#### *Turner v. Harris’s Ex’or &c.

January, 1843,

Richmond.

Ca. Sa,—Motion to Quash—Oath of Insolvency—Charging Debtor in Execution.—After a ca. sa. against a judgment debtor has been returned non esl inventus, and a scire facias sued out against the special bail, the debtor and the bail move to auash *320the ca. sa. upon the ground that before the same was issued, and since the judgment was rendered, the debtor took the oath of insolvency at the suit of another creditor, and that the said ca. sa. was issued without the direction of the court. The creditor, plaintiff in the execution and scire facias, resists the motion. It appears that the debtor having been surrendered to the sheriff by his special bail at the suit of the other creditor, and brought before two justices of the peace, subscribed and' delivered in a schedule of his estate, made oath thereto in due form of law, and was thereupon discharged by warrant from the justices, which recited that he had “complied with the directions of the general assembly for the relief of insolvent debtors.” No other evidence is adduced to shew that the debtor was ever charged in execution by the creditor at whose suit he was surrendered. Held, the motion to quash the ca. sa. must be overruled.

On the 31st of May 1823, Lemuel Turner recovered a judgment in the county court of Nelson against Richard H. Burks and William B. Jacobs, for 1400 dollars and costs, to be discharged by the payment of 700 dollars with interest from the 27th of November 1821 till paid, and the costs; subject to credits for payments made at different times amounting to S37 dollars 17 cents. Pending the action, William Lee Harris had become special bail for the defendants. On the 24th of November 1823, ca. sa. was issued upon the judgment, directed to the sheriff of Nelson and returnable to January term 1824, on which the sheriff made the following return: “29th November. 1823, executed on Jacobs and committed to jail; Burks not found.” On the 11th of December 1824, after the death of William Lee Harris the special bail, a writ of scire facias was sued out ^against Lee W. Harris his executor. Various proceedings were had upon the scire facias, and it was still pending and undetermined on the 27th of August 1834. On that day, Harris’s executor and Richard H. Burks moved the county court of Nelson to quash the ca. sa. so far as it affected the said Burks, upon the ground that before the same was issued, and since the recovery of the judgment, Burks had taken the oath of insolvency at the suit of other creditors, and that the said ca. sa. emanated without the order of the court. This motion was resisted by Turner, the plaintiff in the execution and scire facias.

In support of the motion, Harris’s executor and Burks produced a warrant under the hands and seals of two justices of the peace for Amherst county, dated the 23d of August 1823, and directed to the keeper of the jail of said county, in the following terms: “We hereby command you, in the name of thg commonwealth, forthwith to release and set at liberty Richard H. Burks, a prisoner now in your custody by virtue of the following bail pieces: One in the name of William Morgan &c. against the said Richard H. Burks &c. for 4800 dollars, to be discharged by the payment of 2400 dollars with interest &c. and costs; John Van Lew & Co. against Richard H. Burks &c. for 269 dollars 20 cents with interest &c. and costs; and one in the superior court of Amherst, in the name of Archibald Robertson assignee &c. against Richard H. Burks, for 200 dollars with interest &c. and costs: the said Richard H. Burks having complied with the directions of the genera! assembly for the relief of insolvent debtors.” It further appeared, by a receipt under the hand of the sheriff of Amherst, dated the same 23d of August 1823, that Burks was on that day surrendered to the said sheriff by William Shelton, his bail at the suit of Van Lew & Company, and (¡hereupon committed to jail. The warrant for bringing Burks before the justices, and the schedule subscribed *and delivered in by him, were also produced; and it was proved by the testimony of two witnesses, that Burks, previous to his discharge under the warrant first above set forth, made oath to the said schedule in due form of law. But except the warrant of discharge itself, there was no evidence proving, or tending to prove, that Burks was charged in execution by any of the creditors in the said warrant mentioned, when he took the oath of insolvency and obtained his discharge as aforesaid.

Upon this evidence the county court of Nelson held that the execution ought to be quashed, so far as Burks was concerned, as it had been issued without the direction of the court, and after Burks had taken the oath of insolvency at the time and in the cases above stated; and ordered that the same be quashed accordingly. This order was affirmed by the circuit superior court of Nelson, on a supersedeas thereto obtained by Turner; and thereupon, on his petition, this court allowed him a supersedeas to the judgment of affirmance.

Rhodes, for the plaintiff in error,

submitted, that Burks was not duly discharged, not having been charged in execution by any creditor, and consequently that -Turner’s ca. sa. was rightfully issued.

There was no counsel for the defendants.

PER CURIAM.

Judgments of both courts reversed, and motion to quash the ca. sa. overruled. *

*

See also Green v. Garrett, 3 Munf. 339, and Higginbotham v. Browns, 4 Munf. 516. (Reporter.)