Turner v. Fendall. that next succeeding the return of the execution. 2d. That the testimony offered to prove the insolvency of Fendall, was competent for that purpose, and ought not to have been rejected. 3d. That the defendant below ought to have been permitted to prove the trustees of Fendall not entitled to receive the money on the execution of Fendall v. Towers. 4th. That Turner had a right to levy the execution of Deneale v. Young and Fendall, on the money of Fendall in his hands. I. The act of assembly giving this remedy against sheriffs ought to be construed strictly, because it is a penal law, inasmuch as it subjects the officer to a penalty of fifteen per cent. per annum, for not paying over the money levied upon an execution; and because this summary process by motion is in derogation of the common-law proceedings. The words of the act are, that “upon a motion made to the next succeeding general court, or other court from whence such writ shall issue," "such court is hereby authorized and required to give judgment accordingly;" that is, “such next succeeding court." The court in April was the next succeeding court; but the court in July, at which this judgment was rendered, had no jurisdiction of the cause. And although consent will take away error, yet it will not give jurisdiction. II. The testimony offered to prove the insolvency of Fendall, ought to have been admitted. By the act of assembly respecting insolvent debtors (Rev. Code, p. 314, 315, §§ 40, 41), upon the debtor's delivering his schedule, and taking the oath, all his estate becomes vested, by act of law, in the sheriff of the county, and debts due to him are to be recovered in the name of the sheriff. This money was either the money of Fendall, and so vested in the sheriff as part of the estate in possession, or else it was a chose in *122] action, and then the *sheriff is the only person entitled to recover it. In either case, by showing the insolvency of Fendall, we show that the title is out of him, so that he cannot support this motion. The act of assembly does not make the act of the magistrates, in administering the oath, and granting the warrant of discharge of an insolvent debtor, a matter of record. Third persons have no means of proving the fact of insolvency, but by parol testimony: it must be proved like any other matter en pais. We offered the best evidence which the nature of the case will admit: we offered the original warrant of discharge, under the hands and seals of the magistrates, and parol proof that they were magistrates at the time, and had acted as such for many years before, together with evidence of their handwriting. General reputation has always been considered as sufficient proof of the official character of a magistrate. III. The defendant below ought to have been permitted to show that the trustees of Fendall were not entitled to the money. The notice in this case was given by Fendall for his trustees. Turner could not know whose claims he had to oppose, whether those of Fendall alone, or those of his trustees. It was necessary for him, therefore, to show that neither the one nor the others were entitled to recover upon this motion; and he came prepared to do this, but the court would not suffer him to do it. Fendall, by reason of his insolvency, and the consequent operation of law in transferring all his rights to the sheriff, could not recover in his own name, for his own use and benefit; but still, as courts of law will protect trusts and equitable rights, where they are made to appear, and as the transfer of the estate and Turner v. Fendall. effects of an insolvent debtor, which takes place by the operation of law, does not transfer those things which the insolvent has merely as trustee, and as the name of Fendall might, therefore, still be used for the benefit of the trustees, it was competent and proper for the defendant below, to show that the trustees had not that equitable right which the law will protect.. IV. The fourth point seems to divide itself into two parts. 1st. Can money be taken upon a fieri facias in any case? *2d. Can the officer levy a fieri facias on money in his own hands which he has col- [*123 lected for the use of the debtor? 1. It is a general principle, that all goods and chattels, the property of the debtor, may be taken in execution, and when an officer has it in his power to satisfy an execution to him directed, it is his duty to do it, and he is liable to the creditor, if he fails so to do. The money of a debtor is a part of his goods and chattels ; it follows, that it is liable to an execution there is no possible reason why it should not be so. It is said, there are some old authorities to the contrary, and that the reason given is, that money cannot be sold. (Armistead v. Philpot, Doug. 219.) But the reason of selling the goods taken on execution is, that money may be raised, and surely, the execution may as well be satisfied, by taking money itself, as by taking goods which must be sold to raise the money. In Rex v. Webb, 2 Show. 166, it is said, that by a levari facias "the sheriff may take ready money." And in this respect, there is no difference between a levari facias and a fieri facias. The law is expressly laid down in Dalt. Sheriff, 145, 543, that money may be taken on a fieri facias. 2. If money in the possession of the debtor may be taken, does the money being in the hands of the sheriff make any difference? In the case of Rex v. Bird, 2 Show. 87, "it was resolved by the court, on motion, that on a fieri facias, the sheriff may sell the goods, and if he pay the money to the party, it is good, and the court will allow of such return, because the plaintiff is thereby satisfied; although the writ run, "ita quod habeat coram nobis," &c. The same doctrine is held in Hoe's Case, 5 Co. 70 a. If, then, the sheriff might have paid this money to Fendall, and had so paid it, he would have been bound to seize it again, instantly, to satisfy the execution of Deneale. If he might have done this, and if it was his duty to satisfy the execution of Deneale, where was the necessity of his *go[*124 ing through the ceremony of a payment of the money to Fendall. Here, it is stated by the officer, that he kept the money of Fendall distinct and separate from all other money, and that he levied the execution of Deneale on that identical money. This is, in substance, the same thing as if the money had been paid over to Fendall, and afterwards seized by the officer. On the part of the defendant in error, it was said, in reply-1. As to the power of the court to give judgment at a term subsequent to the term next after the return of the execution, that although the act of assembly may be penal, and although the remedy may be in derogation of the common-law proceedings, yet, like all other statutes, it must have a reasonable construction. It could never be supposed to intend, that if the court did not give the judgment at the first term, the jurisdiction which they once had should cease. 2. The fact of Fendall's insolvency was not material to the question Turner v. Fendall. before the court, because any person who was equitably entitled to the money, would not be precluded from his claim by this judgment; and by the act of assembly, no one but the creditor in whose name the judgment was rendered, is entitled to this summary process against the officer who refuses to pay the money levied upon the execution; and if any other person was in equity entitled to the money, he must still use the name of Fendall. The name of the nominal creditor must be used, or the remedy given by the statute would be wholly lost. He is the only person who could acknowledge a satisfaction upon record, and it ought not to be in the power of the officer, to allege an equitable claim in another person, to support his own improper act. (Benson v. Flower, Cro. Car. 166, 176.) In that case, the creditor had become bankrupt, after the money was made upon the execution, and before the return ; and upon the return, the assignees contended, that they had the right to receive the money, but the court ordered it to be paid to the bankrupt, because the assignees were no parties to the suit, and the bankrupt was the only person who could acknowledge satisfaction upon the record; and the money being levied by the sheriff, before the *125] assignment, was to be considered *as in custodia legis, and so not assignable. It was not the money of the bankrupt, at the time of the bankruptcy, because it did not become his money until he received it. But if the insolvency of Fendall were material, still, the evidence adduced was not conclusive of the fact, nor even competent to prove it. It was not the best evidence which the nature of the case admitted. If the act of the magistrates was a simple act en pais, yet they themselves were the most competent witnesses to prove the fact, and their testimony would be better evidence than a paper purporting to be signed by W. Herbert and R. West, who do not style themselves magistrates, even if their handwriting should be proved. It does not appear, that they were dead, or that their testimony could not be obtained. And as to common report being evidence of their being magistrates, it certainly was not the best evidence, because their commissions, and the certificate of their taking the requisite oaths of office, were inatters of record. Esp. N. P. 741. When the acts of magistrates are questioned, in the county in which they are said to be justices, common report may be sufficient, because all persons are supposed to be obliged to take notice of the officers of their county.' But in this case, they were alleged to be justices of a foreign county. The county of Fairfax is no part of the district of Columbia. But this was not a trial by jury, and it is very questionable, whether, in such a case, a rejection of admissible evidence can be assigned for error, with any more propriety than an admission of incompetent testimony. 3. It is contended, that Turner ought to have been permitted to show, that the trustees of Fendall had no right to receive the money. The answer to that is, that the court were not trying the right of the trustees, and could not look into their equitable claims. The court were sitting as a court of law, and not as a court of chancery. If the trustees had an equitable right, they were not precluded from asserting it, in a proper manner; if they had not, it did not affect the present question. If they had a legal right, they would not be barred by the judgment in this case. In whatever light the 1See Hibbs v. Blair, 14 Peun. St. 413; Kilpatrick v. Commonwealth, 31 Id. 198. Turner v. Fendall. subject is viewed, it appears to be perfectly immaterial to the present question. *4. But the fourth point includes the real merits of this contro[*126 versy. Had the officer a right to satisfy the execution of Deneale v. Young and Fendall, out of the money in his hands levied by virtue of the execution of Fendall v. Towers? 1st. Money cannot, in any case, be taken by the officer, upon an execution. It is a general principle, that on a fieri facias, the goods taken cannot be delivered to the creditor, in satisfaction of the debt, but must be sold ; and the books give this as a reason why money cannot be taken : another reason may be, that money cannot be identified. But the law is different in Virginia from the English law, in respect to the proceedings on executions. By the act of assembly respecting executions (Rev. Code, p. 309, § 12, 13), the officer, on all executions, having published notice of the time and place of sale, ten days before such sale, “shall proceed to sell, by auction, the goods and chattels so taken, or so much thereof as shall be sufficient to satisfy the judgment or decree, for the best price that can be got for the same." Here, it is evident, that the legislature did not contemplate the case of money itself being liable to be taken on execution; for they have made it the duty of the officer, in all cases of execution, to advertise and sell the goods taken. But the next section is still stronger, for it provides, “that if the owner of such goods and chattels shall give sufficient security to such sheriff or officer, to have the same goods and chattels forthcoming at the day of sale, it shall be lawful for the sheriff or officer to take a bond from such debtor and securities, payable to the creditor, reciting the service of such execution, and the amount of money or tobacco due thereon, and with condition to have the goods or chattels forthcoming at the day of sale appointed by such sheriff or officer, and shall, thereupon, suffer the said goods and chattels to remain in the possession, and at the risk of the debtor, until that time." It would be absurd, to suppose an officer obliged to appoint a day of sale for selling money; yet the giving of a forthcoming bond is a right which the debtor has by law; he is entitled to the delay on giving the security required. But the bond cannot be taken, unless a day of sale is appointed, because there can be no other day on which the *bond can [*127 become forfeited. Hence, then, it is clear, that the legislature went upon the ground that money could not be taken on an execution, or they would have excepted such a case from the general words of the law. But if money was liable to be taken on a fieri facias, it was a case which must have often happened, and could not have escaped the recollection of every member of the legislature. A strong argument arises from the want of adjudged cases on this point, and the total deficiency of precedent in practice, within our own knowledge. In the case of Armistead v. Philpot, cited from Doug. 219, Lord MANSFIELD confesses that there are old cases which say that money cannot be taken in execution, even though found in the defendant's scrutoire, and does not cite any cases to the contrary. It is true, he says the reason given is a quaint one, but he does not say it was not good. In that case, the money levied for the debtor was ordered to be paid by the sheriff to the creditor who had an execution, but there was no opposition, except as to the attor Turner v. Fendall. ney's fees on the first execution, which were compromised, and the court and bar agreed that the motion was of the first impression. 2d. But secondly, this was not the money of Fendall, until it was paid to him; and therefore, if the law be, as is contended, that money of the debtor may be taken in execution, yet the principle does not apply to this case. By the receipt of the money by the sheriff, Fendall did not become entitled to the individual pieces of coin. The remedy against the officer was not det inue or trover, but an action of debt, or on the case. The officer became the debtor of Fendall for so much money, and there is no reason why it should be more liable to an execution, in the hands of the serjeant, than in those of any other individual; it was neither the goods nor chattels of Fendall, but a mere chose in action. Fendall could not compel the officer to pay it before the return-day of the execution. If, in the meantime, the money had been lost or destroyed by robbery, fire, enemies, lightning or tempest, it must have been the loss of the officer, and not of Fendall. The command of the writ of fieri facias, according to its form as *pre*128] scribed by the act of assembly (Rev. Code, p. 306), is, "that you have the said sum of money before the judges of our said court, the day of -, to render to the said (creditor) of the debt and damages aforesaid." And the form of the return contained in the same act (p. 307), is, "by virtue of this writ to me directed, I have caused to be made the withinmentioned sum of of the goods and chattels of the within-named A. B., which said sum of before the judges within mentioned, at the day and place within contained, I have ready, as that writ requires." The form of the writ and return is the best possible evidence of the duty of the officer. He is obliged to have the money in court, to be there paid to the creditors; and nothing will excuse him from an exact compliance with the command of the writ, but payment to the person named as creditor in the execution; and even this, not as a matter of right, but of favor. In the case of Rex v. Bird, cited from 2 Shower, 87, it is only said, that a payment to the party will be allowed by the court, and the reason given, is, because the plaintiff is thereby satisfied. "But this is only by permission of the court, and not by force of the law." 2 Bac. Abr. 352. Now, if the plaintiff is not satisfied, the reason fails, and consequently, the rule does not hold good. In 2 Bac. Abr. 352, it is said, "in strictness, the money is to be brought into court." In the case of Canon v. Smallwood, 3 Lev. 203-4, it is said, that the payment of the money to the plaintiff was by permission of the court, not ex rigore juris; and the court often orders the sheriff to bring the money into court, and does not permit the plaintiff to have it; of which power the court would by this means be deprived. In the case of Benson v. Flower, before cited from Cro. Car. 166, 176, it is expressly stated, that the money, at the time of the bankruptey, being in custodia legis, that is, in the hands of the sheriff, was not the property of the bankrupt, and did not become so, until he received it. And in the case of Armistead v. Philpot, the money was first brought into court, and there ordered by the court to be paid to the second creditor, on affidavit that other goods and chattels could not be found. This case shows, as strongly as possible, *the necessity of the sheriff's obeying the command of the writ, in bringing the money into court, instead of paying it over to the *129] |