
    SEPTEMBER TERM, 1771.
    
    Dorsey’s Executors vs. Worthington.
    Attachment upon a judgment, with a clause of sci. fa. under the act of 1715, eh. 40, s. 7.
    The case. The defendant was taken and committed in execution, upon sundry judgments,, at the suit of the present plaintiffs, to R. Jldair, late sheriff of Baltimore county, and remained in execution during his sheriffalty. Jldair omitted to assign the defendant over to D. Chamier, who succeeded him. The defendant was in the custody of Chamier under other executions, but not being detained by him on the plaintiffs executions, he went at large. The plaintiffs sued out the present attachment.
    Motion, on the part of the defendant, to quash the attachment.
    
      Chase, for the motion.
    An attachment on a judgment is in the nature of a fieri facias at common law. — Act of Ass. 1715, ch. 40. A fieri facias is a judicial writ at common law, on which the goods and chattels only of the debtor could be taken in execution. It took its name from the words of the writ. — Co. Litt. 290. 6. 3 Co. 11. The writs of execution at common law were only a ft. fa. on the goods and chattels, and a levarifacias, to lay £jle dgjjt and damages upon the land and chattels. — l)alt. Off. Sh. 144. 2 Bac. Ab. 351. 3 Co. 12. a. At common law neither the person, nor the lands of a debtor, were liable to execution, except in the case of the king, and of an heir on the obligation of his ancestor. — 2 Inst. 394. 2 Bac. Ab. 328. Dalt. 144. Godb. 290. 3 Co. 12, b. The person was not liable, that he might be at liberty not only to follow his own affairs, hut to serve the king. — id. The lands were not liable, because to take away the possession of lands, would hinder the following of tillage. — id.
    The common law was altered on commercial principles. — 2 Bac. Ab. 329. The statute of Acton, made the 11 Edw. I, anno 1283, and enforced and amended by 13 Edw. I. anno 1285, for the security of merchants, and encouragement of trade, subjected not only the goods and person, but the land of the debtor, into whose hands soever they came, after the statute acknowledged. — 2 Bac. Ab. S29. Dalt. 144. The statute 13 Edw. I. c 18, (commonly called the statute of Westminster 2d.) gave the elegit, and gave the creditor either a fa fa. against the chattels of the debtor, or a .writ to the sheriff to deliver all the chattels, saving oxen and beasts of his plough, and one half of the land, till the debt was levied, upon a reasonable price or extent. — 2 Bac. Ab. 329. Dalt. 134, 144. The statute 25 Edw. III. c. 17, (anno 1350,J subjected the person of the debtor, and gave the capias ad satisfaciendum. — 2 Bac. Ab. 329, 351. Dalt. 138, 144. But by the common law a capias ad satisfaciendum lay in trespass vi et armis, being a direct and wilful wrong, and in other cases by the above statute — 3 Co. 12, a. Mob. 56. Gilb. Ex. 59.
    
    The plaintiff lias his election to sue out what kind of execution he pleases, but not two different executions on the same judgment, nor a second of the same nature, unless upon failure of satisfaction on the first.- — 2 Bac. Ab. 353, 355. And it was formerly held that the praying an elegit on the roll, was a bar to all other executions* hut now otherwise, and that the return of the lands delivered by the sheriff is a bar to a new execution. — Gilb. Ex. 51. 1 Lev. 92 If the debtor died in execution, the plaintiff had no further remedy, because he had determined his choice. — 2 Bac. Ab. 354. 1 Stra. 653. Vin. tit. Execution, 28, pi. I, 2, 9. 5 Co. 86. 6. Tiie statute of 21 Jac. c. 24, gave a new execution after the death of the debtor in execution — 2 Bac. Ab. 354. 2 Jones, 21. 3 Blk. Com. 414 to 421. If a debtor is taken on ca. sa, .and escapes, or is rescued-, though sheriff is liable, yet the plaintiff may take out 
      my new execution, for the sheriff may be dead or insolvent' — 2 Bac. Jib. 355. Cites Oro. Car. 40, 240. 2 Bac. Jib. 239. Formerly held, if sheriff suffered a prisoner in execution to make a voluntary escape, the prisoner was absolutely discharged from the creditor, and sher iff only liable, but latter cases are otherwise, and plaintiff may have a new action of debt or sci. fa. qnare executionem non against the prisoner. 2 Bac. Jib. 240. 1 Lev. 211. Cites Sid. 330. Jlllanson and Butler, which case is approved. Holt. Rep. 279. 1 Show. 174. Cites 2 Jones, 21, Carter, 212. Cites 1 Mod. 194. 2 Lut. 1264. Prisoners, until they are turned over to the new sheriff, remain in the custody of the old sheriff, and if he omits to deliver them over, every omission is an escape, and he is liable • — 2 Bac. Jib. 241.
    Quere — Whether Chamier is liable to the plaintiffs for the escape of Worthington? 2 Bac. Jib. 242. 4 Bac. Jib. 445.
    The statute of 8 and 9 Will. III. c. 27. takes away all distinction between voluntary and permissive escapes with regard to the plaintiff’s remedy — 2 Bac. M. 240. See judges oath, Act of 1732, c. 5, and debates and proceedings of the upper and lower houses in 1725 and 1726. 1 Blk. Com. 106, &c. See Com. Hig. 183. 2 Mod. 136. Freem. 213, 398, pi. 619. Salk. 271. Hob. 60. Vin. tit. Execution, 38, pi. 8, 9; 44, pi. 11; 26, pi. 1. Bro. Jib. tit. Execution, 302, pi. 86.
    
      Johnson and Mexander, contra.
    It is immaterial whether the escape was in Jldair’s or Chamier’s time, the proceeding is justified by the authorities produced by the counsel in favour of the motion, where the party has not had the benefit of his execution — Cro. Car. 255. 3 Roll. Jib. 904, pi. 10, 11. Vin. tit. Executions, 26, pi. 4» 39, pi. 10, 11. (8 Car. I) 2 Mod. 136. (28 Car. JJ.J The courts of justice, and statutes, are approaching to that perfection so as to give complete satisfaction oft judgments. If the statute of James does not apply here, oft a person dying in execution, no new execution would lie against his effects. The creditor has a right to the body of the debtor during his life, and if he dies in execution, he has a remedy against his goods. If he escapes before he dies, there is no satisfaction, and the executioa is not complete, therefore it is within the reason of the ease of his death. In the case in Robert the point was not before the court, and the case in Roll. Jib. states thafc Rolle himself was counsel in the case. The case in Modern says the point had lately been settled, which was adjudged ten years after Rolle. There is nothing in the books afterwards on the subject. The statute of JFilliam extends to all gaols ip England. 1 Bac. Jib. 240, shews that the statute meant to take away the discmeiiou between voluntary and permissive escapes. Statutes arc not to have a retí ospect — 4 Burr. 2460. 1 Wils. 35. S Vern. 643. A new act has no retrospect, so as to take away an action to which tiie plaintiff was entitled before the commencement thereof — 19 Fin. Jib. 524. Cites 2 Mod. 310. (10 Car. II.J 2 Inst. 292. 2 Hep- 81.
    The Provincia!. Court did not quash the attachment. The garnishees appeared, and the case went on against them.
     