FIERI FACIAS Return of when pro The return of nulla bona is proper, when the defendant has RETURN OF no goods or chattels in the bailiwick of the sheriff, whereof he can cause to be made the debt and costs, or damages recovered; nulla hona, but when the defendant has goods, though the sheriff is pre- per, vented from taking them by the allowance of a writ of error, he should not return nulla bona, but the fact of a writ of error having been sued out and allowed, as an excuse for not taking them.$2 quent wris If a sheriff return on a fieri facias that the defendant has no and subsegoods in his bailiwick, the plaintiff, if it be true, may have an- thereupon; other writ of fieri facias into the same county, or a testatum fieri facias into a different county, suggesting that the defendant has goods there :33 or the plaintiff may sue out a capias ad satisfaciendum: and a testatum fieri facias may be either for the whole, or, on the return of a partial levy, for the residue.34 turn is not against sher If the return be not true, the plaintiff may maintain an ac- or if the retion against the sheriff, for a false return; in which action the true, action sheriff cannot go into circumstantial evidence to impeach the i judgment, on the ground of a collateral fraud.35 And when the sheriff returns nulla bona, and there is a recovery against him for his false return, that vests no property of the goods in him or the plaintiff, but they remain in the defendant, and are liable to a subsequent execution for his debt.36 But an action on the case does not lie against the sheriff, who has not been ruled to return the writ, for neglecting to have the money in court, according to the exigency of a fieri facias.37 The plaintiff cannot regularly sue out fieri facias into a different county from that where the action is laid, without a testatum;38 nor a testatum, without a previous fieri facias.39 But the award of a testatum on the roll is sufficient to warrant a Successive fi. fas., how issued, &c. 32 3 Moore, 83. 1 Gow. 66. S..C. 35 2 Stark. Ni. Pri. 218. 37 1 Stark. Ni. Pri. 388. 39 3 Durnf. & East. 388. RETURN OF fieri facias into a different county.101 FIERI FACIAS Returns in cases of exeentors, &c. It is not sufficient, however, to verify the fact of an original fieri facias having been awarded, by affidavit; but the plaintiff ought to have the roll in court.40 If a fieri facias be sued out into one county, when it should have been a testatum, without any original fieri facias, and the plaintiff afterwards sue out an original fieri facias, the court will permit the party to amend the former writ, by making it a testatum, on payment of costs;41 and they will not set aside a testatum sued out without an original fieri facias to warrant it, if the plaintiff afterwards sue out such original fieri facias, and get it returned and filed, so as to be able to produce it on showing cause, 12 though a writ of error has been previously brought. 43 42 And in So, where the record was produced in court, on which an original capias ad satisfaciendum was entered, with the sheriff's return thereto, the court of king's bench permitted the plaintiff to sue out and seal an original capias ad satisfaciendum, to warrant a testatum into a different county.44 that court, it is said that the fieri facias, on which the testatum is founded, is returned of course by the attornies themselves, as originals are.45 In all continued writs, the alias or testatum must be tested the day the former was returnable.46 Before the revision, the law was, that if in an action against an executor or administrator, the sheriff returned nulla bona to a fieri facias, the plaintiff proceeded either by scire fieri inquiry, or action of debt on the judgment, suggesting a devastavit: but if a devastavit was returned by the sheriff, the plaintiff might have execution immediately against the defendant, 101 Barnes, 196, 7. Tidd. Pract. 201. 208, 9. 211. 3 Durnf. & East. 1062. 388. 657. but see 7 East. 296. 40 Per Cur. M. 42 Geo. III. Tidd. Pract. 1034. K. B. 41 3 Durnf. & East. 657. 1 H. Bl. 541. Tidd. Pract. 1037. 42 2 Salk. 589, 90. Barnes, 200, 43 5 Durnf. & East. 272. 46 Ib. 699. Tidd. Pract. 173. FIERI FACLAS by fieri facias de bonis propriis, or capias ad satisfaciendum:47 RETURN OF but, as we have already remarked, the modes of proceeding in these cases may be materially affected, and possibly be considered as superseded by the provisions of the revised statutes.48 SECTION V. OF THE CAPIAS AD SATISFACIENDUM. statute; at common law: We have seen that a capias ad satisfaciendum, against the ca. sa. by person of the defendant, is a species of execution expressly allowed by statute.49 But before it was given by the express words of any statute, it lay, by consequence of law, after judgment, in every instance where the defendant was subject to a capias before,50 it having been a rule, that whenever a capias was allowed on mesne process before judgment, it might be had on the judgment itself. It may be taken out against a defendant sued by a wrong name, if he has omitted to take advantage of the misnomer.51 52 whom it lies, The capias ad satisfaciendum does not lie against ambassa- Against dors and other public ministers, or their domestic servants, nor against members of corporations aggregate, for any thing done in their corporate capacity; nor against executors or administrators, unless a devastavit be returned.54 seems to be liable to this process.101 * Ante, Vol. 1. p. 58. and who are An infant exempt from 52 Tidd. Pract. 1066. 216. see 42 Ib. 2 R. St. 116. s. 19-22. ante, Vol. 1. p. 319. Vol. 2. p. 1. Ib. 88. s 32. 53 Tidd. Pract. 1066. 218. 101 Tidd. Pract. 1066. 2 Str. it. CAPIAS AD Order and executions, The revised statutes provide, that "no female shall be imprisoned on any process in any civil action, founded upon contract."102 In other actions, against husband and wife, they may both be taken in execution; and when the wife is taken in execution, she shall not be discharged, unless it appear that she has no separate property, out of which the demand can be satisfied,55 or that there is fraud and collusion between the plaintiff and her husband, to keep her in prison.56 When a capias ad satifaciendum lies, it cannot be executed upon parties coming to, attending upon, or returning from, courts of justice; nor at the time or place when and where they are privileged from arrest.57 The statutory provisions respecting the exemption of attornies, counsellors, and officers of court, from arrest, have already been considered, and also the mode in which they are entitled to obtain their discharge when exempt.58 Members of congress,59 or of the legislature of this state, while attending, or while going to or returning from a session of the body of which they are members, are not subject to arrest, as we have already seen,61 and a capias ad satisfaciendum does not therefore lie against them. We have already noticed the order and succession of exesuccession of cutions, and have seen where a capias ad satisfaciendum may be issued in the first instance, and where a fieri facias is required to be previously issued to the sheriff of the county in which the defendant was arrested, and returned unsatisfied, in and requi- whole or in part.62 In order to entitle a party to proceed of bail. against the bail, it is required by statute, not only that a fieri facias should have been first issued, in sufficient time to enable the sheriff to execute it, but that there should be at least fifteen sites in case SATISFACI- days between the teste and return days of the capias ad satisfa- CAPIAS AD ciendum. The provisions of the statutes on this subject are as follows: "The plaintiff in the action shall not be entitled to bring any suit on the recognizance of bail, until, 1. An execution against the property of the defendant shall have been issued to the sheriff of the county in which such defendant was originally arrested, and the same shall have been returned by such sheriff unsatisfied, in whole or in part: and, 2. An execution against the body of the defendant, having at least fifteen days between the teste and return day thereof, shall have been issued to the same sheriff, and by him returned, that the defendant could not be found within his county. 63 "Upon any such execution being issued, and delivered to the sheriff, it shall be his duty to use all reasonable endeavours to execute the same, notwithstanding any directions he may receive from the plaintiff or his attorney. 101 In such action against bail, they may plead, that executions against the property, and against the body of the defendant, in the original suit, were not issued as herein directed; or that they were not issued in sufficient time to enable the sheriff to execute the same; or that directions were given by the plaintiff, or his attorney, to prevent the service of the said writs, or either of them; or that any other fraudulent or collusive means were used to prevent such service; and if any such defence be established, it shall entitle the bail to a verdict."64 The capias ad satisfaciendum commands the sheriff that he Form of the take the defendant, if he shall be found in his bailiwick, and ca. sa., &c. him safely keep, so that he may have his body before the justices of the court at the return day, to satisfy the plaintiff of the amount of the judgment. In point of form, it must pursue the judgment.65 Therefore, on a judgment against several defendants, it must include them all.66 If part of the demand 32 R. St. 382. s. 31. 101 Ib. s. 32. 64 Ib. s. 33. 65 Tidd. Pract. 1067. |