
    TURNER v. FENDALL.
    A sheriff makes the money upon a fi fa at the suit of A. vs. B and afterwards a fi fa. against A is put into his hands, he cannot levy it upon the money of A made by the fi fa. of A v. B for it does not become the goods and chattels of A. until it is paid over to him; and by the command of the writ the sheriff is in strictness bound to bring the money into court, there to be paid to the plaintiff. On a motion, in Virginia, against a sheriff, for not paying over monies by him collected on execution, it is not necessary that the judgment against the sheriff should be rendered at the term next succeeding that to which the execution has been returned. Proceedings before magistrates in cases of insolvent debtors are matters in pais, and may be proved by parol testimony.
    
      This was a writ of error to reverse a judgment of the circuit court of the district of Columbia sitting at Alexandria, rendered on a motion by Fendall against Turner, late sergeant of the corporate town of Alexandria, for the amount of money received by him on a fieri facias issued on a judgment in favour of Fendall against one Towers.
    This motion was grounded on an act of assembly of Virginia, revised code page 317. §. 51.—by which it is enacted that “ If any sheriff, under sheriff, or other offi- “ cer, shall make return upon any writ of fieri facias or “ venditioni exponas, that he hath levied the debt, dama- “ ges or costs, as in such writ is required, or any part “ thereof, and shall not immediately pay the same to “ the party, to whom the same is payable, or his attor- “ ney,” “ it shall and may be lawful for the creditor at “ whose suit such writ of fieri facias, &c. shall issue, up- “ on a motion made in the next succeeding general “ court, or other court from whence such writ shall is- “ sue, to demand judgment against such sheriff, officer, “ or under sheriff, or securities of such under sheriff, for “ the money or tobacco mentioned in such writ, or so “ much thereof as shall be returned levied on such writs “ of fieri facias, &c. with interest thereon at the rate of “ 15 per centum per annum, from the return day of the “ execution, until the judgment shall be discharged; and “ such court is hereby authorized and required to give “ judgment accordingly, and to award execution thereon; “ provided such sheriff or officer have ten days previous “ notice of such motion.”
    It is not error in the court below to reject, as incompetent, admissible testimony tending to prove a fact not relevant to the case before the court. Money may be takes in execution if in the possession of the defendant.
    
      Fendall had recovered judgment against Towers, in the court of hustings in the town of Alexandria, for 627 dollars and 52 cents damages, and 4 dollars and 91 cents costs, on which judgment a fieri facias issued, directed to the sergeant of the court of hustings, dated the 13th of December 1800, returnable to the said court of hustings on the first Monday of February then next. Upon this writ was the following return, viz. “ Sergeant returns, “ executed on one large copper boiler and sundry casks, “ and sold for the sum of 703 dollars and 98 cents, in- “ cluding sergeant’s commissions, on which money I have “ levied a writ of fieri facias, issued from the clerk's office of “ the court of Fairfax county, on a judgment obtained by Wil- “ liam Dencale against Robert Young and Philip R. Fendall, “ merchants, trading under the firm of Robert Young “ and company.
    
      Charles Turner, T. S.”
    Before the next succeeding term of the court of hustings, after the return of the execution, the act of congress of 27th of February 1801, concerning the district of Columbia, intervened, by which the laws of Virginia, as they then existed, were declared to be and continue in force in that part of the district of Columbia which was ceded by that state to the United States, and by them accepted for the permanent feat of government; and all suits, process, &c. depending in the court of hustings for the town of Alexandria, were transferred to the circuit court of the district of Columbia established by that act; and the first session of the circuit court in Alexandria was by law held on the second Monday of April, 1801.
    To that term, April 1801, Fendall gave Turner notice, in the usual form, that on the first day of the court he should move for judgment against him for the amount of the execution with interest thereon according to law; which notice was signed, “ Philip Richard Fendall, for “ the trustees of Philip Richard Fendall,” and was duly served. Turner not having appeared the motion was continued till the next term, July 1801, when he appeared and admitted the regularity of the delivery and continuance of the notice—and the court upon argument gave judgment for the plaintiff Fendall; to reverse which judgment, Turner sued out the present writ of error.
    The reccord which came up contained three bills of exceptions.
    The first stated that the defendant Turner, to prove that Fendall had taken the oath of an insolvent debtor, and was thereupon discharged out of custody, produced the following writing, viz. “ Fairfax, Sct. Whereas Philip “ Richard Fendall, a prisoner confined in the gaol of Fair- “ fax county, under execution at the suit of Samuel Love, “ issued from the district court of Dumfries, and it ap- “ pearing that legal notice had been given, and a warrant “ issued, for bringing before us, for the purpose of taking “ the oath of an insolvent debtor, and the said Philip “ Richard Fendall having this day, in the court house of “ the said county, delivered in a schedule of his estate and “ effects and taken the oath prescribed by law ; These are “ therefore in the name of the commonwealth to command “ you to discharge the said Philip Richard Fendall out “ of your gaol and custody, and, for so doing, this shall “ be your sufficient warrant. Given under our hands and “ seals this twenty-first day of March, eighteen hundred.
    “ WILLIAM HERBERT, Seal,
    “ R. WEST, Seal.
    “ To the sheriff or keeper of the gaol of Fairfax County;” and offered to prove the hand writing of the said William Herbert and Roger West ; and also to prove by oral testimony that the said Philip Richard Fendall did take the oath of an insolvent debtor before the said William Herbert and Roger West, whose names are subscribed to the said writing, and also to prove by oral testimony that the said William Herbert and Roger West were magistrates of the county of Fairfax, on the 21st of March 1800, and had acted as such for many years before; but the court gave it as their opinion that the said writing and oral testimony were not legal evidence to be admitted to prove the above mentioned facts.
    The 2d bill of exceptions stated, that the defendant Turner offered to shew to the court that the trustees of Fendall were not entitled to the money levied on the execution of Fendall v. Towers, but the court refused to suffer him to go into that enquiry.
    The 3d bill of exceptions stated, that the defendant Turner produced a copy of an execution issued on a judgment obtained by William Deneale against Robert Young and Philip Richard Fendall (the plaintiff in the motion below) and a copy of the return, which return was in these words, “ Executed on the sum of 682 dollars and “ 43 cents, money in my hands, being the amount of the “ sum received by me for the sale of certain property ta- “ ken by virtue of a fieri facias, issued from the clerk’s office “ of the court of hustings of Alexandria, on a judgment “ obtained by the within named Philip R. Fendall against “ John Towers.
    “ CHARLES TURNER, T. S.”
    and alledged that he had a right, and was bound, to levy that execution on the money of the said Fendall, which he had levied by virtue of the execution of Fendall v. Towers, and which was in his hands separate and distinct from any other money at the time the execution of Deneale v. Young and Fendall was delivered to him ; but the court gave it as their opinion that he had not a right, and was not bound so to do.
    The case was now argued by Simms for the plaintiff in error ; and by C. Lee and Swann for the defendant.
    
      For the plaintiff in error, it was contended,
    
      1st. That the court below was not authorized to render judgment at any other term than that next succeeding the return of the execution.
    2dly. That the testimony offered to prove the insolvency of Fendall, was competent for that purpose and ought not to have been rejected.
    3dly. 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.
    4thly. That Turner had a right to levy the execution of Deneale v. Young and Fendall, on the money of Fendall in his hands.
    1st. 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 15 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 au- “ thorized 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.
    2d. The testimony offered to prove the insolvency of Fendall, ought to have been admitted.
    By the act of assembly respecting insolvent debtors (revised code p. 314, 315, sections 40 and 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 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 in 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 hand writing. General reputation has always been considered as sufficient proof of the official character of a magistrate.
    3d. The defendant below ought to have been permitted to shew 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 shew 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 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 shew that the trustees had not that equitable right which the law will protect.
    4th. 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 collected for the use of the debtor ?
    1st. 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. Doug. 219. Armistead v. Philpot. 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 2. Shower, 166. Rex v. Webb, 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 and 543, that money may be taken on a fieri facias.
    
    2d. 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 5. Co. 90. (a.) Hoe’s case.
    
    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 going 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,
    1st. 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.
    2dly. The fact of Fendall’s insolvency was not material to the question 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. 3 Cro. 66, 176. Benson v. Flower. 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 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 in 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 hand writing 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 matters of record. Espinasse, 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.
    3d. It is contended that Turner ought to have been permitted to shew 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 subject is viewed, it appears to be perfectly immaterial to the present question.
    
      4th. But the fourth point includes the real merits of this controversy. Had the officer a right to satisfy the execution of Deneale v. Young and Fendall, cut 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, revised code p. 309. Sec. 12 and 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 law- “ ful 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 ap- “ pointed by such sheriff or officer, and shall thereupon “ suffer the said goods and chattels to remain in the pos- “ session, 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 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 attorney’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 detinue 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 sergeant, 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 mean time the money had been lost or destroyed by robbery, fire, enemies, lightening 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 prescribed by the act of assembly, (revised 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 within mentioned 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 creditor ; 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. ab 352. Now if the plaintiff is not satisfied, the reason fails, and consequently the rule does not hold good. In 2 Bac. ab 352, it is said, “in strictness the mo- “ ney is to be brought into court.”
    In the case of Canon v. Smallwood, 3 Lev. 203, 204, 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 3 Cro. 166, 176, it is expressly stated that the money, at the time of the bankruptcy, 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 and 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 shews, 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 creditor out of court, because otherwise the act of the sheriff would deprive the court of the power of making such an order, and might, in many cases, deprive the debtor of the opportunity of obtaining speedy justice, on a motion to quash the execution for irregularity or any other cause. Besides, the sheriff might go on and levy for one creditor after another, until the whole sum should be swallowed up in his commissions.
    No case can be found in which it has been permitted to be done at the discretion of the sheriff, and yet it is a case which must happen in every day’s practice if it could be done.
   The Chief Justice

delivered the opinion of the court.

This was a motion made by the defendant in error against the now plantiff in the circuit court at Alexandria, under an act of the Virginia assembly, which declares that “ if any sheriff, under sheriff or other officer, shall “ make return on any writ of fieri facias or venditioni “ exponas, that he hath levied the debt, damages or costs “ as in such writ is required, or any part thereof, and “ shall not immediately pay the same to the party to “ whom the same is payable, or his attorney,” “ it shall “ and may be lawful for the creditor at whose suit such “ writ of fieri facias or venditioni exponas,” “ shall is- “ sue, upon a motion made at the next succeeding gene- “ ral court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under sheriff, or securities of such under sheriff, for the “ money or tobacco mentioned in such writ, or so much as “ shall be returned, levied on such writs,” “ with interest “ thereon at the rate of 15 per centum per annum from “ the return day of the execution, until the judgment “ shall be discharged; and such court is hereby authorized “ and required to give judgment accordingly, and to “ award execution thereon " provided such sheriff or offi- “ cer have ten days previous notice of such motion.” That Turner had been sergeant of the town of Alexandria, and had returned on a writ of fieri facias, issued on a judgment rendered by the court of hustings for that corporation, in favour of Philip Richard Fendall, that he had made the debt and had levied thereon a writ of fieri facias issued on a judgment obtained by William Deneale against Robert Young and Phillip R. Fendall ,merchants, trading under the firm of Robert Young and Co.

Before the next succeeding term of the court of hustings would have arrived, that court was abolished, and all its powers and duties transferred to the circuit court of the district of Columbia for the county of Alexandria.

To the first term of the circuit court notice was given that a judgment would be moved for, and the notice was signed “ Philip Richard Fendall, for the trustees of the said Philip Richard Fendall.”

The defendant did not appear to the notice, and it was continued to the succeeding term, when the parties appeared, and the defendant, to prove that P. R. Fendall had taken the oath of an insolvent debtor and was thereupon discharged, offered in evidence a warrant signed William Herbert and R. West, discharging the said Philip R. Fendall out of custody, as an insolvent debtor, and further offered to prove the hand writing of the said Herbert and West, and also to prove, by oral testimony, that the said Philip Richard Fendall did take the oath of an insolvent debtor before the said William Herbert and Roger West, and that they were on the 21st of March, 1800, the time of administering the said oath and granting the said certificate, magistrates for the county of Fairfax. This testimony was rejected by the court as not being legal evidence to establish the fact, and to this opinion an exception was taken.

The defendant also offered to shew that the trustees of Philip R. Fendall were not entitled to the money levied by virtue of the execution mentioned in the notice, which testimony was likewise rejected by the court; and, to this opinion also, a bill of exceptions was taken.

The defendant then produced the execution issued in favour of Deneale v. Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young and Co. with the return thereon, showing that it had been levied on the money of Philip R. Fendall then in his hands, and alleged that the officer had a right and was bound to levy the said execution on the said money, but the court was of opinion that he had not a right so to do, and to this opinion also an exception was taken. The court then proceeded to render judgment, on the notice, for the plaintiff; to which judgment a writ of error has been sued out of this court; and the errors assigned and relied on are,

1st. That the court for the county of Alexandria was not empowered to render judgment in this case at any term subsequent to that next succeeding the return of the execution.

2dly. That the testimony offered to the court to prove the insolvency of Philip R. Fendall, and rejected, was legal testimony to prove the fact for which it was adduced, and ought therefore to have been admitted.

3dly. That the defendant in the court below ought to have been permitted to prove the trustees of Philip R. Fendall not entitled to receive the money to recover which the notice was given, and,

4thly. That the officer had a right to levy the execution of Deneale on the money of Philip R. Fendall in his hands.

To support the first error assigned, the words of the act of assembly giving the motion have been relied on as only empowering the court to render judgment in this summary mode, at the term next succeeding that to which the execution has been returned.

That is, that although the plaintiff has brought his case rightly into court, yet if, from any cause whatever, the court shall be unable to render judgment at the first term, the suit must be dismissed and the plaintiff must lose his remedy. The words must be very plain indeed which will force a court to put upon them so irrational a construction as this. On recurrence to the act relied on it does not appear that a restriction so unusual and so unjust in itself, has been imposed. The words “ such court,” on fair construction, refer to the court in which the motion has been made, and not to the term to which notice was given. The difficulty therefore which would have presented itself, if the notice had been given to a term subsequent to that next succeeding the return of the execution, has no existence in this case.

In considering the second error assigned, the court was satisfied that the proceedings before magistrates, in cases of insolvent debtors, are entirely matters in pais and are therefore to be proved by parol and other testimony. The evidence offered was certainly legal evidence to establish the fact for which it was adduced. The court however is not satisfied of its sufficiency; but without determining that question, and without determining whether in a case where there is no jury, a judgment ought, for the rejection of testimony which was admissible in law, to be reversed in any state of things, or the cause should be considered as if the testimony had been received; it is the opinion of all the judges, that the party is bound to show the relevancy of the fact intended to be established, to the case before the court.

In the present cause the fact to be established was the insolvency of Fendall, which insolvency is not shown to have been material in the case, since nothing appears in the record to induce an opinion that the proceeding could have been in any other name than his.

Although then the testimony rejected was proper and legal evidence towards establishing the fact, yet the court committed no error in rejecting that testimony, for which their judgment ought to be reversed, because the fact does not appear to have been relevant to the cause under their consideration.

On the third error assigned, the opinion of the court is, that whoever might in equity be entitled to the money, or to the use of Fendall’s name, the notice as given could only be sustained by showing the legal right of Fendall to recover. A legal right in the trustees would have defeated the action, for it is instituted in the name of Philip R. Fendall, although it may be for the benefit of his trustees, and neither the reversal or affirmance of this judgment would affect the right of the trustees to proceed in their own names.

The fourth point is one of considerable importance and difficulty. In discussing it two questions have been made at the bar.

1st. Can an execution be levied on money ?

2dly. Can it be levied on money in the hands of the officer ?

The principle that an execution cannot be levied on money has been argued to be maintainable under the authority of adjudged cases, and under the letter and meaning of the act of the Virginia legislature on the subject of executions.

Yet no such adjudged case has been adduced. Lord Mansfield, in the case cited from Douglass 219, said “he “ believed there were old cases where it had been held that the sheriff could not take money in execution even though “ found in the defendant’s scrutoire, and that a quaint “ reason was given for it, viz. that money could not be “ sold,” and it is believed that there may be such cases, but certainly there are also cases in which the contrary doctrine has been held. In 2d Shower 166, it is laid down expressly that money may be taken on a levari facias, and no difference in this respect is perceived between the two sorts of execution. In Dalton’s Sheriff, 145, it is also stated in terms that money may be taken in execution on a fieri facias. The court can perceive no reason in the nature of the thing why an execution should not be levied on money, That given in the books, viz. that it cannot be sold, seems not to be a good one. The reason of a sale is that money only will satisfy the execution, and if any thing else be taken it must be turned into money; but surely, that the means of converting the thing into money need not be used, can be no adequate reason for refusing to take the very article to produce which is the sole object of the execution.

The act of assembly concerning executions has also been relied on as showing that only such articles can be taken as may be sold. But the provisions of the act can only be considered as regulating the sale of such articles as in their nature require to be sold, and not as exempting from execution such property as need not be sold. The object is not the sale but money, and if the money can be made without a sale it cannot be unlawful to do so. But in the case of an execution for tobacco money may be sold, and therefore may be executed, and it would be strange if by an execution ordering a sheriff to make money, money could not be taken, and yet might be taken on an execution ordering him to make some other article.

It is the opinion of the court that money may be taken in execution, if in the possession of the defendant; but the question of greater difficulty is, whether it may be taken by the officer before it has been paid to the person entitled to receive it.

The general rule of law is that all chattels, the property of the debtor, may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty he must be accountable to those who may be injured by the omission. But has money, not yet paid to the creditor, become his property ? That is, although his title to the sum levied may be complete, has he the actual legal ownership of the specific pieces of coin which the officer may have received ? On principle the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum, not for the specific pieces which constitute that sum, and the claim of the creditor on the sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received by the officer, although they should even have an ear mark, and an action of debt, not of detinue, may be brought against him if he fails to pay over the sum received, or converts it to his own use. It seems to the court that a right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them, and until this is done there can be no such absolute ownership as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and however wife or just it may be to give such a remedy, the law does not appear yet to have given it. The dictum of judge Buller, in the case in 1 Durnford and East 370, proves that the mere possession of money, as a trustee, does not give to the possessor, before a conversion, such a property in it, as to render it liable for his debts ; but does not manifest an opinion that the person for whose use it was received, but to whose possession it has not come, is to be considered as the legal owner of the specific pieces themselves, so that they have become, in contemplation of law, his goods and chattels. Indeed it is observable in that case, that if the money had been due to the parish at the time the bankruptcy of the defendant, who was an overseer of the poor, took place, the parish would have been in no better condition than other creditors, and would have possessed no exclusive property in the money claimed.

Although the dictum of judge Buller may appear to militate somewhat against this position, yet the principle of the decision is in its favor, for the judgment of the court is declared to be founded on the fact that the debt was not a debt till after the bankruptcy.

The case cited from 3d Croke, 166, 176, expressly states the property of the money while in the hands of the sheriff, not to be in the creditor; and although the inference of the court from that principle does not appear to have been warranted, yet the principle itself is believed to be certainly correct.

In the case of Armistead v. Philpot, Doug. 219, the court directed the money of the debtor to be paid to the creditor, whose execution was in the hands of the sheriff holding that money also; but this direction would have been unnecessary if the sheriff had possessed a previous right to make the appropriation.

It is stated in Barnes’ notes, 214, to have been adjudged in trinity term, 32d and 33d of George 2, in the case of Staple v. Bird, where a sheriff had levied an execution on money in his hands, that he should, notwithstanding this execution, pay the money to the person entitled to the benefit of the first judgment. It is true that in that case the person in whose name the judgment was rendered, was not entitled to the money received under it, but the case is not stated to have been decided on that principle ; and the very frequency of such a state of things furnishes an argument of no inconsiderable weight against the right to levy an execution on money so circumstanced. The equitable right of persons, whose names do not appear in the execution, ought to be preserved ; and considerable injustice might result from imposing on the sheriff the duty of deciding at his peril on such rights.

Considering the case then either on principle or authority, it appears to the court that the creditor has not such a legal property in the specific pieces of money levied for him and in the hands of the sheriff, as to authorize that officer to take those pieces in execution as the goods and chattels of such creditor.

But the money becomes liable to such execution the instant it shall be paid into the hands of the creditor ; and it then becomes the duty of the officer to seize it. It appears unreasonable that the law should direct a payment under such circumstances. If the money shall be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony which might well be dispensed with ; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach, property rendered by law liable to his execution, and which of consequence the law made it his duty to seize.

The absurdity involved in such a construction led the court to a further consideration of the subject.

The mandate of a writ of fieri facias as originally formed, is that the officer have the money in court on the return day, there to be paid to the creditor. Forms of writs furnish strong evidence of what was law when they were devised, and of the duty of the officer to whom they are directed. Originally it was regularly the duty of the officer to have the money in court, and it has been held, that not even payment to the creditor himself could excuse the non-performance of this duty. The rigor of this rule has been considerably relaxed, but the form of the writ, as directed by a late act of the legislature of Virginia, yet is, that the money shall be in court on the return day, and there appears no excuse for omitting this duty, unless it shall have been paid to the creditor. The sheriff may certainly make such payment out of court, if no circumstance occurs which legally obstructs or opposes it, such as an injunction from the court of chancery, in which case, by the law of Virginia, the money must be returned ; or an execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case it seems to the court still to be the duty of the sheriff to obey the order of the writ and to bring the money into court, there to be disposed of as the court may direct. This was done in the case of Armistead v. Philpot, and in that case the court directed the money to be paid in satisfaction of the second execution. This ought to be done whenever the legal and equitable right to the money is in the person whose goods and chattels are liable to such execution.

In the case of Turner and Fendall, the sheriff not having brought the money into court, but having levied an execution on it while in his hands, has not sufficiently justified the non-payment of it to the creditor ; and therefore the court committed no error in rendering judgment against him on the motion of that creditor. If the payment of the damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment.

Judgment affirmed.  