
    Ross v. Poythress.
    October Term, 1792.
    Custody of Debtor — Injunction—Effect.—If a debtor in execution obtain an injunction, the Sheriff is bound to discharge him from custody.
    Seisure of Property under Fi. Fa. — Injunction—Effect— Quiere, — If an injunction be obtained after seisure of property, under a fieri facias, the officer may restore the property.
    This was an action of debt brought by' the appellant in the District Court of Petersburg, upon a prison bounds bond; the breach assigned in the declaration, is. nearly in the words of the condition of the bond, with an averment, that the prisoner did depart and escape from the bounds, without being discharged by due course of law.
    Pleas, 1st, Conditions performed. 2d, That the bond was given to the sheriff for and concerning a matter relating to his office, whilst the defendant was in custody of the said sheriff; contrary to the act entitled an act “prescribing the method of appointing sheriffs, and for limiting the time of their continuance in office, and directing their duty therein.” — Issue was. taken upon the first plea, and liberty' reserved to the plaintiff to file his demurrer to the 2d plea, at the next court, if he please.
    
      The jury found a verdict for the plaintiff: but if, in the opinion of the Court, a subpoena of injunction issued from the High Court of Chancery, and delivered to the sheriff having the prisoner in custody, and served on the plaintiff’s attorney, whereby the judgment, on which an execution had issued, under which the defendant was consigned, was injoined, was a sufficient authority to the sheriff to discharge him from custody under *that execution, then they found for the defendant. No notice was taken of the second plea.
    Judgment for the defendant upon the special verdict in the District Court, and appeal to this.
    Ronold for the appellant.
    Until a final decree was rendered for the plaintiff in equity, the injunction granted by the Chancellor could not operate, so as to deprive the plaintiff at law, of a right already vested in him. The lands of a defendant, are actually bound from the time a judgment is rendered against him ; as are also his chattels, from the time a writ of fieri facias is delivered to the sheriff.
    It would be highly unreasonable to give to an injunction, an effect so extensive, as that which must be contended for. The principal, as well as his securities, might remove or become insolvent, pending the injunction. The estate seized by the sheriff' on a writ of fieri facias, might during that time perish, and thus, might the plaintiff at law lose entirely the effect of his judgment. Injunctions are not author-ised, or in any manner regulated, by the laws of this country, and therefore we must resort to the rules observed in the courts of England. There, the money is always brought into court by the party obtaining the injunction, unless, in special cases, it is dispensed with, 2 Harr. Ch. Prac. 224, 226. So if goods are taken on execution, or money levied, or paid in execution, and in the sheriff’s hands, the process of injunction will stay them there, lb, 225. Upon the same principle it is, that a bill of review does not pr.event the execution of the decree impeached; but obedience is actually to be paid to the decree, as far as it can, without prejudice to the right of the party preferring the bill. 1 Harr. Ch. Prac. 17Í. Neither does a supersedeas set aside the execution, or stop the sale of the property seized under it. Halt. Sheriff. 225 — 534. A caxJi‘ls> not executed, is arrested by a super-sedeas ; but if executed, the bodjT must be returned with the supersedeas. Neither will an action for false imprisonment lie, if the body be taken on a ca. sa. without notice of the writ of error. If then, we are to take as our guide, 1he rules and principles of the English law, (and we have none other to follow,) we find, that an execution once served, is not interrupted by an injunction, or other proceedings subsequent to the judgment, until the debt is levied, or received by the officer, and is then only stopped in his hands.
    *The old Chancery law, passed in the year 1777, Ch. 15, g 31, seems to give to injunctions, merely the power of staj’ing executions. It neither authorises the discharge of the person, or property already taken in execution, nor does such an effect follow, as a necessary or reasonable consequence, from the order.
    If the whole effect of the execution be done away by the granting of the injunction, I am at a lost to know, what return the sheriff can make upon the execution, or in what manner, the plaintiff is to proceed upon the dissolution of the injunction.
    Marshall for the appellee.
    The cases read by Mr. Ronold, only prove that there are certain rules observed by the Chancellor in England, which neither are, nor ought to be guides for us, and this necessary departure from those rules, results from the very nature of our situation, compared with that country. In that, much of the wealth of the nation consists in money; it is easily procured by those who can secure the re-pajmient of it; therefore no inconvenience can follow from requiring a deposit of the debt recovered at law, as the condition of granting an injunction. So too, nothing can stop the progress of an execution once served. Yet even there, we find that in some instances this rigid rule is dispensed with, as the cases referred to by Mr. Ron-old prove. In this country, the wealth of the people consists principally in real property — there is so much of that, and so little money at market, that the latter cannot be procured on loan, with any security.
    This difference, will furnish a strong argument, why the rule in England, even in case of executions against the property, should not prevail here; and the argument is fortified considerably, if we view the case by analogy to forthcoming and replevy bonds, which are unknown in that country, yet induced by necessity to be authorized in this. In these cases, the lien is entirely gone, and a compensation for it, provided in the security given by the debtor.
    So too in England, if goods be taken by way of distress, and replevied, the distrainor loses his lien on the goods, and is left to his remedy on the replevy bond, Brow Ch. Rep. 427: so that the lost of the lien upon property once seized, is not unknown even in England, much less in this country.
    But the case of an execution against the body, is much stronger than if it were against the property. For if the body might still be kept in confinement, the injunction would be an idle and vain thing ; since the plaintiff, if entitled to equity, might receive the same benefit from an original bill, as he could by obtaining *the injunction. The plaintiff at law cannot complain with reason, since his security is certainly bettered.
    Mr. Ronold in reply.
    The act of 1791 Ch. 3, g 3, tho’ it was made subsequent to this transaction, shews, from the manner in which it is expressed, the sense of the legislature upon this subject, by directing that the sheriff, having received money under an execution, shall, upon an injunction being- granted, repay, the money to the plaintiff in equity. But this was unnecessary, if, before the law was made, an injunction produced the extensive effect now contended for.
    
      
      See monographic»0{« on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   The PRESIDENT,

We shall give no positive opinion, as to the effect of an injunction obtained upon an execution against the goods and chattels, after seizure; as that case is not before us: probably it would be considered as settled by the act of 1791, which directing a restitution of the money levied, would seem to include inferior cases, and to extend, by an equitable construction, to the restitution of goods seized in execution, and not sold.

The reason is much stronger in the case of an execution against the bodjT, where the injunction would have no effect at all, if it did not operate to discharge the body from confinement.

Judgment affirmed.  