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poses of execution within the same rules; recoverable by scire facias, by extent, or by information on the record itself;a and bind the property, real and personal, of the debtor, as in other cases of debts of record to the Queen.b
The Common Law Procedure Act, 1852, introduced some important alterations as to judgments. In the first place, it makes the judgment by default final in all actions where the plaintiff seeks to When judgrecover a debt or liquidated demand in money. Again, in all ment final. such actions the judgment is to award the amount to the plaintiff generally, and not as a debt or damages as before.d The Act, however, saves certain provisions of the 8 & 9 W. 3, c. 11.o With respect to verdicts obtained, whether in term,f or out of term, the successful party is entitled to execution in fourteen days, unless a Judge or the Court shall order it to issue at an earlier or later period with or without terms. In Ejectment, upon a finding for the claimant, judgment may be signed and execution issue within such Time of time, not exceeding the fifth day in term after the verdict, as the signing. Court or Judge before whom the cause is tried shall order; and if no such order be made, then on the fifth day in term after the verdict, or within fourteen days after such verdict, whichever shall first happen; and upon a finding for the defendant, judgment may be signed and execution issue for the costs at the same period.h The same Act also declares that it shall not be necessary Enrolment. before issuing execution upon any judgment to enter the proceedings upon any roll, but an incipitur thereof may be made upon paper, shortly describing the nature of the judgment, and judg ment may be thereupon signed, costs taxed, and execution issued: Provided, nevertheless, that if a formal entry on the roll be necessary for evidence or error, such entry may be made. This is inserted under the head ejectment in the Act, but seems to apply to all cases. The effect of a judgment in ejectment is not altered by this Act. There are also some very important alterations in the Revival of. same Act with respect to proceedings to revive. Its chief provisions are, that during the life of the parties execution may issue, without a revival of the judgment, at any time within six years. When revival is necessary, it may be done by a writ of Revivor, or with leave of the Court or a judge by suggestion. The writ is directed to the party and not to the Sheriff. If unexecuted, it does not remain in force for more than one year from its teste, unless renewed as directed by the Act. To revive a judgment less than ten years old, the writ is allowed without any rule or order; if more than ten, not without a rule or order; if more than fifteen, not without a rule to show cause. The death of either party between Death after the verdict and the judgment, cannot be alleged as error, so as such verdict. judgment be entered within two terms after such verdict.m
What it is.
Executio est fructus et finis legis. "Execution in our law (according to Dalton) signifieth the last performance of an act, as of a judgment, statute, or the like, and is of two sorts; one final, another with a quousque, &c. An execution final is when the defendant's lands are extended, or his goods sold and delivered to the plaintiff, who, accepting this in satisfaction, ends the suit. An execution with a quousque, and not final, as in the case of a capias ad satisfaciendum, where the body is taken to the intent to satisfie the plaintiff; but is no satisfaction but a pledge for the debt. Neither is the party's imprisonment absolute, but until he doth satisne or agree with the plaintiff."a Sir W. Blackstone describes it as a "putting the sentence of the law in force." The word is generally used to signify, by a figure of speech, a judicial writ grounded on the judgment of the Court whence the writ issues. No one seems to have described its rise, progress, properties, and peculiarities so faithfully as the Lord Ch. Baron Gilbert; and from that rich repository of learning it is my intention to draw most abundantly. Some doubt the authenticity of the Law of Executions bearing his name. The book is one of great intrinsic merit, it has received the sanction of the ablest men that ever adorned the judicial seat, and it bears, undoubtedly, on its own pages the impress of his clear and vigorous understanding. Lord Holt is reported to have said, "If we see one against whom there is a judgment of this Court walk in Westminster Hall, we may send our officer to take him up, if the plaintiff desire it, without a writ of execution." b That the Court may execute a judgment, without a writ of execution, at least in W. Hall, is a proposition I am not prepared to deny; yet the possession of this supposed power is one thing, the exercise of it another; and except that our knowledge of the claim to it may lead us to a more just notion of what execution in the abstract means, the decision (if truly reported, and true to the fullest extent) seems to be of little or no practical value. "The antient executions (says Gilbert) are to be distinguished, as they were in the king's Court, and in the Courts of inferior lords. In the king's Court they could levy the money itself upon the party against whom the judgment was given; in the lord's Court they could only levy distresses, a pain to force obedience to the lord's commands; and whether they were justly levied or not, was to be reconsidered again in the king's Court. For the lord only taking the distress as a pain, and not being able to sell without special custom, it could be no prejudice to such execution to reconsider the reasonableness of such caption, by putting in other pledges.e But in the king's Court they did not take goods as a
a Dalt. Sh. ch. 24.
b Anon. 7 Mod. 52.
e Gilb. Exon. 1.
d Dalt. ch. 111; Keilw. 106.
e Kitch. 226.
mere pain to make the party appear, as they did in the Court below.a 1. Because the king's Court immediately altered the property, which the lord's could not; and the reason why the lord's could not was, that when the lord commanded the party to recover he was subject to a writ of false judgment, and therefore he himself was to have the custody of such goods, in order to return. them in case it was recovered. 2. If on the king's writ, they should only have taken the goods as a pledge, on the return, that pledge would have been forfeited to the king, though they were not to the lord in the Court below; and on such forfeiture the goods must de gratiá have been given to the party for satisfaction, if they had not been immediately levied to the party's use, for such forfeitures were not re-examinable as in the lords' Courts, and therefore created a forfeiture immediately. 3. The judgment was that the plaintiff recuperet the money adjudged to him, and therefore the best and most direct way of levying the money was by bringing the money itself into Court for the use of the parties. In the king's Court, between party and party, the execution was only upon the goods, because the debtor was trusted only upon his personal security, and pledges were taken on such contracts by other personal goods, as pledges, or by means of personal security, as bodies; and the judgments being in pursuance of the contract, were only to recover a personal thing. But in the king's case, an execution issued, not only against the goods and chattels, but against the lands, and therefore they considered the debtor, not merely as bound in person, but as a feudatory, who held mediately or immediately from the king, and therefore, holding what he had from the king, he was from thence to satisfy what he owed to the king. And being considered as public treasure it was not to be lost; if the subject had any thing, they first tried twice to levy on his personal estate. before they seized the lands. It is generally said, in the books, that there was only a lev. fa. and a fi. fa. for the subject, in the case of an execution, which is true; for it is plain that the capias and elegit comes in by the sta→ tutes.d
But at common law they awarded execution sometimes Writs of by the words of habeas denarios, facias denarios, fieri facias dena execution at rios, levari facias denarios; and all these forms were used at first indistinctly, as words tantamount to the same thing! this appears even in the king's case, by the several forms yet extant on record; but afterwards they began to distinguish the writ into two several forms, viz. the fi. fa. and the lev. fa., and confined the writs to be used in distinct cases. 1st. The levari was in the Courts below, Levari for there they could not word it by a fieri in process, because they could not alter property in the writ; and therefore it was a vain thing to conceive a writ in such a manner as could not be exe
cuted; and if there was a sale, as sometimes there was, by a grant from the king, or now by prescription; yet such grants coming in after the process were settled in the inferior Courts; the levari is the form of the execution, and they have no fi. fa. But, however, that the goods might not be taken as a pain without any relief to the subject, there is a writ de exec. judicii, on which writ the Sheriff has authority to sell the distresses he has taken on the levari, or to take and sell the goods of such recovery; and the reason of this writ was to remedy any collusion between the Sheriff and the recoveree, or the inferior lord and recoveree; for when they had taken the goods, they would either keep or restore them as they saw cause, and make the execution subservient to their own benefit, and not, as it was intended, a pain to make the party perform the judgment; and for this reason the writ de fi. fa. exec. was granted to compel the Sheriff to make execution of the goods he had in his hands, and the judgment having given him authority to levy, the writ gives him power to sell what is levied; but if there be no such judgment he must return that on the alias and pluries; for the writ is not judicial or issuing from any record, but is an original writ, which gives him authority to execute such judgment by sale. There was the same sort of writ at common law, which was called a si recognoscat, which was, where there was a recognizance in the Sheriff's Court, that it should be levied de bonis et catallis, and thereby give authority to sell, which were the words the levari made use of in the process of their Court. In the alias the phrase was fi. fa. exec. juxta ten. mandati nostri; and sometimes they had an original process by distringas, which was indifferently made use of with the levari; but the distringas being the king's writ, if the money was not paid the goods were forfeited, and therefore they had a venditioni exponas; and though Fitzherbert puts a quære on it, yet it seems to be law; because on every distringas on the writ of the king, if the matter was not performed for which the distringas was made, the goods were forfeited, and they did not in this writ, as in the ancient process of the king, make use of the words distringas, levari, et fieri.
"2ndly, the levaria in the Courts above was either upon a recognizance or in the king's process; the levari was particularly distinguished upon the recognizance, because the form of the recognizance was that it should be levied de bonis et catallis, terris et tenementis, ad quascunque manus devenerunt, and therefore the particular words levari are chosen upon such recognizance because the words fieri would not have extended to the lands as well as the goods, since he was not to alter the property of the lands themselves on such process, but only to levy it out of the profits. In
a Cro. Jac. 450; Dy. 306; Plow. 441.
Of the goods and chattels, lands
and tenements, into whosesoever hands they come; F. N. B. 593, 594,
the king's case the first process runs by way of habeas, which was Execution one of the words anciently used in executions, and they chose this for the word, which was an expression of a summons to give notice to have the money, and likewise gave authority to the Sheriff to levy it, that the debtor might not make away the goods to defraud the king; for by Magna Charta the land of the debtor could not be seized nor his security sued, if there were goods and chattels of the principal to satisfy. In case of the king the second process was a levari, and they made use of this word because the process was to run not only to the goods but on the profits of the land itself, and herein likewise they inserted the capias on the person, because it appeared on the Sheriff's return on the summonitor's process that he had no goods to satisfy the debt; and in that case the body was liable by the prerogative of the king. For though in a private case the body was not liable to satisfy the debt, because the king had a right to the service of his body, yet when it was for the sake of the public, as for embezzling the public treasure, the body was liable. The third process in behalf of the crown was extending the lands: for the lands themselves being held mediately or immediately from the king, were as much subject to the king's demands by the judgment of his Court as if there had been a reservation on the original tenure, and therefore bound the lands from the time of the record of such debt before the execution issued; for if they had not determined that the record would have bound the lands themselves as firmly as if it had been in the feudal patent, then it would have happened that the subject, by an alienation of his land, might have defeated the king's execution, which must frequently happen, since the king was to give notice before he could seize the land itself.
3rdly, having thus considered the levari, the last thing to be Fieri facias. mentioned is the fi. fa. upon the judgment at the party's suit; and here the words fi. fa. were chosen to distinguish this sort of execution, because it was only de bonis et catallis, and not to be raised from the profits of the lands themselves; and the words fi. fa. in the several ancient sorts of executions were the properest to be made use of on a judgment against the party, for the goods only were liable to an execution, and from henceforward they never sent execution against the goods by the words levari, but on the fieri only, and the word levari on the bonis et catallis became obsolete, unless in the case of a si recognoscat, where, for the reason above-mentioned, it remains till this day. And Westm. 2, c. 18, which gave the elegit, having mentioned the election to be on the fieri facias, has affirmed this distinction, and pinned down the difference then taken, and has made the fieri facias a specific writ for an execution on the judgment, and the levari for the recognizance. But the levari remains for the recognizance notwithstanding the wording of the statute; because the levari is to charge the profits of the land as well as the goods and chattels, and therefore process on the recognizance could not be by fi. fa. only. Having thus considered the nature of the ancient executions, we come now