cution of land, which the defendant had the day of the writ purchased. 42 Ed. 3. 11. R. 2 H. 3. 14. 6 Ed. 3. 15.

Or, at the time of his plea, if it be in the same term, before judgment. 42 Ed. 3. 11. R. 42 Ass. 17.

Or, at the day of the inquest returned, or inquest taken, if it was afterwards adjourned; for then it is not one with the day in bank. 21 Ed. 3. 51. b. 1 Rol. 892. 1. 7.

So, now, by the st. 29 Car. 2. 3. The officer shall set down the day of the month and year of his signing judgment on the paper, &c. he signs, which shall be entered on the margin of the record, where the judgment is entered: and such judgments shall relate, against purchasers bona fide for valuable consideration of lands, &c. only to the time of signing; and not to the first day of term when entered, return of the original, or filing bail.

And by the same statute, the day of enrolment of a recognizance shall be entered on the margin of the roll; and no recognizance shall bind lands, &c. in the hands of a purchaser bona fide for valuable consideration, but from the time of such enrolment.

And therefore, if judgment be pronounced, but not entered upon the roll till several terms afterwards; it ought not to be entered without continuances to the term when entered: for it ought not to bind a purchaser, till that term. Mod. Ca. 184. 191.

Yet if it be entered in the vacation before the essoin-day of the next term, it binds a purchaser after the term, before entry. Per Holt, Mod. Ca. 191.

(D 2.) As to goods.

By the common law, goods and chattels are bound by the award (a) of execution; and if they are afterwards sold bonâ fide; yet they may be taken in execution. R. 2 H. 4. 14. 1 Rol. 893. 1. 10. R. Mo. 873. R. Cro. El. 174. D. 8 Co. 171. a. 2 Cro. 451. Cro. Car. 149.

So, if the defendant dies, they might be taken in the hand of his executor or administrator. R. 1 Rol. 893. 1. 23. R. Cro. El. 181. 1 Leo. 144.

But a sale after the original, and before judgment shall be good. R. 9 H. 6.57. b. 1 Rol. 893. 1. 5.

And now by the st. 29 Car. 2. 3. No fieri facias, or other writ of execution, shall bind the property of goods, but from the time such writ shall be delivered to the sheriff, &c. to be executed, who, on his receipt of it, shall endorse the day of his receiving the same.

And therefore, if a writ of execution be sued, it does not (b) bind, till it be delivered to the sheriff.

If it be delivered to him, and no warrant prayed upon it, and afterwards another execution is delivered, and execution prayed, he may

(a) 1. That is, teste. Gilb. Exec. 13. 14. Cro. Eliz. 440. 2 Vent. 218. 7 T. R. 21, 22. Sed vide 1 Lev. 174. 2. The property, however, was not changed, but continued in defendant till execution executed. 2 Eq. Ca. Abr. 381. et vide L. R. 252. 3. Nor has the statute of Charles, infra, made any difference in this respect. Ibid. -4. The effect of the goods being bound, is to prevent an assignment unless in market overt. Ibid.

(b) 1. Unless in the king's case, who not being named in the statute, is not bound by it. 3 Atk. 739. 1 Ves. 196.-2. And therefore an extent at his suit still binds from the teste, or fiat of the baron on which it issues. Bunb. 39. Gilb. Rep. 222. 2 Str. 757. 2 Blk. 1251.

execute

execute the last first. R. M. 9 W. 3. B. R. inter Smalcomb and Buckingham, 5 Mod. 377. 1 Sal. 320. (c)

If it be upon a subsequent judgment, and executed upon goods, it shall be good, though an execution upon a former judgment or statute afterwards comes to the sheriff. R. 1 Brownl. 37. (d)

Yet it binds the goods (as to the party himself, though not as to a purchaser or stranger) from the teste (e) of the writ, as before that statute. R. P. 3 W. & M. in B. R. Skin. 257. 2 Mod. Ca. 310.

And therefore, if a fieri facias be tested before the death of the defendant, (f) and delivered to the sheriff after his death; it may be executed (g) upon goods in the hands of the executor, or administrator. Semb. 2 Vent. 218. R. Skin. 257. (h)

So, if two writs are delivered to the sheriff the same day to make execution, without assent of delay, he ought in the first place to make execution upon the first. R. I Sal. 320. (i)

(c) 1. Ld. Raym. 252. Carth. 419. et vide, 1 T. R. 731. in notis. 4 East, 523. 2. So though a warrant is prayed upon the first. Ibid. — 3. In which case, however, the plaintiff in the first writ has his remedy against the sheriff: Ibid. — 4. And where no sale has been made, the writ first delivered must have the priority, though the seizure was made under the other. 1 T. R. 729. Vide 4 East, 544.

(d) 1. Vide supra, that where there are several authorities equally competent to bind the goods of a party, when executed by the proper officer, they shall be considered as effectually, and for all purposes, bound by the authority which first actually attaches upon them in point of execution, and under which an execution shall have been first executed. East, 523.

(e) 1. The writ must be tested and returnable in term time. 2 Salk. 700.-2. And upon a day after the judgment is, or may be supposed to have been given. Tidd, 986. 3. Though it may be tested on any day in the term in which judgment is signed, since the judgment has relation to the first day. 1 Cromp. 372. 4. It must be signed

as well as sealed. R. E. 1659. K. B. R. E. 12 Jac. 1. s. 3. C. P. R. M. 1654. s. 6. Č.P. 5. It is void, or at least erroneous, if tested out of term, and may be quashed or set aside on motion, together with the proceedings that have been had under it. 2 Salk. 700.-6. So if returnable. Davey v. Hollingsworth. Tidd, 986. -7. Or in an action by bill, be returnable on a general return day. 1 Wils. 515.

(f) So if plaintiff die after a fieri facias sued out, it may be executed notwithstanding. Cro. Car. 459. 1 Sid. 29. 2 Ld. Raym. 1073. 1 Salk. 322. Noy, 73.

(g) 1. So if execution be tested in defendant's life time, it may be taken out after his death. Ld. Raym. 695. Cowp. Rep. 117. Bunb. 271. 12 Mod. 5. 2 Ld. Raym. 850. 7 Mod. 95. Vide 3 P. Wms. 399. et in notis. Willes, 131. 7 T. R. 20. 1 B. & P. 571. 3 Anst. 680.-2. Secus, if the execution be tested after the defendant's death. 6 T. R. 368. Vide 3 Anst. 680.-3. Error in parliament on judgment in B. R.; plaintiff in error dies in vacation; plaintiff in B. R. sues out execution, tested in the term preceding; and held irregular, because at the teste of the writ there was error pending, and execution could not be taken out in that case without leave; and where in the next term after, the defendant in B. R. having died, the plaintiff moved for leave to sue out execution tested of the term preceding, it was refused, because the error must appear upon the record. 5 Smith, 280. 7 East, 296.- - 4. The reason of the general rule already stated, is this: Since a judgment has relation to the first day of the term in which, or preceding the vacation in which it is signed; if a defendant die in term time, and judgment is regularly signed afterwards, either in that term or the following vacation, it has relation back to a day before the death. And since an execution may be taken out in term time, or in vacation, tested as of the first day in term, and as an execution taken out after the defendant's death, if tested before, is regular; it follows that a fi. fa. may be sued out, either in the term in which such judgment was signed, or in the following vacation, tested as of the first day of term, and therefore of a day previous to the death, and the defendant's goods in the hands of his executor or elsewhere, taken under it. 7 T. R. 20.

Cro. Eliz. 181. 1 Mod. 188. Comb. 33.

(i) 1. 1 T.R. 729.-2. Except it be fraudulent, and then he ought to execute the other. 1 Wils. 44 et vide, Peake's C 66. 4 East, 523.

(E) Bu

(E) By whom it shall be sued.

Execution ought to be sued by him, who is party or privy to the record. Vide Pleader, (3 B 9. 10.)

In a real action, if the demandant dies, his heir shall sue execution. In personal actions, the executor, or administrator shall sue execution by scire facias upon a judgment by his testator, or intestate. 2 Inst. 395. When an executor, or administrator shall have a scire facias or not, Vide in Administration, (G)- Pleader, (3 L 5.)

So, in annuity, the executor shall have execution, and not the heir; for by recovery the arrearages are a chattel vested. 1 Rol. 889. 1. 25. So, in a mixt, or real action, where damages are recovered, though the heir has execution of the land, the executor shall have execution for the damages: as, in waste, assise, &c. 1 Rol. 889. 1. 30.

But it does not lie by him, who is not party or privy, generally. Vide Pleader, (3 L 5.7.)

Nor by him, who has no interest in the thing recovered, though he be privy, or party: as, it does not lie by a husband upon a judgment by him and his wife as executrix. R. 1 Rol. 889. 1. 10. Vide Baron and Feme, (Z)- Pleader, (3 L 7.)

(F) Against whom.

So execution ought to be sued against him, who is party or privy. Vide ante, (A 2.)

If one of the defendants dies, it may be sued against the survivor and him who is dead. R. 1 Sal. 319. Vide infra.

So, if judgment be against husband and wife, and one dies, execution may be against the wife if she survives. 1 Rol. 890. 1. 27.

So, if a scire facias be against all the defendants, and one is returned nihil, execution may be for the whole (k) against the others. 1 Rol. 890. 1. 10. 50.

So, if a defendant dies, execution may be by scire facias against his executor, or administrator. Vide Pleader, (3 L 6.)

And, if the writ be tested before his death, it may be executed against his executor, or administrator, without a scire facias. Vide ante, (D 2.) So, if the plaintiff dies, execution may be made without a scire facias. Dy. 76. b. in marg. Vide Pleader, (3 L 1.)

But execution taken out after the death of the defendant, against his executor or administrator, without a scire facias, is void. Dy. 76. b. So, if it be taken against the survivors, where one of the plaintiffs in error dies, without entry of the death on the roll, and award of execution against the survivors. R. 5 Mod. 339. R. 1 Sal. 319.

So execution may be against a party to a judgment, though he be misnamed in his addition, or degree: for he is estopped by the record to say, that he is not of such degree. R. 1 Rol. 890. I. 45.

(k) 1. Where several actions are brought against different parties for the same debt, as upon a bail bond, promissory note, or bill of exchange, each party is liable to an execution for the whole debt, and the costs of the action against himself; but neither of them is liable to the costs of the actions against the other defendants. Tidd, 982. 2. And in suing out execution in actions upon a bail bond, it is usual to apportion the debt and costs in the original action amongst the different defendants, so as to levy a part on each, together with his own costs. Ibid.

(G) Bu

(G) By whom it shall be done.

Execution, regularly, ought to be directed to the sheriff of the county, where the action was brought. I Rol. 891. 1. 15. Vide Bail, (R 2.) — Pleader, (3L 3.) (1)

And the sheriff makes a warrant to his bailiff to do execution pursuant to the writ.

So the sheriff may do execution after his discharge is tested, or sealed, if he has not notice. R. Cro. El. 440. Vide County, (B 3.)

But upon a return, that the defendant has nothing in his county, a writ of execution may be to the sheriff of another county. 1 Rol. 891. 1. 17. Vide Process, (E 7.)

Yet, if a testatum, goes where a former writ was not actually issued; though it be recited in the testatum, it will be error. R. 2 Cro. 246. Yel. 179.

(H) When crecution may be after a former erccution.

If a former execution be not effectual, (m) the plaintiff, generally may have another execution: as, if the defendant escapes, he may be retaken by the sheriff, or the party himself, and shall be in execution again. Vide Escape, (E). (n) Vide ante, (A 3.)

A fortiori if he escapes, when taken upon a capias utlagatum, or capias pro fine; for the plaintiff need not allow, that he shall be in execution for him. 1 Rol. 901. 1. 15. Vide ante, (B 2.)

If a man in execution be bailed by the court, he may afterwards be taken in execution again. Per Co. 1 Rol. 903. l. 1.

So, by the st. 11 H. 6. 5. If he brings an audita querela, and finds mainprize thereon, but afterwards does not prosecute with effect. 1 Rol. 902. 1. 50.

So, if he be delivered out of execution by privilege of parliament,

(1) 1. Except in a county palatine. - 2. As a consequence of the principal doctrine, a writ of fieri facias directed in the first instance to the bailiff of the Isle of Ely, out of the king's bench is erroneous and void; and the bailiff is a trespasser if he executes it. 3 East, 128. et vide 9 East, 342.

(m) 1. The plaintiff having sued out one writ of execution, may, before it is executed, abandon that writ, and sue out another of a different sort; or he may have several writs of the same sort, running against the defendant or his goods at the same time, in different counties: But after the execution of one writ, the plaintiff cannot sue out or proceed upon another of the same or a different sort, unless that which has been executed is returned; and then if a part only be levied upon a fieri facias, the plaintiff may have an alias fieri facias, or other execution; for the remainder; or if the capias ad satisfaciendum be rendered ineffectual, by the death or escape of the defendant, the plaintiff may have a new writ for the whole; and he may sue out and execute several elegits, for lands in different counties. Tidd, 985.-2. If two writs of different kinds are issued at the same time, thus a capias ad satisfaciendum and a fieri facias, both will be set aside. Lofft, 248.-3. Where the sheriff seised goods under a fieri facias, and left a man in possession, and a second fieri facias issued under which a warrant was granted, and left with the man in possession, the court held that the second writ operated in favour of the first, and refused to set it aside as irregular. 2 Mars. 375. 7 Taunt. 56.- 4. Where however the sheriff has taken goods in execution under a fi. fa., the plaintiff cannot sue out a ca. ad sa. till the fi. fa. has been returned, though he should have withdrawn his execution under the first writ. 2 Mars. 78. 6 Taunt. 370. (n) And if the defendant escape from the King's Bench or Fleet prison, the plaintiff, on application to a judge, may have an escape warrant, in order to retake him, which shall be in force throughout England. St. 1 Ann. c. 6.

being a burgess, &c. he may afterwards be taken in execution again. R. 1 Rol. 903. 1. 20. Godb. 373.

So, if the former execution be defeated by error. R. Godb. 272.

Lat. 193. (0)

So, by the st. 21 Jac. 24. If a man dies in execution, it may afterwards be sued of his land or goods.

So, before that statute: for the body was not a satisfaction, but a pledge only for the debt. R. 5 Co. 87. R. cont. Cro. El. 850. 2 Cro. 136. 143. R. cont. per 3 J. Hob. 60. Mo. 858. 1 Rol. 903. L. 40.

So, since that statute, shall it be without question.

So, if one of the defendants escapes, the plaintiff may afterwards sue execution against the other, though he has a remedy against the sheriff. R. 5 Co. 86. b. Cro. El. 555. 573. Cont. Mo. 459. R. acc. 2 Cro. 532. R. Cro. Car. 75. Vide Escape, (E)

So, if the conusor upon a statute or recognizance escapes, the conusee shall have execution against his lands and goods. R. 5 Co. 86. b. 87. b.

So, if only part of the debt be levied, there may be another execution for the residue. (p)

If, upon an extent, non inventus est is returned, quoad the body of the party, and, land in right of his wife; though he take the land he shall afterwards have a capias against the person. R. 15 H. 7. 15.

So, if part of the debt be levied by a fieri facias, he may afterwards have an elegit. 1 Sid. 91.

So, if an elegit be returned nichil, or nothing can be extended upon it, there shall be another (q) execution. Vide infra.

So, if only part of the debt be levied by elegit, on the goods only, he may have debt upon the judgment for the residue. R. 1 Lev. 92.

So the plaintiff after judgment may have a capias ad satisfaciendum and a fieri facias together, and execute the one or the other: but if he takes the defendant upon the capias ad satisfaciendum, the fieri facias shall be quashed. 2 Mod. Ca. 302. (r)

But, if the plaintiff has full execution and satisfaction, he shall never afterwards have a new execution for the same cause. Mo. 29. (s)

Though the execution be afterwards defeated by the act of God: as, if a villein be delivered in execution for a debt, and he afterwards dies without issue. 5 Co. 87. a. (t)

So,

(o) A void elegit or inquisition, being as none, will not prevent the plaintiff from having a new elegit without a scire facias, though it be after the year. Gilb. Exec. 54. (p) 1. As if part be levied by fieri facias, he may have a fieri facias for the residue, or an elegit, or a ca. ad sa. Tidd, 1005. – 2. So he may bring an action on the judgment for the residue; wherein the defendant may be arrested, if he was not arrested in the original action. 1 N. R. 133. 2 Smith, 39. -3. But the first writ must be returned before the second can be taken out. Supra, et Barnes, 213.

(9) As a capias ad satisfaciendum. 1 Str. 226. 2 L. R. 1451.

(7) Vide supra.

(s) 1. As where he has taken the defendant in execution by a capias ad satisfaciendum. Hob. 59. — 2. And therefore a judgment creditor, who has taken his debtor in execution, cannot afterwards sue out a commission of bankrupt against him upon the same debt. 8 T. R. 123.

2. As where the

(t) 1. A fortiori if defeated by the act of the party himself. plaintiff, having the defendant in execution, consents to his discharge, though it be on terms which are not afterwards complied with. 4 Burr. 2482.

VOL. IV.

R

6 T. R. 526. 527. 7 T. R.