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levying, that the sheriff had been there. Neither the plaintiff nor his agent knew of the issuing of the fieri facias, or of the levy, or of the removal until after it was done."

This was decided to raise the inference of a fraud in law. With much respect for the abilities of that judge I must bear testimony against that decision, though his reasons are sensible and manly. And I think that even in the English courts it would be deemed rigorous, and winding up too strictly the law. The rule which I would lay down is "that if the goods are forthcoming, at the next court to which the writ is returnable, and money made to answer the exigence of the writ, the law shall not raise a fraud. Until that time the goods to be subject to the levy. And this I know to be the custom of the country, and the understanding of the prac tice in Pennsylvania. Not until the last day of the term is the sheriff called upon to bring the money into court. The return of the writ may be called for, the first day of the term, but the money not expected to be made until the last day. If the writ shall have issued but a short time before, though a levy has been made, it would not amount to a fraud in law to postpone a sale for ten days after the terms, or to the adjourned court, which is usually six weeks after the This is the practice of the country.

terms.

But fraud in fact either in the entering the judgment, the taking out the writ to cover, the putting into the hand of the officer with instructions to postpone, or in the levy, and sale colourable or otherwise, a single particle of fraud would avoid, according to the stage of the transaction and let in, a concur rent, or subsequent execution.

This indulgence of the courts to the debtor where ground can be laid for a special application to the contrary, is founded in humanity, and the necessity of paying some regard to the difficulty of poor but honest defendants discharging debts to avoid the ruin of the country. And the salus populi suprema lex est. It is establishing justice in mercy. For the tearing away property by an execution amongst the groans of the distressed, and the tears of families, is hard enough even with all the softening that can be given it. And the

Shylock that would say to the officer, "I stand upon my bond" remove and sell instantly, would be considered in most cases, an unfeeling creditor; and on the contrary the law would not hastily raise an imputation of fraud to the party from a customary indulgence, or a reasonable stay of sale.

I cannot but confidently be of opinion that if this usage of lenity and tenderness is superseded by a rigid common law, or beyond common construction of what shall be a fraud, the appraisement law must be revised by the courts, or the interposition of the legislature be called for to moderate in some way, which might be less convenient to creditors than the indulgence which the usage allows.

The rigour of an instant removal of goods levied on under an execution was softened at an early period, in our sister colony of Virginia. This by an act of assembly of 1748, c. 8, by which it is provided "that if the owner of goods taken in execution shall give sufficient security to the sheriff to have the same forthcoming at the time of sale, it shall be lawful for the sheriff to accept such security, and suffer the goods to remain in possession, and at the risk of the debtor until the time of sale."

This continues to be the law. See Tucker's Black. note page 421. For the law, under this head as holden in the state of New York, See 9 Johnson, 135, 197, 243 and

337.

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"The fourth species of execution is by writ of Elegit," &c. III BI. Com. 418.

By the common law real estate was subject to the payment of debts, only, in the case of debt due to the king by obligation or recognizance or where lands had descended, the ancestor having bound himself and his heir by obligation. But by statute they were made liable to be taken in execution sub modo and to a certain extent. But in neither of

these cases could a sale be made, but the land only taken un

til from the issues and profits the debt was paid. See 2 Plow. 439.

An inheritance in a foreign country (plantation) was liable to be taken for payment of debts, and to be esteemed as a chattel interest till the debts are satisfied. 2 Vent. 358.

The laws of the plantations themselves where they have made provision must govern as to the taking lands in execution, or sale by executors.

Under the charter of Penn, certain laws were agreed upon in England with the adventurers, amongst which was this, that "all lands and goods shall be liable to pay debts, except where there is legal issue; and then all the goods, and one third of the land only." 5 Smith's laws, 416. In appendix No. 3. By an act of the colony 1687, this was made a law. By an act of 1684 all lands whatsoever, and houses are made liable to execution; and to be sold subject to certain regulations. And by an act 1693, are made liable to be sold by the executor, or administrator, for the payment of the decedent's debts. By an act of 1700, widows and administrators, under the order of the orphans court, were empowered to sell lands for the payment of debts. See appendix. 1 Dall. state laws, for all these acts of assembly superseded, or repealed.

Doubts would seem to have been entertained with regard to the proceeding under these laws, for what reason is not recited in the act of 1705, which is entitled an act "for the better confirmation, &c." But by subsequent laws and decisions, no doubt now remains, in Pennsylvania, but that lands are liable to be taken in execution for the debts of decedents; not, until extinguished by the issues and profits, but to be sold to be absolutely. 1 Dall. 481.

In the case of living debtors they must be sold subject to an inquisition, whether the issues and profits subject to all reprises, by which is meant judgments and mortgages, will satisfy the debt in seven years. But in the case of deceased debtors, query whether they may not be sold absolutely, without an inquisition. For if real estate is to be considered as goods and chattels for the payment of debts in the case of

a deceased person, it would be an inconsistency to say that such real estate could not be sold as goods and chattels are without an inquisition. I am not at present informed what has been the construction in this particular from any practice sanctioned by the courts. But it would seem unreasonable that the debtor should be deprived of the benefit in law provided in his favour, giving him seven years to discharge by the issues and profits; and, that the contingency of the decease of the debtor should put his representatives in a worse situation than he had himself been; and taking these acts of assembly that are pari materia, it would seem that the representatives are entitled to the privilege of extinguishing the debt by the issues and profits in seven years. This being the case, though the lands are subject to be sold as goods and chattels for the payment of debts, yet they must be still subject to an inquisition.

But it would seem from the necessity of an inquisition being holden, that executors, without an authority under the will cannot sell, but must suffer an execution to issue on judgments against the testator, or against themselves. Administrators cannot sell but under the direction of the orphans court. This authority is given for the payment of debts, or the maintenance of orphans. It would seem that in this case the right of the debtor must be still saved to extend the lands; and therefore the analogy is not strict; or can be carried to the whole extent of considering the real estate of the deceased as goods and chattels. It was to cure some irregularities of sales by executors cr administrators, not having authority by the will, that the act of 1705 would seem to have passed. I speak of administrators cum testamento annexo, where no authority was given to sell for the payment of debts.

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"Freehold lands which he had at the time of the judgment "given." III Bl. Com. 418.

THIS might seem to imply, and has been cited for that purpose, that lands purchased after the judgment, could not be taken in execution. But the authority to which the commentator refers, 2 Institutes, 395. does not restrict to this. The words are, "Such land as the defendant had, at the time of the judgment given, unless it be conveyed away, by fraud and covin to deceive his creditors." This exception shews what effect of the judgment it is that he is speaking of, (Lord Coke) and that it relates to lands actually owned at the time of the judgment, not having been bona fide conveyed away before the judgment. Nor, has it any reference to the effect of a judgment upon after purchased lands. That an execution may be levied upon after purchased lands, not aliened before execution, there can be no doubt. But whether the judgment attaches on such lands eo instante that they are purchased; or, whether they are taken by virtue of the execution, as, in the case of goods and chattels, is a question. In England it would seem that the judgment is considered as attaching, and drawing under it the lands purchased after the judgment, so that, though aliened before the execution, it would seem to be the law. In Pennsylvania, it has been otherwise. And indeed in England, when traced to the origin of the doctrine, would seem to have a very doubtful foundation. And so far from extending such a principle here, I cannot say I would have any objection to confine the execu tion to the lien of the judgment, as in the nature of a general mortgage, so that those lands only should be considered as pledged, or liable to be taken, which the debtor had at the time of the judgment. But that these lands being first exhausted, towards payment of the judgment, a scire facias might then issue to the terre-tenants of other lands, and it might be shewn that they were not the lands of the debtor at the time of the judgment; and have since been purchased by them, the terre-tenants. This would be in the spirit of what the legislature have already done, in restricting as to limita tion of time, the lien of a judgment.

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