
    *Windrum v. Parker and Goodwyn.
    October, 1830.
    (Absent Brooke, P.. and Coaeter, J.)
    Executions on Decrees — Control of Equity Courts Over. —The statute giving common, law executions on decrees in chancery, gives the courts of chancery the superintendence and control of all such process, and power to correct irregularities and abuses in it.
    Same — Same.—The courts of chancery may quash executions irregularly sued out on their decrees, and forthcoming bonds taken under them, on motion made on notice, in a summary way.
    Executions — Construction of Statute — Right to Second Execution When First Not Returned. — Construction of the 3d section of the statute of executions, 1 Rev. Code, ch. 13i: it authorises a party who has sued out one execution, to sue out other executions,' if the first be not returned and be not ' executed; if the first be executed though not returned, the party is not entitled to sue out any other execution.
    Ca. Sa. — Discharge of Debtor by Order of Creditor— Effect. — If a debtor be arrested on a ca. sa. and discharged by order of the creditor or his agent, no other execution can be had on the same judgment or decree.
    
      Same-Escape of Debtor — Rights oí Creditor. — 1 f debtor in custody under a ca. sa. be permitted to escape, the creditor is entitled to another execution against the debtor as well as to an action against the sheriff for the escape; per Gitnna", J.
    A fieri facias was sued out of the supe-riour court of chancery of Richmond, by Windrum against Parker, upon a decree of that court, for 254 dollars; and the execution having been delivered to the sheriff of Southampton, and levied by him on property in Parker’s possession, Parker gave a forthcoming bond with Goodwyn his surety, for the delivery of the property at the day and place of sale. And upon a motion made by Windrum in the court of chancerjq upon due notice, for an award of execution upon the forthcoming bond, against Parker and Goodwyn, and a cross motion by Parker and Goodwyn, also upon due notice, to quash the fieri facias and the forthcoming bond taken upon it, the case appearing in evidence, was as follows:
    Windrum had sued out a capias ad satisfac-iendum against Parker, for the same debt, on the same decree, some twelve months before the suing out of the fieri facias in question. And the sheriff of Southampton deposed, that John Wyche, who was introduced to him as the agent or attorney of Windrum, by Mr. Claiborne (a member of the bar, whom he *'knew to have been the attorney for Windrum, in another and recent case), delivered the capias to him, and desired him to execute it: that Parker was presently arrested, and carried to the sheriff’s office: that Wyche asked the sheriff, to let Parker walk out with him for a few minutes, which being assented to, they retired together, and returning in a short time, Wyche told the sheriff he might release Parker: that the sheriff being about to make his return upon the capias, asked Wyche if he was the legally authorised agent or attorney of Windrum, to which he answered that he was, and putting his hand in his pocket was in the act of producing his authority, when the sheriff told him he was satisfied, and thereupon endorsed his return upon the process : “Arrested the within named Henry Parker, on the-day &c. and by the direction of John Wyche, attorney for the plaintiff, he was released :” that the capias with this return upon it, was handed by the sheriff to Wyche, with a request .that he would return it to the clerk’s office, which he promised to do : that some two months afterwards, the capias was again presented to the sheriff by Mr. Claiborne, who requested him to alter his return, saying, that it might be doubted, upon the terms of the return, whether Parker had not paid a consideration for his discharge, and after such a return upon such an execution, it would be impossible to get another execution, and indeed the clerk refused to issue another; but the sheriff refused to make any substantial alteration of his return, and only consented to add the words “therefrom” after the word “released,” at the end of it; and then the process was handed back to Mr. Claiborne, who, as the sheriff thought, was acting in this business as the attorney of Windrum.
    It appeared, that Windrum had sued out another fieri facias against Parker, upon another decree of the superiour court of chancery, for another debt, about the same time the fieri facias in question was sued out: that that other fieri facias was levied, by directions of the same John Wyche (professing, with Windrum’s knowledge, to act as *his agent therein) on some property in Parker’s possession, thought the sheriff doubted whether he was the owner of it, and demanded indemnity; that this property was actually sold, Windrum and Wyche both attending the sale, and Wyche, in Windrum’s presence, assuming the entire direction and control of that proceeding, as Windrum’s agent.
    Upon this evidence as to the service of Windrum’s capias ad satisfaciendum on Parker, for the same debt, and upon the same decree, upon which the fieri facias in question was sued out, and of the release of Parker from custody under the capias, by which directions of Wyche as Windrum’s agent; the chancellor overruled Windrum’s motion for award of execution on the forthcoming bond; and, on the cross motion of Parker and Goodwyn, quashed the fieri facias, and of course the forthcoming bond also. Windrum appealed to this court.
    The attorney general for the appellant,
    objected, 1st. That even supposing the fieri facias was irregularly sued out, the motion to quash it was not the proper course, nor had the court of chancery any jurisdiction to correct any irregularity of the kind complained of in this case: the cause of relief being matter of fact, and disputed matter of fact, the true remedy was that which the common law provided and administered, namely, an audita querela. 1 Com. Dig. Audita querela. A. D. pp. 785-8. Or, if the chancellor could properly interfere at all, he could only do so by injunction. 2dly, He insisted, that the fi. fa. was regularly sued out. The previous ca. sa. had not been returned to the office : and the statute of executions (1 Rev. Code, ch. 134, $ 3, p. 527,) provides, that “when any writ of execution shall issue, and the party at whose suit the same is issued, shall afterwards desire to take cut another writ of execution at his own proper costs and charges, the clerk may issue the same if the first writ be not returned and executed;” that is, if it be not returned as well as executed: for the fact of the
    process having been executed *or not, can only be known by the return. 3dly, He said, the only ground on which Windrum’s right to take out the fi. fa. could be denied, was merely technical: it was not pretended, that Parker had paid the debt, or that Wind-rum had intentionally released it, but only that the discharge of Parker from custody under the ca. sa. which had been previously served on him, by the directions of Wyche, was a bar to any other execution on the same decree. The authority of one person to discharge the debtor of another from custody under execution, without satisfaction, of the debt, must be well ascertained by clear and decisive evidence, and strictly pursued. Crary & Morgan v. Turner, 6 Johns. Rep. 51. And he insisted there was no proof, that Wyche was Windrum’s attorney at law, or his attorney in fact, or otherwise his agent authorised to give the directions under which the sheriff discharged the prisoner. The sheriff’s return (according to his own account of it) seemed to import, that he regarded Wyche as Windrum’s attorney at law: and if that was the nature of his authority, he certainly had no right to discharge his client’s debtor from execution without satisfaction. Jackson v. Bartlett, 8 Johns. Rep. 281; Kellogg v. Gilbert, 10 Johns. Rep. 220. The sheriff, then, discharged Parker without any due authority; he permitted his prisoner to escape; and Windrum was entitled to his action against the sheriff for the escape, and to another execution against the debtor. 2 Bac. Abr. Execution, D. p. 719. And the case of Kellogg v. Gilbert shewed, that Windrum, in the present case, might have prosecuted his action against the sheriff for the escape at the same time that he pursued the debtor by a new execution.
    Leigh, for the appellees,
    said, it had never been doubted, that the statute which gave the common law process of execution to enforce decrees in chancery, conferred on the court of chancery, of necessity, the power and duty to superintend the process; to do whatever may be necessary to give effect to its process, if regularly sued out, and to correct any *abuse of it: . and, as a motion for award of execution on forthcoming bonds, taken under executions sued out upon decrees in chancery, must be addressed to the chancellor, so also to him must be addressed all complaints of process irregularly sued out on his decrees, and all applications for redress against abuses of the process of his own court. _ And the motion was the proper course for the party aggrieved to obtain redress. An audita querela could not be prosecuted in the court of chancery; and a bill of injunction would be dilatory and expensive. Indeed, the audita querela was absolete in our practice: the proceeding by motion to quash had been long since substituted for it, in the courts of common law. As to the construction of the 3d section of the statute of executions; he said the meaning and effect of that provision were, that a party having sued out one execution, may demand another of the clerk, if the first be not returned and be not executed; or, in the words of chief justice Marshall, delivering the opinion of the court in Peyton v. Brooke, 3 Cranch, 96, “the statute contemplates the case where the first execution is not returned nor executed; that is, where it is out and may be served.” Where one execution has been sued out, but no return thereof has been made, the party may demand other executions of the clerk, at his own cost; but he must take them at his peril also; and if his first execution has been saved, his other e'xecution will be quashed. In the present case, however, the first execution (the ca. sa.) had been executed, and returned executed, and then withdrawn from the office, and suppressed; as is manifest from Mr. Claiborne’s application to the sheriff to alter his return, and the reason he assigned for the request. This was a gross abuse. Whether Wyche was the agent of Windrum, and acted by authority from him, in directing the sheriff to discharge Parker from custody under the ca. sa. was a question of fact, which the court would consider, and decide, upon the evidence. If he was, there could be no doubt of the legal effect of such a discharge of the debtor. Vigers v. Aldrich, 4 Burr. 2482; Jaques v. Withy, 1 T. R. 557; *Clarke v. Clement, 6 T. R. 525; Tanner v. Hayne, 7 T. R. 420; De Costa v. Davis, 1 Bos. & Pul. 242; Blackburn v. Stupart, 2 East. 243; Eurman v. Gaskin, 2 Caine 369; Yates v. Van Ransellaer, 5 Johns. Rep. 364.
    
      
      Executions on Decrees— Control of Equity Courts Over. — When the statute law authorized the issuing executions on decrees, it clothed the courts of chancery with the power of watching over such process and correcting any abuses arising under it, to the same extent and by the same means that courts of law use. And in deciding upon all questions in respect to executions on decrees, the courts of chancery are bound to abide by the common law and statutes respecting executions at law. Snavely v. Harkrader, 30 Gratt. 492, citing the principal case.
    
    
      
       Ca. Sa. — Discharge of Debtor by Order of Creditor —Effect.—it has undoubtedly been established, by a series of decisions, that where a defendant in execution under a ca. sa. has been discharged from his imprisonment by the direction or with the consent of the plaintiff, no action will ever again lie on the j udgment on which the execution is founded, the judgment being considered as satisfied. Nor can any new execution ever issue on that judgment. even though the defendant was discharged on an express understanding on his part, that he should be liable again to' be taken in execution, on his failure to comply with the terms on which the discharge took place. Noyes v. Cooper, 5 Leigh 187, citing the principal case.
    
    
      
      Same — Escape of Debtor — Rights of Creditor, — See foot-note to Carthrae v. Clarke, 5 Leigh. 268.
    
   CARR, J.

It was contended by the appellant’s counsel, 1. that under the 3d section of our statute of executions, the fieri facias in question was properly issued, Windrum having a right to demand the same, because the first execution was not returned and executed: 2. that the court could not on motion quash the execution, the proper remedy being audita querela, or injunction: and 3. that if a motion was proper, the decree was wrong upon the facts. The words of the statute on which the first point rests, are taken verbatim from a statute passed in 1726 (4 Hen. stat. at large, p. 156), and there we find them immediately preceded by this preamble: “And for removing all scruples, which may be entertained among clerks, concerning the issuing of executions, Be it enacted and declared,” &c. It is purely directory to clerks. We see from various cases, that, in practice, a plaintiff was permitted to take out several executions upon his judgment at the same time. Stamper v. Hodson, 8 Mod. 302; Miller v. Parnell, 6 Taunt. 370; 1 Com. Law Rep. 414, S. C. This was convenient, and productive of no mischief: for the process was always under the control of the court; and if the plaintiff proceeded upon one, he thereby determined his election, and could make no use of the other. It seems clear to me, that the clause in question was meant merely to regulate this practice; and applies solely to cases, where a party having taken one execution, wishes before that is returned, or acted upon, to take out another. In such case, he is permitted to do so, “at his own proper costs and charges.” This is also the opinion of the federal court, as delivered by chief justice Marshall, in Peyton v. Brooke. It cannot be presumed, indeed it was not contended, that the law meant that a fi. fa. should issue, where in truth a ca. sa. had been levied and not discharged: but it was said, the clerk ®was not to judge of the fact, and could only know of the levy by’ the regular return ; that, therefore, the clerk, in this case, as there was no return, was bound to issue the second execution. I do not think it material to discuss this question ; for, admitting that the clerk committed no error in issuing the execution, the question still remains, could the plaintiff properly have it levied after what had taken place on the ca. sa. and if not, had not the court power to quash it on motion? That the levy of a ca. sa. and the release of the debtor from execution, by the plaintiff or his agent, is an extinguishment of the debt, I have considered to be as well settled a4 any point can be, by an unbroken series of decisions. I must, indeed, do the counsel the justice to say, that I did not understand him to controvert this position. But he contended, that the second execution could not be quashed (especially by a court of chancery) on motion, but there should have been an audita querela, or injunction. I consider that when our law authorised the issuing executions on decrees, it cloathed the chancellor with the power of watching over such process, and correcting any abuses arising under it, to the same extent, and by the same means, that coarts of law exercise. The adjudged cases on the subject shew, that where the debtor had been discharged on a ca. sa. and other execution afterwards taken out against him, it was quashed indifferently on motion, or on rule to shew cause, which in truth is a mere notice of a motion, such as the party has here. With us, the audita querela is intirely superseded in practice, the proceedings by motion being considered as the cheaper and more convenient mode. The cases of Taylor v. Dundass, 1 Wash. 94; Hendricks v. Dundass, 2 Wash. 50; Downman v. Chinn, Id. 303, suffice to shew, that it has been the constant and approved practice of our courts, to exercise the power of quashing process which has irregularly issued, or been abused in the execution of it, on motion. I will not inquire here into the power of an attorney at law to bind his client, by discharging his debtor from execution ; because, from the evidence, I think Wyche acted in the combined character of attorney at law and attorney in fact; and I feel no doubt, that his direction justified the sheriff in the discharge.

GREEN, J.

It is clear, that Wyche had authority from Windrum to control his executions on a decree in chancery against Parker. He was in possession of the ca. sa. delivered it to the sheriff, and directed his proceedings upon it. He afterwards attended the sale appointed under the subsequent execution in company with Windrum, and acted on that occasion, as having the management of the execution. The sheriff, after indorsing his return upon the ca. sa. to the effect that he had executed it, and discharged the defendant by order of Wyche, the attorney' for Windrum, delivered it to Wyche; and there is good reason to believe, from the declaration of Mr. Claiborne, who seems to have acted as the counsel for Windrum, that it was actually carried to the clerk’s office, but the clerk refusing to issue a new execution on account of that return, it was withdrawn. However this may be, the execution and return delivered to Windrum’s agent, from whom the sheriff received the execution, have been suppressed by Windrum or his agent or attorney, after an unsuccessful attempt to prevail upon the sheriff to alter his return and make it false.

The chancellor has, I think, put the just construction upon the execution law. The clerk was justified in issuing the last execution, in consequence of the ca. sa. not being returned; for to make a technical return, it is necessary that the execution should be actually returned to the office, with an indorsement signed by the sheriff, shewing how he has proceeded on it. But the plaintiff took out his second execution at his peril. Knowing the fact of the ca. sa. having been executed, he imposed upon the clerk by suppressing the ca. sa. and got another execution, which could not have issued but for his fraudulent suppression of the ca. sa. and return. Every court has an undoubted power to superintend the execution of its own process, and especially of executions, '"and to correct abuses therein, on motion, in a summary way; and may inquire into the facts necessary to the exercise of that power, either by the aid of a jury, or otherwise; confining itself, in all cases, within the limits of a sound judicial discretion, according to the nature of the case. Nor is there any doubt, that the discharge of a debtor in execution, by order of the plaintiff, is a perpetual bar to a new execution on the same judgment or decree. This is the settled rule in the courts of law; and since all executions, which can be issued upon a judgment at law, have been allowed by our statute to issue upon decrees in chancery, the courts of chancery are bound, in deciding upon all questions in respect to them, to abide by the common law and statutes respecting executions at law.

The question raised at the bar in respect to the right of a plaintiff to take out a new execution in case of a voluntary escape, does not occur in this case; for here was no voluntary escape. The sheriff acted under the directions of one duly authorised to control it. If this be not fully proved, it ought to be presumed in odium spoliatoris: but I think it is sufficiently proved by the evidence: the very suppression of the return is proof that it was a true one, and known to be so; for if it had been false, there would have been no motive to suppress it, since it would have made the sheriff liable for the debt. If that question did arise, I should think, that in a case of voluntary escape, a new execution might be taken out; though the contrary was held, as far back as the reign of Elizabeth, Einacre’s case, Le. 230, yet in the reign of Charles II. it was settled upon the principles of the common law, uninfluenced by any statute, that in such a case, a new execution may issue. Bassett v. Salter, 2 Mod. 136.

CABEEE, J., concurred, and the order was affirmed.  