they should not be delivered : and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages : which (being either so assessed, or by the verdict in case of an issue) (h) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election, to deliver the goods, or their ralue (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 (4). [*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 (); 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 (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 husband and wife in execution (m): but, if the action was originally brought against herself, when sole, and pending the suit she marries, the capias shall be awarded against her only, and not against her husband (n). Yet, if judgment be recovered against an husband and wife for the contract, nay, even for the personal misbehaviour (0) of the wife during her coverture, the capias shall issue against the husband only : which is one of the many great privileges of English wives (5).

(h) Bro. Abr. t. damages, 29.
(0) Keilw. 64.
(1) Append. No. III. 6 7.
(k) 3 Rep. 12. Moor, 767.

(1) 1 Inst. 289.
(m) Moor, 701.
(n) Cro. Jac. 323.
(0) Cro. Car. 513.

(4) The action of detinue is abolished in III. c. 99. s. 47. no penalty or costs incurred New-York. (2 R. S. 553. 9 15.) See the ex. by any spiritual person by reason of non-resiecution in replevin, 2 R. S. 530. 9 50.

dence on his benefice, shall be levied by exe. (5) There are many cases in which the de- cution against his body, whilst he holds the fendant may be taken in execution after judg. same or any other benefice, out of which the ment, though he could not be arrested at the same can be levied by sequestration within, commencement of the suit; but it is an uni. the term of three years. An infant seems liaversal rule, that whenever a capias is allowed ble to this process. 2 Stra. 1217; see id. on mesne process before judgment, it may be 708. 1 B. &. P. 480. Husband and wife had upon the judgment itself. 3 Salk. 286. may be taken in execution in an action against 3 Co. 12. It lies against peers, or members both, and she shall not be discharged, unless of parliament, upon a statute merchant, or it appear she has no separate property, out of staple, or recognizance in nature thereof. 2 which the demand can be satisfied, T. 2 Geo. Loon. 173. 1 Cromp. 345. But by 57 Geo. IV. C. P; see 5 B. & A. 759; or that there

:

*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 jugdment is had against him.

When a defendant is once in custody upon this process, he is to be keptin 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 lo the creditor (6). 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 (9) (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 [*416] 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 (). But by statute 32 Geo. II. c. 28. if a defendant, charged in execution for any debt not exceeding 1001. will surrender all his effects to his creditors (except his apparel, bedding, and (p) Sce page 279. (9) 3 Rep. 52.

tools of his trade, not amounting in the whole to the value of 102.), 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 (7). 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 1001. 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 (8)7.

(7) The statute mentioned in the text is his debts, &c. and assigned all his property in that which is commonly known by the appella- possession or expectancy for the benefit of his tion of the Lords' Act, from the circumstance creditors, to whose demands all property which of its originating in the upper house of par. he may afterwards acquire is made liable. If liament. By the 33 Geo. III. c. 5, made per- upon his examination it appear that he has petual by 39 Geo. III. c. 50, the regulations been guilty of bad practices or fraud, in conof the former act are extended to debts tracting debts, or have opposed a vexatious amounting to 3001. And by other statutes, defence to any action brought against him for (see Tidd, 379.) persons in custody for con- the recovery of any debt, concealed credits or tempt by the non-payment of money or costs debts, given a voluntary, preference to any ordered by courts of equity, 49 Geo. III. c. 6, creditor, or made away with his property, or or common law, are declared within the pro. his imprisonment be for damages recovered in visions for the relief of prisoners in custody an action of crim, con., seduction, or malicious, for debt only. But a defendant in a qui tam injury, or does not answer satisfactorily to the action is not entitled to the benefit of the court, he may be sent back to prison for two lords' act, 3 Burr. 1322. 1 Bla. R. 372; nor or three years, at the discretion of the court. a defendant in custody under a writ de excom- A fraudulent concealment of property in his municato capiendo for contumacy in not paying schedule, subjects him to the additional pu. a sum for alimony, and also for costs in the nishment of hard labour. If a voluntary preecclesiastical court. 11 East, 231. When ference be given by him within three months the prisoner is charged in execution above before filing his petition for discharge, it is twenty miles from Westminster-hall, or the void. court out of which the execution issued, he (8) The creditors who can compel the sur. must be brought up to the next assises ; or by render of the debtor's effects, and who are to 52 Geo. III. c. 34. before the justices at quar- have the benefit of it, are only those who have ter sessions, to be examined and discharged. charged him in execution. This statute, the The application is directed to be made by the 32 Geo. II. c. 28, is generally called the lords' prisoner before the end of the first term after act. By the 26 Geo. III. c. 44. the provisions his arrest; but ignorance or mistake will ex- of it were extended to 2001. and by the 33 cuse a delay beyond that period. When the Geo. III. c. 5. they have been siill further endebt recovered does not exceed 201. exclusive laryed to 300l. By the 37 Geo. III. c. 85. one of costs, the 48 Geo. III. c. 123. provides for creditor shall agree in writing, in order to the discharge of the debtor's person after he detain such a debtor, to make him a weekly has lain in prison twelve months. But this allowance of 38. 6d.; and where two or more statute being confined to persons in execution shall agree to detain him, they shall pay him upon a judgment, it has been holden, that one what the court shall direct, not exceeding 2s. in custody on an attachment for non-payment a week each. See the clauses of the act in of a sum under 201. found due upon an award 2 Burn, tit. Gaol. The prisoner shall never made a rule of court, is not entitled to his afterwards be liable to be arrested on any acdischarge under it. 10 East, 408. 2 B. & tion for the same debt, unless convicted of perA. 61.

jury. But a prisoner, to have the benefit of The 1 Geo. IV. c. 119. established a new this act, must petition the court from wbich court of record, called the Court for the Re. the process issued upon which he shall be in lief of Insolvent Debtors, which is held twice custody, before the end of the first term aster a week in London throughout the year, with be is arrested, unless he afterwards shews his a short vacation in the summer; and by the 5 neglect arose from ignoranee or mistake. Al. Geo. IV. c. 16. it is provided, that the judges though the prisoner cannot avail himself of of this court, who are four in number, shall the benefit of the lords's act, is his debts exmake three circuits in the year, for the dis, ceed 3001., yet he is liable to the compulsory charge of insolvents. A prisoner discharged clause, upon any debt within that amount, under these acts becomes personally free, hav- whatever may be the amount of all his debts ing first delivered a schedule on oath of all for which he is in execution. 5 B. & A. 537.

+ See 2 R. S. 28. 31, as to the discharge to imprisonment on surrender of their properof insolvents from imprisonment and liability ly.

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 ihe bail, commanding them to shew cause why the plaintiff should not have execution against them for his *debt and dama- [*417] ges : and on such writ, if they shew no sufficient cause, or the defendant does not surrender himself on the day of the return, or of shewing 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 (9).

2. The next species of execution is against the goods and chattels of the defendant ; and is called a writ of fieri facias (w), from the words in it where the sheriff is commanded, quod fieri faciat de bonis, that he cause to be made of the goods and chattels of the defendant the sum or debt recovered (10). This lies as well against privileged persons, peers, fc. 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 (11): 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) (12).

a

(u) Lutw, 1269—1273.
(10) Append. No. III. 07.
(2) 5 Rep. 92.

(y) Palm. 54.
(2) 8 Rep. 171.
(a) Stat. 8 Ann. c. 14.

The judges of K. B. have decided that an expenses of execution" include expenses of insolvent brought up under the compulsory levying ? Ramsey v. Tuffnell, 9 J. B. Moore, clause in the lords' act, is not bound to answer 425. questions as to the disposition of his property (12) The statute enacts that such payment during his imprisonment, but merely as to the shall be made out of the proceeds, provided amount and condition of it at the time of mak. the sheriff have notice of the landlord's claim, ing his schedule; and that the form of the at any time while the goods or the proceeds Oath must be allered conformably with this remain in his hands. See Arnitt v. Garnelt, construction of the statute. Per Holroyd, J., 3 B. & A. 410. In this case the goods had in Re. Askew, 24th Nov. 1825.

been removed from the premises previously to (9) The undertaking of the bail does not the notice. And where the sherifi takes corn subject them to execution against the body in the blade under a fi. fr. and sells it before in the coramon pleas.

the rent is due, is not liable to account to the (10) If, upon a judgment in tort, against landlord for rent accruing subsequent to the two or more, execution be levied for the whole levy and sale, although he have given norice, damages upon one only, I Camp. 343. that and though the corn be not removed from the one cannot recover a moiety against the other premises mil long afterwards. Gwilliam v. for his contribution; but he may maintain an Barker, 1. Price, 274. And where the sheriff action for the moiety, if the original action shall know the fact of the arrear of rent, no were founded upon contract. 8 T. R. 186; other specific notice is needfu! to bind him. see also 2 Camp. 452.

Andrews v. Dixon, 3 B. & A. 615. And, semble, (11) And by a late statute, viz. 43 Gen. III. he need not set about finding out what rent is c. 46, io satisfy also the costs of the writ of due. Smith v. Russel, 3 Taunt. 400. And execution, together with the sheriff's fees, the sheriff is bound only as to the rent actual. poundage, &c. But the statue does not ex. ly duc at the time of the taking, and not such iend to give the like costs, fees, poundages, rent as shall have accrued due whilst he is &c. to the defendant. But, query, whether in possession. Hoskins v. Knight and Basset

a

If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue (6) (13).

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 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 incumbering of the fief with the debts of the owner. And, when the restriction of alienation began to wear away, the consequence still continued; and no creditor could take the possession of lands, but only levy the growing profits : so that, if the defendant aliened his lands, the plaintiff was ousted of his remedy. The statute therefore granted this writ (called an elegit, because it is in the choice or election of the plaintiff whether he will sue out this writ or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff, at such reasonable

appraisement and price, in part of satisfaction of his debt. If the [*419] goods are not sufficient, then the moiety or *one half of his free

hold lands, which he had at the time of the judgment given (f), whether held in his own name, or by any other trust for him (g) (14), 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

() 1 Roll. Abr. 904. Cro. Eliz. 344.
(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.

v. Same, 1 M, & S. 245.

(2 R. S. 367. $ 24). And if these be not suffiSee Law in New York, 1 R. S. 746. § 12, &c. cient, a ca: sa: may issue.

(13) In New-York, the only execution from (14) The words in the statute referred to a court of record against the property of a (29 Car. II. C 3.) are, at the time of the said party is a fi. fa. which enforces the collection erecution sued, and refer to the seisin of the of the debt, interest, and sheriff's fees and trustee; therefore, if the trustee has conveyed poundage out of the personal property ; or if the lands before execation sued, though ne ibat be not sufficient, ihen from a sabe of all was seised in trust for the defendant at the such real estate as he had at the time of dock- time of the judgment. the lands cannot be eling the judgment, or at any time afterwards. taken in execution. Com. Rep. 227.