author: The Chief Justice

text:
    UNITED STATES v. SCHOONER PEGGY.
    A final condemnation in an inferior court of admiralty, where a right of appeal exists and has been claimed, is not a definitive condemnation within the meaning of the 4th article of the convention with France, signed Sept. 30, 1800.
    The court is as much bound as the executive to take notice of a treaty, and will reverse the original decree of condemnation (although it was correct when made) and decree restoration of the property under the treaty made since the original condemnation.

      Error to the circuit court for the district of Connecticut, on a question of prize.
    The facts found and stated by judge Law, the district judge, were as follow:
    “ That the ship Trumbull, duly commissioned by the “ President of the United States, with instructions to take “ any armed French vessel or vessels sailing under autho- “ rity, or pretence of authority from the French republic, “ which shall be found within the jurisdictional limits of “ the United States, or elsewhere on the high seas, &c. as set “ forth in said instructions; and said ship did on the 24th “ day of April last (April 1800) capture the schooner Peg- “ gy, after running her ashore a few miles to the westward “ of Port au Prince, within the dominions and territory of “ General Toussaint, and has brought her into port as set forth in the libel, and it further appears that all the facts, “ contained in the claim, are true; whereupon this court “ are of opinion that as it appears that the said schooner “ was solely upon a trading voyage and sailed under the “ permission of Toussaint with dispatches for the French “ government, under a convoy furnished by Toussaint, “ with directions to touch at Leogane for supplies, and “ that the arms she had on board must be presumed to be “ only for self defence; neither does it appear she had ever “ made, or attempted to make, any depredations, and that “ she was not such an armed vessel as was meant and in- “ tended by the laws of the United States should be sub- “ ject to capture and condemnation; and that the situa- “ tion she was in, at the time of capture, being aground “ within the territory and jurisdiction of Toussaint, she was “ not on the high seas, so as to be intended to be within “ the instructions given to the commanders of American “ ships of war: Therefore, adjudge said schooner is not “ a lawful prize, and decree that said schooner with her “ cargo be restored to claimant.”
    Quere. As to the extent of the term high seas?

    From this decree the attorney for the United States, in behalf of the United States and the commander, officers and crew of the Trumbull, appealed to the circuit court, in which Judge Cushing sat alone, as the district judge declined sitting in the cause, on account of the interest of his son who was one of the officers on board the Trumbull, at the time of capture, and who, if the schooner should be condemned, would be entitled to a share of the prize money.
    The circuit court on the appeal found the following facts, and gave the following opinion and decree:

      “ That David Jewitt, commander of the said public “ armed vessel, called the Trumbull, being duly commis- “ sioned, and instructed by the President of the United “ States, as set forth in the said libel, did on or about the “ 23d of April last, capture the said schooner Peggy, af- “ ter running her aground about pistol shot from the shore, “ a few miles to the westward of Port au Prince, called “ also Port Republican, on the coast of the island of Saint “ Domingo, and afterwards bring her into port, as set “ forth in the libel. That at the time of the capture of “ the said schooner there were ten persons aboard her. “ That she was then armed with four carriage guns, be- “ ing four pounders, with four swivel guns, six mus- “ kets, four pistols, four cutlasses, two axes, some board- “ ing hatchets, tommahawks, and handcuffs. That she “ was a trading French vessel of about a hundred tons, “ then laden with coffee, sugar, and other merchandize. “ That she had come from Bourdeaux to Port au Prince, “ where the claimant had taken in said cargo, and from “ whence he sailed on or about the said 23d day of April “ with said schooner and cargo, having dispatches from “ general Toussaint for the French government. That “ the said Buisson sailed from Port au Prince as aforesaid “ with the permission and direction of general Toussaint “ to proceed to Bourdeaux; that said schooner so sailed “ from Port au Prince under convoy of an armed vessel “ by order of said Toussaint without a passport from Mr. “ Stevens, consul general of the United States at Saint “ Domingo, but that Buisson had been promised by Tous- “ saint’s brother that one should be obtained and sent him, “ which, however, was not done; that said schooner had “ sailed from Bourdeaux for Port au Prince with fifteen “ men, besides eight passengers (according to the roll of “ equipage) armed with some guns, swivels and muskets; “ that said captain Buisson was without any commission as “ for a vessel of war, and alleges that he was armed on- “ ly for self defence. That at the time of said capture, “ the guns of said schooner were loaded with cannister “ shot, one of which being fired, the shot fell near the “ bow of the Trumbull; but the said Buisson declares “ that said gun was fired only as a signal to his convoy. “ That the said captain Buisson appeared to be in a dis- “ position, and was prepared with force to resist the boats “ which were sent from the Trumbull to board him, a lit- “ tle previous to the capture, in case of their attempting “ it; and that the said schooner and cargo are French “ property.
    “ Upon these facts the court is of opinion as follows, “ viz.
    “ However compassion may be moved in favour of “ the claimant by some circumstances; such as that he “ was charged with dispatches from general Toussaint, “ between whom and the United States there were “ some friendly arrangements respecting commerce; that “ he was not in a capacity of greatly annoying trade, “ from the fewness of his men; and his allegation that “ he was armed only in defence; yet as the court is bound “ by law, which makes no such distinctions; as armed “ French vessels are not protected by any treaty or con- “ vention; particularly not by the regulations between “ general Toussaint and the American consul; and as the “ said schooner Peggy was in a condition capable of an- “ noying, and even of capturing single, unarmed trading “ vessels, unattended with convoy; The court cannot “ avoid being of opinion, that she falls within the de- “ scription, and general design, of the expression of the “ law, an armed French vessel.
    2dly. That she was captured on the high seas: the ar- “ gument taken by the claimants counsel, from the extent “ of national jurisdiction on sea coasts bordering on “ the country, not applying to this case so as to ac- “ quit the said schooner; the sea coast of Saint Domingo, “ not being neutral; not made so by any treaty or con- “ vention; but to be considered as hostile, upon our pre- “ sent plan of laws of defence with respect to France; “ as much so as any part of the coast of France, as far as “ regards French armed vessels.

    “ The court is therefore of opinion that the said “ schooner Peggy and cargo are lawful prize:
    “ It is therefore considered, decreed and adjudged by “ this court, that the decree of the district court respect- “ ing the same, as far as regards their acquittal, be, and “ the same is hereby reversed; and that the said schoon-
      " er with her apparel, guns and appurtenances, and the “ goods and effects which were found on board of her “ at the time of capture, and brought into port as afore- “ said, be and the same are hereby condemned as forfeited “ to the use of the United States, and of the officers and “ men of the said armed vessel called the Trumbull, one “ half thereof to the United States, the other half to the “ officers and men to be divided according to law; the “ said schooner Peggy being of inferior force to the said “ armed vessel called the Trumbull.”
    This sentence and decree were pronounced on the 23d day of September, 1800.
    During the present term, and before the court gave judgment upon this writ of error, viz. on the 21st of December, 1801, the convention with France was finally ratified by the President; the fourth article of which convention has these words:
    “ Property captured, and not yet definitively condemn- “ ed, or which may be captured before the exchange of “ ratifications, (contraband goods destined to an enemy’s “ port excepted) shall be mutually restored.” “ This ar- “ ticle shall take effect from the date of the signature of “ the present convention. And if, from the date of the “ said signature, any property shall be condemned con- “ trary to the intent of the said convention, before the “ knowledge of this stipulation shall be obtained; the “ property so condemned shall without delay be restored “ or paid for.”
    On the 30th of September, 1800, this convention was signed by the respective plenipotentiaries of the two nations at Paris. On the 18th of February, 1801, it was ratified by the President of the United States, with the advice and consent of the Senate, excepting the 2d article, and with a limitation of the duration of the convention to the term of eight years. On the 31st of July, 1801, the ratifications were exchanged at Paris, with a proviso that the expunging of the 2d article should be considered as a renunciation of the respective pretensions which were the object of that article.

      This proviso being considered by the President as requiring a renewal of the assent of the Senate, he sent it to them for their advice. They returned it with a resolve that they considered the convention as fully ratified.
    Whereupon,
    On the 21st of December, 1801, it was promulged by a proclamation of the President.
    The controversy turned principally upon two points:
    1st. Whether the capture could be considered as made on the high seas, according to the import of that term as used in the act of congress of July 9th, 1798, vol. 4. p. 163.
    2d. Whether, by the sentence of condemnation by the circuit court on the 23d of September, 1800, the schooner Peggy could be considered as definitively condemned, within the meaning of the 4th article of the convention with France, signed at Paris on the 30th of September, 1800.
    The writ of error was dated on the 2d of October, 1800.

      Griswold and Bayard, for the captors.
    Mason, for the claimant.

       The material facts stated in the claim are, that the schooner was the property of citizens of the French republic; that she was permitted by Toussaint to receive on board the cargo which was on board at the time of capture; that she had dispatches from Toussaint to France; that she sailed by his authority on the 23d of April, for France, navigated by 10 men, including Buisson the claimant, and Gillibert the commander, and having on board 4 small 3 pound carriage guns, solely for defence against piratical assaults, and being under convoy of a tender, furnished by Toussaint. That on the 23d April, she was run ashore, a few miles to the westward of Port au Prince, within the dominion, jurisdiction, and territory of general Toussaint, so that she was fast and tight aground; at which time, and in which situation, the boats and crew of the Trumbull attacked and took possession of her, and got her off. That Toussaint then was, and still is, on terms of amity, commerce and friendship with the United States, duly entered into and ratified by treaty. That the schooner was on a lawful voyage for the sole purpose of trade; and not commissioned, or in a condition to annoy or injure the trade or commerce of the United States.

       I regret that not having notes of this case, I am unable to report the very ingenious arguments of the learned counsel.

   The Chief Justice

delivered the opinion of the court.

In this case the court is of opinion that the schooner Peggy is within the provisions of the treaty entered into with France and ought to be restored. This vessel is not considered as being definitively condemned. The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence may be interlocutory or final in the court which pronounces it, and receives its appellation from its determining the power of that particular court over the subject to which it applies, or being only an intermediate order subject to the future control of the same court. The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property and to direct a restoration of that which is still in controversy between the parties. On any other construction the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence. An interlocutary order for a sale is not a condemnation. A stipulation then for the restoration of vessels not yet condemned, would on this construction comprehend as many cases as a stipulation for the restoration of such as are not yet definitively condemned. Every condemnation is final as to the court which pronounces it, and no other difference is perceived between a condemnation and a final condemnation, than that the one terminates definitively the controversy between the parties and the other leaves that controversy still depending. In this case the sentence of condemnation was appealed from, it might have been reversed, and therefore was not such a sentence as in the contemplation of the contracting parties, on a fair and honest construction of the contract, was designated as a definitive condemnation.

It has been urged that the court can take no notice of the stipulation for the restoration of property not yet definitively condemned, that the judges can only enquire whether the sentence was erroneous when delivered, and that if the judgment was correct it cannot be made otherwise by any thing subsequent to its rendition.

The constitution of the United States declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted. It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore, whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive, act independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence, improper.

It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, are sacrificed for national purposes, the contract, making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.


source: Caselaw Access Project

author: The Court.

license: Public Domain

text:
    JACOB RESLER v. JAMES SHEHEE.
    After the first term next following an office judgment, in Virginia, it is a matter of mere discretion in the court whether they will admit a special plea to be filed to set aside that judgment.

      This was a writ of error upon a judgment of the circuit court of the district of Columbia, sitting at Alexandria, in an action for a malicious prosecution brought by Shehee v. Resler, originally in the court of hustings for the town of Alexandria, and transferred by act of congress of 27th February, 1801, concerning the district of Columbia, to the circuit court of that district.
    The declaration stated that on the 26th of December, 1799, Resler, without reasonable cause, procured a certain false, scandalous, and malicious warrant, to be issued against Shehee, by F. Peyton, esq. then mayor of the town of Alexandria, charging Shehee with having received from a certain negro slave, called ——— the property of Baldwin Dade, certain stolen goods, viz. One box of tallow, knowing the same to be stolen; which warrant was executed upon the said Shehee, who, by means of the false and malicious representations of Resler, was recognized to appear before the court of hustings of Alexandria, at April term 1800, to answer to the charges contained in the warrant, at which court Shehee was acquitted.
    At the rules held at the clerk’s office, on the 2d February, 1801, an office judgment was entered against Resler for want of a plea, and a writ of enquiry awarded, returnable to the court of hustings, which by law would have been held on the first Monday of April, 1801. But the act of congress of 27th February, 1801, which provides for the government of the district of Columbia, erected a circuit court for the district, to which it transferred all the causes then pending in the court of hustings; and enacted that the circuit court should hold four sessions a year in Alexandria, viz. On the 2d Mondays of January, April, and July, and the 1st Monday of October.
    Two terms of the circuit court, viz. April and July, having elapsed without the writ of enquiry being set aside, the defendant Resler by his counsel, at October term 1801, on the 9th day of the month, appeared and moved the court to set aside the writ of enquiry on filing the following special plea in justification, viz. “ And the said de- “ fendant by his attorney, George Youngs, comes and “ defends the force and inquiry, &c. and for plea faith, “ that on the 26th day of December, in the year 1799, “ at the town of Alexandria aforesaid, and within the “ jurisdiction of the court of hustings of said town, a “ box of tallow, belonging to the defendant, as his own “ proper goods and chattels, of the value of two dollars, “ was stolen out of the house of the defendant, by some “ person unknown to the defendant, and the said defend- “ ant being informed by a certain John M‘Gill, his jour- “ neyman, that the said box of tallow was in the house “ of the plaintiff, complained to Francis Peyton, mayor “ of the said town, of, and concerning the said box of “ tallow, who by his warrant, dated the 27th day of De- “ cember, in the year 1799, called the plaintiff before “ him and examined him; and upon his examination and “ the testimony of sundry persons, bound the plaintiff “ to appear at the next grand jury court of hustings of “ said town, to answer the charge contained in said war- “ rant, of, and concerning the receiving the said box of “ tallow, so stolen as aforesaid, and which was found in “ his possession, whereupon, the plaintiff appearing was “ acquitted and discharged by the said court, which is the “ same procurement of the said warrant and acquittal “ whereof the aforesaid action is brought, and this the “ defendant is ready to verify, &c.”
    The plaintiff objected to the filing of that plea, in this stage of the cause, and upon argument, the court on the 13th day of October, refused to receive it; whereupon, the defendant took a bill of exceptions, and pleaded the general issue, upon which, on the 14th day of October, there was a verdict for the plaintiff, and judgment for 1000 dollars damages.
    On that judgment the defendant brought his writ of error to this court, and the error assigned was the refusal of the court below to suffer the defendant to file the special plea above recited.
    The cause was at this term argued by C. Lee for plaintiff in error, and Simms and Mason for defendant.

      Lee.

    This case depends upon the law and practice of Virginia. By the act of congress of 3d March, 1801, supplementary to the act concerning the district of Columbia, sec. 3, it is enacted, “ that the circuit court for “ the county of Alexandria, shall possess and exercise “ the same powers and jurisdiction, civil and criminal, “ as is now possessed and exercised by the district courts “ of Virginia.”

      The act of assembly of Virginia, respecting the district courts of that state, sec. 28, (revised code, p. 85.) provides, that “ every judgment entered in the office against “ a defendant and bail, or against a defendant and she- “ riff, shall be set aside, if the defendant, at the succeed- “ ing court, shall be allowed to appear without bail, put “ in good bail, being ruled so to do, or surrender himself “ in custody, and shall plead to issue immediately.” And in sec. 42, of the same act, p. 87, it is further provided, “ That all judgments by default for want of an appear- “ ance or special bail, or pleas as aforesaid, and non-suits “ or dismissions obtained in the office, and not set aside “ on some day of the next succeeding district court, shall “ be entered by the clerk as of the last day of the term; “ which judgment shall be final in actions of debt found- “ ed on any specialty, bill, or note in writing, ascer- “ taining the demand, unless the plaintiff shall choose “ in any such case to have a writ of enquiry of damages; “ and in all other cases the damages shall be ascertained “ by a jury, to be empanneled and sworn to enquire “ thereof, as is herein after directed.”
    Upon an equitable construction of these sections of the act, the practice in Virginia has been to permit the defendant to come in at a subsequent term and avail himself of any such defence as he has, in the same manner as if he had pleaded it at the particular term mentioned. This question has been discussed in Virginia and received the construction for which I contend. The case of Downman v. Downman’s executors, 1. Wash. 26, was a plea of tender after office judgment confirmed. In p. 27, the “ court say, these words “ plead to issue immediately,” are “ the same as were used in the old act of 1753, for esta- “ blishing the general court; under which, the practice “ of that court was very liberal, in allowing a defendant “ to plead that which did not make an issue, but required “ subsequent pleadings, provided the real justice of the “ case, and not intended delay, was thereby promoted. “ This is unavoidable in cases of bonds with collateral “ conditions, where the defendant cannot plead to issue. “ This is also agreeable to the principle laid down by lord “ Holt, in 2. Salk. 622; “ That though a judgment be “ ever so regularly entered, it shall be set aside at any “ time on payment of costs, so as the plaintiff does not “ lose a trial.” And again in p. 28, “ considering the cir- “ cumstances of this country and the dispersed situation “ of the attornies and their clients, who can seldom com- “ municate with each other but at court, justice seems to “ require a relaxation in these rules (English rules) of “ practice. It would seem to me proper to allow a dis- “ cretion in the judges to admit any plea which appears “ necessary for the defendant’s defence, and only to re- “ sort to the rigor of the rule where delay appears to be “ intended.” This plea then, if necessary for the defendant’s defence, ought to have been admitted. It contains nothing exceptionable, and the facts stated in it, if true, are a justification. There is no case more proper for special pleading than one in which the prejudices of the people are enlisted on one side or the other. The law only directs what is to be done the first term, but afterwards it is left open to the discretion of the court. In this case there can be no pretence that the plea was intended for delay, as it was offered on the 9th, and the cause was not tried until the 14th of October, so that there was full time to answer the plea and make up the issue.
    To shew that this plea is a good justification, I refer to the case of Coxe v. Wirrall, Cro. Jac. 193, where a similar plea was adjudged good upon demurrer.
    It is common practice, even in the English courts, to permit the general issue to be withdrawn, and a special plea filed, where it is not done with an intent of delay. Jefferys v. Walter, 1 Wilson, 177—and 254, Taylor v. Joddrell. But the case of Downman v. Downman, before cited, seems conclusive upon this question.

      Chase, Justice.

    Have the rules of the Virginia courts been adopted in the circuit court?

      Lee.

    I conceive the circuit court at Alexandria, to be in the same situation as the district court at Richmond. And, as I understand the act of congress, they are obliged to adopt the practice of the courts of Virginia, except where the circuit court has actually made a different rule.

      Simms, for defendant in error.
    I will not deny that the courts of Virginia have gone the length stated in Washington’s reports. They have used their discretion, and have considered whether the plea offered tends to the justice of the cause, or whether it is intended only for delay. In this case, the time having passed when the defendant could file his plea as a matter of right, it was entirely in the discretion of the court to admit or reject it.
    It is certainly not a sufficient justification for the defendant to say that the magistrate committed the plaintiff; for that neither destroys the evidence of express malice, nor shews probable cause for the prosecution. The magistrate might have committed upon the evidence of the defendant Resler himself; so that this plea would most probably have been over-ruled upon demurrer, and at any rate would have created delay; for in a matter of so much consequence it cannot be presumed that the counsel for the plaintiff could at once determine whether to demur or to join issue.
    The defendant was not precluded from making a proper defence. He might have shewn probable cause on the general issue, for the gift of the action is the want of probable cause; and the court had the power of instructing the jury whether such cause was shewn or not. Buller, N. P. 14.
    It is said that the plea was offered in a reasonable time. It can not surely be said that three days in the hurry of the court is a reasonable time to answer such a plea—so say the courts of Virginia.
    This plea amounts to the general issue, and therefore ought not to have been received. The justice of the case did not require it, and it is only to promote justice that the courts have ever deviated from the precise terms of the law.
    Mason, on the same side.
    Admitting for a moment that the practice of the Virginia courts was binding upon the circuit court, yet the court have only exercised the same discretion which a Virginia court might have exercised. There is a particular time allowed for special pleading; after that time, the admission of a plea is discretionary with the court. The case in Washington’s reports is clear to shew that it is altogether a matter of discretion. The court might have refused to receive any plea at all; for the right of the defendant to set aside the office judgment, by pleading to issue, is confined to the court next succeeding the office judgment.
    But the defendant had every advantage under the general issue, which he could have had under his plea. It is extremely clear that the plaintiff must shew malice, and the defendant, matter of justification. The rules of practice in the courts of Virginia, are confined to Virginia. The courts of the United States are not bound by them. They have power to make their own rules.

      Lee, in reply.
    Our complaint is that the inferior court has not exercised its discretion in the manner it ought to do. I use the word discretion, differently from Mr. Mason. The exercise of such discretion is subject to the control of this court. If we look to the decisions of the courts in Virginia, we find that they have soundly exercised their discretionary power. The practice has constantly been to let in the parties notwithstanding any laches. Was it proper in the court to say, that although we have a right to suffer you to bring the question of probable cause before the court, and to take it from the jury, and although you wish so to do, yet we will not permit you, but will compel you to go before the jury; where facts disclosed, not pertinent to the issue, might make an improper impression?
    Cushing, Justice.
    Do you admit that the defendant might have given in evidence under the general issue, the facts stated in the plea offered?
    Lee.
    It is sufficient for us if it was a matter of doubt. In such a case, a cautious practitioner will always take the safest method, and plead the facts specially.

      There is no doubt but the court had a right to make rules of practice for itself. But not having made such a rule in this case, its discretion ought to have been guided by the practice of the Virginia courts. We therefore hope that this court will correct the indiscreet exercise of the power of the court below in this case.
   The Court.

It is true that the courts in Virginia have been very liberal in admitting any plea, at the next term after an office judgment, which was necessary to bring forward the substantial merits of the case, whether it was strictly an issuable plea, or not. But at a subsequent term, it is a matter of mere discretion with the court whether they will admit any special plea at all.

In the present case the facts, stated in the plea offered, might have been given in evidence on the general issue ; the court exercised their discretion soundly in rejecting the plea.

Judgment affirmed.


text:
    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.