Front Page Titles (by Subject) CHAPTER XXVI.: OF EXECUTION. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXVI.: OF EXECUTION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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*[*412If the regular judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered.
If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession,(a) of a chattel interest.(b) These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ. Upon a presentation to a benefice recovered in a quare impedit, or assize of darrein presentment, *[*413the 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.1
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 quod 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)2 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 wrong-doer 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.
**414]Executions in actions where money only is recovered, as a debt or 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 a suit. And, properly speaking, this cannot be sued out against any but such as were liable to be taken upon the former capias.(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,(l) 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 a 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 a husband and wife for the contract, nay, even for the personal misbehaviour(o) 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.3
**415]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 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.
When a defendant is once in custody upon this 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 & 9 W. 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.4 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,(q) (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 *[*416be retaken, and the sheriff shall be excused, if he has him again before any action brought against himself for the escape.(s) 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.(t) But by statute 32 Geo. II. c. 28, if a defendant charged in execution for any debt not exceeding 100l. 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 10l.,) 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 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.5 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 100l. 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.6
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 *[*417debt 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.7
2. The next species of execution is against the goods and chattels of the dofendant, 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.8 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 doors,(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 the chattel real)(z) of the defendant, till he has raised enough to satisfy the judgment and costs:9 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)10 If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue.(b)11
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 **418]is now made of this 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 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 damage 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 church-wardens, 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 feodal principles, which prohibited the alienation, and of course the encumbering, 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 **419]one half of his freehold lands, which he had at the time of the judgment given,(f) whether held in his own name, or by any other in trust for him,(g)12 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.13 During this period the plaintiff is called tenant by elegit, of whom we spoke in a former part of these commentaries.(h) We there observed that till this statute, by the antient common law, lands were not liable to be charged with, or seised for, debts; because by these means the connection 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 feodal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment.(i)14 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 seise 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 seising 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 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 judgment 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 or debts acknowledged on statutes merchant, or *[*420statutes 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.(l)15 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, judgment between subject and subject related, even at common law, no further 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 **421]fide purchaser, but only from the day of actually signing the 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 hereafter 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)16
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, and their respective officers. In the course therefore of the present book, we have, first, seen and considered the nature of remedies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a review of remedies by suit or action in courts; and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and **422]cognizance. We afterwards proceeded to consider the nature and distribution of wrongs and injuries affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint or original writ, through all the stages of process, to compel the defendant’s appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer; or the truth of the facts alleged and denied, upon issue joined, and its several trials; to the judgment or sentence of the law, with respect to the nature and amount of the redress to be specifically given: till, after considering the suspension of that judgment by writs in the nature of appeals, we have arrived at its final execution; which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body who is guilty of the injury complained of.
This care and circumspection in the law,—in providing that no man’s right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; and in finally enforcing the judgment, when nothing can be alleged to impeach it;—this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation, this parental solicitude *[*423which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it must be owned to have given a handle, in some degree, to those complaints of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowledge, a few unworthy professors; who study the science of chicane and sophistry rather than of truth and justice; and who, to gratify the spleen, the dishonesty and wilfulness of their clients, may endeavour to screen the guilty, by an unwarrantable use of those means which were intended to protect the innocent. But the frequent disappointments, and the constant discountenance, that they meet with in the courts of justice, have confined these men (to the honour of this age be it spoken) both in number and reputation to indeed a very despicable compass.
Yet some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes as were mentioned in examining a former complaint;(q) from liberty, property, civility, commerce, and an extent of populous territory: which, whenever we are willing to exchange for tyranny, poverty, barbarism, idleness, and a barren desert, we may then enjoy the same despatch of causes that is so highly extolled in some foreign countries. But common sense and a little experience will convince us, that more time and circumspection are requisite in causes where the suitors have valuable and permanent rights to lose, than where their property is trivial and precarious, and what the law gives them to-day may be seized by their prince to-morrow. In Turkey, says Montesquieu,(r) where little regard is shown to the lives or fortunes of the subject, all causes are quickly decided: the basha, on a summary hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in *[*424free states the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty: and in all governments, he adds, the formalities of law increase, in proportion to the value which is set on the honour, the fortune, the liberty and life of the subject.
From these principles it might reasonably follow, that the English courts should be more subject to delays than those of other nations; as they set a greater value on life, on liberty, and on property. But it is our peculiar felicity to enjoy the advantage, and yet to be exempted from a proportionable share of the burden. For the course of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the suitors of those courts in England, where the practice of the Roman law is allowed in its full extent. And particularly in France, not only our Fortescue(s) accuses (on his own knowledge) their courts of most unexampled delays in administering justice; but even a writer of their own(t) has not scrupled to testify, that there were in his time more causes there depending than in all Europe besides, and some of them a hundred years old. But (not to enlarge on the prodigious improvements which have been made in the celerity of justice by the disuse of real actions, by the statutes of amendment and jeofails,(u) and by other more modern regulations, which it now might be indelicate to remember, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty-eight judicial or triverbial(w) days allowed to the prætor for deciding causes:(x) whereas, with us, one-fourth of the year is term-time, in which three courts constantly sit for the despatch of matters of law; besides the very close attendance of the court of chancery for determining **425]suits in equity, and the numerous courts of assize and nisi prius that sit in vacation for the trial of matters of fact. Indeed, there is no other country in the known world, that hath an institution so commodious and so adapted to the despatch of causes, as our trial by jury in those courts for the decision of facts; in no other nation under heaven does justice make her progress twice in each year into almost every part of the kingdom, to decide upon the spot by the voice of the people themselves the disputes of the remotest provinces.
And here this part of our commentaries, which regularly treats only of redress at the common law, would naturally draw to a conclusion. But, as the proceedings in the courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by those courts. These will therefore be the subject of the ensuing chapter.
[(a) ] Append. No. II. 4.
[(b) ] Finch, L. 470.
[1 ] The writ recites the judgment of the court and orders him to admit a fit person to the rectory and parish church at the presentation of the plaintiff; and if upon this order he refuse to admit accordingly, the patron may sue the bishop in a quare non admisit, and recover ample satisfaction in damages. 2 Selw. Prac. 330.—Chitty.
[(c) ] Comb. 10.
[2 ] That is, if it he 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.—Chitty.
[(d) ] See page 150.
[(e) ] See page 149.
[(f) ] 2 Leon. 174.
[(g) ] 1 Roll. Abr. 737. Rast. Ent. 215.
[(h) ] Bro. Abr. tit. damages, 29.
[(i) ] Keilw. 64.
[(j) ] Append. No. III. 7.
[(k) ] 3 Rep. 12. Moor. 767.
[(l) ] 1 Inst. 289.
[(m) ] Moor. 704.
[(n) ] Cro. Jac. 323.
[(o) ] Cro. Car. 513.
[3 ] 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. It lies against peers, or members of parliament, upon a statute merchant, or staple, or recognizance in nature thereof. 2 Leon. 173. 1 Cromp. 345. But, by 57 Geo. III. c. 99, s. 47, no penalty or costs incurred by any spiritual person, by reason of non-residence on his benefice, shall be levied by execution against his body, whilst he holds the same or any other benefice, out of which the same can be levied by sequestration within the term of three years. An infant seems liable to this process. 2 Stra. 1217; see id. 708. 1 B. & P. 480. Husband and wife may be taken in execution in an action against both, and she shall not be discharged unless it appear she has no separate property out of which the demand can be satisfied, (T. 2 Geo. IV. C. P.; see 5 B. & A. 759,) or that there is fraud and collusion between the plaintiff and her husband to keep her in prison. 2 Stra. 1167, 1237. 1 Wils. 149. 2 Bla. R. 720. Volunteer soldiers and seamen are protected by several statutes from being taken in execution unless the original debt, in the case of soldiers, amounted to 20l., or in the case of seamen the debt and costs, &c. are of that amount, and that the debt was contracted when the defendant did not belong to any ship in his majesty’s service. See 11 East, 25. Nor can parties be taken in execution at the time or place when and where they are privileged from arrest. Tidd, 1065, 1066, 1067.—Chitty.
[(p) ] See page 279.
[4 ] But execution by imprisonment is considered so far a satisfaction of the debt, that if the creditor release the debtor from confinement he cannot afterwards have recourse to any other remedy, though the discharge be on terms which are not afterwards complied with, (4 Burr. 2482. 6 T. R. 526. 7 ib. 420;) or upon giving a fresh security which afterwards becomes ineffectual, (1 T. R. 557;) the execution being considered quoad the defendant as a satisfaction of the debt. Hob. 59. But the plaintiff may take out execution against other persons liable to the same debt or damages. Ib; and see 5 Taunt. 614. 1 Marsh. 250, S. C. If, however, the plaintiff consent to discharge the only one of several defendants taken on a joint capias, he cannot afterwards retake either him or take any of the other defendants. 6 T. R. 525.—Chitty.
[(q) ] 3 Rep. 52, 1 Sid. 330.
[(r) ] Stat. 8 & 9 W. III. c. 27.
[(s) ] F. N. B. 130.
[(t) ] Cro. Jac. 419.
[5 ] The statute mentioned in the text is that which is commonly known by the appellation of the Lords’ Act, from the circumstance of its originating in the upper house of parliament. By the 33 Geo. III. c. 5, made perpetual by 39 Geo. III. c. 50, the regulations of the former act are extended to debts amounting to 300l. And by other statutes, (see Tidd, 379,) persons in custody for contempt by the non-payment of money or costs ordered by courts of equity (49 Geo. III. c. 6) or common law, are declared within the provisions for the relief of prisoners in custody for debt only. But a defendant in a qui tam action is not entitled to the benefit of the lords’ act, (3 Burr. 1322. 1 Bla. R. 372;) nor a defendant in custody under a writ de excommunicato capiendo for contumacy in not paying a sum for alimony, and also for costs in the ecclesiastical court. 11 East, 231. When the prisoner is charged in execution above twenty miles from Westminster hall, or the court out of which the execution issued, he must be brought up to the next assizes, or, by 52 Geo. III. c. 34, before the justices at quarter sessions, to be examined and discharged. The application is directed to be made by the prisoner before the end of the first term after his arrest; but ignorance or mistake will excuse a delay beyond that period. When the debt recovered does not exceed 20l., exclusive of costs, the 48 Geo. III. c. 123 provides for the discharge of the debtor’s person after he has lain in prison twelve months. But, this statute being confined to persons in execution upon a judgment, it has been holden that one in custody on an attachment for non-payment of a sum under 20l. found due upon an award made a rule of court is not entitled to his discharge under it. 10 East, 408. 2 B. & A. 61.
The 1 Geo. IV. c. 119 established a new court of record, called the Court for the Relief of Insolvent Debtors, which is held twice a week in London throughout the year, with a short vacation in the summer; and by the 5 Geo. IV. c. 16 it is provided that the judges of this court, who are four in number, shall make three circuits in the year for the discharge of insolvents. A prisoner discharged under these acts becomes personally free, having first delivered a schedule on oath of all his debts, &c. and assigned all his property in possession or expectancy for the benefit of his creditors, to whose demands all property which he may afterwards acquire is made liable. If upon his examination it appear that he has been guilty of bad practices or fraud, in contracting debts, or have opposed a vexatious defence to any action brought against him for the recovery of any debt, concealed credits, or debts, given a voluntary preference to any creditor, or made away with his property, or his imprisonment be for damages recovered in an action of crim. con., seduction, or malicious injury, or does not answer satisfactorily to the court, he may be sent back to prison for two or three years, at the discretion of the court. A fraudulent concealment of property in his schedule subjects him to the additional punishment of hard labour. If a voluntary preference be given by him within three months before filing his petition for discharge, it is void.—Chitty.
[6 ] The creditors who can compel the surrender of the debtor’s effects, and who are to have the benefit of it, are only those who have charged him in execution. This statute—the 32 Geo. II. c. 28—is generally called the lords’ act. By the 26 Geo. III. c. 44, the provisions of it were extended to 200l., and by the 33 Geo. III. c. 5, they have been still further enlarged to 300l. By the 37 Geo. III. c. 85, one creditor shall agree in writing, in order to detain such a debtor, to make him a weekly allowance of 3s. 6d.; and where two or more shall agree to detain him, they shall pay him what the court shall direct, not exceeding 2s. a week each. See the clauses of the act in 2 Burn, tit. Gaol. The prisoner shall never afterwards be liable to be arrested on any action for the same debt, unless convicted of perjury. But a prisoner to have the benefit of this act must petition the court from which the process issued upon which he shall be in custody, before the end of the first term after he is arrested, unless he afterwards shows his neglect arose from ignorance or mistake.—Christian.
Although the prisoner cannot avail himself of the benefit of the lords’ act if his debts exceed 300l., yet he is liable to the compulsory clause upon any debt within that amount, whatever may be the amount of all his debts for which he is in execution. 5 B. & A. 537.
The judges of King’s Bench have decided that an insolvent brought up under the compulsory clause in the lords’ act is not bound to answer questions as to the disposition of his property during his imprisonment, but merely as to the amount and condition of it at the time of making his schedule; and that the form of the oath must be altered conformably with this construction of the statute. Per Holroyd, J., in Re. Askew, 24th Nov. 1825.—Chitty.
[(u) ] Lutw. 1269-1273.
[7 ] The undertaking of the bail does not subject them to execution against the body in the Common Pleas.—Chitty.
[(w) ] Append. No. III, 7.
[8 ] 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. 186. See also 2 Camp. 452.—Chitty.
[(x) ] 5 Rep. 92.
[(y) ] Palm. 54.
[(z) ] 8 Rep. 171.
[9 ] And, by a late statute,—viz., 43 Geo. III. c. 46,—to satisfy also the costs of the writ of execution, together with the sheriff’s fees, poundage, &c. But the statute does not extend to give the like costs, fees, poundages, &c. to the defendant. But query whether “expenses of execution” include expenses of levying? Ramsey vs. Tuffnell, 9 J. B. Moore, 425.—Chitty.
[(a) ] Stat. 8 Anne, c. 14.
[10 ] The statute enacts that such payment shall be made out of the proceeds, provided the sheriff have notice of the landlord’s claim at any time while the goods or the proceeds remain in his hands. See Arnitt vs. Garnett, 3 B. & A. 440. In this case the goods had been removed from the premises previously to the notice. And where the sheriff takes corn in the blade under a fi. fa., and sells it before the rent is due, he is not liable to account to the landlord for rent accruing subsequent to the levy and sale, although he have given notice, and though the corn be not removed from the premises until long afterwards. Gwilliam vs. Barker, 1 Price, 274. And where the sheriff knows the fact of the arrear of rent, no other specific notice is needful to bind him, (Andrews vs. Dixon, 3 B. & A. 645;) and, semble, he need not set about finding out what rent is due. Smith vs. Russel, 3 Taunt. 400. And the sheriff is bound only as to the rent actually due at the time of the taking, and not such rent as shall have accrued due whilst he is in possession. Hoskins vs. Knight, and Bassett vs. Same, 1 M. & S. 245.—Chitty.
[(b) ] 1 Roll. Abr. 904. Cro. Eliz. 344.
[11 ] By stat. 1 & 2 Vict. c. 110, s. 12, the effect of a writ of fieri facias is also much extended. The sheriff may now seize and take any money or bank-notes, cheques, bills of exchange, promissory-notes, bonds, specialties, or other securities for money belonging to the person against whose effects such fieri facias is sued out, and may pay the money or bank-notes to the execution-creditor, and sue for the amount secured by the bills of exchange and other securities. The same statute, extended by stat 3 & 4 Vict. c. 82, it may here be mentioned, provided a means by which stock in the public funds and stock or shares in public companies, standing in the name of the debtor of any person in trust for him, or in which the debtor has an interest, whether in possession, reversion, or remainder, vested or contingent, may be charged with the payment of the amount for which judgment shall have been recovered. Such stock or shares may be charged by order of a judge, which order may be made in the first instance ex parte, and, on notice to the bank or company, shall operate as a distringas.—Stewart.
[(c) ] Finch, L. 471.
[(d) ]Registr. Orig. 300, juric. 22. 2 Inst. 4.
[(e) ] 2 Burn, Eccl. Law, 329.
[(f) ] 2 Inst. 395.
[(g) ] Stat. 29 Car. II. c. 3.
[12 ] The words in the statute referred to (29 Car. II. c. 3) are at the time of the said execution sued, and refer to the seisin of the trustee; therefore, if the trustee has conveyed the lands before execution sued, though he was seised in trust for the defendant at the time of the judgment, the lands cannot be taken in execution. Com. Rep. 227.—Chitty.
[13 ] And the sheriff is not bound to deliver a moiety of each particular tenement and farm, but only certain tenements, &c. making in value a moiety of the whole. Doe d. Taylor vs. Earl of Abingdon, 2 Doug. 473. He should return that he had delivered an equal moiety of the premises, and should set it out by metes and bounds, or the return is void. Fenny d. Masters vs. Durrent, 1 B. & A. 40. And where the sheriff delivered one moiety, upon a second elegit, the other was held to be wholly void. Morris vs. Jones, 3 D. & R. 603. 2 B. & C. 232, S. C.
It has been considered in practice that although the sheriff might deliver the moiety to the plaintiff in elegit, yet that ejectment was necessary to complete his title; but, semble, that entry is good under the writ. Rogers vs. Pitcher, 6 Taunt. 202.
An examined copy of the judgment-roll, containing the award of the elegit, is evidence of the plaintiff’s title; and, in action for use and occupation against the tenant, the production of a copy of the elegit and of the inquisition thereunder is unnecessary. Ramsbottom vs. Buckhurst, 2 M. & S. 565.
The defendant, in the writ of elegit, may, on motion, obtain a reference to the master to take an account of rents, &c. received by the plaintiff; and if it appear that the debt and costs have been satisfied, possession will be restored. Price vs. Varney, 5 D. & R. 612. 3 B. & C. 733, S. C.—Chitty.
[(h) ] Book ii. ch. 10.
[(i) ] 1 Roll. Abr. 888.
[14 ] By the statute 1 & 2 Vict. c. 110, a great alteration has been made in the law in this respect. By s. 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 seised or possessed of at the time of entering up the judgment, or over which the judgment-debtor at the time has, or at any time afterwards shall have, a disposing power capable of being exercised for his own benefit.—Stewart.
[(j) ] Hob. 58.
[(k) ] F. N. B. 131.
[(l) ] 3 Rep. 12.
[15 ] The writ in aid was formerly grossly abused; the king’s name often became an engine of great fraud or oppression,—to remedy which stat. 57 Geo. III. c. 117 was passed. The abuse to which I have adverted was this: not only any person indebted or likely to be indebted to the crown on specialty or record, but any one so indebted in part, or by simple contract only, might obtain the extent in aid to be issued in his favour. The instant that the writ issued, all the property of the debtor became liable to the extent at the suit of the crown; and thus his creditors were deprived of participation in such property, the whole perhaps being absorbed by the alleged crown-debtor. But the statute mentioned above limits the issuing of this writ to cases where a debt shall be actually due to and previously demanded on the part of the crown. Before the statute, it was sufficient that the party suggested the existence of the debt to entitle him to sue out the writ and to the money levied thereon; but now the writ cannot be issued unless the sum actually due to his majesty be stated and specified in the fiat endorsed thereon; and, when levied, the sheriff is to pay the amount over to his majesty’s use. Any overplus is to be paid into court, subject to its disposition on summary application. The expectation of preference formerly capable of being realized is by the statute, therefore in a great degree defeated.—Chitty.
[(m) ] Stat. 33 Hen. VII. c. 39, 74.
[(n) ] 10 Rep. 55, 56.
[(o) ] Skin. 257.
[(p) ] Co. Litt. 290.
[16 ] But the writ of scire facias for the ordinary purpose of reviving a judgment, now called a “writ of reviver,” 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 judgment. Com. Law Proc. Act, 1852, s. 128.—Stewart.
[(q) ] See page 327.
[(r) ] Sp. L. b. 6, c. 2.
[(s) ]De Laud. LL. c. 53.
[(t) ] Bodin. de republ. l. 6, c. 6.
[(u) ] See page 407.
[(w) ] Otherwise called dies fasti in quibus licebat pra ors fari tria verba, do, dico, addico. Calv. Lex. 285.
[(x) ] Spelman of the Terms, 4, c. 2.