[*413] in a quare impedit, or assize of darrein presentment, *the execution is by a writ de clerico admittendo; directed, not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. In other actions, where the judgment is that something in special be done or rendered by the defendant, then, in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff, according to the nature of the case. As, upon an assize of nuisance, or quod permittat prosternere, where one part of the judgment is qaod nocumentum amoveatur, a writ goes to the sheriff to abate it at the charge of the party, which likewise issues even in case of an indictment. (c) (1) Upon a replevin, the writ of execution is the writ de retorno habendo: (d) and, if the distress be eloigned, the defendant shall have a capias in withernam; (e) but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed,(f) In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels : (g) or else a scire facias against any third person in whose hands they may happen to be, to show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages: which (being either so assessed, or by the verdict in case of an issue), (h) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election to deliver the goods or their value: (i) an imperfection in the law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magistrate. *Executions in actions where money only is recovered, as a debt or [*414] damages (and not any specific chattel), are of five sorts: either against the body of the defendant; or against his goods and chattels; or against his goods and the profits of his lands; or against his goods and the possession of his lands; or against all three, his body, lands, and goods. 1. The first of these species of execution is by writ of capias ad satisfaciendum; (j) which addition distinguishes it from the former capias ad respondendum, which lies to compel an appearance at the beginning of the suit. And, properly speaking, this cannot be sued out against any but such as were liable to be taken upon the former capius. (k) The intent of it is, to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages: it therefore doth not lie against any privileged persons, peers, or members of parliament, nor against executors or administrators, nor against such other persons as could not be originally held to bail. And Sir Edward Coke also gives us a singular instance, (7) where a defendant in 14 Edw. III was discharged from a capias, because he was of so advanced an age, quod pœnam imprisonamenti subire non potest. If an action be brought against an husband and wife for the debt of the wife when sole, and the plaintiff recovers judgment, the capias shall issue to take both husband and wife in execution: (m) but if the action was originally brought against herself when sole, and pending the suit she marries, the capias shall be awarded against her only, and not against her husband. (n) Yet, if judgment be recovered against an husband and wife for the contract, (c) Comb, 10. (g) 1 Roll Abr. 737. (3) Appendix, No. (m) Moor. 704. (d) See page 150. Rast. Entr. 215. (e) See page 149. (i) Keilw, 64. (n) Cro. Jac. 323. (1) [That is, if it be stated in the indictment that the nuisance is still existing. If it does not appear in the indictment that the nuisance was then in existence, it would be absurd to give judgment to abate a nuisance which does not exist. 8 T. R. 144.] nay, even for the personal misbehaviour (0) of the wife during her coverture, the capias shall issue against the husband only: which is one of the many great privileges of English wives. (2) *The writ of capias ad satisfaciendum is an execution of the highest nature, inasmuch as it deprives a man of his liberty, till he makes the [*415] satisfaction awarded; and therefore, when a man is once taken in execution upon this writ, no other process can be sued out against his lands or goods. Only by statute 21 Jac. I, c. 24, if the defendant dies, while charged in execution upon this writ, the plaintiff may, after his death, sue out a new execution against his lands. goods, or chattels. The writ is directed to the sheriff, commanding him to take the body of the defendant and have him at Westminster on a day therein named, to make the plaintiff satisfaction for his demand. And, if he does not then make satisfaction, he must remain in custody till he does. This writ may be sued out, as may all other executory process, for costs, against a plaintiff as well as a defendant, when judgment is had against him. (3) When a defendant is once in custody upon process, he is to be kept in arcta et salva custodia: and if he be afterwards seen at large, it is an escape; and the plaintiff may have an action thereupon against the sheriff for his whole debt. For though, upon arrests, and what is called mesne process, being such as intervenes between the commencement and end of a suit, (p) the sheriff, till the statute 8 and 9 Wm. III, c. 27, might have indulged the defendant as he pleased, so as he produced him in court to answer the plaintiff at the return of the writ: yet, upon a taking in execution, he could never give any indulgence; for, in that case, confinement is the whole of the debtor's punishment, and of the satisfaction made to the creditor. Escapes are either voluntary, or negligent. Voluntary are such as are by the express consent of the keeper; after which he never can retake his prisoner again (7) (though the plaintiff may retake him at any time), (r) but the sheriff must answer for the debt. Negligent escapes are where the prisoner escapes without his keeper's knowledge or consent; and then upon fresh pursuit the defendant may *be retaken, and the sheriff shall be excused, if he has him again before any action brought against himself for the escape. (s) [*416] A rescue of a prisoner in execution, either going to gaol or in gaol, or a breach of prison, will not excuse the sheriff from being guilty of and answering for the escape; for he ought to have sufficient force to keep him, since he may command the power of the county. (f) But by statute 32 Geo. II, c. 28, if a defendant, charged in execution for any debt not exceeding 1007. will surrender all his effects to his creditors (except his apparel, bedding, and tools of his trade, not amounting in the whole to the value of 107.), and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless the creditor insists on detaining him; in which case he shall allow him 2s. 4d. per week, to be paid on the first day of every week, and on failure of regular payment the prisoner (0) Cro. Car. 513. (p) See page 279. (r) Stat. 8 and 9 Wm. III. c. 27. (q) 3 Rep. 52. 1 Sid. 330. (8) F. N. B. 130. (2) [There are many cases in which the defendant may be taken in execution after judgment, though he could not be arrested at the commencement of the suit; but it is an universal rule that, whenever a capias is allowed on mesne process before judgment, it may be had upon the judgment itself. 3 Salk. 286; 3 Co. 12.] A great change has been effected in the law of England regarding imprisonment for debt since these commentaries were written, and now it is not allowed in actions on contracts, except in cases of fraud. See statutes 1 and 2 Vic. c. 110; 5 and 6 Vic. c. 116; 7 and 8 Vic. c. 96; and 32 and 33 Vic c. 62. (3) Taking the body of the defendant in execution suspends the lien of the judgment. Jackson v. Benedict, 13 Johns. 533. If the plaintiff gives the defendant, when in execution, permission to go at large, the judgment is discharged, and he will have no remedy either against the defendant or the sheriff. Blackburn v. Stupart, 2 East, 243; Yates v. Van Rensselaer, 5 Johns. 364; Poucher v. Holley, 3 Wend. 184. And this irrespective of the intention of the plaintiff, or of any violation by the defendant of any understanding on which he was discharged." Id. The same principle is applicable if one of several defendants is discharged by the plaintiff. Ransom v. Keyes, 9 Cow. 128. VOL. II.-33 257 shall be discharged. Yet the creditor may at any future time have execution against the lands and goods of such defendant, though never more against his person. And, on the other hand, the creditors may, as in case of bankruptcy, compel (under pain of transportation for seven years) such debtor charged in execution for any debt under 1007. to make a discovery and surrender of all his effects for their benefit, whereupon he is also entitled to the like discharge of his person. If a capias ad satisfaciendum is sued out, and a non est inventus is returned thereon, the plaintiff may sue out a process against the bail, if any were given: who, we may remember, stipulated in this triple alternative, that the defendant should, if condemned in the suit, satisfy the plaintiff his debt and costs; or that he should surrender himself a prisoner; or, that they would pay it for him: as therefore the two former branches of the alternative are neither of them complied with, the latter must immediately take place. (u) In order to which a writ of scire facias may be sued out against the bail, commanding them to show cause why the plaintiff should not have execution against them for his *debt [*417] and damages; and on such writ, if they show no sufficient cause, or the defendant does not surrender himself on the day of the return, or of showing cause (for afterwards is not sufficient), the plaintiff may have judgment against the bail, and take out a writ of capias ad satisfaciendum, or other process of execution against them. 2. The next species of execution is against the goods and chattels of the defendant; and is called a writ of fieri facias, (w) from the words in it where the sheriff is commanded, quod fieri faciat de bonis, that he cause to be made of the goods and chattels of the defendant the sum or debt recovered. (4) This lies as well against privileged persons, peers, &c., as other common persons; and against executors or administrators, with regard to the goods of the deceased. The sheriff may not break open any outer door, (x) to execute either this, or the former writ: but must enter peaceably; and may then break open any inner door, belonging to the defendant, in order to take the goods. (y) And he may sell the goods and chattels (even an estate for years, which is a chattel real) (z) of the defendant, till he has raised enough to satisfy the judgment and costs; first paying the landlord of the premises, upon which the goods are found, the arrears of rent then due, not exceeding one year's rent in the whole. (a) If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue. (b) (5) 3. A third species of execution is by writ of levari facias; which affects a man's goods and the profits of his lands, by commanding the sheriff to levy the plaintiff's debt on the lands and goods of the defendant: whereby the sheriff may seize all his goods, and receive the rents and profits of his lands, till satisfaction be made to the plaintiff. (c) Little use *is now made of this [*418] writ; the remedy by elegit, which takes possession of the lands themselves, being much more effectual. But of this species is a writ of execution proper only to ecclesiastics; which is given when the sheriff, upon a common writ of execution sued, returns that the defendant is a beneficed clerk, not having any (u) Lutw. 1269-1273 (w) Appendix, No. III, 7. (x) 5 Rep. 92. (a) Stat. 8 Anne, c. 14. (b) 1 Roll. Abr. 904. Cro. Eliz. 344, (y) Palm. 54. (z) 8 Rep. 171. (c) Finch, L. 471. (4) [If, upon a judgment in tort, against two or more, execution be levied for the whole damages upon one only (1 Camp. 343), that one cannot recover a moiety against the other for his contribution; but he may maintain an action for the moiety, if the original action were founded upon contract. 8 T. R. 156; see also 2 Camp. 452.] (5) A levy upon sufficient personal property to satisfy the judgment is a temporary bar to further execution or suit, and will amount to satisfaction unless it fail, in whole or in part, without the fault of the plaintiff. Green v. Burke, 23 Wend. 490. See Ladd v. Blunt, 4 Mass. 402; Webb v. Bumpass, 9 Port. 201; F. and M. Bank v. Kingsley, 2 Doug. Mich. 379. If the defendant is allowed to retain the property, it is no satisfaction. Peck v. Tiffany, 2 N. Y. 451. Or if it is taken from the sheriff by due course of law. Alexander v. Polk, 39 Miss. 737. A levy upon real property is not a satisfaction. Ladd v. Blunt, supra; Shepard v. Rowe, 14 Wend. 260. White v. Graves, 15 Texas, 183. lay fee. In this case a writ goes to the bishop of the diocese, in the nature of a levari or fieri facias, (d) to levy the debt and damages de bonis ecclesiasticis, which are not to be touched by lay hands: and thereupon the bishop sends out a sequestration of the profits of the clerk's benefice, directed to the churchwardens, to collect the same and pay them to the plaintiff, till the full sum be raised.(e) 4. The fourth species of execution is by the writ of elegit; which is a judicial writ given by the statute Westm. 2, 13 Edw. I, c. 18, either upon a judgment for a debt, or damages; or upon the forfeiture of a recognizance taken in the king's court. By the common law a man could only have satisfaction of goods, chattels, and the present profits of lands, by the two last-mentioned writs of fieri facias, or levari facias; but not the possession of the lands themselves; which was a natural consequence of the feudal principles, which prohibited the alienation, and of course the incumbering of the fief with the debts of the owner. And, when the restriction of alienation began to wear away, the consequence still continued; and no creditor could take the possession of lands, but only levy the growing profits: so that, if the defendant aliened his lands, the plaintiff was ousted of his remedy. The statute therefore granted this writ (called an elegit, because it is in the choice or election of the plaintiff whether he will sue out this writ or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff, at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety or *one-half of his freehold lands, which he had at the time of the judgment given, (f) whether held in his own name, [ *419 ] or by any other in trust for him (g) are also to be delivered to the plaintiff; to hold, till out of the rents and profits thereof the debt be levied, or till the defendant's interest be expired; as till the death of the defendant, if he be tenant for life or in tail. During this period the plaintiff is called tenant by elegit, of whom we spoke in a former part of these Commentaries.() We there observed that till this statute, by the ancient common law, lands were not liable to be charged with, or seized for, debts; because by these means the connexion between lord and tenant might be destroyed, fraudulent alienations might be made, and the services be transferred to be performed by a stranger; provided the tenant incurred a large debt, sufficient to cover the land. And therefore, even by this statute, only one-half was, and now is, subject to execution; that out of the remainder sufficient might be left for the lord to distrain upon for his services. And upon the same feudal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment.(i)(6) But, in case of a debt to the king, it appears by magna carta, c. 8, that it was allowed by the common law for him to take possession of the lands till the debt was paid. For he, being the grand superior and ultimate proprietor of all landed estates, might seize the lands into his own hands, if any thing was owing from the vassal; and could not be said to be defrauded of his services when the ouster of the vassal proceeded from his own command. This execution, or seizing of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken: but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit; for such elegit is in this case no more in (d) Registr. Orig. 300, judic. 22. 2 Inst. 4. (f) 2 Inst. 395. (g) Stat 29 Car. II, c. 3. (h) Book II, ch. 10. (e) 2 Burn. Eccl. Law, 329. (6) [By statute 1 and 2 Vic., c. 110, a great alteration has been made in the law in this respect. By section 11 the sheriff is empowered to deliver unto the judgment creditor all lands, tenements and hereditaments, including those of copyhold or customary tenure, which the person against whom execution is so sued out, or any person in trust for him, shall have been seized or possessed of at the time of entering upon the judgment, or over which the judgment debtor at the time has, or at any time afterward shall have, a disposing power capable of being exercised for his own benefit.] effect than a fieri facias.(j) So that body and goods may be taken in execution, or land and goods; but not body and land too, upon any judg] *420] ment between subject and subject in the course of the common law. But, 5. Upon some prosecutions given by statute; as in the case of recognizances for debts acknowledged on statutes merchant, or statutes staple (pursuant to the statutes 13 Edw. I, de mercatoribus, and 27 Edw. III, c. 9); upon forfeiture of these, the body, lands and goods may all be taken at once in execution, to compel the payment of the debt. The process hereon is usually called an extent, or extendi facias, because the sheriff is to cause the lands, &c., to be appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied.(k) And by statute 33 Hen. VIII, c. 39, all obligations made to the king shall have the same force, and of consequence the same remedy to recover them, as a statute staple; though indeed, before this statute, the king was entitled to sue out execution against the body, lands and goods of his accountant or debtor.(1) And his debt shall, in suing out execution, be preferred to that of any other creditor, who hath not obtained judgment before the king commenced his suit.(m) The king's judgment also affects all lands which the king's debtor hath at or after the time of contracting his debt, or which any of his officers mentioned in the statute 13 Eliz. c. 4, hath at or after the time of his entering on the office: so that if such officer of the crown aliens for a valuable consideration, the land shall be liable to the king's debt even in the hands of a bona fide purchaser; though the debt due to the king was contracted by the vendor many years after the alienation.(n) Whereas judgments between subject and subject related, even at common law, no farther back than the first day of the term in which they were recovered, in respect of the lands of the debtor; and did not bind his goods and chattels, but from the date of the writ of execution: and now, by the statute of frauds, 29 Car. II, c. 3, the judgment shall not bind the land in the hands of a bona fide purchaser, but only from the day of actually signing the [ *421] same which is directed by the statute to be punctually entered on the record; nor shall the writ of execution bind the goods in the hands of a stranger, or the purchaser, (o) but only from the actual delivery of the writ to the sheriff or other officer, who is therefore ordered to endorse on the back of it the day of his receiving the same. These are the methods which the law of England has pointed out for the execution of judgments: and when the plaintiff's demand is satisfied, either by the voluntary payment of the defendant, or by this compulsory process, or otherwise, satisfaction ought to be entered on the record, that the defendant may not be liable to be thereafter harassed a second time on the same account. But all these writs of execution must be sued out within a year and a day after the judgment is entered; otherwise the court concludes prima facie that the judgment is satisfied and extinct: yet, however, it will grant a writ of scire facias in pursuance of statute Westm. 2, 13 Edw. I, c. 45, for the defendant to show cause why the judgment should not be revived, and execution had against him; to which the defendant may plead such matter as he has to allege, in order to show why process of execution should not be issued: or the plaintiff may still bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law.(p)(7) In this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, (j) Hob. 58. (n) 10 Rep. 55, 56. (k) F. N. B. 131. (1) 3 Rep. 12. (m) Stat. 33 Hen. VIII, c. 39, § 74. (7) [But the writ of scire facias for the ordinary purpose of reviving a judgment is retained. During the lives of the parties to a judgment, or those of them during whose lives execution may at present issue within a year and a day, without a scire facias, and within six years from the recovery of the judgment, execution may now, however, issue without revival of the judg ment. Com. Law Proc. Act, 1852, § 128.] |