Privilege from arrest. Warrant, arrest, return, &c. Alias Ca. Sa. Victoria, &c. to the Sheriff of W. greeting: We command you, as before we have commanded you, that you take, &c. Pluries Ca. Sa. Victoria, &c. to the Sheriff of W. greeting: We command you, as oftentimes we have commanded you, that you take, &c. Testatum Ca. Sa. "to our Victoria, &c.: Whereas by our writ we lately commanded our Sheriff of W. that he should take C. D. if he should be found in, &c. [as in original] and our said Sheriff of W. on, &c. returned to us [or justices, &c." as the case may be] that the said C. D. was not to be found in his bailiwick: Whereupon, on behalf of the said A. B., it is testified in our said Court that the said C. D. wanders up and down and secrets himself in your county, thereupon we command you to take the said, &c. [ut suprà.] Ca. Sa. into Lancashire. Victoria, &c. to the Chancellor of our county palatine of Lancashire or his deputy greeting: We command you that by our writ under the seal of our said chancellor to be duly made, and to be directed to the Sheriff of our said county, you cause the said Sheriff to be commanded that he take C. D. if he may be found in his bailiwick, and him safely keep so that you may have his body before, &c. [ut suprà.] Victoria, &c. Testatum Ca. Sa. into Lancashire. Whereas we lately commanded our Sheriff of W. that, &c. and our said Sheriff returned to us [or " to our justices or barons "] at Westminster, that the said C. D. was not found in his bailiwick: Whereupon, &c. The persons privileged from arrest on mesne process have already been enumerated, and as a general rule they enjoy the same privilege on final process, except attorneys, infants (b), bail (c), and femes covert. Note, if a ca. sa. be issued against baron and feme the Court will not discharge her (if taken) unless she has no separate available property (d). As to the warrant to execute the writ-the mode of making the arrest-breaking open doors-returns, and the like, it would be vain repetition to do more than simply refer to the same (b) Daw v. Clarke, 1 C. & M. 860. (c) Goodchild v. Chaworth, 2 Str. Rep. 1139. (d) Sparkes v. Bell, 8 B. & C. 421; Moses v. Richardson, ibid. 421; see Lockwood v. Salter, 5 B. & Adol. 303. heads under the capias already described, for the same law in general applies to each. A Sheriff's officer, however, is not liable to the penalties of Debtor may 32 Geo. 2, c. 28, s. 1, for carrying the debtor to prison within be taken to twenty-four hours; the statute applies to arrests on mesne mediately. process only (e). prison im He must raise the posse comitatus and consequently a return Posse comiof rescue is bad. The Sheriff should not receive the debt and costs, for if he does, and before payment over to the plaintiff liberate him, it is an escape (f). If the ca. sa. be once executed (as before observed) no other execution can issue against the defendant for the same debt, for tatus. Payment to Sheriff of debt no payment to the plaintiff. If once executed no other writ can issue, it operates as a satisfaction of the debt (g); if he dies, however, execution against his lands or goods may issue in the same excpt, &c. manner as if no ca. sa. had issued (h). tween others and plain But although the effect of the arrest is a satisfaction of the No satisfacdebt as regards the person arrested, yet it is no actual satis- tion as befaction so as to bar the plaintiff from taking out execution against others liable to the same debt and damages (i); nor is it a satisfaction of the judgment when the ca. sa. is set aside for irregularity (k). tiff. If the ca. sa. be not executed, the plaintiff may, upon a non Different est inventus returned, have an alias and pluries ca. sa. into the writs. same county, or a testatum ca. sa. into a different county (l), or he (e) Evans v. Atkins, 4 Term Rep. 555. (f) See post," Action for Escape," and cases there cited, to which the practitioner is especially invited to refer. (g) Cohen v. Cunningham, 8 Term Rep. 123; Beavon v. Robins, 8 D. & (h) 21 Jac. 1, c. 24. (i) Foster v. Jackson, Hob. 59. (1) Allen v. Allen, 2 W. Bl. 694. Return of cution. cuted. Again, if the fi. fa. has been executed, no ca. sa. can issue until after the fi. fa. has been returned. Writs of execution are never returned by the Sheriff, unless writs of exe- he be ordered or ruled so to do; for the Sheriff may justify under these writs without showing a return of them, but in justifying under a writ on mesne process he must show its return (m). Cannot re cute writ An Under-sheriff cannot refuse to execute a ca. sa. until his fuse to exe- fees are paid; after payment he might be indicted for extortion, or before payment be liable in damages for not doing his duty (n). until fees are paid. Action for fees. An action of debt lies for his fees for executing this writ (0). Change in troduced by the imprisonment for debt bill. Form of SECTION X. FIERI FACIAS. This writ has undergone great change in form and substance by the recent "Act for abolishing Arrest on Mesne Process in Civil Actions, except in certain cases; for extending the Remedies of Creditors against the Property of Debtors; and for amending the Laws for the Relief of Insolvent Debtors in England (a)." By section 20 of the same statute, the judges are empowered writs since. to order new or altered writs to issue, as may be deemed necessary or expedient for giving effect to the provisions of the act; it is to be regretted that the judges have not as yet thought fit to exercise that power by publishing new or altered writs, for it is extremely doubtful whether any other person can alter the writ so as to carry the provisions of the statute into effect, add to this the extreme difficulty of doing so, as will hereafter appear. The words immediately applicable hereto are, “and that any existing writ, the form of which shall be in any manner (m) 5 Co. 90; Freeman v. Bluet, 12 Mod. 849; 1 Salk. 409. (n) Salk. Rep. 331; Noy, 75; vide post "Extortion." (o) Jayson v. Rash, Salk. Rep. 209. (a) 1 & 2 Vict. c. 110. altered in pursuance of this act, shall nevertheless be of the same force and virtue as if no alteration had been made therein, except so far as the effect thereof may be varied by this act." In the absence, then, of judicial precedent for the writ, the following precedent is suggested : Writ (b). Victoria, &c. to the Sheriff of W. greeting. We command you that [you omit not by reason of any liberty in your bailiwick, but that] you cause to be levied of the goods, chattels, money, bank-notes, cheques, bills of exchange, promissory notes, bonds, specialties and other securities for money, in your bailiwick, of C. D., the sum of £ which, in our Court before us [or in C. P. " before our justices," or in E. P. " before the barons of our Exchequer,"] at Westminster, were awarded to A. B. for his damages which he sustained as well on occasion of the not performing certain promises as for his costs and charges by him about his suit in that behalf expended; whereof the said C. D. is convicted as appears to us of record, and have you that money before us [or "before our justices,” or “barons,"] at Westminster immediately after the execution hereof, to render to the said A. B. for his said damages, and have you then there this writ. Witness, &c. Alias Fi. Fa. (c). Victoria, &c. to the Sheriff of W. greeting. We command you, as before we have commanded you, that, &c. Pluries Fi. Fa. Victoria, &c. to the Sheriff of W. greeting. We command you, as oftentimes before we have commanded you, that, &c. Testatum Fi. Fa. (d). Victoria, &c. to the Sheriff of W. greeting. Whereas by our writ we lately commanded our Sheriff of W. that he should cause to be levied of (b) As to the signing, sealing, return, indorsements, &c., vide ante, p. 317. With regard to the form of the writ, except as to the subject-matter seizable under it, perhaps no valid reason for altering it can be assigned, for although cause to be made" was said to mean by sale, Armistead v. Philpot, Dougl. 219, yet this was not universally true; Woolley v. Jennings, 5 B. & Cr. 135; the word "levied," however, seems now more appropriate than "made." With regard to the additional words after goods and chattels, it would be desirable if practicable to adopt some one generic term, as "effects" or "property," but as at present advised, I fear there is none sufficiently Y comprehensive to contain under it all matters leviable under the new statute; è majori cautelâ, therefore, the form suggested, should be used until the judges think proper to exercise the power given them of framing and issuing new writs. With regard to the non omittas clause, vide ante, p. 48; as to forms of writs in debt, trespass, &c., vide ante, p. 317, which may readily be adapted to a fieri facias. (c) As to the sealing, signing, returning, indorsing, &c., vide ante, 317. (d) As to sealing, &c., suprà. A testatum fi. fu. is grounded upon a fi. fa., but such an irregularity may be cured by the subsequent production of a fi. fa., Brand v. Mears, 3 T. R. 388. What may be taken under a fi. fa. chattels. the goods, chattels, &c. in his bailiwick, of C. D., which in our Court before us at Westminster were awarded to A. B. for his damages which he sustained as well on occasion of not performing certain promises made by the said C. D. to the said A. B. as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. was convicted, as appeared to us of record, and that he should have that money before us at Westminster immediately after the execution thereof, to render the said A. B. for his damages aforesaid. And our said Sheriff of W. returned to us that the said C. D. had no goods, chattels, &c. in his bailiwick whereof he could cause to be made the damages aforesaid, or any part thereof. Whereupon on the behalf of the said A. B. it is testified in our said Court that the said C. D. hath goods, chattels, &c. sufficient within your bailiwick, whereof you may cause to be levied the damages aforesaid, or any part thereof. Therefore we command you that you cause to be levied of the goods, chattels, &c. in your bailiwick of the said C. D. £ for the damages aforesaid, and have that money before us at Westminster immediately after the execution hereof, to render to the said A. B. for his said damages, and have you then there this writ. Witness, &c. Fi. Fa. into Lancashire (e). Victoria, &c. to the Chancellor of our county palatine of Lancaster, or his deputy, greeting: We command you that by our writ, under the seal of our said county, to be duly made, and to be directed to the Sheriff of our said county, you cause the said Sheriff to be commanded that he cause to be levied of the goods, chattels, &c., in his bailiwick of C. D., &c. On referring to the writ itself, it will be seen what can be taken in execution under it; namely, goods and chattels, that is to say, all personal chattels belonging to the defendant (except Goods and wearing apparel actually in use) (ƒ); all goods pawned or leased, subject to the right of the pawnee or lessee (g); cattle, corn in the barn, household stuff, plate, &c. (h); utensils fixed by the defendant for the purposes of his trade, such as coppers, vats, and the like (i); with respect to corn and other articles, which are raised by the industry of man, by the 56 Geo. 3, c. 50, s. 1, it is enacted, after reciting that it was expedient that the execution of legal process should be so regulated as to be consistent with good husbandry, and the effect and intent of covenants and agreements entered into between the owners and occupiers of land let to farm 56 Geo. 3, respecting straw, &c. to be con sumed on premises according to leases. (e) Testatum fi. fa. into Lanca- (f) 3 Co. 12; Comb. 356. (h) Ibid.; Co. Litt. 390; Dalt. 145. (i) Poole's case, 1 Salk. Rep. 368; Elwes v. Maw, 3 East Rep. 38; Storer V. Hunter, 3 B. & C. 368. |