not indulge party. plaintiff may have an action thereupon against the sheFor sheriff can riff (16) 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 prican never be re- soner again (q) (17), (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 Escapes either voluntary or negligent. Where volun tary, prisoner taken. Where negli (p) See page 279. (q) 3 Rep. 52. 1 Sid. 330. tion before being taken to prison, go (r) Stat. 8 & 9 W. III. c. 27. In this case the sheriff allowed himself to be influenced by the representation of the franchise, whereas having once taken the defendant he was held bound to keep him until liberated by law. And it seems he must keep him in safe custody within his liberty. See Boothman v. Earl of Surrey, 2 T. R. 5. So where the defendant on being taken in execution, paid the money to the sheriff, and was thereupon liberated, the money not being paid over, escape was held to be. Slackford v. Austen, 14 East, 468. (16) Or other officer having custody of the defendant in execution, e. g. the marshal of K. B. or warden of the Fleet. 25. (17) Atkinson v. Jameson, 5 T. R. his keeper's knowledge or consent (18): and then upon gence he may fresh pursuit the defendant may *be retaken, and the she- upon fresh purriff shall be excused, if he has him again before any action in what case ex suit, and sheriff cused. ance in what or he is dis brought against himself for the escape (s) (19). A rescue Of rescue, what. of a prisoner in execution, either. going to gaol or in gaol, [*416 ] or a breach of prison, will not excuse the sheriff from Does not exbeing guilty of and answering for the escape; for he ought cuse sheriff. to have sufficient force to keep him, since he may command the power of the county (t) (20). But by statute Stat. 32 G. II. 32 Geo. II. c. 28 (21), if a defendant, charged in execu- c. 28, for allowtion for any debt not exceeding 1007. (22) will surrender case to prisoner all his effects to his creditors, (except his apparel, bed-in execution; ding, and tools of his trade, not amounting in the whole charged. to the value of 107.) 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. (23) per week, to be paid on the first day of every week, and on failure of regular payment the prisoner shall be discharged. Yet Yet his lands the creditor may at any future time have execution and goods reagainst the lands and goods of such defendant, though (s) F. N. B. 130. (18) Alsept v. Eyles, 2 H. Bl. 108. (19) A voluntary return of a prisoner after an escape before action brought, is equal to a retaking on a fresh pursuit; but it must be pleaded. Bonafous v. Walker, 2 T. R. 126. (t) Cro. Jac. 419. Geo. III. c. 44, § 36, extended to at- (23) By stat. 37 Geo. III. c. 85, (20) See O'Neal v. Marson, 5 Burr, 2812. Elliott v. Duke of Norfolk, 4 T. R. 789. In this case a mob demolished the gaol. (21) Generally called the Lords' 2s. a week each. The cases which Act. (22) By stat. 33 Geo. III. c. 5, extended to £300, and to costs in the spiritual courts. Made perpetual, by stat. 39 Geo. III. c. 50. By stat. 26 have occurred under these acts are main liable. Where creditor may compel discovery and surrender of effects. Where to this writ non est in ventus is re turned, process may be sued against bail. never more against his person. 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 1007. (24), 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 (25). 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 (26): who, we may remember, stipulated in this triple alternative, that (24) Extended to £300, by statute and more comprehensive, yet, to credi39 Geo. III. c. 50. (25) But the creditors who can compel the surrender of the debtor's effects, and who are to have the benefit of such are only those who have charged him in execution. The act further provides, that the prisoner shall never afterwards be liable to be arrested on any action for the same debt, unless convicted of perjury. But in order to have the benefit of this act, he 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 show that his neglect arose from ignorance or mistake. The acts do not extend to the crown nor to qui tam debtors, nor to affect any proceeding which at any time may be lawfully had under or by virtue of any commission of bankrupt. But they extend to prisoners in execution on process arising out of inferior as well as superior courts. The King v. The Bailiffs of Ipswich, 7 East, 84. 3 Sm. 102. S. C. Resort to the statute, wise and humane in point of principle, has been tors, worse than utterly useless Insolvent Debtors Acts. Of these it may truly be said, that although they may often prevent the long duration of gross evil, they do not, in a commensurate degree, operate the prevention of its commencement and partial continuance. Insolvent, and such like, Acts are but botches of laws which sanction imprisonment for mere debt. (26) The correctness of surreptitiously proceeding against bail, in default of their principal against whom a ca. sa. has been issued, and formally returned non est inventus, has been questioned in the Court of Exchequer ; by which it has lately been held, that where the defendant had voluntarily surrendered in discharge of his bail, before the return of the ca. sa issued in order to fix the bail, and had afterwards become bankrupt, the plaintiff could not move to quash such writ; although the plaintiff was willing to undertake to enter an exoneretur on the bail piece, and make an affidavit that it was never intended to take the defendant in execution on the ca. sa. Stott v. Smith, 8 Price, 512. 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 Viz. scire facias, scire facias (27) may be sued out against the bail, com (u) Lutw. 1269-1273. (27) The proceeding by writ of scire facias against bail is matter of very intricate although extended practice; the cases refer, 1. To the venue; it being ruled that it must be laid in Middlesex, when the recognizance is filed in K. B. Coxeter v. Barke, 5 East, 561. In C. P. the venue may be laid either in Middlesex, or in the county where the bail was taken. Hob. 195. See also Henry v. Thornton, 2 Bl. Rep. 768, where it was ruled, that if defendant were sued by original in London, there the sci. fa. must be sued. Harris v. Calvert, 1 East, 603. 2. To the teste and return of the writ. And here it may be sufficient to observe, that where the defendant was sued by bill in K. B. it is immaterial how many days intervene between the teste and return of each writ of sci. fa. Elliott v. Smith, 2 Str. 1139. So in C. P. Peale v. Watson, Bl. 922. But where the defendant was sued by original, there must be fifteen days between the teste and return of the alias as well as of the first sci. fa. R. E. 5 Geo. II. c. 3, and K. B. But the sci. fa. must not bear teste on a Sunday. Dy. 168. And whether the sci. fa. shall be returnable on a day specified, or on a general return day, depends on whether the first process against the defendant was by bill, or by original. Eden v. Wells, 2 Ld. Raym. 1417. 3. As to what time the sci. fa. must be in the sheriff's office. And this it seems is four days, exclusive of the return day: and they must also be the last four days previously to the return. See Forty v. Hamer, 4 T. R. 583. And Sunday is not a day to be reckoned at all as one of the four. Goodwin v. Sugar, 6 M. & S. 126. The bail are liable on the judgment against them as in other actions except in C. P. where, as mentioned above, their persons cannot be taken in execution. But they are liable for no cause of action not appearing upon the original affidavit. Wheelwright v. Jutting, 7 Taunt. 304. 1 J. B. Moore, 51. S. C. And then only to the amount of the sum there mentioned and the costs. Clarke v. Bradshaw, 1 East, R. 86. But in C. P. the bail are liable to the sum recovered against the defendant. See Howell v. Wyke, 1 B. & B. 490. And when the action is brought or proceedings be adopted against the sheriff, he, as well as the bail, is liable for the whole debt as far as the amount of the penalty in the bail bond, without reference to the sum specified in the affidavit. See Stevenson v. Cameron, 8 T. R. 29. Mitchell v. Gibbons, 1 H. Bl. 76. Fowlds v. Mackintosh, Id. 233. But bail are not liable for interest on the original judgment. Waters v. Rees, 3 Taunt. 503. what it commands. [ *417] manding them to show cause why the plaintiff should not 2. Of the writ of fieri facias. Its form. Against whom it lies; none privileged. What the sheriff may not or may do in executing it. 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 (28), 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) (29), 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. 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 (w) Append. No. III. § 7. And where bail were held liable for The costs of the sci. fa. cannot be (28) Not in C. P. See former note (11), page 414. (29) Et gist tous temps dein l'an et jour, saith Dalton, Sher. 145. [It lies at all times within the year and a day.] The cases upon this writ are numerous; in this resembling every step incidental yet material to the prosecution of a suit at law. (x) 5 Rep. 92. without an order for a change of attorney. Tipping v. Johnson, 2 B. & P. 357. The old writ of volumus, O. N. B. 21, would protect the goods and chattels of a defendant, as the old writ, or letters patent, of volumus would protect his person and goods, from this ultimate process of law; but neither of these writs has issued within a century. The writ of volumus issued, like other letters patent, under the great seal. The protection, limited to corn, hay, horses, charters, or the like, might be granted by any master in chancery without a privy seal, which was of course necessary to obtain the volumus. See 2 Reeves, E. L. 241. 23 Id. 115, It may be issued by a new attorney and the references. |