and left to be settled by posterity in which of the two rolls that absolute verity resides, which every record is said to import in itself. (f) And, in the reign of Richard the Second, there are instances (g) of their refusing to amend the most palpable errors and mis-entries, unless by the authority of parliament. To this real sullenness, but affected timidity, of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or letter) (h) was now held to be fatal to the pleader, and overturned his client's cause. (i) If they durst not, or would not, set right mere [411] formal mistakes at any time, upon equitable terms and conditions, : they at least should have held, that trifling objections were at all times inadmissible and that more solid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tenderness, have excused themselves from amending in criminal, and especially in capital, cases. They needed not have granted an amendment where it would work an injustice to either party; or where he could not be put in as good a condition, as if his adversary had made no mistake. And, if it was feared that an amendment after trial might subject the jury to an attaint, how easy was it to make waiving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all! (k) The precedents then set were afterwards most religiously followed, (7) to the great obstruction of justice, and ruin of the suitors: who have formerly suffered as much by this scrupulous obstinacy and literal strictness of the courts, as they could have done even by their iniquity. After ver. dicts and judgments upon the merits, they were frequently reversed for slips of the pen or mis-spellings; and justice was perpetually intangled in a net of mere technical jargon. The legislature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties and its endeavours have been of late so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated and will probably in a few years be no more remembered than the learning of essoigns and defaults, or the counterpleas of voucher, are at present. But to return to our writs of error. : If a writ of error be brought to reverse any judgment of an infe. [*410] rior court of record, where the damages are less than ten pounds; or if it is brought to reverse the judgment of any superior court after verdict, he that brings the writ, or that is plaintiff in error, must (except in some peculiar cases) find substantial pledges of prosecution, or bail: (m) to prevent delays by frivolous pretences to appeal; and for securing payment of costs and damages, which are now payable by the vanquished party in all, except in a few particular instances, by virtue of the several stafutes recited in the margin. (n) * f 1 Leon. 183. Co. Litt. 117. See pag. 331. g 1 Hal. P. C. 648, h Stat. 14 Edw. III. c. 6. i In those days it was strictly true, what Ruggle (in his ignoramus) has humorously applied to more modern pleadings," in nostra lege unum comma evertit totum placitum." k Styl. 207. m Stat. 3 Jac. I. c. 8. 13 Car. II. c. 2. 18 Rep. 155. &c. 16 & 17 Car. II. c 8. 19 Geo. III. c. 70. (4) By the 8 Jac. I. c. 8. (made perpetual by 3 Car. I. c. 4. s. 4.) to restrain unnecessary delays of executions, it was provided, "that in the actions therein specified, no writ of error should be allowed, unless the party bringing the same, with two sufficient sureties, shall first be bound anto the party for whom the judgment is given, by recognizance to be acknowledged in the same court, in double the sum, to be recovered by the former judgment, to prosecute the said writ of error with effect, and also to satisfy and pay, if the said judgment be affirmed, or the writ of er A writ of error lies from the inferior courts of record in England into the king's bench, (o) and not into the common pleas. (p) Also from the king's bench in Ireland to the king's bench in England. It likewise may be brought from the common pleas at Westminster to the king's bench; and then from the king's bench the cause is removeable to the house of lords. From proceedings on the law side of the exchequer a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treasurer, and the judges of the court of king's bench and common pleas ;" and from thence it lies to the house of peers. From proceedings in the king's bench, in debt, detinue, covenant, account, case, ejectment, or trespass, originally begun therein by bill (except where the king is party), it hes to the exchequer chamber, before the justices of the common pleas, and barons of the exchequer and from thence also to the house of lords; (g) but where the proceedings in the king's bench do not first com. mence therein by bill, but by original writ sued out of chancery, (r) this takes the case out of the general rule laid down by the statute; (s) [*411] so that the writ of error then lies, without any intermediate state of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action. Each court of appeal, in their respective stages, may, upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts, but none of them are final, save only the house of peers, to whose judicial decisions all other tribunals must therefore submit, and conform their own. And thus much for the reversal or affirmance of judgments at law, by writs in the nature of appeals. o See chap. 4. q Stat 27 Eliz. c. 5. p Finch. L. 480. Dyer, 250. s1 Roll. Rep. 264. 1 Sid. 424. 1 Saund. 346. Carth. 180. Comb, 295. ror nonprossed, all and singular the debts, damages, and costs adjudged upon the former judg ment, and all costs and damages to be awarded for the delaying of the execution." And now by the 6 Geo. IV. c. 96. for further preventing the delays occasioned by frivolous writs of error, it is enacted, that upon any judgment hereafter to be given in any of the courts of record at Westminster, in the counties palatine, and in the courts of great session in Wales, in any personal action, execution shall not be stayed or delayed by any writ of error, or supersedeas thereupon, without the special order of the court, or some judge thereof, unless a recognizance, with a condition according to the 3 Jac. I. c. 8. (above noticed) be first acknowledged in the same court. After final judgment, and before execution executed, a writ of error is, generally speaking, a supersedeas of execution from the time of its allowance, 1 Vent. 31. 1 Salk. 321. 1T. R. 280. 2 B. & P. 370. 2 East, 439. 5 Taunt. 204. 1 Gow. 66. 1 Chitty R. 238 241. 3 Moore, 89.; but it is no supersedeas unless bail in error be put in, and notice thereof given within the time limited by the rules of the court. 2 Dowl. & Ry. 85 And when it is apparent to the court, that a writ of error is brought against good faith, 2 T. R. 183. 8 Taunt. 434. or for the mere purpose of delay, 4 T. R. 436. 2 M. & S. 474. 476. 1 Bar & Cres. 287.: or it is returnable of a term previous to the signing of final judgment, Barnes, 197. it is not a supersedeas. Tidd, 8 ed. 1202, In Tidd, 1199. 8 ed. it is said, that there must be fifteen days between the teste and return of a writ of error; but it was said in Laidler v. Foster, where there was an interval of twelve days only, that there is a distinction between writs of error and those which are the commencement of a suit; and the usual course of practice was followed in this case (viz. not to pass over more than one return between the teste and return), the court therefore refused to quash the writ. 4 Bar. & Cres. 116. And in another case, the court of king's bench held, that the court could not quash a writ of error upon a judgment of the common pleas of Durham, nor award execution upon the judgment of an inferior court. 4 Dowl. & R. 153 Chitty. (5) This appeal is taken away by 23 Geo. III c. 21. See 1 Book, p. 104. n. 15. Since the union, however, a writ of error lies from the superior courts in Ireland to the house of lords. Before the union with Scotland, a writ of error lay not in this country upon any judgment in Scotland; but it is since given by statute 6 Ann. c. 26. s. 12. from the court of exchequer in Scotland, returnable in parliament. And see the 48 Geo. III. c. 151. concerning appeals to the house of lords from the court of session in Scotland. >> (6) The 31 Edw. III. c. 12. directs, that the chancellor and treasurer shall take to their assistance the judge of the other courts, and autres sages come lour semblera. But the 20 Car. II. e. has dispensed with the presence of the lord treasurer, when the office is vacant; and it is the practice for the two chief justices alone to sit in this court of error, who report their opinion to The chancellor, and the judgment is pronounced by him. Chitty. CHAP. XXVI. OF EXECUTION. Ir 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 men. tioned 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 ac tual 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 qui. etly 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 assise of darrien presentment, the execution is by a writ de clerico admittendo; directed, not to the sheriff, but to the bishop or arch. [413] bishop, 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 assise of nusance, 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) 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 m withernam; (e) but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed. (f)3 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 shew cause why a Append. No. II. § 4. c Comb. 10. 3 d See pag. 150, b Finch. L. 470. (1) The writ recites the judgment of the court, and orders him to admit a fit person to the rec tory 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 sa tisfaction in damages. 2 Sel Prac. 330. (2) 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 F. R. 144. (3) Vide p. 145. n. (1) ante. : 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 indentical 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 amesnable to the magistrate. Executions in actions where money only is recovered, as a debt [414] 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 im prison 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, (1) where a defendant in 14 Edw. III. was discharged from a capias because he was of so advanced an age, quod poenam 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 the husband and wife in execution: (m) but, if the action was origi nally 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, 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." h Bro. Abr. t. damages, 28. i Keilw. 64. j Append No. III. §7. m Moor. 704. (4) 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 The writ of capias ad satisfaciendum is an execution of the [415] 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 and 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 can never 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, [416] and the sheriff shall be excused, if he has him again before any ac. tion 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 107.), and will make oath of his punctual compliance with the statute, the prisoner may be discharged, q 3 Rep. 52. 1 Sid. 830. s F. N. B. 130. p See page 279. r Stat. 8 & 9 W. III. c. 27. t Cro. Jac. 419. in execution, unless the original debt, in the case of soldiers, amounted to 201.; 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 or where they are privileged from arrest. Tidd, 1065, 6, 7. Chitty. (5) 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. 6T. R. 526. 7 ib. 420.; or upon giving a fresh security, which afterwards becomes ineffectual, 1T. 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. |