them, have no opportunity to plead this special matter, and therefore they shall have redress by audita querela; which is a writ of a most remedial nature, and seems to have been invented lest in any case there should be an oppressive defect of justice, where a party who hath a good defence is too late to make it in the ordinary forms of law. But the indulgence now shown by the courts in granting a summary relief upon motion, in cases of such evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice.

Writ of Error.

IV. But, fourthly, the principal method of redress for erroneous judgments in the king's courts of record is by writ of error to some superior court of appeal.

A writ of error lies for some supposed mistake in the proceedings of a court of record; for to amend errors in a base court, not of record, a writ of false judgment lies. A writ of error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it; there being no method of reversing an error in the determination of facts, but by an attaint or a new trial to correct the mistakes of the former verdict.

When once the record was made up, it was formerly held that by the common law no amendment could be permitted, unless within the very terms in which the judicial act so recorded was done for during the term the record is in the breast of the court, but afterward it admitted of no alteration. But now the courts are become more liberal, and, where justice requires it, will allow of amendments at any time while the suit is pending, notwithstanding the record be made up and the term be past. For they at present consider the proceedings as in fieri, till judgment is given; and therefore, that till then they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term. Mistakes are also effectually helped by the statutes of amendment and jeofails: so called because when a pleader perceives any slip in the form of his proceedings and acknowledges such error (jeo faile) he is at liberty by those statutes to amend it; which amendment is seldom actually made, but the benefit of the acts is attained by the court's overlooking the exception.

If a writ of error be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds; or if it is brought to reverse the judgment of any superior court after verdict, he that brings the writ, or that is plaintiff in error, must (except in some peculiar cases) find substantial pledges of prosecution, or bail; to prevent delays by frivolous pre

tences to appeal: and for securing payment of costs and damages, which are now payable by the vanquished party in all except a few particular instances, by virtue of the several statutes recited in the margin.

Each court of appeal, in their respective stages, may, upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts; but none of them are final, save only the house of peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. And thus much for the reversal or affirmance of judgments at law by writs in the nature of appeals.

Chapter XXVI.

OF EXECUTION.
412-426.

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. Executions in Real or Mixed Actions.

If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession, of a chattel interest. These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so 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 seisin, is sufficient execution of the writ.

In Other Actions.

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 of nuisance, or quod permittat prosternere, where one part of the judgment is quod nocumentum 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. Upon a replevin, the writ of execution is the writ de retorno habendo; and, if the distress be eloigned, the defendant shall have a capias in withernam; but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed. In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels; 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, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages; which being so assessed, or by verdict in case of an issue shall be levied on the person or goods of the defendant.

Executions on Money Judgment.

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 lands; or against all three, his body, lands, and goods.

Capias ad Satisfaciendum.

1. The first of these species of execution is by writ of capias ad satisfaciendum; which addition 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. The intent of it is, to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages. If an action be brought against a husband and wife for the debt of the wife, when sole, and the plaintiff recovers judgment, the capias shall issue to take both husband and wife in execution: 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. Yet, if judgment be recovered against a husband and wife for the contract, nay, even for the personal misbehaviour of the wife during her coverture, the capias shall issue against the husband only: which is one of the many great privileges of English wives.

The writ of capias ad satisfaciendum is an execution of the highest nature inasmuch 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 a new execution 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.

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. 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.

Writ of Fieri Facias.

2. The next species of execution is against the goods and chattels of the defendant, and is called a writ of fieri facias, 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. The sheriff may not break open any outer doors, 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. And he may sell the goods and chattels (even an estate for years, which is a chattel real) 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

then due, not exceeding one year's rent in the whole. If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue.

Writ of Levari Facias.

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.

Writ of Elegit.

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 feodal 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 take 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 election of the plaintiff whether he will sue out this writ 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 plough) 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, which he had at the time of the judgment given, whether held in his own name, or by any other in trust for him, 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. 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