S proceedings in the king's bench do not first commence therein by bill, but by original writ sued out of chancery," this takes the case out of the general rule laid down by the statute; so that the writ of error then lies, without any intermediate stage 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. CHAP. XXVI. OF EXECUTION. Ir the regular judgment of the court, after the devision of the suit, be not suspended, superseded, or reversed by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or, putting the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, of a chattel interest." 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 assise of darrein presentment, the 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. d 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. Upon a replevin, the writ of execution is the writ de retorno habendo: and, if the distress be eloigned, the defendant shall have a capias in withernam, but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed. In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels or else a scire facias against any third person in whose hands they may happen to be, to shew 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) 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 value: an imperfection c Comb. 10. 8 1 Roll. Abr. 737. Rast. Entr. 215 h Bro. Abr. t. Damages. 29. i Keilw. 64. 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 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. i 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. 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,' 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 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: in 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." Yet, if judgment be recovered against an husband and wife for the contract, nay, even for the personal misbehaviour," 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. The writ of capias ad satisfaciendum is an execution of i Append. No. III. § 7. m Moor. 704. n Cro. Jac. 323. 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," 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, though the plaintiff may retake him at any time,' 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 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 P See page 255. 3 Rep. 52. 1 Sid. 330. r Stat. 8 & C W. III. c. 27. s F.N.B. 130. 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 1007. (23) 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. (24) 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 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. (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: 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." In order to which a writ of scire facias may u Lutw. 1269-1273. t Cro. Jac. 419. (23) By the 33 G. III. c. 5. made perpetual: by the 39 G. III. c. 50. the sum is extended to 3001. (24) By 37 G. III. c. 85. this sum is increased to 3s. 6d. per week. (25) The 53 G. III. c. 102. contains numerous regulations respecting insolvent debtors. See this act fully abstracted, in Vol. II. p. 453. n. 42. |