
    Fendall v. Turner.
    A motion against a sheriff for not paying over to the plaintiff money made upon a fi.fa. may be made in the name of the original plaintiff in the fi. fa., although he had taken the insolvent oath.
    The sheriff cannot levy & fi.fa. upon money in his hands made upon another fi.fa.
    
    This was a motion for judgment against Charles Turner, late town sergeant of Alexandria, for not paying over to the plaintiff money made on a fi. fa. of Fendall v. Towers. The motion was grounded on the Act of Assembly of Virginia respecting executions. Rev. Co. p. 317, § 51. (See this case in the Supreme Court of the United States, 1 Cranch, Rep. 117.)
    The cases cited in this Court were, Esp. N. P. 741; King v. Webb, 2 Shower, 166; Dalton’s Sheriff, 145, 543; Fulwood’s case, 4 Co. 67; Rex v. Bird, 2 Shower, 87; Hooe's case, 5 Co. 90: Act of Virginia respecting executions, § 13, 51, 25, 36, and 50; Armistead v. Philpot, Doug. 231; Benson v. Flower, 4 Cro. 166, 176; Staple v. Bird, Barnes’s note, 214 ; Miller v. Race, 1 Burr. 457; Cannon v. Smallwood, 3 Lev. 203; Godbolt, 147 ; Bealy v. Sampspn, 2 Vent. 95.
   The Court

decided, 1. That the motion might be sustained in the name of Fendall, altHough he had taken the insolvent oath; 2. That the sergeant could not levy the execution of Deneale v. Fendall on the money in his own hands made on the fi. fa. of Fendall v. Toiuers, and that such return was not good.

Judgment for the amount made on the fi.fa., and fifteen per cent, per annum damages.

Affirmed by the Supreme Court of the United States, 1 Cranch, 117.  