IN THE EIGHTEENTH YEAR OF THE COMMONWEALTH 303 covering fuch money, tobacco, goods, chattels and eftates as aforefaid, including fuch a fee to a lawyer for the proceeding against the garnishee, as shall be judged reasonable by the court, and if fuch effects be not fuficient, he shall be reimbursed fuch expenfes by the creditor or creditors, if more than one, in proportion to their demands. 1793. XLIV. WHERE fuch infolvent perfon fhall not be able to fatisfy and pay Infolvent debtors prifon fees to be paid by his ordinary prifon fees, the fheriff or jailor may demand and receive of the party or parties, at whofe fuit fuch infolvent perfon fhall be imprisoned, all fuch fees as the creditor. fhall become due until fuch creditor fhall agree to releafe fuch prifoner; and if the creditor upon notice given to him or her, his or her attorney, or agent, shall refufe to give fecurity to the theriff or jailor, for the payment of fuch prifon fees, or fhall fail to pay the fame when demanded, fuch theriff or jailor fhall difcharge fuch debtor out of prison. a ors. XLV. PROVIDED nevertheless, That fuch infolvent prifoner fhall be af- But may afterwards be terwards liable to the action of the creditor to recover fuch fees, and fuch cre- recovered of the debt.. ditor fhall and may, notwithstanding his confent to the releafing fuch prifoner, at any time afterwards, fue out a fire facias to have a new execution against the lands and tenements, goods and chattels of fuch prifoner, in cafe he or she shall afterwards become poffeffed of any. b XLVI. WHEN any debtor is in cultody on feveral executions, it shall not be lawful for fuch debtor to demand any more or other dieting, than if he was in cuftody on one execution only; nor shall any sheriff or jailor demand or receive more than the rate fixed by law, in cafe of a debtor confined on one execution only, which shall be paid by the creditor, at whofe fuit fuch debtor was first taken. c XLVII. AN execution appearing to be duly ferved in other refpects shall be deemed good, although it be not directed to any sheriff. d XLVIII. IF a diftringas iffue in detinue, the court for good caufe shewn, may direct it to be fuperfeded, fo far as it relates to the fpecific thing, and to be executed for the alternative price or value only, if fixed in the judgment, or If the fame shall afterwards be fixed by a writ of inquiry. d XLIX. IF a replevy or forthcoming bond be quashed as faulty, the sheriff taking the fame, shall be at all times liable for damages to the party injured, or his reprefentative. d + L. AND whereas doubts have arifen in what manner judgment should be rendered against any sheriff, coroner, or ferjeant of a corporation, who shall fail to return an execution to the office from whence it iflued, on or before the return day thereof; Be it enacted, that where any writ of execution, or atttachment for not performing a decree in chancery, shall come into the poffeffion of any sheriff, coroner, or ferjeant of a corporation, and he shall fail to return the fame to the office from whence it was iffued, on or before the return day thereof, it shall be lawful for the court, ten days previous notice being given, upon the motion of the party injured, to fine fuch sheriff, coroner, or ferjeant of a corporation at their difcretion, in any fum not exceeding five dollars per month, for every hundred dollars contained in the judgment or decree, on which the execution or attachment, fo by him detained, was founded, and fo in proportion for any greater or leffer fum, counting the aforefaid months from the return day of the execution or attachment, to the day of rendering judgment for the faid fine. e LI. IF any sheriff, under sheriff, or other officer, shall make return upon any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or colts, as in fuch writ is required, or any part thereof, and shall not immediately pay the fame to the party, to whom the fame is payable, or his attorney, or shall return upon any writ of capias ad fatisfaciendum, or attachment, for not performing a decree in chancery for payment of any fum of money, or to bacco, that he hath taken the body or bodies of the defendant or defendants, and hath the fame ready to fatisfy the money and tobacco in fuch writ mentioned, and shall have actually received fuch money or tobacco of the defendant or defendants, or have fuffered him, her or them to escape, with the confent (a) 1772, ch. 13, fec. 1. 1748, ch. 8, fec. 28. (b) 1769, ch. 3, fec. 8. (c) 1789, ch. 13, fec. 38. (d) 1788, ch. 67, feb. 75, 76, 78. + See ch. 176, fec. 6, (other remedy granted.) I See ch. 176, lec. 8, like remedy granted against other officers, and aljo against executors or adminiftrators, and fecurities of either. (e) 1791, ch. 3, fec. 5. Prifon fees to be paid by the creditor, whofe execution is first ferv ed. Execution duly ferved, Sheriff liable when a Method of proceeding against sheriff failing to pay money levied by executions. 1798. Creditors to appoint agents in the counties in which executions are ferved. Executions may be if fured on decrees in chan cory. Goods on leafed premifes not liable to executi on until the tent in ar 306 IN THE EIGHTEENTH YEAR OF THE COMMONWEALTH. of fuch sheriff, under sheriff, or officer, and shall not immediately pay fuch money or tobacco to the party to whom the fame is payable, or his attorney, then, or in either of the faid cafes, it shall and may be lawful for the credi tor, at whofe fuit fuch writ of fieri facids, vendititui exponas, capias ad latisfaciendum, or attachment fhall iffue, upon a motion made in the next fucceeding general court, or other court from whence fuch writ fhall iffue, to demand judg ment against fuch sheriff, officer, or under fheriff, or fecurities of fuch under fheriff, for the money or tobacco mentioned in fuch writ, or fo much as fhall be returned levied on fuch writs of fieri facias or venaitioni exponas, with intereft thereon, at the rate of fifteen per centum per annum, from the return day of the execution, until the judgment fhall be difcharged; and fuch court is hereby authorised and required to give judgment accordingly, and to award execution thereon; provided fuch fheriff or officer have ten days previous notice of fuch motion. a LII. AND whereas it is unreasonable that sheriffs fhould be obliged to go out of their counties to give notice to creditors at whofe fuit any perfon may be in the custody of fuch fheriff, or to pay money levied by execution: Beit therefore enacted, that where any execution fhall be delivered to the fheriff of any other county, than that where any creditor refides, fuch creditor fhall name fome perfon in the county where the execution is to be levied, to be his, her, or their agent, for the particular purpafe of receiving the money on fuch exccution, and for giving to, and receiving from the fheriff, any notices which may be neceflary relating thereto, and payments made, and notices given to fach agent, fhall be as effectual as if made or given to the creditor. And if any creditor fhall fail to appoint fuch agent, no judgment fhall be entered against the fheriff for non-payment of the money and tobacco mentioned in fuch execution, unless a demand thereof fhall have been first made of fuch sheriff in his County by the creditor, or fome other perfon having a written order from him: Nor in cafe of failure in appointing fuch agent, fhall the sheriff or prifoner be obliged to give notice previous to the discharge of fuch prifoner, either for want of fecurity for his prifon fees, or upon his taking the oath of an infol vent debtor. But fuch prifoner fhall be difcharged in those cafes refpectively, without any notice to be given to the creditor fo failing. b LIII. AFTER obtaining a final decree for lands, flaves, or money, or things of a fpecific nature, in any court having chancery jurifdiction, the clerk of fuch court shall upon the request of the party obtaining fuch decree, ifue any writ of execution, either a fieri facias, capias ad fatisfaciendum, habere fa cias poffeffionem, or any judicial procefs which may now iffue from any court of common law, according to the nature of the cafe, for carrying the faid decree into effect; which writ fhall iffue in the name of the commonwealth, and bear tefte and be figned by the clerk of the court; and all process fo iffued, thall be executed and returned to the clerk's office from which the fame ifiued, from term to term, on the return days thereof, by the officer or officers to whom the fame fhall be directed, and shall have the fame operation, and poffefs the fame force to all intents and purposes, as fimilar procefs, iffued upon judgments at common law. The officer or officers to whom any fuch procefs is directed, fhall be fubject to the like penalties for mifconduct or neglect, and the court fhall exercife in this and in all cafes relating to fuch proceis, the fame powers, as if the faid procefs had iffued upon a judgment obtained at common law. But nothing herein contained, fhail prohibit any party from proceeding to carry any order or decree in chancery into execution, in any manner, in which he might avail himself before the paffing of this act. e LIV. NO goods or chattels whatsoever, lying or being in or upon any mel fuage, lands or tenements, which are or fhall be leafed for life or lives, term of rear is paid or tendered. years, or will, or otherwise, shall at any time hereafter be liable to be taken by virtue of any writ of execution, or on any pretence whatsoever, unless the party fo taking the fame, fhall, before removal of the goods from off fuch premites, pay or tender to the landlord, or leffor thereof, or his agent, all the money of tobacco due for the rent of the faid premifes, at the time of taking fuch goods or chattels in execution. Provided nevertheless, that fuch rent arrears do not amount to more than one year's rent, and if more be due, then the party fang out fuch execution, paying or tendering to fuch landlord, or his agent, one Provife, (a) 175, ch. 1, fec. 3, 6. 1763, ch. 5, fec. 1. ch. 13, fec. 37. (6) 1765, ch. 3, fec. 13. Seeth. 10, 4. See ch. 80, fec. 25. 178 80, Sec. 24. (c) 1787, ch Indebitatur Apumprit will lie. But in this, actions against Sheriffer for money their.. by them, by virtive of should be so far stated in and in all had and received the nature office, the the demand of the ar stated in the Declaration, as to destin. quish them from private debts and contracts. 2. Mark : 180. If a notice be general, it will be favourably construed: but If it desund to particular, it must be commes as to them. 1. ball. Frew vs. An de roon. 31. |