 
 7«2 Rankin v. Holloway. 3 Smedes & M. 014; Batchelder v. Carter, 
 2 Vt. 168, 19 Am. Dec. 707.
 
 721 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 132 
 
 Judgment was an honest and fair one," ''*•* The reten- 
 tion of possession by the debtor may undoubtedly be 
 considered, in connection with other circumstances, as 
 tending to show that the sale was fraudulent, and 
 therefore void.'^**^ 
 
 § 152. Transfers of Title, Made to Secure the Pay- 
 ment of Indebtedness, are, in some of the states, treated 
 differently from ordinary bills of sale. The reason of 
 this difference has been thus explained: "There is evi- 
 dently an essential difference between the effect of a 
 possession retained by the maker of an absolute bill of 
 sale, and the possession retained by the maker of a 
 mortgage. The object of one is to pass an absolute 
 right of property, and the object of the other is to give 
 a security defeasible upon a particular contingency. 
 The possession in the former case is utterly incompati- 
 ble with the deed; whereas, in the latter case, there ex- 
 ists no such incompatibility. Whilst, therefore, the 
 possession in the former case may be correctly said to 
 form conclusive and introversible evidence of fraudu- 
 lent intent, and render the deed per se fraudulent, such 
 cannot be admitted to be the effect of the possession in 
 the latter case." '**^ This line of reasoning has been 
 frequently followed in other states, and mortgages of 
 personal property sustained, though the possession re- 
 mained with the mortgagor; and, although, perhaps, 
 
 783 Floyd V. Goodwin, 8 Yors. 484, 29 Am. Dec. 1.10. 
 
 784 Stovall V. F. & M. Bank, 8 Smodes & M. 3a"i. 47 Am. Dec. 85. 
 
 785 McGowen v. Hoyt, 5 Lltt. 243; Bucklin v. Thompson. 1 J. .T. 
 Marsh. 223; Snyder v. Tlitt, 2 Dana, 204; Clayborn v. Hill. 1 Wash. 
 (Va.) 177, 1 Am. Doc. 4r.2: Haven v. Low. 2 N. H. 13, 9 Am. Dec. 25; 
 Thornton v. Davenport, 1 Scam. 296. 29 Am. Dec. 358; Bumpas v. 
 Dotson, 7 Humph. ."10, 40 Am. Dec. 81; Stix v. Sadler, 109 Ind. 254; 
 Brunswick v. McClay. 7 Xeb. 137; Kleine v. Katzeuberger, 20 Oh. 
 St. 110, 5 Am. Rep. 630. 
 
 Vol. I.— 46
 
 § 152 PERSONAL PROPERTY SUBJECT TO EXECUTION. 7ii2 
 
 in some cases, the retention of possession bj the mort- 
 gagor may be deemed suspicious, yet it will always be 
 regarded in a more favorable light than in the case of 
 an absolute bill of sale; ''**** and this is generally true 
 after as well as before default is made in payment of 
 the debt secured.''**'' But in Indiana the mortgagor's 
 continuance in possession after condition broken was 
 held to be prima facie evidence of fraud. ''^^ A convey- 
 ance made to trustees, for 'the benefit of creditors, has 
 also been treated in the same manner as a mortgage, 
 for the object of the transaction is to enable the trus- 
 tees to appropriate the property to the satisfaction of 
 the debts; and it is not inconsistent with this object 
 that the assignor should continue in possession until ar- 
 rangements for the final disposition of the property can 
 be consummated.'^^^ But certainly the temptation to 
 fraudulent mortgages is as great as to fraudulent sales. 
 There is, therefore, great propriety in guarding against 
 such mortgages, and preventing the mortgagor from 
 gaining credit by his apparent ownership of property 
 in w^hich he has little or no beneficial title. In many 
 of the states chattel mortgages are required to be re- 
 corded, before the necessity for a change of possession 
 
 786 United States v. Hooe, 3 Cranch, 73; Magee v. Carpenter, 4 
 Ala. 469; Planters & M. Bank v. Willis, 5 Ala. 770; Bearing v. 
 Watkins, 16 Ala. 20; De Wolf v. Harris, 4 Mason, 515; Ash v. 
 Savage, 5 N. H. ,545; Barker v. Hall, 13 N. H. 298; Rose v. Burgess, 
 10 Leigh, 193; Martin v. Ogden, 41 Ark. 186; Sperry v. Etheridge, 
 m Iowa, 543; Wilson v. Sullivan. .58 N. H. 2G0. 
 
 787 Head v. W'ard, 1 .1. J. Marsh. 281. 
 
 788 Hankins v. Ingols, 4 Blackf. 35. 
 
 789 Ravisies v. Alston, 5 Ala. 297; Vernon v. Morton, 8 Dana. 247; 
 Christopher v. Covington, 2 B. Mon. 3.57; Hemi)stead v. .Johnston, 
 18 Ark. 123, 65 Am. Dec. 458; W^ilson v. Russell, 13 Md. 495, 71 Am. 
 Dec. 645.
 
 723 PERSONAL PROPERTY SUI3.JECT TO EXECUTION. § 152a 
 
 can be removed; '^^ while in .some ot hers, the presump- 
 tion arising from the continued possession of the mort- 
 gagor is precisely the same as in the case of an abso- 
 lute bill of sale."^"^ 
 
 § 152 a. Conditional Sales have also been held not to 
 be of a character which necessaiil}' recjuire a change 
 of possession to relieve them from the imputation of 
 fraud. "If the deed or bill of sale show that an abso- 
 lute and immediate title has passed, the possession, 
 which is its natural consequence must follow and ac- 
 company it. But if the contract evince only a condi- 
 tional sale, and the absolute title has not been changed, 
 it is not necessary that there should be a change of pos- 
 session. But the condition must be in the title, and 
 not simply in the contract; that is, the title must de- 
 pend on condition; and this must appear in the deed or 
 
 TooGriswold v. Rhoklon. 4 N. Y. 508: Call v. Gray, 37 N. H. 428; 
 75 Am. Dec. 141; Bevans v. Bolton. 31 Mo. 437; Kich v. Roberts. 50 
 Me. 395; Langworthy v. Little. 12 Cush. 109; Henderson v. Morgan. 
 26 111. 431; Weed v. Standley, 12 Fla. 10(1; Rood v. Welch, 28 Conn. 
 157; Matlock v. Strauglin, 21 Ind. 128; Kulin v. Graves, 9 Iowa, 303; 
 Robinson v. Elliott, 7 Chic. L. N. 193. 
 
 701 Case V. Winship. 4 Blackf. 42.5, 30 Am. Dec. G64; Rood v. 
 Welt?h, 28 Conn. 157; Ryall v. Rolle, 1 Wils. 2G0; Welsh v. Bekey, 
 1 Pen. & W. 57; Jenkins v. Eichelberger, 4 Watts, 121. 28 Am. Dec. 
 691; Clow V. Woods, 5 Serjr. & R. 275. 9 Am. Dec. 346; Trovillo v. 
 Shingles, 10 Watts, 438; Weeks v. Wead. 2 xVik. 64; Tol)ias v. 
 Francis, 3 Vt. 425, 23 Am. Dec. 217; Woodward v. Gates, 9 Vt. 358. 
 "With respect to mortgages deemed fraudulent because they permit 
 the mortgagor to remain in possession and to sell the mortgaged 
 chattels, see ante, § 145; Lund v. Fletcher, 39 Ark. 325, 43 Am. Rep. 
 270; Jacobs v. Ervin, 9 Or. 52; Texas Bank v. Lovonberg. 63 Tex. 
 506; Lister v. Simpson. 38 N. J. Eq. 438; Rome Bank v. Haselton, 
 15 Lea, 216; Gauss v. Doyle. 46 Ark. 122; Bullene v. Barrett. 87 Mo. 
 185; Wineburgh v. Schaer. 2 Wash. 328; Joseph v. Levi, 58 Miss. 
 843; Meyer v. Evans, 66 Iowa, 179. Mortgage made for a greater 
 sum than is owing to the mortgagee, for the purpose of protecting 
 the property from creditors, is fraudulent and void. Mitchell v. 
 Sawyer, 115 111. 650.
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION. 724 
 
 bill of sale; and the condition must, when it shall so 
 appear, be such as the court may consider reasonable 
 and legal. For the law does not declare that in condi- 
 tional sales the retention of the possession by the ven- 
 dor may not be fraudulent; but that, as a general rule, 
 it is not necessarily so. It will, however, be so con- 
 sidered unless the condition be consistent with the 
 reason and policy of the rule itself, which defines fraud 
 in law." "^"^ 
 
 § 153. Character and Situation of Property as Dis- 
 pensing with Necessity for Change of Possession.— The 
 exceptions to the rule requiring a change of possession 
 to accompany an absolute sale to free it from the im- 
 putation of fraud, arising from the character and situa- 
 tion of the property, will be considered together. They 
 both rest on the same ground, namely, the absurdity of 
 requiring that which is impossible or highly imprac- 
 ticable; '^'^^^ and they ai'e both limited by the require- 
 ment that such a change of possession as is practicable 
 must not be omitted. Where property, from its char- 
 acter, is such that possession cannot be taken at the 
 time of the sale, the want of a notorious change of pos- 
 session is not inconsistent with the transaction, and 
 does not render the sale void. Thus, if a man sells his 
 growing crop, it must necessarily be left standing in 
 the same field till ready for harvesting. The vendor is 
 not obliged, because he sold his crop, to quit possession 
 
 792 Hundley v. Webb, 3 .T. J. :Marsh. 044. 20 Am. Dec. 189; Bar- 
 row V. Paxton, 5 .Tohns. 2.j8. 4 Am. Dec. 3r)4. 
 
 793 Glioses in action, in some states, form an exception to this 
 statement. Their delivery is, in many instances, possible; but 
 its absence has been held not to render the sale fraudulent. Hall 
 V. Redding, 13 Cal. 214; Livingston v. Littcll. 1." Wis. 218. But 
 Woodbridge v. Perkins, 3 Day, 304; rurric v. Hart, 2 Sand. Ch. 353, 
 and Mead v. Phillips, 1 Sand. Cli. S3, sustain a contrary doctrine.
 
 725 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 153 
 
 of his farm. Growing crops, therefore, form an excep- 
 tion to tlie rule that there must be a change of posses- 
 sion to render the sale valid, '"^ altiiough raised by a 
 tenant, and he continues to reside on the land, with 
 his vendee, after the sale.''"^ In ^lissouri, however, 
 while it is conceded that a purchaser of a growing crop 
 cannot take possession of it while unmatured, and 
 hence, that there cannot be, with respect to it, such an 
 open and visible change of possession as must accom- 
 pany a sale of chattels, still, its courts require that 
 there be siome delivery and some act of notoriety in 
 •connection with the transfer, saying: ''But whatever 
 be the nature of the property sold, the delivery, when 
 made, should be evidenced by an act of some notoriety, 
 so tliat the public may be advised of the change of 
 ownership. Especially is this necessary when the ven- 
 dee, as in this case, is to remain in possession of the 
 property." It was not necessary in this case to deter- 
 mine what acts were sufficient to give the transfer that 
 notoriety required by the court, as it appeared in the 
 case before it that the vendee had never been upon the 
 premises, or seen the property purchasd, and that no 
 person was informed of the sale except the parties 
 thereto and the son of the vendee.'^" In a subsequent 
 case, where standing corn was purchased, and the ven- 
 dee rode through it and accepted a formal delivery of 
 possession, the sale was sustained.''*'' ''The acts that 
 will constitute a delivery will vary in the different 
 classes of cases, and will depend very much uixtu the 
 
 794 Davis V. ^rcFarlano. 37 Cal. 038; Bellows v. Wells. 3G Vt. 600; 
 Robbins v. Oldhnni, 1 Duvall. 28; Ilorron v. Fry. 2 Pen. & W. 263. 
 
 '95 Visher v. Webster. 13 Cal. nS; Bern.Tl v. Ilovioiis. 17 Cal. 541, 
 T9 Am. Dec. 147; O'Brien v. Ballon. IIG Cal. 31S. 
 
 796 state V. Dnrant. 53 Mo. App. 403. 69 Mo. App. 390. 
 
 797 State V. Casteol, 51 :\Io. App. 143.
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION. 725 
 
 character and quantity of the property soh], as well as 
 the circumstances of each particular case. The same 
 acts are not necessary to make a good delivery of a pon- 
 derous article, like a block of granite or a stack of hay^ 
 as would be required in case of an article of small bulk^ 
 as a parcel of bullion. It might properly be required 
 that there should be a manual delivery of a single sack 
 of grain at the moment of its sale; but upon the sale of 
 two thousand sacks, this could not be done without in- 
 curring great and unnecessary expense, and departing 
 from the usual course of business." "^^^ 
 
 Hence, where lumber is in piles,'^^" or hay in a 
 field,**"" and the purchaser does all that the nature of 
 the property wall permit toward at once reducing it to 
 his possession, he will be allowed a reasonable time to 
 remove it and make the change visible and notorious. 
 But although the property is not capable of manual de- 
 livery, the i^urchaser must not omit to do what he can 
 toward giving notice of his acquisition. The owner of 
 a kiln of unburnt bricks, one hundred and thirty feet 
 long, thirty feet wide, and fifteen feet high, gave a bill 
 of sale thereof, and made a formal delivery. ■ He then 
 continued in possession of the kiln, as was necessary ta 
 attend to burning it. lie employed the men and 
 bought the wood. The vendee visited the kiln five 
 times while burning, but informed no one of his claim. 
 It was held that the sale was void as against a creditor 
 attaching the property subsequently to the burning of 
 the kiln, and while the bricks were yet too hot to han- 
 
 T08 Lay V. Noville, 25 Cal. 552. 
 
 799 iiaynes v. Ilunsicker, 26 Pa. St. 58; Morse v. Powors. 17 N. H. 
 286. 
 
 «on riiaffiri X. Donb. 14 Cnl. .'584: Paeheco v. Hunsacker, 14 CaJ. 
 120; Conway v. Edwards, 6 Nev. 190.
 
 727 PERSONAL rROPERTY SUBJECT TU EXECUTlUN. g lo6 
 
 jjjg 801 r^YiQ delivery of a house may be iiuulc, symboli- 
 cally, by giving the vendee the key.^"- Wluu we come 
 to consider the exception arising from llic situation of 
 the property, we find that it usually rests on necessity, 
 and that, in general, even a symbolical delivery is not 
 sufficient where an actual delivery is practicable.*'*'-'* 
 But where a vessel or other properly is at sea,*"* or 
 where property is in custody of an ofilccr of the law,*"' 
 or where logs are floating in a river,"""^ a symbolical 
 
 801 W'oods V. Bugbey, 29 Cal. 4GG. 
 
 802Viniiig V. Gilbreth, 39 Me. 490. 
 
 S03 Cunningham v. Neville, 10 Serg. & n. 201; Chickorlng v. White, 
 42 :M!nn. 4^7. 
 
 so4K:ullam v. Tucker, 1 Tick. 389, 11 Am. Dec. 202; Gardner v. 
 Howland. 2 Tick. 599; Dawes v. Cope, 4 Binn. 2.";8; Ludwig v. 
 Fuller, 17 :^Ie. IdC; Lanipriere v. Basley. 2 Term. Rep. 485; Thuret 
 V. .lenkins, 7 Mart. 318, 12 Am. Dec. 508. 
 
 S05 Klinck V. Kelly. G3 Barb. G22. 
 
 806 Leonard v. Davis, 1 Black, 47G; Boynton v. Yeazie, 24 Me. 280; 
 Sanborn v. Kittredge. 20 Vt. 032, 50 Am. Dec. 58. In the case of 
 McMarlan v. English, 74 Pa. St. 290, it was held that in the case 
 of the sale of the furniture of a large hotel, it was enough for the 
 vendee to assume the direction and control of the property in such 
 an open and notorious manner as usually accompanies an honest 
 transaction. In Straus v. Minzesheimer, 78 111. 492, the vendor of 
 a large quantity of cigars brought the vendee to the factorj', and 
 said to him, "Here are j-our cigars." He handed to him several 
 boxes, and the vendee paid for the Avhole, employed the cigar- 
 makers in charge of the factory to stamp them in accordance with 
 the laws of the United States, which require stampiug before re- 
 moval. This was hold to be as complete a delivery as the vendor 
 could make, and therefore sufficient. In Morgan v. Miller, 02 Cal. 
 492, the cattle sold were running at large with those of another per- 
 son, and the vendor had them driven up into a corral, and said to the 
 vendee, "Here are your cows that you bouglit."' The vendee then 
 requested a person to take charge of the cattU> for her, which he 
 undertook to do. This was held to be a sufficient delivery. lu 
 Schmidt v. Nunan. 03 Cal. 371, the vendor sold a <iuantity of hay on 
 his ranch, to be delivered at a landing on the river. lie delivered 
 it there, and it was put on boiud a schooner chartered by the 
 vendee, when it was attached by ihe creditors of the vendor. It 
 was held to have been delivered to tlie vendee, and not liable to at- 
 tachment. In Toguiui v. Kyle, 17 Nev. 209, 45 .\ni. Rep. 442, the
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION. 728 
 
 delivery will suffice; or, if that be impossible, the sale 
 will be valid without it. If property is in a warehouse, 
 
 vendors executed to the vendees a bill of sale of twelve thousand 
 bushels of charcoal in pits on the vendor's laud. The vendees sent 
 a person a few days afterward to the pits, who marked them with 
 their names. This person remained in charge a few days, and then 
 requested a neighbor to look after the pits, which he did. This was 
 held to be a sufficient delivery. 
 
 In Vermont it is held that logs in a stream, or piled on its banks, 
 especially if partly frozen into the ice, are of such a cumbrous 
 character, and so situated, as to pass, as against creditors, by a 
 bill of sale without further delivery. Sanborn v. Kittredge. 20 
 Vt. 632, 50 Am. Dec. 58; Hutchins v. Gilchrist. 23 Vt. 82; Birge 
 v. Edgerton, 28 Vt. 291; Fitch v. Burke. 38 Vt. 683; Sterling v. 
 Baldwin, 42 Vt. 306; Ross v. Draper, 55 Vt. 404, 45 Am. Rep. 624; 
 Kingsley v. White, 57 Vt. 565. Ross, J., in delivering the opinion 
 of the court in the case last cited, said: "To hold that such prop- 
 erty comes within the operation of the ordinary rule would prac- 
 tically preclude any sale of it which would be valid against attach- 
 ment by the creditors of the vendor. But in Cobb v. Haskell, 14 
 Me. 303, 31 Am. Dec. 56, where the vendor of lumber lying in dif- 
 ferent piles in a mill-yard brought the vendee in sight of it, and 
 said, "There is the lumber," and told him to take it away and 
 make the best of it, and the vendee went away and left it as it 
 was, and exercised no ownership over it for two months, it was 
 held not to have been delivered, as against attaching creditors of 
 the vendor. In Illinois, corn contained in four cril)S or pens was 
 claimed to have been sold by its owner to another, and after such 
 sale a writ of execution was levied thereon against the vendor, 
 and, the sufficiency of the delivery being in question, the court said: 
 "Where the articles sold are cumbrous or ponderous, so that a re- 
 moval is not practicable, it is not necessary that there should be 
 an actual change of possession from hand to hand, but it Is suf- 
 llcient if the buyer assumes control of the property in an open and 
 notorious manner, and the seller is divested of every species of 
 possession from which an inference of ownership might arise. 
 AVhen an actual change of possession is not practicable, the acts 
 that will constitute a sufficient delivery as to creditors vary in the 
 different classes of cases and depend upon the character of the 
 property sold and the circumstances of each particular case. 
 Wliether all had been done that ought to have been done to con- 
 stitute a delivery, is, therefore, largely a question of fact to be 
 determined by the jury under proper instructions. In the case at 
 bar the corn was not moved from tne cribs, nor was it wholly 
 paid for. Whitman continued in possession of the farm and was
 
 729 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 153 
 
 xind the wareliouseman has is.siu-d his recoipt therefor, 
 the owner may, by transfer of such receipt, vest title in 
 
 ia the apparent possession of the cribs and coin wlicn the levy 
 was made. He exercised acts of ownership over tin- <M)rn for several 
 months after the sale, even to the extent of feeding; some throe 
 or four hundred bushels of it to his stock. Tliere was nothing to 
 idUicate to the general public that the corn had passed out of his 
 possession or control. The jury were, we think, i)roperIy instructed 
 as to the law sovcrninj? the delivery of such property, and the evi- 
 dence was sufficient, in our opinion, to juslify the jury in lintlin.:? 
 that there was no such chau<?e of possession as the rules of law- 
 required. The sale was, therefore, fraudulent in law. and void as to 
 creditors." Ilewett v. Griswold. 43 111. App. A:]. In Minnesota, cat- 
 tle were sold by a father to his son, and wore afterward seized 
 by the sheriff under an execution against the father. In sustaining 
 •the sufficiency of the acts relied upon to constitute a change of 
 possession, the court said: "The defendants contend that the evi- 
 dence failed to show an immediate or any delivery of the cattle 
 to the plaintiff at the time of the alleged sale, or that there was 
 a change of possession, and for that reason the presumption is 
 that the transfer was fraudulent as to the defendant crotlitors. 
 The statute (Gen. St., c. 41, § 15) imperatively exacts immediate 
 delivery to the vendee of chattels sold while in Iho vendor's pos- 
 session, as well as an actual and conlinued change of possession. 
 Precisely what constitutes a delivery and change of possession 
 must depend largely upon the kind and nature of the chattels, the 
 situation of the parties, and other circumstances peculiar to each 
 case. No arbitrary test or rule can be laid down; but in the case 
 at bar delivery was claimed, and thereafter an actual and con- 
 tinued change of possession insisted upon by the plaintiff, concern- 
 ing which there was enough testimony to warrant a linding in his 
 favor. To be sure, the cattle were not driven off the father's farm; 
 but it is quite evident that, after the alleged sale, the son openly 
 claimed to be the owner, and that the father asserted no claim, 
 and ceased to exercise his authority over the stock; all of which 
 was made known to the neighbors. The court was fully justified 
 in its refusal to charge, as requested by the appellant, that there 
 was an entire failure of testimony tending to show either delivery 
 or change of possession." Tuuell v. Larson. IM) Minn. 2G9. 
 
 If a vessel is abroad at the time of its sale, it will bo sufficient 
 if it be delivered within a reasonable time after its arrival. Thuret 
 V. Jenkins, 7 Mart. (La.) 318; 12 Am. Dec. oO&. But a boat upon the 
 water will not pass, as against a subsequent purchaser, by an oral 
 sale without delivery. Veazie v. Sonun-by, ,"> Allen. 280. 
 
 The delivery of warehouse receipts for bulky articles stored in
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION. 730 
 
 liis transferee as against the claims of the owner's credi- 
 tors.**"'' 
 
 In such cases, however, the vendor must not be per- 
 mitted to continue in the apparent ownership of the 
 property longer than its situation and condition render 
 necessary. So, where cattle were roaming at lacge 
 over the plains, upon a certain range, it was held that 
 the vendee should have a reasonable time after the sale 
 to prepare for a rodeo, and to give proper notices^ 
 thereof, in order to separate the cattle purchased from 
 other stock, and have them properly marked and 
 branded.®*** The owner of a large number of horses 
 and mules sold twenty head thereof, which were 
 pointed out to the purchaser in a corral wherein they 
 then were, and a bar was branded on those sold, under 
 the brand of the vendor. The horses were then turned 
 out and permitted to range with others, which still be- 
 longed to the vendor. About three years afterward 
 the horses purchased were branded with the vendee's, 
 brand. Some two years later they were levied upon 
 under an execution against the vendor. The trial 
 court found that these facts did not constitute an im- 
 mediate or continued change of possession, and hence, 
 that the property was subject to the execution under 
 which the levy had been made. The appellate court 
 reversed this decision, maintaining that Avhen the bar 
 
 the warehouse is a sufficient delivery of such articles. Usage has 
 made the possession of these documents equivalent to the posses- 
 sion of the property itself. Horr v. Barker. 8 Cal. r>09; Burton v. 
 Curyea, 40 111. 320; Cool v. Phillips. 66 111. 2t7: Broadwell v. How- 
 ard, 77 111. 305; National Bank v. Wallbridse, 10 Ohio St. 419; Gib- 
 son V. Stevens, 8 How. 384. And the delivery of the keys of a ware- 
 house in which bulky articles are stored is a sufficient delivery of 
 the articles themselves. Niagara Co, National Bank v. Lord, 33 
 Hun, 557. 
 
 SOT Bank of Newport v. Tlirsch. .^0 Ark. 22.". 
 
 808 Walden v. Murdock, 23 CaJ. 540, S3 Am. Dec. 135.
 
 731 PERSONAL TROPERTY SUBJECT TO EXECUTION. § liiS 
 
 was branded under the vendor's brand the horses pur- 
 chased could thereby be distinguished from the others; 
 that when they were turned out on the rirnge they were 
 not in the actual possession of ixny one, and that the 
 constructive possession accompanied the title, which 
 was in the purchaser, saying: "What more could hnve 
 been done to constitute a delivery? The law does not 
 require a proclamation of delivery to be made, nor that 
 these horses should be temporarily separated from the 
 others, or put in a corral or enclosure. All that wasi 
 necessary to be done was done. There ^^as a perma- 
 nent identification of the horses, and the relations of 
 the parties to those horses were changed. But when 
 this was done, they were turned out of Kirkpatrick's 
 corral and went off on to the range, thus severing all 
 connection between them and their former owners. Bv 
 this there was an unmistakable delivery and a total 
 change of possession." ****** 
 
 Property, when sold, may be in the possession of a 
 third person, as bailee for the vendor. If the bailment 
 be such as to give the bailee the right to hold the prop- 
 erty for a definite time, the delivery of possession to 
 the vendee must be omitted from necessity. But even 
 if the bailment be for no definite time, it is sufficient 
 that the bailee be notified of the sale; ^^^ and if he be at 
 
 809 Dodfje V. .Tones, 7 Mont. 121. 
 
 810 Moore v. KolleJ^ 5 Vt. P>4. 2G Am. Deo. 2S3: Ruriro v. Cone. G 
 Allen, 412: Barney v. Brown. 2 Vt. ,374, 19 Am. Dec. 720; Brocken- 
 ridse y. Anderson. 3 .T. .T. Mnrsli. 710; Carter v. Willard, 19 Pick. 
 1; Harding v. Janes, 4 Vt. 4(52; Pierce v. Cliipman. S Vt. 339; Kroesen 
 V. Seevcrs, 5 Leigh, 434; Frye v. Sliepler. 7 Pa. St. 91: Kolierts v. 
 Guernsey, 3 Grant Cas. 237; IIoav v. Taylor, ."2 ^fo. .">92: Butt v. 
 Caldwell, 4 Bibb. 458; I.ynde v. Melviii. 11 \t. 683. 34 Am. Dec. 
 717; Morgan v. Miller, 62 Cal. 492; ITildreth v. Fitts. 53 Vt. 684; 
 Stowe V. Taft, .58 N. II. 445; Wing v. IVabody. .57 Vt. 19; Campbell 
 V. Hamilton, 63 Iowa, 293; Linton v. Butz, 7 Pa. St. 89, 47 Am.
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION. 732 
 
 a distance, it is probable that the parties will be al- 
 lowed necessary time in which to convey him the infor- 
 mation.**^^ S. sold certain horses on the eighteenth* 
 day of October to W., which were then on a mountain 
 range belonging to D., and were being there cared for 
 by him for S., and S., in anticipation of the sale, di- 
 rected D. to get up the horses for W., and at the time 
 of the sale told W. of the direction thus given D., and 
 D., on November 12th, wrote to.W. to come for the 
 horses, as they had been gotten up for him, and W. an- 
 swered that he wanted D. to keep them for him during 
 the winter. This D. did, and the horses remained in 
 his possession until the ensuing spring, when they were 
 attached as the property of S. They were held not 
 liable to such attachment, in an opinion in which the 
 court said: "Wheoi property is so situated that the 
 buyer is entitled to and can rightfully take possession 
 of it at his pleasure, he is considered as having actually 
 received it as the statute requires. Accordingly, it has 
 been held, if the vendor of goods in the care and keep- 
 ing of a third person directs him to deliver them to the 
 vendee, and the party holding the goods, on notice and 
 application of the vendee, assents to retain the goods 
 for him, it is a delivery sufficient to transfer the title 
 and to satisfy the statute. (Means v. Williamson, 
 37 Me. 55G.) By delivering the bill of sale to the 
 plaintiff, and giving direction to his agent to get 
 the horses together, and keep them for the plain- 
 tiff, to whom they had been sold, Sotcher transferred 
 them to the plaintiff; and when the agent, in obedi- 
 
 Dec. 501; Potter v. Washburn, 13 Vt. 558, 37 Am. Dec. ()15; Cameron 
 V. Calberg (Cal.). 31 Pac. 530; Murphy v. Braase ddnho). 32 Pac 
 208; Byrnes v. Hatch, 77 Cal. 241; Conrad v. Smith. 2 N. D. 408. 
 811 Ricker v. Cross, 5 N. H. 570.
 
 733 PERSONAL PROPEUTY S>L'BJE;T TO EXECUTION. § 152 
 
 ence to the direction which he had received, collected 
 them together in his pasture for the plaintiff, and 
 wrote to him that they were ready for him, and to come 
 and take them, and the plaintiff employed the agent to 
 take charge of them and winter them for him, this was 
 an actual delivery of the property, so far as the nature 
 and condition of the property admitted of it." **^^ If 
 the bailee himself becomes the purchaser of the prop- 
 erty, it is manifest that there cannot be any visible 
 change of possession, and hence, none is required. He 
 may continue in possession as before.®*" If property, 
 at the time of the sale thereof, is in custody of an officer 
 of the law, as where it has been seized under an attach- 
 ment against its owner, as the latter has not posses- 
 sion of it, he cannot make any delivery. The fact that 
 the goods are in custody of the law does not prevent a 
 valid sale thereof by their owner, subject to the lien 
 of the officer holding ijossession, and, as the latter haa 
 the right to retain possession until his lien is satisfied, 
 no change of possession need accompany the sale of the 
 vendor's interest therein.***^ If the owner of a stock 
 of goods contained in a store, being then absent there- 
 from, transfers his entire stock in trade, including 
 store furniture, fixtures, and all notes and accounts 
 belonging to the trade, and the vendor and vendee 
 unite in a telegram to the clerks in charge of the store 
 notifying them of the sale, ordering them to continue 
 the business, and that everything done thereafter is to 
 belong to the purchaser, and also address them a let- 
 ter explaining the transaction, and, on receipt of the 
 letter, the clerks balance the cash, and have a lease of 
 
 812 WiUiams v. Lerch. 56 Cal. 334. 
 81S Hogan v. Cowell. 73 Cal. 211. 
 614 Hauser v. Beaty, 93 Mich. 499.
 
 § 153 PERSONAL PROPERTY SUBJECT TO EXECUTION, i. 734 
 
 the store, and the policies of insurance on the stock 
 transferred to the vendee, such a change of possession 
 is thereby consummated as meets the requirements of 
 the statute.^^® In Vermont, logs on the lands of an- 
 other than the owner, and not in the visible possession 
 of any one, may be transferred without any perceptible 
 change of possession.**^^ So property in a warehouse, 
 on storage, if ascertained and separated from other 
 property, and formally delivered to the vendee, may be 
 left by him in the same place.^^'' Where twelve thou- 
 sand bushels of charcoal in pits were sold, and the 
 purchaser a few days after the sale sent a person to the 
 pits, and caused them to be severally marked with the 
 purchaser's name, and the person so sent remained in 
 charge for a fortnight, when he left, requesting a neigh- 
 bor to look after the property, it was held that there 
 had been a sufficient change of possession.*^* The sale 
 by one of several joint owners also furnishes an excep- 
 tion to the rule that there must be a change of posses- 
 sion. If the cotenant selling is in the sole possession, 
 he ought to give possession to his veTideo; but if the 
 other cotenants are in possession, the vendor has no 
 right to take it from them. He may, therefore, from 
 necessity, make a valid sale without placing the prop- 
 erty in the custody of his vendee.®^^ Where, however, 
 the cotenant or cotenants making the sale, though they 
 
 815 Angell V. Pickard, 61 Mich. 561. 
 
 816 Merritt v. Miller, 13 Vt. 416; Sanborn v. Kittredge, 20 Vt. 622, 
 50 Am. Dec. 58; Hutching v. Gilchrist, 23 Vt. 82; Kingsley v. White, 
 57 Vt. 565. 
 
 81T Cartwright v. Phoenix, 7 Cal. 281. 
 
 818 Tognini v. Kyle, 17 Nev. 209, 45 Am. Rep. 442. 
 
 819 Freeman on Cotenancy and Partition, sees. 167. 210; Brown 
 V. Graham. 24 111. 6.30; Beaumont v. Crane. 14 Mass. 400; Gushing 
 V. Breed, 14 Allen, 380, 92 Am. Dec. 777; Criley v. Vasel, 52 Mo. 
 445.
 
 735 TERSONAL niOrERTY SUBJECT TO EXECUTION. § 154 
 
 do not own the entire property, are in possession there- 
 of, they must, to support the transfer, make a delivery 
 and change of possession to the same extent as if they 
 were owners in severalty, and the abstmce of such 
 change of possession cannot be excused on the ground 
 that tliere is another cotenant who may, in contempla- 
 tion of law, be in constructive possrssion of the prop- 
 erty, if his possession is not actual and visible, and a 
 change of possession may, therefore, be made pursuant 
 to the sale.**^** Property exempt from or not subject to 
 execution cannot enable its owner to obtain a delusive 
 credit, nor can its secret sale b}^ him operate as a fraud 
 on his creditors, since they have, under nO' circum- 
 stances, a right to seize it against his will. They can 
 take no advantage of the fact that its sale was not ac- 
 companied nor followed by a corresponding change of 
 possession.**^^ So, because he cannot possiblj^ be de- 
 frauded by it, a creditor will not be permitted to attack 
 a sale, for want of a change of possession, when he 
 knew of such sale at the time it was made, and derived 
 a benefit from it,®'^ or where, having like knowledge, he 
 thereafter became a creditor of the vendor. '^^^ 
 
 § 154. When the Change of Possession must Com- 
 mence. — In many of the decisions under the statute of 
 Elizabeth, it is said that possession must accompany 
 
 820 Brown v. O'Neil, 95 Cal. 202, 29 Am. St. Rep. Ill; Howe v. 
 Johnson, 107 Cal. 67. 
 
 821 Patten v. Smith.. 4 Conn. 450. 10 Am. Dec. IGG; Foster v. Mc- 
 Gresror, 11 Vt. 595, 34 Am. Dec. 713; Anthony v. Wado, 1 Bush. 110; 
 Morton v. Racan. 5 Bush. 334; Derby v. Weyrich. S Neb. 174. 30 
 Am. Rep. S27: Jewett v. Gnyer, 38 Vt. 218; George v. Bassett. .54 
 Vt. 217; Walcott v. Hamilton. 61 Vt. 79; Isgrigg v. Pauley, 148 Ind. 
 436. 
 
 822 Parsons v. Hatch. 63 N. H. .343. 
 
 823 Vanmeter v. Estill, 78 Ky. 456.
 
 § 154 PERSONAL PROPERTY SUBJECT TO EXECUTION. 73& 
 
 the deed. In some of the state statutes, the require- 
 ment is that the possession be immediate; under others,, 
 it must be taken within a reasonable time. The con- 
 struction given these different statutes is substantially 
 identical. When the sale is made, the vendee must pro- 
 ceed to take possession of the property as soon as prac- 
 ticable, exercising the same degree of diligence that 
 usually is employed by vendees of property of a similar 
 character and in a similar situation. If he does this, his 
 possession accompanies the sale within the meaning of 
 the decisions.**"^ "By an immediate delivery is not 
 meant a delivery instanter; but the character of the 
 property sold, its situation, and all the circumstances 
 must be taken into consideration in determining 
 whether there was a delivery within a reasonable time, 
 so as to meet the requirement of the statute; and 
 this will often be a question of fact for the jury." **^^ 
 Hence, if a sale of a stock of goods twenty miles dis- 
 tant be made at nine o'clock in the evening, possession 
 thereof taken pursuant to such sale at four o'clock 
 the next morning is immediate, within the meaning- 
 of the statute.®^^ Generally, the failure to take posses- 
 sion in pursuance of a sale, either immediately or 
 within a reasonable time after such sale, is held to 
 make such sale either conclusively or prima facie 
 fraudulent. The sale having been thus tainted with 
 fraud, the questions arises whether this taint may be 
 removed by a possession subsequently taken. 
 
 824 Ingraham v. Wheeler. 6 Conn. 277; Meade v. Smith, 16 Conn. 
 347; Wilt v. Franklin, 1 Binn. 521. 2 Am. Dec. 474; State v. King. 
 44 Mo. 238; Seymour v. O'Keefe, 44 Conn. 132; Boyd v. Pottle, G.% 
 Mo. App. 374; Dillan v. Kinoald, 70 Mo. App. 670. 
 
 S25 Samuels v. Gorham, 5 Cal. 227; Carpenter v. Clark, 2 Nev, 
 246. 
 
 826 Kieinschmidt v. McAndrews, 117 U. S. 2S2.
 
 737 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 154 
 
 The better rule, we think, is, that when the taking of 
 possession has been so deferred that the sale must be 
 denounced for constructive fraud, its character is irre- 
 trievably determined, and possession afterward taken 
 gives no life or validity to that wiiich was before null 
 and void.**-''' Doubtless, however, the weight of the 
 authorities is against the rule as we have stated it. 
 They maintain that a sale is never, because of a want 
 of a change of possession, void as against creditors gen- 
 erally, but only against those who have cither reduced 
 their debts to judgments, or have in some manner ob- 
 tained liens for the enforcement thereof. If, when the 
 judgments are rendered, or the attachment or other 
 liens obtained, the sale has been consummated by tak- 
 ing possession, it must, according to tliese authorities, 
 be treated as valid, though such possession did not ac- 
 company the sale.*^^** These authorities seem to ignore 
 
 827 Gibson v. Love, 4 Fla. 217; Carpenter v. ;^^ayer, 5 Watts, 483; 
 Hackett v. Manlove. 14 Cal. So; Chouory v. Palmer, 6 Cal. 119, 65 
 Am. Dee. 403; Edmondson v. Hyde. 2 Saw. 209; 7 Nat. Bank. Jlog. 
 4; In re Morrill, 2 Saw. ,3.59; 8 Nat. Bank. Resr. 120; Franklin v. 
 Gumersell, 9 Mo. App. 89; Watson v. Rodgers, .53 Cal. 401. 
 
 828 Kendall v. Samson, 12 Vt. 515; Read v. Wilson, 22 111. 377, 74 
 Am. Dee. 159; Calkins v. Lockwood, IG Conn. 27G. 41 Am. Dec. 143; 
 Blake v. Graves, 18 Iowa, 312; Clute v. Steel. G Nev. 325; Cruik- 
 shanks v. Cogswell, 2G 111. 3G6; Gilbert v. Decker, 53 Conn. 401; 
 Sydnor v. Gee, 4 Leigh, .535; Hall v. Gaylor. 37 Conn. ,5.50; Hardin 
 V. Sisson, 3G 111. App. 383; Oliver v. Reading I. Co.. 170 Pa. St. 
 390; Poling v. Flanagan. 41 W^ Ya. 191; Macintosh v. Smiley, 32 
 Mo. App. 125. But a subsequent case proclaims a rule absolutely 
 inconsistent with that stated in the above decision. In Link v. Har- 
 rington, 41 Mo. App. 635, the court said: "Next, it is error to sup- 
 pose that the rule laid down in Nash v. Normeut, 5 Mo. App. 54.5, 
 and followed by the supreme court in Greeley v. Reading. 74 Mo. 
 309, and subsequent cases, declaring that a mortgage is purged of 
 its fraud by subsequent delivery, can be extended to sales of per- 
 sonal property. Delivery and change of possession are essential 
 ingredients of every sale when it is sought to uphold it against the 
 creditors of the vendor, and to hold that delivery can be made at 
 
 Vol. I.— 47
 
 § 154 PERSONAL PROPERTY SUBJECT TO EXECUTION. 166 
 
 the chief object sought by the statutes and decisions 
 requiring the change of possession to accompany the 
 sale. That object was to suppress fraud by preventing 
 vendors from obtaining a false and delusive credit by 
 remaining in apparent ownership of property in which 
 they had ceased to have any interest. The most equi- 
 table rule upon the subject is that enacted in section 
 3440 of the present Civil Code of California, as follows: 
 "Every transfer of personal property, other than a 
 thing in action, or a ship or cargo at sea or in a foreign 
 port, and every lien thereon, other than a mortgage 
 when allowed by law, and a contract of bottomry or re- 
 spondentia, is conclusively presumed, if made by a 
 person having at the time the possession or control of 
 the property, and not accompanied by an immediate 
 delivery, and followed by an actual and continued 
 change of possession of the things transferred, to be 
 fraudulent, and therefore void, against those who are 
 his creditors while he remains in possession, and the 
 successors in interest of such creditors, and against any 
 persons on whom his estate devolves in trust for the 
 benefit of others than himself, and against purchasers 
 or encumbrancers in good faith subsequent to the 
 transfer." But even in those states where the want of 
 an immediate delivery cannot be suj)plied by a subse- 
 quent one, there is an inclination to avoid a rigid ap- 
 plication of the rule. Hence, where furniture was pur- 
 chased, and the vendee took no possession until after 
 two or three weeks, during which he was hunting for a 
 suitable house to live in, the court refused to award 
 the property to a creditor of the vendor whose judg- 
 
 any time prior to the seizure of the goods l\v tho voiulor's creditors 
 would, in effect, wholly abrogate the statute ou ihe subject of fraud- 
 ulent conveyances."
 
 739 PERSONAL PROPERTY SUBJECT TO PLKECUTIOX. § lo5 
 
 ment and levy were eight or nine months subsequent 
 to the sale.**^** 
 
 § 155. What is a Sufficient Change of Possession?— 
 The response to this quevStion, so far as it can be ex- 
 pressed in general terms, is, that the clianfte of posses- 
 sion must be open, visible, actual, and substantial, so 
 that persons in the habit of seeing the property will in- 
 fer that a change of ownership has taken jjlace.**^** "In 
 no case that we are aware of has the supreme court laid 
 down a rule requiring less than that the purchaser 
 must have that possession which places him in the re- 
 lation to the property which owners usualh^ are to the 
 like kind of property." **^^ "The change necessary is 
 only one which the creditors, upon reasonable inquiry, 
 can ascertain — such a change of the possession, or such 
 a divesting of the possession of the vendor, as any man 
 knowing the facts, which could be ascertained upon 
 reasonable inquiry, would be bound to know and un- 
 derstand was the result of a change of ownership — 
 such a one as he could not reasonably misappre- 
 hend." *^^^ "The vendee must take the actual posses- 
 sion, and the possession must be open, notorious, and 
 unequivocal, such as to apprise the community, or those 
 who are accustomed to deal with the party, that the 
 
 829 Smith V. Stern, 17 Pa. St. 360. See, also. McVieker v. May, 
 3 Pa. St. 224, 45 Am. Dec. 637. 
 
 530 Rockwood V. Collamer. 14 Vt. 141; Kirtland v. Snow, 20 Conn. 
 23; Hoof smith v. Cope, 6 Whart. 53; Cadbury v. Nolen, 5 Pa. St. 
 320; Cook v. ISfann. Colo. 21; Orady v. Baker. 3 Dak. 296; State v. 
 Hall, 45 Mo. App. 298; State v. Flynn, 66 Mo. App. 373; Freetlmaa 
 V. Morrow S. M. Co., 122 Pa. St. 25; Stephens v. GitToid. 137 Pa. St. 
 219. 21 Am. St. Rep. 868; Dooley v. Pease, 88 Fed. Rep. 446; 60 
 U. S. App. 248; Shauer v. Alterton, 151 U. S. 607. 
 
 831 Woods V. Bucboy, 29 Cal. 472. 
 
 832 Stephenson v. Clark, 20 Vt. 027; Burrows v. Stebbins, 26 Vt. 
 659.
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 740 
 
 goods have changed hands, and that the title has 
 passed to the purchaser. This must be determined by 
 the vendee using the usual marks and indicia of owner- 
 ship, and occupying that relation to the thing sold 
 which owners of property generally sustain to their 
 own property." ***^^ "It was intended that the vendee 
 should immediately take and continuously hold th^e 
 possession of the goods purchased, in the same manner, 
 and accompanied with such plain and unmistakable 
 acts of possession, control, and ownershij^, as a prudent 
 bona fide purchaser would do in the exercise of his 
 rights over the property, so that all persons might have 
 notice that he owned and had possession of the prop- 
 erty."' *^^'* "The possession of the vendee must be open 
 and unequivocal, carrying with it the usual marks and 
 indications of ownership by the vendee. It must be 
 such as to give evidence to the world of the claim of the 
 new owner. He must, in other words, be in the usual 
 relation to the property which owners of goods occupy 
 to their property. This possession must be continuous 
 — not taken to be surrendered back — not formal, but 
 substantial." ****^ "There must be such change in the 
 apparent custody of the property as to put one dealing 
 with the vendor with respect to it upon inquiry, or such 
 at least as might suggest a change of ownership." **'^* 
 It is not sufficient that the vendee assume control of the 
 property in such a manner that the vendor cannot 
 legally interfere with it, if the transaction is "wanting 
 in the publicity, openness, or notoriety which would 
 
 833 Claflin V. Rosenber.u. 42 Mo. 440; 48 Mo. m?,. 07 Am. Dec. 330; 
 Lesem v. Herriford, 44 Mo. 323; Allen v. Massey. 2 Abb. 60. 
 
 834 Lay V. Neville, 2.t Cal. 552. 
 
 835 Stevens v. Invin, 15 Cal. .50G, 76 Am. Doe. .500; Engles v. 
 Marshall, 19 Cal. 320; Cahoon v. Marshall, 25 Cal. 197. 
 
 836 iiesthal V. Myles, 53 Cal. 623.
 
 741 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 155 
 
 tend to warn other members of the community, or ad- 
 vertise the claim of the vendee." **^'' The marking of 
 goods is not equivalent to a change of possession.*^** 
 "Purchasers must learn and understand that if they 
 purchase property, and, without a legal excuse, permit 
 the possession to remain in fact or apparently and vis- 
 ibly the same, or if changed for a brief period, to be in 
 fact or apparently and visibly restored, and thereafter, 
 in fact or apparently and visibly continued as before 
 the sale, they hazard its loss by attachment for the debts 
 of the vendor, as still, to the view of the world and in 
 the eye of the law, as it looks to the rights of creditors 
 and the prevention of fraud, his property." ^^^ "The 
 I)urpose of the statute is, that there shall be such a 
 change of possession as will give to parties dealing 
 with the seller or buyer notice of the transaction. It 
 is such transfer of dominion over the pr{)i)erty as to 
 impart notice to persons dealing with reference to the 
 property that the title has been transferred, or such 
 possession as will put such persons in possession of 
 such facts as will lead to inquiry as to the ownership. 
 It is sometimes said that the possession must be such 
 as to be notice to the world. This does not mean notice 
 to the public generally, but to those who propose to 
 purchase the property or deal with reference to it." '*'*** 
 It is not sufficient that the vendee is entitled to, and 
 can rightfully, at his pleasure, take possession of, the 
 property purchased. ^^^'^ "Where there is no fixed rule 
 as to what is necessary to constitute such a delivery 
 and possession of chattels as is required by the statute, 
 
 837 Ibid. 
 
 83S Stewart v. Nelson. 79 Mo. .^22. 
 
 S39 Norton v. Doolittle. 32 Conn. 405. 
 
 840 Deere v. Needles. G.") Iowa. lO.^. 
 
 941 Etehepare v. Aguirre, 91 Cal. 2SS. 2r^ Am. St. Rep. 180.
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 742 
 
 the particular facts and circumstances must govern 
 each case." ^* ^ If, at the execution of a bill of sale, 
 the vendor declares, in the presence of witnesses, that 
 he delivers possession of the property, consisting of cer- 
 tain horses and wagons, to the purchaser, and there- 
 upon gives him the key of the stable in which they are 
 kept, and goes and stays away, and the purchaser takes 
 possession, puts a man in charge for himself, re-em- 
 ploys the drivers who had been before in the vendor's^ 
 employment, who, on their part, accept the employ- 
 ment and act thereunder, collecting bills for him, these 
 facts are suflScient to support a verdict sustaining the 
 sale.**^ ^ If one purchases a stock of goods in a store, 
 enters into possession, re-employs the clerks, has new 
 signs painted with his name thereon, hanging one over 
 the sidewalk and another within the store, receives an 
 assignment of the policies of insurance, takes out a 
 dealer's license for the conducting of the business, and 
 gives the clerks instructions for its management, this 
 is a sufficient change of possession, though subse- 
 quently the vendor is employed to take charge and as- 
 sist in the management of the business.^'*^ Merely 
 changing the name of the store in which a stock of 
 goods is kept is not a sufficient change of possession.^"** 
 In Men-ill v. Hurlburt, 63 Cal. 494, the property sold 
 was a quantity of loose hay stored in a barn owned by 
 the vendor. The vendee examined the hay at the time 
 of the sale, and there was a verbal delivery. The ven- 
 dee also placed a man in charge of the property, but 
 the barn continued in the possession and under the 
 control of the vendor. A portion of the hay was sub- 
 
 S4ia Blish V. McCornick, 15 Utah, 188. 
 s^ib.Tanney v. Howarrl. IHO Pa. St. :?39. 
 
 842 Levy V. Scott, 11.5 Cal. .39. 
 
 843 Klee V. Reitzenberger, 23 W. Va. 740.
 
 743 TERSONAL PROPERTY SUBJECT TO EXECUTION. § 155 
 
 sequently removed, but the part in controversy re- 
 mained in the barn until it was attached by a creditor 
 of the vendor, about three months after the sale. The 
 trial court found that there was not an immediate de- 
 livery, and an actual and continued change of posses- 
 sion, and the supreme court held that the finding was 
 justified by the evidence. 
 
 The possession of the vendee must be exclusive, and 
 not in common with the vendor.®*'* "There must be a 
 bona fide, substantial change of possession. It is a 
 mere mockery to put in another person to keep posses- 
 sion jointly with the former owner." ^^'' If the posses- 
 sion of the vendor and vendee after the sale "is mixed 
 or concurrent, it is insufficient to indicate an open 
 and complete transfer of the possession." ®*^ "Where 
 
 844 Brawn v. Keller, 43 Pa. St. 104, 82 Am. Dec. 554; 3 Grant Cas. 
 144; StacUler v. Wood, 24 Tex. 622; Kendall v. Samson, 12 Vt. 515; 
 Wooten V. Clark, 28 Miss. 75. 
 
 845 Babb V. Clemson, 10 Serg. & R. 428, 13 Am. Dec. G84; Wordall 
 V. Smith, 1 Camp. 333. 
 
 846 Worman v. Kramer, 73 Pa. St. 380; Sumner v. Dalton, 58 N. H. 
 295; Allen v. Masscy, 17 Wall. 351; Plaisted v. Holmes, 58 N. H. 
 293. In Hull v. Sigsworth, 48 Conn. 258, 40 Am. Rep. 167, the 
 vendee employed by the vendor on the latter's farm agreed to buy 
 him a horse, and apply his wages in payment. Two years after- 
 ward the vendor sold and delivered the horse to the vendee, taking 
 his receipt in full of wages earned in payment. The vendee con- 
 tinued in tlie vendor's employment on the farm, keeping the horse 
 in the vendor's stable, taking care of it, breaking it. and shoeing it, 
 paying the vendor for the feed. It was held that there was not a suf- 
 ficient change of possession as against the creditors of the vendor. 
 But see Webster v. Anderson, 42 Mich. 554, 36 Am. Rep. 452, where 
 itwas agreed between a farmer and his laborer that the latter should 
 accept certain hogs in payment for his services. The hogs were 
 pointed out, but were to remain in the i)asture with other hogs until 
 an opportunity should le found for selling tliem. It was held that 
 thiswas a sufficient transfer of the possession to constituteadelivery 
 under the circumstances. Cooley, J., in delivering the opinion of the 
 court, said: "It was all the delivery that could well have been made 
 under the circumstances, without requiring Anderson to remove the
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 744 
 
 there is a joint possession by the vendor and the vendee, 
 the property is liable to attachment upon the vendor's 
 debts if a candid observer would be at a loss to deter- 
 
 liogs from the farm where he was employed to some other place 
 where they would have been less iu his possession than where they 
 were; and for this there could have been no sutficieut reason." In 
 Koberts v. Radcliff, 35 Kan. 502, a lawyer and real estate agent 
 bought a stock of millinery goods in a distant city, and returned 
 home on the same day, without moving the goods, changing the sign 
 on the store or giving any notice to the public that there had been 
 a change of proprietorship, but leaving to manage the new business 
 the same persons who had been in charge before the sale. And 
 it was held that there was sufficient evidence to justify the jury in 
 finding the sale fraudulent as against the creditors of the vendors. 
 So in Wolf V. Kahn. G2 Miss. 814, where the business after the 
 conveyance Avas carried on just as before the sale, and there was 
 nothing to indicate that the former clerk had become the owner, 
 and the former owner a clerk, but, so far as the public could know 
 from appearances, the vendor was still the owner of the business, 
 and the fact of the sale was known to two persons only besides 
 the parties to it, the sign over the store remaining the same, and the 
 license of the former owner remaining posted up in the store as 
 before the sale, it Avas held that there was not sufficient evidence 
 of a change of possession as against the vendor's creditors. But 
 in Ware v. Hirsch, 19 111. App. 274. where certain creditors of a 
 debtor in failing circumstances bought out his store and goods, and 
 put one of their number in possession thereof, who opened a new 
 set of books, took down the debtor s sign, employed the former 
 clerks, and paid the rent, etc., it was held that there was sufficient 
 evidence of a change of possession to satisfy the requirements of 
 the Illinois statute. In Wilson v. Hill. 17 Nev. 4€1, the mortgagor 
 of 324 cords of wood lying on the roadside went with the mortgagee 
 to the place, and said to him: "There is the wood. I deliver it to 
 you as security for the money loaned." The wood was not marked, 
 nor was any one put in charge of it, but the mortgagee went occa- 
 sionally to see that no one interfered with it. It was held that 
 there was not a sufficient change of possession as against creditors. 
 In Betz v. Conner, 7 Daly, 550, the purchaser at execution sale left 
 the property after the sale in the same premises, where it Avas used 
 by the execution debtor as it had been used by him before the sale. 
 and over which he exercised the same control as before, except 
 that after the sale he acted as agent of the purchaser; and it was 
 held that the change of possession was constructive only, and not 
 actual, and that the sale was, therefore, presumptively fraudulent 
 as to the creditors of the former owner. In McCarthy v. McDer-
 
 745 PERSONAL PllOl'ERTY SUBJECT TO EXECUTION. § 155 
 
 mine wliich of the two has the chief control and posses- 
 sion of it, and, in case of doubt, the hiw resolves the 
 doubt against the party who should make the change 
 of possession open and visible." ^^' 
 
 It may be that the vendor and vendee are occupants 
 of the same premises, and even members of the same 
 family. If such be the case, it will require great care 
 to give a transfer from one to the other that notoriety 
 which will warn others of the change of ownership. In 
 some instances, as where the transfer was from a pa- 
 rent to his minor child, it has been held that the posses- 
 
 mott. 10 Daly, 4r)0. tho vendor, after the exotutiou and delivery of 
 a bill of sale of the furniture of a boardiuji-house, went with the 
 purchaser to the house, who stated to him that he took possession 
 of the property, and at the same time delivered to the vendor's wife 
 a writing constituting her a bailee of the property; but there was no 
 change in the apparent ownership, and nothing to disclose the fact 
 that the title had been transferred. It was held that the sale was 
 void as against creditors, and that it was error to submit the ques- 
 tion of change of possession to the jury. In Bentz v. Hockey, 69 
 Pa. St. 71, the vendor was the lessee of a tannery, and after the sale 
 the vendee paid the rent for the remainder of the year, but the 
 vendor remained on the premises as before, and worked out and 
 sold the stock, paying the money received therefor to the vendee. 
 It was held that there was not sutiicient change of possession to 
 make the sale valid as against creditors. But in Crawford v. Da- 
 vis, 99 Pa. St. 570, the vendor was an aged and infirm man re- 
 siding on a farm under a parol lease, his son residing with him. 
 By reason of infirmity and poverty, the fathi-r was unable to carry 
 on the farm, and he therefore sold all the property on the farm 
 to his son, in consideration of the vendee's agreeing to support his 
 father and mother and pay the rent. The son after the sale took 
 charge of the farm, bought and put additional stock on it. used 
 the whole of it, paid the rent, supported his father until he died, 
 and continued to support his motlier, hired and paid labor to work 
 the farm, and lived upon it. It was held that the trial court erred 
 In holding that the evidence of change of possession was not suf- 
 ficient as against creditors of the vendor, and the supreme court 
 decided that the case ought to have been left to the jury to decide, 
 under the circumstances, whether the sale was in good faitl". or 
 merely colorable. 
 847 W' heeler v. Selden, G3 Vt. 429, 2o Am. St. Itep. 771,
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 746 
 
 sion subsequently held by the former must be deemed 
 the possession of the latter; and the transfer was there- 
 fore sustained, although no notorious or other apparent 
 change of possession followed the transfor."^^** While 
 the enforcement of the rule requiring a change of pos- 
 session to accompany a transfer ma}' occasion some 
 hardship when the transaction is between relatives or 
 others occupying the same premises, yet it ought to be 
 remembered that it is between persons thus related or 
 situated that a fraudulent or simulated transfer is most 
 likely to be conceived and atteniftted to be made effect- 
 ive against creditors. Such a transfer is properly 
 viewed with suspicion, and will be sustained only 
 where the evidence shows that "the vendee assumed 
 such control of the property as to reasonably indicate a 
 change of ownership." ^^^ If the change of possession 
 is not sufficient to indicate the change of ownership, 
 the transfer is invalid as against creditors, though the 
 vendor and vendee live in the same liouse,^^^ aijd are 
 members of the same family.**^* G., the owner of cer- 
 tain horses and cattle, sold them to P. on Saturday. 
 On Sunday and Monday ensuing, the stock was col- 
 
 848 Howard v. Williams, 1 Bail. 575, 21 Am. Dec. 483; Dodd v. 
 McCraw, 8 Arlv. 83. 46 Am. Dec. 301. 
 
 849 Crawford v. Davis, 99 Pa. St. 579; McChire v. Forney, 107 Pa. 
 St. 414. 
 
 850 Hull V. Sigsworth, 48 Conn. 258, 40 Am. Rep. 1G7; Lawrence 
 V. Burnham, 4 Nev. .364, 97 Am. Dee. 540. In this case, vendor 
 and vendee lived in different rooms of the same house. They held 
 commoji possession of a barn, in which the vendor had grain. After 
 selling this grain, the vendor continued to have a key to the barn, 
 and to go in and out at pleasure. The grain remained in the same 
 bin as before the sale. It was held that there was no sufficient 
 delivery. 
 
 851 Stiles V. Shumway, IG Vt. 435; Jarvis v. Davis, 14 B. Moru 
 529, 61 Am. Dec. 160.
 
 747 PERSONAL PROPERTY SUBJECT TO EXECUTION. § 155 
 
 leetcd together. On Tuesday T., with G. and family, 
 started with the property en route for a distant pai-t 
 of the state, G. riding one of the horses he had sold, 
 and his family accompanying him in a wai^ou drawn 
 by another horse embraced in the same sale. When 
 they had proceeded thirty miles on their journey the 
 stock was attached as the propertj^ of G. It was held 
 that these facts were such that the jury ought to have 
 found the sale fraudulent, and its verdict in favor of 
 the vendee was vacated, and a new trial granted.^^^ A 
 father sold to his widowed daughter, residing in his 
 family, certain cattle then running at large on a range 
 of very considerable extent. As soon as she purchased, 
 she began to ride around and look after them as they 
 ran upon the range, just as her father had previously 
 done, and performed all the duties pertaining to an 
 owner similarly circumstanced and in charge of and 
 owning an interest in cattle running on a range of like 
 extent. She also sent notices to other persons inter- 
 ested in the cattle, informing them of her purchase of 
 her father's interest. It was held that these facts con- 
 stituted a sufficient delivery and change of possession 
 to support the sale as against the creditors of the 
 fat her. ^^=* 
 
 The difficulty of making an open, visible, and notori- 
 ous change of possession after a transfer from a hus- 
 band to his wife is often very great, because, before the 
 transfer, he is usually in the actual, visible possession 
 of the property, and, as he is the person most naturally 
 chosen to manage her business, he is likely to be found 
 in apparent possession after the sale. In truth, it may 
 be almost impossible to give her the beneficial enjoy- 
 
 852 Recli V. McClure. 47 Cal. 612. 
 863 Halt V. Meado, 84 Cal. 244.
 
 § 155 rEIlSOXAL PROrEUTY SUBJECT TO EXECUTION. 748 
 
 ment of the property unless slie is permitted to author- 
 ize him to care for and to be in the visible possession 
 thereof. Nevertheless, we believe there is no dissent 
 from the proposition that a transfer of chattels from a 
 husband to his wife must be followed by an actual and 
 continued change of possession, though the circum- 
 stance that the parties are husband and wife may 
 doubtless be taken into consiideration. Indeed, it has 
 been said: "The reason of the rule, which is to prevent 
 fraudulent transfers of property, applies more strongly 
 to transactions between husbands and wives than to 
 those between other persons, because of the greater 
 facility for the commission of frauds of this character 
 between the former." **^* "The fact that a vendor and 
 vendee are husband and wife or father and child is 
 no reason why the provisions of the statute should re- 
 ceive a more liberal construction. These conditions 
 give the statute no additional elasticity. The rule of 
 construction is the same in all cases, and the relation 
 between the parties is a matter wholly immaterial." ^^^ 
 It is not, however, necessary, to consummate the change 
 of possession required to support a transfer of title 
 from a husband to his wife, that they abandon their 
 marital relations, or cease to live under the same roof, 
 or that he should not be seen in the vicinity of the prop- 
 erty transferred. "There is much personal property 
 connected with the household of a husband and wife, 
 and used by them in common, that may be said to be, 
 in a certain sense, in their joint possession, and where- 
 by an open, notorious, and unequivocal change of pos- 
 session, such as is required by statute between an or- 
 
 854 Wheeler v. Selden, G3 Vt. 429, 2.5 Am. St. Rep. 771. 
 
 «55 Murphy v. Mulgrew, 102 Cal. 547, 41 Am. St. Rep. 200; citing 
 Mc-Kee v. Garcelon, 00 Me. 105, 11 Am. Rep. 200; O'Kaue v. Whelun, 
 124 Cal. 200, 71 Am. St. Rep.
 
 749 TEKSONAL PROPERTY SUBJECT TO EXECUTION. § 155 
 
 dinary vendor and vendee, could not well be estab- 
 lished by evidence. There must be a change of pos- 
 session in fact, but the difficulty lies in making it ap- 
 parent, and in passing on the validity of a statutory sale 
 of personal property, when the vendor and vendee are 
 husband and wife, I think regard should be had to that 
 exceptional and peculiar relationship. If the ai-ticle 
 be a bureau or dressing-case in their bedroom, it could 
 not be expected that it should be given up to the use 
 of one to the exclusion of the other, or that it should 
 be changed to some other apartment. The statute was 
 enacted to avoid imposition and fraud, as well as may 
 be, by compelling a change of possession contempo- 
 raneous with a change of ownership, but when we con- 
 sider the situation of husband and wife as vendor and 
 vendee, as regards property in their domestic use. we 
 find that there cannot be that open and notorious 
 change of possession required in ordinary cases. So, 
 too, at least in most instances, the same may be said 
 of property under the supervision of the husband, such, 
 ordinarily, as livestock on a farm. The situation of 
 the parties is such that there cannot be had that evi- 
 dence of change of possession which would be obtain- 
 able in ordinary cases. Unless, then, we are prepared 
 to say that there cannot be in this state a sale of per- 
 sonal proper-ty between husband and wife, we are com- 
 pelled to recognize the exceptional situation, as vendor 
 and vendee, of such parties." ^^^ Where a wife, own- 
 ing cattle, bought from her husband hay standing in 
 stacks on lands occupied by them as their homestead, 
 and fed it to her cattle, or commenced to do so, exercis- 
 ing over the property bought the same rights, and us- 
 
 886 Elliott V. Keith, 32 Mo. App. 119.
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 750 
 
 ing it in the same manner as would have been proper 
 and usual had a stranger bought it, it was held that a 
 sufficient change of possession had taken place.*®'' A 
 liusband gave to his wife a buggy and a mare and colt, 
 in good faith and while abundantly solvent. This 
 property was subsequently used by both. The hus- 
 band at all times represented, and claimed that it be- 
 longed to his wife, and when it was loaned to, or used 
 by, any other person, it was by her direction or con- 
 sent, and not by that of her husband, and the property 
 was generally known and recognized as hers. The 
 court said: "In what other, better way could a wife, 
 consistent with her relations as wife, have maintained 
 an immediate delivery of possession followed by an 
 actual change of possession?" and sustained the trans- 
 fer as against the claims of her husband's creditors.*^® 
 There can be no reasonable doubt of the sufficiency 
 of the change of possession when the husband, after 
 making a transfer of chattels to his wife, leaves the 
 premises where they are, and makes his home else- 
 where, she remaining and exercising coutrol over the 
 property.**^'-* 
 
 The vendee must not leave his vendor in possession 
 of the property as his agent,®^" nor as his warehouse- 
 man.**"* If the vendee was, before the sale, in posses- 
 sion as agent, he must, in some way, make known to 
 
 858 Porter v. Bucher, 98 Cal. 454; see, also, Roberts v. Burr (Cal.), 
 54 Pac. Rep. 849; Wyatt v. Wyatt, 31 Or. 531. 
 
 85S Morgan v. BaU, 81 Cal. 93, 15 Am. St. Rep. 34. 
 
 859 Carter v. McQuade, 83 Cal. 274; Pierson v. Quist, 79 Iowa, 54. 
 
 860 Fitzgerald v. Gorham, 4 Cal. 289, 60 Am. Dec. 616; Bacon v. 
 Scannell, 9 Cal. 271. But see England v. Com. Ins. Co., 16 La. 
 Ann. 5. 
 
 861 Stewart v. Scannell, 8 Cal. 80.
 
 751 PERSONAL PROrERTY SUBJECT TO EXECUTION. § Io5 
 
 the public the change of ownerslii}).^^^ Whore a pur- 
 chase is made of a store or other place of business, it is 
 not necessary that the vendor's employes be excluded 
 from the place. If the vendee takes possession by ex- 
 ercising all the rights of a proprietor, and by so con- 
 ducting himself toward the business as to create, in 
 his favor, all the marks of ownersliip usually existing 
 in favor of a proprietor of similar business establish- 
 ments, he may safely re-employ the same clerks and 
 other assistants which were formerly in the service of 
 his vendor.*^**** Nor is the vendor absolutely excluded 
 from the service of the vendee. The vendor's contin- 
 ued connection with the business must always be a 
 suspicious circumstance. But if the vendee takes pos- 
 session as the owner, and, by his acts, clearly shows to 
 the world that he has become the proprietor, his en- 
 gaging the vendor in the capacity of a clerk or as an 
 employe does mot render the sale per se fraudulent. 
 The relation which the vendor and vendee in such 
 cases assume tO'ward the business must be such as to 
 clearly indicate to observers of ordinai*y sagacity that 
 the former is there as the servant, and the latter as the 
 master.**^ "What, JKen, constitutes such a change of 
 
 802 Comly V. Fisher, Taney. 121. 
 
 863 Ford V. Chalmers. 28 Cal. 13; Parker v. Kendrick, 29 Vt. 301; 
 Hall V. Parsons, 15 Vt. 358. 
 
 864 Godchaux v. Mulford, 26 Cal. 317, 85 Am. Dec. ITS; Warner v. 
 Carlton, 22 111. 415; Dunlap v. Bournonville, 26 Pa. St. 72; Roth- 
 gerber v. Goujrh, 52 111. 436; Ilnsus v. Robinson. 24 Pa. St. 0; Beers 
 V. Lyon, 21 Conn. 604; Billinsslpy v. White, 59 Pa. St. 464; State 
 V. Schnlein, 45 Mo. 521; McKlbbln v. Martin. 64 Pa. St. 352, 3 Am. 
 Rep. 588; Wilson v. Lott, 5 Fla. 305: Taloott v. Wilcox. 9 Conn. 
 134; Ware v. Hirsch, 19 111. App. 274; O'Gara v. Lowry, 5 Mont. 
 427; Ziesrler v. Handrick, 106 Pa. St. 87; Gould v. Huntley. 73 Cal. 
 .399; Etchepare v. Afjuirre, 91 Cal. 288. 25 Am. St. Rep. 180; Levy 
 V. Scott. 115 Cal. 39; Adams v. Weaver. 117 Cal. 42; Clinton N. B. 
 V. Studemann. 74 Iowa. 104: White v. Woodruff, 25 Neb. 797; Flan- 
 nery v. Van Tassel, 131 N. Y. 639.
 
 § 155 PERSONAL PROPERTY SUBJECT TO EXECUTION. 752 
 
 possession as the law requires, in order to prevent the 
 sale being declared fraudulent? Undoubtedly, the ven- 
 dor must deliver to the vendee the possession of the 
 ]>roperty in order to consummate the sale, and render 
 it valid as against creditors. The delivery must be 
 actual, and such as the nature of the property or thing 
 sold, and the circumstances of the sale, will reasonably 
 admit, and such as the vendor is capable of makings 
 A mere symbolical or constructive deliver^', where an 
 actual or real one is reasonably practicable, is of no 
 avail. There must be an actual separation of the prop- 
 erty from the possession of the vendor at the time of 
 the sale, or within a reasonable time afterward, ac- 
 cording to the nature of the property. But is it essen- 
 tial to such separation that the property shall be re- 
 moved from the vendor, or the vendor from the prop- 
 erty, so that there shall be an actual and visible sepa- 
 ration between them, measurable by space or distance? 
 Must the vendor absolutely cease to have any connec- 
 tion or contact with the property after its delivery, not 
 as owner, but as the agent or servant of the vendee, on 
 pain of having the sale declared fraudulent? To hold 
 this would be going beyond the established doctrine of 
 our own decisions, and the reason and requirements of 
 the law. Separation of the property from the posses- 
 sion of the vendor implies nothing more than a change 
 of the vendor's relation to it as owner, and consists in 
 the surrender and transfer of his power and control 
 over it to the vendee. But in order to prevent fraud, 
 the law requires that this shall be done by such appro- 
 priate and significant acts as — if done in good faith — - 
 shall clearly show the vendor's intention to part with 
 the possession of the property and transfer it to the 
 vendee. And these acts must be so open and manifest
 
 753 PERSONAL rROPEllTY SUBJECT TO EXECUTION. § 156 
 
 as to make (lie change of possession ai/iiarcnt and visi- 
 ble. If there are sncli i>al[)able tokens and i)roofs of 
 the vendor's surrender of his dominion over the prop- 
 erty as owner, and of the transfer of his possession to 
 the vendee, the sale will not be declared fraudulent in 
 law, although the vendor may act as the agent or ser- 
 vant of the vendee in the management and disposal of 
 the property, provided that his acts are professedly 
 and apparently done, not as owner, but as the agent or 
 servant of the vendee, and are so understood by those 
 with whom he deals. If the change of possession is 
 otherwise sufficiently shown, the mere fact of such 
 agency is not, and never has been held to be, such a 
 badge of fraud, or evidence of retained possession, as 
 to render the sale invalid." *^^ 
 
 Separating a lot of sacks of grain from a larger quan- 
 tity in the vendor's corral or barnyard, and marking 
 them with the initial letter of the vendee's name, and 
 piling them up in another part of the same corral, is 
 n-ot a sufficient delivery, where the vendor continues to 
 have possession of the corral.*^ Where a team has 
 been for some time driven by the same person, it is not 
 a sufficient change of possession to make a formal de- 
 livery, discharge and re-employ the driver, and then 
 keep the team in the same place and about the same 
 work as before.*^"'^ 
 
 ? 156. How Long the Change of Possession must Con- 
 tinue. — A Pennsylvania court once said: "It is not the 
 
 885 Billingsley v. White, 59 Pa. St. 4G7. 
 
 866 Vance v. Boynton, 8 Cal. 554. 
 
 867 Hurlburd v. Bocardns, 10 Cal. 518; Gray v. Corey, if^ Cal. 
 208. See Doak v. Brubaker. 1 Ner. 218: Sharon v. Shavr. 2 Nev. 
 200. 00 Am. Dec. ."40; Mead v. Noyes, 44 Coun. 487; Murch v. Swen- 
 son, 40 Minn. 421. 
 
 Vol. I —48
 
 ? 15G TEUSOXAL niOPERTY SUBJECT TO EXECUTION. 754 
 
 law that if a man bona fide sells cattle which are re- 
 moved, and afterward thej find their way back to his 
 possession, the sale is per se fraudulent." ®^** This is 
 certainly a very clear misstatement of the law. It is 
 perfectly well settled that the possession which must 
 accompany a sale must be substantial — not taken to be 
 surrendered; and must continue for a i^eriod sufficient 
 to give a notoriety to the sale, among those who are 
 familiar with the property. If the possession be not 
 retained by the vendee till it accomplishes this pur- 
 pose, the sale is treated as though no change of pos- 
 session had ever been made.^^^ Thus, where S. sold 
 his stock of goods to W., who took possession, and re- 
 moved the property to his own store, but within less 
 than two weeks allowed S. to resume possession, pro- 
 fessedly as an employ^, and to commence retailing 
 the goods, the sale was declared fraudulent.®''** It 
 makes no difference that the proi>erty was delivered 
 back to the vendor for purposes of manufacture,*'^ nor 
 that it might pay for its keeping,*''^ nor that an agent 
 of the vendee allowed it to return without asking his 
 consent,*'^^ nor that after one week it was hired on an 
 unexpected urgency in business,*''* nor that, after four- 
 teen days' possession, it was sold at auction, and then 
 suffered to return to its former owner.*''^ On the 
 
 SRS .Jordan v. Bi-cackenridge, 3 Pa. St. 442. 
 
 8G9 Whitney v. Stark, 8 Cal. 514, G8 Am. Dec. 3G0; McBride v. Mc- 
 Clelland, 6 Watts & S. 94; Young v. McClure, 2 Watts & S. 147; 
 Strceper v. Eckart, 2 Whart. 302, 30 Am. Dec. 258; Van Pelt v. Lit- 
 tler, 10 Cal. 394; Goldsbury v. May, 1 Litt. 25G; Breckenridge v. An- 
 derson, 3 J. J. Marsh. 710; Norton v. Doolittle, 32 Conn. 405. 
 
 870 Weil V. Paul, 22 Cal. 492. 
 
 871 Carter v. Watkins, 14 Conn. 240. 
 
 872 Osborne v. Tuller, 14 Conn. 529. 
 
 873 Morris v. Hyde, 8 Vt. 352, 30 Am. Dec. 475. 
 
 874 Webster v. Peck. 31 Conn. 495. 
 
 875 Rogers V. Vail, 16 Vt. 327.
 
 755 rEIl.SONAL PROPERTY SUBJJX'T 'JO EXKCUTION. § 156 
 
 other hand, it is equally certain that the vendee's pos- 
 session need not be j^erpetual.*^''" The buyer may em- 
 ploy the former owner to take charge of the goods, and 
 to care for and sell them for him. If he does this in 
 good faith, and, after taking such possession, and ex- 
 ercising such control and dominion over the property, 
 as to show the public and those dealing with the ven- 
 dor that there has been a real change in the ownership, 
 he will not be subjected to the penalty of a forfeiture 
 of his property because he has seen fit, or has been 
 compelled, to leave the goods in charge of the former 
 owner.'*" The time during which the vendee must 
 keep the property from the possession of his vendor 
 must necessarily differ in different circumstances. If 
 the vendee's use of the property was very frequent 
 open, and public, the change of possession would ac- 
 quire sufficient notoriety in a short time; while if, 
 though under his control, it was rarely seen by the 
 public, a much longer time would be necessary. A 
 mortgagee who, after default, takes possession and 
 forecloses his mortgage, may afterward loan the prop- 
 erty to the mortgagor.**'^^ After seven months' posses- 
 sion by the vendee, during which the vendor occasion- 
 aUj used the property, it may safely be permitted to 
 return to the custody of the vendor.**'^ A son, in Feb- 
 ruary, sold a piano to his mother, with whom he was 
 residing. He then left the county, expecting to remain 
 away permanently. In July he returned and lived 
 
 878 White V. O'Brien, Gl Conn. 34. 
 
 8TT Stevens v. Irwin, 15 Cal. 503, 70 Am. Dec. 500; Clark v. Morse. 
 10 N. H. 236; Powell v. Stickney, 88 Ind. 310; Ewiug v. Merkley, 
 3 Utah. 406. 
 
 s-8 Funk V. Staats, 24 111. 632. 
 
 ''■o Farusworth v. Shephard, 6 Vt. 521; Dewey v. Thrall, 13 Vt. 
 281.
 
 § 157 PERSONAL FROPERTY SUBJECT TO EXECUTION. 75G 
 
 TV'itli the mother as before. The piano was seized by 
 his creditors; but the court declared the change of pos- 
 session sufficient. '"^**'^ A possession for two months,^^^ 
 for five weeks,^*^ from the "fore part of January" to the 
 12th of February,****^ have each been declared sufiicient 
 to free the sale from the character of fraudulent per se. 
 
 § 157. Property Sold, but Never Delivered. — Let it be 
 borne in mind that we have heretofore been treating 
 of the retention of possession by the vendor, with refer- 
 ence to its effect as evidence of fraud. The delivery of 
 possession, actual or constructive, is, however, in some 
 of the states, even where its absence is not regarded 
 as fraudulent per se, necessary to complete the sale, 
 so that the property cannot be levied upon by the credi- 
 tors of the vendor. In other words, while a sale as be- 
 tween vendor and vendee may be complete without de- 
 livery, it is not so as between the vendee and a credi- 
 tor of or a purchaser from the vendor. In such a case, 
 the property may be awarded to the creditor of the 
 vendor, or to a subsequent purchaser from him, not be- 
 cause the sale was fraudulent per se, but because, as 
 against such creditor or purchaser, it had not yet been 
 consummated. The law upon this subject is well 
 stated in the following opinion of the supreme court of 
 Maine, given in a case wherein a wife claimed certain 
 cattle as the vendee of her husband: "The rule of law 
 
 880 Graham v. McCreary, 40 Pa. St. 515, 80 Am. Dec. 591. 
 
 881 French v. Hall, 9 N. H. 137, 32 Am. Dec. 341. 
 
 882 Brady v. Haines, 18 Pa. St. 113. 
 
 883 Sutton V. Shearer, 1 Grant Cas. 207. For different cases de- 
 termininj? the time after which a return of i)ossession was or was 
 not held fraudulent, see Cunniuf,'ham v. Hamilton, 25 111. 228; 
 Wright V. Grover, 27 111. 42G; Mills v. Wnrner, 19 Vt. 609, 47 Am. 
 Dec. 711; Miller v. Garman, 28 Leg. Int. 405; Look v. Comstock, 15 
 Wend. 244.
 
 757 TEllSONAL rilOPEUTY SUBJECT TO EXECUTION. § 1^7 
 
 is well estiiblislied, that in older to pass the title to 
 personal property by a sale, as against subsequently 
 attaehing creditors of the vendor without notice, there 
 must be a delivery, actual, ((instructive, or symbolical. 
 (Cobb V. Haskell, 14 Me. 303, 31 Am. Dec. 5(5.) 
 
 "What aniiounts to proof of delivery has been much 
 discussed by courts and jurists, and where so much 
 dei)ends upon the subject-matter of the sale, its situa- 
 tion and condition, the usual course of trade, and all 
 other attendant circumstances, together with the sub- 
 sequent acts of the parties, as showing their intention 
 at the time of the sale, it will be found exceedingly 
 difficult, if not absolutely impracticable, to lay down a 
 general rule applicable to all cases. 
 
 ''Though this is undoubtedly true, yet it is proper to 
 observe, in general terms, that, to constitute proof of 
 a delivery, there must be such evidence arising from 
 the conduct of the parties as shows a relinquishment 
 of ownership and possession of the property by the ven- 
 dor, and an assumption of these by the vendee. This 
 is the case: 
 
 "1. Actually, when there has been a formal tradi- 
 tion of the property to the vendee; or, 
 
 "2. Constructively, when the property, not being 
 present or accessible, as a ship at sea, tlie vendor gives 
 the vendee a grand bill of sale, under which he takes 
 possession upon her arrival in port; or, if the property 
 is difficult of access, as logs in a stream, or incapable of 
 manual tradition, as blocks of stone, when the vendor 
 approaches in view of it with the vendee, and proclaims 
 a delivery to him ; or when a part of the goods are de- 
 livered for the whole; or if the goods are in the custody 
 of a third party, where the parties to the sale give such 
 party notice of the transfer; or.
 
 § 157 TERiSONAL rROPERlY SUBJECT TO EXECUTION. 758 
 
 "3. Symbolically, when the vendor gives the vendee 
 the key to the warehouse in which the goods are stored, 
 or an order on the wharfinger or warehouse-keeper who 
 has them in charge, or a bill of landing duly indorsed. 
 
 "Though the assignment and delivery to the vendee, 
 by the vendor, of a bill of lading, invoice, or other 
 documentary evidence of his title to the goods, has been 
 held good as a symbolical delivery, the delivery of a 
 bill of parcels or bill of sale by the vendor to the ven- 
 dee has been held insufficient, as these depend solely 
 upon the vendor for their authenticity, and may be 
 multiplied indefinitely; such memoranda are not, tech- 
 nically considered, documentary evidence of the ven- 
 dor's title. 
 
 "Thus, in Lanfear v. Sumner, 17 Mass. 117, 9 Am. 
 Dec. 119, a merchant in Philadelphia made out and re- 
 ceipted a bill of sale of a number of chests of tea, sup- 
 posed to be on their passage from China to Boston, 
 though they were then in the custom-house in Boston, 
 and before the agent of the vendee demanded posses- 
 sion of them they were attached by the creditor of the 
 vendor. The court sustained the action, on the ground 
 that, the goods not being at sea, there was no delivery, 
 actual or symbolical, before the attachment. 
 
 "So in Carter v. Willard, 19 Pick. 9, the only evidence 
 of delivery was the giving of a bill of sale of the goods 
 by the vendor to the vendee, and the court held that 
 that was not sufficient. So, also, in Burge v. Cone, G 
 Allen, 413, the same question arose, with the same re- 
 sult. The doctrine of delivery rests upon the ground 
 that the vendee should have the entire control of the 
 property, and that there should be some notoriety at- 
 tending the act of sale; and hence, proof of delivery 
 will not be dispensed with on account of the peculiar
 
 75'J PERSONAL riiUl'EllTY SUBJECT TO EXECUTION. § 157 
 
 situation or relation of the parties with respect to the 
 property at the time of the sak', nor will these consti 
 tute snllicient evidence of delivery. 
 
 "Accordingly-, it lias been hehl to be no proof of de- 
 livery that the vendor and vendee reside in the same 
 house (Trovers v. Ivamsy, 3 Crancli, C. C. 354; not even 
 if they are brothers (Uolfncr v. Clark, 5 Whart. 545); or 
 son-in-law and father-in-law (Steelwagon v. Jeffries, 44 
 Pa. St. 407); nor if the vendor resides with the vendee 
 (Waller v. Cralle, 8 B. Mon. 11); nor w'hen the vendor's 
 agent remains in possession with the vendor (Medell 
 V. Smith, 8 Cowp. 333); nor though the parties are part- 
 ners with respect to the property sold (Shurtliff v. Wil- 
 lard, 19 Pick. 202). 
 
 "It is clear from these cases that there is the same 
 necessity for a delivery when the parties to the sale are 
 husband and wife that there is in other cases. For 
 this purpose, the wife sustains the same relation to the 
 husband as any other person; and though, in respect 
 to personal property owned by the wife in her own 
 right, she stands upon the same footing that the hus- 
 band does to his, we are not aware that the authorities 
 have gone so far as to dispense with the necessary for- 
 malities to be observed in acquiring property in her 
 favor. 
 
 "In this case there w^as no actual delivery. John 
 McKee, the vendor, and husband of the plaintiff, held 
 the same possession after as before the sale of the cat- 
 tle. There was no change of possession by the act of 
 sale. Tlie plaintiff had no possession, either of the cat- 
 tle or the farm on which they were kept. She resided 
 on the farm simply because her husband did. Nor w^as 
 there any constructive or symbolical delivery, unless 
 the delivery of the bill of sale constituted one; and
 
 § 157 TEUSONAL PROPERTY SUBJECT TO EXECUTION". 760 
 
 that, as we have seen, is not sufficient, there being 
 nothing tq prevent an actual delivery by a transfer of 
 the manual possession of the property to the ven- 
 dee." "'^^ 
 
 It would seem from the foregoing case, and from 
 others in which similar language is employed, that 
 while proceeding upon different grounds, they reach 
 the same practical result as those cases which declare 
 the want of delivery and continued change of posses- 
 sion to render the sale per se fraudulent. That the 
 cases are not designed to have a practical identity of 
 result is obvious, from the fact that the courts which 
 have been the foremost to maintain that the retention 
 of possession by the vendor does not avoid the sale, as 
 fraudulent per se, have also been the foremost to de- 
 clare that, as against creditors of the vendor, the title 
 to personal property does not pass without delivery. 
 It is difacult, and, perhaps, impossible, to state the ex- 
 act difference between the two classes of cases, the first 
 of which is represented by Hamilton v. Russell, cited 
 in section 149, and the second by jMcKee v. Garcelon, 
 from which we have just quoted. The difference is,, 
 nevertheless, material. That it cannot be satisfac- 
 torily stated is not owing to its want of magnitude and 
 importance, but rather to the fact that the cases of the 
 
 884 McKee v. Garcelon, GO Me. 165, 11 Am. Rep. 200. See, also, 
 Ober V. Matthews, 24 La. Ann. 90; Burge v. Cone. 6 Allen. 412; 
 Carter v. Willard, 19 Tick. 1; Packard v. Wood. 4 Gray, .307; Hoof- 
 smith V. Cope. C Whart. 53; Lansfear v. Sumner, 17 Mass. 112. 9 
 Am. Dec. 119; Mount Hope Iron Co. v. Buffington, 103 Mass. 02; 
 Morgan v. Taylor, 32 Tex. 3G3; Fairfield Bridge Co. v. Nye. 00 Me. 
 374: note d to sec. 675 of Benjamin on Sales, Am. ed.; Rieker v. 
 Cross, 5 N. H. 572, 22 Am. Dec. 480; Hilliard on Sales, c. S, sec. 23; 
 Slmmway v. Rutter, 7 Pick. 55; 1 Parsons on Contracts, 4th ed., 
 442. But from the doctrine of these cases, a vigorous and well- 
 considered dissent was expressed in Meade v. Smith, IG Conn. 347.
 
 7G1 PERSONAL PROPERTY SUBJECT TO EXECUTION'. § 157 
 
 second class, wLilo not diametrically ojjposcd to one 
 another, cannot all be brought to the same line; and 
 hence, as a class, we cannot say how near I hey ap- 
 proach the line of decisions following the lead of ITani- 
 ilton V, liussell. So far as we understand and can 
 state it, the distinction is this: the cases of the first 
 class demand that an absolute sale shall be accompa- 
 nied and followed by an open, visible change of posses- 
 sion, such as will notify persons seeing or dealing with 
 the property of its change of ownership. This visible 
 change of i)Ossession will ordinarily' be dispensed with 
 only upon grounds of necessity; and, having once 
 taken place, it must continue until, by its continuance, 
 the sale acquires such notoriety and such appearance 
 of good faith as induces a conviction of its reality and 
 fairness, and warns the community that the property 
 can no longer be treated as that of the vendor. Want- 
 ing this visible and continuous change of possession, 
 the sale is declared to be fraudulent and of no effect 
 as against creditors of the vendor. The cases of the 
 second class demand that there shall be a delivery ac- 
 companying or following the sale. But the delivery 
 which they exact seems in most cases to be nothing 
 more than some formal act, indicating that the vendor 
 relinquishes and the vendee assumes possession. The 
 delivery may, therefore, be without that notoriety 
 which gives notice to the world of the transmission of 
 the title; '^^^^ and, having once been perfected, the 
 property may be returned to the control of the vendor 
 
 8S5 insalls V. Herrick. 108 Mass. 351. 11 Am. Rep. oOt); Sbumway 
 T. Rutter, 8 Pick. 443. 10 Am. Dec. 340: Less v. Willard. 17 Pick. 
 140. 28 Am. Dec. 2S2: Hardy v. Potter. 10 Gray. SO: Phelps v. Cut- 
 ler. 4 Gray, 137; Tuxwortli v. Moore. 9 Pick. :U7: Bullard v. Wait, 
 16 Gray. 55; Ropes v. Lane. 9 Allen. 502; Drake on Attachments, 
 sec. 245 a; Hatch v. Bayley, 12 Gush. 27.
 
 § 15S PERSONAL PROPERTY SUBJECT TO EXECUTION. 762 
 
 witliout affecting the sale, except bv inducing a pre- 
 sumption against its fairness. But when wanting in a 
 delivery, "actual, constructive, or symbolical," the sale 
 is declared as against creditors not to have taken place, 
 and they may seize the property and apply it to the sat- 
 isfaction of their claims against the vendor. 
 
 § 158. When Property is Purchased Fraudulently and 
 by misrepresentation, without paying the purchase 
 price, the vendor is entitled to rescind the sale and re- 
 claim possession of the goods. As against the claims 
 •of the vendor, the vendee has no interest subject to 
 execution. The property, if levied upon under a writ 
 against the fraudulent vendee, remains subject to the 
 rights of the vendor, who may recover it from the offi- 
 cer by any appropriate action.^^" 
 
 8se Van Cleef v. Fleet, 15 Johns. 147; Covoll v. Hitchcock. 23- 
 Wend. 611; Durell v. Haley. 1 Paijie. 492; Gary v. Hotailing:, 1 Hill,. 
 311. 37 Am. Dee. 323; Lupin v. Marie. 2 Paiffe, 1G9; Ash v. Putnam, 
 1 Hill. 302; Acker v. Campbell, 23 Wend. 372; Hitchcock v. Covill, 
 20 Wend. 167; Farley v. Lincoln, .CT N. H. 577, 12 Am. Rep. 182; 
 Load V. Green, 15 Mees. & W. 216; Bristol v. Wilsmore, 1 Barn, &. 
 C. 514.
 
 763 i-EKSONAL PROPERTY SUBJECT TO GARNISHMENT. § 15^ 
 
 CHAPTER XI. 
 
 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 
 
 § 159. Proporty subject to garuislmu'iit other thau choses lu 
 
 action. 
 § 150a. Garuishuieut of property uot subject to execution. 
 § 159b. Garnishment of property fraudulently transferred. 
 § 160. Possession necessary to render garnishee liable. 
 § IGOa. Garnishment of property in possession of servant or agent. 
 § IGl. Bailee of choses in action. 
 § ICla. Situs of choses in action for the purpose of. 
 
 OF THE DEBTS SUBJECT TO GARNISHMENT. 
 
 § 162. General character of debts subject to. 
 
 § lG2a. Garnishment of rights which defendant has option of 
 enforcing. 
 
 § 1G3. Debt, Avhether must be payai)le in coin. 
 
 § IGoa. Common carriers, property in the custody of. 
 
 § 1G4. Debt must not be contingent. 
 
 § lG4a. Garnishment of claims against insurance companies. 
 
 § 1G5. Need'not be due. 
 
 § IGG. Debts in suit or in judgment. 
 
 § 1G7. Claims in tort, or for unliquidated damages. 
 
 § 1G8. Debts due by negotiable note. 
 
 § 1G9. Debts due to or from two or more persons. 
 
 § lG9a. Debts due to part only of the judgment debtors. 
 
 § 170. Debts assigned. 
 
 § 170a. Garnishee's duty to urge that debt or property is not sub- 
 ject to garnishment. 
 
 § 171. Asserting garnishment as a defense. 
 
 § 159. Property Subject to Garnishment otner than 
 Choses in Action. — Much of llic property which is, either 
 by the rules of the comniou law, or by statutes enacted 
 in the several states, subject to execution is of such a 
 character that it cannot then be taken into the pos- 
 session of the otlicer charjied with the service of the 
 writ, or, if it be of itself of sucli character, is subject to 
 obligations existing in favor of third persons which the
 
 ^ 159 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 764 
 
 officer has no right to disregard by depriving tliem of 
 the possession of such property. Hence, the necessity 
 of providing some method of subjecting the interests 
 of the judgment debtor to execution without prejudic- 
 ing the rights of otliers. To do this, it is evident that 
 some act must be authorized to be done by the officer 
 having the execution in his hands which will bind the 
 property sought to be reached, though possession of it 
 is not taken, and perhaps cannot be taken by the offi- 
 cer, and which will impose on the person in whose pos- 
 session it is the duty of holding it subject to the rights 
 of the execution creditor, or of paying it over to him, 
 in case it consists of a debt or chose in action, and of 
 permitting the debtor's interest in it to be sold or ap- 
 plied to the satisfaction of the writ, if the property is 
 of a tangible character. "Garnishment is attachment 
 by means of which money or property of the debtor in 
 the hands of third parties, which cannot be levied upon, 
 may be subjected to the payment of the creditor's 
 claims." ^ "Garnishment is the legal proceeding, as- 
 similated to an attachment, intended to reach debts or 
 choses in action, the property of the debtor, not capa- 
 ble of seizure by execution or attachment, or to compel 
 the discovery of effects capable of seizure, in the pos- 
 session of third persons." ^ The result of garnishment 
 is that a person not a party to the writ or action in 
 which it was issued may become liable to pay, in satis- 
 faction of an execution, some debt found to be due 
 from him to the judgment debtor, or may be required 
 to permit property in his possession, in Avhich the 
 debtor has an interest, to be subjected to such writ. 
 
 1 American C. I. Co. v. Hettler, 37 Neb. 849, 40 Am. St. Rep. 522. 
 
 2 Heury v. Murphy, 54 Ala. 24G.
 
 765 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § 159 
 
 Willi respect to property which may be subjected to 
 execution by garnishmc^nt we cannot liere obviously en- 
 ter into ch^tails, because it must be considered in con- 
 nection with the statutes of the several states, for it 
 is admitted that, by these statutes, the authority to 
 garnish is conferred, and, except to the extent ex- 
 pressly authorized by them, it does not exist.^ There- 
 fore, whoever claims any right by virtue of a garnish- 
 ment must show that the property against which he 
 seeks to assert it has been made liable to garnishment 
 by the statutes of the state, and, if its liability is de- 
 pendent upon any condition, that such condition ex- 
 isted when the writ was served. Thus, if property is 
 of a character which the officer is authorized to take 
 possession of, and no circumstances exist taking it out 
 of the general rule, he cannot proceed by garnishment. 
 Generally, if the property is capable of manual deliv- 
 ery, it must be seized by the attaching officer, though 
 found in the possession of a stranger to the writ, if 
 such possession can be taken from him without any in- 
 vasion of his rights * A levy upon chattels capable of 
 manual delivery, by garnishment of the person in 
 whose possession they are, is ineffective.^ A dwelling- 
 house belonging to a tenant of the land upon which it 
 is standing has been held to be capable of manual de- 
 livery, and therefore not attachable, except by taking 
 it into the possession of the officer.^ 
 
 8 SicKfl V. Schueck, 1G7 111. 522, 59 Am. St. Rep. ^OO: Folkerts v. 
 Standish. 55 Midi. 403; Ki^nnerly v. McEellau. Tt! Mich. 598. 
 
 4 Civ. Code Ala., ed. ISSfi, sec. 2945; Rev. Stats. Ariz., ed. 1887, 
 sec. 54; Samlols & ITill's Dijr. Ark., see. 3508; Code Civ. Proc. Gal., 
 sec. 542; Code Civ. Proc. Col., sec. 98; Code Civ. Proc. Dak., sees. 201, 
 208; Rev. Code Del., c. 104. sec. 2. 
 
 R.Tohnson v. Gorham. r> Cal. 195. CTt .\in. Dec. 501. 
 
 6 Coleman v. Collier,. 11 Pac. C. L. J. 5ti7.
 
 3 159 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 76G 
 
 When property soiiglit to be garuislied is tangible 
 and capable of manual possession, there can be no 
 doubt that it must be within the state from whose 
 court the writ issued. Though the person garnished is 
 within the state, and has property of the defendant in 
 his possession in another state, the service of the writ 
 upon him cannot impose upon him the duty of bringing 
 the property from the state wherein it is for the pur- 
 pose of subjecting it to execution. Perhaps, if the 
 garnishee is under a duty, as between himself and the 
 defendant in execution, to bring the property into the 
 state, the garnishment may give the judgment creditor 
 the right to have this duty performed. In all other 
 cases it is indisputable that the garnishment cannot 
 reach property situate outside of the state.'' 
 
 Shares of stock held by a judgment debtor have, in 
 a majority of the states, been by statute made subject 
 to garnishment. The only question deserving special 
 consideration in connection with this subject involves 
 the right to subject to execution shares of stock in for- 
 eign corporations. The interest of the respective stock- 
 holders in a corporation is usually evidenced by certifi- 
 cates of stock capable of transfer, and therefore sub- 
 jects of sale out of, as well as within, the states in 
 which they are issued. We have already shown that 
 property is usually not subject to garnishment in a 
 state other than that in which it is. Within the mean- 
 ing of this rule, can the stock of a corporation have any 
 situs other than that of the corporation itself? We 
 
 7Bowen v. Pope, 125 111. 28, 8 Am. St. Rep. 330; McLean v. 
 Swarts, 69 Minn. 128, 65 Am. St. Hop. 5.56; Sutherland v. Second 
 N. B., 78 Ky. 250; Plimpton v. Bigelow, 93 N. Y. 592; Buchanan v. 
 Hunt, 98 N. Y. 560; Pennsylvania R. R. Co. v. Pennock, 51 Pa. St. 
 244; Neufeldor v. German A. I. Co., 6 Wash. 336, 36 Am. St. Rep. 
 166; see post, §159a.
 
 7U7 PERSONAL rilOrEllTV SUBJECT TO tlAUNl.sUMENT. § 151) 
 
 believe this question iiiiist be answered iu the nega- 
 tive.'* In some of the states general statutes purport- 
 ing to create a right to subject stock of corporations to 
 garnishment have been held applicable to foreign cor- 
 porations, and persons having certificates of such stock 
 in their jxjssession belonging to the judgment debtor 
 have been held answerable as garnishees.® Probably 
 it is within the jjower of a state, by special statutory 
 ♦enactments to that effect, to authorize certificates of 
 stock in foreign corporations, found within the state, 
 to be taken under execution by actual levy or by gar- 
 nishment, but statutory authority must always be 
 found to sustain such levy or garnishment.** And the 
 intention of the legislature to confer such authority is 
 not, in a majority of the states, inferred from general 
 declarations to the effect that all the property of a 
 judgment debtor is subject to execution, or that shares 
 of stock in any corporation, or any interest therein, are 
 so subject.** 
 
 It seems almost superfluous to suggest that whether 
 property is subject to garnishment, it remains, notwith- 
 standing a garnishment, subject to all pre-existing 
 liens, and except where the defendant iu execution has 
 made it the subject of a fraudulent transfer, a judg- 
 ment creditor cannot by his garnishment acquire any 
 greater interest than the defendant in execution had in 
 the property at the service of the writ.*^ 
 
 8 Christmas v. Bidille, 13 Pa. St. 222: Ireland v. Globe M. & R. 
 Co., 19 R. I. ISO, 61 Am. St. Hep. TuG; Young v. South T. I. Co., 85 
 'J'enn. 189, 4 Am. St. Rep. 752. 
 
 8 Puset Sound N. B. v. Mather. GO Minn. .'^62. 
 
 10 Briscoe v. Minah M. Co., 82 Fed. Rep. 952. 
 
 11 Foster v. Potter, 37 Mo. 525: Armour & B. Co. v. St. Loui.s N. B., 
 113 :Mo. 12, 35 Am. St. Rep. G91: Plimpton v. Bigolow, 93 N. Y. 592; 
 Ireland v. Globe yi. & R. Co.. 19 R. I. ISO, Gl Am. St. Rep. 756. 
 
 12 Maicr v. Freeman, 112 Cal. 8, 53 Am. St. Rep. 151.
 
 § 159a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 7(5* 
 
 § 159 a. Property not Subject to Execution, whether 
 
 Subject to Garnishment. — Garnislimeut, except where 
 its scope lias been enlarged by statute, is generally re- 
 garded as a proceeding at law/'^ and can therefore af- 
 fect no rights or interests not recognized at law. This 
 proceeding is designed mainly to reach the legal assets 
 of the defendant in the hands of third persons, or to 
 intercept legal credits owing to the defendant, and 
 compel their payment to the plaintiif. Choses in ac- 
 tion, though not subject to execution at law, are proper 
 subjects of garnishment. But property capable of man- 
 ual delivery is rarely subject to garnishment, if for any 
 of the causes detailed in the tw^o preceding chapters 
 it is not subject to execution. And wliether capable of 
 manual delivery or not, it may fall within the class of 
 property exempt by statute from attachment or execu- 
 tion. If such is the case, it is not subject to garnish- 
 ment, for garnishment is merely a means provided by 
 statute for reaching property which is subject to exe- 
 cution.-''* If the debt sought to be reached represents 
 money obtained or due to the defendnut as a pension, 
 the garnishee is not liable because of the exemption 
 of such pension money from execution. ^^ A like re- 
 sult follows Avhere the debt consists of wages due to 
 the defendant and exempt by statute; ^^ and generally, 
 it is the duty of one w^ho is garnished for debts or prop- 
 erty exempt from execution to urge such exemption, 
 
 13 Thomas v. Iloppor, 5 Ala. 442; Price v. Mastorson, 3.") Ala. 48.3; 
 Lackland v. Garesche. m Mo. 2(i7. 
 
 i4Wylie V. Grmidyson, .'>! Minn. 300. .38 Am. St. Rop. .')09: Craw- 
 ford V. Carroll. 93 Tenn. 001, 42 Am. St. Eep. 943; Below v. Robbins, 
 70 Wis. 000. 20 Am. St. Rep. 89. 
 
 15 Hayward v. Clark. .50 Vt. 012. 
 
 ifi Bliss V. Smith. 78 111. .3r)9; Hoffman v. Fitzwilliam. 81 Til .521; 
 Chicaso etc. R. R. Co. v. Racrland. 84 Til. 37.": Welkor v. Ilinze. IS 
 111. App. 32G; Illinois C. E. Co. v. Smith, 70 Mis.s. 344, 35 Am. St. Rep. 
 65 J.
 
 769 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § 159a 
 
 or at k'ust to give the defendiiiit au opportunity of so 
 doing. If, however, the creditor succeeds iu collecting 
 bj' garnishment wages of the debtor which by law are 
 exeni2>t from execution, the latter, unless he has 
 waived such exemption, may proceed against the 
 former as a wrongdoer, and recover the amount im- 
 properly collected.*' 
 
 Property situate beyond the territorial limits of a 
 state is not subject to direct seizure by the officers of 
 such state, because tlieir authority, and that of the 
 courts which they rei)resent, is confined within those 
 limits. This is true, although such property may be in 
 the possession or control of a person who is within the 
 state. "Notwithstanding the general language of our 
 statute upon the subject of garnishment, that 'any 
 creditor shall be entitled to proceed by garnishment in 
 the circuit court of the proper county, against any per- 
 son (except a municipal corporation) who shall be in- 
 debted to or have any property whatever, real or per- 
 sonal, in his possession or under his control belonging 
 to such creditor's debtor, in the cases, upon the con- 
 ditions, and in the manner prescribed in this chapter,* 
 we feel constrained to hold that the personal property 
 or real estate in his possession, or under his control, 
 must be limited to personal property or real estate 
 within this state, and that, in the absence of any fraud 
 or connivance on the part of the garnishee to aid in 
 defrauding his creditors, personal property or real es- 
 tate w^hich is lawfully in the possession or under the 
 control of the garnishee outside of this state is not the 
 subject of garnishment under our statute; that per- 
 sonal chattels outside of the state, which, if within the 
 state, could be seized by attachment or execution, were 
 
 " Albreoht v. Treitschke, IT Neb. 205. 
 Vol. I. -49
 
 § l.VJa TERSONAL PROPERTY SUBJECT TO GARNISHMENT. 770 
 
 nut iiiteuded to be covered by the slaliite, is^ we tliiuk, 
 evident." ^'^ 
 
 So property held by any person as the custodian of 
 the hiw, or as a disburser of public moneys, or merely 
 in an official capacity, is no more subject to garnish- 
 ment than it is to direct levy under executiou.-*^^ We 
 have already considered the question whether, and to 
 what extent, personal property is subject to execution 
 when regarded as in the custody of the law, and shall 
 not here re-enter upon any detailed reconsideration of 
 this subject. It is sufficient for our puri)ose to state 
 that the same principles, which forbid the direct levy 
 upon property when in the custody of the law, equally 
 forbid proceedings to reach it by the garnishment of its 
 legal custodian or otherwise.^** Hence property can- 
 not be subjected to garnishment when taken by an offi- 
 cer from a person by him arrested accused of crime,^^ 
 nor can a creditor by garnishment reach moneys in the 
 hands of executors, and the custody of which they have 
 a right to retain,"^ or moneys due from a municipal 
 
 18 Bates V. C. M. & St. P. Ey., 60 Wis. 296, 50 Am. Rep. 369; ante, 
 sec. 159. 
 
 19 Bundle v. Scbeetz, 2 Miles. ,330; Corbyn v. Bollniau. 4 W^atts & 
 S. 342; Bulkley v. Eckert, 3 Pa. St. 368; Clark v. Boggs. 6 Ala. 809, 
 41 Am. Dec. 85; Spauldiug v. Imlay, 1 Root, 551; Thorn v. Wood- 
 ruff, 5 Ark. 55; Fowler v. McClelland, 5 Ark. IBS; Stillman v. Isliaiii. 
 11 Conn. 124; McMeekin v. State, 9 Ark. 553: Wincliell v. Allen, 1 
 Conn. 385; Ward v. Hartford Co., 12 Conn. 404; Lyons v. Houston, 
 2 Harr. (Del.) 349; Eollo v. Andes Ins. Co., 7 Chic. L. N. GS. 
 
 20 Long V. Walker, 84 Ala. 72; Tuck v. Manning. 150 Mass. 211; 
 State V. Netherton, 26 Mo. App. 414; jMeyer v. Miller. 51 Neb. 620; 
 Curtis V. Ford. 78 Tex. 262: Marx v. Parker, 9 Wash. 473. 43 Am. 
 St. Hep. 849; In re Greer (189.5), 2 Ch. 217. 
 
 21 Holker v. Hennessey, 141 Mo. .527, CA Am. St. Rep. .524; Hill v. 
 Hatch, 99 Tenn. 39. 63 Am. St. Rep. 822. 
 
 22 Hudson V. Wilbur, 114 Mich. 116: Post v. Love. 19 Fla. 634; 
 Norton v. Clark, 18 Nev. 247: Harrington v. La Rociiue. 13 Or. 
 344; Conway v. Armington. 11 R. I. 116; Bickle v. Cusman's Ad., 26 
 Va. 678; Prout v. Gregory, L. R. 24 Q. B. D. 281.
 
 771 PERSONx\L rilOPEUTY SUBJECT TO (J AUNI8HMENT. § 159a 
 
 oorpoiiilioii io its officers, employes, or other credit- 
 ors,-'' <»!• fr(»in a couiity,^^ or moneys in the hands of a 
 hoard of education or (►ther olliccrs of a scliool dis- 
 trict,'"' or in the hands of county clerks,^" or receiv- 
 ers,^' or of administrators.-'^ W'licic, liowevcr, moneys 
 are in custody of the haw, they may be garnished when 
 a jud<:jn)ent or order has been made for tlieir distribu- 
 tion, so that the riglit of the person wliose interest is 
 garnished has become unquestionable, and the uphold- 
 ing of the garnishment cannot interfere with the juris- 
 diction of the court or im])air its authority to deal with 
 the controversy before it.-" If money is due from a 
 receiver, it is said that he may be garnished, though, 
 doubtless, the rights of the judgment creditor must be 
 enforced by some proceeding in the court by which 
 the receiver was appointed."'*^ 
 
 So, w^here property capable of manual delivery can- 
 not be subjected to ordinary levy and sale, because it 
 is in the hands of a person other than its owner, and 
 such other person is entitled to remain in such posses- 
 sion for some definite period, it cannot, unless made so 
 by statute, be reached by garnishment or trustee pro- 
 cess. Hence, a pledgee or a mortgagee in possession 
 
 23 Porter etc. Co. v. Perdue, 10.5 Ala. 293, 53 Am. St. Rep. 124; 
 Leake v. Lacey, 95 Ga. 747, 51 Am. St. Rep. 112. ami note; Smith 
 V. Woolsey, 22 111. App. 185; Ottawa F. N. B. v. Ottawa, 43 Kan. 
 294; Bay City B. Co. v. McDonnell. lOOMich. 172; Baird v. Rogers, 
 95 Tenu. 492; Van Cott v. Pratt, 11 Utali, 209; Central Banli v. 
 Ellis. 20 Ont. App. 3(U. 
 
 21 State V. Tyler, 14 Wash. 495, 53 Am. St. R(>p. 878. 
 
 25 Skelly V. Westminster School Dist., 103 Cal. 052; Chamberlain 
 V. Watters, 10 Utah. 298. 
 
 26 Smith V. Finlen, 2S 111. App. 156; Curtis v. Ford, 78 Tex. 2G2. 
 
 27 Blum V. Van Vechten, 92 Wis. 378. 
 2s Gill V. Middleton, GO Ark. 213. 
 
 29 Dunsmoor v. Furstenfeldt. 88 Cal. 522. 22 Am. St. Rop. 331. 
 so Irwin v. McKechnie, 58 Miuu. 145. 49 Am. St. Rep. 495.
 
 § 159a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 772 
 
 cannot be summoned and charged as the trustee of the 
 pledgor 01- mortgagor.*'^ Tliis is the rule sustained by 
 a considerable majority of the authorities arising un- 
 der laws in which the garnishment of pledgees and 
 mortgagees is not clearly authorized by some statutory 
 provision. But the propriety of subjecting the inter- 
 ests of pledgors and mortgagors to execution has been 
 very generally conceded. While the mortgagee or 
 pledgee is in possession, and entitled to so continue, it 
 is evident that no direct seizure can be made. The 
 most convenient method of reaching the property and 
 subjecting it to execution is by garnishment. This 
 method is now very generally authorized by statute to 
 reach pledged or mortgaged property, and is in very 
 common use.^^ In some of the states it may be shown 
 that the mortgage is fraudulent as against creditors^ 
 and the mortgagee compelled to account for the full 
 value of the property.^^ A mortgagee cannot be held 
 as the trustee or garnishee, except when he is in the 
 
 31 Drake on Attachment, sees. 538. 540; Hudson v. Hunt. 5 N. H. 
 538; Patterson v. Harland, 12 Ark. 158; Badlam v. Tucker. 1 Pick. 
 389, 11 Am. Dee. 202; Central Bank v. Prentice. 18 Pick. 396; Wliit- 
 ney v. Dean, 5 N. H. 249; Howard v. Card. 6 Me. So3; Caflender 
 V. Furbish, 46 Me. 226; Kergiu v. Dawson, 1 Gilm. 86; Rhoades v. 
 Megonij^al, 2 Pa. St. 39. 
 
 32 Aldrich v. Woodcock, 10 N. H. 99; Boardman v. Gushing, 12 
 N. H. 105; Chapman v. Gale. 32 N. H. 141; Iluirhes v. Cory, 20 
 Iowa. ::99; Carty v. Fenstemaker, 14 Ohio St. 457; Blake v. Hatch, 
 25 Vt. 555; Treadwell v. Davis, 34 Cal. 601. 94 Am. Dec. 770; Ed- 
 wards V. Beugnot, 7 Cal. 162; Becker v. Dunham, 27 Minn. 32; 
 Burnham v. Doolittle. 14 Neb. 214; Davis v. Wilson, 52 Iowa, 187; 
 Williams v. Gallick, 3 Pac. Rep. 469; Myer v. Miller, 51 Neb. 620; 
 Root V. Davis, 51 Ohio St. 29. 
 
 33 Brainard v. Van Kuran, 22 Iowa, 261. The same rule was ap- 
 plied to a vendee under a fraudulent sale. Morris v. House, 32 
 Tex. 492.
 
 773 PEllSONAL PROPERTY SUBJECT TO GARNISHMENT. § 159b 
 
 aoduil possession of the property. ^'^ The rights of gar- 
 uishiiKiit must be exercised iii suboi-diiuition to the 
 rights of the mortgagee or pk^dgee. Generally, the 
 mortgagee cannot be deprived of the possession with- 
 out he is first offered payment of the mortgage debt.^' 
 In some states pledged property may be taken and. 
 offered for sale at public auction. If it can be sold for 
 more than the debt secured, the debt is paid, and the 
 balance applied to the payment of the judgment. If, 
 however, no bid can be obtained sufficient to discharge 
 the claim of the pledgee, the property is returned to 
 him.='« 
 
 § 159 b. Garnishment where Fraudulent Transfers 
 have been Made. — As has been heretofore shown, a 
 transfer made to defraud creditors may generally be 
 treated by them as absolutely void, and the property 
 transferred may be levied upon and sold in the same 
 manner and with the same effect as though such trans- 
 fer had not been attempted. A fraudulent transfer 
 is equally unavailing against a garnishment. It is or- 
 dinarily true that garnishment cannot be prosecuted 
 with success when the defendant in execution has no 
 right which he can assert against the person garn- 
 ished.^" It is equally true that when a defendant in 
 execution has made a transfer of a chose in action, or 
 other property, for the purpose of hindering, delaying, 
 
 34 Pierce v. Henries, 35 Me. 57; Central Bank v. Prentice. IS Pick. 
 396; Wood v. Estes, 35 Me. 145; Callender v. Furbish. 46 Me. 226; 
 Fountain v. Smitli, 70 la. 2S2; Spitz v. Tripp. 80 ATis. 2.'). 
 
 35 Cotton V. Marsh. 3 Wis. 221; Frisbee v. Langworthy. 11 Wis. 
 375; Cotton v. AVatkins. 6 Wi.s. 029; Selleck v. Phelps. 11 Wis. 38ii. 
 
 36 Hills V. Smith, S Fost. 369; Torbert v. Ilaydeu. 11 Iowa. 435; 
 Brijiss V. Walkin-. 1 Fost. 72. See Stief v. Hart. 1 N. Y. 20. 
 
 " BuUer v. Billups, 101 Ga. 102; Willis v. Yates (Tex.), 12 S. W. 
 232.
 
 § loOb PERSONAL PROPERTY SUBJECT TO GARNLSIiMENT. 774- 
 
 or defrauding bis creditors, he canuot recover tlie sum 
 so tiausf erred to his fraudulent vendee, tliough the 
 transfer was without consideration, and upon an ex- 
 press agreement that the property should be restored 
 to the fraudulent transferrer U]»on request, or when 
 the transfer had accomplished its purpose. As against 
 creditors, we have already shown that a transfer, made 
 with intent to hinder, delay, or defraud them, is abso- 
 lutely void, and a Avrit of execution against the fraudu- 
 lent transferrer may be levied in like manner, and with 
 like effect, as if no transfer had been attempted. The 
 same rule is equally applicable to proceedings by garn- 
 ishment. If a debt garnished lias been assigned prior 
 to the garnishment, it is nevertheless effective if it can 
 be shown that the assignment was fraiululent as 
 against creditors.'*^^ Property capable of manual de- 
 livery may also be reached b,y garnishment in some Of 
 the states while in the hands of the fraudulent trans- 
 feree, or a person receiving title or possession from 
 him without consideration, or with notice of the 
 fra\ul/'"* Where the claim is made that the debt, or 
 other property sought to be reached by garnishment, 
 was transferred before the service of the writ is met 
 by the allegation on the part of the judgment creditor 
 that such assignment is fraudulent and void as against 
 him, we think this issue must, in a majority of the 
 states, be determined by some independent action 
 brought by the judgment creditor against tlie claimant 
 
 38 Henry v. Murphy, 54 Ala. 240; Eycrmnn v. Krirckliaus, 7 Mo. 
 App. 45.5; Kimball v. Lee, 43 N. .7. Eq. 1277: D.iwsdii v. Coffey, 12 
 Or. 513: .Tohnson v. Horsey, 73 Me. 201: (Olihr v. Xoncniaker, 78- 
 Pa. St. 501; Ilealey v. Butler, 66 Wis. !>: Van Ness v. McLeod, i 
 Idaho. 1147. 
 
 39lIarmon v. Osgroofl. 151 Mass. 501: Miliar v. Plnss. 11 Wash. 
 2.37: La Crosse N. B. v. Wilson, 74 Wis. 3!)1; l»ali]\uan v. Green- 
 Avood, 99 Wis. 103.
 
 775 FEKSONAL PROPERTY SUBJECT TO GARNISHMENT. & 15yb 
 
 of the property. This is not, however, universally 
 true, for in several of the states the eonrt «>ii( of whieh 
 the writ issued, under wliicli ilie -;iiiiisliiii(iit was 
 made, has jurisdiction to try and determine all ques- 
 tions of this character, subject to the aulhority of the 
 appellate courts to review its detcnninatiou.^ Where 
 one is garnished, and has goods in his possession ac- 
 quired from the execution defendant under a mortgage, 
 if it be shown that the mortgage debt was created un- 
 der and in pursuance of a conspiracy entered into be- 
 tween such defendant and the garnishee for the pur- 
 pose of defrauding the creditors of the former, then 
 the latter is answerable to the judgment creditor for 
 such goods.'**^ So where corn was purchased of J., but 
 the purcliaser was afterward told that it belonged to 
 J.'s son, to whom a note was given for part of the pur- 
 chase price, and the imrchaser, being garnished under 
 an execution against the father, nevertheless paid the 
 note to the son, it w^as held that the purchaser was an- 
 swerable on the garnishment on proof being made that 
 the note was taken in the name of the son to defraud 
 the creditors of the father.'*^ In Elaine, where B. held 
 a ship as collateral security for a loan, under a convey- 
 ance absolute in form made by K., and they subse- 
 quently, in anticipation of an attachment, agreed that 
 B. should not execute any defeasance, and that the con- 
 veyance should be treated as absolute, but had a secret 
 understanding that B. would recouvey on ])ayment of 
 the original sum due, it was decided that 1'. miglit be 
 charged as trustee, and, further, that, having claimed 
 
 •»o People's Blink v. Smith. 7.") Miss. 7.">;^, V>o Am. St. Rep. 61S; 
 Millar v. Plass, 11 AVash. 237: Fcarey v. Cumniin.ss. 41 ^lioli. .370; 
 Doggett V. St. Louis etc. Co., 10 Mo. 203; Vau Ness v. McLeod, 2 
 Idaho, 1149. 
 
 41 Cowles V. Coe, 21 Conn. 220. 
 
 <»2 Kesler v. St. John, 22 Iowa, TiGo.
 
 § 159o TEllSOXAL PROPERTY SUBJECT TO GARNISHMENT. 776 
 
 the ship absolutely, and not as security, his claim 
 should be regarded as fraudulent, and he held for the 
 full value of the ship, regardless of his loan."*"* It is not 
 the taking of a fraudulent transfer, but the reception 
 of property, which makes the garnishee answerable. 
 Hence, he may exonerate himself by showing that the 
 property of which he received a fraudulent mortgage 
 or bill of sale never came into his possession, or, hav- 
 ing come into his possession, was returned to the de- 
 fendant before the garnishment was served, or, being 
 an animal, has died, and is therefore not subject to exe- 
 cution.'*^ In Arkansas, money was given by a husband 
 to his wife, who deposited it in her name in a bank, 
 where it was sought to be garnished under a writ 
 against the husband. The court, however, held that by 
 the deposit the bank became a creditor of the wife; 
 and that the question whether the act of the husband 
 in giving the money to the wife was fraudulent or not 
 could not be tried otherwise than under a bill in equity, 
 setting up the husband's insolvency and fraudulent 
 purpose in paying the money to his wife, and praying 
 that the money be adjudged to belong to the husband, 
 and directed to be paid to his creditors.'*^ 
 
 If an assignment be made for the benefit of creditors 
 which is void, because not in compliance with the stat- 
 ute of the state regulating such assignments, or be- 
 cause it is actually or constructively fraudulent, the 
 property or its proceeds may be garnished while in the 
 hands of the assignee,^*^ or of his vendee, who has 
 agreed to pay but has not actually paid therefor.'*'" 
 
 •43 Thompson v. Pennell, 67 Me. 159. 
 
 44 Gutterson v. Morse, 58 N. H. 529. 
 
 45 Himstedt v. German Bank, 46 Ark. 537. 
 
 46 Kimball v. Evans, 58 Vt. 655. 
 
 47 Dixon V, Hill, 5 Mich. 404.
 
 777 PERSONAL PROPERTY SUBJFX'T TO GARNISHMENT. § 160 
 
 AVo have already suggested that tliere is a growing 
 ten(]{ ney to support assiguuieuts for the beuetit of 
 <redilors, tliougli defective in some ]>;irlicuhu', aud 
 hence to hold that property subject to sucli an assign- 
 ment is not liable to execution against the assignor, 
 but may be held by the assignee for the benefit of all 
 the creditors, though some of them have not assented 
 thereto. Where this rule prevails, property which has 
 been the subject of a defective assignment, or one act- 
 ually or constructively fraudulent, cannot be reached 
 by garnishment.** On the other hand, in those states 
 in which an assignment for the benefit of creditors may 
 be treated as void for noncompliance with statutory 
 <-onditions, or because infected with actual or con- 
 structive fraud, the property constituting the subject 
 thereof may be garnished.'*'* 
 
 § 160. The Possession Necessary to Charge the Garn- 
 ishee. — In order to charge a person as trustee or garn- 
 ishee on acount of property capable of manual delivery, 
 he must be in the actual, as contradistinguished from 
 the constructive, possession of the property.*'^** If he 
 is not in the actual possession of the property, he must, 
 at least, have both the right and the power to take im- 
 mediate possession, before he can be garnished. ""^^ The 
 
 48 Cnliimet P. Co. v. Haskell S. Co., 144 Mo. 3.31; Hosni.T v. Far- 
 ley, 67 N. H. 590; Huffman I. Co. v. Templeton (Tex. App.). 14 S. W. 
 1015; Carter-Battle G. Co. v. Jackson, 17 Tex. Civ. App. 353.. 
 
 49 Baumbach Co. v. Sinjicr. 8G WHs. 329; Jaiuosoii v. Maxey, 91 
 Wis. 503; Jones v. Alford. 98 Wis. 245. 
 
 50 Andrews v. Ludlow, 5 Tick. 28; Willard v. Shoafe. 4 Mass. 235; 
 Grant v. Shaw, 16 Mass. 344, 8 Am. Dee. 142; Burrell v. Letsou, 1 
 Strob. 239; Drake on Attachment, sees. 482-484. 
 
 51 Lane v. Nowell, 15 Me. 86; Morse v. Holt. 22 Me. ISO: (Jlenn 
 V. B. & S. Glass Co., 7 Md. 287; ChiUls v. Digly, 24 Pa. St. 23; 
 Ward V. Lamson, 6 Pick. 358.
 
 5 ItiO PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 778 
 
 reasou of this is obvious. The object of the garnish- 
 iiieut is to require the pcn'son garnished to deliver the 
 property to the officer iu satisfaction of the writ, and 
 this delivery he canuot be called upon to make, unless 
 he has either an actual possession or an immediate and 
 uncontested right to take possession.'" 
 
 "The garnishee must not only have actual posses- 
 sion of the defendant's effects, but there must be, ex- 
 cept in cases of fraudulent disposition of property, 
 privity between him and the defendant, both of con- 
 tract, express or implied, and of interest, by which the 
 defendant would have a right of action or an equita- 
 ble claim against the garnishee to recover the property 
 for his own use, either at the present or some future 
 time. The w^ant of privity, either of contract or of in- 
 terest, will generally prevent the garnishee's being 
 charged. Property may be in the garnishee's hands, 
 in which the defendant has an interest, but which the 
 garnishee may be under no legal obligation to deliver 
 to him; and as the plaintiff can exercise no greater con- 
 trol over the property, in such case, than the defendant 
 could, the garnishee cannot be charged. This rule has 
 been held applicable to an attempt to garnish per- 
 sonal property which had been leased to the person 
 garnished, and it w^as held that if, under Ids lease, he 
 had a right to continue in possession after the service 
 of the writ upon him, the interest of his lessor could 
 not thereby be garnished. °^ 
 
 There may, too, be property in the garnishee's hands, 
 the legal title to which is in the defendant, and for 
 which the defendant might maintain an action against 
 the garnishee, and yet the latter not be liable as garn- 
 
 •■■.s Rmalloy v. Miller, 71 la. 00: Nickcrson v. Chase. 122 Mass. 290. 
 "Drake v. Catlin, 18 Wash. 316.
 
 779 ri RSONAL rR01M-:RTY SUB-JKeT TO (J AliNlSHMKNT. g lOU 
 
 islu'O. Sucb, for iustance, as licM in New llaiii[>sliir«'. 
 is (lie rase (»f a paiiy wlio has tak<'ii (lie goods of aii 
 other by trespass, and who (aiiiKd, in respect thereof, 
 be held as garnishee of the owner, though tln' legal 
 title is in the latter, and he might maintain an action 
 for the trespass. Such, too, is the case of one in whom 
 the legal title of goods is vested, but has no interest 
 of his own in them." '^* In conformity with these prin- 
 ciples, it must bo held that property which happens to 
 be in the possession of a person, either without his con- 
 sent,"° or without his knowledge,'** does not render 
 him liable to be held as a trustee or garnishee. In a 
 few cases, it has been decided that a person could be 
 charged as trustee for property' in his possession, in 
 which he had no interest, which he had no right to de- 
 tain, and upon which a direct levy and seizure could 
 be made.'"'^ On the other hand, it is said that even a 
 special deposit of money should be levied upon and 
 taken into the officer's possession, instead of summon- 
 ing the person in whose possession it is as a garn- 
 
 54 Drake on Attachment, sec. 485. For illnsliations of tlio doc- 
 trines here stated, see same work, sees. 480-491 inclusive; and also 
 Skowlie.can Bank v. Farrar, 4(! INIe. 21Ki; Despatch Line v. Bellamy 
 M. Co.. 12 N. II. 20."). 37 Am. Dec. 203; Simpson v. Harry. 1 Dev. & 
 B. 202; Miller v. Richardson, 1 Mo. 310; Jones v. Aetna Ins. Co.. 14 
 Conn. JlOl; White v. .Jenkins, IG Mass. 02; Wooding v. Tuget Sound 
 N. B.. n Wash. 527; Bridgden v. Cill, 10 Mass. ."22; Wright v. Foord. 
 5 N. H. 178; Pickering v. Wendall. 20 N. H. 222; He,ss v. Shnrb, 7 
 ra. St. 231; Xeuer v. O'Fallon, 18 Mo. 277: Barnard v. Graves. 10 
 Pick. 41; Bean v. Bean, 33 N. H. 270; l^riggs v. Block, 18 Mo. 2S1: 
 Huntley v. Stone. 4 Wis. 91; Field v. Crawford. (> Gray. IIG; Kichol- 
 berger v. Murdock. 10 Md. 373. 09 Am. Dec 14(1; Town v. Griffith. 
 17 N. H. 1(k); Folsom v. Haskell. 11 Cusli. 47ii. I'nr exceptions to 
 the rule, see .Jackson v. U. S. Bank. 10 Pa. St. 01. 
 
 OS Staniels v. Itaymond, 4 Cush. 314. 
 
 58 Bingham v. Lamping. 20 Pa. St. .•]4(t. 07 \m. Dec. 418. 
 
 67 Brown v. Davis, 18 Vt. 211; Loyless v. Hodges, 44 Ga. 017.
 
 § 160 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 780 
 
 ishee.'** It has been held that property in bond for 
 storage in a United States custom house, though not 
 subject to actual attachment by a state oflEicer, is sub- 
 ject to garnishment or trustee process/''* The question 
 whether property contained in a box in the safe of a 
 safe-deposit company is subject to garnishment, or not, 
 has not, so far as we are aware, been much considered or 
 finally determined. In one case it was held to be proper 
 to direct the sheriff to open a box and make an actual 
 seizure of property in the custody of a safe-deposit com- 
 pany, the court saying: "Neither the safe nor the box 
 constituted any portion of the defendant's dwelling, 
 and they were not within the protection which the law 
 affords to that against an officer acting under civil 
 process. They were simply places of deposit and safe- 
 keeping for the defendant's property, which the sheriff 
 may enter to make the seizure required by law, in the 
 execution of the process in his hands. If that w^ere not 
 so, there would be nothing to prevent a failing or in- 
 solvent debtor from turning all his property into valu- 
 able securities or other articles requiring but little 
 space for their custody, and then placing them in the 
 hands of a safe-deposit company for preservation, and 
 defying all the efforts of his creditors to satisfy their 
 debts by resorting to them. That would afford an ex- 
 pedient for the success of fraudulent designs, which 
 might render the laws of the state for the collection of 
 debts entirely pow^erless. No such effect could be 
 given a deposit of that nature without at once defeat- 
 ing the object apparently designed to be secured by, 
 the law in rendering the debtor's property liable to the 
 
 5« Wood V. Edgar, 13 Mo. 451. 
 
 69 Peabody v. Maguire, 79 Me. 572.
 
 7S1 PERSONAL PROrERTY SUBJECT TO GARNISHMENT. § IGO 
 
 process is.sued in favor of his ci'cditors in actions 
 bioiiglit to recover tlieir just debts."*** 
 
 In some eases, where the possession of the garnishee 
 is sufficient to charge him, special circumstances may 
 entitle him to relief. For instance, lie may be a com- 
 mon carrier who has issued a bill of lading or carrier's 
 receipt. If so, he cannot be charged as garnishee while 
 such bill or receipt is outstanding; for he cannot know 
 to whom it is his duty to deliver the property.**^ So 
 process may be served upon him when the property is 
 in the possession of one of his servants at some dis- 
 tant point. In this event, he is not chargeable, unless 
 the service is made "at such a time and under such cir- 
 cumstances that he, by the exercise of reasonable dili- 
 gence, may communicate it to his servant in time to 
 prevent the delivery to the consignee." It would be the 
 height of injustice to hold a railroad company liable 
 as garnishees for goods which their servants and em- 
 ployes have delivered to consignees entitled to receive 
 them, having no notice, at the time of making such de- 
 livery, that any garnishee process had been served, 
 and before a reasonable time had elapsed after the 
 service upon a distant officer of the corporation within 
 which notice could have been given to stop such deliv- 
 ery." ^'' If at the time a garnishment is served upon a 
 common carrier, the property sought to be reached is 
 not within the state, the garnishment must necessarily 
 be inelTective.*"'^ There is liable to be much difficulty 
 
 60 United States v. Graff, G7 Barb. 304. 
 
 61 Walker v. G. H. & M. R. R. Co., 49 Mich. 44G: see Bingham v. 
 Lamping, 2G Ta. St. 340, G7 Am. Dec. 418; Woods v. Half, 44 Tex. 
 G33. 
 
 62 Bates V. C. M. & St. P. R. R.. 60 Wis. 206. .^.0 Am. Rep. 360; 
 Spooner v. Rowland, 4 Allen, 485. 
 
 63 Western R. R. v. Thornton, 60 Ga. 300; Montrose P. Co. v. 
 Dodson etc. M. Co., 76 la. 172, 14 Am. St. Rep. 213.
 
 § IGOa PEIISONAL PROPERTY SUBJECT TO GARNISHMENT. 782 
 
 in applying tlie rules api)licable to garnisliment to com- 
 mon carriers, in whose possession property is and who 
 are apparently under obligation to transport it else- 
 where, according to a shipping receipt issued, or other 
 contract entered into by them. If they have fully per- 
 formed the contract, and the property sought to be 
 garnished is in their possession as warehousemen 
 merely, there is no reason for exempting them from 
 garnishment.^'* In Missouri it is settled that they are 
 subject to garnishment for property in their posses- 
 sion before any transit thereof has commenced.^^ In 
 Massachusetts, it is said that property is equally sub- 
 ject to garnishment in the hands of a carrier, whether 
 the transit thereof has commenced or not. "There is 
 no reason why a common carrier should not be liable 
 to the trustee process in the same manner as other 
 bailees are, unless the nature of his contract is such 
 that a judgment charging him as trustee would not 
 ])rotect him against a claim of the defendant for a non- 
 <lelivery of the goods at their place of destination. But 
 we are of opinion that such judgment would bo a suffi- 
 cient excuse to the trustee for a failure to deliver ac- 
 cording to his contract." ^^ In Minnesota, on the other 
 hand, property in the hands of a carrier for transit be- 
 yond the state is not subject to garnishment on account 
 thereof after the transit has begun.*^' ' 
 
 § 160 a. The Garnishment of Property in the Posses- 
 sion of a Servant or Agent has occasioned considerable 
 judicial discussion and dissension. Where possession 
 is held by a servant or agent, the property is, in con- 
 
 64 Cooley V. Minnestoa etc. R. Co., 53 Minn. 327, 39 Am. St. Rep. 
 009. 
 
 ssLanda v. Ilolck. 129 Mo. 6G3, 50 Am. St. Rep. 459. 
 
 esAflams v. Scott. 104 Mass. ir>4. 
 
 67 Sicvcnot V. Eastern Ry. Co., 61 Minn. 104.
 
 783 rEU.'iONAL I'KOl'EKTY .^LUIIXT TO GAUNlsflMENT. § ICOa 
 
 teiiii>lation of law, in tlu- possession of (Ik* priiicipul, 
 aud it may, and generally must, be levied iij)on in the 
 same manner as like property Iteloii^inn to ilie princi- 
 l»al and held bv him without I he aid of anv servant or 
 agent. When' the jn-operl \ is capable of manual de- 
 livery, and may therefore be taken into the possession 
 of the officer, the serA'ice of a notice of garnishment on 
 a servant or agent of the defendant will, we apprehend, 
 be universally conceded to be an idle ceremony. But 
 moneys are frequently collected by mere servants or 
 agents, and remain in their possession under such cir- ' 
 cumstances that they must be regarded as mere cus- 
 todians of such moneys, rather than as debtors of their 
 ]»rincipals. Familiar instances of this are treasurers of 
 corporations, ticket-sellers, and station-agents in the 
 service of transportation companies, and collectors of 
 tolls ui)on toll-roads. With respect to these and simi- 
 lar cases, it has been held that the possession of the 
 agent was the possession of the principal; that the re- 
 lation of debtor and creditor did not exist between 
 them; that garnishment must be directed against a 
 third person; that such agent is not athird person, with- 
 in the meaning of the rule, and tlnM-efore that moneys 
 collected and held bv him cannot be reached bv jraru- 
 ishraent, under a writ against his pi'incii)al.*^*^ The 
 reasoning of these cases seems quite faultless, but the 
 conclusion reached is very unsatisfactory. It would 
 place moneys, while in the hands of servants and 
 agents, except when so situated that it could be seen 
 and seized by the officer, beyond the reach of ]»rocess 
 
 68 Fowler v. Pittsliurgli R'y, '.IT-, Pa. St. 212: TIal! v. Filt.r Mf-. Co., 
 
 10 Pliila. 370; Pettingill v. Androscoggin. .")! Me. 370: Voorhies v. 
 
 Denver II. Co., 4 Colo. App. 4-JS; Wilder v. Shea, 13 Bush. 12S: 
 
 rasey v. Davis, 100 ^Ntass. 124: Neuer v. OTallon. IS Mo. 277, ■"!> 
 
 Am. Dec. 313; McGraw v. Memphis etc. K. 11. Co., 5 Coldw. 434.
 
 § 160a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 7S4 
 
 against their principals, and would enable the latter to 
 defy their creditors, notwithstanding the existence of 
 ample funds for their satisfaction. If it is sought to 
 garnish moneys in the possession, in contemplation of 
 law, of a sheriff or other like officer, there can be no 
 doubt that the garnishment should be served upon him, 
 though such moneys are in the actual custody of his 
 deputy. There is in such a case substantially but one 
 office, though the holder thereof is authorized to de- 
 pute others to act for him in the performance of his 
 duties.^^ Where, however, the person garnished and 
 the one for whom he holds the money garnished do not 
 occupy the relation of officer and deputy, but that of 
 principal and agent, there seems an absolute necessity 
 for sustaining a garnishment of moneys -served upon 
 an agent while such moneys are in his possession. 
 Especially is this true when he holds the moneys as an 
 officer of a corporation. Because of his official relation 
 to the corporation the service of a garnishment upon 
 him may be regarded as equivalent to a service upon 
 his principal, giving it notice through him that the 
 moneys which he holds for it have been subjected to 
 garnishment, and imposing a duty upon it, as w^ell as 
 upon him, of retainrng such moneys, to be applied 
 toward the satisfaction of the writ under which the 
 garnishment was made.''** The majority of the courts 
 have, therefore, not yielded to reasoning leading to a 
 result so unjust and so at variance with a practical^ 
 common-sense view of this question, and have deter- 
 
 69 Tate V. People, G Colo. App. 202. 
 
 70 Center v. McQuesten, 18 Kan. 476; McDonald v. Gillett. 69 Me. 
 271; First N. B. v. Burch, 80 Mich. 242; Gibson v. Park Bank, 9S 
 N. Y. 87; Greentree v. Rosenstock, 61 N. Y. 583; Jepson v. Inter- 
 national etc. Alliance, 17 R. I. 471; Mayo v. Hansen, 94 Wis. 610, 
 59 Am. St. Rep. 919.
 
 785 PERSONAL rKOPEKTY SUBJECT TO GARNISHMENT. § IGl 
 
 mined that au agent or servant of the defendant, on 
 being served with a garnishment against the latter, 
 becomes bound to retain any moneys in their hands 
 belonging to such defendant, and to hold it subject to 
 such garnishment/* 
 
 § 161. Bailee of Choses in Action.— A chose in ac- 
 tion can only be reached by proceedings against the 
 payor thereof. It may happen that a promissory note 
 is deposited with some third person, for the jjurpose 
 of collection, or as collateral security, or merely for 
 safe-keeping. This person is not on that account liable 
 to be summoned and charged as a garnishee or trus- 
 tee." In some of the states the decisions upon this 
 subject seem to be grounded upon this principle: that 
 a chose in action cannot be taken and held under exe- 
 cution, and therefore that a bailee thereof cannot be 
 compelled to surrender it under proceedings in gar- 
 nishment, because it would be idle to compel the de- 
 livery to the court or officer of that Avhich could not 
 
 71 Littleton Bank v. P. & O. R. R. Co.. .")S N. H. 104; Gregg v. F. 
 & M. Bank, 80 Mo. 251; Mann v. Buford, :^ Ala. 312; 37 Am. Dec. 
 (591; Maxwell v. McGee. 12 Ciish. 137; Central P. R. R. Co. v. Sam- 
 mons. 27 Ala. 3S0; Ballston Spa Bank v. Marine Bank, 18 Wis. 490; 
 Everdell v. S. & F. du Lac R. R., 41 Wis. 30."'); First Nat. Bank of 
 Davenport v. D. & St. P. R. R., 45 Iowa, 120. 
 
 '2 Taylor v. Huey, 166 Pa. St. 518; Grosvenor v. F. & M. Bank, 13 
 Conn. 104; Hall v. Page. 4 Ga. 428, 48 Am. Dec. 235, Clark v. Viles, 
 32 Me. 32; Rundlot v. Jordan. 3 Me. 47; Skowhegan Bank v. Farrar, 
 46 Me. 293; Itaiguel v. McConnell, 25 Pa. St. 302; Deacon v. Oliver, 
 14 How. 010; Moore v. Philow, 3 Hnmph. 448: Fitch v. W\aite, 5 
 Conn. 117; Fuller v. Jewett. 37 Vt. 473; Lane v. Felt, 7 Gray, 491; 
 Scofield V. White, 29 Vt. 330; Van Amee v. Jackson, 35 Vt. 173; 
 Smith V. Wiley, 41 Vt. 19; Ellison v. Tuttle, 26 Tex. 283; TirreU v. 
 Canada. 25 Tex. 455; Levisohn v. AVaganer. 76 Ala. 412; Tingley v. 
 Dolby, 13 Neb. 371; Lochrane v. Solomon, 38 Ga. 290. In Hancock 
 V. Colyer, 99 Mass. 187. 96 Am. Dec. 730. the garnishees answered 
 that, at the time of tlie service of the writ upon them, they had in 
 their hands a check for a large sum of money, payable to their order. 
 Vol. 1.— 50
 
 § IGl PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 7SG 
 
 be seized or held under the writ." In others it is said 
 that garnishment cannot be effective except \yhen the 
 defendant in execution has a cause of actiop which 
 he might, at the time of the service, assert against the 
 person garnished, and it is claimed that, as he has no 
 cause of action against his bailee for the possession 
 of evidences of indebtedness in the possession of the 
 latter with the consent of the defendant in execution, 
 that the judgment creditor cannot, by garnishment, ac- 
 quire a cause of action against the garnishee, nor the 
 risfht to have him either surrender the cause of action 
 or collect it and apply the proceeds thereof to the sat- 
 isfaction of the writ. In several states, however, cer- 
 tain choses in action are liable to seizure and sale 
 under execution; w^hile in other states, choses in ac- 
 tion, if delivered to the oflQcer, or to the receiver, could 
 'be collected by suit against the payor thereof. It is 
 evident that the reason assigned for hot requiring the 
 bailee of choses in action to deliver them to an officer 
 acting by garnishment, or in proceedings supplemental 
 
 and received by them under special instructions from tlie judgment 
 debtor to accept it in satisfaction of a judgment in liis favor against 
 a third person. After such service tbey presented the cbecli, re- 
 ceived the proceeds, and paid them over to the defendant in execu- 
 tion. The court said: "The cbecli of a third party, payable to the 
 order of the supposed trustee, is not attachable by trustee process. 
 It is not money, goods, effects, or credits, in the sense of the statute. 
 It may never be paid. The liability of the trustee to the principal 
 defendant is therefore contingent." To tue same effect. Knight v. 
 Bowley, 117 Mass. 551. 
 
 73 Maine F. & M. Ins. Co. v. Weeks. 7 Mass. 438; Terry v. Coates, 
 9 Mass. 5.37; Dickenson v. Strong, 4 Tick. 57; Andrews v. Ludlow, 
 5 Pick. 28; Lupton v. Cutter. 8 Pick. 298; Gore v. Clisby, 8 Pick. 
 555; Guild v. Holbrook, 11 Pick. 101; Hopkins v. Ray, 1 Met. 79; 
 McMeacham v. McCorbitt, 2 Met. 352; Sargeant v. Leland. 2 Vt. 
 277: nitfhcock v. Egerton, 8 Vt. 202; Smith v. K. & P. R. R. Co., 
 45 Me. 547; Price v. Brady, 21 Tex. 614.
 
 7S7 PER.SONAL PROPERTY SUBJECT TO GAKNISIIMKNT. § 101 
 
 to execution, Las no application to some of the states, 
 and it would be logical to infer that where the reason 
 docs not exist the rule would not be enforced. There 
 is, of course, no doubt of the power of the legislature 
 to make choses in action in the possession of a bailee 
 subject to garnishment under a writ against his 
 bailor.'"'* There is, doubtless, a reasonable and grow- 
 ing tendency to hold choses in action in the possession 
 of bailees subject to garnishment where they are sub- 
 ject to execution if in the possession of their owner,''^ 
 But in states where garnishment of a bailee of a chose 
 in action is permitted, it is conceded that it cannot 
 be etrective where the chose in action is not, at the 
 service of the writ, within the state.''^** The person gar- 
 nished may have in his possession a draft or check, the 
 property of the judgment debtor, and which the former 
 has the right to collect either for the purj)ose of pay- 
 ing the proceeds thereof to the judgment debtor or of 
 applying them in some manner directed by the latter. 
 In such circumstances it has been held, in a few of the 
 states, that if the person holding such draft or check 
 is garnished, it is his duty either to deliver it to the 
 oflficer serving the garnishment, or to collect it and pay 
 the proceeds thereof to such officer, or so much of them 
 as may be necessary to satisfy his writ.''^'' The weight 
 of authority, however, is to the effect that if the per- 
 son having the check or draft in his possession has not 
 
 7* Thus in New Hampshire, a bailee of choses in action can how 
 be held as a trustee. Fling v. Goodall, 40 N. H. 203. But it was 
 otherwise until the passage of the present statute. Stone v. Dean. 
 5 N. H. 502; Fletcher v. Fletcher. 7 N. H. 452, 28 Am. Dec. 359; 
 Howland v. Spencer, 14 N. H. 5S0. 
 
 75 Stevens v. Dillman, 86 111. 233; Trunliey v. Crosby, 33 Minn. 
 4&4; Boore v. Mcintosh, 62 Miss. 744. 
 
 70 Bowen v. Pope. 125 111. 28. 
 
 77 Stevens v. Dillman, 86 111. 233; Storm v. Cotzhausen, 38 Wis. 
 139.
 
 § 161a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 7S8 
 
 credited the defendant in execution with the amount 
 thereof prior to the service of the writ, so as to create 
 between them the relation of debtor and creditor, then 
 that the garnishment of the^ h(dder of such check or 
 draft is ineffective, and does not impose upon him any 
 obligation to surrender it to the officer holding the exe- 
 cution, or to collect it and pay the proceeds, or any 
 part thereof, to him, and that he may, on the contrary, 
 if he sees proper, collect such proceeds and pay them 
 to the defendant in execution, or make such other dis- 
 position of them as the latter may direct. One of the 
 reasons sometimes given for denying effect to the gar- 
 nishment of a bailee or holder of a check belonging 
 to the defendant in execution is, that it is uncertain 
 whether the check will be collected, and therefore that 
 the liability of the holder of the check to such defend- 
 ant is of that contingent character which is fatal to 
 any attempt to create a liability by garnishment pro- 
 ceedingsJ^ Though choses in action in the possession 
 of a bailee are by the laws of a state subject to garn- 
 ishment, it must affirmatively appear that at the time 
 of such garnishment such choses were in possession of 
 the person garnished. Where he did not have such 
 possession, no liability against him is created by the 
 fact that he had had it in his possession prior to the 
 service of the writ, and subso(iuently to that time re- 
 ceived the purchase price of the choses in action at- 
 tempted to be garnished.''^ 
 
 § 161 a. The Situs of Debts for the Purpose of Gar- 
 nishment is a subject respecting which tlie most ir- 
 
 7s Craft V. Summersoll, 93 Ala. 430; Hancock v. Collyer, r>9 Mass. 
 187^ 96 Am. Dec. 730; Knight v. Bowley, 117 Mass. 551; Hanaford 
 V. Hawkins, 18 R. I. 432. 
 
 70 Fleming t. Bator, 20 Colo. 238.
 
 7S9 PERSONAL PROrEIlTY SUBJECT TO GARNISHMENT. § ICla 
 
 rpconcihible conflict of judicial o])iiiioii exists, and we 
 know not how it may be removed or even diminished. 
 For most purposes the situs of an obligation is at the 
 place where the person to whom it is due is. In the 
 absence of any contract stipulations to the contrary, 
 it can be satislied onl}' by performance accepted or ten- 
 dered to him there, and, for the purposes of taxation, 
 it may be there assessed to him as property. We be- 
 lieve that, upon principle, the rule that the domicile 
 of the creditor is the place of the situs of a debt due 
 to him is the one best sustained by tlu? authorities, and 
 must ultimately prevail and be recognized as control- 
 ling garnishment proceedings as well as other legal 
 transactions,*® except that where the domicile of the 
 
 80 Swetlish-Amorican N. B. v. BlwK'kt'r, 72 Miun. 3S3. Louls- 
 Tille etc. Co. V. Nash, 118 Ala. 477. This decision talces a more 
 extreme view than any other falling within our observation re- 
 specting the situs of a debt for the purposes of garnishment, in 
 maintaining not only that such situs is at the domicile of the cred- 
 itor, but, furthermore, that it is not within the power of another 
 state to change such situs so as to ma Ice the debt subject to gar- 
 nishment within its limits. The question is so tlioroughly consid- 
 ered by the court that we feel justified in quoting substantially 
 its entire opinion. It is as follows: "The case presented is ruled, 
 with respect to both questions, by the cases of Railroad Co. v. 
 Dooley, 78 Ala. 524, and Railroad Co. v. Chumley, 92 Ala. 317. In 
 the former case it was held that a debt due by a foreign corpora- 
 tion to an employ*' in the state of its creation, although it was 
 doing business in this state also, could not be subjected by a cred- 
 itor in this state by attachment against the nonresident creditor 
 and garnishment against the corporation. In the latter we decided 
 that the payment by a railroad corporation created by the laws of 
 this state, but doing business also in Tennessee, of a judgment ren- 
 dered against it in Tennessee under a garnishment issued on a 
 judgment recovered in that state against an employe resident in this 
 state, was no defense to an action by the employg to recover the 
 wages due him for work done in this state, in the absence of evi- 
 dence showing that, by the statutes of Tennessee, the court had 
 acquired jurisdiction of the debt sought to be reached and sub- 
 jected. In both of the above cases it was expressly decided that
 
 § 161a PERSONAL PROl'ERTY ISUBJECT TO GARNISHMENT. 790 
 
 creditor and debtor is in different states or countries, 
 or where the debtor cannot be subjected to suit in the 
 state of country where the creditor is or resides, be- 
 cause its courts do not have jurisdiction over him, he 
 may be pursued in whatever state or country he may 
 be found. 
 
 tlie situs of a debt for the purpose of garnishment is at the domicile 
 of the creditor, and not that of the debtor; and this fact is the 
 true foundation for the proposition that a state has no jurisdiction 
 over a debt due to a nonresident, and payable without the state 
 of suit, in the absence of personal service on the creditor within the 
 state, or his voluntary appearance in a proceeding in which juris- 
 diction over it is sought to be exercised. If it be conceded that a 
 debt due by a resident of, or a corporation doing business in, one 
 state, to a resident in another state, is not property within the 
 state of the debtor's residence, no legislation by the latter state 
 can give it a situs there for the purpose of enabling its citizens, 
 or other persons resorting to its courts, to subject it to the payment 
 of claims against the creditor by garnishing the person or corpora- 
 tion from whom it is due. If it has no situs within the debtor's 
 state, in the absence of legislation, any legislation attempting to 
 give it such situs, or to prescribe the manner of service on either 
 the debtor or the nonresident creditor, by which jurisdiction over 
 it may be acquired, unless by personal service on the creditor with- 
 in the state, or his voluntary appearance, would be as nugatory and 
 ineffectual to dispose of the creditor's property in the debt as would 
 be legislation attempting to acquire jurisdiction over tangible prop- 
 erty situated without the state. The subject-matter of such legis- 
 lation, namely, the property over which it is attempted to acquire 
 jurisdiction, is entirely beyond the power and control of the state. 
 In the view we take of the question, the condemnation of a debt 
 due to a nonresident, without personal service within the state of 
 suit on the defendant, or owner of the debt, or his voluntary ap- 
 pearance, is without due process of law, and it seems manifest that 
 a state cannot make that due process of law which is not such. 
 Martic v. Railroad Co., 50 Hun, 347; 3 N. Y. Supp. 82. It is imma- 
 terial, also, under this concession, whetlier the corporation garn- 
 ishee, if the garnishee be a corporation, is one created by the lawa 
 ■ of the state where the debt is sought to be condemned, or is a for- 
 eign corporation, doing business therein by permission of the state. 
 The question is not one of jurisdiction over the garnishee, but one 
 of jurisdiction over property situated without the state, and^ 
 through the seizure of such property, over the owner thereof.
 
 791 rp:USONAL PROPERTY SUBJECT TO GARNISHMENT. § lliU 
 
 If the debtor and creditor reside iu different states 
 or countries, this fact does not confer jurisdiction over 
 the debtor upon' the courts of the state or country in 
 
 "The ripht of a state to inquire into the obligations of a nonresl^ 
 dent, and its jurisdiction to attach his property to answer for such 
 obligations, is founded solely ou the fact that each state has ex- 
 clusive control and jurisdiction over the property situated within 
 its territorial limits, and the inquiry can be carried only to the 
 extent necessary to control the disposition of such property. If 
 there be no personal service on the defendant or owner of the prop- 
 erty, or appearance by him, the jurisdiction cannot extend beyond 
 binding the property attached or effects garnished. Consequently, 
 if the nonresident has no property within the state, and there has 
 been no personal service on him within the state, or voluntary ap- 
 pearance by him, there is nothing upon which its tribunals can ad- 
 judicate; and any judgment rendered under such circumstances, 
 whetlier affecting the person only, or the property also, would be 
 void for want of jurisdiction of the person and of the subject- 
 matter. Bank v. Clement, 100 Ala. 280; Penuoyer v. Neff, 95 U. S. 
 714; St. Clair v. Cox, lOG U. S. 350; Freeman v. Alderson, 119 U. R. 
 185. It was held in Pennoyer v. Neff, supra, that, in a suit on a 
 money demand against a nonresident, substituted service of process 
 by publication is effectual only where, in connection with process 
 against the person for the commencement of the action, property 
 within the state is brought under the control of the court, and sub- 
 jected to its disposition by process adapted to that purpose, or where 
 fhe judgment is sought as a means of reaching said property or of 
 affecting some interest therein; and that a judgment by default 
 against a nonresident upon such service only, no property of the 
 defendant within the state having been seized prior to the rendition 
 of the judgment, was without due process of law, and void, ami 
 the title of defendant to property within the state sold under exe- 
 cution issued on such judgment was not devested by such sale, not- 
 withstanding the statutes of the state of suit authorized service in 
 this manner upon a nonresident, and attempted to protect the title 
 of a purchaser in good faith of property sold under execution issued 
 on such judgment. In the opinion by Mr. Justice Field it is said: 
 'No state can exercise direct jurisdiction and authority over persons 
 or property without its territory. The several states are of equal 
 dignity and authority, and the independence of one implies the ex- 
 clusion of power from all others.' And so it has been laid down by 
 jurists as an elementary principle that the laws of .one state have 
 no operation outside of its territory, except so far as is allowed by 
 comity; and that no tribunal established by it can extend its process
 
 § 161a PERSONAL PROrERTY SUBJECT TO GARNISHMENT. 792 
 
 which the creditor resides. If he wishes to enforce the 
 obligation against his debtor personally, he must 
 necessarily bring an action against him in a state 
 
 beyond that territory, so as to subject cither persons or property to 
 its decisions. "And any exertion of authority of this sort beyond 
 tliis limit," says Story, 'is a mere ntillity, and iuoapalile of binding 
 such persons or property in any other tribunal." This decision, in- 
 volving, as it did, a construction of the fourteenth amendment of 
 the federal constitution, and its effect on judgments rendered against 
 nonresidents, Avitliout personal service or voluntary api)ea ranee, and 
 without a preliminary seizure of property of the defendant vpith- 
 in the state of suit, is binding upon, and must be followed by, 
 the courts of the several states. It necessarily results from the' 
 )n-inciples declared therein that if the situs of. a debt for the pur- 
 pose of garnishment be at the domicile of the creditor, and 
 the debt be not property within the garnishee state, any .iudg- 
 ment rendered against the creditor, as well as any judgment the 
 effect of which is, on its face, to discharge the debt due to the 
 nonresident by requiring the debtor the garnishee to pay it to the 
 nonresident's creditor, is without due process of law and void, 
 unless there was per.sonal service on the defendant within the state, 
 or a voluntary appearance by him. It necessarily follows, also, 
 that the payment of such judgment by the garnishee is no protection 
 to him in a subsequent suit by his creditor to recover the debt, and 
 that any legislation by the garnishee state attempting to acquire 
 jurisdiction over the debt, by declaring it to be property within 
 its limits, subject to seizure by service of process on the garuisliee 
 and service by publication oh the nonresident defendant, 'is a mere 
 ntillity, and incapable of binding such persons or property in any 
 other tribunal.' 
 
 "Any attempt to reconcile the conflicting authorities on the ques- 
 tion of the situs of a debt for the purpose of garnishment would 
 l»e vain, but analogy, as well as reason and justice to the creditor, 
 would seem to fix it at the domicile of the creditor, and forbid its 
 seizure or any change in the ownership thereof, by the law or pro- 
 cedure of any other state. It is now well settled tii;it a debt due 
 )iy an insolvent to a nonresident is property within the creditor's 
 state, and that no law or decree of the debtor's state discharging 
 his debts can operate to discharge the debt due to the noiuesident. 
 Brown v. Smart, 14.") U.S. 4.')4; Denny v. Bennett, 128 U.S. 480: Pattee 
 V. Paige, 163 Mass. 353; 47 Am. St. Rep. 459; Bank v. Batclieller. 
 151 Mass. 589; Wilson v. Matthews, 32 Ala. 345. It is equally well 
 settled that, for the purpose of taxation, a debt has its situs at the 
 domicile of the creditor. State Tax on Foreign Held Bonds, 15 Wall.
 
 793 PERSONAL I'ilUl'EllTV SUBJECT TO GAKNISHMKNT. § IGU 
 
 wlu'iciu he can be found and whose t-oiirls conse- 
 ijucntly have jurisdiction over him. In like circum- 
 stances, if creditors of the creditor wisli to ;:,arnisli the 
 
 aoo; Kirtlaiid v. lloUhkiss, 100 U. S. -J'.U; In ro Rroiisori's Estate, 
 15U N. Y. 1, 55 Am. St. liep. {Jo2; I'olltr v. Koss. 'Sd N. J. L. 517; 
 Boyd V. City of Seliua. 9(5 Ala. I.jO. In tlio opinion of the State 
 Tax Case it was said: 'But debts owing by a corporation, like debts 
 owing by individuals, are not property of the debtors in any sense. 
 Tlu-y are obligations of the debtors, and only possess value In the 
 hands of the creditors— with them are property, and in their hands 
 they may be taxed. To call debts property of the del)tors is simply 
 to misuse terms. All the property there can be, in the nature of 
 things, in the debts of corporations, belongs to the creditors to whom 
 they are payable, and follows their domicile, whatever they may be. 
 Their debts can have no locality separate from the parties to whom 
 they are due.' We are unable to perceive any sound reason for 
 giving to a debt a different situs for the purpose of garnishment, 
 and none, satisfactory to us, has been offered by these decisions 
 which give it a different situs for this purpose only. If a debt due 
 to a nonresident canuut be discharged by an insolvency law or de- 
 cree of the debtor's state, because of a want of jurisdiction over 
 the creditor and the debt, a like reason should forbid its discharge 
 by garnishment proceedings. Those courts which adhere to th« 
 contrary view are not themselves in accord as to the theory upon 
 which they can acquire jurisdiction over such debts. In some it is 
 held that, for the purpose of garnishment, a state has the power 
 to fix the situs of a debt at the domicile of the debtor, though the 
 creditor be a nonresident. Williams v. lugersoll, 89 N. Y. 508; Doug- 
 lass V. Insurance Co., 138 N. Y. 209, 34 Am. St. Rep. 448; Bragg v. 
 Gaynor. 85 Wis. 468. As we have seen above, the exercise of such 
 power would be a nullity in its effect upon the person of a non- 
 resident or the debt due him. Others hold that the situs of a debt 
 is wherever a suit may be maintained to vecover it. Harvey v. 
 Railway Co., 50 Minn. 400; Manufacturing Co. v. Lang. 127 Mo. 
 242. 48 Am. St. Rep. 026. As a general proposition, this, as we have 
 seen, is incorrect, and, as limited and applied to garnishments only, 
 it seems to us, merely an arbitrary distinction. Moreover, if its 
 situs is in the state of the debtor only by reason of the fact that 
 a suit to recover it may there be maintained, a debt due by a foreign 
 corporation doing business in a state other than that of its creation. 
 to a nonresident of such state, could not be reached by a garnisii- 
 ment sued out in the state, in the absence of a statute expressly 
 authorizing it to be sued therein on a cause of action arising with- 
 out the state; for it is well settled, as a general rule, that no action
 
 § ICla PERSONAL PROPERTY SUBJECT TO GARNISHMENT. TJi 
 
 credit due bim aud to obtain the riglit to assert it 
 against liis debtor, they must necessarilj- institute pro- 
 ceedings in a state wherein the latter can be served 
 with process and wherein a personal judgment can be 
 obtained against him. Whether the situs of the debt 
 
 in personam can be maintained against a foreign corporation, unless 
 the contract sued on was made or was to be performed, or the 
 injury complained of was suffered, in the state in which the action 
 is brought. Railroad Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339; St. 
 Clair V. Cox, 106 U. S. 350. And it has been expressly held that 
 a nonresident creditor of a corporation cannot have his property 
 in a debt seized in a state to which the corporation may resort 
 merely for the purpose of doing business through its agents, when 
 the claim arose on a contract not to be performed within the state 
 of suit. Reimers v. Manufacturing Co., 70 Fed. Rep. 573; Douglass 
 V. Insurance Co., 138 N. Y. 209, 34 Am. St. Rep. 448. We prefer to 
 adhere to the principle on which our former cases were decided, 
 that the situs of a debt is at the domicile of the creditor for the pur- 
 pose of garnishment as well as for other purposes. Railroad Co. 
 V. Dooley, 78 Ala. 524; Railroad Co. v. Chumley, 92 Ala. 317; Reno, 
 Nonres. § 138 et seq.; Railroad Co. v. Smitli, 70 Miss. 344, 35 Am. 
 St. Rep. G51; Central T. Co. v. Chattanooga etc. R. Co., G8 Fed. 
 CS5; Railway Co. v. Sharitt, 43 Kan. 375, 19 Am. St. Rep. 143; Renier 
 V. Hurlbut, 81 Wis. 24, 29 Am. St. Rep. 850. Adhering in tIMs respect 
 to the situs of the debt due from appellant to appellee, we are con- 
 strained by the decisions of the Supreme Court of the United States, 
 cited above, to hold that the judgment of the Tennessee court, oper- 
 ating, as it did, on its face, to condemn and devest appellee's prop- 
 erty in the debt over which it had not acquired jurisdiction by 
 personal service within the state on appellee, or by his voluntary 
 appearance, was without due process of law, and absolutely void for 
 want of jurisdiction of the res, the debt, or the person of its owner. 
 To such judgments the constitution of the United States does not 
 require that any faith and credit be given; the constitutional pro- 
 vision that 'full faith and credit shall be given in each state to the 
 public acts, records, and judicial proceedings of every other state,' 
 and the act of congress providing for the mode of authenticating 
 such acts, records, and proceedings, being now construed as appli- 
 cable 'only when the court rendering the judgment had jurisdiction 
 of the parties and of the subject-matter, and not to preclude an in- 
 quiry into the jurisdiction of the court in which the judgment was 
 rendered, or the right of the state itself to exercise authority over 
 the person or the subject-matter. Pennoyer v. NefC, 95 U. S. 714.' "
 
 795 TEilSONAL PROPERTY SUBJECT TO GARNISHMENT. § ICla 
 
 may properly be regarded in the one state or the otlier, 
 it is, in either conclusion, certain that the garnish- 
 ment must be made where the debtor is, or that it 
 cannot be made at all. Hence, we concede that under 
 these circumstances the debtor may be garnished 
 wherever he resides and is, though his creditor resides, 
 and the contract obligation was created, in another 
 state..®* Where the creditor and debtor reside in dif- 
 ferent counties of the same state, it may be admitted 
 that he may be garnished in the county of his residence, 
 irrespective of the fact that his creditor resides in a 
 different part of the state.*^ 
 
 It has been suggested that the place where a debt 
 is made payable may be considered in determining its 
 situs for the purposes of garnishment, and that, though 
 the general rule prevails in a state subjecting to gar- 
 nishment a debt owed by a debtor resident therein, 
 irrespective of the place of the domicile of his creditor, 
 that an exception to this rule may exist where the 
 obligation was, by its terms, payable in some other 
 state,**" but this is doubted by other decisions in the 
 same state.®* 
 
 Many courts maintain that the situs of a debt for 
 the purposes of garnishment is at the domicile of the 
 debtor, or that it has no situs w^hatsoever, and hence 
 may be reached by garnishing him wherever an action 
 may be brought against him, irrespective of the domi- 
 cile of his creditor. This view was at one time sus- 
 tained by a preponderance of the authorities in this 
 
 81 Cofrode v. Gartner, 79 Mich. 332. 
 
 82 Root V. Davis, 51 Oh. St. 29. 
 
 83 Green's Bank v. Wickham, 23 Mo. App. 003; Walker v. Falr^ 
 banks. 5.5 Mo. App. 478. 
 
 «*Wyeth etc. M. Co. v. Lang, 54 Mo. App. 147.
 
 § ICla PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 796 
 
 country,'^ tboiigli we think it is gradually giving way 
 to considerations hereafter to be mentioned. 
 
 One of the inherent difficulties in sustaining and en- 
 forcing the garnishment of a debtor made in a state 
 wherein his creditor does not reside is that the latter 
 cannot be brought before the court so that there can 
 be a judicial ascertainment, binding upon him, respect- 
 ing the existence and amount of the alleged indebted- 
 ness. Furthermore, the laws of some of the states 
 exempt from execution various classes of indebtedness, 
 and there is a constant effort to avoid the effect of 
 these exemption laws by bringing actions and serving 
 garnishments in other states, wherein neither they nor 
 laws of similar purport exist. Corporations organized 
 and having their domicile in one state are usually per- 
 mitted to do business in another in which they have 
 agents, and they are usually required to submit to suit 
 in those states and to permit process to be served upon 
 agents resident therein. It therefore frequently hap- 
 pens that, though a corporation and a person to whom 
 it is indebted have their domicile in the same state, 
 attempts are made to garnish it in another and per- 
 haps far distant state, whose courts do not have juris- 
 diction over its creditors. If, as sometimes happens, 
 the debt due from it is exempt from execution or gar- 
 nishment in the state wherein it and its creditor reside, 
 
 ^5 Harwell y. Sharp, 85 Ga. 124, 21 xim. St. Rep. 149; Hannibal 
 etc. Co. V. Crane, 102 111. 249, 40 Am. Rep. .ISl; Lancashire I. Co. v. 
 CJorbetts, 165 111. 594, 56 Am. St. Rep. 295; Willard v. Sturm, 96 la. 
 5.55; German Bank v. American F. I. Co.. 8.*] la. 491. ?.2 Am. St. Rep. 
 31G; Burlington etc. Co. v. Thompson, 31 Kan. 180, 47 Am. Rep. 
 497; Wyetb M. Co. v. Lang, 54 ISIo. App. 147; Ilowland v. Chicago 
 etc. R. Co..- 134 Mo. 474; Wyeth M. Co. v. Lang, 127 :\Io. 242. 48 Am. 
 St Rep. 626; Morgan v. Neville, 74 Pa. St. 52; Cross v. Brown, 19 
 R. I. 220; Nichols v. Hooper, 61 Vt. 295; Tower v. Wilder. 57 Vt. 
 622; Neufelder v. German A. I. Co., 6 Wash. 336, 36 Am. St. Rep. 
 166; Bragg v. Gaynor, 85 Wis. 468.
 
 797 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § ICla 
 
 but not in the other state, it must fuUow, if it is sub- 
 ject to ganiishment in the other state, that its creditor 
 may thereby lose the benefit of the exemption laws of 
 his domicile, or that the corporation may be compelled 
 to pay the debt in both states; in the state where j^ar- 
 nished, because the debt is not there exempt from exe- 
 cution, and also in the state where it and its creditor 
 reside, because the debt is there exempt from execu- 
 tion, and the creditor cannot be deprived of such ex- 
 emption by the laws of a state to whose jurisdiction 
 he is not subject. Ilence, we think the better view is, 
 that in such circumstances, for the purposes of gar- 
 nishment, the corporation must be deemed to have its 
 domicile only in the state in which it was created, and 
 that wiienever a debtor and creditor have the same 
 domicile, the debt must be regarded as having its situs 
 there and as exempt from garnishment elsew^here.^ 
 
 If a corporation is chartered and carries on business 
 in two or more states, it has been held, in Tennessee, 
 that a debt due from it may be garnished in either 
 state, though the person whose debt is thus sought to 
 be garnished is not a resident thereof.'^'' 
 
 86 Alabama etc. Co. v. Cbumley. 92 Ala. 217; Green v. Farmers' etc. 
 Bank. 24 Conn. 352; National Bank r. Fnrtich. 2 Marvel. 3.j. G9 Am. 
 St. Rep. 99; Everett v. Connecticut M. I. Go., 4 Colo. App. 509; Asso- 
 ciated Tress v. United Tress, 104 Ga. 51; Swedish-American N. B. v. 
 Bleecker, 72 Minn. 383; Illinois C. R. Co. v. Smitb, 70 Miss. 344. 
 35 Am. St. Rep. 651; Wright v. Cbicajro etc. Co., 19 Neb. 175, 56 
 Am. Rep. 747; American C. I. Co. v. Hettler, 37 Neb. 849, 40 Am. 
 St. Rep. .522; Sawyer v. Tlioniiisdu, 24 N. 11. 510; Lawrence v. Smitlu 
 45 N. H. 533, 86 Am. Dec. 1S3; Osgood v. Maguire, 61 N. T. 521; Wil- 
 liams V. Ingersoll, 89 N. Y. .5()S: Douglas v. Thoeiiix 1. Co., 1:>S N. Y. 
 209, 34 Am. St. Rep. 448; Smith v. Tabor, 16 Tex. Civ. App. 154, 
 Renier v. Hurlbut, 81 Wis. 24, 29 Am. St. Rep. SjO; Morawetz v. 
 Sun Ins. Offices. nO Wis. 175, Cm Am. St. Rep. 4.^; Reimers v. Seatco 
 Mfg. Co., 37 U. S. App. 426; Central T. Co. v. Chattanooga etc. R. 
 Co., 68 Fed. Rep. 6S5; Reimers v. Seatco INIfg. Co., 70 Fed. Rep. 573. 
 
 8T Railroad v. Baruhill, 91 Tenn. 394, 30 Am. St. Rep. 889.
 
 § 16-2 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 793 
 
 § 162. General Character of Debts Subject to.— Gar- 
 nishment, whether made under an attachment or un- 
 der an execution, is a legal, and not an equitable, 
 proceeding. The court can take no notice of debts due 
 by the garnishee to the defendant, unless these debts 
 could have been enforced by the defendant against the 
 irarnishee in an action at law. Whenever statutes 
 have authorized the garnishment of debts, they have 
 uniformly been limited in their application to legal 
 debts.^* In other words, a debt cannot be garnished 
 unless it is one upon which, when due, an action at 
 law can be sustained by the defendant in execution 
 against the person garnished.^^ On the other hand, if 
 the debt sought to be garnished is one which may be 
 enforced for his own benefit by an action at law 
 brought by the defendant in execution against the gar- 
 nishee, then it is subject to garnishment, irrespective 
 of its character or of the peculiar circumstances under 
 which it arose.^** A judgment creditor may be a debtor 
 of the defendant in execution and entitled to main- 
 tain an action at law against him for the amount of the 
 debt. It has, nevertheless, been insisted that a judg- 
 
 88 Harrell v. Whitman, 19 Ala. 135; Roby v. Labuzan, 21 Ala. 60, 
 no Am. Dee. 237; Godden v. Pierson. 42 Ala. 370; Grain v. Aldrich, 
 38 Cal. 520; Hoyt v. Swift, 13 Vt. 129, 37 Am. Dec. 586; May v. 
 P>akcr, 15 111. 89; Lowry v. Wright, 15 111. 95; Patton v. Smith, 7 
 Ired. 438; Gillis v. McKay, 4 Dev. 172. 
 
 89 Henry v. Murphy, 54 Ala. 240; Cunningham v. Balier, 104 Ala. 
 100, 53 Am. St. Rep. 27; Farwell v. Chambers, 02 Mich. 316; Edney 
 V. Willis, 23 Neb. 56. 
 
 00 Woolridge v. Holmes, 78 Ala. 50S; Martin v. Copeland, 77 Ga. 
 374; Fogelman v. Shively, 4 Ind. App. 197, 51 Am. St. Rep. 213; Lake 
 V. Minnesota M. R. Assn., 01 Minn. 90, 52 Am. St. Rep. 538; Root v. 
 Davis, 51 Oh. St. 29; Bremer v. Mohn, 169 Pa. St. 93; Atwood v. 
 Dumas, 149 Mass. 167; Proctor v. Lane, 02 N. H. 457; Burger v. 
 Burger, 135 Pa. St. 499; Dickinson v. Dickinson, 59 Vt. 678; Green 
 V. Marshall, 72 Wis. 048; Birmingham N. B. v. Mayer, 104 Ala. 634; 
 Keiser v. Shaw (Ky.), 46 S. W. 524.
 
 799 TEILSUNAL PKOrERTY SUBJECT TO GAUNl.silMENT. § lti'2 
 
 iiiciit creditor caunot guruisli a debt due from himself 
 to tlie defendant on tlie ground tliat garnishment is an 
 adversary proceeding, to be made effective, if necessary, 
 by an action brought by the judgment creditor against 
 the garnished creditor of the defendant, and that the 
 plaintiff cannot bring an action against himself to en- 
 force his garnishment of himself,"^ although the debt 
 may be owing from him in a representative capacity, 
 for instance, as an administrator or executor from 
 whom the defendant in execution was entitled, to re- 
 ceive the payment of a debt.**^ These technical objec- 
 tions are difficult to answer, but, without answering, 
 they have, in several of the states, been overruled.^^ 
 
 Of course, there may be instances in which the de- 
 fendant in execution, though able to maintain an ac- 
 tion at law on a contract, is not subject to garnish- 
 ment, because he has not the beneficial ownership, as 
 where money is deposited or a contract made in his 
 name while he is acting as an agent or trustee for an- 
 other, in which event the real party in interest cannot 
 be prejudiced by the garnishment of his agent or trus- 
 tee.*** 
 
 While it is possible for the legislature to authorize 
 the garnishment of the interest of a cestui que trust 
 in a debt or contract, the intention to accomplish this 
 object must be clearly expressed. Otherwise the pre- 
 
 91 Beech v. Fairbanks, 52 Conn. 1G7; Belknap v. Gibbens, 13 Met 
 471; Blaisdell v. Ladd, 14 N. H. 129; Knight v. Clyde, 12 R. I. 119. 
 
 82 Hoag V. Hoag, 55 N. H. 172. 
 
 93 Grayson v. Veechie, 12 Mart. (La.) 688, 13 Am. Dec. SS4; Norton 
 V. Norton, 43 Oh. St. 509; Boyd v. Baylies, 4 Humph. 3SG; Lyman 
 V. Wood, 42 Vt. 113. 
 
 9* Hair V. Northwestern N. B., 50 111. App. 211; Hodson v. Mc- 
 Connell, 12 111. 170; Des Moines C. M. Co. v. Cooper, 93 Iowa, 654; 
 Granite N. B. v. Neal. 71 Me. 125; Palmer v. Noyes. 45 N. H. 174; 
 Marx V. Parker, 9 Wash. 473, 43 Am. St. Rep. 849.
 
 § 162 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. SOO 
 
 suiiiption is that tlie credits or debts, the garnishment 
 of which is authorized, include only obligations en- 
 forceable at law. 
 
 ITence, if a judgment is entered in favor of A, for 
 the use of B, it cannot be garnished by the creditors^ 
 of the latter. "While our statute in regard to garnish- 
 ment is comprehensive in its provisions, we do not 
 think equitable claims can be subjected to the process. 
 The terms employed are 'indebted,' or 'hath any effects 
 or estate' in his charge, enumerating 'lands, tenements^ 
 goods, chattels, moneys, choses in action, credits and 
 effects.' The 'effects or estate,' spoken of in the charge 
 or custody of the garnishee, must belong to the defend- 
 ant in attachment, or judgment debtor, and the choses 
 in action or credits must be due or owing to him, and 
 evidently must be of a legal and not equitable, char- 
 acter." ^^ If moneys are in the hands of a trustee or 
 are due from him to the beneficiary of the trust, and 
 are sought to be garnished under execution against the 
 latter, their liability to such garnishment must be de- 
 termined by considering whether, in the state in which 
 the question arises, the rights of the beneficiary are so 
 far perfect that he can maintain an action against the 
 trustee on the refusal of the latter to pay the demand 
 sought to be garnished. If so, the garnishment must 
 be sustained.^" If, on the contrary, there must first 
 be some settlement of the trustee's accounts or some 
 proceeding must be prosecuted and determined in some 
 court of equity before the beneficiary has an absolute 
 
 95 Webster v. Steele, 75 HI. 544; Notter v. Board of Trade, 12 111. 
 App. 607; Perry v. Barnard. 7 R. I. 15. 
 
 98 Lawrence v. Security Co., 56 Conn. 423; Estabrook v. Earlc, 97 
 Mass. 302.
 
 801 PERSONAL PROPERTY SUBJECT TO (JAliMSJlMENT. § 1G2 
 
 right to the fund in question, it cannot be garnished."'' 
 So, though the garnishee and the defendant in execu- 
 tion do not occupy the relation of trustee and bene- 
 ficiar\-, yet, if the hitter can only enforce his rights by 
 a suit in equity, his claim is not subject to garnish- 
 ment."® 
 
 An assignment having been made to trustees for 
 the benefit of creditors, in trust, to convert the prop- 
 erty into money, and, after paying the expenses of the 
 trust, to distribute the remaining proceeds pro rata 
 among the creditors of the assignor, an attempt by 
 garnishment was made to reach in the hands of the 
 trustees the interest of one of the creditors of the 
 assignor in the funds which would ultimately be due 
 him as his pro rata of such funds. The trustees, how- 
 ever, had not completed their duties by disposing of 
 all the property. It was therefore held that the right 
 of the creditors was not a legal right or interest in 
 the funds then in the possession of the trustees, but 
 at most the right to compel in equity the execution of 
 the trust; and hence, that it was not subject to gar- 
 nishment."* In West Virginia, "where the garnishee 
 owes a debt to the defendant in execution or has an 
 estate of his in his hands, and the character of his lia- 
 bility is such that it might be enforced in a common-law 
 suit by an action of debt, detinue, or some other appro- 
 priate personal action," then the garnishee may be pro- 
 ceeded against by process of garnishment. "But when 
 
 97 Groome v. Lewis. 23 Md. 137, 87 Am. Dec. 5C3; Hall v. Williams. 
 120 Mass. 344; Hinckley v. Williams. 1 Cush. 490, 48 Am. Dec. 042; 
 Mcllraine v. Lancaster, 42 Mo. 96; Lackland v. Garescke, 56 Mo. 
 267; Ranfield v. Wiggin, 58 N. H. 155; Wliite's Ex. v. White, 30 Vt. 
 338; Lackett v. Rimbaugli, 45 Fed. Rop. 23. 
 
 »8 Redondo B. Co. v. Brewer. 101 Cal. 322. 
 
 •» Mass. Nat. Bank v. Bullock, 120 Mass. SO. 
 Vol. l.-^i
 
 § 162 PERSONAL TROPERTY SUBJECT TO GARNISHMENT. 802 
 
 the liability of the garnishee is such that it can only 
 be enforced in a court of eciuity, the garnishee process 
 is entirely unsuited to enforce it"; and the judgment 
 creditor is by statute authorized to bring suit in equity 
 in the name of the sheriff. ^^^ The rule subjecting none 
 but legal debts to garnisliment is applicable in states 
 where law and equity jurisdictions are blended in prac- 
 tice and administered by the same courts. "It is well 
 settled that the word 'debt/ as used in the law of gar- 
 nishment, includes only legal debts — causes of action 
 upon which the defendant, under the common-law 
 practice, can maintain an action of debt, or indebitatus 
 assumpsit, and not mere equity claims." ^^^ 
 
 It has been held where societies are formed for chari- 
 table purposes and obligate themselves to pay their 
 members certain sums weekly or at other stated 
 periods, when they are disabled by sickness from pur- 
 suing their ordinary avocations, the amounts thus due 
 are in the nature of charities, and as such not subject 
 to garnishment.^^^ Decisions of this character surely 
 promote the purposes for which beneficial associations 
 are organized, but they, in effect, declare an exemp- 
 tion from execution not supported by the statutes of 
 many of the states. These statutes may expressly or 
 impliedly create exemptions from garnishment of ob- 
 ligations of this nature.***'^ In the absence of statutes 
 to the contrary, we incline to the opinion that if the 
 obligation existing in favor of a beneficiary of such an 
 
 100 Swann v. Summers, 19 W. Va. 125. 
 
 101 Hassie v. G. I. W. U. C, 35 Cal. 385; Cook v. Walthall, 20 Ala. 
 334; Lundie v. Bradford, 26 Ala. 512; Self v. Kirkland, 24 Ala. 275; 
 Nesbitt V. McClanahan, 30 Ala. G8; Victor v. II. F. Ins. Co., 33 
 Iowa, 210. 
 
 102 Wilder v. Clark, 11 N. Y. Supp. G83. 
 
 103 Schillinger v. Boes, 85 Ky. 357; Saunders v. Robinson, 144 
 Mass. 30G; Gecr v. Hortou, 159 Mass. 259.
 
 ^03 PERSONAL PROrERTY SUBJECT TO ( ; AUNISUMENT. 5 102i 
 
 association is one which he may assert by an aciion ai 
 law against it, then it must be subject to garnishment, 
 like other legal debts.^""* 
 
 § 162 a. Rights Which the Judgment Debtor has the 
 Option of Enforcing or not are iu»t subject to garnish- 
 ment. This rule has been invoked and applied where 
 the defendant in execution had paid usurious interest, 
 which the judgment creditor in effect sought to recover 
 by garnishment. The defense of usury is generally 
 regarded as a personal privilege, and the payment of 
 usurious interest voluntarily made is treated as a valid 
 appropriation of the moneys by the payee, at least 
 until the payor elects to disaffirm the payment, and 
 treat the usurious interest as moneys held for his use 
 and benefit. Until the payor has made his election to 
 treat the payment as void, and reclaim the moneys 
 paid, he has no cause of action against the payee. The 
 debtor of the payor cannot compel him to make such 
 election, and there can therefore be no perfect cause of 
 action against the payee to be a proper subject for gar- 
 nishment.*^^ The same principles lead to the denial of 
 the right to garnish a stockholder in a corporation who 
 has not paid in full the amount subscribed by him to 
 its corporate stock, where his duty to complete such 
 payment is by law dependent upon an assessment or 
 call therefor being made by the corporation. No cause 
 of action exists against him in the absence of such call 
 or assessment, and garnishment is a proceeding which 
 
 'io4Geiger v. McLin, 78 Ky. 232; Bolt v. Koylioc, 30 Hun, G19; 
 Hankinson v. Page, 31 Fed. Rep. 184. 
 
 105 Estill V. Rodes, 1 B. Mon. 31G; Graham v. Moore. 7 B. Moii. 
 53; Boardman v. Roe, 13 Mass. 104; Barker v. Esty, 19 Vt. 131; 
 Ransom v. Hays, 39 Mo. 445; Siuglelon v. Pattillo, 78 Ga. 2G9.
 
 § 163 PERSONAL PROrERTY SUBJECT TO GARNISHMENT. 804 
 
 can neither compel the requisite action by the corpora- 
 tion nor make its absence imijiaterial.''^ 
 
 In the cases to which we have last referred, it is un- 
 certain whether any cause of action will ever exist 
 against the garnishee. There may also be an uncer- 
 tainty respecting the person to whom payment is to 
 be made, and, while such uncertainty continues, there 
 can be no garnishment. Thus, if a person, having work 
 done or materials furnished, stipulates that he may 
 first pay for w^ ork done or materials furnished by a per- 
 son other than the original contractor, the former can- 
 not be garnished as a creditor of the latter, so as to 
 cut off his rights to make payment to the persons or 
 in the manner stipulated.*^'' 
 
 § 163. Whether Must be Payable in Money.— It is es- 
 sential that the obligation existing against the gar- 
 nishee in favor of the defendant should be payable in 
 money.***^ Therefore, a demand payable in "store ac- 
 counts," *"" or "notes," -^^^ or "saddlery," *** or "cast- 
 ings and iron," *'^ or in work or labor,-^*^ or in 
 board,-^** or "in groceries and provisions to live upon, 
 as called for," ^^^ cannot be reached by garnishment. 
 
 106 McKelvey v. Crockett, 18 Nev. 238; Brown v. Uuion Ins. Co.. 3 
 La. Ann. 177; Bingham v. Rushing, 5 Ala. 405. 
 
 107 Drake v. Harrison, 69 Wis. 90. 2 Am. St. Eep. 717, 
 
 losw^eil V. Tyler, 43 Mo. 581; McMinn v. Hall, 2 Over. 328; Jen- 
 nings V. Summers, 7 How. (Miss.) 453; Bartlott v. Wood, 32 Vt. 372; 
 Briggs V. Beach, 18 Vt. 115. 
 
 100 Smith V. Chapman, 6 Port. 365; Deaver v. Keith, 5 Ired. 374. 
 
 110 Mims V. Parker, 1 Ala. 421; Willard v. Butler, 14 Pick. 550. 
 
 111 Blair v. Rhodes, 5 Ala. 648. 
 
 112 Nesbitt V. Ware, 30 Ala. 68. 
 
 113 Wrigley v. Geyer, 4 Mass. 101; contra, Louderman v. Wilson. 
 2 Har. & J. 379. 
 
 ii4Aldrich v. Brooks, 5 Fost. 241; Peebles v. Meeds, 96 Pa. St. 
 150. 
 115 Smith V. Davis, 1 Wis. 447, 00 Am. Dec. 390.
 
 805 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § 163 
 
 In all these cases it is obvious that the court canuot 
 compel the garuishee to pay a certain sum of money 
 into court, lor that would be to compel him to change 
 a contract for the delivery of specific property or the 
 jjerformance of specified services into a contract to pay 
 money; nor can the court enter a judgment payable in 
 services or in property other than money. In response 
 to a garnishment, the garnishee answered that he had 
 l)urchased of the judgment debtor a tract of land, and 
 had given him four several written contracts to make 
 four annual payments of four bales of lint cotton, each 
 weighing five hundred pounds. In discharging the 
 garnishee, the court said: "Garnishment is a proceed- 
 ing of purely statutory creation unknown to the com- 
 mon law, and, while we are inclined to construe it 
 favorably as highly remedial and beneficial, we have 
 no power to originate machinery or process by which 
 to adapt it to conditions which its statutory provisions 
 are not broad enough to cover. The court having 
 power only to render an unconditional money judg- 
 ment against the garnishee, or to condemn personal 
 chattels in his hands, it early became a question what 
 description of debt or liability would authorize a per- 
 sonal money judgment against the' garnishee. It was 
 settled that only such debts as would maintain debt 
 or indebitatus assumpsit, if sued on by the defendant, 
 could be the subject of such condemnation and per- 
 sonal judgment." ^^" 
 
 Where a party owing a debt has the option to pay 
 it in specific articles rather than in money, this option 
 continues until a demand for payment has been made, 
 without resulting in any compliance therewith. 
 Hence, before such demand, the obligatiim canuot be 
 
 118 Jones V. Crews, 64 Ala. 371.
 
 § 1G3 PERSONAL PROrERTY SUBJECT TO GARNISHMENT. 805 
 
 garnished, though, if demand of performance had been 
 made and refused, the obligation would have become 
 due in money, and an action of assumjisit might have 
 been sustained thereon/^'' If the sum due or to become 
 due from the garnishee may be paid by him in his nego- 
 tiable promissory notes, he cannot be held, because the 
 creditor has no power ''to interfere with this contract, 
 and to compel the other party to pay it in money, in- 
 stead of giving the note." ^^* 
 
 Where, however, the proceeding by, garnishment or 
 trustee process can reach not merely debts but also 
 effects of the defendant, it may be' that the garnishee 
 can be compelled to surrender any specific article to 
 which the defendant is entitled from him.^^'^ In Iowa, 
 where a garnishee had given his note for five hundred 
 dollars, payable "in merchandise or trade at his store, 
 as the same might be demanded,-' it was said that a 
 judgment should'have been entered against him for the 
 amount of the note, "to be discharged in goods or mer- 
 chandise at a fair value, to be placed at the disposal of 
 the sheriff." ^^ 
 
 The statute of Massachusetts provides for trustee 
 process against persons who hold goods or chattels 
 other than money, and which they are bound to deliver 
 to the defendant in execution, and that under such 
 process they may be required to deliver so much of such 
 property as may be necessary to the officer holding the 
 execution, who may sell the same and apply the pro- 
 ceeds in the same manner as if such property had been 
 
 117 Weil V. Tyler. 38 Mo. 545, 90 Am. Doc. 441. 
 
 118 Fuller V. 0'P»rien, 121 Mass. 422. 
 
 110 Comstock V. Farnum, 2 Mass. 0(3; Clark v. Kin?, 2 Mas??. .'524. 
 
 120 Stadler v. Parmlee, 14 Iowa. 175. For form of jndsmeut against 
 garnishee when he owes a debt payable in specified bonds, see Kin;^ 
 V. Hyatt, 41 Pa. St. 229.
 
 807 PKllSONAL PROI'EUTY .SUB-IHCT TO (;A1:NI>11MI:NT. § 103a 
 
 seized and sold uuder exeeulioii. This statute is not, 
 however, applicable when the contract, though made 
 by a person within the state, is for the delivery of goods 
 elsewhere. ^'^ 
 
 § 163 a. Property in the Custody of a Common Car- 
 rier. — AVhere the statutes of a state authorize the gar- 
 nishment of tangible property in the possession of a 
 bailee by the service of a writ on him, with notice that 
 the interest of the defendant in execution is attached 
 thereunder, we see no reason for holding that such 
 statutes do not apply to persons and corporations ex- 
 ercising the functions of common carriers, though, 
 doubtless, the peculiar character of these functions 
 may often excuse the carrier or exempt him from lia- 
 bility for the subsequent delivery of the property as 
 required by the contract previously entered into for 
 its transportation.^^- If the transportation has been 
 completed, and the property is in the hands of the car- 
 rier in its capacity of warehouseman, it may be gar- 
 nished.^-^ We know of no reason why it may not be 
 equally liable to garnishment before the transit has 
 begun. ^-"* provided it be clear that the defendant in 
 execution has an interest, and that the carrier may 
 respect the garnishment without exposing itself to lia- 
 bility under bills of lading issued before the service of 
 the writ. It is notorious that, in the usual course of 
 business, bills of lading or shipping receipts issued by 
 carriers are subject to transfer, and are often trans- 
 
 121 Clark V. Brewor. G Gray, 320. 
 
 122 Miclii.can etc. Ity. v. Chicago etc. Uy. Co.. 1 111. App. .399: Adams 
 V. Scott. 104 Mass. 1G4; Bates v. Cbicajro etc. Co., 00 Wi.s. 206. 50 
 Am. Rep. 3G9. 
 
 123 Cooley V. Minnesota T. Co.. ."3 Minn. 327. 39 Am. St. Rep. 609. 
 
 124 Adams v. Scott, 104 Mass. 164; Lauda v. Hoick, 129 Mo. 663. 50 
 Am. St. Rep. 459.
 
 § \6?.a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 803 
 
 feiTod, and fiirtliermoro, that they do not always cor- 
 rectlv represent the true ownership of the property 
 subject thereto, and that, in the vast majority of cases, 
 it is often difficult, and sometimes impossible, for the 
 carrier to know to whom «2,oods in its possession be- 
 long, and we believe no liability can be imposed against 
 a carrier by garnishment while its bill of lading is out- 
 standing, and it, by the transfer thereof, may become 
 liable to deliver the property to an assignee who is not 
 the defendant in execution.^-*"^ If the property sought 
 to be garnished is not within the state when the gar- 
 nishment is attempted, it must be entirely ineffective, 
 though the property is subsequently brought within 
 the state in pursuance of a contract for its transporta- 
 tion entered into before the service of the writ/^* 
 Where the transit has begun, it becouK^s extremely dif- 
 ficult for a carrier to ascertain whether it has in its pos- 
 session goods sought to be garnished, and the perform- 
 ance of its duties to the public must be very seriously 
 impaired if it is required then to make an examina- 
 tion for the purpose of suspending the transit of the 
 goods garnished, or to determine whether it must, at 
 the end of the transit, refuse to deliver them and hold 
 them subordinate to the rights of the garnishing credi- 
 tor. Our examination has not disclosed to us any case 
 affirming the right to garnish goods in the possession 
 of a carrier during their actual transit, but several *-'' 
 in which the right has been denied. It has, further- 
 
 125 Walker v. Detroit etc. R. Co., 49 Midi. 44G. 
 
 126 Sutlierland v. Second N. B., 78 Ky. 250; Montrose P. Co. v. 
 Manufacturing Co., 76 Iowa, 172, 14 Am. St. Rep. 213; W'estern R. R. 
 Co. V. Tliornton, 60 Ga. 300. 
 
 127 Illinois C. R. R. v. Cobb, 48 III. 402; Bates v. Chicajro etc. Co., 
 60 Wis. 296, 50 Am. Rep. 369: Western R. R. Co. v. Thornton, 60 
 Ga. 300.
 
 *09 PERSONAL PROPERTY SUBJECT TO (JARXISHMEXT. § 1G4 
 
 nioi'o, biM'ii Ijcid that the transit slioiihl be regarded as 
 roinincnccd when the property sought to Ix' "garnished 
 is in a ciir forming a part of a i'ejj;ui;ir tiain, operated 
 in transi)or(in«^ freijiiht, already made iij* ;iii(l standing 
 upon the track ready to start for its destination, and 
 that the carrier is justified in completing this transit 
 regardless of the garnishment. This decision, however, 
 was partially founded ui»on a statute of the state de- 
 idaring that the garnishee should not be compelled to 
 <leliver any specific articles at any other time or place 
 than as stipulated in the contract between him and the 
 defendant, it appearing that in the case before the 
 court the contract with the carrier provided for the 
 delivery of the property at a point beyond the state, 
 and that it was in the car ready to be transported in 
 pursuance of such contract. The remedy of the judg- 
 ment creditor, it was said in such case, if he desired to 
 arrest the i)roperty in the state, was to have taken ac- 
 tual possession of it under his writ,^'"^ 
 
 § 164. Contingent Debts.— Debts which are due con- 
 tingently, and which, tlierefore, may never become due, 
 are not subject to garnishment.^-^ In Vermont, a note 
 
 128 Stevenot v. Koch, Gl Minn. 104. 
 
 129 McConnicli v. Kelioe, 7 N. Y. Leg. 01)s. 1S4; Ilavon v. Went- 
 wortli, 2 N. H. 0.3; Burlce v. Wliitcomb, 13 Vt. 421; Tucker v. Clisby. 
 12 I'ick. 22; Roberts v. Driukhard, 3 Met. (Ky.) 309; Worn worth v. 
 Whittemore. 1 Mass. 471; Tabor v. Nye. 12 Pick. lOo; Russell v. 
 riin£:an, 33 Miss. 53.j; Harris v. Aiken. 3 Pick. 1: Sayward v. Drew. 
 Me. 263; Frothingham v. Haley. 3 Mass. 68; Kettle v. Harvey, 21 
 Vt. 301; Bishop v. Young, 17 Wis. 46; Bates v. N. O. J. & G. X. 
 R. R. Co., 4 Abb. Pr. 72; 13 How. Pr. 516: Baltimore & O. R. R. 
 <^o. V. Gallahue, 14 Gratt. 563; Davis v. Ham, 3 Mass. 33: Wood v. 
 I*artridge, 11 >rass. 4SS: Clement v. Clement. 19 X. II. 460: Slu^iror 
 T. Handy. 22 Pick. 417: Maduel v. Mousseaux. 29 La. Ann. 228: Loh- 
 mann v. Fnrwell, 95 Wis. ISo. t!(t Am. St. Rep- ^H: Alexander v. 
 Pollock, 72 Ala. 137; Jordan v. Jordan, 75 Me. 100; Hanover F. C.
 
 § 1G4 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 810 
 
 was given, payable when the payee or his h(4rs should 
 clear off certain encumbrances then existing on a 
 specified tract of land. Trustee process was served on 
 the maker of the note. The supreme court, in deter- 
 mining whether he could be charged under such pro- 
 cess, said: ''The note set forth ii; the disclosure is pay- 
 able on a condition. This was a condition precedent, 
 and the note was payable upon a contingency. It was 
 not a debt in presenti, to be discharged in futuro. Its 
 becoming a debt rested in contingency. Until the con- 
 dition was performed, no indebtedness existed; and no 
 right of action would ever accrue on the note, in favor 
 of the payee, against the maker. It is well settled in 
 England, under the process of foreign attachment, that 
 no lien can be acquired upon a debt the very existence 
 of which is dependent upon a contingency, for the very 
 satisfactory reason that it is no debt. The same prin- 
 ciple has been and must be applied to the trustee pro- 
 cess given by statute in many of the states." ^^^ Ta 
 assist a better understanding of the rule, we shall refer 
 to some of the cases in which its application has been 
 sought. A school-teacher having been employed to 
 teach for the winter term, under a contract providing 
 that he should "recover no part of his earnings until 
 the term of school should have been fully completed," 
 
 Co. V. Connor, 20 111. App. 207; Linder v. Miirdy, .S7 Kan. 152; St. 
 .Joseph M. Co. V. Miller, 69 Wis. 389; Smith v. Gilbort, 71 Conn. 140; 
 Smith V. Merchants etc. N. B. (Tex. Civ. App.), 40 S. W. 1038. 
 
 130 Burke v. Whitcomb, 13 Vt. 423. For cases discussing and de- 
 termining the question what demands are contingent, see Cutter 
 V. Perkins, 47 Me. 5."7; Williams v. Marston, 3 Pick. 6.'; Guild v. 
 Holbrook, 11 Pick. 101; Rich v. Waters, 22 Pick. .")f;3; Woodard v. 
 Herbert, 24 Me. 358; Ingalls v. Dennett, 6 Me. 79; Tliorndike v. De 
 Wolf, 6 Pick. 120; Downer v. Curtis, 25 Vt. 6.50; Dwinel v. Stone. 
 30 Me. 384; Wilson v. Wood, 34 Me. 123; Willard v. Sheafe. 4 Mass. 
 235; Grant v. Shaw, 16 IMass. 341.
 
 811 rERSONAL rKOIERTY .^UliJE( T TO GAliNISIIMENl. § 1C4 
 
 the school (listrict was ji;n rnisliod as liis creditor after 
 ho had taii;;ht about two months, but before the term 
 was coui])h'ted, and the court determined that such 
 garnishment was unavailing, because the teacher 
 might never complete the term, and, if so, he would 
 never become entitled to any compensation.^"'^ In 
 every contract by one person to render service to an- 
 other for a definite period of time and providing ex- 
 pressly or impliedly for payment therefor at the expira- 
 tion of such time, it can never be known wliether or 
 not the employe? will be entitled to compensation until 
 the service is fully performed. Until that time he 
 cannot maintain any action against his employer, 
 nor can the latter be subjected to any liability by rea- 
 son of garnishment, though subsequently the services 
 should be performed and the stipulated wages should 
 become due.*^- So, where a builder had entered into 
 a written contract to perform certain work within a 
 time designated and according to certain plans and 
 specifications, and had stipulated to pay three dollars 
 for each day the job should remain unfinished after the 
 day designated for its completion, it was held that a 
 garnishment before the completion of the work was in- 
 effectual, because it could not be known whether the 
 work would ever be completed, nor, if completed, what 
 amount must be deducted from the contract price for 
 delay in such completion. ^"^ A farm was sold, the 
 purchaser agreeing to cultivate the land, and to de- 
 liver "to the grantee stipulated portious of the crops 
 
 131 Norton v. Soule, 75 Me. 385. 
 
 132 standard W. Co. v. Lowery. 94 dn. 014: Hnll v. Armour P. 
 Co.. 102 Ga. 58G; Potter v. Cain. 117 Mass. •_':!S: Kidy v. B.-rtrand, 
 67 Mifh. .1,32; Foster v. Siugrer, 09 Wis. 392, 2 Am. St. Kep. 745; 
 Central I'.ank v. Ellis. 20 Ont. App. 3G4. 
 
 133 Hopsou V. Dinan, 48 Mich. G12.
 
 § \6i PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 812 
 
 raised thereon" for several years thereafter. Being 
 sued for damages for not delivering crops as stipulated, 
 he urged in his defense that he had been garnished by 
 a creditor of his vendor. The garnishment was de- 
 cided to be inoperative, because at the time of its ser- 
 vice the debt or liability sought to be reached de- 
 pended on a contingency.^"^* A conductor of a street 
 railway company was entitled to $0.75 for wages, but 
 he owed the company |4.5T for money received, and had 
 in his possession tickets intrusted to him to sell of the 
 value of |5. By his contract with the company he was 
 required to account to it for these tickets, either by 
 paying therefor in money or by allowing their value in 
 reduction of the amount due him for wages. It was 
 held that the company could not be held as garnishee, 
 because "whether it owed anything depended upon the 
 contingency or condition that the conductor should re- 
 turn the tickets in his hands." ^^^ If a contract is 
 made whereby the promisor agrees to pay the promisee 
 certain sums at stated periods during the life of the 
 latter, sums which have become due absolutely may be 
 garnished; but it is otherwise as to sums not so due, 
 because their becoming due is dependent on the con- 
 tingency of the continuance of the life of the prom- 
 isee.^^^ If the amount to which a contractor on a rail- 
 road is entitled for work done under his contract is or 
 may be subject to forfeiture for divers causes specified 
 in such contract, it cannot be garnished. ^^'^ Rents, 
 unless due absolutely and unconditionally, are not sub- 
 ject to garnishment, because their coming due is de- 
 
 184 Reinhart v. Hardesty, 17 Nev. 141. 
 
 135 Fellows V. Smith, 131 Mass. 3G.3. 
 
 136 Sabin v. Cooper, 1,5 Gray, .532; Sayard v. Drew, f? Mo. 203. 
 
 137 Baltimore etc. R. R. v. Gallahue's Adm'r, 1-i Gratt. 503; Strauss 
 V. R. R. Co., 7 W. Va. 368.
 
 813 rEK.SONAL rUOrEKTY SUBJECT TO GAKNl.sHMENT. § HA 
 
 pendent on the continuance between the parties of the 
 relation of lantUord and tenant with respect to the 
 property leased. ^^'^ A mail subcontractor a<^reed with 
 the principal contractor to carry the mails for seventy- 
 . five dollars per quarter, provided he should fulfill all 
 the requirements, conditions, and stipulations con- 
 tained in a contract with the postmaster-general. Pay- 
 ment was not to be made to the subcontractor until 
 the principal received his pay from the government, 
 nor unless evidence of the service should be received 
 by the department. The moneys to become due the 
 subcontractor were sought to be garnished, though 
 they had not been paid to the principal, nor had any 
 evidence been furnished the department of the rendi- 
 tion of the service. The court said: "It is contingent 
 whether the required evidence of service will ever be 
 furnished the department, and, if not furnished, there 
 is nothing due the trustee or the defendant. The 
 claim of the defendant against the trustee is contin- 
 gent. It is not absolutely due, but the trustee is not 
 to be charged where his liability rests upon a contin- 
 gency.-' '^^ 
 
 The general principle controlling garnishment is 
 that, at the service of the writ, some liability must then 
 exist from the garnishee to the defendant in execution, 
 which, when due, is capable of being asserted by some 
 appropriate action, and this action must generally be 
 in the nature of assumpsit. There is one instance, 
 however, in which the cause of action need not be per- 
 fect at the time of the garnishment, and in which it 
 
 138 Mason v. Belfast n. Co.. 89 Me. 381; Thorp v. Trostou. 42 Mich. 
 511; contra, Rowell v. Felker, 54 Yt. 520. 
 
 139 Larral>pp v. "Walker. 71 Me. 441. See, also, Early v. lledwood 
 City, 57 Cai. 193.
 
 § 164 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 8U 
 
 cannot be known absolutely that it will ever become 
 perfect. The defendant may be required, to com^jlete 
 his cause of action, to make some formal demand of 
 payment upon the garnishee. The absence of this de- 
 mand, however, and the possibility that it may never 
 be made, do not render the liability so uncertain or con- 
 tingent as to exempt it from garnishment.^*^ This, 
 we believe, to be the only exception to the rule that a 
 claim or demand is not subject to garnishment unless 
 at the time a garnishment is attempted the claim is 
 free from all conditions, and the liability of the gar- 
 nishee must inevitably accrue. Hence, a stockholder 
 cannot be garnished for moneys due on his subscrip- 
 tion if no call has been made therefor,"* nor can the 
 purchaser of personal property be garnished for the 
 purchase price when the property purchased has not 
 been delivered to him, and for that, or some other rea- 
 son, the sale may never be consummated and the price 
 never become due,**" nor will partial delivery of 
 things purchased create an obligation subjecting the 
 purchaser to garnishment, if his contract is such that 
 no liability can accrue against him until complete de- 
 livery is made.**^ If a sale is made on condition that 
 the title to the property shall not pass until full pay- 
 ment is made, a garnishment of the purchaser cannot 
 defeat this condition.*** If a person has money or 
 property in his .hands ordinarily subject to garnish- 
 ment, but he is entitled to retain it as security for the 
 performance of some obligation, or until he has been 
 
 "0 Qulgrg V. Kittredge, 18 N. H. 137; Corey v. Powers, 18 Vt. 587. 
 141 Teague v. Le Grand, 85 Ala. 493. 7 Am. St. Rep. 64. 
 i42Maier v. Freeman, 112 Cal. 8, 53 Am. St. Rep. 151; Case v. 
 Dewey, 55 Mich, 116; McKay v. Evans. 48 Mich. 603. 
 143 Peterson v. Loring. 135 Mass. 397. 
 i44Briggs V. McEwen, 77 la. 303.
 
 815 PERSONAL PROPERTY SUBJECT TO GAllNlSlLMKNT. § 104 
 
 iiuU'iimiried from some liability, or uulil auy other con- 
 ditiou precedent can be peiformed, no garnishment of 
 him can be effective while it remains nneertain that 
 any liability against him will accrue.^ '•"' On the other 
 liand, if there is no contingency with respect to the lia- 
 bility, the debt, it is said, may be gamislied, although 
 some further act must be done to fix its amount or 
 value, provided the act is one to the performance of 
 which the judgment debtor is entitled.^^** So, if the 
 debt is absolute, it may be garnished, although the 
 debtor has the right to elect the mode in which it maybe 
 paid, as where he, having purchased personal property, 
 has the right either to return the property or to pay a 
 stipulated price therefor within a prescribed period."'' 
 A debt is not to be regarded as contingent merely be- 
 <ause the mode of book-keeping used by the parties is 
 such that the apparent indebtedness shown by such 
 books is liable to be changed by subsequent investiga- 
 tions, which may show that some of the charges made 
 
 148 Goodman v. Boyd, 44 111. App. 240; Holker v. Hennessey, 141 
 Mo. 527. 143 Mo. 80, 6 Am. St. Rep. 642; MfQuavry v. Geyer. 57 
 Mo. App. 213; Lackett v. Rumbaugh, 45 Fed. Rep. 23. 
 
 148 "Ware v. Goweu, 65 Me. 534. In this case the defendant had 
 performed work in the construction of a railroad, under a contract 
 which entitled him to payment upon the estimate and certificate of 
 an engineer named in such contract. The court said: ''Was the pay 
 for the work due absolutely, and not on any contingency, at the time 
 of the service of the writ?" We think by the true construction of 
 the contract it was. The work had been performed. There waa 
 nothing further for the contractor to do to be entitled to pay. It 
 only remained for the engineer to measure the work and make his 
 o.stimate in order to fix the amount to be paid. If the engineer 
 should neglect or unreasonably refuse to make an estimate and cer- 
 tificate of the work, it would not deprive the contractor of his righ« 
 TO pay, but he might bring his suit, and prove the amount of the 
 work in some other way. 
 
 i« Smith V. Cahoon, 37 Me. 2S1.
 
 § 104 PERSONAL PROPERTY 8U13JECT TO GARNISHMENT. 815 
 
 did Dot in fact represent existing liabilities against the 
 party charged.**® 
 
 In Michigan, the statute relating to garnishment 
 now provides that the garnishee shall "be liable on 
 any contingent right or claim against him in favor of 
 the principal defendant." In construing this statute^ 
 the supreme court of that state excludes all contin- 
 gencies "depending on the will and ability of the debtor 
 to earn the money." Hence, if after a building contract 
 has been entered into, a garnishment is served, it can 
 reach nothing beyond moneys then actually due. If 
 a different construction were adopted, a garnishment 
 could be served as soon as the contract was made, and 
 the builder thereby deprived of all credit, and there- 
 fore of all means of performing his contract. No ad- 
 vances or payments could be made on the work, be- 
 cause of their prior appropriation by the garnishment; 
 and both parties would be forced to abandon the con- 
 tract. "No doubt the emplo^^er has a claim in such a 
 case that the builder shall perform his contract; but 
 the contingency on which the money is ])aYable is one 
 dependent on the subsequent earning of the money. 
 It is, therefore, a contingency depending on the will 
 and ability of the debtor to earn money — a will which 
 it may generally be assumed will not be exerted where 
 earning is not to be followed by enjoyment. If there 
 is a contingent claim here, so there is when a laborer 
 hires out for a year, to be paid at the end of the year; 
 and his creditor may garnish as soon as the hiring 
 takes place. It would be a safe assumption that very 
 little labor would be done under the hiring after the 
 claim was garnished." "® The demand, though con- 
 ies Wajron Co. v. Petorpon. 27 W. "\'a. 339. 
 1" Webber v. Bolte, 51 Mich. 115.
 
 817 PERSONAL PROrERTY SUBJECT TO GARNISHMENT. § 164a 
 
 tiugeiit when the garnishee is summoned, may be 
 transformed into an absolute, unconditional indebted- 
 ness belore the time for the entry of jud<;meut. It has 
 sometimes been held that this transformation cannot 
 render him chargeable, because his liability must exist 
 at the service of the writ.^"'^" In other cases it has been 
 adjudged that he is chargeable for all debts due and 
 certain at the time of the answer or disclosure, though 
 contingent when the writ was served.*^^ 
 
 § 164 a. Claims against Insurance Companies for 
 losses against which they have issued policies form a 
 prominent class of debts not subject to garnishment, 
 because subject to contingencies. Indeed, it has been 
 held, and, so far as we know, without dissent, that 
 claims for loss of property destroyed by fire cannot, 
 until their adjustment, be garnished, because they are 
 mere claims for unliquidated damages.*"'^ In most 
 cases of insurance against loss by fire, the insurer re- 
 serves the right, instead of paying the amount of such 
 loss, of repairing or rebuilding the property injured or 
 destroyed. Until he has made his election not to re- 
 build or repair, it cannot be known that any sum of 
 money will ever become due from him under his policy, 
 and he therefore cannot be garni shod. ^•'^^ Where a 
 policy of life insurance has issued, the insurer cannot 
 be garnished during the existence of the life of the as- 
 
 150 W'illinms v. A. & K. R. R. Co., 36 Me. 201, 58 Am. Dec. 742; 
 Mace V. Heald. 3G Me. 136. 
 
 151 Franklin F. Iris. Co. v. West, 8 Watts & S. SoO. 
 
 152 Bucklin v. Towell, GO N. II. 119; McKean v. Turner, 45 N. H. 
 203. 
 
 i5:«Martz V. Detroit Ins. Co.. 28 Mich. 201; Godfrey v. Maoomber. 
 128 Mass. 188; Hurst v. Home etc. I. Co.. 81 Ala. 174: Stone v. 
 Mutual F. I. Co., 74 Md. 570; Oies v. Bechtner, 12 Minn. IJTO; Dowl- 
 ing V. Lancashire I. Co., 89 Wis. 9(3. 
 Vol. 1.— 52
 
 § 164a FERSONAL PROPERTY SUBJECT TO GARNISHMENT. bl8 
 
 sured, because it is not certain when nor whether any 
 sum will ever become due on the policy.*"'** In the case 
 of the insurance of property against loss by fire or 
 other causes, the policy generally prescribes sundry 
 acts to be performed by the assured after the loss and 
 before he becomes entitled to payment therefor, such 
 as giving due notice, making proofs of the amount of 
 the loss, furnishing the certificate of a magistrate that 
 he believes the loss was suffered without any fraud of 
 the assured, et cetera. Until these various conditions 
 have been fulfilled, the liability of the insurer is con- 
 tingent, and he cannot be garnished.*''-' In Kentucky 
 and Texas it is considered that if an insured has a 
 right to perfect his cause of action against an insurer 
 by giving the notice or making the proofs of loss re- 
 quired by the policy, that this is a valuable right sub- 
 ject to garnishment, and that, after the garnishment, 
 the judgment creditors may take the measures neces- 
 sary to complete the cause of action against the in- 
 surer.*''® 
 
 There can be no doubt that if the right of the insured 
 to recover has become perfect, so that nothing further 
 remains to be done to entitle him to maintain an ac- 
 tion, his demand is subject to garnishment,*^^ unless 
 it has by some statute been expressly or impliedly ex- 
 empted from execution, or the fact that the amount 
 has not been adjusted or agreed upon may exclude the 
 
 154 Day V. N. E. L. Ins. Co., Ill Pa. St. 507, 56 Am. Rep. 297. 
 
 155 Gies V. Bechtner, 12 Minn. 279; Katz v. Sorsby, 34 La. Ann. 
 
 588. 
 
 156 Northwestern A. Co. v. Atkins, 3 Bush. 328. 96 Am. Dec. 239; 
 
 Phoenix I. Co. v. Willis, 70 Tex. 12, 8 Am. St. Rep. 566. 
 
 i57nanover F. I. Co. v. Connor, 20 111. App. 297; Chipman v. 
 Carroll, 53 Kan. 163; Anoka L. Co. v. Fidelity etc. Co.. 63 ISIinn. 
 286; Neufelder v. German-American I. Co., 6 Wash. 336, 36 Am. St. 
 Rep. 166.
 
 819 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § lC4a 
 
 cluim from garnisbment, on tln' ground that it is for 
 imlicjuidated damages. Tliough tlie insured has com- 
 plied with all the conditions precedent and the insurer 
 has lost his option to satisfy the obligalion against 
 him otherwise than by the payment of money, and is, 
 therefore, subject to an action for its enforcement, the 
 amount thereof may be, and usually is, unadjusted and 
 uncertain. It has been thought that this uncertainty 
 as to amount rendered the claim one for liquidated 
 <lamages, and hence not subject to garnishment until 
 they were liquidated and made certain.'"''* The right 
 of the assured is founded upon contract, and may be 
 asserted by an action at law. When the obligation of 
 the insurer is to indemnify the insured for a loss sus- 
 tained by the destruction of property; the amount of re- 
 rovery is no more uncertain than if the action were to 
 recover for the same property if sold under an agree- 
 ment to pay its value, and we believe the rule best sus- 
 tained by reason, as well as authority, is that the claim 
 against the assured is when so far perfected that an 
 action at law can be sustained thereon, subject to gar- 
 nishment.^'** 
 
 If the property against the loss or destruction of 
 which insurance was etfected was itself exempt from 
 ^garnishment, the weight of authority favors the propo- 
 sition that, upon its loss or destruction, the claim 
 against the insurer therefor is invested with the ex- 
 empt character which the property itself had, and, 
 
 issKatK V. Sorpby. 34 La. Ann. f»8S; ^IcKren v. Tm-ner, 45 N. H. 
 20?,: Bucklin v. PoweH. 60 N. H. 110. 
 
 119 Knox V. Protection I. Co.. 9 Conn. 4.m 2.=i Am. Dec. 33: TT.an- 
 over F. I. Co. v. Connor. 20 111. App. 207: Crescent I. Co. v. Moore. 
 63 Miss. 419; Ritter v. Boston I. Co.. 28 Mo. App. 140: Cirarci F. I. 
 Co. V. Field. 48 Pa. St. 129; Phoenix I. Co. v. ^Hllis, 70 Tex. 12. 8 
 Am. St. Rep. 560.
 
 § 165 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 820 
 
 hence, that it is not subject to garnishment.*^ If the 
 insurance was against injuries to or death of the as- 
 sured, or if he belonged to a beneficial association 
 which agreed to pay to him or his family a sum speci- 
 fied in a certain contingency, or upon his death, or 
 upon his living to a designated age, there is much pro- 
 priety in the legislature's exempting the claim from 
 execution, and courts have often been pressed to sus- 
 tain a claim of exemption in the absence of any direct 
 statutory provision upon the subject. It is not their 
 province to make or to imply exemptions, and they 
 must deny the claim, unless some statute is referred 
 to adequate for its support.***^ 
 
 § 165. Debts not Due. — The earlier authorities in- 
 clined toward the view that a garnishment could reacli 
 only those debts which had fallen due, and which, 
 therefore, constituted a perfect present cause of action 
 against the garnishee/**^ But it is now a very gen- 
 erally recognized rule of law that a debt existing in 
 favor of the garnishee, not due at the service of the 
 writ, but which is sure to become due at a future 
 period, may be reached both under execution and at- 
 tachment.*^ This rule has no application to future 
 
 160 Ellis V. Pratt City, 111 Ala. 629. HO Am. St. Rop. 76; Reynolil.s 
 V. Haines, 83 la. 342, 32 Am. St. Rep. 311; Chase v. Swayne. 88 Tex. 
 218, 53 Am. St. Rep. 742: ante, § 23."). 
 
 161 Meyer v. Supreme Lodge, 72 Mo. App. 3-50; Bolt v. Kehoe, 30 
 Hun, 610; Commercial T. A. v. Newlvind. 16 N. Y. Supp. 177. 
 
 162 Dalton V. Selly, Cro. Eliz. 184; Childress v. Dickins, 8 Yerii. 
 113; McMinn v. Hall, 2 Tenn. 328. In Rundle v. Scheetz, 2 Miles. 
 330, salary not due was held exempt from attachment, and in Cany 
 V. Day, 2 Miles, 412, a lilie decision was made in reference to an 
 annuity. 
 
 163 Branch Bank v. Poe, 1 Ala. 396; Cottrell v. Varnum, 5 Ala. 
 229; Fulweiler v. Hughes, 17 Pa. St. 440; Dunncgan v. Byers, 17 
 Ark. 492; Glanton v. Griggs, 5 Ga. 424; Peace v. Jones, 3 Murph.
 
 821 PERSONAL PliOPERTY SUBJECT TO GARN'ISH.MENT. § 1G3 
 
 contingent liabilities;*** nor to any case where the 
 liability of the defendant to the garnishee depends 
 upon the performance by the latter of some condition 
 precedent, or upon his full compliance with the terms 
 of some unperformed agreement or contract.*^'* The 
 debt itself must be in existence at the time of the ser- 
 vice of the writ, free from any contingency; and it may 
 80 exist though the time stipulated for its payment be 
 very remote. Hence, if one is under a contract to serve 
 another, and has performed the greater portion of his 
 contract, leaving something yet to be done before he is 
 entitled to any compensation, as there is nothing due 
 to him absolutely, there can be no garnishment.***** If, 
 on tiie other hand, the person performing services is 
 entitled to compensation, free from any contingency, 
 though the time for payment has not arrived, there is 
 an absolute debt, and consequently a proper subject for 
 garnishment. If some services for which one is en- 
 titled to compensation have been performed, and other 
 services for which he will become entitled to compensa- 
 tion on performance remain to be performed, the former 
 are, and the latter are not, proper subjects of garnish- 
 
 250: Steuart v. West. 1 Har. & J. 536; Millor v. Scoville. 3r> 111. App. 
 38.': Phenix I. Co. v. Willis, 70 Tex. 12. 8 Am. St. Rep. 500: Willis 
 V. Heath. 75 Tex. 124. 16 Am. St. Rep. 870: Marble Falls F. Co. v. 
 Spitzler. 7 Tex. Civ. App. 82: Pursell v. rappenhoimer. 11 Ind. 327; 
 Sheriff v. Buckner. 1 Litt. 127: Say ward v. Drew. 6 Me. 203: Wil- 
 lard V. Sheafe. 4 Mass. 235: Walker v. Gibb^:. 2 Dall. 3.11: Fay v. 
 Smith. 25 Vt. 610: Clapp v. Hancock Bank, 1 Alien, 304: Nichols v. 
 Schofield, 2 R. I. 123. 
 
 164 See § 104. 
 
 165 Robinson v. Hall. 3 Met. 301; Daily v. .Tonlnn. 2 Ciish. 300; 
 Wyman v. Ilichborn, Cush. 264; Baltimore & (). R. R. v. Gallahne. 
 14 Cratt. ~j(ui; Baltimore & O. R. R. v. McCullonsh. 12 Gratt. 505; 
 Ross V. McKinny, 2 Rawle. 227; Kettle v. Harvey. 21 Vt. 301; Rus- 
 sell V. Clinsan, 33 Miss. 5.35. 
 
 i«G Webber v. BoRo, 51 Mich. 113; Thomas v. Gibbons, 61 Iowa, 
 50.
 
 § 1(55 FERSONAL PROPERTY SUBJECT TO GARNISHMENT. 822 
 
 ment, though all are provided for in the same con- 
 tract.*"' 
 
 Whether the liability of a lessee for rents to ac- 
 crue is a perfect debt, within the meaning of the 
 statutes respecting garnishment, is a doubtful ques- 
 tion. On the one hand, it is said that the lessor may 
 convey the property to a third person, or the lease may 
 be surrendered, or the lessee may be ousted, and, upon 
 the happening of these or other possible contingencies, 
 may be exonerated from any further liability on his 
 lease, and, therefore, that any attempted garnishment 
 must prove ineffective under the rule inhibiting the 
 garnishment of contingent debts.*"* On the other 
 hand, it has been decided that rent to accrue for future 
 occupation may be garnished, and that the contingency 
 of a suspension or destruction of the lease from some 
 cause is not one of the contingencies relieving the 
 lessee from liability as garnishee.*^^ The court inti- 
 mated that, if any contingency should subsequently 
 occur, under which the lessee ought no longer to be 
 held answerable, ''he must avail himself of it, in such 
 manner as the law will permit"; but what "such man- 
 ner" shall be was not foreshadowed. 
 
 If a contract is entered into with a municipal cor- 
 poration to build a sewer, to be completed on a day 
 named, and to be paid for a certain sum per lineal 
 foot, a garnishment at any time prior to the comple- 
 tion of the work is not permitted, because the con- 
 tract is entire and not apportionable, and prior to its 
 complete performance there is no existing debt.*'^'* 
 So, under a contract to deliver a certain quantity of 
 
 167 B. & M. R. R. Co. V. Thompson, .'^,1 Kan. 180, 47 Am. Rep. 497. 
 
 168 Vogel V. Preston, 42 'SUch. 511. 
 160 P.owell V. Felker, M Vt. .^)29. 
 iToCoburn v. City of Hartford, 38 Conn. 290
 
 8-_'3 PERSONAL PKOPEivTY SUBJECT TO (i AP.NlSHMENT. 3 10; 
 
 l()<;s in a designated boom for an agreed price per 
 thousand feet, there is no debt, and, therefore, no sub- 
 ject for garnishment until the h)gs are (hdivered as 
 agreed. *'^* If a contract of sale is entered into, by 
 the terms of which no credit is to be given, and the 
 delivery and payment are to be concurrent, no debt 
 exists from the jMircliaser to the seller. If, in such a 
 case, "the delivery and payment were to be simultane- 
 ous, and the goo<ls were delivered in the expectation 
 that the price would be immediately paid, the refusal- 
 to make payment would be such a failure on the part 
 of the buyer to perform the contract as to entitle the 
 seller to put an end to it and reclaim the goods." Un- 
 less the seller consents to give credit, or to treat the 
 sale as valid and subsisting, notwithstanding the want 
 of payment, there is no debt due him which can be 
 garnished. ^'^^ 
 
 Although debts not due may be subjected to garnish- 
 ment, the garnishee will not be compelled to make pay- 
 ment of the obligation against him until it has fully 
 matured. The entry of the judgment against him will 
 be delayed till the debt becomes due; ^" or, if such 
 delay be not made in entering the judgment, execution 
 thereon will be stayed, as the justice of the case may 
 require.*'^^ 
 
 § 165 a. Debts Subject to Setoff.— As a judgment 
 creditor cannot, by garnishment, ordinarily acquire 
 any rights which the defendant in execution had not, 
 and must, if he acquires any right to enforce the de- 
 mand garnished, exercise it subject to any defense 
 which might have been made against it had the debt 
 
 iTi Whooler v. Day, 23 Mlnu. 7Ao. 
 
 1T2 PiHil V. Reed, r.2 N. H. 13(5. 
 
 1T3 Wilson V. All)ri.i.'lit. 2 <;. Oroone. 12."i. 
 
 174 Anderson v. "Wanzer, 5 How. (Miss.) 587. 37 Am. Deo. 170.
 
 § 165a PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 824 
 
 remained the property of the defendant in execution, 
 it must follow that a garnishee ma}' assert any setoff 
 or counterclaim which he might, but for the garnish- 
 ment, have asserted against such defendant. Ordi- 
 narily a setoff or counterclaim cannot be asserted by 
 the defendant unless it was due at the commencement 
 of the action, but there are exceptions to this rule 
 which obtain in courts of equity, and they continue to 
 be available, though the debt has been garnished. A 
 bank, in answer to a garnishment, disclosed that it was 
 indebted to the defendant, but that it had certain set- 
 offs or counterclaims against him which were not due, 
 but that he was insolvent, and that it must be with- 
 out remedy if obliged to pay its debt to him without 
 taking into consideration its claim against him, though 
 not yet due. In sustaining the right of the bank to 
 set off its demand against the claim garnished, the 
 court said: "As we understand the law concerning the 
 condition of a garnishee in attachment, he has the 
 same rights in defending himself against that process 
 at the time of its service upon him that he would have 
 had against the debtor in the suit for whose property 
 he is called ujjon to account. And, while it may be 
 true that in a suit brought by Israel against the bank 
 it could in an ordinary action at law only make plea 
 of setoff of so much of Israel's debt to the bank as 
 was then due, it could, by filing a bill in chancery in 
 such case, alleging Israel's insolvency, and that, if it 
 was compelled to pay its own debt to Israel, the debt 
 whicli Israel owed it, but which was not due. would 
 be lost, be relieved by a proper decree in equity; and, 
 as a garnishee is only compelled to be responsible for 
 that which, both in law and equity, ought to have gone 
 to pay the principal defendant in the main suit, he 
 can set up all the defenses in this proceeding which
 
 825 PERSONAL PROPERTY SUBJECT TO GARNISII.MKNT. § 106 
 
 lie would liavo, if sued by his crcMlitor, in cillK.-r ii court 
 of law or a court of equity/'''* 
 
 § 166. Debts in Suit or in Judgment.— At an early 
 
 day it was detcniiined in the slates of Massachu- 
 setts'"" and Now Hampshire '"' that a d<'l>t(»i- could not 
 be oarnished during the pen(len<y of an action against 
 him for the recovery of a debt. This position has been 
 abandoned in both of these states; ^''^ and it seems now 
 to be very generally, and perhaps universally, conceded 
 that the mere pendency of a suit for the collection of 
 a debt Avill not place it beyond the reach of garnish- 
 ment process.^'"*^ But there may arrive certain stages 
 of the suit at which the defendant is in many of the 
 states no longer liable to garnishment. The general 
 rule u])on this subject seems to be this: that as long 
 as the proceedings are in such a condition that the de- 
 fendant, by a plea in abatement or otherwise, can 
 bring before the court the fact that the debt in suit 
 is attached by a creditor of the plaintiff, and can thus 
 shield himself from the liability to make payment both 
 to the plaintiff and to the plaintiff's creditor, so long 
 the defendant may be summoned and held as a gar- 
 
 175 United States v. Vaughau, 3 Binnoy. o94. 5 Am. Doc. 37."); Shat- 
 tuck V. Smith, 10 Vt. 132; Ex parte Stephens. 11 Ves. 24: Drake ou 
 Attachment, §§ 528, 531; Schuler v. Israel, 120 U. S. 50G. 
 
 176 Gridley v. Harraden, 14 Mass. 496. 
 iTTBurnham v. Folsom. 5 N. H. oOG. 
 
 178 Thorndikc v. De Wolf, 6 Tick. 120; Foster v. Dudley, 10 Fost. 
 463. 
 
 i79Ciab1) V. .Tones, 2 Miles. 330: Smith y. Barker, 10 Me. 458: Mc- 
 Carty v. Emleu, 2 Dall. 277; Sweeny v. Allen. 1 Pa. St. 380; Jones 
 V. N. Y. R. R. Co., 1 Grant Cas. 457; Foster v. Jones. 15 Mass. 185; 
 Locke V. Tippets. 7 Mass. 149; Hitt v. Lacy, 3 Ala. KU, 36 Am. Dec. 
 440: ITnfF v. Mills, 7 Yerg. 42; Lieber v. St. Louis etc. Assn., 36 Mo. 
 3S2; McDonald v. Carney. 8 Kan. 20: Thrasher v. Buckinsham. 40 
 ]\Iiss. 67; Foster v. Dudley. 30 N. II. 463; Smith v. Carroll, 17 K. I. 
 125; Penniman v. Smith, 5 Lea, 130.
 
 § 1G6 rERSONAL PROPERTY SUBJECT TO GARNISHMENT. 82ft 
 
 iiishce/'**' But when this stage has been passed, the 
 liability of the debt to garnishment is, in most of the 
 states, terminated. Hence, a debt in snit cannot be 
 attached after a verdict,^*^^ nor after a default,*^' nor 
 after an award made therefor by a referee.**^^ 
 
 It may happen that the suit is pending in one court, 
 and that the writ under which the garnishment is 
 sought to be made has issued from another court. In 
 such a case, there is strong reason for denying the 
 right of garnishment, because its allowance might per- 
 mit one tribunal to interfere with the proceedings of 
 another.^"^ This is particularly the case where the 
 two courts act under and by virtue of entirely distinct 
 authorities. Hence, it has been determined that a 
 debt in suit in one of the federal courts cannot be gar- 
 nished under a writ issuing out of a state court,^^^ nor 
 can a debt in suit in one state be subsequently^ gar- 
 nished in another state.^^** 
 
 isowadsworth v. Clark, 14 Vt. 139; Foster v. Dudley, 10 Fost. 
 463; Thorndike v. De Wolf, 6 Pick. 120; Trombly v. Clark, 13 Vt. 
 118. 
 
 181 Eunson v. Healy, 2 Mass. 32; Thayer v. rrntt, 47 N. H. 470. 
 
 182 Howell V. Freeman, 3 Mass. 121; Kidd v. Shepherd, 4 Mass. 
 238; McCaflfrey v. Moore, 18 Pick. 492. 
 
 183 Holt V. Kirby, 39 Me. 1G4; Strout v. Clements, 22 Me. 292; 
 Caila V. Eljrood, 2 Dowl. & R. 193; Coppell v. Smith, 4 Term Bep. 
 312; McCaffrey v. Moore, 18 Pick. 492. 
 
 li^i Binjrham v. Smith, .5 Ala. 0."1. See this i)rinciple urced against 
 the garnishment of judgments in Young v. Young, 2 Hill (S. C). 
 420, and in P>urrell v. Letson. 2 Spears, 378. In :\Iic-higan, a debt 
 upon which an action has been brought before one justice of the 
 peace cannot be garnished under process issued by another justice. 
 Custer V. White, 49 Mich. 202. 
 
 185 Wallace v. McConnell, 13 Pet. 1.51; Wood v. Lake, 13 Wis. ^4; 
 Greenwood v. Rector, Hemp. 708; Rosenstein v. Tarr, 51 Fed. Rep. 
 368; contra, Knebelkamp v. Fogg, .55 111. App. .503. 
 
 186 Whipple V. Bobbins, 97 Mass. 107; American Bank v. Rollins, 
 99 Mass. 313.
 
 827 PERSONAL PROPERTY SUBJECT TO GAKNISH.MJJTT. § 166 
 
 Tln' J,^•^•nisllnlont of dobts is authorized iipou tlic the- 
 ory that the garnishee owes something to tlie defend- 
 ant, whicli. after the service of gnrnishincin, niny be 
 lawfully withheld from the defendant, and ai)i»n)i)ri- 
 ate<l to the payment of the defendant's creditors. But 
 when the debt has merged into a judgment, the de- 
 fendant has no right to delay its payment; nor lias he 
 any means, aside from payment, of preventing his prop- 
 erty from being taken and sold under execution for 
 the satisfaction of the judgment. Therefore, it has 
 been held, in many of the states, that a debt due by 
 judgment cannot be reached by garnishment,^®'' 
 thongh, in some of them, it must be conceded that the 
 langnage employed in authorizing garnishment was 
 sufficiently comprehensive to include every class of 
 indebtedness. lOn the other hand, statutes have been 
 enacted in some of the states specially forbidding the 
 garnishment of a judgment of a court of record under a 
 writ issued by a justice of the peace. ^^^ In other states 
 the language of the statues is so broad as to embrace 
 debts of every kind and nature; and in these states it 
 has been determined that a judgment debtor may be 
 held as garnishee,'^^^ even if the execution has been 
 
 1S7 PerkUis v. Gray, 2 Mont. 1.5; Despain v. Crow, 14 Or. 404; 
 Black V. Black. 32 N. J. Eq. 75; Burnhani v. Folsom, 5 N. H. oGC>; 
 Sharp V. Clark. 2 Arafjs. 01: Prcscott v. Parker. 4 Mass. 170; Frank- 
 lin V. Ward, 3 Mason, 136; Shinn v. Zinunorman. 3 Zab. 1-50. Tir, Am. 
 Dec. 200; Sir .Tolm Parrotfs Case, Cro. Eliz. <;.*•>; Kerry v. Bower, 
 Cro. Eliz. 18C; Esty v. Flanders. Ifi X. H. 21S: Clodfelter t. Cox. 
 1 Sneed, 330, GO Am. Dec. 157; Trowl>rld,i.M< v. Moans. .5 Ark. 1.35, 
 39 Am. Dec. 3G8; Tnnstall v. Means, .") Ark. 7(io. In Massaclinsetts 
 a jnd.cment may now be reached by crarnishmont. if it remains 
 unpaid for one year after its entry. Sabin v. Coopi>r, 1.5 Gray. .532. 
 
 i^^s Sharpe v. Wharton. So Ala. 225. 
 
 i»9 Jones V. N. Y. & E. R. R. Co., 1 Grant Cas. 4.57: Skipper v. 
 Foster. 29 Ala. 330, 65 Am. Dec. 405; O'Brien v. Liddell. 10 Sniedes 
 & M. 371; Minard v. Lawler, 26 111. 301; Gray v. Henby, 1 Sujedea
 
 § lOG PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 828 
 
 levied upon his property.*'**" His remedy, in siu-li cir- 
 cumstances, would, no doubt, be by an application to 
 the court in which the judgment was rendered, show- 
 ing that it has been attaclied, and asking for a stay 
 of proceedings until the attachment suit can be set- 
 tled. It is contrary to the policy of the legislation in 
 a majority of the states to permit any debtor to retain 
 property of value free from the chiim of his creditors, 
 except to the extent indicated by their exem])tion laws, 
 and it is surely anomalous to hold that a debt which 
 has been reduced to judgment and thereby made cer- 
 tain may be retained by the judgment creditor, and en- 
 forced for his benefit, however pressing and meritori- 
 ous are the demands of his creditors. It is true that 
 there is a possibility that by permitting the garnish- 
 ment of a judgment some conflict might result between 
 the court in which it was rendered and that from which 
 the writ was issued under which the garnishment was 
 made. This conflict is a contingency too remote to merit 
 serious consideration, and it may be altogether avoided 
 by conceding the right to garnishment and requiring 
 the garnishing creditor to assert his remedy under the 
 garnishment by the aid or with the concurrence of the 
 court whose judgment is garnished. There are un- 
 doubtedly courts which still maintain that a judgment 
 of one court cannot be garnished under a writ issued 
 
 & M. 598; Belcher v. Grubb, 4 Harr. (Del.) 461; Halbert v. Stinson, 
 6 Bkifkf. 308; Cxasov v. Watson. 11 Conn. 1(')S; Sweeney v. Allen, 1 
 Pa. St. 380; Fithian v. N. Y. & E. R. R. Co., 31 Ta. St. 114; Ocbiltree 
 V. M. I. & N. Ry., 49 Iowa. I'lO; McBrule v. Fallou. <m Cal. 301; 
 Luton V. Hoehn, 72 111. 81; Keith v. Harris. 9 Kans. 380; Blake v. 
 Adams, 04 N. H. 80; Lsabelle v. Le Blanc (N. II.). 39 Atl. 430; Trem- 
 bly V. Clark. 13 Vt. 118; Jones v. St. Onge, 07 Wis. 520. 
 190 Belcher v. Grubb, 4 Harr. (Del.) 461.
 
 829 PERSONAL PKUrEUTY .SUliJEcT TO GAKNISHMENT. § 107 
 
 from auother. rcrluips tlicso arc in the majority. ^^* 
 AVLcrc, however, the statutes jjurporting to authorize 
 o-aruishment use general terms suflicient to embrace 
 debts evidenced by judgments, we see no reason for 
 denying effect to such statutes or for restricting the 
 -•arnisliment of judgments to writs issued out of the 
 courts by which tliey were rendered.*"- Unseemly 
 conflicts of jurisdiction would not necessarily result 
 from sustaining such garnishment; nor need they re- 
 sult at all. Especially is this true when the two courts 
 rei)resent the same state or sovereignty, and any action 
 (nther may take is subject to the revision of the same 
 appellate tribunal. 
 
 § 167. Claims for Tort or for Unliquidated Damages.— 
 The fact that the person summoned as garnishee is 
 liable to the defendant in an action of tort does not 
 render him chargeable under the garnishment.*^^ If 
 a person obtains possession of goods by the commis- 
 sion of a trespass he cannot be charged as the trus- 
 tee of the person against whom the wrong was com- 
 mitted.**'*^ The rule is the same where the person sum- 
 
 191 ITamill v. Peck, 11 Colo. App. 1; Sievers v. Woodbum S. W. 
 Co.. 4.3 Mich. 275; Noyes v. Fishev, 48 Mich. 273; Perkins v. Guy. 
 2 Mont. 15; Scott v. Rohman, 43 Neb. CIS, 47 Am. St. Rep. 7G7; Shinn 
 V. Zimmorman, 23 N. J. L. 150, 55 Am. Dec. 2G0; American Bank 
 V. Snow, 9 R. I. 11. 98 Am. Dec. 3(U; Youns v. Young, 2 Hill (S. C.i. 
 42G; Henry v. Gold P. M. Co., 15 Fed. Rep. G49. 
 
 i!>^ (Jaser v. Watson, 11 Conn. 108; Beleber v. Grubb, 4 Harr. (Del.) 
 461; Luton v. Hoebn, 72 111. 81; Knebelkamp v. Fo^?. "> ']\. App. 
 563; HaJbert v. Stinson, 6 Blackf. 399; Osburu v. Cloud, 23 la. 104, 
 92 Am. Dec. 413; Blake v. Adams, 64 N. H. 87; Fitbian v. Railroad 
 Co., 31 Pa. St. 114; Jones v. St. Onge. 67 Wis. 520. 
 
 193 Getcbell v. Cbase. 37 N. H. 100; Foster v. Dudley. 10 Fost. 464; 
 Rundlet v. Jordan, 3 Greenl. 48; Ten Broeck v. Sloo. 13 How. Pr. 
 28; 2 Abb. Pr. 234; Davenport v. Ludlow, 4 How. Pr. 337; 3 Code 
 Rep. 66; Hudson v. Plets, 11 Paige, 180; 3 N. Y. Leg. Obs. 120; Hill 
 V. Bowman. 35 Mich. 191; Selheimer v. Elder, 98 Pa. St. 154. 
 
 "* Despatch Line v. Bellamy M. Cu.. 12 N. II. 205.
 
 § 1G7 PERSONAL PROPERTi' SUBJECT TO GARNISHMENT. 830 
 
 moned as a garnishee is liable for a wrongftil con- 
 version *^^ of property, or for a breach of official 
 dutT.*^ "Garnishees are required to answer as to 
 indebtedness and as to assets or property in hand, not 
 as to the torts they may have committed against the 
 defendant in the suit." Hence, there can be no gar- 
 nishment of a liability arising from such false repre- 
 sentations as would sustain an action for deceit,^'*'' nor 
 for personal injuries claimed to have been suffered 
 from the negligence or other wrong of the garnishee.^*** 
 If an officer wrongfully levies upon property, and sells 
 it under execution,- but no payment is made to him 
 pursuant to such sale, he is not liable for money had 
 and received, but either for a wrongful levy, or for 
 negligence in not collecting the purchase price. In 
 either event, there is not such an "indebtedness, right, 
 or credit" as is "liable to be seized or taken under at- 
 tachment." *^® If a railroad corporation, in the con- 
 struction of its road, enters upon and takes certain 
 lands for railway purposes without any agreement 
 with their owner, the claim of tfie latter is "for un- 
 liquidated damages for a tortious act; such a claim has 
 never been held to come within the attachment 
 laws." -«•> 
 
 A person wronged may be in a condition to waive 
 the wrong and to recover in assumpsit. The right to 
 make this waiver belongs only to the injured party. 
 
 195 Paul V. Paul, 10 N. H. 117. 
 
 196 Hemmenway v. Pratt, 23 Vt. 332; Lomerson v. Huffman, 1 
 Dutch. 625. 
 
 197 Bates V. Forsyth, 69 Ga. 365. 
 
 19S St. Joseph M. Co. v. Miller. 69 Wis. 389; Lehmann v. Farwell, 
 95 Wis. 185. 60 Am. St. Rep. 111. 
 
 199 I^omerson v. Huffman, 1 Dutch. 632. 
 
 200 Selhuimer v. Elder, 98 I'a. St. 154.
 
 831 PERSONAL PROPERTY SUBJECT TO GARNISH MEN r. § 1(»7 
 
 T'ntil it has been marie, the wrongdoer must b(^ re- 
 pii'ded as a tort-feasor, and not as a debtor, and can- 
 not be charged as a garnisliee.-^* 
 
 Where a claim is based upon a tort its character is 
 not clinni:;ed by any proceedings ant<Mior to the entry 
 of judgment, so as to become subject (o garnishment. 
 It is, tlierefore, immaterial that an action has been 
 commenced in which the default of the defendant has 
 ])een entered, and the right to recover damages thereby 
 conceded, for "the office of a default is not to change 
 in the least the nature of the demand in suit, but 
 merely to dispense with the necessity of certain 
 proof." ^**^ Nor does the verdict of a jury or the re- 
 port of a referee in an action for tort change the nature 
 of the liability.''*^ It merely ascertains the amount of 
 the damages. Thus, where a city was garnished after 
 a verdict against it in an action for tort, the court 
 said: "The original cause of action did not render the 
 <ity liable as a trustee, because it is a cause of action 
 arising from tort. The verdict on it did not convert 
 it into a debt; no action of debt would lie on it. It 
 could not constitute a debt till judgment should be 
 rendered upon it; and when judgment was rendered 
 upon it, it was too late for the city to plead it, or other- 
 wise bring it to the' notice of the court. The city owed 
 the principal nothing when the trustee writ was 
 served," ^©4 
 
 201 Lewis V. Dubose & Co., 29 Ala. 219. 
 
 202 Holcomb V, Town of Winchester, 52 Conn. 44S. 52 Am. Rep, 
 C.08. 
 
 203 Crouch V. Gridloy. 6 Hill. 250; Kellojrg v. Schuyler. 2 Denlo, 
 73; Ex parte Dearborn, 31 N. B. 3G3; Lohmann v. Farwell, 95 Wis. 
 1S.5, GO Am, St. Rep. Ill; Detroit P. & F. Co. v. Reilly. 46 Mich, 
 4.19. 
 
 204 Thayer v. Southwick, 8 Gray, 229; Detroit Post v. Reilly, 46 
 Mich. 459.
 
 § 107 FEllSONAL niOPERTY SUBJECT TO GARNISHMENT. S32 
 
 It is also well settled that a claim for unliquidated 
 damages, wJiether for torts committed, or for breaches- 
 of contracts, or for any other cause, cannot make the 
 person against whom the claim exists liable as a gar- 
 nishee,"^*'"' Hence, there can be no garnishment of a lia- 
 bility arising out of a bond given to pay the damages 
 which might result from a wrongful attachment.^*^** 
 This rule also applies when a lease is made, and the 
 covenants therein are afterward violated in sundry re- 
 spects, entitling the lessee to damages.^^^'' A garnishee 
 cannot be charged for any sum received by him from 
 the defendant for usurious interest.'®** This is not be- 
 cause the claim rests in tort, or is for unliquidated 
 damages, but rather by reason of the legal principle 
 that the right to recover such interest is a personal 
 privilege, depending for its existence on the election of 
 the party who made the usurious payment. No very 
 precise definition of a liquidated claim can be given; 
 and, if given, different minds may be unable to agree 
 whether a particular state of facts shows a liquidated 
 claim within the meaning of a definition of conceded 
 torrectness. Thus, while a claim for loss against which 
 an insurance company has agreed to indemnify the 
 owner of property destroyed by fire is undoubtedly sub- 
 ject to garnishment as soon as it is adjusted,^**** the 
 
 205 nnsrir v. Booth. 2 Ired. 282; Deavor v. Keith, n Tred. 374; Ran- 
 som V. Hays. .39 :\lo. 44."; Rand v. White Mountains R. R., 40 N. H. 
 79; Warwick v. Chase. 23 ISId. 1.54. 
 
 20G peet V. McDaniel. 27 La. Ann. 4.55. 
 
 20- Eastman v. Thayer. 00 N. H. 575. 
 
 208 Eoardman v. Roe. 13 Mass. 104; Grah.im v. ;^^oorp. 7 B. Mon. 
 53: Barker v. Esty, 19 A't. 131; Fish v. Field, 19 Vt. 141. 
 
 209 Boyle v. Franklin Fire Ins. Co.. 7 Watts & S. 70; Franklin 
 Fire Ins. Co. v. W^est. 8 W'atts & S. 3.10: Gove v. Varrell. 58 N. H. 
 78. Wliile tlie insurance company retains tlie ricrlit to replace or re- 
 build the property destroyed, instead of paying its value, the claim
 
 833 PERSONAL PROPERTY SUBJECT TO GARNISH MHNT. § 167 
 
 courts cannot agree regardin;^ the status of such claim 
 prior to its adjustment. JSenator Mason, in Butts v. 
 Collins, said: "But what are uncertain, unli(j[uidated 
 damages?^*® They are such as rest in oiiiiiion only, 
 and must be ascertained by a jury, their verdict being 
 regulated by the peculiar circumstances of each par- 
 ticular case; they are damages which cannot be ascer- 
 tained by computation or calculation — as, for instance, 
 damages for not using a farm in a workmanlike man- 
 ner; for not building a house in a good and sufficient 
 manner; on warranty in the sale of a horse; for not 
 skillfully amputating a limb; for carelessly upsetting a 
 stage by which a bone is broken; for uuskillfully work- 
 ing raw materials into a fabric; and other cases of like 
 character, where the amount to be settled rests in the 
 discretion, judgment, or opinion of the jury." This 
 definition was quoted and approved in the case of Mc- 
 Kean v. Turner, 43 N. H. 204 — a case in which an insur- 
 ance company was summoned as a trustee. In this 
 case, the court determined that the company could not 
 be held, because the amount of the cJaim against it 
 was "a matter of opinion and judgment, to be deter- 
 mined, not by any fixed pecuniary standard, but by an 
 opinion formed from all the circumstances of the case, 
 including location, state of repairs, the quality of the 
 building, machinery, and fixtures, the prices of such 
 property in the neighborhood, and, generally, all the 
 circumstances which bear on the question of value." ^** 
 But, perhaps, the better opinion is, that a claim against 
 an insurance company for loss occasioned by the de- 
 fer insnrnnce cannot be parnisliod, for It is not due in inonpy. and 
 may never become so due. ifartz v. D. F. & M. Ins. Co., 28 Mich. 
 201. 
 
 21" 1.3 Wond. !."«. 
 
 211 See Moaoham v. McCorbitt. 2 Met. 352. 
 Vol. I.— 53
 
 § 107 PERSONAL PKOPERTY SUBJECT TO GARNISHMENT. 834 
 
 struction of property is no more au uuliqnidated claim 
 than is a debt due for goods sold aud delivered, to be 
 paid for according to their market value.^^^ We con- 
 fess our inability to define what are liquidated dam- 
 ages within the meaning of the decisions we are here 
 considering. In speaking of the unliquidated damages 
 Avhich will support a garnishment it has been said that 
 they must be ascertainable by some certain standard 
 t>r measure furnished by the contract itself.^^^ In an- 
 other it was held that a claim for damages, though for 
 the violation of a contract, could not support a gar- 
 nishment, where the ascertainment of the damages "re- 
 (juired an exercise of judgment, discretion, and opin- 
 ion, and not mere calculation or computation." ^*^* 
 These definitions, if applicable to the law of garnish- 
 ment, must exempt therefrom all indebtedness, the 
 amount of which has not been settled by the parties, 
 unless there is in a contract some standard, express or 
 implied, by which such amount can be ascertained. 
 We have already shown that some of the courts refuse 
 to apply this test to moneys due from an insurer to the 
 assured, though it must be conceded that the amount 
 which the latter is entitled to recover must remain un- 
 certain until fixed by the agreement of the parties, an 
 arbitration, or a judgment of the court. We think the 
 l)etter opinion is, that the fact that the amount due 
 under a contract is not liquidated thereby, or by any 
 standard disclosed by it, does not necessarily exempt 
 it from garnishment, if the court or jury has not a dis- 
 cretion to award more or less, as shall seem fit under 
 the peculiar circumstances of the case; but, on the 
 
 212 Knox V. Protection Ins. Co., 9 Conn. 430. 2.5 Am. Doc. 33; 
 Girard F. & M. Ins. Co. v. Fiold. 4.5 Pa. St. 120: 3 Grant Cns. 329. 
 
 213 Capes V. Burgess, 135 111. 01 ; Hough v. Kuf;ler. 30 ^la. 18G. 
 
 214 Eastman v. Thayer, 60 N. H. .575.
 
 835 1'EHSON'AL I'UOPKUTY SUliJKCT TO OAUNlsHMKNT. § ItiS 
 
 oilier hand, ought to find a standjird in the evidence 
 add need at the trial, and, when so found, to apply it as 
 rigidly as if stated in the eontract. Thus, where a con- 
 tract, express or ini[)lied, is t(» jiay for pi-opcity or ser- 
 vice its market value, or so much as it is reasonably 
 worth, it is true that evidence must first be given upon 
 tliese subjects, and from the same evidence dilTerent 
 courts or juries might reach different conclusions, but 
 whatever the court or jury finds to be the true worth, or 
 market Value, it is the dut}' of the court or jury to ac- 
 cept as a standard by which to make the finding or ver- 
 dict. In such a case, we believe, that the demand, 
 though not liquidated, ought to be held subject to gar- 
 nishment. A liability may be exempt from garnish- 
 ment though not founded in tort, nor for the recovery 
 of damages, if it is unliquidated, and the parties have 
 the right to have it liquidated by a proceeding in chan- 
 cery before either becomes liable at law to the other. 
 Thus, it is a familiar principle of law that while the 
 business of a partnership remains unsettled, neither of 
 the partners can recover of the other in an action at 
 law the balance which he claims would be due him 
 upon such settlement. It follows that tlie creditors of 
 one of the partners have no rights superior to their 
 debtor, and that as he must await an accounting be- 
 fore he can assert any claim by action at law, so must 
 they await such accounting before they can proceed by 
 garnishment.^*^ 
 
 5 168. Debt Due by Negotiable Note. — A garnishee is 
 not, by means of the garnishment, to be placed in a 
 worse situation than before, nor is his contract to be 
 varied or made more perilous. He is not thereby to 
 
 215 Bnrnharn v. Hopkiiisou, 17 \. TI. 2.'0: DriseoU v. Hoyt, 11 Gray, 
 404; Sheedy v. Second Nat. Bank, 02 Mo. 17.
 
 § IGS PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 836 
 
 be made answerable to one person, when he owes an- 
 other. One who has executed a negotiable note can 
 rarely know to whom he may be liable to make pay- 
 ment. When summoned as garnishee, he can only an- 
 swer that he was indebted to the defendant, but that 
 he does not know whether his obligation is now due 
 to the defendant or has been transferred to another. 
 While the present ownership of the note remains un- 
 known, it is obvious that no judgment can be entered 
 against the garnishee without exposing him to "a double 
 accountability: 1. Upon the judgment; and 2. Upon 
 the note, if it shall prove to have been transferred. 
 Hence, it must follow that negotiable paper ought 
 never to be subject to garnishment, except when its 
 present ownership can be shown to be in the defend- 
 ant, and it is overdue; or except where it can, as soon 
 as judgment is given against the garnishee, be depos- 
 ited in court, or with the garnishee, or in some man- 
 ner deprived of its negotiable character.^^** Thus, it 
 was said at an early day in New Hampshire, that "it 
 has always been considered as settled in this state 
 that a trustee who has given a negotiable note to the 
 principal cannot be charged as a trustee on account of 
 such note. The reason of this rule is founded upon- the 
 negotiable quality of the paper. If the trustee could 
 be charged in such a case, then it might happen that 
 either a bona fide purchaser of the note must lose the 
 amount of it, or the maker, without any fault on his 
 part, be compelled to pay it twice. To avoid such a di- 
 lemma, the rule was established.''^*' Rut, since this 
 decision was pronounced, the law of the state has been 
 
 216 Cloiish V. Buck, 6 Neb. 343; King v. Vance. 46 Ind. 24G; Huat 
 V. Ely. 17 Fla. 77.5. 
 117 Stone V. Dean, 5 N. H. 503.
 
 837 PERSONAL PUOl'KRTV SL'liJKLT TO GAKNi.MIMtNT. g 168 
 
 chan«i,('(l by statute, making' n('«;()tiable papt-r subject 
 to j^ai'iiisliinent, au«l protect iuj;- the maker from the 
 claim of any indorsee whose title was acquired subse- 
 quently to the service of the trustee process."^'' lu 
 Vermont it was decided, upon principle, that the maker 
 of a negotiable note could not be beld, unless it could 
 be shown that the note had not been transferred, and 
 that it could be prevented from continuing its negotia- 
 ble character.^*" The legislature then made all nego- 
 tiable paper subject to garnishment, unless notice of 
 its assignment had been givi'u to the maker."** In 
 Pennsylvania, it seems in the first instance to have 
 been decided that negotiable notes could not be 
 reached by garnishment.--^ Subsequently, the courts 
 held that such notes were liable; that the judgment 
 against the garnishee could not prejudice an assignee 
 without notice; and that the garnishee, for his protec- 
 tion, could require the notes to be placed in the cus- 
 tody of the court.--- In South Carolina.---'* Louisi- 
 ana, ^-^ and Texas,^-^ the maker of negotiable notes 
 can be charged as a garnishee only when it can be 
 
 218 Amoslieag I\I. Co. v. Gibbs. 8 Fost. .",10. 
 
 219 Hntf'hins v. Evans, 1.3 Vt. 541; Ilinsdill v. Safford. 11 Yt. .309. 
 
 220 Kimball v. Gay. Ifi Vt. 1.31; Chase v. Haujrhton. 10 Yt. r>M; 
 Barnoy v. Donslas. 10 Yt. 98; Peck v. Walton. 25 Yt. 33; Emerson v. 
 Patrldfre, 27 Yt. 8, 02 Am. Dec. 017; Williams v. Shepherd, 33 Vt. • 
 104; Seward v. Garlin, 33 Yt. 583. 
 
 221 Ludlow r. Binpham, 4 Dall. 47. 
 
 222 KieCfer v. Elder. IS Pa. St. .388; Hill v. Kroft. 29 Pa. St. 180. 
 
 223 Gaffney v. Bradford. 2 Bail. 441; :McBride v. Floyd. 2 Bail. 209. 
 
 224 Sheetz r. Culver. 14 La. 440. 32 Am. Doc. .■'>03; Kimball v. Plant, 
 14 La. 511; Erwin v. C. & R. R. Bank. 3 La. Ann. ISO; Ross v. Savoy, 
 5 La. Ann. 102; Harris v. Bank of Mobile, 5 La. Ann. 538; Denhara 
 V. Pogue, 20 La. Ann. 105. 
 
 225igiehart v. Moore, 21 Tex. 501: Price v. Brady, 21 Tex. 014; 
 Rassett v. Garthwalte. 22 Tex. 2.30. 73 Am. Dec. 257: Kapp v. Teel. 
 a3 Tex. 811; Wybrauts v. Rice. 3 Tex. 458; Thompson v. Gainesville 
 Bank, 06 Tex. 150.
 
 § 168 PEKl>ONAL PltOPERTY SUBJECT TO GARNISHMENT. b** 
 
 shown that they are still in the possession of the de- 
 fendant. In Indiana,--'' Michigaur-' Minnesota,^^* . 
 and Wisconsin, "-^ the rule is in substantial conformity 
 with that adopted in the states last named. In Iowa 
 the statute provides that "the garnishee shall not be 
 made liable on a dpbt due by negotiable or assignable 
 paper, unless such paper is delivered, or the garnishee 
 completely exonerated or indemnified from all liability 
 thereon, after he may have satisfted the judgment.-^'* 
 In California, the' maker of a negotiable note,-^* or of 
 a negotiable certificate of deposit,-^^ cannot be gar- 
 nished before its maturity so as to impair the rights of 
 a subsequent bona fide holder. In Georgia.^'=* Ken- 
 tucky .=^^^ Massachusettsr^i- and Mississippi,--**® Mon- 
 tana,-"'' and Nebraska, 2-'*'^ the maker of negotiable pa- 
 per is protected from the possibility of loss by gar- 
 nishment. 
 
 226 Smith V. Blatchford, 2 Ind. 184, 52 Am. Deo. 504; Junction 
 R. R. Co. V. Cleneay, 13 Ind. 101; Stetson v. Cleneay. 14 Ind. 453; 
 Cadwalader y. Hartley, 17 Ind. 520; Cleneay v. J. R. R. Co., 26 Ind. 
 
 375. 
 
 227 Littlefiold V. Hodge, 6 Mich. 326. 
 
 228 Hubbard v. Williams, 1 Minn. 54, 55 Am. Dec. 66. 
 
 229 Carson v. Allen, 2 Chand. 123; Davis v. Pawlette, 3 Wis. 300, 
 62 Am. Dec. 690; Mason v. Noonau, 7 Wis. 600. 
 
 230 Hughes V. Monty, 24 Iowa, 490; Wilson v. Albright, 2 G. 
 Greene, 125; County Comm'rs v. Fox, 1 Morris, 48; Yocum v. White, 
 
 '36 Iowa, 2S8. 
 
 231 Gregory v. Higgins, 10 Cal. 339. 
 
 232 ilcMillan v. Richards, 9 Cal. 305, 70 Am. Dec. 655. 
 
 233 Burton v. W^yune, 55 Ga. 015; Mius v. West, 38 Ga. 18, explain- 
 ing King V. Carhart, 18 Ga. 650. 
 
 234 Greer v, Powell, 1 Bush. 489. 
 
 235 Eunson v. Healy, 2 Mass. 32; Perry v. Coates, 9 Mass. 537; 
 Wood V. Bodwell, 12 Pick. 268; Maine F. Ins. Co. v. Weeks, 7 Mass. 
 
 438. . 
 
 238 McNeil V. Roache, 49 Miss. 436. 
 
 237 Perkins v. Guy, 2 Mont. 15. 
 
 238 Clough V. Buck, 6 Neb. 343.
 
 WU P]:U.>,ONAL PKOPER'iY feUliJECT TO GAilMMiMENT. 3 l-^a 
 
 In Maryland, the maker of negotiable notes was 
 garnished. They, it clearly appeared, wi-vc transferred 
 before their maturity; but the evidence was conllii i iiig 
 with respect to the question whether such tiaiisfer wns 
 before or after the garnishnient. TIk' garnishee asked 
 for an instruction to the jury, to the elTect that if the 
 transfer was made prior to the maturity of the notes 
 to an indorsee, bona fide, for value, of which transfer 
 the garnishee had no notice, then that the verdict must 
 be in his favor. This instruction was refus<*d, and on 
 account of such refusal the judgment against the gar- 
 nishee was reversed. "The difficulty of subjecting cred- 
 its of that kind to the process of garnishment is to be 
 found, not only in the nature and character of negotia- 
 ble paper, but also in placing the garnishee in a worse 
 condition than he otherwise would be, and subjecting 
 him to the danger of having to pay the same debt twice 
 over; for, if a judgment of condemnation be recovered 
 against him. its payment would not serve as a defense, 
 against a suit upon the note by a bona fide indorsee for 
 value, who received it before maturity without notice 
 of the attachment. The rights of the indorsee could 
 be in no manner affected by the attachment proceed- 
 ing, to which he is not a party, and which as to him 
 is res inter alios. On the other hand, if it could be 
 maintained that in such case the judgment of condem- 
 nation and its payment by the garnishee will protect 
 him against the claim of the indorsee, which would be 
 contrai-y to sound principles, sucli a doctrine would 
 destroy the negotiability of all promissory notes, and 
 interfere injudicioush' with the daily business and 
 transactions of men dealing with commercial pa-
 
 ^ 106 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 610 
 
 p^j.,,239 jjj Ohio, all debts, whether evidenced by 
 negotiable instruments or not, are by statute declared 
 to be subject to garnishment. The construction given 
 to this statute, however, does not impair the negotia- 
 bility of such debts. "No judgment charging the gar- 
 nishee can be rendered in any case of debt not due until 
 after it becomes due, and not then, as to negotiable 
 paper, if it appears that the garnishee is liable to a 
 bona fide holder." The garnishee is entitled to a day in 
 court. The garnishment entitles the judgment cred- 
 itor, upon the maturity of the debt, to bring an action 
 against the garnishee. This action the garnishee may 
 successfully defend by showing that, before its ma- 
 turity, the negotiable debt was transferred to an in- 
 dorsee, bona fide, for value, and without notice of the 
 garnishment;^*" and it is not material whether the 
 garnishee had notice of the transfer or not at the time 
 of garnishment.^*^ The result of the decisions in Con- 
 .necticut and North Carolina is substantially identical 
 with that of the decisions in Ohio; viz., the right of 
 garnishment does not affect the negotiability of the 
 debt, nor impair the rights of a bona fide holder thereof 
 before maturity; and in the last-named state the gar- 
 nishee has the right to insist upon the production and 
 surrender of the note before judgment against him as 
 garnishee, or may require indemnity as in case of a 
 lost note.^*^ 
 
 239 Cruett V. Jenkins, 53 Md. 223, explaining and overruling 
 Steuart v. West, 1 Har. & J. 536, and Somerville v. Brown, 5 Gill, 
 399, and Brown v. Somerville, 8 Md. 444. 
 
 240 Secor v. Witter, 39 Ohio St. 218. 
 
 241 Knisely v. Evans, 34 Ohio St. 158. 
 
 242 Shuler v. Bryson, 65 N. C. 201; Myers v. Beeman, 9 Ired. 110; 
 Orraond v. Moye, 11 Ired. 564; Enos v. Tuttle, 3 Conn. 27; Culver v. 
 Parish, 21 Conn. 408.
 
 841 PERSOX.VL I'ilOrEllTY SUBJECT TO GAIiNLSlIMENT. § 103 
 
 In Alabama, the question lias bocii caivfully coiisid- 
 orcd in a case wlicrein it appeared that the transfer of 
 nep;otiable paper had been made after the <;ariiishiiH'iit 
 of the maker, but before the maturity of the note. The 
 eourt said: "A judgment cannot and ought not to be 
 rendered against a garnishee uidess it'^vill shield him 
 from any demand of the judgment d( btor, or those 
 claiming under him. The judgment cannot protect 
 him against a right and title which is independent of 
 and paramount to that of the judgment debtor— a right 
 and title which the law enables the debtor to confer in 
 pursuance of a well-definM public policy, in opposition 
 to its own maxims, in reference to any and all other 
 species of property. The very nature, import, and ob- 
 ligation of negotiable paper is not to pay to a particu- 
 lar person, but to pay whoever may be its bona fide 
 holder at maturity, and to pay him absolutely and at 
 all events. In its structure and form, and the charac- 
 ter of its obligation, it is essentially distinguishable 
 from a promise to pay a particular person a particular 
 sum, which is so hemmed and circumscribed that it 
 cannot pass without putting to in<iuiry all who touch 
 and deal with it. The principle is therefore well set- 
 tled that, if a garnishment will reach negotiable paper 
 before the rendition of judgment against the garnish- 
 ees, it must be affirmatively shown that the note had 
 become due, and was still the property of the payee or 
 of the holder, as whose i)roperty the garnishment is 
 intended to condemn it.'' -*^ Nor does it seem to be 
 essential that the transfer of negotiable paper be in all 
 respects a complete legal transfer, in the technical 
 sense, to entitle the holder to protection against gar- 
 nishment. M. made his negotiable note in favor of S., 
 
 2" Mayberry v. Morris, G2 Ala. US; Mills v. Stewart. 12 Ala. 90.
 
 § IGS PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 842 
 
 Avbo indorsed it in blanlj, and delivered it to a national 
 bank as collateral security for a loan. While the note- 
 r(niiained in the bank, O. & C. purchased it of S., 
 who gave them an order on the bank therefor. The 
 bank, having been paid the amount of its debt, made 
 no claim to the note, but declined to deliver it, because 
 of a garnishment served prior to the sale of the note 
 to O. & C, but of which they had no notice at the time 
 of such sale. It was insisted that O. & C. were not en- 
 titled to protection as bona fide indorsees or holders 
 of the note, because it had not been delivered to them. 
 The court held that as the note was indorsed in blank,^ 
 and was therefore transferable by delivery, a direction 
 given to the bank to deliver it to the purchasers was 
 sufficient as a constructive delivery.^^^ So, in South 
 Carolina, the depositing of negotiable bills in the mails 
 was adjudged to be a sufficient delivery thereof to give 
 the persons to whom they were mailed precedence over 
 an attachment levied after such mailing but before the 
 notes reached their destination.^'*^ 
 
 A note is not negotiable unless payable in money. 
 Hence the maker of a note payable in bank notes or 
 current bills may be held as a garnishee.^*^ If the 
 maker of negotiable paper is summoned as a garnishee, 
 he must make the defense that the note is transferable, 
 and that he does not know who the owner is, or who 
 he may be, when payment becomes due. If he neglects 
 to avail himself of this defense, and permits judgment 
 
 244 TTowe V, Quid, 28 Gratt. 1. 
 
 245 Mitchell V. Byrne, G Rich. 171; see, also. Lysnirht v. P.ryant, GT 
 Eng. Com. L. 46. 
 
 246riatt V. Sauk Co. Bank. 17 Wis. 222: Ford v. Mitchell. 1.^) Wis. 
 304; Kirkpatrick v. McCullongh, 3 Humph. 171; .30 Am. Dec. 158, 
 Whiteman v. Childress. G Humph. 303; Fry v. Rosseau, 3 McLean, 
 100; Irvine v. Lowry, 14 Pet. 293.
 
 843 PERSONAL PilOI'EiaV SUli-JECT To (iAlLNlSHMENT. § ICi 
 
 to be entered against Lini, lie cannot, on that account, 
 resist an action bronght against liiin by the asslgne<* 
 of the note.''*'^ In Tennessee it was held that a debt 
 due by a negotiable note may be attached.*^"* The 
 practical result of this decision has been obviated by 
 subsequent decisions, declaring that if the garnishee 
 answers that he executed a negotiable note to the de- 
 fendant, but does not know who now holds the note, 
 nor to whom the debt is now owing, no judgment can 
 be entered against him.-''* After this the code was 
 amended so as to provide that a garnishee shall not be 
 liable upon a debt due by negotiable paper, unless it is 
 delivered up, or he is otherwise completely exonerated 
 from liability thereon.""'** In Missouri, debts due by 
 negotiable notes may be attached."''* The garnishee 
 may, however, "protect himself by compelling the at- 
 tachment debtor to produce the note in controversy, 
 or show a sale and transfer, if one has been had." "'" 
 In New Jersey, negotiable debts are subject to gar- 
 nishment, both before and after their maturity. If the 
 debt is claimed by an attaching creditor and by an in- 
 dorsee, bona fide, before maturity, the debtor may com- 
 pel these adverse claimants to interplead, and to de- 
 termine to which he is answerable. Up to the present 
 
 247 Shiilor V. Bryson. C,^^ N. C. 201; Myers v. BcH'iiian, 9 Irod. llC; 
 Orniond v. Moye, 11 Tred. 504. 
 a*"* Huff V. Mills. 7 Yer?. 42. 
 
 249 Turner v. Armstrong, 9 Yerg. 412; Moore v. Greene, 4 Humph. 
 299; Daniel v. Rawlings. 6 Humph. 403. See. also. Yarhoroutrh v. 
 Thompson, 3 Smedes v<c M. 291; Thompson v. Shelby, 3 Smedes & M. 
 29G. 
 
 250 Matlioney v. Hushes. 10 Heisk. 401. 
 
 251 Quarles v. Porter. 12 Mo. 70; Colcord v. Daiirott. IS Mo. 5.'7-. 
 Scott v. Hill. 3 Mo. S8. 22 Am. Dee. 402: St. Louis Ins. Co. v. rolu-n. 
 9 Mo. 421; Dickey v. Fox. 24 Mo. 217; Waldeu v. Valiant, 15 Mo. 
 409: Funkhouser v. How, 24 Mo. 44. 
 
 252 Murphy v. Wilson, 45 Mo. 427.
 
 § IGS PERSONAL PROPERTY SUBJECT TO GARNISHMENT. SH 
 
 time, the courts of that state seem to have been suc- 
 cessful in avoiding the necessity of determining which 
 of these adverse claimants is entitled to preference.^''* 
 The law respecting the garnishment of negotiable pa- 
 per has been thus stated in a recent case by the court of 
 appeals of New York: "It is generally the law in this 
 country, under statutes like those which existed in this 
 state, that a debt evidenced by a negotiable security 
 can be attached, and the following rules may be de- 
 duced from the adjudged cases: While the negotiable 
 security is held by the attachment debtor, it may be 
 attached by the service of an attachment upon the 
 maker, pi!'ovided the negotiable security is past due. 
 If the security be not past due at the time the attach- 
 ment is served, but remains in the hands of the attach- 
 ment debtor until it becomes due, then the attachment 
 is effectual. Where a debt evidenced by a negotiable 
 security is thus attached, the attachment is effectual 
 against everybody except a bona fide taker of the secu- 
 rity after the attachment. The care and purpose of 
 the courts in such cases is to protect the maker of the 
 security against double payment, and, when that can 
 be accomplished, the attachment can be made effective. 
 If the security is not due, there must be proof that it 
 was in the hands of the attachment debtor when the 
 attachment was served, and, in the absence of proof, 
 that will not be presumed; in other words, it must be 
 shown that it was in such a condition as to be liable to 
 attachment. It has generally been understood to be 
 the law in this state that a debt evidenced by a nego- 
 tiable security, whether due or not, so long as it is in 
 the hands of the attachment debtor, can be attached 
 by serving the attachment on the maker of the security. 
 
 253 Briant v. Reed, 14 N. J. Eq. 271.
 
 845 PERSONAL PKOPliRTY SUBJECT TO GARNISHMENT, g 108 
 
 The attachment may be defeated by a subsequent 
 transfer of the security to a bona fide taker for value, 
 ■who is in a position to enforce it against the maker. 
 But before the debt can be enforced against the maker 
 under the attachment, the sheriff must obtain posses- 
 sion of the security, so that upon the trial he can sur- 
 render it to the maker, or he must show that it has 
 already got into the hands of the maker, or that for 
 some other reason it could not be enforced against the 
 maker by any other person." ^^^ In this case it ap- 
 peared that a railroad corporation, having a deposit 
 with the bank, drew it's check therefor payable to the 
 order of R., as its assistant treasurer. The check was 
 certified by the bank to be good, delivered by it to E., 
 and charged against the railroad company. Three 
 days later the bank was garnished under an attach- 
 ment against the company. After being by the bank 
 informed of this garnishment, 11. opened an individual 
 account with the bank, upon which he deposited the 
 check in question, it having remained in his possession, 
 and the property of the railway company. The pro- 
 ceeds of the check were subsequently drawn out of the 
 bank by K., and applied to the payment of other liabil- 
 ities of the railway company. As the bank had reason 
 to believe, at the time it received the deposit in the 
 name of K., that the check deposited was the property 
 of the railway company, it was held to be liable for the 
 amount thereof to the attaching creditor. If money 
 is deposited in a savings bank, and a pass-book issued 
 to the depositor, and such book is transferable by in- 
 dorsement, it is nevertheless not to be regarded as a 
 negotiable instrument for all purposes. . The bank may 
 
 2B4 Bills V. N. p. Bank of N. Y., 09 X. Y. 349; Gibson v. National 
 P. B., 98 N. Y. 87.
 
 ^ 16 J PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 846 
 
 bo garnislied under an execution or attachment against 
 the depositor."^^ 
 
 After the maturity of a negotiable instrument it 
 loses its negotiability, and, if afterward transferred by 
 the payee, the transferee must accept it subject to pre- 
 existing rights and defenses. The indebtedness is, 
 after such maturity, subject to garnishment, and the 
 rights acquired by the garnishment cannot be defeated 
 by a subsequent transfer.^'^** Though the garnishment 
 is not attempted until after the maturity of the note, it 
 is still obviously incumbent on the judgment creditor, 
 before he can become entitled to a judgment against 
 the garnishee, to show that the note, at the time of the 
 garnishment, remained the property of the defendant 
 in the writ. 
 
 § 169. Debts Due from Two or More Persons, or to 
 Two or More Persons. — The debt sought to be subjected 
 to execution may be owing from two or more persons. 
 In that event, all the debtors ought to be summoned 
 as garnishees; for, although the debt is due from them 
 severally, and either of them is liable to an action 
 therefor without joining the others, yet if one be 
 omitted from the garnishment, he may, if he sees 
 proper, pay the debt to the creditor, and thus defeat the 
 garnishment. The plaintiff who undertakes to roach a 
 debt by garnishment or by proceedings supplemental 
 to execution, ought to be entitled to enforce the debt 
 against the person from whom it is owing, in the same 
 
 255 Nichols V. Schofield, 2 R I. 123; Witte v. Vincenot. 43 Cal. 32r). 
 See State v. Judge Co. Ct., 11 Wis. 50, Bed? v. Cole. 16 Wis. 03. and 
 Smith V. Picket, 7 Ga. 104, 50 Am. Dec. 385, for discussion of 
 effect of instruments made nosotiahle by agreement. 
 
 2r.B Somers v. Losoy. 48 Mich. 204: Serviss v. Washtenaw Circuit 
 .Tudge, 110 Mifh. 101; Thompson v. Gainesville Bank, CG Tox. 156.
 
 S47 PEltSONAL PROPERTY SUBJECT TO AUNlSUMENT. g 1C3 
 
 manner and under the same eircumstanees as it could, 
 but for the garnishment, liave been enforced by the 
 original creditor. If tlie d<'bt was due liom two or 
 more persons jointly, the original creditor could en- 
 force it only b}' an action against all tlie debtors; but 
 if it was due from two or more, jointly and severally, 
 then it could be enforced against all or against one, as 
 the creditor might choose to proceed. These princi- 
 ples, though usually apjdied to proceedings by garnish- 
 ment, have not been universally recognized as applica- 
 ble to those proceedings. AVith respect to proceedings 
 against joint debtors, it is very generally conceded 
 that all must be summoned.*^'' Otherwise a judgment 
 might be obtained against the one sued, omitting the 
 others. This the defendant in execution was not enti- 
 tled to, because each of them had a right to insist that, 
 as the liability was joint, the remedy should be pursued 
 against all, and that neither should be subjected to a 
 separate judgment. Hence, a garnishing judgment 
 creditor must pursue all the persons jointly liable to 
 the defendant in execution upon the debt sought to be 
 garnished.^"'** In Massachusetts, the nonjoinder of a co- 
 debtor must be objected to by a plea in abatement; -•'** 
 but this rule seems not to be applied to proceedings by 
 garnishment in most of the other states. It seems to 
 be sufficient for the answer of the garnishee to deny 
 in general terms his indebtedness to the defendant in 
 
 257 Rix V. Elliotf. 1 N. H. 184; Hudson v. Hunt, r, X. n. 538; 
 Jewett V. Bacon. Mass. GO; Atkins v. Presoott. 10 N. TT. 120; Ladd 
 V. Bakor. G Fost. 7G; Pettes v. Spaldinjr. 21 Yt. GG; Xash v. Bropliy, 
 13 Met. 47G; "Wilson v. Allirluht, 2 G. Greene. 12.'; Warner v. Perkin.^. 
 S Ciish. niS; IToskins v. Johnson, 24 Ga. G2."; Ellicott v. Smith, 2 
 Cranch C. C. 543; Falrchild t. Lampson. 37 Yt. 407. 
 
 2=8 Jones V. Langhorne, 19 Colo. 20G; U'Counell v. Ackerman, G2 
 Md. 337; Hirth v. Pfeifle. 42 Mirli. .",1. 
 
 2=9 Hoyt V. Robinson, 10 Gray, 371; Sabiu v. Cooper, 15 Gray, 532.
 
 § 169 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 81S- 
 
 execution. If the plaintiff in execution replies to suck 
 answer, claiming a joint indebtedness from tlie gar- 
 nishee and others to the defendant, no especial plea to 
 such reply need be made, and the garnishee must be 
 released, because his codebtors are not made parties Xo 
 the proceeding with him."***' If the debt is due from 
 a partnership composed of resident and nonresident 
 members, it may be garnished in Massachusetts and 
 Vermont by summoning the resident members,"*'^ ex- 
 cept where it was contracted in a foreign land by a 
 member of the firm there residing, and carrying on busi- 
 ness in behalf of the firm.^**^ This exception was made 
 because it would be impossible for the resident mem- 
 bers to be constantly informed with regard to indebt- 
 edness alleged to have been created by their coiJartners 
 in the foreign country. 
 
 The liability of jjartners, unless modified by statute, 
 is unquestionabh' joint, and not joint and several. 
 The creditors of the partnership have no right to pro- 
 ceed against any of the partners severally by action. 
 Neither have the creditors of a credit or of a partner- 
 ship the right to proceed by garnishment against one 
 only of the partners, as if the debt were his individual 
 debt. Hence, if garnishment be sued out in two dif- 
 ferent actions, one against A and the other against A 
 and B as partners, and the object be to reach a debt 
 due from the firm, the latter garnishment must be 
 awarded precedence over the former, though subse- 
 quently served.^**^ If the garnishment is directed 
 against one person, and he answers that he personally 
 
 2C0 Jones v. Langhorne, 10 Colo. 200. 
 
 261 Parker v. DanforUi. If! :Mass. 299; Peck v. Barnum, 24 Vt. 75.. 
 
 2C2 Kifider V. Pafkavd. 13 Mass. FO. 
 
 263 Hoskins v. Johnson, 24 Ga. 028.
 
 849 PERSONAL PllOrKRIY SUBJECT TO GARNISUMENT. § 16'J 
 
 owes the jiulgment debtor iiothinj^, but admits the lia- 
 bility of himself and anotlier as members of a firm, he 
 is generally entitled to be discharged.-**^ If the gar- 
 nishment is directed against the firm, there may be cir- 
 cumstances which will authorize the court to dispense 
 with the service of ])rocess on some of its members, as 
 where it is impossible so to do because of his being be- 
 yond the jurisdiction of the court. Thus, where gar- 
 nishment was directed to only one member of a firm, 
 the court said: "Had the partner been included in the 
 writ, whether service was on him or not, the firm 
 would have been holden; but the trustee would not 
 have been permitted to disclose till he could have in- 
 formed his partner of the pendency of the trustee pro- 
 cess. If the partner had not paid the claim to the prin- 
 cipal debtor, then lie could not do it after such notice, 
 except in his own wrong, and the trustee might well 
 disclose as to the liability of the firm. Here no claim 
 is made against the firm, and the trustee is in no man- 
 ner liable." ^^^^ 
 
 Wliere a debt is due from two or more, jointly and 
 severally, the creditor may unquestionably sue all of 
 the debtors jointly, or each of them separately. If a 
 creditor of the creditor seeks to levA' upon and enforce 
 the same liability, be ought to be entitled to the like 
 option of treating the debt as either joint or several, 
 and therefore be privileged, in his discretion, to garnish 
 either all or any of those debtors. It has nevertheless 
 been held that he must summon all the debtors.**''* 
 
 2n4 Wollover v. Soulo. 30 Mioh. 481: Hirth v. Pfoiflo. 42 :Mifli. 31; 
 Warner v. Perkins. 8 Cush. .518; Pettes v. Spalding, 21 Vt. 66; 
 Atkins V. Preseott. 10 N. H. 120. 
 
 sp-^ Atkins v. Proscott, 10 N. IT. 123. 
 
 266 Troadwoll v. Brown, 41 N. II. 12; Barker v. Garland, 22 X. H. 
 Vol. I.— 64
 
 S 1G9 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 850 
 
 But the decisions to this effect must, upon principle, be 
 regarded as unsound. A person jointly and severally 
 liable with others may be jointly or severally sued. 
 His obligation is, therefore, not changed, nor in any 
 respect made more onerous, by charging him jointly or 
 severally as a garnishee. Hence, where, by statute, 
 partners could be severally sued on partnership obliga- 
 tions, it was determined that either of them could be 
 garnished for a debt due from the firni.-*^'' Whenever 
 a cause of action of a personal nature accrues to two 
 or more persons, whether as joint tenants, copartners, 
 tenants in common, or partners, it cannot, against the 
 objection of the defendant, be asserted otherwise than 
 by an action in which all the co-owners are joined.-*** 
 In other words, a single demand cannot, without the 
 assent of the person from whom it is owing, be split 
 into a separate demand in favor of each of the obligees. 
 If this cannot be done in favor of the obligees it would 
 seem to be too clear for argument that it cannot be 
 done in favor of a person whose rights are derived 
 solely from one of the obligees. Upon what legal prin- 
 ciple can it be affirmed that the creditor's creditor can, 
 by garnishment, acquire a right or a remedy to which 
 the creditor never was entitled, and which he was in- 
 competent to transfer by any voluntary act? The gar- 
 nishment might well be allowed to subrogate the cred- 
 itor's creditor to all the rights and remedies of the 
 creditor. This would entitle him to take the place of 
 one of the original obligees, and, in connection with 
 the co-obligees, to assert the entire demand against the 
 obligor. But why should the debtor be subjected to 
 
 103. For exception to this rule in this state, see Ladd v. Baker, 6 
 Fost. 76. 
 
 267 Travis v. Tartt, 8 Ala. 574; Speak v. Kinsoy. 17 Tex. 301. 
 
 268 Freeman on Cotenancy and Partition, c. 15.
 
 8oi PEUSONAL rUOl'Lill 1 .SUl'Jl.t i 10 < . AKM.^H.MKNT. § 109 
 
 two recoveries — one bj the creditor whose credit has 
 not been garnished, and the otlier by jiidj^ment in the 
 garnislimeut proceedings? Furthermore, how can the 
 respective moieties of the creditors be ascertained and 
 fixed, in a proceeding to which one of them is not a 
 party? But it must be conceded that, in a majority of 
 the cases in wiiich this question has been involved, it 
 has been determined in opposition to principles which 
 appear to us as axiomatic. Thus in Maine,^^ Massa- 
 chusetts,''^''" and ^Missouri,^'''^ it has been held that a 
 person can be held as garnishee upon an obligation due 
 to the defendant and a person not a party to the suit; 
 that the debt will be severed and judgment given for 
 such part as the defendant w'ould be entitled to receive 
 upon the collection and division of the whole debt. 
 The court of appeals of Indiana has also decided, where 
 lands owned by a husband and wife by the entireties 
 have been sold, and part of the purchase price remained 
 in the hands of their agent, that he may be garnished 
 on account of the husband's interest in such proceeds. 
 In making this decision the court did not, however, 
 consider the question we are here discussing.-'^ ^ The 
 question was presented and necessarily considered in 
 Moore v. Gilmore, IG Wash. 123, 58 Am. St. Kep. 20, 
 and, while it was there affirmed that a debt owine: 
 jointly to the defendant in execution and another is 
 subject to garnishment, this holding was qualified by 
 the condition that the other parties in interest be in 
 some manner brought before the court and their share 
 
 2G9 Whitney v. Monroe. 19 Me. 42, 3G Am. Dec. 733. 
 
 270 Thorndike v. De Wolf. G Pick. 120. It may l>o that this c.aso 
 Is overruled in Hawes v. AValthani. 18 Pick. 4."1, the statement of 
 facts not being sufficiently clear, in the last-named case, to enable 
 us to determine its precise import. 
 
 271 Miller v. Kichardson, 1 Mo. 310. 
 
 «7iaFogelman v. Shively, 4 Ind. App. 197, 51 Am. St. Rep. 213.
 
 § 169 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 852 
 
 in the iudebtednoss ascertained, and, hence, that the 
 judgment should not be for a sum exceeding the judg- 
 ment debtor's interest in the debt. The court consid- 
 ered the provision of section 150 of the Code of Civil 
 Procedure of Washington, declaring that a court may 
 determine every controversy between persons before it 
 when it can be done without prejudice to the rights of 
 others, or by saving their rights, but when a complete 
 determination cannot be had without the presence of 
 other parties, the court shall cause them to be brought 
 in, as permitting and requiring the court, when a gar- 
 nishment is served on a person owing a debt to the de- 
 fendant and another, to bring such other before the 
 court and to adjudge as between him and the defend- 
 ant to what portion of the debt each is entitled, and 
 to render judgment against the garnishee for the sum 
 found to be due as his share of the debt in question. 
 This accomplishes a very desirable result, one protect- 
 ing the interests of all the parties, but which, however, 
 may ultimately subject the garnishee to two recoveries 
 on the same obligation, one in favor of the judgment 
 creditor, and the other in favor of the other creditor, 
 whose interest has not been garnished. Doubtless, a 
 majority of the states have in their codes or other stat- 
 utes provisions substantially similar in purport to that 
 here relied upon. AVe had supposed, hoAvever, that 
 these provisions referred to the controversy between 
 the original parties to the action, and had not consid- 
 ered that they extended to such controversies as might 
 arise after the entry of the final judgment, between 
 the plaintiff and third persons, because of their claims 
 to property which he sought to subject to his execu- 
 tion. If the construction here given this section is 
 correct, it must be possible for the plaintiff, when an
 
 853 PERSONAL Pltol'KKTY SUIiJEL'T TO GAKNISUMEXT. § 169 
 
 iiuswNT is made that property levied upou is exempt 
 from exeeiition, or belouj^s to a stranger to tlie writ, to 
 <'all the < laimants before the court and have it, either 
 snmmarily or in such other manner as may be found 
 to confoi'm to the spirit of the statutes relied upon, 
 determine the controversy arising between them and 
 the plaintiff in the writ. 
 
 In New Hampshire, the rule is clearly in accordance 
 with what we deem the true principle, and i>rotects 
 the garnishee from the splitting of demands against 
 him.^'- The same conclusion has been reached in 
 other states,^'^^ and, hence, the decisions upon the sub- 
 ject are now very evenly divided, though a majority of 
 them affirm that a debt in which the defendant in exe- 
 cution and others are interested cannot be reached un- 
 der a writ against him, unless they also are brought be- 
 fore the court and their interest therein is determined, 
 so that, after a judgment for his share, it cannot be pos- 
 sible for other persons in interest to maintain actions 
 against the garnishee either for the whole demand or 
 for some part in excess of that which had been sup- 
 posed to be due from him to them. 
 
 With respect to debts due to a partnership, the ma- 
 jority of the decisions deny the liability of the gar- 
 nishee, except in an action to which all the partners 
 -are parties defendant.^''* Several of these decisions 
 
 2T2 French v. Rogers. 16 N. H. 177; Hansom v. Davis, 19 N. H. 133. 
 
 2T3 Kennedy v. McClellan. 7P> Mich. ,")9S; Markham v. Gohan. 42 
 Mich. 74: Ford v. Detroit D. Co.. r^O MUh. .^">.S: Brown v. Collins. IS 
 R. I. 243: Fairchild v, Lauipson, 37 Vt. 407: Braiin v. Davis. Mani- 
 toba Rep. 5.34. 
 
 274 Winston v. Ewlnj;:. 1 Ala. 129: .Tohnson v. Kinjr. G Humph. 233; 
 Branch v. Adam, 51 Ga. 113: Towne v. Loach, ;i2 Vt. 747: Fisk v. 
 Herrick, 6 Mass. 271: Mobley v. Lonbat. 7 How. (Miss.) 31S; Uphan 
 V. Naylor. 9 Mass. 490; Smith v. McMicken. 3 La. Ann. 319: Church 
 V. Knox, 2 Coun. 514; Lyndon v. Gorham, 1 Gall. 3G7; Kingsley v.
 
 § lODa FERSONAL PROPERTY SUBJECT TO GARNISHMENT. 854 
 
 do not proceed upon tlie principles for whicli we have 
 here contended, but on the more questionable ground 
 that, until the final adjustment of the partnership busi- 
 ness, it cannot be knoAvn whether the partner, as w^hose 
 creditor the garnishee is summoned, is entitled to any 
 portion of the debt. In Maryland,-'^ Pennsylvania,^''* 
 South Carolina,^'''' and Georgia,-'^ the interest of a 
 partner in a debt due to the firm can be reached by 
 garnishment. 
 
 § 169 a. Debts Due to Some Only of the Judgment 
 Debtors. — One of the consequences of a judgment 
 against two or more persons is that the property of 
 all or either may be levied upon and sold for the pur- 
 pose of satisfying the judgment. Satisfaction need 
 not be sought exclusively out of joint property, nor 
 exclusively out of separate property; but both joint and 
 separate property may doubtless be seized at the same 
 time and sold under the execution. We see no reason 
 w4iy this principle should not extend to proceedings by 
 garnishment, and the creditor be permitted to garnish 
 debts due to all of the debtors, or to any one of them, 
 or to two or more of them, at the same time.^''** In 
 
 Missouri F. Ins. Co., 14 Mo. 467; Biilfmch v. Winchenbach. 3 Allen, 
 161; Williams v. Gage, 49 Miss. 777; Crescent I. Co. v. Bear, 23 Fla. 
 50, 11 Am.. St. Rep. 331; Sheedy v. Second N. B.. 62 Mo. 18, 21 Am. 
 Rep. 407; Pullis v. Fox, 37 Mo. App. 592; Myers v. Smith, 29 Oh. St. 
 120; Gale v. Barnes. 66 N. H. 183; McNeal P. Co. v. luman. 69 Vt. 
 181; Bartlett v. Woodward, 46 Vt. 100; Willard v. Wing, 70 Vt. 123. 
 67 Am. St. Rep. 657; Rich v. Solari, 6 Mackey, 371; Chicago etc. 
 R. R. Co. V. Scott, 174 111. 413. 
 
 275 Wallace v. Patterson, 2 Har. & McH. 4G3. 
 
 276 McCarty v. Emlen, 2 Dall. 277; 2 Yeates. 190. 
 
 277 Schatzill V. Bolton, 2 McGord, 478, 13 Am. Dec. 748; Chatzet 
 V. Bolton, 3 McCord, 33. 
 
 278 Branch v. Adams. 51 Ga. 113; Anderson v. Chenney, 51 Ga, 372, 
 
 279 Thompson v. Taylor,13 Me. 420; Caignett v. Gilband. 2 Yeates
 
 8JJ PERSONAL PUOrERTY SUBJECT TO CARNISHMENT. § lO'J* 
 
 Mi(hij;an, however, the rule is otherwise. In that 
 state, under a juilguient against several, none but those 
 ^\\\^) jointly owe them all can be <];arnishe(l; -^** nor 
 under a judgment against one person ran two or more 
 persons be united in one garnishment, where their lia- 
 bility to him is several.-**^ No other reason is given 
 for these remarkable decisions than "that garnishment 
 proceedings are purely statutory, and cannot be ex- 
 tended by construction." 
 
 In a later case in another state, the further reasons 
 are given that garnishment cannot be sustained except 
 when the defendants in execution could themselves 
 have sustained an action against the garnishee, and 
 that the judgment against him must be for the whole 
 amount of the debt due, whether or not it is in excess 
 of the amount due under the writ by virtue of which the 
 garnishment was made, and that such excess must be 
 paid to the defendants in execution.-^- If these as- 
 sumptions are well founded, then garnishment cannot 
 be sustained where there are two or more defendants 
 in execution, unless the garnishee is indebted to all 
 of them, and though, by an execution against two or 
 more persons, it is proper to levy upon property of 
 either, whether they are partners or not, yet no debtor 
 of either can be garnished unless he owes them all.^** 
 It is true that garnishment is a statutory proceeding, 
 restricted to the debts designated in the statute, and 
 
 3.^; Stone v. Denn. 5 N. H. 502; Parker v. Guillow. 10 N. II. 103; 
 Locket V. Child, 11 Ala. 040. 
 
 280 Ford V. Detroit Dry D. Co., 50 Micb. 358; Farwell v. Cham- 
 bers. 02 Mich. 310. 
 
 281 Ball V. Younsr, 52 Mich. 476. 
 
 2S2 Webster v. Steele, 75 111. 544; Bank of America v. Indiana B. 
 Co., 114 111. 483. 
 283 Siegel V. Schueck, 107 111. 522, 59 Am. St. Pvep. 309.
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 856 
 
 debts aiiparenth' within the statute may be impliedly 
 excliifled by the rules of practice required by the stat- 
 ute, and, from the nature of the debts, inapplicable to 
 them. The object, however, of garnishment is to give 
 the plaintilt' in execution substantially the same rem- 
 edy against the choses in action of his debtor or debtors 
 that he has against tangible property. An execution 
 against several defendants, whether partners or not, is 
 joint and several in its nature. It authorizes a levy 
 upon the property of one or all of the defendants, or 
 of any number less than all. The right acquired by 
 garnishment should therefore be construed to be the 
 right to reach a debt due to the defendants in execu- 
 tion or to any of them.^*^* 
 
 If one of several judgment debtors happens to be in- 
 debted to the others, he cannot be garnished on account 
 of such debt, because he is not a third person, within 
 the meaning of the statutes authoriziug third persons 
 to be garnished. The denial of the right to garnish 
 him might, with equal propriety, be sustained on the 
 ground that such garnishment is a vain act. The only 
 result which could follow from its allowance would 
 be a judgment against such debtor for the amount of 
 the debt due from him to his co-judgment debtors. 
 But the plaintilf has already a judgment against him; 
 and, w^ith like diligence, may make one judgment as 
 efficient as two, because the second judgment would 
 not entitle the judgment creditor to seize any property 
 not equally open to levy under the first. 
 
 § 170. Assignment of the Debt Preceding the Gar- 
 nishment. — Neither the law of garnishment, nor that 
 
 284 Locket V. Cliilfl, 11 Ala. 640; Thompson v. Taylor. 13 ISfe. 420; 
 Stone V. Dean. 5 N. II. 5G2; Parker v. Guillow, 10 N. H. 103; 
 Caignett v. Gilband, 2 Yeates, 35.
 
 «57 PERSONAL I'llOPERTY SUBJliCT TU (;AKNI>HMKNT. § 170 
 
 applk-able to [u-oc('('(linjj;s sui)iil<Mii<iit:iI to cxciuticjii, 
 will be permitted to interfere with lli«* ri-hl of u 
 creditor to assijiii any debt wliich may h<diir to him."^" 
 The general rule with respect to an oxcMUtion or judg- 
 ment lien, or thc^ lien acquired by the b'vy of an exe- 
 cution or attachment, is, tliat such lien attai-hes to the 
 real rather than the apparent interest of tiie defend- 
 ant, and is, therefore, subject to alienations or encum- 
 brances previously made by him, whether known to 
 the judgment creditor, or not. This rule is applicable 
 to proceedings by garnishment. The lien ae<iuired 
 thereby is subordinate to any prior assignment made 
 by the defendant.-^*^ 
 
 A very interesting question, and one but little con- 
 sidered, is, upon whom does the burden of proof rest 
 where the garnishment and the assignment have oc- 
 -curred at about the same time. Probably, the answer 
 ■depends upon the attitude of the party presenting the 
 question. If he is an actor in the proceeding, he must 
 assume the burden of proof and satisfy the court or 
 jury by a preponderance of the evidence. Hence, in 
 Arkansas, where an assignee intervened and proved an 
 assignment made on the day of the garnishment, but 
 offered no evidence to show which was first in point of 
 time, it was held that he had not establishe(l his claim, 
 because the burden of proof was upon him to show that 
 his assignment preceded the garnishment."*'' 
 
 2S5 Cairo & St. L. R. R. v. KillcnbtM-jr. 82 111. 20.". In Sandidse 
 v. Graves. 1 Pat. «&; H. 101. it was lioltl that an assi^ninent of prior 
 date to a sarnisluuent would l)e treated as paramount. th<>u<rh there 
 was no proof of its delivery. 
 
 286 Willing V. Miller, 15 Cal. 38; Dressor v. Meford. 06 111. 3S0: 
 Howe V. Jones, 57 la. 130; Ives v. Addison. 30 Kan. 172; Noble v. 
 Thompson O. Co.. 79 Pa. St. 3.j4. 21 Am. lvei>. (iti; Northani v. Cart- 
 wrisrht. 10 R. I. 19; Cottrell v. Cloud tTinn. Ch. App.i. 42 S. W. G". 
 
 2S7 Bergman v. Sells, 39 Ark. 97.
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 853 
 
 All that the law requires for the complete protec- 
 tion of the assignee is, that the transfer to him shall 
 have been made in good faith, and without any intent 
 to hinder, delay, or defraud creditors,-^*^ and that he 
 shall not be guilty of such laches as result in the 
 debtor's paying the debt, without notice of the assign- 
 ment, either to the original creditor or to the creditor's 
 creditor proceeding by garnishment.-**'-* For, if an as- 
 signment of a chose in action was made for the pur- 
 pose of hindering, delaying, or defrauding the credi- 
 tors of the debtor, it is void as against them, and 
 they may garnish the debtor as before it was made,-'**"" 
 and, though it is valid, it is the duty of the assignee 
 to give such notice to the debtor as will apprise him 
 that another person than the original creditor has be- 
 come entitled to the perforjnance of the obligation, 
 and will enable him to present the transfer as an 
 answer to any claim made by such original creditor or 
 by any creditor or assignee of his. 
 
 The assignee of a nonnegotiable demand, wishing 
 to protect it from garnishment under a writ against 
 his assignor, must give the debtor notice of the as- 
 signment. In the absence of such notice, the debtor 
 must necessarily answer that he owes the original 
 creditor, and judgment must be entered against him 
 for the amount of the debt. After his liability has 
 become thus fixed, owing to the laches of the assignee 
 in not giving notice of the assignment, the latter must, 
 
 288 The assignment must be made in good faith, or it will be dis- 
 regarded. Giddings v. Coleman. 12 N. H. 153; Hooper v. Hills, ?> 
 Pick. 435; Knight v. Gorliam,- 4 Me. 492. 
 
 289 Drake on Attachment, sec. G02; McGuire v. Pitts, 42 la. 535; 
 Tracy v. McCarty, 12 R. I. 108. 
 
 290 Stevens v. Dillman, 86 111. 233: Dosgott v. St. lionis etc. Co.^ 
 19 Mo. 201; Curtis v. Steever, 30 N. J. L. 304.
 
 b5J PEUSONAL rUOL'ElCTY SUHJECT TO GARNISHMENT. ^ 170 
 
 upon priuciples of natural justice, be lield to be es- 
 topped from asserting his assignment.-"' The assign- 
 ment need not be absolute. It may be made for tlie pur- 
 pose of securing a debt due from tlie assignor to the as- 
 signee; and, if so, the garnishment can ea'ect nothing 
 beyond the surplus which may remain after the pay- 
 ment of the debt thus secured.^'*' 
 
 By the common law, the assignment of choses in 
 action was not recognized, though the assignee was 
 generally permitted t,o make the assignment productive 
 by conducting an action in the name of the assignor. 
 But even under the systems of jurisprudence, in which 
 an assignment is not recognized at law, it is enforced 
 against a garnishment.-'^^ In otlier words, whether 
 an assignment is recognized at law or not, a garnish- 
 ment is subordinate to all pre-existing equitable as- 
 signments. It is not essential that the assignment 
 should be perfect at law\ It is sufficient if it is a good 
 equitable assignment; ^**^ and it is a good equitable 
 assignment whenever, by its terms, the person to whom 
 an obligation is due authorizes the payment thereof 
 to another, either for his own use, or for that of some 
 other person, or authorizes anyone to receive or hold 
 moneys and to apply them to any specific purpose other 
 than for the use or benefit of the assignor.^^^ 
 
 201 Walters v. Insurance Co., 1 Iowa, 404, 63 Am. Dec. 451; Mc- 
 Cold V. Beatty, 12 Iowa, 299; "Woodbridge v. rerkins, 3 Day, 364; 
 Dodd V. Brott, 1 Minn. 270. G6 Am. Dec. 541. 
 
 292 Freetown v. Fish, 123 Mass. 355. 
 
 203 Norton v. P. Ins. Co., Ill Mass. 532. 
 
 204 Matlieson v. Rutledge, 12 Rich. 41; Byar v. Criffin. 31 Miss. 
 603; Smith v. Sterritt, 24 Mo. 2G1; Drake on Attachment, c. 31 
 Burrows v. Glover, 106 Mass. 324; Dressor v. McCord. 96 111. 389 
 Insurance Co. of Pennsylvania v. Phoenix Ins. Co., 71 Pa. St. 31 
 Claflin V. Kimball, 52 Vt. 6. 
 
 298 Harrison v. Louisville & N. Tl. Co. (\\n.). 2:1 So. 790; Boardsley 
 T. Beardsley, 23 111. App. 317; Metcalf v. Kincaid. S7 la. 443, 43 Am.
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 860 
 
 "In order to infer an equitable assignment, such facts 
 and circumstances must appear as would not only raise 
 an equity between the assignor and assignee, but show 
 that the parties contemplated an immediate cliange of 
 ownership with respect to the particular fund in ques- 
 tion, not a change of ownership when the fund should 
 be collected or realized, but at the time of the transac- 
 tion relied upon to constitute the assignment." *^ An 
 equitable assignment may be made by parol,""' or by 
 mere agreement between the debtor and creditor that 
 the debt shall be jjaid to some third person.""* 
 
 No doubt, an order made by the creditor, directing 
 the debtor to pay the debt to some third person, is, after 
 its acceptance, a good and sufficient assignment of the 
 amount therein directed to be paid.^"" And, though 
 this has sometimes been doubted,"*^** the majority of 
 the authorities show that its acceptance is not essen- 
 tial to enable such an order to withdraw funds from 
 the reach of the creditors of the drawer."*^^^ As a gen- 
 «'ral rule, it seems to be conceded that an assignment 
 
 St. Rep. 391; Rock Island etc. Co. v. Equitable T. & I. Co.. .54 Kan. 
 124; Dawson v. Iron Range etc. Co.. 97 INIich. ?,^: Merchants & 
 M. N. B. V. Barnes. IS Mont. 335, 5G Am. St. Rep. ,596. 
 
 296 .Tones v. Glover, 93 Ga. 484. 
 
 297 Norton v. P. Ins. Co., Ill Mass. 532; Littlelield v. Smith, 17 Me. 
 327; Porter v. Bullard, 26 Me. 448. 
 
 29S Black V. Paul, 10 Mo. 103, 45 Am. Dec. 3.53. 
 
 299 Dibble v. Gaston, R. M. Charlt. 444; Brazier v. Chappell, 2 
 Brev. 107; Legro v. Staples, 16 Me. 252; I.anikin v. Phillips. 9 Port. 
 98; Iloadloy v. Caywood, 40 Ind. 239; Colt v. Ives. 31 Conn. 25; 
 Adams v. Robinson, 1 Pick. 461; Davis v. Taylor, 4 Mart., N. S., 134. 
 
 300 Sands v. Matthews, 27 Ala. 399; Clodfelter v. Cox. 1 Sueed, 330, 
 00 Am. Dec. 157; Miller v. OBaunon, 4 Lea, 398; Flickey v. Loney, 
 4 Baxt. 169; Ward v. Morrison, 25 Vt. 593; Barron v. Porter, 44 Vt. 
 587. 
 
 301 Merchants & M. N. B. v. Barnes, IS Mont. 335. .56 Am. St. Rep, 
 586; Nesmith v. Drum, 8 Watts & S. 9; United States v. Vaughan, 
 3 Binn. 394; Pellman v. Hart, 1 Pa. St. 263.
 
 861 PERSONAL PllOl'KRTY SiUliJEC'T TO GAIlNI.SHMKNT. § 170 
 
 is operative, even before notice is given to the gar- 
 nisliee; ^**' and that, if lie receives sucli notice, even 
 after the service of the writ upon him, lie not only 
 may, but he must, if he still has an oi)portunity to 
 do so, present the fact of the assignment as a defense 
 to the garnishment proceedings.^"^ 
 
 While there is no doubt that an order or draft for 
 the whole of a debt or fund, whether accepted or not, 
 takes precedence over a subsequent garnishment,^"'* a 
 more dillicult question arises when the order or draft 
 is for a part only of such debt or fund. A party en- 
 titled to a debt has no right to make a partial assign- 
 ment thereof, and such assignment, if attempted, is in- 
 operative until the debtor assents thereto. Hence, it 
 
 302 SchoolfieUl V. Hirsh, 71 Miss. 55, 42 Am. St. Rep. 450; Mer- 
 chants' & M. N. B. V. Barnes, 18 Mont. 335, 5G Am. St. Rep. 586; 
 Wakefield v. Martin, 3 Mass. 558; Smith v. Clarke, 9 Iowa, 241; 
 Walling V. Miller, 15 Cal. 38; McCubbin v. Atchison. 12 Kan. 166; 
 Smith V. Sterritt, 24 Mo. 262; Smith v. Blatchford, 2 Ind. 184. This 
 rule has been denied in several states. Judah v. Judd. 5 Day, 534; 
 Woodbridge v. Perkins, 3 Day, 3G4; Hart v. Forbes, 60 Miss. 745; 
 Robertson v. Baker, 10 Lea, 300. 
 
 803 Smoot V. Eslava, 23 Ala. 650, 58 Am. Dec. 310; Dawson v. 
 Jones. 2 Iloust. 412; Larrabee v. Knight, 09 Me. 310; Casey v. Davis, 
 100 ]\Liss. 124; Tabor v. Van Yranken, 39 Mich. 793; Dodd v. Brott, 
 1 Minn. 270; 66 Am. Dec. 541; Smith v. Ainscow, 11 Neb. 476; 
 Greentrce v. Rosenstock, 61 N. Y. 583; Kimbrough v. Davis, 34 Ala. 
 583; Adams v. Filer, 7 WMs. 306, 73 Am. Dec. 410; Greentree v. 
 Rosenstock, 34 N. Y. Sup. Ct. 505; Crayton v. Clark. 11 Ala. 787; 
 Foster v. White, 9 Port. 221; Roy v. Baucus, 43 Barb. 310; Gibson 
 V. Haggarty. 15 Abb. Pr. 406; Large v. Moore, 17 Iowa. 258; Funk- 
 houser v. IIow, 24 Mo. 44; Leahey v. Dugdale, 41 Mo. 517; Oldham 
 V. Ledbetter, 1 How. (Miss.) 43, 26 Am. Dec. 690; Lyman v. Cart- 
 wright, 3 E. D. Smith, 117; Page v. Thompson, 43 N. II. 373. 
 
 304 Robbins v. Bacon, 3 Grceul. 346; Bank of Commerce v. Bogy, 
 44 Mo. 13. 100 Am. Dec. 247; Brady v. Chadbourno. C;8 Minn. 17; 
 Nimocks v. Woody, 97 N. C. 1, 2 Am. St. Rep. 268; Hemphill v. 
 Yerkos. 132 Pa. St. 545, 19 Am. St. Rep. 6U7; Loe v. Robinson, 15 
 B. I. 309.
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 862 
 
 has been held that such an order or draft, until ac- 
 cepted by the debtor, leaves the entire debt subject to 
 garnishment,'*®* 
 
 Upon this subject, however, the more recent au- 
 thorities establish a very material distinction between 
 a check or order not drawn upon any particular or 
 designated fund and one which, by its terms, is drawn 
 upon such a fund and evinces an intent to assign some 
 part thereof. Orders or checks of the first class are 
 inoperative prior to their acceptance, and, hence, leave 
 the entire fund subject to garnishment as before.^*** 
 A part of the fund may doubtless be reached by gar- 
 nishment, where the claim of the garnishing creditor 
 is less than the whole thereof, and it seems absurd to 
 maintain that a debtor cannot concede to his creditor 
 by a voluntary assignment what the latter might co- 
 erce by attachment or execution. Furthermore, it is 
 now so well established as to be substantially beyond 
 controversy, that an assignment of a part of a specific 
 fund, though not valid or enforceable at law, is good 
 in equity, and there capable of assertion. Such being 
 the case, it must necessarily follow that where an as- 
 signment is made of a part of a specific fund, and 
 which is, hence, enforceable in equity, that the part of 
 the fund so assigned can no longer be subject to gar- 
 nishment as the debt of the assignor.^**'' 
 
 805 Gibson t. Cooke, 20 Pick. 15, 32 Am. Dec. 194; Mandeville v. 
 Welch, 5 Wheat. 277. 
 
 306 Cashman v. Harrison, 90 Cal. 207; Baer v. English. 84 Ga. 403, 
 20 Am. St. Rep. 372; Bullard v. Randall. 1 Gray, 60C>. 61 Am. Dec. 
 4.33; Holbrook v. Payne, 151 Mass. 3S3, 21 Am. St. Rep. 45G; Lewis 
 V. Traders Bank, 30 Minn. 1.34; Commonwealth v. American L. I. 
 Co., 102 Pa. St. 586, 42 Am. St. Rep. 844. 
 
 307 Chamberlin v. Gilman. 10 Colo. 94; Phillipps v. Edsall, 127 111. 
 535; Kingsbury v. Burrill, 151 Mass. 199; ExohnnRo Bank v. McLoon, 
 73 Me. 498; Home v. Steam M. Co., 79 Me. 203; IlaU v. Flanders,
 
 803 PERSONAL PROPERTY .SUBJECT TO GAUNISIIMENT. g 170 
 
 A check or draft upon a bank dilTcrs in principle 
 from an order ordinarily given by a creditor upon his 
 debtor to pay to a third person a part of a demand 
 owing from a debtor in this, that, while as between a 
 creditor and debtor it is not usual for the latter to 
 submit to a partial assignment of his demand, this is 
 precisely the feature distinguishing the relation of a 
 bank and its depositors. The drawing of a check or a 
 draft for an entire deposit is unusual, and a bank, ac- 
 cording to the usual course of business, owes its de- 
 positor the duty of making partial payments from his 
 funds in its hands upon checks drawn by him, or, in 
 other words, of respecting partial assignments of the 
 fund. Nevertheless, the English courts, with unan- 
 imity, and the American, by a majority, affirm that a 
 check drawn by a depositor against his funds on de- 
 posit in the bank does not operate, prior to acceptance, 
 as an equitable assignment of any part of the fund, 
 and, hence, prior to that time, the drawing of the check 
 does not prevent an effective garnishment, and the 
 rights of the garnishee are paramount to those of the 
 checkholder whose check has not been accepted nor 
 presented.^**^ These decisions rest upon the assump- 
 
 83 Me. 242; Brown v. Dunn. 50 N. J. L. Ill; McDauiel v. Maxwell, 
 21 Or. 202. 28 Am. St. Rep. 740; Clark v. CTillespio. 70 Tex. .^.1.3. 
 
 308 Cohen v. Hale. L. R. 3 Q. B. Div. 371; National etc. Bank, v. 
 Miller, 77 Ala. 168. 54 Am. Rep. 50; Colorado N. B. v. Boettcher, 5 
 Colo. 185, 40 Am. Rep. 142; Boettcher v. Colorado N. B., 15 Colo. 16; 
 Harrison v, Wright, 100 Ind. 515, 50 Am. Kep. SOo; First N. B. r. 
 Dubuque etc. Co., 52 la. 378. 35 Am. Rep. 280; Carr v. National Bank. 
 107 Mass. 45. Am. Rep. 6; Oranimel v. Carmer. .55 Mieh. 201. 54 
 Am. Rep. 3G3; Molntyre v. Farmers & M. Bank. 115 Mich. 255: 
 Dickinson v. Coates, 79 Mo. 250, 49 Am. Rep. 228; Coates v. 
 Doran, 83 Mo. 337; Bush v. Foot, .58 Miss. 5. .'".8 Am. Rep. 310; 
 Crcveling v. Bloomsbury N. B.. 4G N. .T. L. 255, 50 Am. Rep. 417; 
 Risley v. Phoenix Bank, 83 N. Y. 318. .38 Am. Rep. 421; O'Connor v. 
 Mechanics' Bank, 124 N. Y. 324; Veets v. Union N. B., 101 N, Y.
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 86* 
 
 tiou, first, that by the drawiug of the check the drawer 
 does not part absolutely with his dominion over the 
 fund drawn against, but may, before the actual pre- 
 sentment or acceptance of the check, countermand his- 
 order by directing the bank not to make payment; and,, 
 second, that the bank owes no duty to the payee of the 
 check, and may refuse to accept it without incurring 
 any liability to such payee, and, hence, that prior to 
 such acceptance, or until payment is made of the check, 
 the relations between the bank and the drawer re- 
 main unchanged. Where these reasons do not exist, 
 the rule to which we have referred must be inappli- 
 cable. The circumstances attending the giving of the 
 check and its receipt by the payee may be such as to 
 show that the drawer does not retain any right to stop 
 its payment, as where it is accepted as payment of the 
 sum for which it is given. If, from an agreement that 
 a check shall be received absolutely as payment, or 
 from any circumstance, it appears that the amount 
 represented by the check has, as between the parties, 
 become the property of the payee, it cannot, we think, 
 any longer be garnished under a writ against the 
 drawer, because, by the garnishment, the judgment 
 creditor cannot acquire any right which his debtor has 
 lost.^**^ Several of the courts in the United States have 
 
 563, 54 Am. Rep. 743; Cincinnati R. R. Co. v. Bank, 54 Ohio St. GO, 
 56 Am. St. Rep. 700; Bank y. Windisch-Mulhauser B. Co., 50 Ohio St. 
 151. 40 Am. St. Rep. 6G0: Saylor v. Bnshonc:. lOO Pa. St. 23. 45 Am. 
 Rep. 353; First N. B. v. Shoemaker, 117 Pa. St. 94, 2 Am. St. Rep. 
 649; Pickle v. Muse, 88 Tenn. 380, 17 Am. St. Rep. 900; Akin v. Jones, 
 93 Tenn. 353, 42 Am. St. Rep. 921; Laclede Bank v. Schnler. 120 
 U. S. 511; Florence M. Co. v. Brown, 124 U. S. 391; Note to Hemphill 
 V. Yerkes, 19 Am. St. Rep. 610. 
 
 309 Barnard v. Graves. 10 Pick. 41; Cusliman v. Libbey, 15 Gray, 
 358: Getchell v. Chase. 124 INLass. 366; Throop G. C. Co. v. Smith, 
 110 N. Y. 83; National Park Bank v. Levy, 17 R. h 746.
 
 SG5 PERSONAL I'ROPEUTY SUBJECT TO OARNISIIMENT. § 170 
 
 coiH-lndcd that a bank upon whioh a check is drawn 
 owes the duty to the payee to make payment thereof, 
 if, when it is presented, it has on hand funds of the 
 drawer sufficient therefor. ^Yhere these decisions pre- 
 vail, it is obvious that the givin*^ of a check against a 
 bank operates as an equitable assignment of so much 
 of the funds of the drawer as are then on deposit in 
 such bank, and, hence, that the rights of the payee 
 of such check cannot be defeated by a subsequent gar- 
 nishment of the drawer, unless the payee, by his inex- 
 cusable laches, permits moneys to be paid by the bank 
 under such garnishment prior to its receiving notice 
 of the check.^*® 
 
 "An assignment of a chose in action need not be by 
 any particular form of words or particular form of in- 
 strument. Any binding appropriation of it to a par- 
 ticular use, by any writing whatever, is an assign- 
 ment, or, what is the same, a transfer of the ownership. 
 And where it appears that a debt due from a trustee 
 to the defendant has been equitably assigned, the court 
 will take cognizance of the assignment, and protect 
 the rights of the assignee. For, as the defendant has 
 parted with his interest in the debt, and can no longer 
 maintain an action for it against the trustee for his 
 own benefit, and, as the plaintiff can acquire no greater 
 interest in the debt than the defendant had at the 
 
 810 Chicago Ins. Oo. v. Stanford, 28 111. 168. SI Am. Dec. 270; 
 Union N. B. v. Oceana County Bank, SO 111. 210, 22 Am. Rep. 1S5; 
 Bank of America v. Indi.nna B. Co., 114 111. 4S3; Metropolitan N. B. v. 
 Jones. 137 111. 634, 31 Am. St. Rep. 403; Lester v. Given. 8 Bush. 
 357; Weinstock v. Bellwood, 12 Bush. 139; Gordon v. Miehler, 34 
 La. Ann. 608; Fonner v. Smith, 31 Neb. 107, 28 Am. St. Rep. 510; 
 Fogarties v. State Bank, 12 Rich. 518, 78 Am. Dec. 468; Simmons 
 H. Co. V. Bank of Greenwood, 41 S. C. 177, 44 Am. St. Rep. 700; 
 t Pease v. Landauer, 03 Wis. 20, 53 Am. Rep. 247. 
 Vou I.— 55
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 86ii 
 
 time of the service of the trustee process, it results 
 that the trustee cannot be charged for that which he 
 has equitably ceased to owe the defendant and owes 
 to another person." ^^^ 
 
 If, after notice of an assignment, the debtor pays the 
 debt, either to the origiutil creditor, or to the creditor's 
 creditor, proceeding by garnishment, such payment 
 constitutes no defense to a subsequent action brought 
 by the assignee.^*^ The fact that the debtor has paid 
 money under a garnishment is no defense to an action 
 brought by the assignee, unless it further appears that 
 such payment was made without notice of the assign- 
 ment,^*^ 
 
 Even if the debtor should plead the assignment 
 as a defense to the garnishment, and such plea, on the 
 trial thereof, should be determined against the debtor, 
 this determination is not binding upon the assignee; 
 and the assignee may, notwithstanding judgment 
 against the debtor and the enforcement thereof, assert 
 his rights as assignee in an action b}" him against the 
 debtor.^** It is, therefore, incumbent upon the gar- 
 nishee, when informed of a claim that the debt has 
 been assigned, to take some measures to bring the as- 
 signee before the court, to the end that he may be a 
 party to, and bound by, any judgment that may be 
 entered therein.^*** The statutes of some of the states 
 
 311 Conway v. Cutting, 51 N. H. 407; Macklin v. Kinealy, 141 Mo. 
 113. 
 
 312 Merchants M. N. B. v. Barnes, 18 Mont 335, 56 Am. St. Rep. 
 58G. 
 
 313 Woodlawn v. Purvis, 108 Cal. 511; Kitzinger v. Beck, 4 Colo. 
 App. 206. 
 
 3i4McKniRht v. Knisely, 25 Ind. 336, 87 Am. Doc. 364; Gates 
 T. Kerby, 13 Mo. 157; Myers v. Beeman, 9 Ired. 116; Ormaud v. 
 Moye, 11 Ired. 564. 
 
 313 Clark V. Coleman, 62 Ala. 243; Stevens v. Dillmnn. SC 111. 2.33; 
 Noble V Thompson O. Co., 79 Pa. St. 309, 21 Am. Pa-p. 06.
 
 807 PEll-ONAL PROPERTY SU1J.JECT TO GAUXISHMKNT. § 170 
 
 contain special pruvisions pt>intinj; out the practice to 
 be pursued in cases of this character. In the absence 
 of special provisions, it imisi hi- iuiplicW, iimlci- all stat- 
 utes authorizing a ju(lj;uient to be entered in the origi- 
 nal action against the garnishee, that he shall have 
 the right to give notice of the proceeding to any person 
 whom he knows claims an interest in the debt by as- 
 signment, and, upon giving such person a full oppor- 
 tunity to present his claim, then that the latter, as well 
 as the garnishee, shall be bound by the judgment 
 against him. 
 
 Generally, it is no objection to an assignment that 
 the debt is not due when assigned, but the debt may 
 be attempted to be assigned before it can be known 
 that it will ever become due. Impecunious debtors 
 find it necessary to anticipate their future earnings and 
 to obtain advances on account thereof. If they should 
 make an assignment for the mere purpose of prevent- 
 ing the proceeds of such earnings from reaching their 
 creditors such assignment would undoubtedly prove 
 abortive, as against such creditors, by virtue of the 
 laws, making void all transfers made with a view of hin- 
 dering, delaying, or defrauding the creditors of the 
 transferrer. If not subject to attack ajid demolition 
 on this latter ground, the next question to arise will 
 be whether the earnings or other moneys to become 
 due had, at the time of their transfer, such an existence 
 in the eye of the law as to be proper subjects of assign- 
 ment. The general rule upon tlie subject of the assign- 
 ment of moneys to become due for personal services is, 
 that if the assignor be at the time employed, or under 
 a valid contract of employment, he may assign the 
 wages to become due him, and that such assignment
 
 § 170 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 8C8 
 
 is paramount to any subsequent garnisliment.^^* It 
 does not appear to be necessary that the contract of 
 employment be for a specific time. It is sufficient to 
 uphold an assignment of wages to be earned, that the 
 assignor is then actually at work under a contract at 
 a fixed price, payable at a certain time, though for no 
 definite term of employment.^*'^ 
 
 Hence, an assignment by one who w^as employed by 
 the day was upheld.^^'^ The fact that a workman is 
 employed by the piece is not material. ^^" So, one who 
 has contracted to construct a building, may assign 
 moneys to become due him on the completion of his 
 contract.^^^ But an assignment of moneys to be 
 earned under a contract not yet secured,^^^ or under 
 such employment as the assignor might thereafter ob- 
 tain,^* or for services to be rendered beyond his pres- 
 ent term of employment or office, when he was then 
 serving under a contract or election for a time speci- 
 fied,^^^ are all void, as being attempted transfers of 
 mere possibilities not coupled with any interest. In 
 Maine, it has been held that in equity an assignment 
 
 816 Lannan v. Smith, 7 Gray, 150; Boylen v. Leonard, 2 Allen, 407; 
 Darling v. Andrews, 9 Allen 106; Webb v. Jewett, 2 Met. 008; White 
 V. Richardson, 12 N. H. 93; Hall v. Buffalo. 1 Keyes, 199; Tiernay v. 
 McGarity, 14 R. I. 231; Johnson v. Pace, 78 111. 143; Augur v. N. Y. 
 B. & P. Co., 39 Conn. 536; Field v. Mayor of N. Y., 6 N. Y. 179, 57 
 Am. Dec. 435, and note; Devlin v. Mayor etc. of N. Y., 50 How. 
 Pr, 1; 63 N. Y. 15; Manly v. Bitzer, 91 Ky. ,506. 34 Am. St. Rep. 242; 
 Stenson v. Oaswell, 71 Me. 510; Merchants & M. N. B. v. Barnes, 18 
 Mont. 335, 56 Am. St. Rep. 586. 
 
 817 Metcalf V, Kincaid. 87 la. 443. 43 Am. St. Rep. 391. 
 
 818 Garland v. Harrington, 51 N. H. 413. 
 
 819 Hartley v. Tapley, 2 Gray, 565; Kane v. Clough, 36 Mich. 436. 
 24 Am. Rep. 590. 
 
 820 ilawley v. Bristol. 39 Conn. 26. 
 
 821 Mulhall V. Quin. 1 Gray, 105. 
 822.7prinyn v. Moffitt, 75 Pa. St. 401. 
 823 Eagan v. Luby, 133 Mass. 543.
 
 869 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § 170 
 
 may bo sustained or rufoiccd, thoui^b the subjr-ct of it 
 had no actual or potential existcnci' when it was made, 
 and, hence, at least between the parlies, that an assign- 
 ment of wages to be earned of a certain employer 
 within a specified time, was enforceable, though there 
 was no valid contract of employment when it was 
 made, but a mere expectation, both on the part of the 
 assignor and the employer, that at a later date the for- 
 mer would be employed by the latter.""*' 
 
 The incumbent of a public ollice may assign his claim 
 for past services. With respect to services to be per- 
 formed, or salary to be earned in future, the rule is 
 probably difl'erent, "it being contrary to the public pol- 
 icy of the law that a stipend to one man for future 
 services should be transferred to another, who could 
 not perform them." "Unquestionably, any salary paid 
 for the performance of a public duty ought not to be 
 perverted to other uses than those for which it is in- 
 tended." ^'^ It must, however, be admitted that these 
 principles have not been universally applied; '^'^ but a 
 further consideration of them is hardly germane to our 
 subject, because salaries due to ])ublic officials, whether 
 assigned or not. are, upon principles of public policy, 
 not subject to execution. When the garnishment and 
 the transfer of a debt occur on the same day, and there 
 is doubt with respect to which was prior in point of 
 time, the burden of proof has been adjudged to rest 
 upon the assignee to establish that his assignment was 
 anterior to the garnishment.^^' In some of the states, 
 
 S24 Edwards v. Peterson. SO Me. 3G7. G Am. St. Rep. 207. 
 
 825 Blllinp.s V. O'Brieu. 14 Abb. Pr., N. S., 247; Arbuckle v. Cow- 
 tan. .3 Bos. & P. 328. 
 
 326 Brackett v. Blake. S Met. 3.3.1. 41 Am. Deo. 442: State Bank v. 
 Hastings, l."» Wis. 7.'>: Thurston v. Fairmau, 9 Huu, oSo; People v. 
 Dayton. rjO How. Pr. 143. 
 
 «27 Bergman v. Sells, 39 Ark. 97.
 
 § 170a PERSONAL PROPERTY SUBJECT TO GARNISHMENT, 870 
 
 a person claiming to be an assignee may be brought 
 before the court in the garnishment proceedings,^® 
 and the question whether the assignment is valid or 
 fraudulent there litigated and determined/'-^ 
 
 § 170 a. Garnishee's Duty to Urge that the Debt or 
 Property is not Subject to the Garnishment.— if the gar- 
 nishee has notice that the property or debt sought to 
 be garnished is for some reason not subject to the writ, 
 it is his duty in his answer or disclosure to state the 
 facts of which he has notice, and thereby prevent the 
 entry of any judgment against himself, for, though the 
 third person who is a claimant of the debt or property 
 has notice of the attempted garnishment, he has not, 
 in the absence of some statute conferring upon him 
 this privilege, any right to appear in opposition to the 
 garnishment, if the garnishee by his answer has, in 
 effect, admitted his liability to garnishment by failing 
 to disclose any adverse claim to the debt or property 
 sought to be garnished.'^^'* If, at any time prior to 
 the entry of judgment against him, the garnishee is 
 notified of an alleged assignment of the debt and of 
 the name of the assignee, the garnishee must, by his 
 original or supplemental answer or disclosure, state 
 the fact of such assignment, and if he fails to do 
 so, the fact that judgment is subsequently entered 
 
 329 Cadwalarler v. Hartloy, 17 Ind. 520; Born v. Staaden. 24 111. 
 320. The assisnoe's right cannot be determined iinless he is made 
 a party. Simpson v. Tippin, 5 Stew. & P. 208. 
 
 329Doj;sett T. St. L. M. F. Ins. Co.. 10 :Mo. 201; Lee v. Tabor, 8 
 Mo. 322; Keep v. Sanderson. 2 Wis. 42. 00 Am. Deo. 404. 12 WHs. 
 352; Prentiss v. Danaher, 20 Wis. 311; Ingleliart v. Moore, 21 Tex. 
 501. 
 
 33oiioynard x. Phillips etc. Co., 97 Ala. 533; Cahoon v. Levy, 4 
 Cal. 243; Boylen v. Young, Allen. ."82; Porter v. West, 64 Miss. 
 548; Wimer v. Pritchartt, 16 Mo. 252.
 
 871 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § ITUa 
 
 against bim and its payment compelled, constitutes no 
 defense to a subsequent action brought against him by 
 the assignee.""'* If, however, the garnishee discloses 
 by his answer an alleged assigiiiuent, it becomes the 
 duty of the court, before entering any judgment 
 against the garnishee, to make the assignee a party to 
 the proceeding for the purpose of ascertaining and de- 
 termining the existence and validity of his claim,'"* 
 If, prior to an attemi)ted garnishment, the same debt 
 or propei'ty has been garnished in some other action, 
 or has otherwise been made the subject of a prior ju- 
 dicial proceeding, it is the duty of the garnishee to so 
 stale in his disclosure, and, failing to do so, he may 
 make himself amenable to the judgments in both pro- 
 ceedings.^^^ If the property or debt is not subject to 
 execution, and the garnishee has notice of this fact, he 
 should, by his disclosure, present the claim of exemp- 
 tion, and, failing to do so, if a judgment is entered 
 against him, it cannot, though subsequently paid by 
 him, protect him against another action by the defend- 
 ant in execution.^^^ 
 
 831 Woodlawn v. Purvis. 109 Ala. ."11; Larjre v. Mooro. 17 La. 2."9: 
 Bnnkor v. Gilniore. 40 Me. SS; Butlor v. Mullen. 100 Mass. 4.j3; 
 Wartlle v. Bimltss. 1.'51 Mass. olS; Byars v. (Jriflin. 01 Miss, no:;",; 
 rorter v. West. CA Miss. 548; Coleman r. Seott, 27 Nob. 77: Green- 
 tree V. Bosenstook, 61 N. Y. ^SS; liana ford v. Hawkins. 18 R. I. 
 432; Seward v. Ileflin. 20 Vt. 144; Marsh v. Davis. 24 Vt. 363. 
 
 332 Edwards v. Levlnshon. SO Ala. 447; Mansfield v. Stevens. 31 
 Minn. 40; Ilanaford v. Hawkins, 18 IL I. 432; Chesapeake etc. R. R. 
 V. Paine. 29 Oratt. .")ti2. 
 
 333 Boyer v. Fleniinj;. ."S Mo. 43S: Rood v. Gace. 4 How. rMiss.'k 
 2.53; Schuernian v. Foster, S2 Wis. 319; Clark v. GOu.OOO ft. of Lum- 
 ber. 65 F»>d. Rep. 236. 
 
 334 Craft V. Louisville etc. Co.. 93 Ala. 22: Emmons v. Southern 
 T. Oo., 80 Ga. 760; Chi^a^o etc. Co. v. Ra.uland. 84 111. 37o; Terre 
 Haute etc. Co. v. Baker. 122 Ind. 4.33; Smith v. Dickson, .=iS Li. 444; 
 Mull V. Jones, 33 Kan. 112; Daniels v. Marr, 73 Mf. 397; Crisp ▼.
 
 S 171 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 872 
 
 § 171. Asserting Garnishment as a Defense.— A gar- 
 nishee may at the same time be pursued both by his 
 creditor and by his creditor's creditor. This question 
 then occurs: In what mauner aud by what means may 
 the garnishee prevent the pursuit by both parties from 
 being successful? or, in other words, how shall he 
 avoid the necessity of the double payment of a siugle 
 debt? ^Manifestly the garnishment may, in some man- 
 ner, be brought to the attention of the court, and 
 when so brought to its attention, must be given some 
 effect, otherwise a garnishment could always be an- 
 nulled by a subsequent action for the garnished debt. 
 That the garnishment does not constitute proper mat- 
 ter for a plea in bar is obvious, for the cause of action 
 yet exists.^*"** If a person is first garnished by his 
 creditor's creditor, and is afterward sued by the cred- 
 itor, there are a number of exceedingly respectable au- 
 thorities which insist that the garnishment may be 
 asserted by a plea in abatement to the suit brought by 
 the creditor.''*^'^ Upon this theory, the cause of action 
 which existed anterior to the garnishment is treated 
 
 Ft Wayne etc. Co., 98 Mich. 648; Fletcher v. Wear. 81 Mo. 524; 
 Mace V. Heath. 34 Neb. 790; Burke v. Hance. 76 Tex. 76. 18 Am. St, 
 Rep. 28; Missouri etc. Co. v. Whipsker, 77 Tex. 14. 19 Am. St. Rep. 
 734; Winterflekl v. Milwaukee etc. Co., 29 Wis. 589; Pierce v. 
 Chicago etc. Co.. 36 Wis. 283. 
 
 835 Clise V, Freeborne, 27 Iowa, 280; Near v. Mitchell, 23 Mich. 
 382; Ladd v. Jacobs, 64 Me. 347; Herlow v. Orman. 3 N. Mex. 471. 
 
 836 Brook V. Smith, 1 Salk. 280; Embree v. Hanna. 5 Johns. 101; 
 Brown v. Somerville, 8 Md. 444; Haselton v. Monroe, 18 N. H. 598; 
 Phila. Sav. Inst. v. Smethurst, 2 Miles, 439; Fitzgerald v. Caldwell, 
 1 Yeates, 274; Irvine v. Lumberman's Bank. 2 Watts & S. 190; 
 Cheongwo v. Jones, 3 Wash. C. C. 359; Wallace v. McConnell. 13 
 Pet. 136; Mattingly v. Boyd, 20 How. 128; Clise v. Freeborne. 27 
 Iowa, 280; Near v. Mitchell, 23 Mich. 382; Grosslight v. Cresup. .5S 
 Mich. .531; Burt v. Reilly, 82 Mich. 251; Mars v. Virginia H. I. Co., 
 17 S. C. 514.
 
 873 PERSONAL PROPERTY SUBJECT TO GARNISHMENT, f 171 
 
 as lliM'oby suspended until the determination of the 
 action in which the garuisliment issued; and any action 
 <*omuienced after such garnishniciil is al^itcd, (h*, in 
 other words, thrown out of court, leaving; the phiintilT 
 no other remedy than to wait until tlic tcriiiinatidu of 
 the suit in which the garnisiiiiicnt was issued, and 
 then to recommence his action. The result of this sus- 
 pension of plaiutifl's cause of action may be very dis- 
 astrous to liim. To illustrate: Let us suppose that A is 
 indebted to B, and that C, in an action against 15. gar- 
 nishes this debt. It may be that B does not owe C, and 
 will ultimately recover judgment against him for 
 costs; or, even when B does owe C, the debt may be 
 satislied out of a levy made on other property, and 
 without enforcing the garnishment. But if, pending 
 this litigation between B and C, B can take no pro- 
 ceedings against A, the latter may in the mean time 
 become insolvent, or perhaps be relieved from liability 
 through the operation of the statute of limitations. 
 This wrong to B can be avoided only by permitting 
 him to commence and maintain his action against A, 
 and to take such X)roceedings therein as will enable 
 him to secure his debt. We therefore yield our assent 
 to those authorities which insist that a preceding gar- 
 nishment never constitutes a sufficieut cause for the 
 abatement of a suit.*'**'^ In states whence these au- 
 thorities proceed, the remedy of the garnishee is either 
 by a motion for the postponement of the suit brought 
 
 S3T Winthrop v. Carlton. 8 itass. 4r.n: rarrnl v. McDonnell. 10 
 Mart. 609: Morton v. Webb, 7 Vt. 123: Spioer v. Spfcer. 2.3 Vt. 078; 
 Jones r. Wood. 30 Vt. 2GS: Crawford v. Sladt^. Ala. 887. 44 Am. 
 Dec. 463; Smith v. Blatchford. 2 Ind. 184. ."2 Am. Dec. .504: Hick^ 
 T. Oloason. 20 Vt. 130: McFnddon v. 0*Donn.-Il. IS Pnl. 160; MrKoon 
 V. McDormott. 22 Pal. 607, S3 Am. Dec. SO; Lyueli v. Ilaitford F. I. 
 Oo.. 17 Fed. Rep. 627.
 
 § 171 PERSONAL PROPERTY SUBJECT TO GARNISHMENT. 874 
 
 against him by his creditor, or by asking that the judg- 
 ment in such suit shall be stayed until he is released 
 from liability arising in consequence of the garnish- 
 ment. If the garnishment is made after, instead of be- 
 fore, the commencement of the suit, it may, in those 
 states where the validity of a garnishment so made is 
 conceded, be brought to the attention of the court, and 
 a stay of proceedings obtained until the release or set- 
 tlement of the proceedings by garnishment.^** In 
 cases where the debtor has no other means of escape 
 from a twofold enforcement of the liability against 
 him, he may procure an injunrtion.**^ The garnish- 
 ment may have resulted in a judgment against the gar- 
 nishee, in which case the effect of such judgment prior 
 to its satisfaction, upon an action brought against him 
 by his original creditor, remains to be considered. In 
 England, such a judgment seems to be regarded as a 
 satisfaction or merger of the original debt, and there- 
 fore as a complete bar to all further action against the 
 garnishee,**** and a like effect has been sometimes con- 
 ceded to it in the United States.**^ But the judgment 
 in garnishment does not in fact produce any satisfac- 
 tion until it has been paid, or property has been levied 
 upon sufficient to produce its payment in whole or in 
 part. The debtor whose demand was garnished is not 
 entitled to any credit for the amount thereof upon the 
 debt due from him to the garnishing creditor, and may, 
 
 338 Blair v. Hilgedick, 45 Minn. 23; Smith v. Carroll, 17 R. I. 125; 
 Lynch v. Hartford F. I. Ck)., 17 Fed. Rep. G27; Harden v. Wheelock, 
 1 Mont. 49; Drew v. Towle, 7 Fost. 412; Wadleigh v. Plllsbury, 14 
 N. H. 373. But see Waldheim v. Bender, 36 How. Pr. 181. 
 
 839 Preston v. Harris, 24 Miss. 247. 
 
 340 McDaniels v. Hughes, 3 East. 367; Savage's Case, 1 Salk. 291. 
 
 841 Matthews v. Houghton, 11 Me. 377; McAllister v. Brooks, 22 
 Me. 80, .38 Am. Dec. 282; Coburn v. Currens, 1 Bush. 242; King v. 
 Vance, 46 Ind. 246.
 
 87.> PERSONAL PROPERTY SUBJECT TO GARNISHMENT. § 17 i 
 
 notwithstanding the garnishment judgment, be com- 
 pelled to pay the whole debt. Therefore, he ought not 
 to be bound absolutely by the garnishment judgment 
 against his debtor; nor should the latter be allowed to 
 plead it in bar unless he has satistied it absolutely or 
 conditionally, either in whole or in part.'***^ The pay- 
 ment by the garnishee of the judgment against tiim 
 necessarily, to the extent thereof, constitutes a bar to 
 any further action against him by his creditor;'***'* pro- 
 vided he has made a complete disclosure of the facts 
 known to him prior to the entry of the judgment 
 acainst him. As .we have already shown, a judgment 
 against a garnishee, though followed by payment, is 
 not available to protect him against an assignee or 
 other person interested, who was not a party to the 
 proceeding, and therefore is not bound by such judg- 
 ment.^^ 
 
 842Meriam v. Rundlett, 13 Pick. 511: Brannon v. Noble, 8 Ga. 
 549; Farmer v. Simpson, 6 Tex. 303; Cook v. Field. 3 Ala. 53, 3G Am. 
 Dec. 43G; Yazoo etc. R. Co. v. Fulton. 71 Miss. 3So. 
 
 843 Allen V. Watt, 79 111. 284; Lancashire I. Co. v. Corbetts, 1G5 
 111. 592, 56 Am. St. Rep. 275. 
 
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