
    *Fawkes v. Davison.
    July, 1837,
    Lewisburg.
    Ca. Sa. — Escape of Debtor — New Execution — It a. debtor charged in execution escape, the creditor may obtain new execution, either by scire facias, or upon motion after reasonable notice.
    Supersedeas to a judgment of the circuit court of Harrison. The reporter has been furnished with no copy of the record in this case, but is enabled to make the following statement from the opinion of one of the judges.
    Eawkes sued out of the county court of Harrison, on the 30th of August 1822, a capias ad satisfaciendum against Davison, who, by virtue thereof, was arrested and committed to jail. Davison escaped from jail, but the record does not shew when he escaped, nor whether the escape was voluntary or by negligence. In December 1833, Eawkes gave a written notice to Davison, that he would move the countv court to award a new writ of execution against him, in consequence of his escape, and of the judgment being yet unpaid. The county court awarded the writ. The circuit court reversed the decision of the county court. And then a supersedeas was obtained to the judgment of the circuit court.
    
      W. A. Harrison, for plaintiff: in error.
    Lee, for defendant in error.
    
      
      See principal case cited in foot-note to Carthrae v. Clarke, 5 Leigh 268.
    
   BROCKENBROUGH, J.

In this case it appears that Fawkes sued out from the county court a ca. sa. against Davison on the 30th of August 1822, on a judgment there rendered, and by virtue of it the defendant was committed to jail. The prisoner escaped from jail; but when he escaped, or whether the escape was voluntary or by negligence, docs not appear from the record, nor perhaps is it material in the present enquiry. In December 1833, the plaintiff gave a written notice to the ^'defendant, that he would move the county court to award a new writ of execution a,gainst him, in consequence of his escape, and of the judgment being yet unpaid. The county court awarded the writ. On appeal, the judgment was reversed by the circuit court; and this last judgment is now brought up for examination and decision.

It was at one time decided in England, in Hobart’s time, that where a sheriff suffered a prisoner in execution to escape, the prisoner was discharged Irom the creditor, and the rig'ht of action was entirely transferred against the sheriff, who by means of such escape became debitor ex delicto. This decision was declared to be not law in Tre-vilian v. Lord Roberts, by the judgment of the court, in 10 Charles 1, and it was then .held that though the plaintiff might bring his action against the sheriff for the voluntary escape, yet it is at his election ; for the party in execution shall not, by his own wrong, put the plaintiff to his action against the sheriff, against his will; and it might be that the sheriff is not able to give him recompense. In that case the sheriff had retaken the prisoner, and kepi him in prison; and it was decided that he was in execution to the creditor, under theo original ca. sa. For a further illustration of the rights of the creditor under the old execution, when the prisoner, having escaped, has afterwards been retaken, either by the sheriff or the creditor, or has voluntarily returned into custody, I refer to the case of Carthrae et al. v. Clarke, S Leigh 268, where the question was laboriously investigated.

But if the prisoner has not been retaken, nor returned himself into custody, so as to be in under the old process, what is the remedy of the creditor? If the writ has never been returned and filed, the plaintiff may have a new capias ad satisfaciendum, and lake him again. Ridgeway’s case, 3 Co. Rep. 52, b. In such case no scire facias was necessary to take out the new ca. sa. because "it does not judicially appear that the judgment had been executed. But if the writ has been returned and filed, it shews that the judgment has been executed, and if the prisoner has escaped, the creditor cannot have a new ca. sa. against the defendant without a scire facias. Per Holt, 12 Mod. 230. It is remarked by Gilbert, “that the courts formerly held that if the debtor escaped, the only remedy was against the sheriff, and the creditor could have no new execution, because the judgment was executed, and therefore could not be executed over again; but afterwards they found it necessary to come to another resolution when the debtor escaped, for that fortuitous act of the debtor did not extinguish the debt, and if the debt had still continuance, it was unreasonable not to allow the creditor his execution in order to have satisfaction of his debt, and it could not be properly said that the judgment was executed over again, when the first execution was rendered by the debtor himself ineffectual.” Gilbert on Executions, pp. 78, 79. But as the judgment had been rendered ineffectual by an event subsequent to the execution of the judgment, it was obviously improper to execute the judgment over again without giving the defendant an opportunity of contesting the facts on which the new right was asserted. That could only be done by application, in some shape or other, to the court itself, who alone could award a new execution. Accordingly in Buxton v. Home, 1 Show. 174, an action of debt was allowed to be maintained on the judgment as a subsisting unexecuted judgment; and in Alanson v. Butler, 1 Siderfin 330, also reported 1 Levinz 211, a scire facias quare executionem habere non debet was sustained. I refer also to Bacon’s Abr. Escape in civil actions, C. who says, “It has been adjudged that where a sheriff suffered a voluntary escape, the plaintiff might have a new action tjf debt or a scire facias quare execution non against the prisoner;” a.nd refers to the above mentioned cases as well *as several others. See also same book and title, letter E-, 3.

It is to be observed that this process of a scire facias quare execution non is general, and is not confined to that particular species of execution (the ca. sa.,) by which the judgment was in the first instance executed. According to my understanding of the case of Basset v. Sailer, as reported in 2 Mod. 136, the court expressed its opinion that either a ca. sa. or a fi. fa. might be awarded to the plaintiff against the defendant, after the sheriff had suffered him voluntarily to escape; but 1 judge from the marginal note that a scire facias was the proper process by which he was enabled to obtain either the one or the other of these executions. The case is short and obscure, but I think that this is the true meaning of it. However this may be, it is certain that Gilbert, in the page above referred to, is decidedly of opinion that the creditor might have any execution (whether a ca. sa., fi. fa. or elegit) by which he may obtain satisfaction of his debt.

Not long after the decision in Basset v. Salter, the statute of 8 and 9 Will. 3, ch. 27, 'i 7, was enacted, which removed all doubts which previously existed there on the subject. It authorizes the creditor at whose suit a prisoner (who had been in execution) has in any manner escaped, to sue out any new capias, or any other kind of execution on the judgment, as if the body of such prisoner had never been taken in execution. The provisions of that statute have never been adopted by our legislature, and we must relieve ourselves from the obscurity with which the common law has invested the subject, as well as we can.

A creditor may then resort to the scire facias quare executionem non, and in that way may obtain either a fi. fa. or a new ca. sa. against the defendant who has es- : • • caped. But is that the only way in which the courts will allow a just creditor to . i obtain satisfaction of his ^judgment? ’ Is there any reason why the modern and more summary method of proceeding, by a motion to the court, on a notice to the adverse party, may not be allowed? The object is to enable the court to enforce its own judgment, and superintend its own process; and justice requires that the speediest method of obtaining this object, compatible with the rights of the defendant, should be adopted. If the debtor desires to enquire into any facts, the court will either hear his evidence, or, in its discretion, may direct a jury to enquire into those facts, on the motion ; and in this respect the scire facias has no advantage over the motion. For the purpose of enabling the court to superintend with greater ease the execution of its process, and to prevent its abuse, the courts have in modern times substituted the motion for the audita querela, and I can see no reason why we may not, in a plain case like the present, adopt that remedy for this kind of scire facias. For other cases in which the courts have exercised a discretionary power in moulding their process to subserve the purposes of justice, I refer to the opinion of the president about to be delivered. i 1 : . : ■ : ■ :

On the whole, I am for reversing the judgment of the circuit court, and affirming that of the county court.

CABELL, J., concurred.

PARKER, J.

I did not hear the argument of this case at the last term, but I have considered it at this, and fully concur in the opinion of judge Brockenbrough.

TUCKER, P.

This case was argued at the last term before my brethren Cabell, Carr and Brockenbrough, and is now brought on again in consequence of the death of judge Carr. He has left a very laborious and able review of the english cases on the subject of the right of a party to take a new execution after an escape; and *has proved most satisfactorily that the case of Basset v. Salter, in 2 Modern 136, is untruly reported. To this review I beg leave to refer, as it fully sustains and entirely concurs with the opinion I always entertained of that case. I ask also of the goodness of the reporter to insert it in a note.

I will only add a reference to Cro. Car. 240, 255; 1 Salk. 271; 2 Lutw. 1264, from which, as well as from the general terms of the scire facias, it is to be fairly inferred that the award or judgment on the scire facias was that the plaintiff might take out any species of execution at pleasure. The scire facias issues precisely as if there never had been a ca. sa. issued, and the defendant pleads the ca. sa. to which the plaintiff replies the escape. 2 Lutw. 1264.

But although I altogether concur with our late highly esteemed colleague in his criticisms upon the case of Basset v. Salter, and in the position that until the statute of Will. 3, the creditor could not, after an escape, take out any other execution without the authority of the court (except perhaps a ca. sa. — as to which the authorities are not very clear) and though I admit that in the authorities quoted, the remedy of the creditor at common law is said to be by scire facias quare executionem habere non debet, yet I am of opinion that the remedy by motion is equivalent, and may be resorted to in lieu of the scire facias. It is certainly true that where the right of a party to sue out a new and different execution depends upon matter ex post' facto to-that which was first issued, the creditor can never proceed until this matter has passed under review of the court, and been fairly adjudicated, except where some statute has otherwise expressly provided. He cannot be permitted to take the law into his own hands, and sue out a new execution at his own discretion. His right to sue it out arises from the tortious escape of his debtor from execution *without satisfying the debt. It is proper then to bring the matter before the court, that the defendant may have an opportunity to-contest his right; for he may be able to shew either that he has paid the debt, or that he has escaped with the creditor’s consent, in either of which cases the debt is. discharged. But this matter can as well be tried upon motion as upon a scire facias, and though perhaps the motion could not be substituted for the scire facias to revive a judgment which has run out of date or been dated by death, because that is the remedy prescribed for those cases by statute, yet where, as in this case, the scire facias is the creature of the court, and moulded by it to meet the exigencies of justice, it is within its power and discretion to substitute the motion for it. Of its powers in this respect we have an instance in the audita querela, the office of which is now supplied, partly by the motion, and partly by an injunction in chancery. So where, after judgment against two, one dies, it was formerly held that an execution (containing a suggestion of the death of one) could not issue against the other without a scire facias; but the modern practice is otherwise, and even a suggestion on the roll is deemed sufficient. Tidd’s. Practice 1028; Sellon’s Practice 578; 2 Ld. Raymond 808. So too upon a reversal on a writ of error, where the debt was paid by the defendant before the writ of error was sued out, a scire facias was the regular mode of getting an award of restitution. Tidd 1137. But with us, a motion to the court of error, where the payment appears of record, supersedeas the necessity of the writ of scire facias; and where the payment does not appear, the defendant may proceed either by scire facias or rule in the court below. Eubank etal. v. Ralls’s ex’or, - 4 Leigh 308. And to this rule a motion on notice is equivalent. So too the motion with us has superseded in practice the writ of error coram nobis; Gordon v. Frazier &c., 2 Wash. 130. And indeed it *has become so familiar and common a mode of proceeding with us, that in : many cases it has (by legislative provision indeed) been substituted for the regular action at common law. Thus motions lie against sheriffs, attorneys &c. and are the proper remedy in cases of forthcoming bonds and irregular executions, which may be quashed and new process awarded upon motion. Indeed it is found so convenient a remedy, that it is daily extended; and as a jury may be always sworn to try any fact, in the discretion of the court, there seems no substantial difference between a motion upon notice for a new execution, and the scire facias to shew cause why a new execution should not issue. I am well satisfied that it has been the common mode of proceeding in our courts, and I think it a very convenient practice, being less cumbrous, more speedy and less expensive. Upon the whole, therefore, I am of opinion to reverse the judgment of the superiour court, and to affirm that of the county court.

BROOKJQ, J., concurring, judgment of circuit court reversed, and that of county court affirmed.

The opinion prepared by Jtjdgb Cakr in the above case was in the following terms.

Davison being m execution on a ca. sa. escaped, and afterwards, on motion of the plaintiff (with notice) the court from which the ca. sa. had issued gave him leave to sue out a new execution on the judgment, not restricting him to a ca. sa. The question is, could the court do this on motion? Lf so, the power must be derived from the common law, as we have no statute giving it. We must not confound this with the question whether, after an escape from execution, the plaintiff may retake his debtor by a new ca. sa. — a point well settled in the affirmative, both by the english cases, and our case of Carthrae et al. v. Clarke, 5 Leigh 268, and this whether it be a negligent or voluntary escape by the sheriff, ft is equally well settled, that after such escape the plaintiff may have a scire facias against the defendant, or an action of debt on the judgment. But can the court on motion award him a fieri facias*- The only case in the english books, which looks like authority to this point, is Basset v. Salter, decided in the 28th vot Charles 2, and reported in 2 Mod. 136, and also in Freeman 212. We had in our library here (at Lewisburg) only Mod. Rep. and there the case is thus stated: “In an action for an escape, the question was whether the plaintiff may take out a ca sa. or have a ii. fa. against the defendant, after the sheriff or gaoler voluntarily suffer him to escape.” &c. This is the text: but the margin has it, that the question was whether the plaintiff could take out a ca. sa. or a sci. fa. — making quite a different case. It was clear that the text or the margin was wrong; and not having the books here to enable us to say which, we held the case under advisement, to consult the larger libraries at Richmond. This I have done; and the result is a strong belief that the margin is right and the text wrong. My first reason for this opinion is, that the same case, as reported by Freeman, says not one word about a ii. fa. And Freeman I understand to be a reporter of good credit, though his notes were at one time undervalued, from the circumstance of their having been stolen by a servant, and published without the privity of tne family. Lord Mansfield (Cowp. 13) speaks favourably of them: so does lord Lough-borough, 3 Ves. 580, n, and so does the lord chancellor of Ireland. 1 Ball & Beat. 307. While Modern Reports are given to us under no name, and are set down as “apocryphal authority.” Tn reporting the case of Basset v. Salter, Freeman says, “The question was no more than whether, after the gaoler had suífered a person in execution voluntarily to escape, the party at whose suit he was in might take him again. And the whole court held it so clear that he might be taken again, that they would not suffer it to be argued, it being so often lately resolved; as in the case of Crune v. King in this court, where the court was divided, and the case of Vinter v. Allen, where judgment was given in this court, and affirmed in a writ of error.” The case of Crune v. King, referred to here, I have not met with in any other reporter; but Vinter v. Allen may be found in several books. Sir T. .Jones (page 21) reports it thus: “An executor brought a sci. fa. on a judgment of debt for testator, against the defendant. quare executionem habere non debet. Defendant pleaded that he was taken in execution by a ca. sa. on this judgment, and committed to the Fleet, and that the warden permitted him to go at large; and demanded judgment. The plaintiff demurred.” The arguments of the counsel are given at large; and the reporter concludes thus: “The first point in this case wavs divers times debated, in several cases, and judgment was given for the plaintiff by the whole court, Vaughan excepted, who was totis viribus against the judgment.” Now the case of Basset v. Salter, as here reported, is wholly different from the case in Modern Reports; and. this book, being of better authority", and supported by the references, ought (as it seems -fio me) to outweigh the other. In a note to the case, it is said, “The party may have a new ca. sa. or a sci. fa. or may bring debt, upon the judgment &c. or may have any kind of execution. 8 and 9 Will. 3, ch. 27. § 7,” — referring clearly to this statute for the power of taking out any other execution. In the report of Basset v. Salter in 2 Mod. after stating the question, it is added, “but the court would not suffer it to be argued, because it had been lately settled that it was at the election of the plaintiff to do either:” and many cases are cited in the margin. Now if we take the question to have been whether the plaintifi could take out another ca. sa. or sue a sci. faá. these cases do shew that the question had been settled: but if we say it was whether he could take out another ca. sa. or a ii. fa. there is not one of the cases (so far as I have been able to examine them) which touches at all the power of the plaintiff to take out a fi. fa. in such a case. But let ns see how the case of Basset v. Salter has been understood by others. In Com. Dig. Escape, E. it is said, “So i1 a prisoner escapes, and afterwards returns to the prison, the plaintiff may admit him in execution, though he has a remedy against the sheriff, 1 Ventr. 269: 2 Lev. 109, 132. Or he may retake him by a new ca. sa. ii the first be not returned and filed. 3 Rep. 52, b. So he may retake him in all cases upon a negligent escape, for the sheriff may be insufficient. 1 Sid. 330; 1 Ventr. 4, 269. So though Lhe escape be voluntary by the gaoler, and without the plaintiff’s consent, 1 Sid. 330; 1 Ventr. 4; 1 Lev. 211; 2 Mod. 136;” — citing this case of Basset v. Salter, simply to shew that after a voluntary escape by the gaoler, the plaintiff might retake his debtor by another ca sa. Oomyn then proceeds thus: “And now by the statute of 8 aad 9 Will. 3, ch. 27, it is enacted, that if a prisoner in execution in the Marshalsea or Fleet escape by any means, the plaintifi may retake him by ca. sa. or sue out any other execution against him as if never in custody.” Here it is evident, that the writer considers the power of suing out any other execution against the debtor alter an escape, as given by this statute, and not as existing before it at the common law. Again, in Bac. Abr. Escape, O. where the difference between voluntary and negligent escapes is discussed, it is said: “It was formerly held, that where a sheriff suffered a prisoner in execution to make a voluntary escape, the prisoner was in such case absolutely discharged from the creditor, and that the right of action was entirely transferred against the sheriff, who by means of such escape became debitor ex delicto. But the later resolutions have been contrary; and it has been adjudged that where a sheriff suffered a voluntary escape, the plaintiff might have a new action of debt or sci. fa. quare executionem non, against the prisoner;” and to prove this, the very

case of Basset *v. Salter is cited. The writer then adds the extract from 8 and 9 Will. 3, ch. 27. giving the plaintifi a right, after escape, to sue forth any other kind of execution on the judgment, as if the body of the prisoner had never been taken in execution; and this statute he certainly exhibits as giving a new power, not possessed at common law. In Vin. Abr. Escape, E. note to pl. 11, it is said. “In case of an escape against the will of the sheriff, either plaintiff or ,sheriif may retake; but on escape with consent of the gaoler, the party only has remedy to take, not the sheriff: If with consent of the plaintiff, then neither plaintiff nor sheriff can retake him, though the debt be unsatisfied. Show. 177, cites Alanson v. Butler, and says it is true law and settled. 2 Mod. 136; Basset v. Salter, same point; and the court would not suffer it to be argued,” &c. Here again we find the case of Basset v. Salter understood as settling a point not touching at all the power to take out a fi. fa. These considerations satisfy me that Basset v. Salter is misreported in Mod. Rep. and in truth is not at all applicable to the question before us. Take away this case, and the position that after a ca. sa. executed there can issue a fi. fa. without a scire facias, has no support whatever. On the contrary, the clear unbroken stream of authority shews that on an escape from execution the plaintifi was confined to his new ca. sa. unless he chose to bring debt upon his judgment, or sue out a scire facias quare execu-tionem habere non debet. The statute of 8 and 9 Will. 3, ch. 27. changed this state of the common law in .England: but with us no such statute has been enacted.

It is, insisted, however, that the court may, on motion, award execution anew, because it is the most speedy mode of enforcing their own judgment, and gives the defendant the same opportunity of defence that he could have on a scire facias, as-the court might in their discretion impanel a jury to try any facts alleged. If this reasoning be sound, it would seem to dispense almost entirely with the use of the writ of scire facias. In the case before-us. suppose a scire facias had been resorted to: what might the defendant have pleaded? Ipre-sume there can be no question that he might have pleaded either nul tiel record, or payment since the judgment, or release, or that the debt had been levied on a fieri facias, or his lands extended for it, or his body taken on a ca. sa. and yet remained in execution, or had been discharged by the plaintiff. All these are matters in bar arising since the judgment, of which the defendant would have a right to avail himself. Is it supposed that all or any of these pleas, with their replications, rejoinders, surrejoinders &c. could be as well brought forward on motion in open court, as by the regular proceedings at rules? If so, what need of a scire • facias in any case? *The general rule laid down in the books is, that “where a new person, not a party to the judgment, derives a benefit by or becomes chargeable to the execution of it, there must be a scire facias.” But if the reasoning here be correct, a motion would answer every purpose, in a more summary and less expensive manner, A defendant dies after judgment, or a feme sole marries after judgment; you have nothing to do but make your motion against the executor or husband. For one, I cannot consent to these innovations upon the settled principles and practice of the common law, without a statute to authorize them.

I think the judgment of the circuit court, reversing that of the county court, should be affirmed.— Note in Original Edition. 
      
      See the opinion in a note at the end of this case.
     