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 execu tion 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. 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 be retaken, and the sheriff shall be excused, if he has him again before any action brought against [*416 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 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 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. And. on the other 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. The statute mentioned in the text is that which is commonly known by the appella tion 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 3007. 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 VOL. II.-19 289 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 (") Lutw. 1269-1273. 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 207., exclusive of costs, the 48 Geo. II. 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 201. 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 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. 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 statutethe 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 2007., and by the 33 Geo. III. c. 5, they have been still further enlarged to 3001. 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. Ed.; and where two or more shall agree to detain him, they shall pay him what the court shall direct, not exceeding 28. 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 300%., yet he is liable to the compulsory clause upon any debt within that am ›unt, 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 unde the compulsory clause in the lords' act is not bound to answer questions as to the dispo. ition 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 [*417 cause why the plaintiff should not have execution against them for his *debt 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 tho 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. 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 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)" 3. A third species of execution is by writ of levari facias; which affects a nan's goods and the profits of his lands, by commanding the sheriff to levy the (w) Append. No. III. § 7. (*) Palm. 54. (*) 8 Rep. 171. (a) Stat. 8 Anne, c. 14. 'The undertaking of the bail does not subject them to execution against the body in the Common Pleas.-CHITTY. 8 It, 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. 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. 64 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 pro ceeds 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. 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. 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 writ; *418] 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 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 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 Lot sufficient, then the moiety or *one half of his freehold lands, which he had at the time *419] of the judgment given, (f) whether held in his own name, 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 Finch, L 471. (d) Registr. Orig. 300, juric. 22. 2 Inst. 4. ()2 Inst. 395. 12 The words in the statute referred to (29 Car. II. c. 3) are at the time of the said execution sucd, 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. 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) 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 *statutes staple, (pur[*420 suant 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)1 "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. But the 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. 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 |