1819. The KING against WOOLF. A THE defendant, Woolf (a), had been adjudged to be imprisoned two years, to pay a fine of 10,000l., and be further imprisoned till that fine was paid. levari facias having issued out of this Court against the defendant, his goods, nearly to the amount of the fine, were taken in execution by the sheriffs of London. And now, F. Pollock moved for a rule nisi to set aside this writ. The only authority which can be found for this proceeding is the case of Rex v. Wade (b), reported also under the name of Rex v. Webb (c); but this authority, which was decided in the reign of the Stuarts, has never been acted upon since. It is observable, that in each of the books it is reported for a different purpose; and the defendant, in that case, does not appear to have been before the court: so that no one was interested in raising this question there. The authority of that case is therefore questionable, and there is no other authority. The practice has never been conformable to it; and there does not seem to be any good reason for the clause of imprisonment "till the fine be paid," if it can be thus levied. Besides, in this case, non constat that this writ has been issued by the crown itself; and, at any rate, it is a harsh proceeding against the defendant, whose goods are seized and sold, without any application to him to pay the money and redeem his goods; (a) Ante, 462. (b) Skinner, 12. Sir T. Jones, 185. and 1819. The KING against WOOLF. and in fact, by a sale of these goods at a loss his fine will be increased. ABBOTT C. J. The present application is not made on any peculiar circumstances of fact, but only on the ground of the illegality of this writ. If there are any circumstances to shew that it has been issued by an improper person, or without proper authority, or that the mode of levying the fine is more harsh than justice requires, our judgment, which is upon the law only, will not preclude the party from making such special application. On the law, if we entertained any reasonable doubt, we should grant a rule to shew cause; but if we have no doubt, we ought not to do so. It is said that this writ has issued on the authority of a single case in the reign of one of the house of Stuart; and we are desired to say, that cases in those reigns are not to be regarded as law. To that, however, I cannot assent. But it is a mistake to say, that this rests only upon the authority of that case; for that case itself rests upon the principles of the common law, that the crown, who represents the public, is entitled to levy for its debts by an united process against the body, land, and goods of its debtors. In this case, however, there has not been any process against the person, the defendant being in execution, not for the fine, but for the term for which the court gave judgment of imprisonment Many cases of this sort have occurred in the Court of Exchequer within my remembrance. Indeed, the form of the writ of extent itself, which requires the sheriff to take the goods, chattels, lands, and person of the debtor, proves the same rule to exist. Better evidence of the law of the land we cannot expect. The case cited was therefore an an authority founded upon the general principle of the law; and as by that authority it is laid down that a levari facias may issue for a fine due to the king, which is a debt on record, I do not entertain any doubt of the legality of this writ. If it has issued under any improper circumstances, or if it imposed upon the defendant a greater inconvenience than is necessary to insure the payment of the fine, these special circumstances may again be submitted to the Court on a fresh affidavit. BAYLEY J. The only question we are to consider is, whether the crown has, or has not, a right to issue a levari facias for the debt in question; and upon that, on principle, it seems to me there can be no doubt. Indeed, it is not discussed on principle; but observations are made that this is a new mode of proceeding, and that mischievous consequences would follow from it. I think, however, that mischievous consequences would ensue to the crown and the regular administration of justice, from a delinquent withdrawing all his property from the effect of a judgment; and that the preventing that will not be a mischievous consequence to any one but himself. Here there is a judgment that the defendant do pay to the king a fine of a certain sum. By that judgment the debt becomes a debt to the king, of record; and it is payable to the king instanter. It is true, that part of the judgment is also, that if at the expiration of the imprisonment the fine shall, not be paid, he is to continue in prison until it be paid; but that is only for a farther remedy on behalf of the crown; and if we were to say, that the crown shall not be at liberty to issue an immediate execution for its own debt, we should place the crown in a worse situation than 1819. The KING against WOOLF. 1819. The KING against WOOLF. than any subject. The case cited shews that the levari facias from this court was the proper mode of proceeding. The king has a right to choose his own court for the purpose of suit; and for the purpose of issuing execution, he may adopt, if he pleases, that court in which the judgment has been pronounced. If this had been estreated into the Exchequer, could not the Exchequer have issued process? If so, why must the crown wait for that, and why may not this court issue it? In Comyn's Digest, title Viscount, c. 5., it is laid down, that it is part of the duty of the sheriff himself to levy all sums due to the crown. I am therefore of opinion that this writ has properly issued; and I do not see that any inconvenience whatever, which can be legally considered as an inconvenience, will result from it. HOLROYD J. I am of the same opinion. I think the case cited not only establishes the principle, but that the principle itself is founded on the common law. Cadmore's case, cited in Rex v. Webb, as determined in Kelyng's time, establishes this, that where a party is in execution for a fine, still a writ of levari facias lies de bonis et catallis. If, therefore, the defendant here was in execution for the fine, which he is not, still this levari facias might issue. I think, therefore, that we ought to refuse this rule. BEST J. Nothing is more mischievous than to bring into doubt established principles of law. It is an established principle, that the king may have execution against body, land, and goods. That principle is applied to the present case by the King v. Webb. I have heard nothing nothing to impeach the authority of that case. It is said, that that case was decided in the reign of Charles the Second; but if that were an argument, many cases decided by some of the most enlightened Judges, Lord Hale and others, would be swept away. I agree, that this is a debt of record, due to the king the instant the judgment is pronounced, and it would be strange to say, where a debt is due, that there is no remedy to recover it for the term of two years. It would be saying, that in proportion to the greatness of the delinquency of the offender, would be the difficulty of recovering the penalty: for the longer the crown is delayed, the greater will be the opportunity given to the defendant of defeating that right. A doubt upon this case migh be very mischievous. It does not appear that the whole debt has been levied, and a doubt might stop the exertions of those who are at present endeavouring to recover the whole sum, and might prevent the crown from recovering it, by giving the defendant an opportunity of removing his property out of reach. I am, therefore, of opinion, that this rule should be refused. Rule refused. 1819. The KING against WOOLF, KIRKHAM against MARTER. (a) THE declaration stated, that one T. E. Marter, before the making of the promise of defendant, had, without the leave or license of the plaintiff, wrongfully ridden a horse of the plaintiff's, in consequence whereof Friday, 4. had wrongfully, and with out the licence of B., ridden his horse, and thereby caused its death: Held that a promise by a third person to pay the damage thereby sustained, in consideration that B. would not bring any action against A., is a collateral promise within the statute of frauds, and must be in writing. Held, also, that a motion for a new trial, where the cause has been tried during the term, may be made at any time within four days after the distringas is returnable. (a) We were favoured with the note of this case by a gentleman at the bar. |