fore, against a defendant will not be stayed, unless within four days of his bringing error, he with two sureties become bound to the plaintiff below, now become the defendant in error, in double the amount awarded by the judgment, and also to pay to him all further` cost and damages, if the judgment be affirmed or the proceedings in error discontinued.

The plaintiff in error next suggests on the roll that, in the proceedings in the action and the giving of judgment therein, there is error, adding thereto the defendant's denial, or joinder in error; after which the judgment roll is made up and carried into the court of error, which, on examining it awards the proper judgment, if the former was erroneous; unless the defendant in the mean time confesses the error by giving the plaintiff a notice to that effect, on which judgment of reversal may be signed. But if the defendant in error relies upon this proceeding being barred by lapse of time, or by release of error, or other matter of fact, he must give four days' written notice to the other party to assign error, which assignment of error is in the nature of a declaration, stating the grounds on which the plaintiff in error imputes error on the record; nothing being assignable for error that contradicts the record itself; and to this assignment the defendant in error must put in a plea, confessing that the judgment is erroneous, but showing that the plaintiff cannot take advantage of the error; as for instance by showing a release of errors. To the defendant's plea, the plaintiff replies or demurs, and the defendant again demurs or rejoins, so that ultimately an issue of law or in fact is joined, the latter being taken down for trial by the defendant in error by proviso, without his waiting for a default by the plaintiff, as we have seen he is obliged to do in ordinary cases.

The judgment of the court of error may be either in affirmance of the former judgment; or that it be reversed for error in law; or that the plaintiff be barred of his right to bring error, as when a plea of the statute of limitations has been found for the defendant. But the court of error may always give such judgment and award such process as the court below ought to have given, and therefore it may award a repleader, or direct a venire de novo.

When the judgment of the court below is affirmed, or the plaintiff in error non pros'd, the defendant is entitled to damages and costs, as well as to interest upon the sum awarded him by the court below for the time that execution has been delayed; but if the judgment of the court below is reversed, each party must pay his own costs. If, however, execution has been levied on the plaintiff in error for debt or damages, he is entitled to a writ of restitution, in order that he may recover all that he has thereby lost.

III. As error in law can only be brought on matter appearing cn the record, it does not lie to reverse the judgment on a special case, because there nothing appears on the record. But, unless the parties have agreed to the contrary, an appeal, which practically amounts to the same thing, may be brought against the judgment; the proceedings for doing so being, as nearly as may be, the same as in the case of error. And the same method of proceeding by appeal may be resorted to, by either party, where, at the trial, leave has been reserved to move that a verdict or nonsuit be entered, or for a new trial; and the court either refuses or grants the application; for here, as in a special case, nothing whatever appears on the record, and, technically, error cannot be brought.

Error lies from the inferior courts of record in England, existing at the common law, into the Queen's Bench, which is also the court of error and appeal from the judgments of the court of pleas at Durham, the court of common pleas at Lancaster, and the mayor's court of the City of London. 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 proceedings in the nature of appeals.

CHAPTER XVI.

OF EXECUTION.

Writ of habere facias seisinam or possessionem-de clerico admittendo-de retorno habendo-In detinue distringas or scire facias-Writ of capias ad satisfaciendum-Writ of fieri facias-Interpleader-Order to charge stock, &c.-Order to attach debts, &c.-Writ of levari facias-Sequestration— Writ of elegit-Writ of extent-Writ of injunction-Writ of mandamus. THE last step in a suit is the execution of the 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 a real action or in ejectment, whereby the seisin or possession of land is awarded to him, the writ of execution is a habere facias seisinam, or writ of seisin, of a free

hold; or a 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 claimant of the land 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 the rest, is sufficient execution of the writ.

Upon a presentation to a benefice recovered in a quare impedit, 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.

In other actions, where the judgment is that something in special be done or rendered by him against whom the judgment is given, 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.

After judgment in the action brought by a replevisor, the writ of execution to obtain a return of the goods 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, 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 show cause why they should not be delivered: and if the defendant still continues obstinate, then, if the judgment has 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. Execution may also issue for the return of the specific chattel detained, without giving the defendant the option of retaining it upon payment of the value assessed by the jury; the plaintiff being further entitled, either by the same or a separate writ of execution, to have the damages, costs, and interest recovered in the action levied on the defendant's goods. Of a similar nature is the writ of execution which may be had in actions for breach of a contract to deliver specific goods for a price in money.

Executions in actions where money only is recovered, as a debt or ⚫ damages, are of five sorts: either against the body of the defendant;

T

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 the defendant to give bail and enter an appearance at the beginning of a suit. It cannot be sued out against any but such as were liable to be taken upon the former capias, nor in actions wherein the sum recovered does not exceed twenty pounds, exclusive of the costs. The intent of it is to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages; it therefore does not lie against any privileged persons, peers, or members of parliament, nor against such other persons as could not be originally held to bail. This writ is an execution of 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. It 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.

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 the value of the custody of the debtor at the moment of the escape. 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.

If the debtor when taken in execution does not make satisfaction, he must remain in prison till he does, or until he be discharged as a bankrupt; a fate from which there is now no means of escape except by payment of the debt for which he is incarcerated; as every debtor's prison must now be cleared of its prisoners at least once in every month, by an adjudication of bankruptcy against the insolvent inhabitants.

If a capias ad satisfaciendum is sued out, and a non est inventus is returned thereon, the plaintiff may sue out a writ of scire facias against the bail, if bail were given in the action, commanding them to show 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, 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, from the words in it where the sheriff is commanded, quad fieri facias 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, 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. And he may sell the goods and chattels, even an estate for years, which is a chattel real, 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.

If a claim be made by a third party to the goods of the person against whom the writ of fieri facias is issued, the sheriff may impannel a jury to try the question of property; and according as that question is determined, surrender the goods or sell them in terms of the writ. But he now usually proceeds in such a case under the Interpleader acts; and obtains from a judge, at chambers, a summons directed to the execution creditor, and the party claiming the goods; and calling upon them to appear and maintain their respective claims; which, if the claimant fail to do, his claim is barred. But if both parties appear, the judge may decide between them; or an interpleader issue, to try the right of property, is directed; on which the parties go to trial as in ordinary cases; or, if the question be one of law, a case may be stated for the court; -the costs of these proceedings being exclusively in the discretion of the court, or of the judge by whom the matter is disposed of; the decision, whether of the judge or of the court, which may be moulded to suit the circumstances of the case, not being subject to the review a court of error.

If part only of the debt be levied on a fieri facias, the creditor may have a capias ad satisfaciendum for the residue, or may resort to the other means with which the law provides him to realise his claim.