APRIL TERM, 1772.

*Leech*and *Jenifer*present.

#### Nathan Nicholson *against*Thomas Sligh.

MOTION was made to quash a *fieri facias,*on bringing the money into Court.

*Jeiiings,*for the defendant,

cited 2 *Ch. Ca.*183. *Bro. Elegit,*pi. 3.

The Court, on this point, ordered the matter to be postponed, that it might be heard in a fuller Court, they not being inclined to settle a point of practice when only two magistrates were present.

It was then moved to quash the execution for the insufficiency of the sheriff’s return, and the imperfections in. the return or inquest of the appraisers.

*435
      *Jenings.*This *fieri facias*is executed under the act of 1716, c. 16. and therefore an inquest was necessary to ascertain the value of the chattels, as it is on an *elcgit*by *West.*2. c. 18. it is not expressly mentioned to be necessary in the statute, but it has been held to be so in the construction of the statute *; a fortiori*it is necessary in the present instance, it being directed by the act of Assembly. 2 *Inst.*396. 4 *Co.*74. *Palmer’s*case.

As an inquest is necessary, it ought to be certain to every intent. *Heath’s*Maxims, 3. That it is uncertain and imperfect for the following reasons:

1. It is not set forth by whom the appraisers were chosen, and perhaps they might all have been appointed *by*the sheriff, without any refusal or neglect of the parties to nominate.

2. It is not set forth that the appraisers were summoned, or for what purpose. 2 *Hawk.*253. s. 119. 123.

3. It does not appear that the defendant had any, or what notice. 1 *Bar. Not.*207. 210. 213, 214. 218. 221.

4. It is not alleged the appraisers were sworn for this purpose, or that they were sworn at all. *Cro. Jac.*119. 2 *Hawk.*153. s. 126.

5. It is not set forth at what County or where the appraisement was made. *Dyer,*208.

6. It does not appear the appraisers were men of the County. 2 *Hawk.*153. s. 126.

It was further objected, that this proceeding under the act of Assembly was irregular, it not appearing that the defendant was requested to shew his personal estate, or that he agreed to do it. On which point it was observed, that at the common law the sheriff could not deliver the goods to the creditor, but was obliged to sell them and pay him the *money;*that the act of Assembly was made for the benefit of debtors, and therefore they might renounce any advantage under it, according to the rule, “ *Spuilibet potest renunciare jure pro se introducto.”*Therefore if the debtor refused to shew his effects, the creditor could only *436proceed at common law. That in the present case it did not appear the debtor complied with the terms in the act of Assembly, and therefore the creditor could only execute *the. fieri facias*at common law.

Chase, for the plaintiff,

contended, that the plaintiff had a right to amend his return, and that, although the proceedings might appear defective as they stood, yet they might be rectified by .the amendment. He also stated, that two of the negroes which had been taken under the *fieri facias*had been sold, and contended that the act of Assembly vested the property immediately on the appraisement. That the cases of lands were distinguishable from negroes,who might die.

Jenings, in reply,

observed, that though the sheriff had a right to amend his return, he could not amend the act of the appraisers; that these were acting under oath, and were punishable by indictment for a non-observance of their oath, and therefore the sheriff had no power to add to or dinnnish what they had certified. That the return of the sheriff could not be evidence against the appraisers, for thereby the security of the debtor for their acting uprightly would be destroyed. The appraisers could not be indicted for perjury on the sheriff’s return. That if the sheriff could supply one circumstance by his return, he might supply the total defect of an inquisition. That if the sale vested the property, the plaintiff might, where there was a low valuation by the appraisers, procure a friend to purchase them, and then set up the argument of their being sold. The execution is good at common law, though there be no return; but the sheriff is obliged to make a return, if called upon so to do. He ought to sell the property, or return that they remained in his hands for want of buyers. If he had sold the goods, the surplus would have been paid over to the defendant; but if the proceeding contended for were established, by a low valuation the plaintiff might receive double his debt.

*437It appears, from the notes of *T.*Jenings, Esq. who was counsel in this cause, and of *W.*Cooke, Esq. that the Justices present being at a loss to determine the points, desired that the opinions of some of the gentlemen of the bar, not engaged in the cause, might be taken; and thereupon the whole matter was referred to *James Holly day*and *Thomas*Johnson, Esquires, who were both of opinion that the *fieri facias*ought to be quashed, assigning for the reason of their opinion, that unless the debtor shewed his effects, the creditor could only proceed to execute the *fieri facias*at common law, and it not appearing that the debtor had done this, the proceedings were erroneous.

Mr. Johnson, in addition, further observed, that he thought the sheriff could not amend the return so as to give any other or further effect *to*the return of the appraisers, for the reasons assigned by the defendant’s counsel. '

Judgment that the *fieri facias*be *quashed.*