Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1879-09-10
RES ADJUDICATA.
Correspondence Of the Register.
New MARTINsvILLE, Sept. q

lien of feri fdcias never levied, attaches
to all the personal property owned by
the debtor at any time prior to the re-
turn day of the feri tacias subject only
to the exceptions specified in Chapter
one hundred and forty-one, Section one
of the Code of West Virginia"
The point made is that a teri fac'a'
from and after the day of delivery to the
officer to be executed is lien not only
on the property owned by the debtor
at the date of delivery, but also upon
subsequently acquired property, al
though the f ia, is not levied thereon.
In other words it binds any property
acquired by the debtor between the de-
livery of the fl ia, and its return day.
Is this a sound legal proposition? The
language OF the Section referred to is as
follows: every writ of feri fdciGs shall
IN addition to the effect which it
has under chapter one hundred and
forty, be lien from the time that 1t is
delivered to a sheriff or other officer to
be executed, upon all the personal es-
tate of, or to which the judgment debtor
is possessed or entitled, (althOugh not
levied on, or capable of being levied on,
under that chapter,) &c, &c. Under
this section does the lien of tieri tdciGs
extend to property acquired after the
delivery ofthe writ of the officers? In
| - Graft. 40l, il was decided that teri
flcins was a lien upon all the personal
estate of the debtor, including debts due
| TO him from the time OF its delivery to
| the officer, and that the lien continues
| after the return day Of the execution.
| The question whether this continuing
| lien Iattaches to property subsequently
acquired, depends upon the construc-
ton of the section OF the Code above
quoted.
The Language of the statute is in the
present tense, and the debtor must
have been possessed or entitled, at the
| time of delivery, TO enable the lien to
attach. 1t is rule OF construction that
statutes are to be read according to the
natural and obvious import OF their Ian
guage. Sedgwick, Stat. and Con. Law
260.
The ordinary sense of the words
'upon all the personal estate OF, or to
which the judgment debtor is possessed
or entitled, is very clearly that the lien
attaches on delivery OF the writ to the
officer upon all personal estate OF or to
which the debtor is then entitled-all
that he has at the time the writ reaches
| the hands OF the officer. This view is
greatly aided by the fact that the Legis-
| lature has in other sections made com
| plete provision for reaching after ac-
| quired property.
In l5 Graft, l61, it is held that the
ffa is a lien from the time that it is de-
livered to the officer to be executed on
all the personal estate of the debtor, on
which it is capable of being levied, and
is actually ieUied before the return day
so that as to property acquired after the
! delivery and before the return day there
NAV be an actual levy, il it be of kind
capable Of being levied on; but If from
any cause an actual levy on the after
acquired property cannot be made,
| either because the return day has
| passed, or on account of the character OF
| the property, the fifteenth Sec
| ton OF chapter one hundred and
forty provides for the issuing OF
| repeated executions whether the return
| dav of former executions has arrived or
| not. each OF these executions VIII
| constitute a general lien on the proper
| ty of or to which the debtor is possessed
| or entitled at the time of It's delivery;
and the 2nd section, chapter l4l, Code,
provides that this "shall not impair a
| 4 l,,. aNanntinn prAIl for
under chapter l40."
! Sufficient remedies are thus devised
for reaching after acquired property IN
other ways than by the lien of an exccu-
ton being continued beyond the deliv-
cry, and it must have the intention of
the Legislature to confirm the general
lien Of a .ffd to the property OF, or to
| which the debtor is possessed or en-
titled at The tims Of detirery leaving the
parties to remedies otherwise provided
as regards after acquired property.
This view of the case is further forti-
fed by referring to the 5th section OF
chapter l39, Code: Every judgment,
for money, rendered in this State, here
tofore or hereafter, against any person,
! shall be a lien on all the real estate OF or
to which such person shall be possessed,
| or entitled at or after the date Of such judy
rnent, &c, &c, :" from which it must APP
| pear that where the Legislature intend
! ed to embrace after acquired property,
it used language clearly indicating its
! intention. Where We find after acquired
property specially embraced in one sta
! tute, and not mentioned IN the other, it
must be presumed that it was intended
to be excluded in the latter-bOth sta
tutes being in pGri mdterid.
Moreover, we are not without author
ity on the subject.
Judge Fitzhugh, of the Chancery
| Court of the City of Richmond, IN
! Crews Admir- VS.. Crew, in passing on
| this point, construed the Virginia sta
! tute. which on this subject is the same
as ours, verbatim.
The first section of the syllabus is:
81. The lien OF an execution under
sections 3 and 1 OF chapter lSS OF the
code OF 1860. does not extend to prop
erty acquired after the deIirsry Of the writ
to the officers; but it the property is ca
! pable Of being levied on, there may be
an actual lery of the writ on such after
acquired property at any time before the
return day Of the same" Virginia Law
! Journal, November 1871 This doctrine
seems sound.
He goes on to say, if an actual levy
cannot be made because the return day
has passed, or on account OF the charac-
ter OF the property, repeated executions
NAV be issued without impairing former
liens. 1t seems that our statute will
not bear the construction put on it by
! our highest court.
However much We dissent from the
! conclusion, We must subscribe to the
rule stare dsciSiS DIsSESTER.
! THE OAR.
Challenge for the World Cham