DAVIES v. SCOTT, 2 Miles 52

The opinion of the Court was delivered by Stroüd, J. The two rules taken in this case bear such a relation.to each other, that counsel have not thought a distinct discussion of them necessary. And we will dispose of them together. The writ of attachment is prescribed in the 35th

section of the act of last session, relating to executions. It is a new provision in the law, and some doubt has been expressed whether it is to be considered as an execution or a species of original process. We regard it in the light of an execution. And so far as respects the questions raised in the argument before us, whatever rule of law would apply to a fieri facias, will apply with equal fitness to the writ of attachment.

In this particular, the views of the defendant’s counsel coincide with what I have just expressed, and he has accordingly urged, as a reason for setting aside the service of the attachment, the principle recognised in Young v. Taylor, 2 Binneij 218, that where a plaintiff levies a fieri facias upon the estate of the defendant, and whilst this is in force, charges him in execution upon a capias ad satisfaciendum founded on the same judgment, an option is cast upon the defendant to set aside the service of one or the other of these writs at his pleasure.

As a general proposition, it is conceded, that such is the law. But it is equally certain, that the ground of this rule is the supposed oppression of the defendant by the concurrent exercise on the part of the plaintiff of the two kinds of judicial process, both tending to the same end. A more flagrant abuse of the process of the court, if done by the express direction of the plaintiff', could not be imagined. To deserve this character, however, the plaintiff' must be the efficient cause of the abuse, and the defendant a constrained and involuntary sufferer.

But, according to the return of the sheriff, the relation of the parties to the execution of the capias ad satisfaciendum in the present case was the reverse of this hypothesis.

The plaintiff countermands the capias ad satisfaciendum—the sheriff’s deputy to whom its execution had been committed, and in whose custody it was from its delivery till after the return day, purposely abstains from executing it—serves, in fact, the attachment on the defendant, personally, without attempting to arrest him on the capias ad satisfaciendum—a neglect, in itself, equivalent to an escape, if the writ had not been countermanded previously—and after this service, and of course with a fuli knowledge of it, the defendant of his own accord, unwarned and uninvited by the sheriff, goes to the sheriff’s office, in the absence of the deputy having the capias ad satisfaciendum in his possession, and induces another officer, ignorant of the countermand, whose accustomed duties were not those of a bailiff, to accompany him, as if in custody under the capias ad satisfaciendum, to the prothonotary’s office, where the usual formal discharge under the insolvent law is immediately procured.

Upon this statement, to regard the plaintiff as an aggressor, and the defendant the victim of oppression, would be a gross perversion of language. And as nothing tends more certainly to bring the administration of justice into contempt than to permit a meritorious party to be put in the wrong by the fraudulent contrivance of his adversary, we have no hesitation in refusing the defendant’s application to set the service of the attachment aside. This conclusion, in effect, decides the rule on the part of the plaintiff to set aside the service of the capias ad satisfaciendum.

It is manifest that this service, as it is termed, would not have taken place, if the proper officer had not been absent when the defendant called at the sheriff’s office. The book-keeper, not having the writ, it is not easy to see how he could arrest the defendant; and according to the return, he certainly did not. Being ignorant of the countermand of the writ and unacquainted with the proper duties of a bailiff’, he was induced to yield to the defendant’s solicitation and inform the prothonotary that he was under arrest.

The whole was the result of a purposed imposition of the defendant, and is subject therefore to the general rule which attaches to every species of fraud. The service of the capias ad satisfaciendum, is accordingly set aside. Another branch of the defendant’s application is to quash the writ of attachment. The issuing of the fieri facias and capias ad satisfaciendum, constituted, it is said, an election by the plaintiff, which barred a resort afterwards to the attachment. This deduction, it is argued, is warranted by the 20th

section of the execution act. As this is but a proviso to the 19th section, to be intelligible, the two must be taken together. They read thus: Sect. XIX. “ The plaintiff in any judgment which shall be obtained, <&c., for the recovery of money, may have execution thereof, subject to the restrictions and qualifications herein provided, against the person and estate of the defendant in the following order, to wit: I. Upon the personal estate of the defendant. II. Upon his real estate. III. If he have neither personal nor real estate, liable to execution, then upon the person of the defendant. Sect. XX.

Provided, That it shall be lawful for the plaintiff to have execution against the real estate of the defendant, or against his person, in the manner hitherto allowed, or at his election he may proceed to obtain the satisfaction of his judgment out of such personal estate as is by this act now first made liable to execution.” The election here mentioned is a privilege of the plaintiff irrespective of the defendant’s wishes. It is a dispensation of the rigour of the 19th section, which exacts a levy on the entire personal estate, before recourse can be had to the real estate or the person of the defendant molested.

But as by a subsequent

section of the same statute, a certain description of personal property cannot be made available to the plaintiff but by the very uncertain and dilatory proceeding of attachment, it is not made compulsory on him to prosecute this writ, but he is permitted to levy on real estate when this can be found, or in defect of this, may direct a capias ad satisfaciendum against the defendant’s person.

Of what importance, then, is it to the defendant, that the plaintiff, who on general principles, is restrained from the execution of more than one judicial writ, should be debarred from using the attachment from the mere fact, that shortly before, he had directed a capias ad satisfaciendum to be issued 1 To permit the plaintiff to abandon the capias ad satisfaciendum, is to protect the defendant’s person—the grand object of the 19th section, which is but a fresh affirmation of the cherished policy of the commonwéalth for at least a quarter of a century.

Practically, therefore, the construction contended for, would conflict with the very spirit of this part of the act,—might, in many instances, be injurious to the plaintiff, and could in no case, in a just sense, be advantageous to the defendant. Considerations of this nature, have led to the abolition of the doctrine, analogous to what has been claimed by the defendant’s counsel, on the present occasion, in respect to the use of a fieri facias and capias ad satisfaciendum.

It is well settled now in the English courts, that both these writs may be issued at the same time, and placed together in the sheriff’s hands for execution, who may execute the one or the other as he judges most advisable. Miller v. Parnell, 1 E. C. L. R. 414; Primrose v. Gibson, 16 E. C. L. R. 78. The use of the writ is held to be the proper evidence of an election. , Miller v. Parnell. With us also, these writs may be issued cotemporaneously—Allison v. Rheem, 3 S. & R. 142—and the practice is sustained on the ground of convenience. Ibid. But giving to the language of the 20th

section its fullest force, it is not stronger than that of the stat. of Westminster 2, ch. 18, in regard to the writ of elegit. “ Cum debitum fuerit recuperatum vel in curia regis recognitum, vel damna adjudicata, sit de castero in- electione illius qui sequitur pro hujus modi debito aut damnis sequi breve quod vice com. fieri faciat de terris,” &c. According to Lord Coke, 2 Inst. 394, after the suing out of the elegit, the plaintiff could not have a capias. But this rigid construction did not continue long.

Bingham alludes to the change in this way: “ on further consideration of the statute of Westminster 2, it was adjudged that an award of an elegit on the roll should be no longer a bar to an execution by capias ad satisfaciendum or fieri facias, but only the sheriff’s return that he had delivered land according to the exigence of the writ.” Bing, on Execution 111. The reason of the prevailing doctrine is very clearly and sensibly stated by the court in Beacon v.

Peck, 1 Strange, 226. “ The election,” it is there said, “ is not complete unless the plaintiff has some benefit from the land: for the taking out the writ is not an actual election, but only in order to an election,” This decision, it is true, is nothing more as to the facts of the cause in Strange than that a resort, primarily, to an elegit should not conclude the plaintiff from other process when the elegit had proved fruitless.

Nevertheless, according to the ancient doctrine, which was grounded expressly upon the language of the statute, the very entry of an elegit on the roll was a determination of the plaintiff’s choice. And regarded in the light of evidence of his purpose, it is certainly as satisfactory as the actual execution of the writ could be. The very entry on the roll imports, the exercise of deliberate choice prior to the award of the writ. “ The said A. B. by his attorney, &c., according to the form of the statute, &c., chooses to be delivered to him,” &c. Tidd’s Prac.

Forms 397, or in the original entries “ quod elegit sihi execu-tionem,” &c. 2 Inst. 395. Indeed, looking at the end as well as the terms in which they are framed, the suing out of fieri facias and capias ad satisfa-ciendum, contemporaneously, is utterly incongruous. Each issues for the whole debt, and when used, is for the time, regarded as satisfaction; yet this and similar refinements have given place to just notions of practical convenience; and we should hold ourselves authorized in applying a precedent, so salutary to the present inquiry, if we had nothing more stable to rest upon. But the words of the 20th

section will bear this

interpretation without the slightest violence. “ It shall be lawful for the plaintiff to have execution against the real estate of the defendant or against his person, in the manner hitherto allowed, or, at his election, he may proceed to obtain satisfaction,” &c, The mere exit of a writ is not the execution of it.

This is plainly the meaning here—for it is execution in the manner hitherto allowed; and that as is well known, and has been before particularly adverted to, was held to consist in nothing short of actual levy under the one writ, and a corporal caption by the other; and until execution be had, under a fieri facias or capias ad satisfaciendum, the right to issue an attachment may be exercised. Rule to quash the attachment discharged, and to set aside the service of the capias ad satisfaciendum absolute.