
    Commonwealth v. Webster.
    June Term, 1852.
    i. Criminal Law — Capias Pro Fine.--The common law writ of capias pro fine is unrepealed, and may he used by the Commonwealth,
    a. Same -Same — When Proper — Case at Bar. — Where there is a judgment in favour of the Commonwealth for a fine and costs of prosecution, the writ may issue for the ñne and the costs; hut where the judgment is for costs without a fine, the writ is not a proper process to enforce the judgment.
    3. Same — Same—Imprisonment—How Defendant flay Be Discharged. — Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from imprisonment by paying the fine and costs. But the term of his imprisonment under such capias is limited by the provision in the Code of 1849, ch. 209, § 17, p. 781.
    
    At a special term of the Circuit court of Jackson county, held in January 1852, Samuel S. Webster applied *to the Court for a writ of habeas corpus ad subjiciendum, to be delivered from imprisonment in the jail of the county. The writ was issued; and the sheriff made a return thereon that Webster was in his custody by virtue of a commitment on four several writs of capias ad satisfaciendum issued from the clerk’s office of the Circuit court of Jackson for fines and costs in cases of the Commonwealth against him: And he made the writs and the returns thereon a part of his return to the writ of habeas corpus. Two of these writs were for fines imposed upon Webster in prosecutions for misdemeanor, and the costs of the prosecutions: The other two writs were for the costs of other like prosecutions where no fine had been imposed.
    Upon the return to the writ the Court with the consent of the parties, adjourned to this Court the following questions:
    1st. Whether a capias ad satisfaciendum can issue in behalf of the Commonwealth against a person convicted of a misdemeanor, on a judgment against him for a fine and costs.
    2d. If such capias can issue, is there any means by which he may discharge himself without paying the fine and costs.
    
      
      Capias Pro Fine. — For the distinction between a capias pro fine and a capias ad satisfaciendum, see Wilkerson v. Allan, 23 Gratt. 16, where the principal case is cited.
    
    
      
      Same — Imprisonment—How Defendant Discharged. —In Com v. Fields, 33 Gratt. 292, it is said: “Where a capias pro fine is issued, as in this case, for the fine and costs adjudged against the accused, and he is taken under that process, there is no means by which he can discharge himself except by paying both fine and costs. He must discharge himself by paying the whole judgment-, of which the amount adjudged against him as costs, is as much a part of the judgment as the fine assessed against him. See Webster's Case, 8 Gratt. 702.”
      
    
    
      
      This act provides, “If a person who is sentenced to be confined in jail a certain term, and after-wards. until he pay afine and the costs of prosecution, fail to pay such fine and costs before the end of said term, he shall continue in confinement until the same be paid or his discharge be ordered by the Court. But the additional confinement shall in no case exceed six months from the end of said term.”
    
   LOMAX, J.,

delivered the opinion of the Court.

At common law the crown for the recovery of its debts, could issue executions against the persons, and the goods and profits of the lands, and the goods and chattels, and the lands, of its debtors. That is it might issue an execution of capias ad satisfacien-dum, or of levari facias, or of fieri facias, or of extendi facias: And it might in one combine all these writs. In the case of a subject, whilst the writs of fieri facias and levari facias were the process of execution by which in all cases the judgments might be enforced, yet the subject also might have the execution of capias ad satis-faciendum *in all recoveries for wrongs committed with force; and the extendi facias for recoveries against an heir for the debt of his ancestor. These executions, all of them, existed at common law; and however the statute may have enlarged the number of cases to which some of them were made applicable, they were common law, not statutory, process: The writ of elegit was purely statutory. Ror the recovery of fines to the king, the usual process was against the person of the offender by capias pro fine, if he did not pay the fine which had been assessed, and against the goods and profits of the lands by levari facias. 2 Gab. 606; 1 Chit. Cr. L. 660. It is stated in the latter of these authorities that the imprisonment under the capias pro fine was, in respect of such fine, not as a debt but a punishment for the crime, until the fine was paid. It is true that a capias pro fine is an execution to compel the payment of the fine, as the capias ad satisfac-iendum is to compel the payment of the debt. Notwithstanding that point of resemblance, these two species of process were never confounded in practice; and were kept signally distinct in the views of the legislature, in many provisions made relating to the operation and the incidents of a capias ad satisfaciendum. In the original structure of the two writs the levy of the ca. sa. was made a direct satisfaction of the debt; but in the frame of the writ of capias pro fine the imprisonment did not purport to be a satisfaction of the fine; it was a part of the punishment; and the fine still remained in full force and could only be redeemed by satisfaction of the fine whenever it might be made. The frame of the writs of ca. sa. in its teste and return and the interval between them was also distinguished from the other writ. The levy of the ca. sa. was attended with consequences that do not seem ever to have attended the imprisonment under the capias pro fine — such as the effect of a voluntary enlargement of the prisoner to discharge *the debt — the effect and the liabilities arising out of an escape— the provisions enacted for the maintenance of the prisoner whilst in custody — the privilege of the prisoner to avail himself of the proceedings of insolvency under a ca. sa. which he did not have under the capias pro fine, (Chapman’s Case, IVa. Cas. 338,) and which required an express statute to entitle him to these proceedings, (Acts 1803, ch. 21, § 1; 3 Rev. Code 1819, p. 541,) — and the privilege of the prisoner in Virginia to discharge his person from custody under the ca. sa. by making a surrender of property, thereby in effect converting the ca. sa. into a fi. fa. In all of these particulars a distinction is observable between the capias ad satisfaciendum and the capias pro fine; and which never were wholly obliterated.

In some instances it will be seen in the books that a capias pro fine is a part of the judicial sentence pronounced by the Court; as in the old precedents of judgments in trespass, or wherever . the action was properly commenced by capias ad re-spondendum. In this and in other instances the judgment, in addition to the damages adjudged to the plaintiff, awarded a capias pro fine to the king. In none of the authorities does it seem to be stated that .there is any difference whether the award of the writ is expressly a part of the judgment, or is silently a consequence of the judgment —whether it be judicially awarded or ministerially issued.

The Commonwealth has always occupied the place of the crown, with its prerogatives as to all the legal remedies, not expressly taken away by statute. The co-existence of both these species of process was distinctly recognized and established by the case of Chapman, above referred to, and by the act of 1803; which was the consequence of that decision. The remedy by capias pro fine was not abolished by that ?.ct, because it destroyed one feature of distinction which existed between the two remedies. There is, therefore, no ‘"ground for pronouncing that the two remedies did not exist in full force and all their distinctness when the Code of 1849 took effect. In that Code the mere omission, from whatever cause, to reenact the provision contained in the act of 1803, continuing to the prisoner the privilege of insolvency, cannot upon any principle of statutory construction, take away the remedy to which that privilege had been made an incident. Nor does it seem to be taken away merely because the severity of that process, as it existed at common law, may not seem entirely reconcilable with the spirit of many provisions of the Code which relieve the persons of our citizens from process of imprisonment. This remedy cannot be considered as abolished because the legislature has enacted that on a judgment for money there may be issued a writ of fieri facias or elegit; and that certain other process of execution, not including the capias, shall not issue. Code, p. 711. Nor will it, if existing before in full force, as has been shewn, any more be considered as abolished, because the other distinct process of capias ad satisfac-iendum shall not, as enacted, p. 716, be issued or executed after that Code took effect. In none of these provisions of the new Code, therefore, does there seem a sufficient warrant for the Court to pronounce that the capias pro fine has ceased to exist, with all the effects which attended the levy of that process.

In the present case, two of the .writs of capias under which the petitioner was charged in custody, were merely for certain costs in prosecutions, how, or when, or under what circumstances, does not appear. They are distinct from any prosecution in which there was a fine assessed and remained unpaid; and the Writs command that he shall be taken, &c., until he pay those costs. A capias pro fine in such a case, clearly cannot be proper process. In the other two writs which were issued, it was commanded that he be taken, &c., until *he pay the fines and the costs awarded in the prosecutions respec-tivelj- against the petitioner. If originally any question could be raised, whether upon a judgment for fine and costs, the costs could be included in the capias pro fine, that question seems to be settled by the provision in the Code, p. 783, which authorizes the clerk to include the costs in the execution which may be issued for the fine.

The Court is therefore of opinion, and doth decide, in answer to the question adjourned, 1st. That a capias ad satisfacien-dum on behalf of the Commonwealth against a person convicted of a misdemeanor, upon a judgment against him for a fine and costs, cannot be issued; but that for such fine and costs, though not for costs alone without the fine, there may be issued a capias pro fine, which, and not the capias ad satis-faciendum, appears by the record to have been the species of process that was issued in two of the cases. 2dly. That where a capias pro fine is issued for the fine and costs adjudged against the accused, and he is taken under that process, there is no means by which he can discharge himself without paying such fine and costs. Nevertheless, the term of his imprisonment under such capias is limited by the provision in the Code of 1849, chapter 209, sect. 17, p. 781.

Which is ordered to be certified to the Circuit court of Jackson county.

HEIGH, J., dissented.  