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TURNER V. FENDALL, 5 U. S. 117 (1801)

U.S. Supreme Court

Turner v. Fendall, 5 U.S. 1 Cranch 117 117 (1801)

Turner v. Fendall

5 U.S. (1 Cranch) 117


Proceedings before magistrates under the insolvent laws of Virginia are clearly matters in pais, and are therefore to be proved by parol and other testimony.

Money may be taken in execution under process of fieri facias, if in possession of the defendant.

The general rule of law is that all chattels the property of the debtor may be taken in execution, and where even an officer has it in his power to satisfy an execution in his hands, it is his duty so to do, and if he omits to perform his duty, he must be accountable to those who may be injured by his omission.

The sheriff having in his hands a fieri facias, and having received money for the defendant in the same under an execution in which the defendant was plaintiff, levied on the money in his hands, and paid the same to the plaintiff in the fieri facias. Held that under the law of Virginia, it was the duty of the sheriff to have the money made under the fieri facias in court on the return day of the writ, and that he was not justified in paying over the same.

Although the testimony offered was legal to establish a fact, yet the court committed no error in rejecting it for which the judgment ought to be reversed, because the fact does not appear to have been relevant to the cause.

Page 5 U. S. 129

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