Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1852-04-12
FOR THE vIRGINIAN.
Important Decision.
In the Crcni. Court Of Cumberland, March Ter


In the Crcui, Court Of Cumberland, March Term.
1852.
WADswoRrH. TUEYER. s. Co. vs. RsIXr ct. al.
No authority is vested in the Sheriff or other Of
cer. by the provisions of chap. l52 Of the Code Of
'isinia to suspend the sale Of property levied en-;
a housh susrending bond be delivered to hinac-
cor'lins to the 9th section of that chapter.
To eniile the claimant of the property. WHO has
delivered to the oicer such bond to have the sale
thereof suspended, lie must obtain an order for
such suspension from the Circuit Court. OF the
Court OF the county or corporation in which the
property il taken, or the Judge Of such Circuit
Court in vacation.
The Sheriff Of Cumberland levied an
execution in favor Of the plaintiffs, on two
slaves as the properly of Rainc; and
doubt arising as to the title of the proper
iy, the Sheriff required an indemnify ing
bond which was executed by the plaintiffs;
and thercupon Helmick, the claimant of
the property, delivered to the Sheriff
suspending bond, as prescribed by the 9Th
section of chap. 1872 of the Code. The
Sheriff made return of the indemnifying
bond and suspen,Iing bond 10 the Clerks
Office, stating the facts Of their execution.
and that the sale ofthe property was there
by suspended. Although several months
had elapsed since the execution and drliv-
cry of the suspending bond, Helnick had
taken no steps whatever. for the decision
Of his claim 10 the property. And in this
state the case, there being no provision
in the Code under which the plaintiffs could
proceed TO have the title to the prope,t,
investigated, they served a notice or X ..,,.
He'mick and others (reciing all -.,o f.n,s
of the case that they void .,,Iv ,n ,he
JudSe of this Court, On tsa frs, INV 81
the term 10 ordor Inc Sheriff to make sale
Of 'he properly; Or for leave to sue out an
o'n ,,r.' .loul;on on their Judgment.
!" Iisoa J. The provisions Of chapter
10. q the Code of Virginia, under which
. :ie proceedings in this case have been had
have given rise to much doubt and diff
Guilty amongst the profession. Its beiev.
ed by many, that it may be so perverted
as greatly to obstruct, if not altogether de-
feat the collection of debts under execu
ton; but Ii is believed that this chapter is
susceptible of an Interpretation which will
make it.w hat it was obviously intended to
be. means. IN a summary way, OF decid-
ing conflicting claims 20 property levied on,
or III the possession of third party. In
constituting it. all It's parts should be consi
dered and taken together.
The first section, 10 the extent ofits pro-
Wilson's. appears to be substitute for the
bill of interpleader. 1t provides that mp
on affidavit Of defendan; in any action.
that lie claims no interest in the subject
matter of the suit, but that some third par.
ty has claim thereto, &c. the CouH may
make an ordcr, requiring such third party
to appear and stale tine nature his claim,
and maintain or relinquish it, and in the
meantime stag tie proceedings in such ac-
lion. If such third party, on being scrred
'ciM such order. shall not appear, the Court
may on proof Of the plaintiffs right rem
der a judgement for him, and declare such
third party 10 he forever barred in respect
TO the subject matter &c. IF such third
rarty.on being so sers ed, shall appear, the
! Court shall allow him 10 make himself de-
lendani in TIE action, and either in such
action or otherwise, cause such issue
or issues 10 lie tried as it may prescribe;
and may direct which party shall be
considered the plaintiff in the issues.
and Shall give such judgement upon the
verdict rendered on such trial. or if
jury lac waived by the parties Interested,
shall determine their claims in summary
Wav.
The. second section provides, that when
property of any value is taken under an
execution issued by the Clerk of Court.
and any person.other than The party against
homiIe process issued. claims such pro
perry. the Crcan Court or the Court of
the county or cooperation in which tie
property is taken, or tie .Judgc Of such
Circuit Court IN racaf,on. upon the ap11jca-
ton OF the otIcsr " here no indemnify ing
bond has been given. or upon the applica-
foa OF the Person " no claims such proper
~ and has given such saspendiag bopd, as
Is hereinafter mentioned, may cause to APP
pear before such Court, as well the par.
ty ISSUING such process, as the party rlak-
ing such claim; and the Court shall exer-
else, for the decision of their rights. all or
any Of the powers and authority piescrib
ed by the preceding scctioa.
The third section empowers the Court
IN any case before menti oned 10 this clap
ter, to make all such rules and orders. and
enter such judgment as TO COSTS and all
otder nafters.as may bejn and proper.
The 4th, 5th and part of the 9Th Sec
ton. relate TO the subject of indemnifying
bonds, the effect thereof, and contain pro
visions similar to the former statute on that
subject.
The sixth section provides that The
claimantor purchaser ofrhe properly sold
under an lndemnii,ing bend. shall be
darrrd Of any action against the e6fccr
levying thereon. provided the security Ice
good at the taking Of such bond. "But."
says this section, '.the sale of any such
property shall he suspended.aI the instance
ofany claimant thereof. who shall deliver
10 the officer bond with good security, in