
    *Harrison & Co. v. Tomkins, Ex’r of Hickman.
    [Tuesday, May 15th, 1798.]
    Executors of Sheriff — Distringas.—No distringas lies against the executors of the old Sheriff, to-oblige . them to sell property taken-DV him. in his life-time ■ • under a writ of fieri facias.
    The question in this case was, whether a writ of distringas can be issued against the executors of a deceased Sheriff, in order'to compel them to sell the property taken by one of his deputies under a writ of fieri facias?
    Call, for the appellants.
    I have not found authorities upon either side of this question; but, upon principle, I do not see any objection to' the practice, which-, I ám-informed, has been i-n.use in the General Court.
    If an execution be levied,! and sufficient property taken to- discharge it, the- judgment is satisfied,- and no new execution can issue on it. [Oviat v. Vyner,] 1 Salk. 318; 4 Com. Dig. .140; Baird v. Rice, ante p. 18, in this Court. As, -therefore, the plaintiff cannot have a new execution, nor the,defendant take his property-back, the Sheriff necessarily becomes a trustee of the property, first to pay and satisfy the plaintiff’s demand, and-then for the defendant as to any surplus, which may remain after the execution is satisfied; and, as - the law did not allow the change of- the -property from one hand to-another, it was upon -the-foregoing principles settled, that'the, old Sheriff was compellable to sell. 1st. From necessity, because otherwise the plaintiff could never be satisfied: 2d. In order to prevent loss and litigation by changing the property from one hand to the other, which might produce contests . about the possession of it. Hence, the writ of distringas in order to compel the old Sheriff to proceed to the sale. Clerk v. Withers, 1 Salk. 322, [2 Ld. Raym. 1072]. But, this writ does not give any new authority. It is merely compuL sive: and only- obliges the party to do that which he was bound to-.perform before. 4 Com. Dig. 124.
    *The writ,, therefore, does not create any new trust, but only exacts performance of the first: so, that, it is the old trust which continues; and, this of course1 descends' upon the executors', who are. obliged to perform it, according to the constant doctrines upon the ' subject of trusts. A qualified- property , pro Hac vice; in the subject is transmitted to them by the testator, and to this the power of sale must be incident; because, otherwise the trust cannot be performed.
    But, if they have the power to make sale-, then they are bound to do it, and may be compelled thereto, by process adapted to the occasion.
    Upon these grounds the law holds them responsible, and obliges them to answer the demand, 2 Bac. Abr. 355: which case is almost the same with that at bar, except that it does not state in so many words that a distringas may issue.
    It cannot be objected, that the writ may affect their situation as executors.: 1st.
    Because, the creditors have no right to the property which is pledged for a particular purpose. 2d. Because, the same objection would lie to an action of detinue; .which certainly may b.e maintained against an executor. , ....
    It may perhaps be said, that the plaintiffs will not be without remedy; because, a Court of Equity may interpose and order a sale of the property. But that argument does not weigh much: 1st, Because the Courts of Law must be competent to enforce their own judgments. Actions at common law'were before bills in equity; and the law certainly would never have suffered a right to exist, without a remedy.' Nor, can we conceive the Courts of Law to have been without authority to enforce their judgments, until Courts of Equity were established to afford them assistance. 2d. Because that mode is expensive and calculated to produce delay,' without .putting the executor ini', a better situation than he would be under the distringas. For, the Court will not award it, where the 297. executor ':<‘shews he never had the property; or, if- it should inadvertently issue in, any such case, upon application to the Court, the distringas would betaken off: which are sufficient securities to .the executor where he has not the property;. and where he has, he may always avoid the inconvenience of the distringas, by complying with the exigencies of the writ. ■
    Warden, contra. ■
    If the process was common, as is said .upon the other side] there would have been no occasion for a special, application to the Court for it; but, it would have issued of course. There never was but one instance of it in the General' Court,. and even in that, no entry of the order is made.
    None but a Sheriff has a right to execute process either by common - or, statute law, Old Virginia law, p. 191, 195, and, therefore, an executor who is no officer of the Court, nor any known .to them, cannot. So, that the executor will be subjected to a process, very violent in, its .operation q.nd affécting his own estate, without any default on his part: which would be the extremest injustice. ■ That no such authority existed in the executor at common law, is proved by a statute made in England, ’ in the time of George 1st, which gives the deputy Sheriff power to proceed- to-do the duties of the Sheriff’s office, after the death of the high Sheriff, until a successor is appointed. 5 Stat. Abr. 241. This would have been unnecessary, if the executors could have done it before; and is, therefore, a decisive argument against what is contended for upon the other side.
    At common law, the new Sheriff must take care of prisoners, whereof the old Sheriff died in custody; and this, without any interference of the executors of the deceased Sheriff. Dalt. Shf. 17. The principle of which strongly applies to the case under consideration. For, if the executors have nothing to do with the prisoners in that case, why have they with the goods here? If the custody of the goods belonged to them, the custody of the nrisoners 298 *ought likewise; and, if they are liable for the goods, they ought to be so for the prisoners also.
    An action of debt was the proper remedy; and the passage cited from Bacon establishes no more. Dalt. Shf. 515. The property taken by the deputy seldom comes to the actual possession of the Sheriff; and it would, theréfore, be very harsh to render his executors liable for it, by such a summary process. For, the same reason does not apply between the executors and the deputy Sheriff, as between the Sheriff and the deputy: Because, the Sheriff has control over his deputy, but the executors have not. He cited 1 Rol. Abr. 598; 2 Danv. Abr. 495.
    Randolph, on the same side. After the lengthy discussion which has already taken place, I shall add but a few remarks in addition to what Mr. Warden has said. It is admitted, that no express precedent for the proceeding is to be found in any of the books; and the whole argument upon the other side is built upon a supposed analogy betwixt this and the cases mentioned by the appellant’s counsel; but, upon examination the analogy will be found not to exist. The great point of difference betwixt them is, that executors, not being officers of the Court, have nothing to do with the execution of process, and can make no return to it. Whereas, in the cases stated on the other side, the execution was either completed and only the product required, or they were actions for failure to do his duty, and, therefore, were grounded on his own proper act: in which respect, thej' stood on the common footing of actions for his transactions. But, the object here is not to ascertain anj- misconduct in the Sheriff, for none is alleged, but to compel the intromission of the executor, in an affair which he has nothing to do with : and this by a grievous process, which leaves him no election; but forces him to act whether he will or not, before he has had any opportunity of defending his conduct. Ray further, if the goods have not even come to his hands, so that he 299 has no control *over them, still he is liable to be exposed to the effects of this summary proceeding; without any means of mitigating its rigor. So, that for the misconduct of a deputy Sheriff, a man, whose misfortune it is to be an executor of the innocent Sheriff, may be subjected to all the pains of a distress, until perhaps he has paid the debt with his own money: which would actually be the effect of the process in the very case now before the Court. But, such a system of things cannot be endured; and, therefore, it will never meet with the approbation of this Court.
    If analogy was to give the rule, it would be found much stronger in favor of the judgment of the District Court, than against it. For, from the strict resemblance between many of the cases put by Mr. Warden, (where executors could not interfere,) and the case now before the Court, the inference would be very fair, that they could not act in this case either; and, therefore, that no process of compulsion ought to issue against them. It is no objection, that otherwise, there will be no remedy for the creditor; because, it would be as hard on the executor as it is on him; and, the remedy, if one be necessary, must be provided by the Legislature. But, why should this not be the subject of a suit? If the Sheriff had made the money, it is clear that an action would have lain; and, why not, where the property remains in specie? However, be that as it may, the executor is not bound to enquire what remedies.the creditor may have; but, it is sufficient at present to have shewn, that he is not entitled to that which he has pursued.
    Call, in reply.
    The statute of George 1st, only relates to things which no-body could do before, as the service of writs, or the commencing of executions ; but, if I am right, the executors could sell without, and, therefore, the argument drawn from the statute has no influence on the case. As to the violence of the process, that inconvenience is obviated as well by the observation made before, that the executor may have it taken off, or comply with the mandate of the writ, 300 as by this ^additional reflection, that . instead of the great distress the distringas may be by issues only, which will not be condemned, • unless it appears that the executor has been in fault. As to the passage from Dalt. 17, that perhaps turned, 1st. Upon the new Sheriff, and not the executor, being keeper of the jail. 2d. Upon the difference between a ca. sa. and a fi. fa. ; because, the goods may be lost by changing them from hand to hand, which is an inconvenience not applicable to the case of the prisoners. 3d. Because, the writ being once executed and returned, there was an end of the process.
    The argument, that a suit will lie against the executor, concludes directly against the appellee. Because, it supposes a right to sell; or, else the law would not subject him to the action. As to the objection, that if the'money had been made, a suit would have been necessary, it was not strictly correct. For, a scire facias would have been sufficient. So, that process only is necessary, and not an original suit. But, the use of process can only be to ascertain the rig’ht and found the order to pay it over. And, if so, why not the rule and process of distringas, as well as any other? For, it is not in fact more summary than the scirefacias; which, in reality, is itself no more than a summons to shew cause: and, therefore, if proper notice is given to defend himself, it cannot be important whether it be by way of rule or by a writ of scire facias.
   PENDLETON, President.

After stating the case, delivered the resolution of the Court as follows:

On view and consideration of the. whole cases on the subject, we find no instance of a distringas to a new Sheriff, to compel the executors of a former Sheriff to sell goods taken in execution by him, nor any principle upon which that mode of proceeding can be extended.

It is, therefore, over-ruled as oppressive to executors, throwing upon them, 301 under a severe penalty, the *burthen of performing a duty, which if they had power to perform it at all, was probably not contemplated by them, when, they undertook the office.

What remedy the appellants may be entitled to, is not for the Court to say on this occasion. It is sufficient for us to decide, that they are not entitled to the one applied for.

Judgment of the District Court affirmed.  