the roll: And the defendant has been allowed to enter satisfaction on the roll, upon a judgment obtained against him in the King's Bench, on his acknowledging satisfaction for the amount, upon a judgment obtained by him in the Common Pleas, against the plaintiff, for a larger amount, although he had the plaintiff in custody in execution on that judgment. So, after a plaintiff had recovered damages under a writ of inquiry in trover, for the conversion of his title deeds, the court permitted satisfaction of the damages to be entered on the roll, upon the terms of the defendant delivering up the deeds, and paying all the plaintiff's costs, as between attorney and client, and submitting to other terms, by which plaintiff was placed in as good a situation as he was in, before the cause of action. In the Common Pleas, the clerk of the treasury brings the judgment [*1086] roll into court, in term time, and the secondary enters satisfaction thereon: In vacation, a judge's fiat is obtained for that purpose, by the clerk of the judgments, who enters satisfaction on the roll: And, on entering satisfaction on the roll, it is usual, we have seen," for the plaintiff to pay one shilling for every hundred pounds recovered, to the secondary, who pays it over to the junior judge's clerk, by whom it is distributed among the prisoners in the Fleet prison. Append. Chap. XLI. § 114, 15. And see stat. 3 Geo. IV. c. 39. § 8. for entering satisfaction on a warrant of attorney, or cognovit actionem. Ante, 603. 608. r1 Maule & Sel. 696. CHAP. XLII. OF EXECUTION BY LEVARI FACIAS, AND EXTENT; AND THE PROCEEDINGS THEREON. HAVING considered in the last chapter, the ordinary modes of execution, for debt or damages and costs, by fieri facias, capias ad satisfaciendum, and elegit; and by retorno habendo and habere facias possessionem, in replevin and ejectment; I shall, in the present chapter, take a practical view of the writs of levari facias and extent, which are of less frequent occurrence, with the proceedings thereon. a The levari facias, of which something was said in the last chapter, is a process, by which the sheriff is commanded to levy a sum of money, of the lands and chattels of the defendant; and it is either for the king or the subject. There are several sorts of execution for the king: 1. a capias ad satisfaciendum, which takes the body of the debtor; 2. a fieri facias, to take his goods; 3. a writ, which is called the long writ, comprising a capias ad satisfaciendum, fieri facias, and extendi facias; 4. a levari facias, where the land is the debtor. This latter process may be issued at common law, for levying a fine or debt to the king: And where a defendant convicted of a misdemeanor, was sentenced to be imprisoned for two years, and to pay a certain fine, and to be further imprisoned till the fine was paid, the court of King's Bench in a late case held, that a levari facias might be issued out of that court for the fine, before the expiration of the two years; and that the sheriff was bound ex officio to levy it: at all events, that the writ of levari facias was regular, having been adopted by the crown. This writ may also be sued out of the court of Exchequer, for levying penalties,5 arrears of taxes, or the issues and profits of lands returned [*1088] by the sheriff, on a special capias útlagatum; in which latter case it has been holden, that the cattle of a stranger, levant and couchant upon the land, may be taken and sold under it. So, if lands be a Ante, 1030, 31. h* 1088 OF EXECUTION, BY LEVARI FACIAS. seized on an extent, process of levari facias may be issued to levy the rents half yearly, or oftener if required, until the principal debt, with costs and damages, as the court shall think fit, be satisfied.1 The court of King's Bench will not give a sheriff directions how he shall dispose of property remaining in his hands, which has been taken in execution, towards payment of a fine imposed upon the defendant on a conviction for a misdemeanor; but if the sheriff has made an improper return, it may be quashed. And the court of Common Pleas cannot apply the forfeited penalties of recognizances of bail, to attachments for resisting an execution, to the discharge of the debt and costs of the plaintiff in the original action." m The levari facias for the subject is either on a recognizance, or statute merchant, &c. By the common law, a levari facias may be sued out within a year, upon a recognizance, against the cognizor, for the money mentioned therein, to be levied of his lands and chattels: And this seems to be the proper process, after judgment in scire facias, on a recognizance of bail, upon which a capias ad satisfaciendum does not lie, in the Common Pleas. P So, upon a statute merchant, after the recognizance is certified into Chancery, if the cognizor be an ecclesiastical person, a levari facias shall be awarded, to levy the debt of his moveable goods; for his body shall not be taken: which writ may be directed to the sheriff, if the clerk has a lay fee; otherwise it shall be to the bishop of the diocese where his benefice lies; or, if he has benefices in several dioceses, there may be a writ for part to one bishop, and another for the residue to the other bishop: and if part of the debt be levied by levari facias, an alias levari facias may issue for the residue. So, if the sheriff return nulla bona to a fieri facias, and that the defendant is a beneficed clerk, having no lay fee, a levari facias, we have seen," may be sued out de bonis ecclesiasticis, under which the tithes or [*1089] other profits of the living may be taken in execution. It should be further observed, that the execution against the goods and chattels of the defendant is sometimes, in point of form, a levari facias, and particularly in the court of Exchequer; but this writ has no other effect than a fieri facias. There is also a levari facias, for executing the judgment of a county court; but this latter writ ought to be de bonis et catallis only, and not de terris et catallis; and the goods cannot be sold under it, without a special custom.z The writ of extent, or extendi facias, is a writ of execution against the body lands and goods, or the lands and goods, or the lands only, of the debtor: and it is either for the king, or the subject; for the former, it is an ancient prerogative writ, for obtaining satisfaction of debts originally due or assigned to the king, or found on an inquisition taken on a writ of extent, or diem clausit extremum. Debts originally due to the king are of record, or not of record: Debts of record are founded on judgments or recognizances, or inquisitions taken and returned on commissions issuing out of the court of Exchequer: Debts not of record are on bonds, or simple contracts; which latter are either due from the known public officers and accountants to the king, or from third persons. If a man receive the king's money, knowing it to be so, an extent may issue against him as debtor to the king; otherwise if he do not know it to be the king's money: And if it be found by inquisition against a receiver general, that he has paid over money to A., an immediate extent may issue against A.; for this is the king's money." The body lands and goods of the king's debtor, or his lands and goods after his death, were liable at common law to the king's execution; but by magna charta, (9 Hen. III.) c. 8. the king and his bailiffs were restrained from seizing any land or rent, for any debt, as long as the present chattels were sufficient to pay the debt, and the debtor was ready to satisfy the same:" and accordingly, a conditional writ was framed, commanding the sheriff to inquire of the goods and chattels of the debtor, and take them into the king's hands and if they were not sufficient to pay the debt, then [*1090] to inquire of and extend the lands, &c. and to take the body of the debtor. This writ, (according to the opinion of lord Coke,) was made after the statute 33 Hen. VIII. c. 39. § 50. 55. but that opinion was doubted by lord chief baron Gilbert, in his treatise on the court of Exchequer; because the writ seems to have been so contrived, that an inquisition should be found, whether the debtor had. any goods or chattels, and if upon the inquisition none were found, then to extend the land, and take the body of the debtor: So that it seems, this writ might have been used before the statute of Hen. VIII. without any violation of magna charta; for if it were found that the debtor had no goods, they might seize the land, and take the body; and therefore it seems to be a writ that was used upon motion to the court, and in cases of necessity, before the statute of Hen. VIII. But since that statute, the practice has been to issue the writ of extent, in its present form, to levy the king's debt of the body lands and goods of the debtor absolutely, without any previous inquisition touching the goods: And under this writ, the sheriff may in strictness seize the lands, although the goods should 32. a 11 Co. 92. a. Cro. Eliz. 545. 4 Leon. b Id. ibid. Lane, 23. and see West on Extents, 32, 3. 265, 6. < Bunb. 128. and see id. 24. 134. Com. Dig. tit. Dett, G. 7. 2 Price, 13. West, 267. S. C. 7 Price, 633. ₫ 3 Co. 12. b. and see Cro. Jac. 450. 3 Salk. 586. 2 Saund. 70. (a.) Com. Dig. tit. Dett, G. 2. Gilb. Excheq. 124. 3 Salk. 286. 12 Inst. 19. Gilb. Excheq. 126, 7. 2 Inst. 19. and see West, 76, &c. 190.0 h Gilb. Excheq. 127, 8. Id. ibid. and see West, 2, &c. Man ning's Law of Extents, 516, &c. be sufficient to satisfy the debt:k But the court of Exchequer will not make an order for the sale of lands, on the statute 25 Geo. III. c. 35. if goods sufficient to pay the debt have been seized under the extent.1 The writ of extent, at the suit of the king, is either in chief or in aid. An extent in chief is an adverse proceeding by the king, for the recovery of his own debt: An extent in aid is sued out at the instance and for the benefit of the debtor to the crown, or his surety, for the recovery of a debt due to himself: in the former case, the king is the real, as well as nominal plaintiff; in the latter, he is the nominal plaintiff only. On a judgment in scire facias for the king's debt, or on an information for penalties in the court of Exchequer, the regular process of execution is an extent in chief, against the body lands and goods of the defendant:" or a levari facias may be issued, with a capias clause for taking his body:" And, in the case of the king, there need not be any scire facias to revive the judgment, after a year and a day. So, on a recogni[*1091] zance to the king, if it be clearly forfeited, an extent may be issued in the first instance, against the body lands and goods of his debtor. The king's remedy, for the recovery of specialty debts, is governed by the statute 33 Hen. VIII. c. 39. which enacts, that "all obligations and specialties, which shall be made for any cause or causes touching or in any wise concerning the king's most royal majesty, or his heirs, or to his or their use, commodity or behoof, shall be made to his highness and to his heirs, kings, in his or their name or names, by these words, to the lord the king, and to none other person or persons to his use, and to be paid to his highness by these words, to be paid to the said lord the king, his heirs or executors, with other words used and accustomed in common obligations; and that all such obligations and specialties, so to be made, shall be good and effectual in the law to all intents and purposes, and shall be of the same nature, kind, quality, force and effect, to all intents and purposes, as the writings obligatory taken and acknowledged according to the statute of the staple at Westminster, had at any time before the making of that act been taken, used, exercised and executed, against any lay person or persons. And that all such obligations and specialties, the debt whereof not being paid nor contented in the life of the king, shall come remain and be to the heirs or executors of the king, at the free liberty, disposition, assignment and appointment of the same king, to whom such obligations or specialties shall be made as aforesaid. And that all suits, process, judgments, decrees and executions, thereafter to be taken, pursued, or given for the king, in any of the king's courts mentioned in that act, of or upon any of the same obligations, shall be of the same or like strength, force, effect and intent in the law to all pur |