
    Silvester Richmond, Esqr., Appellant, vers. Benja: & Edward Davis, Appellees. 
    
    1768.
    An Officer receiving an Execution without any special Directions from the Creditor, is holden by Law to levy the fame on such Goods or Estate as may have been attached on the Writ. Trow-bridge, J. dissentiente.
    
    
      
       This was an action originally brought against the appellant as sheriff, to recover damages for the default of his deputy in not levying an execution upon certain property of the judgment debtor, which had been attached on the writ.
    
   THE Jury find specially: 1. That the Goods and Estate of Ebenezer Stetson were legally attached, on the third Day of May, by the Appellant, to answer the Demand of the Appellees against said Stetson.

2. That said Stetson doth not appear to us to be an absconding Debtor, till the fixth Day of said May.

3. That the Execution in the Case was delivered to the Appellant, before thirty Days after Judgment were expired.

4. That the laid Appellees gave the Appellant no Orders, or Directions, concerning the attached Effects.

5. That, if the Appellant was held by Law to levy his Execution on said Effects, without any special Directions from the Creditors, the Jury find for the Appellees the Sum of £762. 7. 10, Money, Damage and Cofts, otherwise they find for the Appellant.

This Cafe was largely handled at the Bar, by the Council on both Sides. But, as the Arguments were all taken up by the Bench, we proceed to the Learned Argument of the puisne Judge.

The Writ of Execution, and the Officer’s Duty thereon, confidered by Judge Trowbridge, in the Case of Davis & Richmond.

A common Judgment Creditor, in England, has his Election to sue out a Levari Facias, a Fieri Facias, Elegit, or Capias ad Satisfaciendum, but can execute but one of them at the same Time.

The Levari Facias commands the Sheriff, that, of the Lands, Goods and Chattels of the Debtor, he cause to be Levied, the Sum recovered, so that he have it in Court, &c., to be delivered to the Creditors.

The Fieri Facias commands the Sheriff, that he cause to be made, of the Goods and Chattels of the Debtor, the Sum recovered, and to have the Money in Court, &c., to render the Creditor his Debt, &c.

The Elegit commands the Sheriff to deliver the Debtor’s Goods and Chattels (except his Cattle of the Plough,) and half of his Land, at a reafonable Price and Extent, to hold untill the Debt is Levied.

The Capias ad Satisfaciendum commands the Sheriff to take the Debtor’s Body, and bring him into Court, at the Return-Day, that he may pay the Debt, &c.

All these Writs are directed to the Sheriff only, and he only is to make Return thereof. Upon the Levari Facias, the Money is to be levied by Sale of the Goods and Chattels. Upon the Fieri Facias, the Sheriff is to make the Money, by Sale of the Goods and Chattels. Upon the Elegit, the Sheriff cannot sell, but must deliver the Goods and Chattels, and half the Lands to the Creditor, at the Value put on them by a Jury of twelve Men under Oath, and if there be Goods and Chattels enough to answer the Debt, &c., the Land is not to be extended. If the Debtor pays the Money, the Sheriff ought not to sell the Goods on the Levari Facias, or Fieri Facias, or deliver them, or extend the Land on the Elegit. Though, by the Capias ad Satisfaciendum, the Sheriff is commanded to bring the Body into Court, yet, if he receive the Money of the Debtor, and bring it into Court, or pay it to the Creditor, the Court will excuse him.

A Common Judgment-Creditor here can have but one Execution, and that is directed to the Sheriff, his Undersheriff, or Deputy; reciting the Judgment, and commanding them, that, of the Goods, Chattels, or Lands of the Debtor, they cause to be paid and satisfied to the Creditor, at the Value thereof in Money, the aforesaid Sums, and thereof also to satisfy themselves for their own Fees, and, for Want of Goods, Chattels, or Lands of the Debtor, shewn, or found, to the Acceptance of the Creditor, they are commanded to take the Debtor and commit him to goal there detain him untill he pays the full Sums aforesaid, with their Fees, or that he be discharged by the Creditor, &c., and to make Return of Doings, &c. The Officer is not commanded to Levy such Sum of Money, of the Goods, &c., and to bring it into Court, (as by the Levari Facias,) or to pay it to the Creditor, or to make of the Goods and Chattels of the Debtor, the Sums recovered, and bring the Money into Court, (as by the Fieri Facias,) or to pay the Money to the Creditor, — but is, of the Debtor’s Goods, Chattels, or Lands, to cause to be paid and satisfied to the Creditor, at the Value thereof in Money, the Sums recovered, &c.; that is, to cause the Creditor to be paid and satisfied his Debt in the Goods, Chattels, or Lands of the Debtor, at a reasonable Price and Extent, as in the Elegit; and the Officer being also commanded for Want of Goods, See., to the Acceptance of the Creditor, to take the Debtor and imprison him, shews that the Creditor has his Election to take his Satisfaction in the Goods, Chattels, or Lands of the Debtor, or to have his Body imprisoned untill he pays the Money; and that he has no other Choice. He cannot oblige the Officer to take the Debtor’s Goods, Chattels or Lands, and sell them, and thereby raise Money to pay the Debt; nor can he do it, without the Consent of the Debtor.

The Sheriff has no Right to take a Debtor’s Estate and sell it, unless he is impowered by Law to do it; and neither the Common Law, nor any Statute or Law of the Province impowers him to do it here, unless it be the Execution established by - Law; and that neither expressly impowers him to do it, nor requires him to do any Thing, that he cannot do without having such a Power, as doth the Levari Facias and Fieri Facias; and therefore, he has no such Power.

Of what Consequence will it be to the Creditor, whether Goods or Estate, tendered or found, was to his Acceptance, or not, if the Creditor was not to receive the Same in Satisfaction. of his Debt, but the Officer was obliged to raise the Money by the Sale thereof? It should, in that Cafe, rather have been, to the Acceptance of the Officer, than the Creditor; but the Writ expressly makes the Debtor’s being imprisoned or not depend on the Goods or Eftate, tendered or found, being to the Acceptance of the Creditor, or not; or, in other Words, on his being content to receive the Same at the appraised Value, in Satisfaction of the Judgment.

There is neither Price nor Value mentioned in the Fieri Facias, nor the Levari Facias; nor was it proper for either to be inserted in either of those Writs, as the Estate was to be sold for the most it would fetch, be it more or less: Because, if either the Words, “at a reafonable Price,” as in the Elegit, or “ at the Value thereof in Money,” as in our Writ, had been in the Levari Facias or the Fieri Facias, the Sheriff must have caused the Estate to be appraised, before he fold it for the most it would fetch, and made return thereof accordingly; and that would hare been attended with considerable Expense to no good Purpose, and for that Reason was not inserted in either of those Writs, upon which the Money was to be raised by the Sale of the Estate; but with great Propriety was inserted in our Writ, whereby the Creditor was to receive his Satisfaction in the Estate, if he pleased, and was not, by the Proceeds of the Sale of it.

The Words “to the Acceptance of the Creditor” were not in the Writ when it was first established, as it appears by the 4th and 5th of Wm. & Mary, c. 21, but were inserted by Force of that Act, on Purpose to give the Creditor the Election aforesaid, and to oblige the Officer to govern himself accordingly. The Clausé of the Act to this Purpose is not in either of the laft Imprefiions of our Laws, but is in the Province Law-Book printed in 1726, p. 35. The Words are these, vizt., “And whereas, by the "Precedent or Form of an Execution, the Officer is commanded for Want of Goods, Chattels or Lands of the Debtor, to be by him shewn or “found, within the Precind, to take the Body of “such Debtor and commit him to Prison: — It is hereby explained, enacted and declared by the Authority aforesaid, that where Judgment is granted for Money, or any particular Specie, the Creditor shall not he compelled to take any other Specie, but every such Cafe, for Want thereof, the Officer shall take the Body of the Debtor in Execution and imprison him, unless such Creditor shall be content to receive his Satisfaction in such other “Estate as may be tendered or found. And the Words ‘ to the Acceptance of the said A. B.’ shall “ be supplied and inserted in the Writ of Execution, “ to follow next the Word ‘ Precint.’

Here is not the least; Intimation given, that the Officer was to raise the Money by the Sale of the Debtor’s Eftate; but, on the contrary, it plainly appears, that the Makers of this Ad thought that, upon the old Writ, the Creditor was obliged to take his Satisfadion in fuch Eftate of the Debtor as was tendered or found, or go without Satisfaction; which could not be the Case, if the Officer was obliged to raise the Money by the Sale of the Estate; and therefore, they enact, that, where Judgment is for Money, he shall not be compelled to take any other Specie, but, for Want of it, the Officer shall imprison the Debtor, unless the Creditor is content to receive his Satisfaction in fuch other Estate as may be tendered or found; but don’t add, “ or unless the Officer can raise the Money by Sale of the Eftate,” or Words to that Effect — as they doubtless would have done, had they supposed he was obliged to do it, if the Creditor chose he should, rather than receive the state, or have the Body imprisoned. It is plain also, that the Makers of this Act thought, that the inserting those Words, “ to the Acceptance of the Creditor,” in the Execution, would give the Creditor, for Want of the Money being paid by the Debtor, his Election to receive his Satisfaction in other Estate, or to have the Debtor imprisoned untill he paid the Money; and they intended it should have that Effect, and, therefore, the present Writ ought to be ib underftood and construct. Eipecially, as this is the Sense put upon it by an explanatory Act. Carth. 396. 4 Bac. Abr. 650. lO Co. 101. 11 Co. 73*

In England, the Creditor has this Election, and makes it by suing out the Elegit or Capias ad Satisfaciendum, and here, the same Election is given him, though both those Writs are included in one. As, on the Elegit, the Sheriff could not extend the Lands, if there were Goods or Chattels enough to answer the Debt, &c., so the Act of 8 W, 3, c. 3, subject the Land to be taken in Execution, unless the Debtor or his Attorney tenders the Officer personal Estate sufficient to pay the Debt, &c.; But this don’t take from the Creditor his Election of receiving his Satisfaction in the Estate tendered or found, or having the Body imprisoned; nor doth it impower the Officer to fsell the Eslate tendered, unless the tendering it to him be confidered as an Evidence of the Debtor’s Confent that he should sell it, which ought not to be. For the Debtor may well be presumed to choose to pay his Creditor in Personal Estate, at the appraised Value, rather than his Real — especially, as then he could not redeem either — and to choose to take the Chance of his being taken and imprisoned, untill he raised the Money, by pawning, mortgaging or selling his Estate to the best Advantage; rather than to put it in the Power of an Officer, to fell it for the most it would fetch —perhaps, for half its Value.

Again, if the Legislature had designed, the Sheriff should fell a living Debtor’s Estate, and thereby raise Money to pay the Debt, &c., they would not have made the Precept in the Form they did; but would either have expressly required him to sell it, or to have done that which could not be done without selling the Estate; as is done in the Levari Facias or the Fieri Facias; or would by some express Law have empowered the Sheriff to sell the Debtor’s Estate, as they by the 2 An. c. 5, impowered him to sell a deceased Debtor’s Estate, where the Creditor had Judgment and Execution for Money, and was not content to receive Satisfaction in the Goods or Estate of the Deceased, at an appraised Value. Here, the Creditor has his Election to take his Satisfaction in the Estate, or the Proceeds of the Sale of it. But, in the former Case, to have the Debtor’s Estate, or his Body imprisoned, which would oblige him to raise the Money and to pay the Debt: And because the Body of the Executor or Administrator could not be imprisoned for the Deceased’s Debt, and thereby be compelled to pay the Money, the Legislature, agreeable to the Spirit of the explanatory Act aforesaid, in Order to prevent the Creditor’s being obliged to take his Satisfaction in the Deceased’s Estate, at an appraised Value, enabled the Sheriff to sell it, and thereby to raise the Money and pay the Debt. There is a good Reason for the Sheriff’s being impowered to fell a deceased Debtor’s Estate, which doth not hold good in the other Case. — What Reason can be assigned for the Sheriff’s being so expressly impowered by this Act to sell in this Case, if he was before, by the Writ of Execution or any prior Law impowered to do it? Surely, no good Reason can be assigned for it. The Words of the Execution, so far as respects the Estate, are the same in both Cases.

The Legislature hath, in many Cases, impowered Officers, as well as others, to sell Estates; but, then, it hath always been done by express Words, plainly and clearly giving them Power to do so. From thence may be deduced an additional Argument to prove that they did not intend, by our Writ of Execution, to impower the Sheriff to sell any Debtor’s Estate.

By our Writ of Attachment, or Capias, the Sheriff his Undersheriff or Deputy are commanded to attach the Goods or Estate of a supposed Wrongdoer, to a certain Value, &c., and for Want thereof, to take his Body, so that they have him at Court, to answer the Plaintiff, and to make Return of their Doings. And by 13 W. 3, c. 15, the Estate so attached is not to be discharged, untill thirty Days after Judgment for the Plaintiff; to the Intent, he may take the same by Execution, for satisfying the Judgment, so far as the Value thereof can extend, if he think fit, unless the Judgment be sooner, or otherwise satisfied. And the same Act provides, that, if the Body be taken and imprisoned on that Writ, it shall be held the same Time after Judgment for the Plaintiff that it may be taken in Execution; if the Plaintiff don’t order the Sheriff to discharge him before. The Difference in the Mode of Expression in the same Act is observable; the Body is to be held, that it may be taken in Execution — the Estate is to be held, that the Plaintiff may take the same in Execution to satisfy the Judgment, so far as the Value thereof can extend, if he think fit: — that is, if he chooses to receive the same at the apprized Value. This Act strongly implies that the Judgment may be satisfied within the 30 days, otherwise than by the Estate attached, or the Body’s being taken in Execution; and the 6 Geo. ch. 2, expressly impowers the Creditor to cause the Judgment to be otherwise satisfied; for it is thereby enaded, that, when any Person recovers Judgment for Money, or any other Specie, and the Debtor is either unwilling or unable to satisfy the Judgment by Money or other Specie, and the Creditor, finding no other personal Estate to his Acceptance, doth therefore think fit to levy upon the Real Estate of the Debtor, rather than on the Person of the Debtor, the Officer shall cause it to be apprized and set out by three Persons sworn and appointed as the Act directs, and deliver the Creditor Possession thereof, and make return thereof accordingly. And, if the Real Estate cannot be divided and set out by Meets and Bounds, then he shall extend the Rents, &c.

This Act extends to all Cases where the Debtor is unwilling or unable to pay the Money or other particular Specie the Judgment is for; and his not paying it, especially if demanded, will be an Evidence of his being either unwilling or unable to do it; — and, therefore, it must extend to the Cases, where the Body or Estate is taken upon the Capias, or Attachment, and the 30 days not expired: Because the Debtor’s being in Prison don’t show him to be able or willing to pay the Money; — nor doth the Officer’s attaching Estate, though by Direction of the Plaintiff, shew, that, when the Plaintiff has recovered Judgment, he is content to receive his Satisfaction in the Estate so attached, rather than in other Estate of the Debtor, or rather than the Debtor’s Body should be imprisoned untill he pays the Money, which this Act intends, by levying on the Person of the Debtor. And this Act alters the Condition upon which Real Estate might be taken in Execution by the 8 W. 3, from a Tender, to an Acceptance; and giving the Creditor his Election to take his Satisfaction in any Part of the Debtor’s Estate, Real, or Personal, or to have his Body imprisoned untill he pays the Money.

As the Creditor has this Right of Election, so the Debtor, in Consequence thereof, has a Right to his Liberty, if Goods, Chattels or Lands are shewn or found, to the Acceptance of the Creditor, to satisfy the Judgment, &c. And it is at the Peril of the Officer, that he infringes the Right of the one or the other. As the Officer’s Duty, as well as the Debtor’s Right, depends upon the Creditor’s Election, the Officer cannot possibly know what he ought to do, and therefore, neither in Reason or Law is obliged to act, untill that Election is expressly made, or, by some Act of the Creditor, is reasonably supposed to be made. If the Creditor, instead of Money, is willing to accept the Debtor’s Goods, Chattels or Lands, in Satisfaction of his Debt, it is the Officer’s Duty to cause him therewith to be satisfied; but, if he is not willing, it is the Officer’s Duty, for Want of Money, to take ye Debtor, and imprison him. As soon as the Officer has the Writ of Execution, he ought to know what he is to do by Force of it; or at least the first Step he is to take; and, if that depends upon the Will of the Creditor, he only can, and therefore ought to make it known to the Officer, as soon as he delivers to him the Writ.

The Debtor is allowed 24 hours, after Judgment, to pay the Money, and thereby prevent the Execution’s issuing against him; and, if he does not pay it in that time, it is supposed he cannot or will not do it; — and thereupon the Execution issues in the Form prescribed; and wherein no Mention is made of the Money’s being paid, or to be paid by the Debtor, or of its being demanded of him, and, therefore, the Officer is not obliged to demand the Money of the Debtor, or even let him know he has an Execution against him, before he arrests him or takes his Estate. The first Step, therefore, the Officer is to take, is to find and take the Debtor’s Body or Estate. If the Officer, by Force of the Writ, has a Right to take the Debtor’s Goods and Chattels, and doth take of them to the Value of the Debt, &c., the Debtor may be thereby discharged of the Debt, and the Creditor obliged to look to the Officer. For if (2 Bac. 355) the Officer is not obliged to seek for any Estate, which, when found, it is not lawfull for him to take, and he has no Right to take the Estate, unless the Creditor is content to receive it instead of the Money, and is a Trespasser if he doth it against the Will of the Debtor, it cannot be thought reasonable that the Officer should be obliged to find and take the Debtor’s Goods and Chattels from him, and carry them to the Creditor, or keep them untill he will come to see if he is content to receive them at the Value they may be apprized at, instead of the Money; and, if he will not, that the Officer should be obliged to return them back to the Debtor, or to his House, and then look out for the Debtor, and imprison him. The Creditor may as well say, that he will not make his Election, untill the Estate, Real and Personal, be apprized; whereas, by 6 Geo., it is plain the Election must be before the Apprizement; because it is on the Creditor’s thinking sit to levy on the Real Estate, that the Officer is to cause it to be apprized, set out, and delivered to the Creditor. Indeed, if he thinks an unreasonable Value is set upon the Estate, he may apply to the Court whence the Execution issued, to prevent the Officer’s Return being filed and recorded; and, upon just Cause shewn, they will not allow it to be done; and then the Creditor may have an Alias-Execution. But, if the Officer returns, that he has caused the Estate to be apprized, Sec., and has delivered possession thereof to the Creditor, and the Return be filed and recorded, the Creditor is bound thereby, but may have an Action of Ejectment, to recover the Land, if Possession thereof was not actually given him; and that Return will enable him to do it, if the Land was the Debtor’s in Fee, when extended. Ld. Raymond, 346. Cro. Jam. 246. Holt, 348. L. R. 77.

Upon the Whole, ye Creditor ought to make his Election as soon as ye Officer has ye Writ of Execution: and, if he delivers, or sends ye Execution to him without declaring his being content to receive his Satisfaction in ye Debtor’s Estate, or giving the Officer any Direction concerning it, it is to be presumed he is not content to receive his Satisfaction in any other Estate of the Debtor’s, than Money; for, his Willingness not appearing, when it ought to appear, if he is willing — he, in Judgment of Law, is not willing, according to the Rule, that, that which doth not appear, is not; especially, as ye Officer must, for Want of the Money, take the Debtor and imprison him, is to be found, which is esteemed, in Reason and in Law, the highest and best Execution, and most forceable. Hob. 61.

And, that, is Goods, Chattels or Lands were taken, ye Creditor must appoint one of the three Apprizers. The Officer, upon an Execution here, cannot determine the Value of Goods, Chattels or Lands, any more than the Sheriff, in England, can, ye Price and Extent on the Elegit; and therefore, he must find the Value by ye Verdict of a Jury, that being the Rule at Common Law; unless that Rule be altered by some Statute or Law of the Province. Now, although there is no Act of Parliament, or of this Province, touching this Matter, that expressly mentions Goods or Chattels, yet, as the 6 Geo. directs, that ye Value of Real Estate taken in Execution shall be determined by three Freeholders, under Oath, one of whom to be appointed by ye Creditor, it may be reasonably supposed, that ye Makers of that Act intended the Officer should observe the same Rule in Regard to Goods and Chattels; and, therefore, that Act is, by an equitable Construction, extended to Goods and Chattels. So that, if the Creditor is content to receive his Satisfaction in Goods, Chattels or Lands, he must appoint one of the Persons who are to apprize the same. And he must also, by himself or by somebody else, receive the Goods and Chattels after they are apprized; for the Officer is not obliged to carry them to the Creditor, whatever they are, or wherever he be. And, therefore, if the Creditor points out no particular Estate, nor nominates or appoints any Person to apprize the Estate that may be found, or receive it for him, or give any particular Directions concerning it, it is reasonable to suppose he has no Thought of taking Anything but the Money or Body, although Goods, Chattels or Lands were attached, even by the Plaintiff’s Orders, on the original Writ; for, after Judgment, he is not obliged to take them, as appears above. And a Creditor may, and often doth think himself in Danger of losing the Debt, and therefore directs the Officer to attach Estate that he would be very unwilling to take, at the apprized Value, instead of the Money, if he had any Prospect of getting the Money any other Way: — And, sometimes, directs Estate to be attached, which he only suspects to be the Debtor’s, and that, before Judgment, he finds the Debtor has no Right in. And, therefore, as ye Creditor is not obliged to take the Estate in Execution that was attached by his Order, on ye original Writ; so neither is any Attachment of Estate of ye Debtor, any Evidence of the Creditor being after Judgment content to receive it, in Satisfaction of his Debt, as will justifie ye Officer’s taking it by ye Execution — much less oblige him to do it.

It has been said, the Sheriff, his Undersheriff and Deputies are but one, and all Acts done by the Undersheriff and Deputies, are, in Law, considered as done by the Sheriff himself. If this be Law, in this Province, it affords a very strong Argument, that the Plaintiff’s directing an Officer to attach Estate on the original Writ, is not, without further Directions, such Evidence as will make it the Officer’s Duty to take it by the Execution; because the Rules must be the same, whether the Execution be delivered ye Person who made ye Attachment, or to another. Suppose, then, the Sheriff of Middlesex attaches Estate by Force of a Writ returnable to Worcester Inferiour Court, and returns it, and Judgment is obtained, and Execution issues thereon, and is sent to a Deputy Sheriff, at Malborough, within ye 30 days, without any special Direction, or Notice given that any Estate was taken, and ye Deputy knows not that any was attached, and doth not take it, but looks out for the Debtor — is he guilty of any Fault; or subject to an Action, when he is guilty of none; or is ye Sheriff in Fault for not taking the Estate, by the Execution, when he had it not; or subject to an Action for not doing that, which, without any Fault of his, he never had it in his Power to do ; — or for the Default of his Deputy, who had not been guilty of any?—Surely Natural Justice forbids it; and therefore, he, who affirms, must shew some clear, express, positive Law, subjecting the Sheriff to an Action in such Case as this, before he can be believed. And it may, and frequently doth happen, that Attachments are made by one Person, and the Execution delivered to another: But, then, if the Creditor would have the Estate that was attached taken in Execution, he tells the Officer to whom he gives ye Execution, of it, and directs him to take it in Execution. And furely, it is much more reasonable that a Creditor should let ye Officer know, when he gives him the Execution, that he is content to take his Satisfaction in ye Debtor’s Estate, than that the Sheriff should be obliged to give Notice to his Underiheriff and Deputies of what he doth on every Writ of Attachment, and that they should do the like to him, and to each other; which must be done to save the Sheriff from being subject to an Action, in such a Cafe as is before mentioned, if the Law be as is suggested. In England, where ye Writ is directed to the Sheriff, and returned by him only, it may reasonably be supposed he knows what is done by himself, or his Undersheriff, or Deputies, who make Return of their Doings to him, for him to make his Return by; but here, where ye Writs are directed and delivered to ye Deputies, as well as ye Principal, and executed and returned by them to ye Court, according to ye Command therein, it cannot reasonably be supposed he should know what they have done; or they, what he and each other have done; and, therefore, the Creditor must make his Election after Judgment, although Estate be attached by his Order, on the original Writ. ()

But the four other Judges were of a different Opinion. They did not give their Opinions at large, as Judge Trowbridge had done, but seemed to ground themselves upon the contemporaneous Exposition of our Laws (which they conceived to have been against Judge Trowbridge’s Opinion) and the uninterrupted Practice of the Sheriffs in this Province.

Judgment was thereupon rendered for the Appellees, for the Sum of — and Costs. From which Judgment, the’ Appellant claimed his Appeal to ye King in Council.

Qu. whether there is any Reliance to be made on a contemporaneous Exposition of Laws, unless such Exposition has been made, seriatim, by the King’s Judges. — Now such Exposition was never pretended: — And if the Laws will not warrant certain Proceedings, can any Practice whatever establish them against Law?

-“ Marcellus-

“ Ingreditur— Viros supereminet omnes.'‘ 
      
       3 Inst. 396.
     
      
       a Inft. 396.
     
      
      
         The Act for redeeming real Estate taken in Execution was not made, till the 12th of Ann.
     
      
      
         Ld. Raymond, 1075. If the Sheriff feizes Goods, on a Fi. Fac., and they are rescued out of his Hands, he is answerable for them, and for the same Reason must be so, if he takes them from the Debtor, on the Elegit.
      
     
      
       See 12 Met. 537, where it is intimated that want of knowledge of an attachment returned in another county will excuse the officer.
     
      
       See Dalton Sher. 96, 181 — to whom original Writs are to be directed and by whom to be returned.
     
      
      (3) This opinion of Judge Trowbridge is also published in the supplement to 14 Mass. 473, from a copy taken by Hon. Increase Sumner, formerly Justice of the Supreme Judicial Court. We have not, however, on that account, thought belt to omit Quincy’s report from the term where it properly belongs.
     
      
       This “ practice of the sheriffs ” appears to have been that of selling personal property on execution ; for, a few years later, an aft was passed, reciting that doubts had arisen as to their right to do so, and formally establishing the same. Anc. Chart. 675.
      At the present day although the creditor may make his election, and if he would levy on real estate or the body, must do fo ; yet in the absence of any instructions it would seem that the officer’s neglect to take and sell personal property, known to be attached, would be against the creditor’s “ manifest interest,” and “ would not bind him to lose a security which he had previously and lawfully obtained.” See 11 Mass. 321. Also 12 Met. 532, by Shaw, C. J., in describing the duties of an attaching officer. — “ If, within thirty days after judgment, the execution is delivered to him for service, he must take the property on the execution.”
     