Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
IF the regular judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed, by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or, putting the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, wherein the seizin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seizin, of a freehold; or an habere facias possessionem, or writ of possession,1 of a chattel interest.2 These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land of 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 seizin, is sufficient execution of the writ. Upon a presentation to a benefice recovered in a quare impedit, or assize of darrein presentment, the execution is by a writ de clerico admittendo; directed, not to the sheriff, but to the bishop or his metropolitan, requiring them 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 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 assize or quod permittat prosternere for a nuisance, where one part of the judgment is quod 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.3 Upon a replevin the writ of execution is that de retorno habendo;4 and, if the distress be eloigned, the defendant shall have a capias in withernam,5 but on the plaintiff’s tendering the damages and submitting to a fine the process in withernam shall be stayed.6 In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels;7 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, the sheriff shall summon an inquest to ascertain the plaintiff’s damages, which shall be levied (like other damages) by seizure of the person or goods of the defendant. So that, after all, in replevin and detinue, (the only actions for recovering 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:8 in 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, like land and other real property, always amenable 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 land; or against all three, his body, lands, and goods.
1. THE first of these species of execution, is by writ of capias ad satisfaciendum;9 which 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.10 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 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,11 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 the husband and wife in execution:12 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.13 Yet, if judgment be recovered against an husband and wife for the contract, nay even for the personal misbehavior,14 of the wife during her coverture, the capias shall issue against the husband only: which is one of the greatest privileges of English wives.
THE writ of capias ad satisfaciendum is an execution of the highest nature, in as much 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 new executions 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,15 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,16 (though the plaintiff may retake him at any time17) 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.18 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, seeing he may command the power of the county.19 But by statute 32 Geo. II. c. 28. if a defendant, charged in execution for any debt less than 100£ 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 10£) 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 2 s. 4 d. 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 the 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 100£ 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.
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.20 In order to which 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 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, 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,21 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, etc, 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,22 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.23 And he may sell the goods and chattels (even an estate for years, which is a chattel real24) 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 the due, not exceeding one year’s rent in the whole.25 If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue.26
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.27 Little use 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,28 to levy the debt and damages 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.29
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 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 began to wear away, the consequence still continued; and no creditor could taken 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 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 plow) are delivered to the plaintiff, at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety or one half of his freehold lands, whether held in his own name, or by any other in trust for him,30 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, till the death of the defendant, if he be tenant for life or in tail. During this period the plaintiff is called tenant by elegit, of whom we spoke in a former part of these commentaries.31 We there observed that till this statute, by the ancient common law, lands were not liable to be charged with, or seized for, debts; because by this means the connection between lord and tenant might be destroyed, fraudulent alienations might be made, and the services be transferred to be performed by a stranger; provided he tenant incurred a large debt, sufficient to cover the land. And therefore, even by this statute, only
one half was, and now is, subject to execution; that out of the remainder sufficient might be left for the lord to distrain upon for his services. And, upon the same feudal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment.32 But, in case of a debt to the king, it appears by Magna Carta, c. 8. that it was allowed by the common law for him to take possession of the lands till the debt was paid. for, he, being the grand superior and ultimate proprietor of all landed estates, might seize the lands into his own hands, if any thing was owing from the vassal; and could not be said to be defrauded of his services, when the ouster of the vassal proceeded from his own command. This execution, or seizing of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken: but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit; for such elegit is in this case no more in effect than a fieri facias.33 So that body and goods may be taken in execution, or land and goods; but not body and land too, upon any judgment between subject and subject in the course of the common law. But
5. UPON some prosecutions given by statute; as in the case of recognizances or debts acknowledged on statutes merchant, or statutes staple; (pursuant to the statutes 13 Edw. I. de mercaribus, and 27. Edw. III. c. 9.) upon forfeiture of these, the body lands, and goods, may all be taken at once in execution, to compel the payment of the debt. The process hereon is usually called an extent or extendi facias, because the sheriff is to cause the lands, etc, to be appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied.34 And by statute 33 Hen. VIII. c. 39. all obligations made to the king shall have the same force, and of consequence the same remedy to recover them, as a statute staple: though indeed, before this statute, the king was entitled to sue out execution against the body, lands, and goods of his accountant or debtor.35 And his debt shall, in suing out execution, be preferred to that of every other creditor, who has not obtained judgment before the king commenced his suit.36 The king’s judgment also affects all lands, which the king’s debtor has at or after the time of contracting his debt, or which any of his officers mentioned in the statute 13 Eliz. c. 4. has at or after the time of his entering on the office: so that, if such officer of the crown alienes for a valuable consideration, the land shall be liable to the king’s debt, even in the hands of a bona fide purchaser; though the money for which he is accountable was received by the vendor many years after the alienation.37 Whereas judgments between subject and subject related, even at common law, no farther back than the first day of the term in which they were recovered, in respect of the lands of the debtor; and did not bind his goods and chattels, but from the date of the writ of execution. And now, by the statute of frauds, 29 Car. II. c. 3. the judgment shall not bind the land in the hands of a bona fide purchaser, but only from the time of actually signing
the same; nor the goods in the hands of a stranger, or a purchaser,38 but only from the actual delivery of the writ to the sheriff.
THESE are the methods which the law of England has pointed out for the execution of judgments: and when the plaintiff’s demand is satisfied, either by the voluntary payment of the defendant, or by this compulsory process, or otherwise, satisfaction ought to be entered on the record, that the defendant may not be liable to be hereafter harassed a second time on the same account. But all these writs of execution must be sued out within a year and a day after the judgment is entered; otherwise the court concludes prima facie that the judgment is satisfied and extinct: yet however it will grant a writ of scire facias in pursuance of statute Westm. 2. 13 Edw. I. c. 45. for the defendant to show cause why the judgment should not be revived, and execution had against him; to which the defendant may plead such mater as he has to allege, in order to show why process of execution should not be issued: or the plaintiff may still bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law.39
IN this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, and their respective officers. In the course therefore of the present volume we have, first, seen and considered the nature of remedies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a view of remedies by suit or action in courts: and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and cognizance. We afterwards proceeded to consider the nature and distribution of wrongs and injuries, affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint or original writ; through all the stages of process, to compel the defendant’s appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer, or the truth of the facts alleged and denied, upon issue joined, and its several trials; to the judgment or sentence of the law, with respect to the nature and amount of the redress to be specifically given: till, after considering the suspension of that judgment by writs in the nature of appeals, we arrived at its final execution; which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body, who is guilty of the injury complained of.
THIS care and circumspection in the law, in providing that no man’s right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not be receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; and in finally enforcing the judgment, when nothing can be alleged to impeach it; this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without entrenching upon those of any other individual in the nation, this parental solicitude which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it must be owned to have given a handle, in some degree, to those complaints, of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowledge, a few unworthy professors: who study the science of chicane and sophistry rather than of truth and justice; and who, to gratify the spleen, the dishonesty, and wilfulness of their clients, may endeavor to screen the guilty, by an unwarrantable use of those means which were intended to protect the innocent. But the frequent disappointments and the constant discountenance, that they meet with in the courts of justice, have confined these men (to the honor of this age be it spoken) both in number and reputation to indeed a very despicable compass.
YET some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes as were mentioned in examining a former complaint;40 from liberty, property, civility, commerce, and an extent of populous territory: which whenever we are willing to exchange for tyranny, poverty, barbarism, idleness, and a barren desert, we may then enjoy the same dispatch of causes that is so highly extolled in some foreign countries. But common sense and a little experience will convince us, that more time and circumspection are requisite in causes, where the suitors have valuable and permanent rights to lose, than where their property is trivial and precarious; and what the law gives them today may be seized by their prince tomorrow. In Turkey, says Montesquieu,41 where little regard is shown to the lives or fortunes of the subject, all causes are quickly decided: the basha, on a summary hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in free states the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty: and in all governments, he adds, the formalities of law increase, in proportion to the value which is set on the honor, the fortune, the liberty, and life of the subject.
FROM these principles it might reasonably follow, that the English courts should be more subject to delays than those of other nations; as they set a greater value on life, on liberty, and on property. But it is our peculiar felicity to enjoy the advantage, and yet to be exempted from a proportionable share of the burden. For the course of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the suitors of those courts in England, where the practice of the Roman law is allowed in its full extent. And particularly in France, not only our Fortescue42 accuses (of his own knowledge) their courts of most unexampled delays in administering justice; but even a writer of their own43 has not scrupled to testify, that there were in his time more causes there depending than in all Europe besides, and some of them an hundred years old. But (not to enlarge upon the prodigious improvements which have been made in the celerity of justice by the disuse of real actions, by the statutes of amendments and jeofails,44 and by other more modern regulations, which it now might be indelicate to mention, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty eight judicial or triverbial45 days allowed to the praetor for hearing causes:46 whereas with us, one fourth of the year is term time, in which three courts constantly sit for the dispatch of matters of law; besides the very close attendance of the court of chancery for determining suits in equity, and the numerous courts of assize and nisi prius that sit in vacation for the trial of matters of fact. Indeed there is no other country in the known world, that has an institution so commodious and so adapted to the dispatch of causes, as our trials by jury in those courts for the decision
of facts: in no other nation under heaven does justice make her progress twice in each year into every part of the kingdom, to decide upon the spot by the voice of the people themselves the disputes of the remotest provinces.
AND here this part of our commentaries, which regularly treats only of redress at the common law, would naturally draw to a conclusion. But, as the proceedings in the courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by those courts. These will therefore be the subject of the ensuing chapter.
1. Append. No. II. § 4
2. Finch. L. 470.
3. Comb. 10.
4. See pag. 150.
5. See pag. 148.
6. 2 Leon. 174.
7. 1 Roll. Abr. 737. Rastal. Entr. 215.
8. Keilw. 64.
9. Append. No. III. § 7.
10. 3 Rep. 12.
11. 1 Inst. 289.
12. Moor. 704.
13. Cro. Jac. 323.
14. Cro. Car. 513.
15. See pag. 279.
16. 3 Rep. 52. 1 Sid. 330.
17. Stat. 8 & 9 W. III. c. 27.
18. F. N. B. 130.
19. Cro. Jac. 419.
20. Lutw. 1269 1273.
21. Append. No. III. § 7.
22. 5 Rep. 92.
23. Palm. 54.
24. 8 Rep. 171.
25. Stat. 8 Ann. c. 14.
26. 1 Roll. Abr. 904. Cro. Eliz. 344.
27. Finch. L. 471.
28. Pegistr. orig. 300. judic. 22. 2 Inst. 4.
29. 2 Burn. eccl. law. 329.
30. Stat. 29. Car. II. c. 3.
31. Book II. ch. 10.
32. 1 Roll. Abr. 888.
33. Hob. 58.
34. F. N. B. 131.
35. 3 Rep. 12.
36. Stat. 33. Hen. VIII. c. 29.
37. 10 Rep. 55, 56.
38. Skin. 257.
39. Co. Litt. 290.
40. See pag. 327.
41. Sp. L. b. 6. ch. 2.
42. de Laud. LL. c. 53.
43. Bodin. de Republ. l. 6. c. 6.
44. See pag. 406.
45. Otherwise called dies fasti, in quibus licebat praetori fari tria verba, do, dico, addico. (Calv. Lex. 285.)
46. Spelman of the terms. § 4. c. 2.