Muscatine weekly journal. [volume] (Muscatine, Iowa) 185?-1890, 1862-01-10
N1uscatime District Court.

COURTS DECISION
Weed. The agreed statement Of
facts presents the question: When does an
execution become a lien on the personal pro-
pertg of the defend1nt an the UriE This
important question has never been decided IN
this State, and there is no statute On the Sub
ject.
The law is thus stated by Bowler g
Inst. 573, 574):-"At common law the writ
bound the goods of the defendant from the
"teste day." y x = $50 that a sale by
''the defendant to bona tide purchaser did
''not protect him from the. teri ficias tested
''tetore, although not issued or delivered to
| ''the Sheriff till after the sale. To remedy
| this manifest injustice the statute of frauds
| "(29 Charles ii, c. 3, sec. 16) was passed,
the prime Piles of which have been adopted
sin this respect, in perhaps all the States
at enacts that no writ of teri facias shall
"'bind the goods but from the time it shall be
>" delivered to the Sheriff to be executed; and
''for the better manifestation of said time,
the Sheriff shall indorse on the back of the
:. writ the day of the month and year when
"'he received the same.'"
except Iowa, the matter has been regulated by
statute Here it seems to have been over
looked by the Legislature. give tho result
of nv examination of the law Oil this subject
as it exists in number of the States:
Nc Call d. Irevor, 4 Black, PIP. 1876, which
holds that the writ is lien on the goods of
the defendant from the date Of its delivery to
ID. -. II
based upon the statute of frauds, the section
thereof being expressly ret enacted in Indiana:
St. p. 49S, r. G. of Ind, 1881, p. 275.
Johnson, N. McLane, 7, Black, f sol is
based upon the same statute, not upon the
common law.
Ilhnois.-There is also an express statute
in Illinois making executions lien from the
time of delivery. Rev. statutes of Va, CHI.
50, sec. 49, MarshaN d. Cunningham, IL
Ills, 20, is expressly based upon this statute,
re-enacting in that State the statute Of frauds
So of Rogers & hickey, l Gilman 636, and
of Dodge d Mack, % Ills 90.
New Yori.-Ihere is the sane statutory
provision in New Yo,k. The statute reads
''that no writ Of execution shall bind but
from the time it shall be delivered to the
Sheriff" ! Rev. Laws of N. Y, 500 All
of the decisions in New York are based upon
this statute, and are therefore nnappicahle 70
he present inquiry.
Ken.ucky-In this State there is the same
statute Littelrs statutes (Ky) p. 3d.
And the dccis on in Bib 81, 32 J. j.
Marsh ALL and the others are based upon
this statute.
Ohio.-Goods and chattels bound from the
time they are seized in execution" Statutes
of Ohio 1881, P. TO-, sec. 2. Ohio Code
sec. 42l.
North Corozina- Comprehensive Statutes
enacting and adopting the whole body of the
Common Law, chap 60 of Revisal 1886, re-
peated in Revisal 1854, p. 1875. Hence held
ttat an execution binds from teste.
Harding " Spirey, Iredcll, Law SO and
n. @. cases there cited.
Florila II Writ binds from delivery but
the statute of 20 Charles II lis of force in
that State" So said in Love V. Williams,
Flor 1874. .s1
Alabama-In 1907 the statute Of Charles
was adopted. See statute cited Address v.
Roberts, Is Ala R. p. 3S9 Hence held that
rent, bends, goods from delivery to Office, to
be executed. Ibid.
CaAfoymia.-By statutes made, lien from
levy. johnson v. Gorham, Cal r. 1885,
Missouri.-The statute of 20 Charles Is
expressly re-enacted in this State. - |
Field d. IfeJburne, 9 Mo. 492. A
The statute of 30, Charles II was not pas
sed until 1867, which is period considerable
later than the time when We adopted the
law as modified by statutes.
Sec. l. Breh. on Grim. Laws, sec. 13, when
the dates of the settlements of the various
Colonies are given.
There is no pretence, then, that the statute
of Charles is in force in this State; the more
especially as in enacting the statutes of
frauds we omit the section in relation to
Why was it omitted if the Leg.
stature had intended executions to be liens
from date of delivery to officer?
The Common Law rule which is conceded
10 work manifest injustice" should not be
adopted by the courts. Our whole legislation
IS against constructive liens. The decision
IF our Supreme Courts have been character
zed by the same policy. Thus, contra
y to the decisions elsewhere our Supreme
Court have held that the execution of de-
livery bond leaves the property free from the
len of the writ. Jones d Peasley, 80
Greene, 50, s. P. 10 Iowa, 302.
So, also, the execution of a replevin bond.
gim6le d Aekley, II Iowa. Any other doc
rine tends to embarrass the safe and free
disposition of property. a-a>
am of the opinion that an execution is
10 lien on the goods of the defendant therein
Until actual levy. Weed is therefore entitled
o judgment. JOHN F. DILLON,