Stancill v. Branch.

ment in plain cases, the plaintiff's attorney, by mistake, entered up the irregular judgment. By plain cases the Judge doubtless meant such cases as are enumerated in section 91 of said statute.

There is no error.



Where the defendant in an execution had conveyed all his property, real and personal, to a third person, Held that the plaintiff had a right to direct the officer to levy upon the real estate before the personalty. A defendant may, expressly or by implication, waive the right to have his personal estate levied upon before his real estate, and a fraudulent conveyance of all his estate will amount to such a waiver.

(Sloan v. Stanly, 11 Ire., 627, cited and approved.)

MOTION, to amend a constable's return upon an execution, and for a ven. ex., heard before Barnes, J., at Spring Term, 1867, of the Superior Court of NORTHAMPTON.

The case has already been before this court,—see ante, p. 217. Upon coming before his Honor at the last term of the Superior Court, it appeared that previously to the levy, (which was one of several amounting in all to some $1,500,) the defendant had told the plaintiff that he had sold all his property to one Goodwyn; also, that in December, 1865, and again about the 1st of May, 1866, the defendant had made conveyances of all his property to Goodwyn, neither of which, from some formal defect, had been registered. That on the 3d July, 1866, he made another such conveyance, which was registered. At the time of the levy the defendant had in his possession some $1,500 worth of personal property, consisting of horses, cattle, furniture, &c.,

Stancill v. Branch.

which had been included in his conveyances, also a yoke of oxen, not so included. After hearing this evidence the court allowed the officer to amend his return, which he did, in the following words: "In consequence of a conversation had with the plaintiff, in which he said there was doubt whether the personal property in the possession of the defendant was his, as he, the defendant, had told him, plaintiff, that he had sold it, and he, plaintiff, did not wish to have to give me a bond of indemnity; in which said conversation plaintiff directed me not to levy upon personal property, but upon the land, I have not gone to the defendant's house to look for goods and chattels upon which to levy, but have levied this execution upon the following lands, (describing them,) June 9th, 1866." Thereupon the court ordered a ven. ex. to issue to sell the lands levied on, and the defendant appealed.

Bragg, for the appellant.

Constable must first levy on personal estate, and if he do not so levy, his return must show that it was for want of goods and chattels. Henshaw v. Branson, 3 Ire., 298; Jones v. Austin, 10 Ire., 20.

In Sloan v. Stanly, 11 Ire., 630, it appeared that the officer did not know that the defendant had goods. Here it was known to him.

Rogers & Batchelor, and Peebles, contra.

1. The conduct of the defendant in regard to his property amounts to an estoppel in pais to assert, as against the plaintiff, that he had personal property that might be levied upon. See Bird v. Benton, 2 Dev., 179; Pickard v. Sears, 33 Com. Law, 115; Mason v. Williams, 8 Jon., 478; Hearne v. Rogers, 13 Com. Law, 449; Graves v. Key, 23 Com. Law, 79, 4 Kent, p. 268, n. (c.) 7th ed. Phil. & Amos Ev., 378.

2. At least it is a waiver of his privilege to have his per

Stancill v. Branch.

sonal estate taken first. Sloan v. Stanly, 11 Ire., 627; Tyser v. Short, 5 Jon., 279. See also Jones v. Austin, 10 Ire., 20, as to presumptions in favor of the order below.

3. The usual words "For want of goods and chattels," do not constitute a legal formula, but may be supplied by expressions equivalent, or by any that satisfy the requirements of the law in regard to levies upon realty and personalty. Compare Henshaw v. Branson, 3 Ire., 298, with Tyser v. Short, Sloan v. Stanly, and Jones v. Austin; also see Rev. Code, c. 62, s. 16; Smith v. Low, 2 Ire. 457; Blanchard v. Blanchard, 3 Ire., 105.

BATTLE, J. In the case of Sloan v. Stanly, 11 Ire., 627, it was decided that where an execution is about to be levied by a constable, the debtor, if he has personal property, must show it, and, if he do not, the officer commits no wrong by levying on the land in the first instance. So, if it do not appear that the officer knew of the existence of the personal property, he is justifiable in levying on the real estate. The present case differs from the one referred to in the fact that the officer knew that the debtor was in the possession of goods and chattels, as well as of lands; but he was informed, and had good reason to believe that the debtor had conveyed, or was endeavoring to convey all his property, both real and personal, to a third person. The plaintiff in the execution had the right to test the validity of that conveyance; and we think he had the option to select which kind of property should be levied on, for the purpose of try ing the title. It is manifest that less difficulty would be encountered by a levy upon the land than upon the personal property of the debtor; and, according to the facts stated in the constable's return, the court was authorized to grant the order for a venditioni exponas.

It is very certain, we think, that a debtor may, if he prefer to keep his personal property, request the officer to levy

Brooks v. Tucker.

upon his land, and the officer will be justified in so doing, and stating the request in his return. So, in our opinion, an attempted fraudulent conveyance of all his property by a debtor will amount to a waiver of his right to have his personal property taken in preference to his land, and the officer may levy, in the first instance, upon the land and make his reason known in his return. The right to have his personal property taken and sold before his realty is intended as a benefit to the debtor, and there is no reason why he may not waive, or forfeit it. In either case where the facts are made known to the court, in the return of the officer, the court may proceed to act upon it, and order the sale of the land for the satisfaction of the debt.


Judgment affirmed.


A report of commissioners under c. 40 of the Revised Code, (Draining Lands,) which fails to assess and apportion that part of the labor which, under s. 10, is to be contributed by the defendants, is fatally defective.

EXCEPTION to a report under a petition for a canal to drain lands, heard before Barnes, J., at Spring Term, 1867, of the Superior Court of PITT.

The petition was filed to August Term, 1866, of the County Court of Pitt, and set forth that the petitioner was the owner of swamp land that could be drained only through the lands. of the defendant Tucker, and that the canal into which it was proposed to discharge the one prayed for, after leaving Tucker's land, ran through the lands of the other defendants. The prayer was in the usual form.

Commissioners having been appointed, reported to the

Brooks v. Tucker.

next term that they had laid off a canal as above specified, and assessed the labor to be contributed by the petitioner, but omitted to make an assessment of that to be contributed by the defendants.

An exception was taken to the report by the petitioner, on account of the omission above mentioned. This was overruled in the County Court, but upon appeal was sustained by his Honor. Thereupon the defendants appealed to this court.

No counsel for the appellant.
Haywood, contra.

BATTLE, J. In the 40th chapter of the Revised Code, entitled "Draining and Damming Low Lands," there is a provision (s. 8) enabling the proprietor of any low or flat lands to drain them by cutting a ditch or canal into a canal belonging to other persons. The 9th section prescribes that such owners shall be made parties defendants to the petition required by previous sections, and proceeds to point out the manner and terms in and under which it may be done. The 10th section requires that the commissioners, who may have been appointed to determine the route of the proposed ditch or canal, and its width, depth, &c., shall, besides the damages which they may assess against the petitioner for the privilege of draining into the canal of other persons, "assess and apportion the labor which the petitioner and defendants shall severally contribute towards repairing the canal or canals, into or through which the petitioner drains the water from his lands, and report the same to court, which, when confirmed, shall stand as a judgment of the court against each of the parties, his executors and administrators, heirs and assigns."

In the case now before us, the commissioners, having acted, made a report, in which they assessed the proportion of

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