« SebelumnyaLanjutkan »
When it Issues. If the regular judgment of the court, after the decision of the suit, be not suspended, superseded or reversed, in one of the modes hereinbefore set forth, the next and last step is the execution of that judgment, or putting the sentence of the law in force.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.
Habere Facias. 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, he 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, the delivery of a twig, a turf or the ring of the door, in the name of seisin, is sufficient execution of the writ.
Special Writ. In other actions, where the judgment is, that something 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.
Nuisance. In the case of a nuisance, a writ issues to the sheriff to abate it, at the charge of the party, which likewise issues even in case of an indictment.
Replevin. 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. Detinue.
In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his cháttels, or else a scire facias against any third person, in whose hands they are, 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.
Replevin and Detinue. So that after all, in replevin and detinue, the only actions for recovering the specific possession of personal chattels, if the wrong doer 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 in law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magistrate.
Kinds of Executions. Executions in actions, where money only is recovered, as a debt or damages, and not any specific chattel, are of five sorts :
Against the body of the defendant.
Against his body, lands and goods. 1. CAPIAS AD SATISFACIENDUM.
This is distinct from a capias ad respondendum, which lies to compel an appearance at the commencement of a suit. This cannot be sued out against any, but such as were liable to be taken upon the former capias.
Its Intent. The intent of it is to imprison the body of the debtor, till satisfaction be made for the debt, costs and damages.
Exemption from Arrest. It does not lie against any privileged person, peers or members of parliament, nor against executors or administrators, nor against such other persons, as could not originally be held to bail. Coke mentions an instance where extreme old age was held a cause for exemption from imprisonment.
Husband and Wife. If an action be brought against a husband and wife for the debt of the wife when sole, and the plaintiff recovers judgment, the capias shall issue to take both
Imprisonment for debt in England is not allowed at the present day in actions on contracts, except where fraud exists.
husband and wife in execution, but if the action was originally brought against her when sole, and the plaintiff recovers judgment, 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 a husband and wife for the contract, nay even for the personal misbehavior 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.
Estops other Process. This writ of capias ad satisfaciendum 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.
Death of the Defendant. If the defendant dies, while charged in execution on this writ, the plaintiff may, after his death, sue out a new execution against his lands, goods or chattels.
Language of the Writ. 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, until he does.
For Costs. 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.
Escape. When a defendant is once in custody upon process, he is held confined, and if he afterwards is seen at large, it is an escape, and the plaintiff may have an action against the sheriff for his whole debt. For though, upon arrests, and upon mesne process, which is process during the progress of the suit, the sheriff, until the statute of William III, might have indulged the defendant as he pleased, so that 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 the creditor.
Escapes. Voluntary and Negligent. 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, 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 the keeper's knowledge or consent; and then the defendant may be retaken, and the sheriff shall be excused, if he has him agaiu before any action brought against him for the escape.
Rescue. A rescue of a prisoner in execution, either going to jail or in jail, 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.
Discharge of a Debtor. But by statute, if a defendant, charged in execution for a debt not exceeding one hundred pounds, will surrender all his effects to his creditors, except his apparel, bedding and tools of trade, not aggregating ten pounds, and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless his creditor insists on detaining him; in which case he shall allow him 28. 4d. per week, to be paid weekly, and on failure of making this payment, the defendant shall be discharged. Yet the creditor, at any future time, may have execution against the lands and goods of such defendant, though never more against his person.
Discovery and Surrender of Property. On the other hand, the creditors may, as in case of bankruptcy, compel such debtor, charged in execution for any debt under one hundred pounds, 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.
Liability of the Bail. Where a capias is sued out, and non est inventus is returned thereon, the plaintiff may issue process against the bail, if any were given, the stipulation having been, 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. If the two former stipulations are not carried out, the last must immediately take place.
Execution against the Bail. To accomplish this, a writ of scire facias may be sued out against the bail, 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 on the day of the return, or if, showing 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 him. 2. FIERI FACIAS.
Form of Writ. The sheriff is commanded, quod fieri faciat de bonis, that is, he cause to be made of the goods and chattels of the defendant the sum or debt recovered. This lies against privileged persons also, and against executors or administrators with regard to the goods of the deceased.
Peaceable Entrance. The sheriff may not break open any outer door, but must enter peaceably, and may then break open any inner door belonging to the defendant, in order to take the goods.
The Sale. And he may sell the goods and 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. If part only of a debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue. 3. LEVARI FACIAS.
Effect. This 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. 4. WRIT OF ELEGIT.
When Allowed. This is a judicial writ given by the statute, either upon a judgment for a debt or damages, or upon the forfeiture of a recognizance taken in the king's court.
Restriction of Alienation of Lands. By the common law, a man could only have satisfaction of goods, chattels, and the present profits of lands, by writs of fieri facias or levari facias, but not the possession of the lands themselves; which was a natural consequence of the feudal principles, which prohibited the alienation, and of course the encumbering of the fief with the debts of the owner And when the restriction of alienation wore