plaintiff shall have a venditioni exponas. 1 Sal. 323. 1 Sid. 407. (ƒ).

If the former sheriff made such return, the new sheriff ought to make sale upon the venditioni exponas. 1 Rol. 894. 1. 5. 4 Leo. 20. Though the writ be to the new sheriff that he cause the former sheriff to sell. R. 1 Rol. 894. 1. 5. but semb. that upon a distringas nuper vicecomitem quod venditioni exponat, (g) the old sheriff may sell. Mod. Ca. 295. 299. 1 Sal. 323.

There are two forms of the distringas nuper vicecomitem; the one, (h) that the old sheriff shall sell, and bring the money into court. Mod. Ca. 295. (i)

The other, (k) that he sell, and deliver the money to the new sheriff. Mod. Ca. 295. 299. 1 Sal. 323. 2 Rol. 57.

And both are compulsive (and do not give authority) to sell. Mod. Ca. 295.

For he cannot return upon a distringas nuper vicecomitem quod remanent pro defectu emptorum. Mod. Ca. 296.

But if a supersedeas comes to the sheriff, he cannot afterwards sell without a venditioni exponas; for the sale shall be void. R. 1 Rol. 894. 1. 10.

Yet a venditioni exponas shall go for the sale of goods levied before the supersedeas. Dy. 99. a. Yel. 6. R. Cro. El. 597.

And he may sell before a supersedeas, though he be out of his office, without a venditioni exponas. Per Holt, Mod. Ca. 295.

If a sheriff levies money, but does not return his writ at all; the sale after a venditioni exponas to the new sheriff shall be good. R. 1 Rol. 893. 1. 50.

If the sheriff levies money of the defendant to the value of the debt, the defendant shall be discharged against the plaintiff, though the money never comes to his hand. Mod. Ca. 297. 299. R. 2 Rol. 57.

And he may plead such matter for his discharge, in debt afterwards. upon the judgment. 2 Lev. 203.

indeed is shewn by the common course of proceeding; the sheriff not being bound to make a return of the writ of execution, unless the party requires it. And as to the writ of venditioni exponas, that writ, though a proper writ, yet is not of necessity, being rather to compel the sheriff, when guilty of laches, to do what he has authority to do, than to give him any new authority. 1 Ves. 195. Sed vide Yelv. 44. 1 Lutw. 589. 3 Bac. Abr. 377.

(f) 1. Cowp. 406.-2. For the form of this writ, see Tidd's Practical Forms, chapter 41. sect. 64.-3. If goods have not been taken to the value of the whole, the plaintiff may have a venditioni exponas for part, and a fieri facias for the residue, in the same writ. Thes. Brev. 305. Tidd's Practical Forms, chapter 41. sect. 65.-4. And it is said, that if a sheriff seize goods to the value and return it, he is bound to find buyers. 6 Mod. 293. Ld. Raym. 1075.-5. But where the sheriff returned to a writ of venditioni exponas, that part of the goods levied remained in his hands, for want of buyers, the court of C. B. refused an attachment against him. 1 B. & P. 359.

(g) Where the old sheriff returns, that he has taken goods which remain in his hands for want of buyers, the usual way of proceeding in the King's Bench, is by writ of distringas to the new sheriff, commanding him to distrain the old one, till he sell the goods. Tidd, 1006.

(h) Which is the most usual. 6 Mod. 299.

See the form in Tidd's Practical Forms, chapter 41., sect, 66. 1074, 1075. 1 Salk. 323.

(k) Which is the most antient. Gilb. Exec. 21.

Q 2

Vide 2 Ld. Raym.

(C 9.)

(C9.). By capias ad satisfaciendum: when it lies.

So execution may be by capias ad satisfaciendum (1) against the body of the defendant, in all cases where a capias ad respondendum lies in process. 3 Co. 12. a. (m)

And therefore, in all actions vi et armis, as in trespass, &c. for there a capias lies in process at the common law. 3 Co. 12. a. Vide ante, (C 2.) (n)

If the principal offers himself in discharge of the bail, and the plaintiff doth not accept him, yet he may afterwards have a capias ad satisfaciendum against him; for the refusal was not a discharge, but a forbearance. 1 R. 898. l. 45.

So, at common law, the king may have execution by capias. Vide ante, (B 3, &c.)

So, by the course of the court, a capias lies upon a judgment against bail in a scire facias upon a recognizance in B. R. Vide Bail, (Ř 11.) But a capias does not lie against bail by recognizance in C. B. (0) or in an inferior court. Vide Bail, (R 11.)

Or against bail in B. R. on a writ of error in the exchequer. Vide Bail, (R 11.)

So a capias ad satisfaciendum does not lie upon a recognizance in chancery; for no capias is given on a scire facias, by any statute; and it does not lie by the common law. R. 1 Rol. 897. 1. 30. R. Dy.

306. a. Dub. 2 Bul. 63.

So a capias does not lie upon judgment against a garnishee in detinue : for he is no party to the suit. 1 Rol. 896. 1. 50.

So, if a woman recovers damages in dower, she shall not have execution by capias ad satisfaciendum; for no capias lies in process. 1 Rol. 898. 1. 2.

So in all cases, where a capias does not lie in process, no execution shall be by capias ad satisfaciendum: as, in an assise of nusance. Sho. 74. So a capias did not lie against a prior, &c. in trespass, or other action. 1 Rol. 898. 1. 20. (p)

So, if the plaintiff sues a scire facias within the year, (though he need

(2) 1. See the form, Tidd's Practical Forms, chapter 41. sect. 88., &c.—2. Where the defendant is already in custody, there is no occasion for this writ.

(m) 1. The rules respecting its form, &c. have been already given.-2. As the defendant can only be once taken, it seems that there may be several writs running against him at the same time, in different counties. Tidd, 1028.

(n) 1. A capias ad satisfaciendum lay, for a subject, at common law, in actions of trespass vi et armis only; but has since been given in other actions by a variety of statutes. Hob. 56.- 2. But the Annotator to 3 Bac. Abr. 583., acknowledging that the authority is very great, doubts whether the capias which, at common law, issued in trespass with force, was any other than the capias pro fine, which was imposed for the breach of the king's peace; and whether the capias ad satisficiendum eo nomine was then known. He supports the conjecture in the continuation of his note. And though he hints that on satisfaction of the king's fine, the defendant was entitled to his discharge; yet quære if the doctrine was not, that he could not procure his enlargement until he had satisfied, not only the fine to the king, but likewise the damages assessed to the plaintiff. See 11 H. 7. Hil. 11. p. 15. accord. etiam supra. (B 2.)

(0) 1. 2 Taunt. 113, 114.-2. But it lies against bail in the King's Bench, without any previous fieri facias, or return of nulla bona. 2 Str. 822. 1139.

(p) 1. So it does not lie against peers, or members of the house of commons, except upon a statute-merchant, or statute-staple. 1 Cromp. 345.-2. Nor against executors or administrators, unless a devastavit be returned. 3 Blk. Com. 414.-5. An infant seems to be liable to this process. 2 Str. 1217. et vide, 1 B. & P. 480.

not,)

not,) he cannot afterwards have a capias before judgment in the scire facias. R. 1 Rol. 900. 1. 25.

(C 10.) When the defendant shall be in execution.

If defendant renders himself, and afterwards brings error, and has a supersedeas, but does not thereupon find bail, the court, upon the prayer of the plaintiff, may commit him in execution, though the record be removed. 1 Rol. 896. l. 10.

So, if a man be arrested upon a capias ad satisfaciendum, he shall be in execution before the return of the writ. 1 Rol. 901. 1. 30.

If the defendant be in custody of the sheriff, and another writ of capias ad satisfaciendum is delivered to the sheriff, against him, he shall be in execution immediately upon the second writ, without actual arrest. R. 5 Co. 89.

So, if the defendant be in prison for a crime, by leave of the court he may be charged in execution. Ray. 58. 1 Sid. 154.

And though he be charged without leave, which he ought not to be, yet he shall not be discharged. R. Ray. 58. 1 Sid. 90.

If the defendant be in prison before judgment, in the prison of the same court where the judgment is; the plaintiff may pray, that he may be in execution, and a committitur shall be entered on the roll, and then he shall be in execution. 1 Rol. 895, 1.5,

Or, if he be in another prison, he shall be brought up by habeas corpus, and committed in execution. 1 Rol. 895. 1. 40.

So, if there be judgment in a scire facias against him, and three or four years afterwards he is in prison for another cause, he may be brought into court by habeas corpus, and charged in execution. 1 Rol. 896. l. 5.

If a defendant be taken upon a capias pro fine, or a capias utlagatum, he shall be in execution for the party, if he will. Vide ante, (B 2.)

(C 11.) When not.

But, without prayer, or a habeas corpus and a committitur upon the roll, he shall not be in execution, though the judgment was in B. R. and the defendant at the same time was prisoner in the Marshalsea of the marshal for another cause. R. 1 Rol. 895. l. 5.

Or, if the judgment was in C. B. and he at the time was prisoner in the Fleet.

Though he was prisoner at the suit of the plaintiff, in the same action, for want of bail. R. 1 Rol. 894. l. 52.

Though the warden of the Fleet informs the chancellor, or C. B., that he is a prisoner there, and the court commands him to detain him till judgment satisfied. R. 1 Rol. 895. l. 15. 40. Dy. 306. a.

Though a habeas corpus be granted for him, and the warden returns, that he is languidus. 1 Rol. 894. 1. 45.

Though a special writ be directed to the warden, to detain him: for he ought to appear in court upon the habeas corpus, and shall be opposed, whether he be the same person. R. 1 Rol. 894. 1. 40.

So, if a defendant be committed in execution upon a writ to the sheriff of Middlesex, he shall not afterwards be charged in execution upon another writ to the sheriffs of London: for they are different counties, and

Q 3

and distinct prisons, though the same persons are sheriffs of both, and Newgate is the prison for both. R. 1 Rol. 894. 1. 25.

So, if a defendant taken upon a capias ad satisfaciendum be brought into court by the sheriff, he shall not be committed in execution, if the plaintiff does not pray it. R. 1 And. 118.

And he shall be discharged out of the custody of the sheriff also, if the sheriff does not pray the contrary. 1 And. 118.

(C 12.) An arrest, what shall be.

If a bailiff, &c. puts his hand, &c. upon the party, saying that he arrests him; it shall be a sufficient arrest, without shewing him the warrant, and without saying, at whose suit he was arrested, if he does not ask it. R. 2 Cro. 485. Semb. cont. 6 Co. 54. 9 Co. 69. a.

So, though the bailiff has the warrant in his pocket. R. 2 Cro. 486. Or has two warrants in his pocket, and does not say upon which he arrests him; for he shall be arrested upon both. R. 2 Cro. 486.

So, if a bailiff gives a warrant to his servant, who by his command and in his presence, puts his hand upon him, and says, "I arrest you." Dub. per Holt, Mod. Ca. 211.

So, if the servant goes into another room out of the presence of the bailiff, who waits at the door, and there arrests him. Dub. per Holt, Mod. Ca. 211.

So, if the bailiff only touches him, and says, that he arrests him. 1 Sal. 79.

So, if B. be arrested, and in custody of the sheriff, upon a mesne process, and afterwards a capias utlagatnm be delivered to the sheriff against B. without an actual arrest, he shall be in custody upon the capias utlagatum; and if he escapes, the declaration shall say, that he was arrested upon it. R. 5 Co. 89. a.

But if the party requires it, he ought to shew the warrant, tell at whose suit, for what cause, by what process, and in what court returnable the arrest is made; otherwise it will be wrongful. R. 6 Co. 54. 9 Co. 69. a.

So words only do not make an arrest: and therefore, if a bailiff says, I arrest, and does not touch him, though he be beat off by a sword or other weapon, it is no arrest. R. 1 Sal. 79.

The sheriff may enter the house of another where the party is, (q) if (r) the door be open, to make an arrest. R. 2 Cro. 486. R. 5 Co.

92. a. Vide ante, (C 5.)

Though it be at six o'clock at night. R. 2 Cro. 486.

So, upon an attachment against him, he may break the house to take him. R. 1 Rol. 336.

(2) 1. Generally speaking, an entry into the close of one man to seize the property or person of another, will not be justifiable, unless it turns out, that they were concealed therein at the time. Cro. Eliz. 759. Vide 2 Wils. 291.-2. But if one man has allowed another to use his house as his own, by residing therein, it may be accounted the house of the latter. 2 H. Bl. 120.

(r) The outer inlet of a man's house is privileged for himself alone, and will not screen the person of another, who, with the owner's assent, flies to the house for protection, against a civil process, nor his goods, which, under the same circumstances, have been removed therein. But the case will be otherwise, if the stranger or his property are there bonâ fide, and without fraud or covin. 5 Rep. 93.

So,

So, if a man arrested escapes into a house, he may break the house to retake him. R. Pal. 53.

So, if a window be open, and the bailiff arrests him at the window, and then the party escapes; the bailiff may break the house to take him. R. Pal. 53. 2 Rol. 138.

But upon information that his prisoner fled into the house of B. he cannot enter, and, upon denial of the keys of a chest, break it open, if he be not in the chest: for he takes it upon him at his peril. R. 2 Rol. 564. l. 15.

(C 13.) When the defendant shall be discharged.

If a man taken upon a capias ad satisfaciendum satisfies the debt, the sheriff may discharge him. Dub. Cro. El. 404. If the payment be to the sheriff. Dub. 2 Lev. 203.

So, if a supersedeas of the process comes to the sheriff.

So, if a capias ad satisfaciendum comes to the sheriff, and before an arrest upon it, the defendant pays the debt to the sheriff; he ought not to be afterwards arrested. Semb. Cro. El. 404.

But a man in execution shall not be discharged upon affidavit, though there be cause: but ought to have a supersedeas, or other matter of record. Pr. Reg. Tit. Execution.

So, if a supersedeas be delivered to an officer, he may detain the party, till he takes a reasonable time to be informed of the import of it. Dub. Cro. El. 404.

So, if he pays the debt to the marshal, being committed to him, he shall not be discharged. Per 2 J. Wild, cont. 2 Mod. 214. R. 2 Lev. 203.

So, if the plaintiff dies, and the defendant has right of administration to him, he shall not be discharged till satisfaction acknowledged, which he cannot do himself, but another must take out administration, and acknowledge satisfaction upon the judgment. R. 2 Mod. 315.

(C 14.) By elegit.

So now, by the st. W. 2. 18. Upon judgment or recognizance sit in electione of the plaintiff quod vicecomes fieri faciat de terris et catallis, vel quod liberet omnia catalla (exceptis bobus et afris caruce) et medietatem terræ quousque debitum fuerit levatum per rationabile pretium et extentum. Co. L. 289. b. 2 Inst. 394. (s) Vide Process, (E 6.)

If the plaintiff prays an elegit, (t) the entry shall be, (u) quod elegit sibi executionem de omnibus calallis, et medietate terræ. 2 Inst. 395. Execution by elegit may be by an executor or administrator, as well as by the plaintiff himself. 2 Inst. 395.

(s) Dyer, 100. Cro. Eliz. 584.

(t) See the form in Tidd's Practical Forms, chap. 41. s. 70.

(u) 1. An elegit may be sued out after a year, without a scire facias, upon awarding an elegit on the roll, and continuing it down by vicecomes non misit breve. Carth. 283. Tidd, 1009.-2. And the plaintiff may have elegits awarded into as many different counties as he pleases, without being under the necessity of suing out testatum writs. 1 Cromp. 346. Law of Executions, 208.-3. But it is said, that if he award an elegit into one county, and extend the lands upon that writ, and afterwards file it, he is barred, and cannot sue out an elegit into another county. 1 Cromp. 346. 352. Law of Exec. 287. Sed vide Gilb. Exec. 55. 2 Saund. 68. b. Tidd, 1009.