JONES v. JONES. 410

duties assigned him by the writ. He is responsible for the safety
of the property, and therefore may have an action against any
wrongdoer who attempts to injure it, or to take it from him. Yet,
if before a sale the defendant pays to the sheriff the whole debt
and costs, he is bouniJ to redeliver the property so taken in execu-
tion. The statute of frauds was intended for the benefit of pur- *
chasers and creditors only; therefore, still, as relates to the party
himself, the judgment and fieri facias relate to the first day of the
term, or at least to the teste of the writ; so that if it be tested in
the defendant's lifetime it may be taken out and executed after his
death, (m) And so, on the other hand, if the plaintiff dies, after a
fieri facias has been "sued out, it may nevertheless be executed.
And as the writ commands the sheriff to bring the money into
court, it is his duty to do so accordingly, so that it may be there
deposited to be paid, if the plaintiff be dead, to his executor or
administrator, when he shall appear; or, if the defendant be dead,
that the surplus, if any, may be paid to his legal representatives
when they may come prepared to shew their right to it.(?i) Hence
it is clear, that this positive command of the writ, virtually and
necessarily intercepts the property in its course, and evicts it from
the hands of the executor or administrator of the deceased defend-
ant, who died after it bore teste.(o)

These are the well settled principles of law in relation to the
personal property of the defendant against whom the fieri facias
issued. But, as in England real estate cannot be taken in execu-
tion under a fieri facias, there are no English adjudications in
relation to a case, like this, where the fieri facias had been levied
upon the real estate of the debtor. But, the statute,(p) which
subjected lands to be sold for the payment of debts has been so
interpreted, and carried into effect here, as to make no distinc-
tion whatever between the debtor's real and personal estate,
so far as it may be affected by any execution bearing teste in his life-
time.(q) And therefore, by analogy to the principles of the English
law, applicable to an execution against the personalty, it has been held

(m) Tidd, Pra. 915; Pow. Mort. by Coven. 275, 280, 515; Odes v. Woodward,
2 Ld. Raym. 850; Bragner v. Langmead, 7 T. R. 20; Docura v. Henry, 4 H, &
McH. 480.—(») Tidd, Pra. 915.—(o) Wilbraham v. Snow, 2 Saund. 47; Oades v.
Woodward, 7 Mod. 94; Dr. Needham's Case, 12 Mod. 5; Waghorne v. Lang-
mead, 1 Bos. & Pul. 572; Robinson u.Tonge, 3 P.Will. 400,—(p) 5 Geo. 2, c. 7.
(q) Barney v. Patterson, 6 H. & J. 182; Davidson v. Beatty, 3 H. & McH. 616.

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