Rucker against Harrison. Decided OCTOBER 15, 1818. 1. If a Su being levied, and a forth no motion A motion was made by Josiah Harrison, to the County Court of Amherst, in May 1810, for award of execu- persedeas to a Judgment, tion against Joseph Brock and Isaac Rucker, upon a forth- (execution coming bond dated May 21st 1803. The original return made upon the said bond, was as coming bond taken,) be follows:-"The within bond was forfeited on the 4th of issued be"July 1803. James C. Moorman D. S. for William fore the day of sale; and "Scott, Sheriff." On the motion of the said James C. thereupon Moorman D. S. or William Scott late Sheriff of Campthe property bell county, he was, on the day of the motion upon the coming; the Bond, permitted to alter his return theretofore made on the bond is penalty of the Execution and forthcoming bond; which return, on saved, and the Bond aforesaid, as amended, was in the following lies upon it. words and figures, to wit:-"To the within judgment, a too, that, if "Supersedeas issued from the District Court of Char- the property "lottesville, dated the 1st of July 1803, which writ of taken in exe"Supersedeas the Sheriff thinks was delivered to him the Sheriff's "on the day of sale. The property within named was hands, at the "not delivered at the day and place of sale." James receiving “C. Moorman D. S. for William Scott Sheriff Campbell "County." The County Court overruled the motion, and entered him, on the judgment that the defendant Rucker (as to whom alone the notice was proved,) should recover costs against the plaintiff. On an appeal to the Superior Court, this judgment was reversed, and judgment was given against Rucker, who then obtained a Supersedeas from this Court. 2. It seems, cution be in time of his the Supersedeas, or be delivered to day of sale, Writ, he Sheriff, up on an execu Wickham for the plaintiff in error, contended, on the authority of the case of Wilson v. Stevenson, 2 Call 213, tion, stating that the penalty of the forthcoming bond was saved by that a Writ of Supersedeas the Supersedeas. This indeed is a stronger case than was issued on a day spethat:-for it might have been contended that a Court of cified; being a day previ ous to that appointed for the sale of the property taken in execution; that he thinks the said Writ was delivered to him on the day of sale; and that the property for which a forthcoming bond was given, was not delivered at the day and place of sale; is sufficiently precise and certain. 4. In this case, the Sheriff was permitted by the Court to amend his return, after a lapse of seven years from its date. 1818. OCTOBER, law was not bound to take notice of an Injunction from a Court of Equity; but here the Writ of Supersedeas is a common law remedy, in the face of which the Sheriff could not proceed without a contempt of the Court. Rucker V. Harrison. (a.) Dal ton's Sheriff, 163-168. Stanard contra, insisted, 1st, that the forthcoming bond must be regarded as forfeited, according to the only return of which the Court can take notice. After such a lapse of time, the Sheriff could not be permitted to amend his return, especially from a recollection confessedly imperfect (1.) No return, whether original or amended, ought to be accepted unless it be precise and certain. (a) But the only positive part of this amended return, is that which says that the property was not delivered. 2dly, The facts that the Supersedeas was awarded and emanated before the day of sale, do not appear by evidence of which the Court can take judicial notice. If these facts existed, they were of record, and were proveable only by the record. 3dly, The emanation of a Supersedeas to a Judgment after the levying of an Execution thereupon, does not supersede the farther proceeding upon the execution, in relation to the property taken by the Sheriff. The principle determined in the case of Wilson v. Stevenson, 2 Gall 213, is that, if a forthcoming bond be not forfeited when an injunction issues, the penalty is saved, because compliance with the condition would be useless, since the property, immediately upon it's being delivered to the Sheriff, must be restored to the defendant. This proposition, that the property must be restored, is drawn from the case of Ross v. Poythress, 1 Wash. 120. In that case, the Court, adverting to the position of Counsel, that, under the law of England, an injunction would not authorise the restoration of goods on which execution had been levied, but would stay them in the Sheriff's (8)_2 Har, hands,(b) says, "we give no positive opinion as to the Ch. Pr. 225, 6 effect of an injunction obtained upon an execution Wyatt's Begr, 237. against the goods and chattels, after seizure; as that (1.) Note See Bullitt's executors v. Winstons, 1 Munf. 269. 1818. Rucker V. Harrison.. "case is not before us:-probably it would be consider- OCTOBER, "ed as settled by the Act of 1791, which, directing a "restitution of the money levied, would seem to include "inferior cases, and to extend, by an equitable construc❝tion, to the restitution of goods seized in execution, "and not sold." The decision therefore rests solely on the equitable construction of the Act of Assembly, and not on the common law. But that Act applies to the case of an Injunction; saying nothing of a Supersedeas. Let it be conceded, that, if the effect of a Supersedeas be to restore the property to the defendant, the principle in Wilson v. Stevenson will cover this case: the question then is, does a Supersedeas entitle the party suing it out to a restoration of the property actually in execution? (c) Case 2 Hen 7 folio There is no statutory provision on the subject:-it consequently is a question of common law:-and, by a series of ecisions ever since the year books, it has been settled, that an Execution is an entire thing, which, being once begun, (that is levied,) can not be stopped or superseded.(c) Wickham in reply. No exception was taken to the 12 b., and act of the Court in giving the Sheriff leave to amend his many cases return. The circumstances do not appear which induced the Court to give that leave. It therefore must back as 17 be presumed to be right, since nothing appears to the lio 27; Mil contrary. If any argument can be drawn from the delay, it was chargeable to the plaintiff himself, who let seven years elapse before he moved on the bond. If the return was in the mar gin as far Edw. 3. fo ton v. EldDyer, 98b; rington, 1 Charter v. Pete; Croke Eliz. 597; Moor 542; Yelv. 6; The 389; 2 Ld. that Raym. 989; Grant, Comb. 1 Salk. 147; Ibid 323; 1 uncertain, let him go against the Sheriff for making an insufficient return. But the return is positive, that the Langston v. Supersedeas was issued before the day of sale. Sheriff says he thinks it was delivered to himself on day. As to the point of law concerning the effect of the Su- Ventr. 255; persedeas, the practice of the Courts in this Country is Stevens, to be relied upon. In Moss v. Moss's administrator, 4 Willes H. & M. 297-8, Mr. Munford, in argument, relied on the Rep. 411. English practice to shew, that judgment could not be against part of the obligors in a joint bond (the others Meriton v. 271; 4 Term OCTOBER, 1818. Rucker V. Harrison. "being alive,) until further process (even to outlawry) "had been taken out against the others who failed to appear:" but the practice of this Country, being different, prevailed.(d) There is no such thing in England, as a forthcoming bond. I am certain it is the establish(d) 4 H. ed practice of this Court to grant the Supersedas, even when informed that Execution was levied; and the Sheriff thereupon, if the property is in his possession, restores it to the defendant.. & M. 293. Note. October 15th 1818, the Court reversed the judgment of the Superior Court, and affirmed that of the County Court. Decided, Cocke administrator of Bromley against Oct. 16th. 1818. 1. A suit Harrison. THIS was a suit in the Superior Court of Chancery in Chancery for the Richmond District, brought by Thomas Cocke properly lies, against Sheriff of Prince George County, to whom administration of the estate of James Bromley deceased was committed, against Obadiah R. Harrison. a defendant, who, claiming title un der a deed alledged to be fraudu lent, hath taken pos session of and convert The Bill charged the defendant with having unlawfully taken possession of the personal property of the deceased, after his death, and before the plaintiff qualified as administrator, and selling the same under the ed to his own pretence of satisfying a deed of mortgage, charged by use sundry the plaintiff to have been fraudulently executed; who therefore prayed the Court to set aside the said deed, the plaintiff and compel the defendant to render a just account of praying the the property so wrongfully taken into his possession, and to pay to the plaintiff the full value thereof. articles of personal property; Court to set aside such fraudulent deed, and The defendant by his answer denied the fraud; averrcompel the ing that the Deed was fairly obtained as a security for a defendant to render a just just debt, and set forth a list of the articles of prop account of the property so wrong. erty. fully taken, and to pay the value thereof to the plaintiff. 1818. Sundry depositions and exhibits were filed, partly tend- OCTOBER, ing to fix on the defendant the charge of fraud, and partly leading to his exculpation; but no account was directed, or taken. Chancellor TAYLOR dismissed the Bill with Costs, "being of opinion that the demand of the plaintiff pre"sented a plain action of trover and conversion." BY THIS COURT, the decree was reversed, and the cause remanded in order to be matured, and tried on it's merits. Cocke ad ministrator of Bromley Harrison. Noland against Seekright lessee of Crom. Decided, well. Oct. 16th, 1818. if execution sessionem be for several AFTER a judgment in Ejectment in favour of Seek1. Upon a judgment in right lessee of Margaret Cromwell against Thomas No- Ejectment, land, the following order was made by the Superior of the Writ Court of Frederick County, on the 4th of October 1814; of habere viz, "On the motion of the plaintiff by his Counsel, and facias pos"it appearing to the Court, by the Record, that this case prevented "terminated in favour of the plaintiff in the late District years by In"Court held at Winchester; and it farther appearing to Junction, the plaintiff is "the Court, that the defendant obtained an Injunction entitled to the Writ on "to stay proceedings on said Judgment; that said case motion upon "has been many years pending in the Court of Equity, a rule to "and in the Court of Appeals; that both said Courts without a "decided in favour of the said plaintiff; and that, with- scire facias, provided not "in the time of said litigation kept up and continued by more than a "the appeal of the defendant from Court to Court, the year has elapsed "term of the plaintiff's lease hath expired, a Rule is since the af "granted the plaintiff upon the defendant to shew cause the Court of firmance, by "on Friday next, (the 5th day of the present term,) Appeals, of "why the term in said lease mentioned should not be en tion and dismissing the Bill in Chancery. shew cause, the Decree dissolving the Injunc 2 In such case, if the term laid in the declaration has expired pending the pro. ceedings on the Injunction, the Court to which the motion is made for the Writ of habere facias possessionem, may cause the term to be enlarged and award the Writ, upon a rule to shew cause, served upon the defendant. |