Dodge v. Doane

Metcalf, J.

By the English law, a judgment creditoi may take out such a writ of execution as he elects ; a capias ad satisfaciendum, a fieri facias, a levari facias, an elegit, or an extendi facias, &c. Having taken out one of these, he may, before it is executed, abandon it, and take out one of the others. But after one of them is executed, he cannot take or proceed upon another, until that which has been executed is returned ; and then, if a part only has been levied on a fieri facias, he may have an alias fieri facias, or other execution, for the remainder. So, if a capias ad satisfaciendum be rendered ineffectual by the death or escape of the judgment debtor, the creditor may have another writ of execution for the whole debt. If, however, the creditor sue out a writ of elegit, and take any of the debtor’s land thereon, and that writ be returned and filed, he cannot afterwards take the body of the debtor on a new execution, although the land so taken be wholly inadequate to the discharge of the debt. 2 Tidd’s Pract. (1st Amer. ed.) 912, 913 ; Bingham on Judgments, 175, 176; Bac. Ab. Execution, D.; 3 Bl. Com. c. 26.

The English writs of execution are so framed as to direct only one mode of service by the officer. The capias ad satisfaciendum commands him to take and safely keep the body of the judgment debtor, to satisfy the judgment creditor for the debt which he has recovered. The fieri facias commands the officer, that of the judgment debtor’s goods and chattels he cause to be made the amount of the judgment recovered by the creditor, and to have the money before the court at a certain day. And all the other writs of execution command the officer to serve them, respectively, in the mode therein prescribed, according to the law which is applicable to each.

In this commonwealth, we have only one form of execution in personal actions brought in this court and in the court of common pleas; and that form includes all the different English writs of execution which we have adopted. Our writ of execution commands the officer, that of the goods, chattels or lands of the judgment debtor, he cause to be paid and satisfied unto the creditor, at the value thereof in money, the sum recovered by him, <fcc.; and for want of goods, chattels or lands of the debtor, to satisfy said sum, to take his body and him commit to jail, and there detain, till he pay said sum, &c., or be discharged by the creditor, or by order of law. And the question now before us is, whether a judgment debtor, whose property has been levied on, and the execution against him thereby satisfied in part only, can afterwards be lawfully committed to prison, on the same execution, to satisfy the balance. And we are of opinion that he may be.

It has never been doubted, but that a levy on land may be made for a balance left unsatisfied after a levy on goods and chattels, and vice versa, without taking out an alias execution. Such, for a long time, has been the practice. And we see no reason for a distinction between cases of that kind, and the present case. It is for want of goods, &c., “ to satisfy ” (not to satisfy in part) the debt or damage, and the costs of suit, recovered by the creditor, that the officer is com manded to take the body of the debtor and commit him to prison. And we must understand that the officer is commanded to make the commitment by virtue of the writ of execution then in his hands.

If a judgment debtor is committed on execution before any of his property is levied on, the execution, by the common law, is considered as satisfied, and it cannot afterwards be levied on his property. Judgment for the plaintiff.