CHAPTER 38.

EXECUTIONS.

ART. 1. Writs of fieri facias.

I R. S., 472-3.
Fieri facias.

Form thereof.

§ 1. If a final judgment in personam be rendered in any court of record in this Commonwealth for an ascertained sum of money, with interest and cost, or for either, a fieri facias may issue thereon.

§ 2. The form of a writ of fieri facias, varied to suit the particular case, may be in substance as follows, to-wit: THE COMMONWEALTH OF KENTUCKY TO THE SHERIFF OF COUNTY, GREETING: We command you that of the estate of A B, you cause to be made the sum of $——, which C D, late in our court, hath recovered against him

day of

until

for debt, with interest thereon from the
paid; also the sum of $, which to the said C D, in
the same court, were adjudged for his costs in that suit ex-
pended, whereof he is convicted, as appears to us of record,
and that you have the said sums of money before our said
court on the day of
to render to the said C D his
aforesaid, and have then there this

debt, interest, and costs
writ. Witness, &c.

1. All executions shall be returnable to some rule day of When and how the court, not under thirty nor over seventy days from the

returned.

test.

2. If a fi. fa. be satisfied, the officer shall return thereon, in substance, "satisfied," unless it be by the sale of property, in which case the fact must be stated.

3. If satisfied in part, he must state what part, and why the residue is not made.

4. If levied, and no sale has been made for the want of bidders, or if no property has been found, he must state the facts. (a)

§ 3. If a fieri facias is issued, and the plaintiff desires to take out another, at his own proper costs, the clerk may issue the same, though the previous execution be not returned.

Fi fa. at plainfirst not returned.

tiff's cost, when

not satisfied.

1. If a fieri facias be returned in whole or in part not When a fi fa. satisfied, a new one may issue.

2. On a joint judgment against several, the execution On joint judgmust be joint.

ment.

til after ten days

4. No execution shall issue on any judgment, unless Not to issue unordered by the court, until after the expiration of ten days from the rendition thereof.

§ 5. Each court shall, by an order of record, appoint a Return day. monthly return day of executions.

ARTICLE II.

Defendant's Estate Bound.

Lien of fi. fa.

SI. A writ of fieri facias shall bind the estate of the 1 R. S., 474. defendant only from the time the same is delivered to the proper officer to execute. (b)

(a) The return of a sheriff upon an execution, that he had paid the money to the plaintiff, not being in response to the command of the writ, is not competent evidence of the payment. (Walker and wife vs. McKnight, 15 B. M., 477.)

2. It is the duty of a sheriff, when he levies an execution, to state the facts on the writ, and sign it. (Commonwealth for Tiffany vs. Hurt, &c., 4 Bush, 64.)

3. To authorize a levy, the sheriff must have in his hands an execution in full force and effect. (Savings Institution of Harrodsburg vs. Chinn's administrator, 7 Bush, 539.)

4. The quashal of an execution, levy, and sale of land, because a credit was not indorsed on the execution, leaves the judgment in full force, and the plaintiff may take out another execution. (Davie vs. Long's administrator, 14 Bush, 574.)

5. The levy of an execution on personal property, not levy, is invalid, and creates no lien upon the property. seen by the purchasers at the time of the sale, is void. December 10, 1864.)

seen by the officer at the time of the And the sale of the same property, not (Bradley vs. Phillips, MS. Opinion,

(6) The death of the plaintiff does not abate an execution in the hands of the proper officers, nor destroy any lien created, either by a levy of the execution or on account of its being in his hands for collection. (Morgan vs. Winn, 17 B. M., 244.)

2. When the execution of a writ of fi. fa. is arrested by injunction or supersedeas, the levy is released, and the lien created thereby is discharged. (Keith vs. Wilson, 3 Metcalfe, 205; Lockridge vs. Biggerstaff, 2 Duvall, 282; Flowers vs. Fletcher, Printed Decisions, 265.)

3. A levy on movable property puts the thing levied on in the possession of the officer, either

GEN. STAT.-27

The officer to whom it is so delivered shall indorse Time to be in thereon the day of the month, year, and time of day, when the same is received by him.

dorsed.

Priority.

Pro rata.

2. If two or more executions are delivered to the officer on the same day against the same person, he shall satisfy that one first which comes first to his hands.

3. If two or more executions come to an officer's hands at the same time, and he is unable to make the amount thereof, he shall apportion the sum made among the several executions so coming to his hands, according to the amount thereof.

Capias.

Form of.

ARTICLE III.

Capias ad Satisfaciendum Allowed.

§ 1. A capias ad satisfaciendum may issue, except against females, upon all judgments for a trespass, vi et armis, upon the person or property, for seduction, or for slander, written or verbal, or for malicious prosecution. The court shall note, at the foot of the judgment, that a capias ad satisfaciendum may issue thereon. The form of such execution shall be, in substance, as follows, to-wit:

THE COMMONWEALTH OF KENTUCKY TO THE SHERIFF of COUNTY, GREETING: We command you that you take A B, if he be found within your county, and him safely keep, so that you have his body before our judge (or justices) of our court, &c., the day of - to satisfy C D the sum of $-, which the said C D hath recovered against him for damages; also the sum of $-, which

actually or constructively, and, consequently, invests him with a special property. (Huston vs. Duncan, Bush, 205.)

4. A levy on land gives the officer no possession, and, consequently, no title. (Ibid, 205.) 5. To preserve an execution lien and levy, it is necessary that it should be followed up by a prompt return of the fact, and a sale within a reasonable and proper time. Inaction for three years, without attempting to perfect a levy by a sale, was well calculated to conceal from the community the fact that there was a levy; and those who may have known of it at the time were authorized to conclude that it had been satisfied. Such laches, so far as third parties are concerned, must be regarded as a waiver, or an abandonment of the levy. (Deposit Bank of Cynthiana vs. Berry's administrator, 2 Bush, 236.)

6. The power of a sheriff to enforce his levy upon land, by a sale thereof, ceases by the death of the execution defendant, who is the owner of the land. The sale of the land of such defendant, made after his death, and conveyances thereunder, are void; but the death of such defendant does not discharge a lien upon his land which was created by a levy made thereon prior to his death. (Holeman's executor vs. Holeman's heirs, &c., 2 Bush, 514; Huston vs. Duncan, I Bush, 207.)

7. The lien created by the levy of an execution on the land of the defendant in his lifetime is not discharged by his death before a sale thereof. This lien may be enforced in equity as other demands having a priority against the decedent's estate. The land could not be sold under execution without a revivor against the decedent's heirs. (Burge's administrator, &c., vs. Brown, &c., 5 Bush, 535.)

day

to the said C D, in the same court, was adjudged for his
costs; and that you have the same at
on the
of, to satisfy and pay the said C D his damages and
costs aforesaid, and have then there this writ.

F, clerk of our said court, this day of June,

Witness, E 1851.

1. The benefit of the prison rules is, in all cases, abolished. Prison rules.

2. No defendant shall be allowed to take the oath of an Insolvent's oath. insolvent debtor until ten days after he has furnished the plaintiff or his attorney a copy of the schedule of his prop

erty he intends to surrender.

3. The sheriff or other officer may return on a ca. sa., in Return on ca. se. substance: In virtue of this writ, I have taken the within

named A B, and

This day of

delivered him to the jailer of my county.

-. Or, the within named A B is not

found within my county. This day of

§ 2. The death of a defendant imprisoned under a ca. sa. Death of defendshall not release his estate from liability to the plaintiff.

ARTICLE IV.

How Judgments in Chancery may be Enforced.

§ 1. A final order or judgment for money, lands, or other specific things, may be enforced by any appropriate writ of execution, allowable on a judgment at law, according to the nature of the case.

1. Such writ shall issue and be returnable as other writs of execution.

ant.

R. S., 475. nal judgment.

Execution on fi

ings allowed.

2. Nothing in this article shall prevent any party from pro- Ancient proceedceeding to carry any order or judgment of court into execution, according to the ancient practice of courts of chancery.

ARTICLE V.

Writs of Venditioni Exponas.

§ 1. When the sheriff or other officer shall return on a writ of fieri facias that the estate levied on, or any part thereof, remains in his hands unsold, a writ of venditioni exponas may issue, directed to such officer.

1. Which writ shall be, in substance, as follows: THE Form of. COMMONWEALTH OF KENTUCKY TO THE SHERIFF of COUNTY, GREETING: We command you that you expose to sale the estate of A B, to the value of $—, which, according to our command, you have taken into your hands, and which remains in your hands unsold, as you have certified

ex

to our
court, to satisfy C D the sum of $—, whereof
in our said court he hath recovered execution against the
said A B, by virtue of a judgment in the said court, and
that you have, &c.(a)

2. The like proceedings shall be had on such writ as might Proceedings on. and ought to have been had on the first execution.

after return day.

3. An officer may, at any time after the return day, while Sale under fifa. the original execution is in his hands, sell any property taken in virtue thereof, provided the levy was made before the return day.(6)

Execution

specific property.

ARTICLE VI.

Executions on Judgments for Specific Property.

§ 1. When a judgment shall be recovered for a specified for thing, the plaintiff may have an execution issued thereon, commanding the proper officer to take the thing so recovered, and deliver the same to the plaintiff.

1. Or the plaintiff may, if he so elect, take a writ of fieri facias for the assessed value of the thing recovered; and in either case he shall have execution for the damages assessed for the detention, and his costs.

2. The court may, upon satisfactory proof that the property recovered has perished, or that, without the fault of the defendant, it is out of his power to produce the same, order the plaintiff to receive the assessed value in lieu of such property.

1 R. S., 476-7.

Sustenance for stock.

ARTICLE VII.

Concerning Live Stock.

§ 1. When an execution is levied on live stock, and no forthcoming or replevin bond is immediately given, the offi

(a) Writs of venditioni exponas confer no new authority on the officer to whom they are directed, but only require him to do that which he was authorized to do by the former execution. (Keith vs. Wilson, 3 Metcalfe, 204; Colyer vs. Higgins, 1 Duvall, 7.)

2. No venditioni can issue, commanding the sale of property, which had been levied on under a fi. fa., which was enjoined or superseded after the levy. (Keith vs. Wilson, 3 Metcalfe, 205; Lockridge vs. Biggerstaff, 2 Duvall, 282.)

(b) A sheriff who levies upon property may sell it after the return day, and after returning the execution, without a writ of venditioni exponas, and after he has gone out of office, and it is his duty to do so. (Colyer, &c., vs. Higgins, &c., 1 Duvall, 7.)

NOTE. So much of the above opinion as says the sheriff may sell "after returning the execution," seems only to be a dictum of the court. That question was not raised in the above case, nor in the case of Irvine, &c., vs. Pickett, 3 Bibb, 344. The latter case was decided before the act of February 12, 1828 (Morehead & Brown's Digest, volume 1, page 638), which is in substance the same as the Revised Statutes and the General Statutes, which we think change the common law as to the right of the sheriff to sell after the original execution has been returned.-EDITORS.