Officer's duty.

of properfy

portion to the amount of their respective demands. In all other cases, the writ of execution first deliverd to the officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judgments on which execution issued, may have on the lands of the debtor.

SEC. 431. The officer to whom the writ of execution is delivered shall proveed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall indorse on the writ of execution no goods," and forthwith levy the writ of execution upon the lands and tenements of the debtor which may Heliable, to satisfy the judgment.

Trial of right. SEC. 432. If the officer, by virtue of any writ of execution, issued from any court of record in this Territory, shall levy the same on any goods or chattels claimed by any person other than the defendant, it shall be the duty of said officer, forthwith to give notice in writing, to some justice of the peace of the county, in which shall be set forth the names of the plaintiff and defendant, together with the name of the claimant; and at the same time he shall furnish the said justice of the peace with a schedule of the property claimed. 'And it shall be the duty of the said justice of the peace, immediately upon the receipt of such notice and schedule, to make an entry of the same upon his docket, and issue a writ of summons, directed to the sheriff or any constable of the county, commanding him to summon five disinterested men, having the qualifications of electors, who shall be named in said summons, to appear before him, the said justice, at the time and place therein mentioned, which time shall not be more than three days after the date of said writ, to try and determine the right of the claimant to the property in controversy. And it shall be the duty of the claimant to give two days' notice, in writing, to the plaintiff or other party for whose benefit such execution was issued and levied as aforesaid, his agent or attorney, if within the county, of the time and place of such trial; and he shall, moreover, prove, to the

4

satisfaction of said justice, that such notice was given, or that the same could not be given by reason of the absence of the party, his agent, or attorney.

SEC. 433. The jury, summoned as aforesaid, shall be Duty of jury. sworn to try and determine the right of the claimant to the property in controversy, and a true verdict give according to the evidence. If the jury shall find the right to said goods. and chattels, or any part thereof, to be in the claimant, they shall also find the value thereof, and the justice shall render judgment upon the finding of the jury for the claimant, that he recover his costs against the plaintiff in execution, or other party to the same, for whose benefit the execution issued, and also that he have restitution of such goods and chattels, or any part thereof, according to the finding of the jury; but if the right to the said goods and chattels, and every part thereof, shall not be in the claimant according to the finding of said jury, then the said justice shall render judgment on said finding, in favor of the plaintiff in execution, or other party, for whose benefit the execution issued, and against said claimant for costs, and award execution thereon. If the jury shall fail to agree, and be discharged, costs shall be taxed, to abide the final event of the proceeding before said justice, and another jury shall be summoned in like manner as before. Said justice of the peace, in the taxation of costs accruing by reason of such claim and trial, shall allow each juror, summoned and sworn, the sum of one dollar; and for the sheriff, constable or other officer, and witnesses, and for himself, he shall tax such fees as are allowed by law to each respectively, for like services rendered in other cases; such judgment for the claimant (unless an undertaking be executed, as provided in the next section,) shall be a justification of the officer in returning "no goods" to the writ of execution, by virtue of which the levy has been made, as to such parts of the goods and chattels as were found to belong to such claimant.

SEC. 434. If the jury shall find the property, or any part Finding of jury thereof to be in the claimant, and the plaintiff in execution shall, at any time within three days after such trial, tender to the sheriff or other officer having such property in execution, an undertaking with good and sufficient sureties, payeble to

Officer may take an under

taking.

Shall give notice before sale

such claimant, in double the amount of the value of such property as assessed by the jury, to the effect that they will pay all damages sustained by reason of the detention or sale of such property, then the sheriff or other officer shall deliver said undertaking to claimant, and proceed to sell such property, as if no such trial of the right of property had taken place. and shall not be liable to the claimant therefor.

SEC. 435. In all cases where a sheriff, coroner, or other officer, shall, by virtue of an execution, levy upon any goods and chattels which shall remain upon his hands unsold for want of bidders, for want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security. take of the defendant an undertaking, with security in such sum as he may deem sufficient, to the effect that the said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice given in writing to said defendant in execution, or by advertisement, published in a newspaper printed in the county, naming therein the day and place of sale. If the defendant shall fail to deliver the goods and chattels, at the time and place mentioned in the notice to him given, or to pay to the officer holding the execution, the full value of said goods and chattels, or the amount of said debt. and costs, the undertaking, given as aforesaid, shall be considered as broken, and may be proceeded on as in other

cases.

SEC. 436. The officer who levies upon goods and chattels, by virtue of an execution issued by a court of record, before he proceeds to sell the same, shall cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice shall be given by advertisement, published in some newspaper printed in the county, or in case no newspaper be printed therein, by putting up advertisements in five public places in the county; two advertisements shall be put up in the precinct where the sale is to be held. And where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels; and the plaintiff in such execution

may thereupon sue out another writ of execution, directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold unless the time and place of sale be advertised, as herein before provided.

lands.

SEC. 437. When any writ shall issue, directing the sale May levy of property previously taken in execution, the officer issuing said writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands, not sold, shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon the lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.

lands, officer

inquest.

SEC. 438. If execution be levied upon the lands and tene- When levied on ments, the officer levying such execution shall call an inquest shall call of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath, impartially to appraise the property so levied on, upon actual view; and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property.

and sell.

SEC. 439. The officer receiving such return shall forth- shall advertise with deposit a copy thereof in the office of the clerk of the court from which the writ issued, and shall immediately advertise and sell said real estate, agreeably to the provisions of this title.

for less than

SEC. 440. If, upon such return as aforesaid, it appear by shall not sell the inquisition, that one-half of the appraised value of said one-half, ere. lands and tenements, so levied upon, is sufficient to satisfy the execution with costs, the judgment on which such execution issued shall not operate as a lien on the residue of the debtor's estate, to the prejudice of any other judgment creditor; but no such property shall be sold for less than one-half of the value returned in the inquest; and nothing in this section contained shall, in any wise, extend to affect the sale of lands by the Territory, but all lands, the property of individuals indebted to the Territory for any debt or taxes, or in any other manner, shall be sold, without valuation, for the

Sold without valuation.

Thirty days notice.

Court shall approve sale and order deed.

The deed shall be suficient evidence, etc.

discharge of such debt or taxes, agreeably to the laws in such cases made and provided.

SEC. 441. If the property of any clerk, sheriff, coroner, justice of the peace, constable, or any collector of Territory, county, town, or township tax, shall be levied on, for, or on account of any moneys that now are or may hereafter be by them collected or received in their official capacity, the property so levied on shall be sold without valuation.

SEC. 442. Lands and tenements, taken in execution, shall not be sold until the officer cause public notice of the time and place of sale to be given, at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or, in case no newspaper be printed in county, in some newspaper in general circulation therein, and by putting up an advertisement on the court house door, and in five other places in the county, two of which shall be in the precinct where such lands. and tenements lie. All sales made without such advertisement shall be set aside, on motion,by the court to which the execution is returnable.

SEC. 443. If the court, upon the return of any writ of execution for the satisfaction of which any lands and tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal, that the court is satisfied of the legality of such sale,. and an order that the officer make to the purchaser a deed of such lands and tenements, and the officer, on making such sale, may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court.

SEC. 444. The sheriff or other officer, who, upon such writ or writs of execution, shall sell the said lands and tenements or any part thereof, shall make to the purchaser as good and sufficient deed of conveyance of the lands and tenements sold, as the person or persons against whom such writs of execution were issued could have made of the same, at or any time after they became liable to the judgment. The deed shall be sufficient.