issued; of the effect of an execution; and of the several kinds of executions.

3370. As a general rule, the plaintiff, or party in whose favor a judgment has been rendered, may issue an execution when his judgment is final, unless he has agreed to give a stay of execution, or the law authorizes the losing party to enter security, which has been done, for the purpose of staying such execution for a limited time; and when this has been done and the time has expired, the successful party may issue execution as a matter of course, subject at all times to the control of the court, and liable to be set aside, or modified, as the justice of the case may require.'

In some cases, however, execution cannot be taken out without leave of court; as, where in actions on a policy of insurance there is a verdict for the plaintiff against one of several underwriters, and the others have entered into a consolidation rule, and agreed to be bound by it. When a verdict is taken pro formá at the trial, for a certain sum, subject to the award of an arbitrator, the sum afterward awarded must be taken as if it had been originally found by the jury, and the plaintiff is entitled to enter up judgment for the amount, without first applying to the court for leave; but where a verdict is taken, and judgment entered up for a less sum than is afterward found due by the award, the plaintiff cannot take out execution for the whole sum awarded, but only for the sum recovered by the judgment; for the residue he must proceed by attachment.* On a writ of error coram nobis, it seems an execution taken out without leave of court is irregular."

3371. The execution is founded on the judgment, and must conform to it in every respect, as to the amount of the judgment and the parties, unless some of the parties, when there are more than one, are dead; then the execution may recite the death and be issued in favor of or against the survivor." In Pennsylvania, upon the death of a plaintiff after judgment, his executor may be substituted in his place, and an execution reciting the fact may be issued, without a scire facias, to renew the judgment in favor of the executor; and an execution issued by the executor, without a formal substitution, is voidable and not void; a party may, therefore, justify under it. In New Jersey, such an execution will be quashed.10 When the defendant dies after judgment, no execution can be had against his goods without a scire facias against his representatives." If, however, an execution is issued after the death of the judgment debtor, without a scire fucias, it is voidable, not void, and third parties cannot take advantage of this fact to invalidate the proceedings under it. As to them, unless it has been avoided by the representatives of the debtor, it is perfectly valid.12

1 See Commonwealth v. Magee, 8 Penn. St. 240; Irwin v. Shoemaker, 8 Watts & S. Penn. 75; Harrison v. Soles, 6 Penn. St. 393; Carpenter v. Vanscoten, 20 Ind. 50.

For the nature and history of this rule see Bouvier, Law Dict. Consolidation Rule; 2 Marshall, Ins. 701; Parke, Ins. xlix.; 3 Chitty, Gen. Pr. 644; Graff v. Musser, 3 Serg. & R. Penn. 262, 265; Brown v. Scott, 1 Dall. 145; Merrihew v. Taylor, 1 Browne, Penn. Appx. lxvii.; Rumsey v. Wynkoop, 1 Yeates, Penn. 5; Towanda Bank v. Ballard, 7 Watts & S. Penn. 434.

31 East, 401. But see Barnes, 58.

Tidd, Pract. 910.

5 Ribout v. Wheeler, Say. 166; Barnes, 201; 2 W. Blackst. 1067.

• Commonwealth v. Fisher, 2 J. J. Marsh. Ky. 137; Washington v. Irving, Mart. & Y. Tenn. 45; Palmer v. Palmer, 2 Conn. 462; Douglas v. Whiting, 28 Ill. 362. 'Hamilton v. Lyman, 9 Mass. 14; Bowdoin v. Jordan, 9 Mass. 160

9

8 Darlington v. Speakman, 9 Watts & S. Penn. 182.

Day v. Sharp, 4 Whart. Penn. 339.

10 Harwood v. Murphy, 1 Green, N. J. 193. See Davis v. Helm, 11 Miss. 17.

11 Wilson v. Kirkland, 1 Miss. 155; Hubart v. Williams, 1 Miss. 175. This is changed

in some states by statute, and execution may be issued at once against the personal representatives. Harteaux v. Eastman, 6 Wisc. 410; Fowler v. Burdett, 20 Tex. 34.

12 Harper v. Hill, 35 Miss. 63.

If no costs are awarded by the judgment, no execution for costs can issue.13 If the debtor dies after the execution is delivered to the sheriff, he may proceed to levy and sell.14

Although the rule is firmly established that when the judgment is joint the process to enforce its payment must also be joint, yet it is said to be more technical than substantial, and the court out of which such process issues will take care that it shall not be used so as to work injustice, and for this reason will protect a surety from an attempted disregard of a release to him by a creditor. 15

3372. By statute of Westm. 2 an execution may be sued at any time within a year and a day after the judgment is signed in cases where a scire facias is not required, or where execution is not stayed by writ of error, injunction, agreement, or the like; and when it is so stayed, within a year and a day after the removal of the bar. In several of the states the time for issuing an execution has been extended beyond that time by statutory provisions.

If the writ of execution has been issued within the year, and it has been so executed as not to produce to the party the full benefits of his judgment after it has been returned he may have other writs of execution after the year upon continuing the first writ down to them; 16 the second or other subsequent execution may be of the same kind as the first, or of a different species; a capias ad satisfaciendum may, therefore, be issued after a fieri facias.17

The second execution of the same nature issued on a judgment is called an alias, and all future executions of the same kind are called pluries executions, the first of which is called first pluries, the next, second pluries, etc.

3373. An execution issued by a court having competent jurisdiction is a protection to the officer who is required and authorized to execute it, and whether it be regular or not is of no importance to him except when the officer participates in the irregularity.18 This salutary protection is wise, just, and necessary, because the officer has not the authority to impugn the authority of the court, and he cannot, therefore, inquire into the regularity of its proceedings. In this case, however, he must execute it according to its requirements, and he cannot, under color of authority, seize the goods of a stranger." He is protected only while obeying its requirements. If the officer exceeds his rights in levying an execution, as where, having properly seized articles on the writ he improperly sells them, he becomes a trespasser ab initio, and is liable to the party injured for his tort as well in the seizing as in the selling. The wrongful act taints the whole proceeding."

20

The rule, however, is very different when the court has no jurisdiction of the case, for then the officer is bound to pay no regard to its mandates. This reasonable responsibility the law casts upon him. If a court having jurisdiction in criminal cases only should entertain an action of debt, give a judgment, and issue an execution, the sheriff could lawfully refuse to execute that process; and if he proceeded to execute it, he would be liable as a trespasser, together with

18 Hart v. Dubois, 20 Wend. N. Y. 236; Robinson v. Barrows, 48 Me. 186; Neith v.

fut, 30 Conn. 580; Taylor v. McKeown, 12 Rich. So. C. 251.

Cro

19 See Green v. Morse, 5 Me. 291; Foss v. Stewart, 14 Me. 312; McMahan v. Green, 34 Vt. 69; Parmlee v. Leonard, 9 Iowa, 131.

20 Everett v. Herritt, 48 Me. 537; Burton v. Calaway, 20 Ind. 469; Taylor v. Jones, 42 N. H. 25.

the judges of the court and the plaintiff, the whole of the proceedings being coram non judice."

21

Though an irregular execution is a protection to the officer when the court has jurisdiction, it is none to the parties who have sued it out; as, if an execution be issued before a judgment has been entered."

The vitality of an execution continues from the time it reaches the sheriff or other lawful officer's hands until the day when it is returnable, unless a supersedeas has been issued, and from the moment it is known to the officer the execution has lost all its protective virtue; and if the officer afterward proceed to execute the writ, he will be considered as a trespasser,24 but he will not be liable as such unless he actually knew of the existence of the supersedeas.25

3374. Executions may be considered as to their end or as to their object. 3375. Executions considered as to their end are either final or not final. An execution which is used to make the money due on a judgment out of the property of a defendant is called a final execution, because when once executed the object of the judgment has been obtained.

There is another kind which tends to an end, but is not absolutely final, as a capias ad satisfaciendum, by virtue of which the body of the defendant is taken to the intent that the plaintiff shall be satisfied his debt, etc.; the imprisonment of the defendant not being absolute, but until he shall satisfy the same, this is called an execution quousque.

3376. Executions considered as to the objects they are to act upon may be divided into two classes: those which are for the recovery of specific things, and those for the recovery of money.

3377. The principal executions to recover specific things are the habere facias seisinam, the habere facias possessionem, the retorno habendo, and the distringas. 3378. The writ of habere facias seisinam, or writ of seisin, is an execution used in most real actions, by which the sheriff is directed that he cause the demandant to have seisin of the lands which he has recovered. This writ may be taken out at any time within a year and day after judgment. It is executed in nearly the same manner as a habere facias possessionem, and for this purpose the officer may break open the outer door of a house to deliver seisin to the demandant.26

3379. The habere facias possessionem, or writ of possession, is an execution, used principally after a judgment in ejectment, in order to obtain the possession of the property recovered. The sheriff is commanded by this writ that without delay he cause the plaintiff to have possession of the land in dispute which is therein described; a fieri facias or a capias ad satisfaciendum for costs may be included in the writ; the duty of the sheriff in the execution and return of that part of the writ is the same as in a common fieri facias or capias ad satisfaciendum. In the execution of this writ the sheriff is required to deliver a full and actual possession of the premises to the plaintiff. For this purpose he may break an outer or inner door if required, and should he be opposed by force and violence he must raise the posse comitatus.27

The writ must be executed at the earliest practicable moment.28

21 The case of the Marshalsea, 10 Coke, 76; Allen v. Greenlee, 2 Dev. No. C. 370. But see People v. Warren, 5 Hill, N. Y. 440.

22 See Baldwin v. Whittier, 16 Me. 33; Young v. Bircher, 31 Mo. 136; Mower v. Stickney, 5 Minn. 397; Lathrop v. Arnold, 25 Me. 136.

23 Vail v. Lewis, 4 Johns. N. Y. 450.

25 Payne v. Governor, 18 Ala. N. s. 320.

24 Buffandeau v. Edmondson, 17 Cal. 436.

26 Comyn, Dig. Execution, E; Bacon, Abr. Habere Facias Possessionem; Watson, Sheriff 238; Bingham, Ex. 115, 252.

27 Watson, Sheriff, 60, 215; Bacon, Abr. Sheriff, N, 3.

28 Chapman v. Thornburgh, 17 Cal. 87.

3380. The writ of retorno habendo is an execution in replevin, which recites that the defendant was summoned to appear to answer the plaintiff in a plea, whereof he took the cattle of the said plaintiff, specifying them, and that the said plaintiff afterward made default, wherefore it was then considered that the said plaintiff and his pledges of prosecuting should be in mercy, and that the said defendant should go without day, and that he should have return of the cattle aforesaid. It then commands the sheriff that he should cause to be returned the cattle aforesaid to the said defendant without delay, etc.29 If the identical goods distrained are found in the hands of the tenant undisposed of and unincumbered, they may be taken by the sheriff upon the retorno habendo; if not, the sheriff may return an elongata, or, as it is called in law-French, eloigné, that is, that the goods have been removed out of the reach of the sheriff. When that return is made, the plaintiff may have a writ called a capias in withernam, by which the sheriff is commanded to take the defendant's own goods, which may be found in his bailiwick, and keep them safely (not to deliver them to the plaintiff) until such time as the defendant shall submit himself, and allow the distress to be taken. If the sheriff cannot execute the withernam, and is consequently obliged to return it nihil, there issue an alias, and then a pluries withernam, and if nihil be also returned to these, then follows a capias against the body of the defendant.30

3381. The writ of distringas is used sometimes to enforce a compliance of what is required of a party by a distress of his goods and chattels. In detinue, when judgment is rendered for the plaintiff, that "the said A B do recover against the said C D the goods and chattels aforesaid, or the sum of dollars, for the value of the same, if the said A B cannot have again his said goods and chattels, together with dollars, his charges and costs;" then there issues a writ of distringas which recites the judgment, and then proceeds as follows: "And hereupon the said sheriff is commanded that he distrain the said C D by all his lands and chattels in his bailiwick, so that neither the said CD nor any one by him do lay hands on the same, until the said sheriff shall have another command from our said court in that behalf, and that the said sheriff answer to our said court here for the issues of the same, so that the said CD render to the said A B the goods and chattels aforesaid, or the said sum of dollars for the value of the same; and in what manner the said sheriff shall have executed this the command of our said court he is commanded to make appear, etc."

3382. The principal executions issued for the purpose of recovering money are those which issue against the body of the unsuccessful party, and those which may be sued out against his goods, chattels, and land.

3383. The executions against the body are the capias ad satisfaciendum and the attachment.

3384. A capias ad satisfaciendum is a writ issuing out of a court of competent jurisdiction, in a cause where judgment has been rendered, directed to a proper officer of the court, commanding him to take the defendant, and him safely keep, so that he may have his body in court on the return day, to satisfy, ad satisfaciendum, the plaintiff.3

31

In point of form, the capias ad satisfaciendum must pursue the judgment, be tested on a general test day, unless otherwise provided for by statute, and it

29 2 Sellon, Pract. 168; Bacon, Abr. Replevin, E, 5.

30 See Woglam v. Cowperthwaite, 2 Dall. 68; Frey v. Leeper, 2 Dall. 131; Bradyll v. Ball, 1 Brown, Ch. 427; Hammond, Nisi P. 454.

31 The use of this writ has been greatly restricted in most of the states of the Union; in some, as in Pennsylvania, it can be issued only for torts, and in cases of fraud or concealment of property, in contracts.

should be sealed with the seal of the court, and signed, like other writs, by its clerk or prothonotary. It must be for the same sum as that for which judgment was given, unless a part of it has been since paid, or levied under a fieri facias, in which case it issues for the residue. If there are several defendants, it must issue against the whole of them.32 But there are many persons against whom it cannot be issued. In all cases the reason why these persons are privileged is the promotion of the public good, and not as a favor granted to particular persons. These are ambassadors, and other public ministers, and their servants; members of congress and those of the state legislatures are not liable to this process, eundo, morando, et redeundo, or going to, remaining at, or returning from the places to which they were called by their public duties. Parties, their attorneys, and witnesses in court, in order to give them that freedom required to attend upon their respective obligations there, are also protected from the operation of this writ, eundo, morando, et redeundo.33 In Pennsylvania, it has been considered that a state of civilization should protect women from the operation of this writ, and an act has been passed forbidding their imprisonment for debts on their contracts, where there is no fraud.

34

This writ is executed by taking the defendant in custody, and keeping him in close confinement, generally within the public or county prison provided for such purposes, from which he is not to be discharged except by due course of law; for if the sheriff permit the prisoner to go at large, it will be an escape, for which he will, in general, become liable for the debt, although the prisoner voluntarily return and surrender himself to prison before the return. day 35 But this confinement has been rendered less rigorous than formerly, in many of the states, by allowing certain prison bounds, or jail limits; and in some states the defendant is discharged by giving security to the plaintiff that he will apply for the benefit of the acts for the relief of insolvent debtors.

37

36

The effect of the capias ad satisfaciendum is to confine the defendant in the custody of the sheriff, or in the county jail, or to such other place appointed by public authority to receive such prisoner. The execution is considered, quoad him, as a satisfaction of the debt during the confinement of the debtor, but if he die in jail, the plaintiff may have execution of his lands and goods, by virtue of the statute 21 Jac. I, c. 24. If the plaintiff consent to discharge the defendant after he has been arrested under a capias ad satisfaciendum, though it be on terms which are not afterward complied with, or upon giving fresh security, which afterward becomes ineffectual, the plaintiff cannot resort to the judgment again, or charge the defendant's person in execution; and the discharge of one of several joint debtors extinguishes the judgment as to all the debtors, so that neither can afterward be taken or held in execution.38

32 Clark v. Clement, 6 Term, 526.

33 Broome v. Hurst, 4 Yeates, Penn. 124, n; 4 Dall. 387; Parker v. Hotchkiss, 1 Wall. Jr. C. C. 268.

34 Jacobs v. Tolman, 8 Mass. 161.

35 13 Johns. N. Y. 366; Dowdal v. Hamer, 2 Watts, Penn. 63; 8 Johns. N. Y. 98; Shewell v. Fell, 3 Yeates, Penn. 17; 4 Yeates, Penn. 47; Wheeler v. Hambright, 9 Serg. & R. Penn. 390. A distinction is made as to the responsibility of the sheriff, between_cases where the action is in debt and where an action on the case has been brought. In the former, if the jury find for the plaintiff, they must find for the whole debt and costs; but in the latter, the jury may find such damages as they think proper. Duncan v. Klinefelter, 5 Watts, Penn. 141; 4 Yeates, Penn. 17, 47.

36 Jacobs v. Tolman, 8 Mass. 161.

37 Sharpe v. Speckenagle, 3 Serg. & R. Penn. 465; Cooper v. Bigalow, 1 Cow. N. Y. 56, Freeman v. Rushton, 4 Dall. 214. See Hamilton v. Bredeman, 12 Rich. So. C. 464.

38 Ransom v. Keyes, 9 Cow. N. Y. 128; Yates v. Van Rensselaer, 5 Johns. N. Y. 364; Masters v. Edwards, 1 Caines, N. Y. 515; Bailey v. Kimbal, 1 N. Chipm. Vt. 151; McLean v. Whiting, 8 Johns. N. Y. 339. In South Carolina, the act of 1815 alters the common 329

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