
    Richmond.
    Shackelford v. Apperson.
    1849. October Term.
    
    (Absent Cabell, P.)
    
      In a suit to subject land for the payment of the purchase money, there is a decree against the defendant for a sum certain : And if he shall fail to pay it within thirty days, a commissioner is directed to sell the land upon terms prescribed in the decree. Held :
    1. The clerk has no authority to issue an execution on this decree, without an order of the Court, or of the Judge in vacation.
    2. Though circumstances may exist which will warrant the Court, or a Judge in vacation, to allow process of execution on such an interlocutory decree, these circumstances must he shewn, and if not shewn, it is improper to allow it.
    3. If an execution is issued by the clerk without an order of the Court, or the Judge in vacation, the Court may quash the execution in term, or the Judge in vacation may restrain proceedings upon it by an injunction order.
    
      Washington Apperson filed his bill in the Circuit court of Amherst county against George Shackelford, to subject a tract of land which he had sold to Shackelford, for the payment of a balance of purchase money still due. This case was so proceeded in, that on the 30th of March 1843, the Circuit court, in pursuance of a decree of this Court, made a decree that the defendant should pay to the plaintiff 2986 dollars 41 cents, with interest thereon at the rate of six per cent, per annum from the 1st day of August 1841 till paid, and his costs : And unless the same was paid within 30 days from the date of the decree, that the sheriff of the county, who was appointed a commissioner for the purpose, should after thirty days notice, sell the land in the proceedings mentioned, or so much thereof as should be necessary, at public auction, on a credit of six, twelve and eighteen months, taking bond and security of the purchaser, and retaining the title as ultimate security therefor; and make report of his proceedings to the Court.
    After the adjournment of the Court, Apperson sued out of the clerk’s office an execution of fieri facias upon this decree, and the same having been levied on the slaves of Shackelford, he gave a forthcoming bond for their delivery at the time and place of sale.
    
      Shackelford then applied for an injunction to restrain Apperson from all further proceedings under the execution and levy, upon the ground that the execution was improperly sued out upon the decree, and the Court not being in session, he could not move to have the execution quashed. The injunction was granted.
    
      Apperson answered the bill, and insisted upon his right to sue out the execution. And at the next term of the Court, the cause coming on to be heard on a motion to dissolve the injunction, the Court being of opinion that the injunction was only proper to stay proceedings until the plaintiff could have an opportunity to move to quash the execution, and regarding the question arising on the motion to dissolve as equivalent to a motion to quash the execution, which motion, if regularly made, the Court would, in consideration of the circumstances of the case, overrule, dissolved the injunction and dismissed the bill, with costs. Whereupon Shackelford applied to this Court for an appeal, which was allowed.
    
      
      Taylor, for the appellant.
    
      Garland, for the appellee
   Baldwin, J.

delivered the opinion of the Court.

It is only by force of our statute law that process of execution can be sued out upon decrees in chancery. Our act concerning executions, 1 Rev. Code, p. 545, § 55, authorizes such process to be issued by the clerk, on the application of a party who has obtained a final decree for lands, slaves, money, or things of a specific nature, in like manner as upon a final judgment at law. In regard to interlocutory decrees, the clerk has no such authority, without the order of the Court, or of the Judge thereof in vacation, as provided by the 56th section of the same act. In the present case, the decree was wholly interlocutory, and liable in respect to the money directed to be paid, to modification, by the sale of the land provided for in the event of non-payment. Circumstances, it is true, may exist to warrant the exercise of the discretionary power of the Court or Judge to allow process of execution upon such an interlocutory decree. But it is a matter for the sound discretion of the Court or Judge, not the arbitrary will of the party, which might be exerted with extreme harshness and oppression. The execution having issued irregularly and unlawfully, it was competent for the Court to quash it in term time, or for the Judge in vacation to restrain proceedings upon it by an injunction order. No circumstances appear which would have rendered the awarding of execution upon the decree proper, if application had been made to the Court or Judge for that purpose; and none could justify the abuse of suing it out without authority.

The Court is therefore of opinion, that the order of the Circuit court dissolving the injunction which had been granted to the appellant, and dismissing his bill, is erroneous; and it is decreed and ordered, that the same be reversed and annulled, with costs tq the appellant. And it is further ordered and decreed, that the said bill and injunction be reinstated; and the cause is remanded to the Circuit court, to be proceeded in to a final decree in conformity with the principles above declared.  