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fore the return day of the execution. If in the mean time the money had been lost or destroyed by robbery, Fendall.. fire, enemies, lightning 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, (Rev. Code, p. 306.) is," that you have the said sum of money before the judges of our said court, the day of 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

to

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 favour. 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. Abr. 352. Now if the plaintiff is not satisfied, the reason fails, and, consequently, the rule does not hold good. In 2 Bac. Abr. 352. it is said, "in strictness the money 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 mo ney 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 proVOL. L

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perty 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 or dered by the court to be paid to the second creditor, on affidavit that other goods and chattels could not be found. This case shows, 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 plaintiff, in the circuit court at Alexandria, under an act of the Virginia assembly, which declares that "if any sheriff, under sheriff or other offi cer, 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 issue, upon a motion made at the next succeeding general court, or other court from whence such writ shal 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 officer have ten days' previous notice of such motion." That Turner had been serjeant 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 Philip R. Fendall, merchants, trading unIder the firm of Robert Young & 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 show 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. Fen

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dafl, merchants, trading under the firm of Robert Young & 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?

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