18 Oct. 1840 § 3.

P. L. 2.

payment within

instalment shall become due,(m) it shall be lawful for the plaintiff, his agent or attorney, upon making affidavit thereof, (n) and filing the same in the prothonotary's office, to issue a writ of venditioni exponas for the sale of said real estate, as On failure to make fully and with like effect, as though a condemnation thereof had taken place.(0) thirty days, vend. 94. On the return by the sheriff of the notices and proceedings prescribed by exp. to issue. the 2d and 3d sections of this act, it shall be lawful for the court out of which Ibid. § 4. the fieri facias issued, on the application of any creditor, to make an order direct- Court to make ing the manner in which the money arising from such half-yearly instalments order distributing shall be distributed among the different lien-creditors, according to the priority of payments their liens, in the same manner and with like effect as in the case of distribution creditors. of money arising from sheriffs' sales; and it shall be the duty of the defendant or To whom such payperson in possession of said estate, to pay said instalments to the plaintiff or party ment to be made. entitled to receive the same under such decree, or to his or their agent or attorney, or to the sheriff of the proper county, where such plaintiff or person, his or their agent or attorney, reside out of said county.(p)

the
among the lien-

P. L. 313.

where defendant

95. In all cases of an inquisition and extent of real estate, and the acceptance 26 April 1855 § 1. of the same by the defendant or defendants, or other person or persons claiming under him or them, as provided for in the 2d and 3d sections of the act of the second extent not 13th of October, Anno Domini 1840, entitled "An act relating to orphans' courts, to be allowed, and for other purposes," said act shall be construed not to permit any second or accepts. other inquisition and extent, pending the first, upon any writ issued upon any judgment entered in the court of the proper county, at the date of such inquisition;(q) but any plaintiff in a judgment, or other person claiming to have a lien Proceedings in upon said real estate, may proceed to collect the same in the manner provided in such cases. the 4th section of said act, in the proper court of the city or county in which such real estate is located.(r)

XI. Of the writ of venditioni exponas.

96. If the inquest shall find that the clear profits of any real estate levied as 16 June 1836 § 61. aforesaid, will not be sufficient to satisfy, within seven years, the debt or damages

P. L. 772.

in such execution, and the same shall be approved of by the court, (s) the plaintiff When vend. exp. in such writ, may have a writ of venditioni exponas, to sell such real estate, for and may issue. towards the satisfaction of his judgment.

97. But before any sale of real estate shall be made as aforesaid, the officer shall Ibid. § 62. cause so many written or printed handbills to be made, upon parchment or good How notice of sale paper, as the debtor or defendant shall reasonably request, or so many, without to be given. such request, as may be sufficient to give notice of such sale, and of the day and hour when, and the place where, the same will be, and what lands or tenements are to be sold, and the place where they lie, which notice shall be given to the defendant; and one of the said papers or parchments shall be fixed by the sheriff, or other officer, upon the premises, and the others of them in the most public places of the county or city, at least ten days before such sale.(t)

P. L. 352.

98. In cases of levy by the sheriff, upon unseated lands belonging to defendants 14 April 1840 § 8. who do not reside in the county where said land lies, it shall not be necessary for the sheriff to fix the notice or advertisement of the day and hour of sale, upon In case of unseated the premises levied on, nor give said defendant a copy of said notice; but it shall lands. be sufficient notice, if the other requisites of the 62d section of the act of 16th June 1836, entitled "An act relating to executions," are complied with.

(m) The defendant is not in default, until six months from the day of filing his acceptance of the premises extended; nor liable to a vend. exp., until thirty days thereafter, and until an affidavit of the non-payment of the semi-annual rental has been filed of record. Black v. Aber, 2 Gr. 206. See Myers v. Harris, 3 Luz. L. Obs. 294.

(n) Where real estate has been extended, and retained by the defendant, if he make default in the payment of rent for more than six months and thirty days, the plaintiff's right to a vend. exp. is complete, and cannot be defeated by a tender of the rent, even before affidavit filed. Diven v. Windowmaker, 3 Leg. Gaz. 6. A failure to make payment within the time prescribed, gives a right to the vend. exp., of which the plaintiff cannot be deprived by the act of the prior lien-creditor, to whom the payment is to be made. Ritter v. Lesher, 3 Luz. L. Obs. 394. But the fact of notice of the plaintiff's election must appear upon the face of the sheriff's return. Hanzen v. Kummer, 6 Luz. L. Reg. 169.

(0) A failure to take a vend. exp. against a defaulting tenant by elegit, is no satisfaction of the debt, or postponement of other remedies. Slater's Appeal, 28 P. S. 171. But another creditor cannot have a vend. exp. without a previous fi. fa. Temple v. Miller, 1

Luz. L. Reg. 717. But see Rutherford v. Boyer, 2
Pears. 237.

(p) Where a second extent is made on a defendant's real estate, the moneys arising therefrom are to be applied to the judgments in their regular order, as in case of a sheriff's sale. Crandall's Estate, 1 Luz. L. Obs. 75.

(q) Notice must be given to all the lien-creditors of the time and place of holding the inquisition, in order to make the extent binding on them. Smuller v. Willson, 3 Luz. L. Obs. 133. This clause does not prohibit the issuing of other executions against personal property by other judgment-creditors. Oaks v. Gallagher, 1 Luz. L. Reg. 544. Fuller v. Sheridan, 2 Ibid. 207. Hageman v. Salisbury, 74 P. S. 280. Nor does it extend to mechanics' liens. Schmidt v. Stetler, 2 Luz. L. Reg. 192. See Curtis v. Cook, 34 P. S. 244. (r) Supra 94.

(8) See Crawford v. Boyer, 14 P. S. 380-4. Buchler v. Rogers, 68 Ibid. 9.

(t) If the sheriff has omitted to fix one of the handbills on the premises, ten clear days before the day of sale, it will be set aside. Rinehart v. Tiernan, 1 T. & H. Pr. § 1249. Slips from the sheriff's advertisements, cut from the newspapers, are not handbills. Lane v. Gray, Ibid. § 1249. Clark v. Chambers, 1 Pitts. 222.

27 March 1824 § 1.
P. L. 119.

Notice of sale.

Ibid. § 2.
Penalty.

16 June 1836 § 63.
P. L. 772.

notice of sale.

99. From and after the first day of August next in all cases where the sheriff or other proper officer has taken or shall take in execution any lands, tenements or hereditaments, in pursuance of the act to which this is a supplement, he shall advertise the same, with a proper description thereof, once a week for three successive weeks, in two or more newspapers printed in the proper county where the said lands, tenements or hereditaments shall have been seized and levied upon; one of which shall be in the German language, if any there be and provided there is but one newspaper printed in the proper county, then he shall advertise in such paper, and in case there is no newspaper printed in such county, then in a newspaper printed nearest thereto; and this publication shall be made in addition to that already required by law: Provided, The provisions of this act shall not extend to the city and county of Philadelphia.(u)

100. If any sheriff or coroner shall refuse or neglect to comply with the requisitions contained in the foregoing section, shall forfeit to the person aggrieved, the sum of fifty dollars for every offence, to be sued for and recovered as debts of a like amount are by law recoverable.

101. The officer shall also give notice of every such sale, by advertisement, describing the real estate to be sold, and the time and place of sale, as aforesaid, in Sheriff to advertise at least two newspapers, (v) one in the English, and the other (except in the city and county of Philadelphia), (w) in the German language, if such there are printed in the county where such real estate may be, or if there be no newspaper printed in such county, then in the newspaper printed nearest thereto, once a week, during three successive weeks, (x) previous to such sale; under penalty of fifty dollars to the party aggrieved by any such neglect, to be recovered as debts of like amount are recovered: Provided, That nothing herein shall debar any party aggrieved from recovering the damages which he may actually sustain by reason of such neglect. (y)

Penalty for neg

See amendment

2 July 1895, P. L. 421, Supp. 2573.

22 April 1846 § 2.
P. L. 476.

In what news-
papers.

16 April 1845 § 2.
P. L. 538.

16 June 1836 § 64.
P. L. 772.

Return, when

property cannot be
sold.

Ibid. § 66.

102. It shall not be lawful for the sheriffs and coroners of the several counties of this commonwealth to publish the sales of real estate, as required by the 63d section of the act of the 16th of June, A. D. 1836, in any two newspapers published in any one office, or in any two newspapers published by any one man, or any one company of men.(z)

103. All sales of real estate by sheriffs and coroners shall be made on or before the return-day of the writs respectively, or within six days thereafter.(a)

104. In case the said real estate so to be exposed, cannot be sold, then the officer shall make return upon his writ, that he exposed such real estate to sale, and the same remained in his hands unsold, for want of buyers; and such return shall not make the officer liable to answer the debt or damages mentioned in such writ. 105. All real estate which shall be sold or delivered as aforesaid, by any sheriff, or other officer, with the appurtenances, shall be quietly and peaceably held and

(u) This act is still in force: the sale must be advertised once a week for three full weeks. Good v. Maule, 8 C. C. 624. The act 18 April 1861, P. L. 405, providing for publication of sales in Luzerne county, was repealed by the act 31 May 1893, P. L. 187, so far as it requires publication in newspapers at the county seat. The act of 1705, § 4, 1 Sm. 59 (see tit. "Deeds and Mortgages"), providing for special notices of sales under writs of levari facias sur mortgage, is still in force. Gibbons v. Williams, 10 C. C. 299.

(v) Where a notice is required to be published in two newspapers, English newspapers are presumed to be intended. An advertising sheet is not a newspaper. Tyler v. Bowen, 1 Pitts. 225. Kratz's Appeal, 21 L. I. 4. Upper Hanover Road, 44 P. S. 277. Grove's Estate, 2 Wood. 182.

(w) By act 3 February 1860, the sheriff of Philadelphia is to publish his advertisements, or an abstract of them, in a German paper; the costs not to exceed one dollar in each case; and the sheriff not to be responsible for errors in translation. P. L. 29.

(2) There need not be three weeks between the first advertisement and the day of sale; it is sufficient, that the sale is advertised once in each week, of three weeks preceding the day of sale. Williams v. Moore, 1 T. & H. Pr. § 1250 (Pearson v. Bradley, 44 Ill. 250); overruling Francis v. Norris, 2 M. 150.

And see

Wood v. Moorhouse, 45 N. Y. 369. The practice is
otherwise in the common pleas of Philadelphia and in
Allegheny county. Wallace's Estate, 2 Pitts. 145.
Building Association v. Thompson, 13 Phila. 511.
Frans v. Sidwell, 9 L. Bar 113. Smith v. Tinicum
Fishing Co., 1 Del. Co. R. 127. And this is sustained
by the decision of the supreme court of the United
States in Early v. Homans, 16 How. 610; and by that
of our supreme court in North Whitehall Township,
47 P. S. 156. See act 18 April 1853, § 9, as to Union
county, P. L. 520; act 18 April 1861, as to Luzerne
county, P. L. 404; and act 1 April 1863, as to Susque-

hanna county, P. L. 198. And see Arnold v. Joslin, 2 Luz. L. Obs. 66.

(y) A sheriff cannot alter the conditions of sale prescribed by law, so as to continue a lien which would otherwise be discharged. Aulenbaugh v. Umbehauer, 8 W. 48; s. c. 3 W. & S. 259. Mode's Appeal, 6 Ibid. 280. Randolph's Appeal, 5 P. S. 242. Loomis's Appeal, 22 Ibid. 312. Except with the assent of all parties in interest. Muse v. Letterman, 13 S. & R. 167. Stackpole v. Glassford, 16 Ibid. 163. Barnet v. Washebaugh, Ibid. 410. Hellman v. Hellman, 4 R. 440. Loomis's Appeal, 22 P. S. 312. Zeigler's Appeal, 35 Ibid. 173. Schall's Appeal, 40 Ibid. 170. Nor with such assent, so as to affect subsequent purchasers. Mode's Appeal, 6 W. & S. 280. And see Crooks v. Douglass, 56 P. S. 51, and Ashmead v. McCarthur, 67 Ibid. 326, as to what will estop a purchaser from denying that he bought subject to an incumbrance which would otherwise have been discharged.

(z) By act 3 April 1852, § 13, this section shall not be construed to apply to newspapers published in the county of Carbon, P. L. 245; nor to the county of Dauphin, by act 19 April 1864, P. L. 494; nor to the county of Montgomery, by act 27 April 1864, P. L. 643. By act 3 February 1860, the prices to be charged by the sheriff of Philadelphia for advertising sales of real estate, shall not exceed the usual rates of advertising other matter in the same newspapers. P. L. 29.

(a) A sale on the return-day is valid. St. Bartholomew's Church v. Wood, 61 P. S. 96. See Kelly v. Creen, 53 Ibid. 302; and Ryan v. Casey, 3 Luz. L. Obs. 158, as to the practice under the act of 1836. At the sale, it is the duty of the sheriff to announce the names of the parties as whose property the land is to be sold, as well as to read the description. Garrett v. Shaw, Dist. Court, Phila. June 1830. MS. But he is not required to give notice of incumbrances. Erb's Estate, 2 Pears. 160.

enjoyed by the person to whom the same shall be sold or delivered, and by the 16 June 1836 § 66. heirs, successors or assigns of such person, as fully and amply, and for such estate and estates, (b) and under the same rents and services, as he or they for whose debt Purchasers to take or duty the same shall be sold or delivered, might, could or ought to do, at or the same estate in the premises as the before the taking thereof in execution. (c) defendant had.

106. All and every person or persons, to whom any part or purparts of lands, 1705 § 1. 1 Sm. 32. tenements and hereditaments have as aforesaid been, or hereafter shall be, sold or delivered upon executions, shall hold and enjoy their said respective parts, purparts alty, or as tenants of allotments, in severalty, or as tenants in common, and not as joint-tenants.

107. Provided also, That if any of the said judgments, which do or shall war- 1705 § 9. 1 Sm. 61. rant the awarding of the said writs of execution, whereupon any lands, tenements Reversal of judgor hereditaments have been, or shall be sold, shall at any time hereafter be reversed ment not to affect for any error or errors, then and in every such case, none of the said lands, tene- title of purchaser. ments or hereditaments, so as aforesaid taken or sold, or to be taken or sold, upon executions, nor any part thereof, shall be restored, nor the sheriff's sale or delivery thereof avoided; but restitution in such cases only of the money or price for which such lands were or shall be sold. (d)

XII. Of executions against life-estates.

108. Whenever an estate for life, in any improved lands or tenements yielding 13 Oct. 1540 § 6. rents, issues or profits, shall hereafter be taken in execution, (e) the court shall, upon the application (g) of a lien-creditor, award a writ to sequester the rents, When sequestrator issues and profits(h) of such estate, and appoint a sequestrator to carry the same to be appointed. into effect.

109. The sequestrator so appointed shall have power, according to the direction of the court, to rent or sell such lands or tenements, for such term during the life Powers and duties of the persons upon whom such estate therein shall depend, as shall be sufficient(i) of the sequestrator. to satisfy all the liens against the same, together with all charges for taxes, repairs and expenses which shall be incurred during said term; and he shall apply the proceeds thereof, under the direction of the court, in the payment of such liens, according to their priority.

110. The court shall have power, if they deem it necessary, to require from such sequestrator a bond, with sufficient security, for the faithful execution of his trust Court may require and to compel him to account,(k) from time to time, as they shall think necessary; security from seand they may make all such orders, allowances and decrees in the premises, and questrator, and enforce the same, in like manner, and as fully and effectually as a court of chancery account. might do in the like case.(1)

24 Jan. 1849 § 5. P. L. 677.

sheriff.

Penalty for dis

of sequestrator or

111. It shall be the duty of every sheriff, or coroner acting as sheriff, in all cases where a sequestrator of rents, issues and profits of a life-estate in lands has been Sheriff to put and or hereafter shall be appointed, upon requisition upon him in writing for that purkeep sequestrator pose made by such sequestrator, with the sanction of any one of the judges of the in possession. courts of the county, and as often as so required, to put and keep such sequestrator, his vendee or lessees, in full and undisturbed possession of the lands and tenements, Powers and fees of with the appurtenances levied on; and in such cases, the sheriff or coroner shall have the same powers and privileges, and be entitled to the same fees as in executing writs of habere facias possessionem and of estrepement. And if any tenant for turbing possession life, defendant in any such execution, or any other person or persons shall unlawobstructing sheriff. fully disturb the possession of such sequestrator, his vendee or lessee, or shall obstruct or molest the sheriff or coroner in the execution of the duties enjoined by this section of this act, he or they shall, for every such offence, be subject to prosecution by indictment, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one hundred dollars, the cost of prosecution, and imprisonment in the county jail for a term not exceeding six calendar months; and shall also be liable to such damages as such sequestrator, his vendee or lessee, or the plaintiff in such executions shall have sustained, to be recovered by actions of trespass, as damages in actions of trespass are now by law recoverable. And the courts, or any judge or justice of the peace or alderman, may, upon cause shown, require of such offenders surety of the peace, for the prevention or against the repetition of such

Surety of the peace may be required

from offending party.

Ibid. § 3.

When life-estate may be sold.

Ibid. § 4.

On request of defendant, appraise ment to be made

by inquest.

Defendant may

premises at valuation.

offences.

112. Sales under executions of life-estates yielding rents, issues or profits, may be made,(m) in the manner provided by law in the case of estates of inheritance, in all cases where some lien-creditor shall not, on or before the return-day of the first writ of venditioni exponas whereon a sale shall be advertised, have procured a sequestrator to be appointed. (n)

113. It shall be the duty of every sheriff or coroner holding inquisitions on lands yielding rents, issues or profits, taken in execution, wherein the defendant has only a life-estate, where the same shall be condemned, upon request made and notice given to the plaintiff in the writ, his agent or attorney, at least three days before the holding of such inquisition, by the defendant, his agent or attorney, or the occupant of the land, to cause the inquest to make an appraisement of the yearly value of such lands, and to return the same with or as part of the inquisition and condemnation; and thereupon, before any writ of venditioni exponas shall issue, the elect to retain the plaintiff shall wait thirty days from the date of such inquisition, for the defendant, his agent, attorney or occupant of the land, to elect, by notice in writing to the sheriff or coroner, to pay the plaintiff the annual valuation in half-yearly payOn failure to pay ments,(o) and on failure of the defendant so to elect to pay, or on neglect or failure to pay for thirty days after any half-yearly payment shall be due and payable, the like proceedings may be had as are now directed by law in cases wherein estates of inheritance taken in execution or extended on a sheriff's inquest: Provided, That nothing herein contained shall prevent the appointment of a sequestrator, on application of any lien-creditor, under the provisions of the 3d section of this act, and of the act therein referred to: Provided further, That the writ of venditioni exponas, as authorized by the 3d section, shall not be issued in any case wherein the annual rent, found by the jury aforesaid, shall be sufficient to pay the interest on the debts entered of record: And provided also, That no such writ shall be issued unless by the direction of the proper court; and on the application of any lien-creditor for a rents are sufficient writ of venditioni exponas, the tenant for life shall have at least ten days' notice of the application for such writ.(p)

vend. exp. to

issue.

Sequestrator may

be appointed, on application of a lien-creditor.

No vend. exp. to issue, where the

to pay the interest.

13 June 1840 § 12. P. L. 692. Duty of inquest when lands in

adjoining counties are levied on.

XIII. Executions against lands in adjoining counties.

114. When any part of any lands or real estate, which lie in one or more adjoining tracts, in different counties, has been or shall be taken in execution, under any writ of fieri facias, or a writ of levari facias, issued out of any court in either county, it shall be the duty of the sheriff to summon an inquest, for the purpose of ascertaining whether that part of said land which has been taken in execution

(m) This section declares that this shall be deemed the true intent and meaning of the act 13 October 1840, § 6 (supra 109), and validates all such sales theretofore made, except where the contrary had been finally determined by the supreme court, or by any court of common pleas, and no writ of error had been taken to such decision. And the act 14 April 1851, § 20, declares that this provision shall not be construed to extend to any cases of sales of life-estates, where sales have been made, and ejectment or other possessory actions may have been brought by the purchaser or purchasers, previously to the passage of the said act. P. L. 616.

(n) A life-estate cannot be sold under a fi. fa. Commonwealth v. Allen, 30 P. S. 49. And no vend. exp. can issue for the sale of a life-estate, unless by order of the proper court, on ten days' previous notice

of the application for such writ, to the tenant for life, as directed in the proviso to the 4th section (infra 113). Kintz v. Long, 30 P. S. 501. Snyder v. Christ, 39 Ibid: 507-8.

(0) In order to set aside a sheriff's sale of a defendant's right, title and interest in lands, he must show that he has an undoubted life-interest, and that the provisions of the statute have not been complied with. De Frehn v. Leitenberger, 7 Leg. Gaz. 69. And see Seipt v. Stein, 1 Leg. Rec. R. 40, 157.

(p) Upon an application for a writ of venditioni exponas, to sell a defendant's life-estate, the notice may be served upon his attorney in the suit. Goodell v. Ehresman, 11 C. C. 400. The sale of a life estate will pass no title where it has been made without notice and leave of court. McClellan's Estate, 158 P. S. 639.

tion.

P. L. 692.

can be sold separately and apart from the other part of said land lying in the 18 June 1840 § 12. adjoining county or counties, without prejudice to the whole, or to the interest of the defendant or defendants, or any of his, her or their lien-creditors, or other person, who may be interested in the proceeds thereof; and also how much, and what part of said lands in such adjoining county or counties, ought to be sold with that part taken in execution as aforesaid, describing the same by metes and bounds; and he shall make a return in due form of law, of the inquisition taken with the writ. And if the said inquest shall find that the part of said lands taken Return of inquisiin execution(q) cannot be sold separately from the other part lying in the adjoining counties, or a portion of the same, without prejudice as aforesaid, and the inquisition shall be approved by the court, (r) the plaintiff may have a writ of vendi- On approval by the tioni exponas, or writ of levari facias, as the case may require (or a writ of alias or court, vend. exp. pluries venditioni exponas, or alias or pluries levari facias, as the same may be neces- writ to issue. sary), to sell said lands and real estate, taken in execution, and other part in such inquisition mentioned and described, by virtue thereof. The said lands and real estate shall be exposed to sale, sold and conveyed as in other cases; and the person or persons to whom the said lands and real estate may be sold, shall and may take, hold and enjoy the same, as if the same were situate wholly in the county in which such writ issued.

or other necessary

115. Provided, That upon the return of the said inquisition, the plaintiff shall Copy of docket cause a copy of the docket-entry, and whole proceeding connected with the said entry, &c., to be filed in adjoining writ, to be filed in the office of the prothonotary of the said adjoining county or county, &c. counties, (s) in which any of the lands mentioned in said inquisition are situate, which shall be entered on the records of such office; and from the date of said To be a lien. entry, the judgment on which said writs issued, shall be a lien on the lands within the county in which the said proceedings shall be entered; and copies of all subsequent proceedings in said case, shall in like manner be filed and entered in the office of such prothonotary, immediately after the sheriff shall make a return of the sale of said premises.

county.

116. And provided also, That notice of the sale shall be given in each county Notice of sale to be in which the lands to be sold lie, as is now required to be given in cases of sheriffs' given in each sales; and in all cases of a tract or adjoining tracts of land situate in different counties as aforesaid, in. which any writs of execution have been issued, and no sale under the same has been made, it shall be lawful for the plaintiff to issue an alias or pluries fieri facias, or alias or pluries levari facias, as may be proper; and Alias and pluries the like proceedings shall be had thereon as above provided. In case there shall writs may issue. be any liens on the parts of said lands lying in the adjoining county or counties, in which the above-mentioned proceedings are directed to be filed and entered, exist- How proceeds to be ing previous to filing and entering such proceedings, the court shall, after the distributed, where return of the sale, ascertain and determine, in such manner as they may think counties. proper, what proportion of the proceeds of such sale shall be applied in satisfaction of such previous liens.

liens exist in both

which the first sale

117. În all cases where sheriffs' sales of any debtor's real estate have been or 18 April 1843 § 9. shall be made in several counties, and one or more liens shall be claimed to exist P. L. 235. against the real estate so situate and sold in several counties, the court of common In case of several pleas of the county in which the first sale was or shall be made, or, in case a special sales, the court of court shall be necessary, then the president judge of any district adjoining the the county in same, shall have jurisdiction to decree distribution of the whole of the funds so was made to have raised by the said sales: Provided, That in case of a special court, as aforesaid, the jurisdiction over said judge holding the same, before making the final decree of distribution, shall try all the necessary issues in fact, in the proper county where the said issues may be formed.

XIV. Of testatum writs of execution.

the fund.

118. If the defendant in any judgment for the recovery of money, shall have no 16 June 1836 § 76. real or personal estate in the county where such judgment may be obtained, it shall P. L. 775. be lawful for the plaintiff, upon his own suggestion of that fact, verified by afli- How testatum davit, without any previous writ,(t) to have a testatum writ of fieri facias, directed fi. fa. to be issued. to the sheriff or coroner of any other county, where the defendant may have real

(q) The inquest is not to ascertain whether that part of the tract which lies beyond the sheriff's bailiwick can be sold separately from that within it, without prejudice to the whole; but whether the part taken in execution, situate within the sheriff's bailiwick, can be sold separately. Worthington v. Worthington, 3 Clark 208.

(r) In Philadelphia, a motion to approve the inquisition cannot be made before the Saturday succeeding the return-day of the writ; and there must be an affidavit of the due service of notice on the defendant of the time and place of holding the inquisition, in accordance with the act 16 June 1836, § 46 (supra 79). And if the defendant demand it, the inquisition must be held upon the premises, in pursuance of § 47,

supra 80. Worthington v. Worthington, 3 Clark 208. The approval of the inquisition by the court cures all prior irregularities. Hibberd v. Bovier, 1 Gr. 266. Elliott v. McGowan, 22 P. S. 198, 201.

(s) The omission of this provision will not prejudice the title of the purchaser, though it may affect the plaintiff's lien. Elliott v. McGowan, 22 P. S. 198.

(t) Where a fi. fa. has been issued, and returned nulla bona, a suggestion under this section is unnecessary. Boyer v. Kimber, 2 M. 393. But it is irregular, to procure a return of nulla bona to a fi. fa. and immediately issue a testatum to the same return-day; there must be a search for goods in the proper county, or an affidavit as a substitute for it. Root v. Oil Creek and Allegheny River Railroad Co., 31 L. I. 285.