The usual returns to a writ of capias ad satisfaciendum are that the sheriff has taken the defendant, whose body he has ready, formerly made in Latin cepi corpus; or that the defendant is not to be found in his bailiwick, non est inventus. On the latter return the plaintiff may sue out an alias capias into the same, or a testatum in a different county; or at his choice he have any other writ of execution suitable to the case, as, for example, a fieri facias.

may

In case of an escape or a rescue, though the sheriff be liable, because he ought to have taken the posse comitatus, still the plaintiff is not bound to look to the sheriff, because the latter may be insolvent; the plaintiff may, therefore, sue out another execution, for the defendant will not be allowed to take advantage of his own wrong.

3385. An attachment is a writ commanding the sheriff to arrest a particular person who has been guilty of a contempt of court, and to bring the offender before the court. It issues whenever a party has been ordered by a rule of court to perform a certain act, and he has omitted to perform it; as, where he has been ruled to pay costs or to perform an award. On the service of the attachment, the party is taken into custody, and is confined in prison until he afterward obtains his discharge in due course of law.

3386. The executions against goods, chattels, and land are the fieri facias, the venditioni exponas, the levari facias, and the elegit.

3387. The most common of all writs of execution is the fieri facias." This writ is so called, because, when writs were in Latin, the words directed to the sheriff were quod fieri facias de bonis et catallis, etc., that you cause to be made of the goods and chattels, etc. The foundation of this writ is a judgment for debt or damages, and the party who has recovered such judgment is generally entitled to it, unless the plaintiff is delayed by a stay of execution, which the law allows in certain cases after the rendition of the judgment, or by his own agreement with the defendant, or by proceedings in error.

This subject will be examined with regard to the form of the writ, its effect, the manner of executing it, what goods may be seized and sold under it, the effect of seizure of personal property, the seizure and sale of land under an execution, and the return.

3388. The writ of fieri facias is issued in the name of the government, and directed to the sheriff, (in the United States court to the marshal,) commanding him that of the goods and chattels (and where the lands are made liable for payment of debts, of the lands and tenements) of the defendant, therein named, in his bailiwick, he causes to be levied as well a certain debt of dollars, which the plaintiff, (naming him,) in the court of , (naming it,) recovered against him, as dollars, like money, which to the said plaintiff were adjudged for his damages, which he had by the detention of the said debt, and that he (the sheriff) have the money before the judges of the said court, on a day certain, (being the return day therein mentioned,) to render to the said plaintiff his debt and damages, aforesaid, whereof the said defendant is convict. It must be tested in the name of the officer, as directed by the constitution or laws: : as, "Witness, A B, chief justice, etc., the day of Domini, one thousand eight hundred and fifty one."

Anno

It must be signed by

law, so that a plaintiff may discharge a defendant in custody under a capias ad satisfaciendum, for a time, with his consent, without impairing his rights, and he may retake him in execution. Eggart v. Barnestine, 3 M'Cord, So. C. 162. In Louisiana, when the parties agree to a temporary discharge, the defendant may be retaken. Abat v. Whitman, 7 Mart. N. S. La. 163; Martin v. Ashcroft, 8 Mart. N. s. La. 315.

39 For the history of this writ, see 2 Reeves, Hist. Eng. Law, 187; Bacon, Abr. Execution, E, 4.

40 Coke, Litt. 290, b.

the clerk or prothonotary of the court, and sealed with its seal." The amount of the debt and costs must be indorsed on the writ.

42

The execution, being founded on the judgment, must of course follow and be warranted by it; hence, when there is more than one plaintiff or defendant, it must be in the name of all the plaintiffs against all the defendants, if living.

When it is against an executor or administrator for a liability of the testator or intestate, it must conform to the judgment and be only against the goods and chattels, or other property, of the deceased, unless the defendant has made himself personally liable by his own false pleadings, or by waste, in which case the judgment is de bonis testatoris si, et si non de bonis propriis, and the fieri facias must conform to it.43

46

3389. At common law the writ bound the goods of the defendant, or party against whom it was issued, from the teste day, by which must be understood that the writ bound the property against the party himself and all claiming by assignment from or by representation under him," so that a sale by the defendant of his goods to a bona fide purchaser did not protect them from the fieri facias tested before, although not issued or delivered to the sheriff till after the sale. To remedy this manifest injustice the statute of frauds was passed, the principles of which have been adopted, in this respect, in perhaps all the states. It enacts "that no writ of fieri facias, or other writ of execution, shall bind the property of the goods of the party against whom such writ of execution is sued forth but from the time such writ shall be delivered to the sheriff, or under sheriff, or coroner, to be executed; and for the better manifestation of the said time the sheriffs, their deputies or agents, shall, upon the receipt of any such writ, (without fee for doing the same,) indorse upon the back thereof the day of the month and year whereon he or they received the same." 47

When issued against a person who had died between the teste day and return day of the writ, it had, by the relation back to the teste, the binding operation upon his personal property that the executor was not entitled to it for the general payment of his debts.48 In the United States the statutes for the equal distribution of intestates' estates have, perhaps, everywhere prevented this unjust preference.

Though the goods are bound from the time the execution comes into the sheriff's hands, the property in such goods is not altered, but continues in the defendant till execution executed.49

Another of its effects is the protection which it gives to the officer while acting according to its exigencies. Being the delegated agent of the court, if the court has jurisdiction to issue the fieri facias, the sheriff or officer to whom it is directed and who is bound to execute it, and all his deputies acting under it, are protected; but when the court has no jurisdiction and the judges are them

An execution issued without a seal, from a court having and using a seal, is void, and of course all proceedings under it are void also. Beal v. King, 6 Ohio, 11. But if it be sealed, although it is not signed by the clerk, it is valid.

42 2 Saund. 72, h, k; Bingham, Executions, 186.

43

Bacon, Abr. Execution, C, 4; Swearingen v. Pendleton, 4 Serg. & R. Penn. 394; Todd v. Todd's Executors, 1 Serg. & R. Penn. 453; Comyn, Dig. Pleader, 2, D, 15.

44 Payne v. Drewe, 4 East, 538.

45 Croke, Eliz. 174; Baskerville v. Brocket, Croke, Jac. 451.

46 29 Car. II, c. 3, s. 16.

47 State v. Blundin, 32 Mo. 387; Russell v. Lawton, 14 Wisc. 202; Gott v. Williams, 29 Mo. 461.

49 Den v. Hilman, 2 Halst. N. J. 180.

49 Folsom v. Chesley, 2 N. H. 432; Churchill v. Warren, 2 N. H. 298; Bates v. Moore, 2 Bail. So. C. 614.

selves trespassers, the officer is subject to an action of trespass as if he had no writ.50

53

52

3390. The sheriff has a right to enter into the premises of the defendant to search for his goods, if he can do so without breaking an outer door of the house; 51 nor can a window be broken for that purpose. He may enter the house if it be open, and being once lawfully entered, he may break open an inner door or chest without even a request to open it, though in general it is more prudent to make such request, for the purpose of seizing the goods of the defendant. He may break an outer door of a barn or of a store not connected with the dwelling-house, and forming no part of the curtilage. The sheriff is also authorized to enter the house of a stranger for the purpose of executing his writ, provided the defendant's goods are there; but his entry will be justifiable only on the event of the goods being there, for if he should be mistaken in this respect he will be a trespasser.55 But though authorized to enter a stranger's house, he cannot, of course, break open an outer door.

56

54

When the goods are found the officer may seize them, and the taking of a part of them in the name of the whole is a good seizure of all. The seizure is complete as soon as the goods are in the power of the officer," and although the sheriff may return that he levied on personal property, if it was not in his view nor taken into custody, it is no levy as to subsequent judgment creditors.58 Still, the indorsement on a fieri facias of levy on goods which the sheriff had levied upon by virtue of a former execution will be considered a good levy under the second or last execution, because the goods so levied upon are considered as in his custody, and of course within his power. To render the levy perfect the articles seized should be designated in the execution, or in a schedule annexed, and the sheriff should take possession within a reasonable time in such a manner as to apprise everybody of the fact of his having taken them in execution. But if the defendant dispense with an actual seizure for his own benefit, the levy as to him will be valid.62

60

61

59

The fieri facias may be executed at any time before and on the return day, but not on Sunday where it is forbidden by statute.

63

If there is reasonable doubt whether goods indicated are the property of the debtor, or if they are claimed by a third party as his, the sheriff may demand a bond of indemnity from the creditor before he seizes them.64

Where the debtor is a joint owner of a chattel the sheriff may seize the whole, though he can sell only the debtor's undivided interest.65

The officer is required to levy on sufficient property to satisfy the execution, and in doing this he must exercise a reasonable discretion and make allowance

50 Barker's widow v. Braham, 3 Wils. 376.

52 Cooke's Case, W. Jones, 429.

54 Hagerty v. Wilbee, 16 Johns. N. Y. 287.

56 Lewis v. Smith, 2 Serg. & R. Penn. 142.

67 Wood v. Vanarsdale, 3 Rawle, Penn. 401;

51 Semayne's Case, 5 Coke, 92.

53 1 Sid. 186; 1 Kebl. 689.
55 Comyn, Dig. Execution, C, 5.

Bullitt v. Winston, 1 Munf. Va. 269;

Lloyde v. Wykoff, 6 Halst. N. J. 218. Actual manual possession is not necessary. Very v. Watkins, 23 How. 469.

58 Lowry v. Coulter, 9 Penn. St. 349.

59 Watmough v. Francis, 7 Penn. St. 206.

60 Barnes v. Billington, 1 Wash. C. C. 29.

61 Wood v. Vanarsdale, 3 Rawle, Penn. 405; Lewis v. Smith, 2 Serg. & R. Penn. 142; 1 Whart. Penn. 116, 337; 1 Wash. C. C. 29.

62 Troville v. Tilford, 6 Watts, Penn. 468. See, as to what constitutes a sufficient levy, Burchard v. Reese, 1 Whart. Penn. 377; Wood v. Vanarsdale, 3 Rawle, Penn. 401; McCormick v. Miller, 3 Penn. 230.

63 Chase v. Gilman, 15 Me. 64; Devoe v. Elliott, 2 Caines, N. Y. 243.

Smith v. Cicotte, 11 Mich. 383.

66 Bernard v. Hovious, 17 Cal. 541; Caldwell v. Auger, 4 Minn. 217.

67

for the probable depreciation of the property at a forced sale, together with all charges. The officer may levy on any property of the debtor that he sees fit," unless there are statute provisions requiring him to take property designated by the debtor, if it is sufficient. The officer must use reasonable diligence to find goods of the debtor to levy on, and is justified in returning nulla bona if he cannot find anything. Whether reasonable diligence has been used will be a question of fact for the jury.

68

3391. In general, the sheriff may seize and sell all those articles which he can find belonging to the plaintiff and which are choses in possession, except such as are exempted by the common law or by statute. The common law was very niggardly of these exceptions; it allowed only the necessary wearing apparel, and it was once holden that if a defendant had two gowns, the sheriff might sell one of them. In modern times, with perhaps a prodigal liberality, a considerable amount of property, both real and personal, is exempted from executions by the statutes of several of the states. It is not the time nor the place here to consider whether such laws are most for the benefit or injury of the poor and honest man."

69

70

When the defendant's goods are pawned, or demised or letten for years, or they have been distrained, or in any other way are subject to a lien in the hands of a third person, the sheriff can only seize and sell the right of the defendant in such goods, subject to the rights of such third person.

In general, choses in action cannot be taken in execution;" but in some of the states power is given to the sheriff under a peculiar process authorized by statute to attach the rights of the defendant to such choses in action; as, where a debt is due by a third person to the defendant, the defendant's rights may be attached, and the third person is made a garnishee.

After having seized the defendant's goods, the sheriff should keep them in his possession till they are sold; for if they are left in the possession of the defendant, it will in general be considered a badge of fraud, and another judgment and execution creditor may seize them, and the first levy will be invalid.73 And if the first levy be made merely to keep off other creditors, this being against the policy of the law, it will not protect them from another execution,74 and a direction to "stay proceedings" destroys the lien as it respects other creditors and enables them to gain a preference.75 Indeed, any act which shows that the plaintiff has not a continuing mind to cause the writ to be executed will, as between himself and third persons, or other creditors of the defendant, discharge the property levied upon from his lien.76 The lien will also be lost by taking a replevin bond."

66 Griffin v. Ganaway, 8 Ala. N. s. 625. 67 Woodward v. Hopkins, 2 Gray, Mass. 210. 68 Barnes v. Thompson, 2 Swan, Tenn. 313; Russell v. Lawton, 14 Wisc. 202.

69 Comb. 356.

70 In most of the states, the homestead of the judgment debtor, not exceeding a certain quantity or value, is exempt from execution. The quantity varies from forty to two hundred acres, and the value from five hundred to five thousand dollars.

"Rhoads v. Magonigal, 3 Penn. St. 39; Crandall v. Blen, 13 Cal. 15.

"In Pennsylvania, it is not the practice to remove goods levied upon; and the lien of personal property is generally held to continue, though the goods are left in the hands of the defendant, unless fraud is proved. Swift v. Hartman, cited 2 Yeates, Penn. 435; Levy v. Wallis, 4 Dall. 167; Chandler v. Phillips, 4 Dall. 213. But see Cowden v. Brady, 8 Serg. & R. Penn. 510.

73 Lewis v. Smith, 2 Serg. & R. Penn. 142.

74 Corlies v. Stanbridge, 5 Rawle, Penn. 286.

75 Hickman v. Caldwell, 4 Rawle, Penn. 280; Commonwealth v. Strembeck, 3 Rawle, Penn. 341.

76 Howell v. Atkyn, 2 Rawle, Penn. 282; Weir v. Hale, 3 Watts & S. Penn. 285; Mentz v. Hammon, 5 Whart. Penn. 150.

"Harrison v. Wilson, 2 A. K. Marsh. Ky. 547.

3392. The next step to be taken by the sheriff is to advertise the goods levied upon for sale at public auction, for this is the only lawful way of disposing of them; he cannot keep them himself and pay the plaintiff's debt, nor deliver them to the plaintiff in satisfaction of his execution; the plaintiff may, however, buy them as any other person at their value.78

The sheriff must use a reasonable discretion in the sale of the goods; it seems that if a very inadequate price be offered for them, he should not sell them, but ought to return that they remain in his hands unsold for want of buyers, which is the proper return when he has had no bid. The fieri facias being then out of his hands, he must wait until he shall be authorized to sell them by another writ, a venditioni exponas, the nature of which will hereafter be explained; and under this writ he will be obliged to sell at any price he can get.79

The sale by the sheriff passes only the title which the judgment debtor had in the goods at the time the lien attached; 80 it does not divest the title of other parties or paramount liens.81

If the sheriff neglects to advertise and sell the property within the time prescribed by statute, he loses his lien upon it.82

3393. Although the seizure of personal property does not change or alter the title to it, and it remains in the defendant, as has already been observed, yet it has the effect of releasing the lands of the debtor with regard to third persons. If, therefore, a judgment creditor who has the first lien on the lands of his debtor issue an execution and levy on the personal property of the defendant sufficient to satisfy his execution, he cannot afterward abandon that levy and claim to be paid out of the proceeds of the land.83

3394. By the common law, lands were not liable to be sold for the payment of debts; it was against the policy of the feudal law to take the landed estates out of the hands of the aristocracy, and the same rule yet prevails in England. There the remedy given to a judgment creditor is a sequestration of the profits of the land by writ of levari facias, or the possession of one-half of the land by writ of elegit, or, in certain cases, of the whole of it, by extent. In these cases the creditors hold the land until, out of the profits or rents, their claims are fully satisfied. Probably to protect British creditors a statute was passed by the British parliament, making lands and hereditaments within the English colonies chargeable with the debts, and subject to execution as personal estate. The practice of selling real estate under execution having thus commenced, it has been firmly established by various acts of the state legislatures in most of the states of the Union, under certain checks and salutary regulations, to prevent abuse and unnecessary sacrifices.

84

One of the most prominent and prevalent of these regulations is to require the creditor to resort in the first instance to the personal estate as the proper and primary fund, and to the real estate only after the personal property shall have been exhausted, and found insufficient to satisfy the claim.85

Another restraint is to require that the estate shall be appraised, and if an

78 Bacon, Abr. Execution, C, 4. But the sheriff cannot. Robinson v. Clark, 7 Jones, No. C. 562.

79 Keightley v. Birch, 3 Campb. 521; Young v. Smith, 23 Tex. 598.

80 Boggs v. Hargrave, 16 Cal. 559.

82 Plaisted v. Hoar, 45 Me. 380.

81

Gazelle, 1 Sprague, Dist. Ct. 378.

83 Hunt v. Breading, 12 Serg. & R. Penn. 37; Taylor's Appeal, 1 Penn. St. 393; Duncan v. Harris, 17 Serg. & R. Penn. 436.

84 5 Geo. II, c. 7, A. D. 1732.

85 This is the case in Delaware, Illinois, Indiana, Kentucky, Michigan, Mississippi, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Oregon, Minnesota, Alabama, Louisiana, and South Carolina. There are some restrictions in the other states, but the tendency of legislation is to give no special privileges to the real estate.