he hath remedy against the sheriff, yet that may fail, either by death, or disability of the sheriff. And by the same reason that there is difference between the same party and another, in case of escape, I hold it much more reasonable in the case of death. 41 Ass. Pl. 15. One in execution for debt escaped, and the sheriff died, whereupon the plaintiff prayed a new capias against the prisoner, and had it in that case of mischief; but other executions I hold he could not have had in that case.

[60 b]

Post. 202.

When the party taken in execution makes a wilful 3 Co. 52. b. escape, and that against the keeper's will, yet the plaintiff can take no other execution; this cannot be in the

his liberation upon an agreement to surrender himself again into custody upon certain conditions, and afterwards does voluntarily surrender himself and return into custody pursuant to such agreement, he may then be lawfully detained in prison and will not be discharged on audita querela. 14 Mass. 443, Little v. The N. P. Bank. But the plaintiff's consent, in order to discharge the judgment, must be previous to the escape, and a subsequent assent by him is no bar to a scire facias, or an action of debt upon the judgment. 16 Johns. 181, Sweet v. Palmer. 1 Salk. 271, Scott v. Peacock. So the attorney of the plaintiff on record has no power to discharge a defendant from custody on execution without payment of the debt; his general authority as attorney ceases with the judgment, or at least with the issuing of the execution within the year. 8 Johns. 361, Jackson v. Bartlett. But in Massachusetts it is said that the plaintiff's attorney on record has authority to discharge an execution. 13. Mass. 32, Langdon v. Potter; but not upon receiving a less sum than the amount of the judgment. 1 Pick. 350, Lewis v. Gamage. See also 4 Barn. & Cres. 271, Crozer v. Pilling & al. And now in Massachusetts, by stat. 1819 c. 94, it is provided that the creditior may, at any time, discharge his debtor from prison, and such discharge shall not operate to release the debtor from the debt and costs on which he was committed, but such debt and costs &c. shall be and remain a legal claim against the goods and estate of the debtor, his body being forever thereafter exempted from arrest therefor.

A prisoner, in Massachusetts, committed in execution may be taken from the jail, and even from the jail liberties, at the discretion of the magistrates, for the purpose of having the poor debtor's oath administered to him by them, and he thereby commits no escape. 14 Mass. 388, Com. v. Alden. But where a debtor procured a discharge from an execution on which he stood imprisoned, upon payment of part of the sum due, but fraudulently concealed the facts that he had previously committed an escape, and that his father, from whom property had descended to him, had died, it was held that the discharge was void, and that the bond given for the liberty of the jail yard was forfeited. 1 Pick. 347, Lewis v. Gamage. See also 16 Johns. 181, Sweet v. Palmer. And formerly, if a prisoner was admitted to the jail liberties upon giving bond, by ccident or mistake, in a penal sum less than double the amount on which he was imprisoned, the sheriff could not thereby protect himself against an action by the creditor for an escape, although the bond was approved by two justices according to st. 1784 c. 41. 15 Mass. 276, Clapp v. Hayward. But this is now remedied by stat. 1819 c. 24.

[60 c]

5 Co. 87. b.

3 Reason. Plo. 440. a.

5 Co. 12. b.

b.

favor of the prisoner, for he is the only wrongdoer both to the parties and to the law, and is the cause why that execution is defrauded, and so gives cause of another.

There is no cause to impute any fault to the plaintiff, why he may not now take a new execution, since by the defendant's fraud he could not reap the benefit of this.

Likewise there is no cause to quit the offender, and to lay the charge upon the sheriff, who consented not to the escape, whom the plaintiff would free by taking another execution against the party himself.

Therefore there can be no other reason of that position, but that the capias executed, and the body taken, stops, as against him, all other executions but itself and the consequence of it, which is the action of debt, or action upon the case upon the escape.

Now in the principal case, all these considerations move mainly, and are, without exception, more clear and just to quit the defendant, being in no fault, and to satisfy the plaintiff by his own choice, whereof he hath had full effect directly, that is, his body.

It is a prerogative to the king, to have execution of body, lands, and goods, not communicated to the subject, but in case of stat. Merchant and Staple, and recognizance 5 Co. 86. b. 87. of that nature, which is by the statute law. And therefore the case put in Blomfield's case, that where the party was taken in execution upon a statute, and died, and yet execution was had against goods and lands after, is nothing in this case, for they were all due at the first, and therefore might be taken at once or severally. But if this opinion should hold, a man, beginning with a capias, may be sure upon death to end with a fieri fac. or elegit.

4 Reason.

Statutum est omnibus semel

mori.

And if so many be bound, and all taken in execution, upon the death of every one a new execution may be against the executor; which is absurd and full of mischief.

When the plaintiff took him in execution, as he chose that his best remedy, so he could not but foresee that he might die under his hand, so it was his folly to choose that kind of execution, which was executio caduca.

The heriot by law is optimum animal in rei veritate, but if the lord will, he may take the worst. And as it was said by a father, that lost his son in battle, novi me genuisse mortalem, so here Foster may say novi me cepisse mortalem.

[60 d]

Cr. 75. 5 Co. [61] example of the

87. a. b. The

fellow servant,

that made his

suit, Have pa

and I will pay

Now since the execution of the body stands as a satis- 5 Reason. 21 Jac. cap. 24. faction between the same parties, while the party lives, there is no sense but that the party yielding himself to the execution, and ending his life in it, and the other accepting it, and so both agreeing upon it, it should make a final discharge touching himself; for it cannot be truly tience with me, said, that the defendant is in fault, when being not able thee all. to pay his debt instantly, he yields his body, and lands, and goods, if he have any, to the course of the law and his creditor's choice, and endures with patience, without flight or escape, after the creditor chose his body. For it is a fancy to say that the debtor ought to pay his debt, for the law must be the same, whether he were able to pay or not.

1 Cro. 240.

And of all executions, that of the body in law is es- 6 Reason. teemed the best, as also in law of nature the best, and most forcible; and therefore, 7 H. 6. 6. by the opinion of Cotismore, if two executors have judgment, and the one pray a capias, and the other a fieri fac., the capias shall be awarded as best for the testator. And the common law gave not that execution, as being too hard and heavy, but only in the case of wilful wrong, vi et armis, for which none was thought too hard. And therefore 1 Cr. 205. barons were not subject to it, but upon great contempts; nor yet since the statute 25 Edw. 3., though they be not specially exempted.

Though the plaintiff have no direct interest in the body, as in his ward or villain, to buy or sell it, yet he hath interest in it for liberty or restraint by ward, till he pay ultimum quadrantem in salva et arcta custodia. Read the case in the 4th Chap. of the second Book of Kings, the creditors would take the two sons for bondmen.

Although in trespass vi et armis at the common law against a baron a capias lieth not, nor after, by the equity

[61 a]

6 Co. 52. b. 2 Le. 174.

It is a more fit comparison to speak of

beasts taken in execution by fieri fac. and dying, though there be a pro

perty, which is

not in the body

of a freeman. 11 Mod. 21.

Co. 64. a.

of the common law, upon the statute, because the estate of a baron is intended sufficient; yet 11 H. 4. 15. in homine replegiando, against Dame Spencer a peer of the realm, viz. a baroness born, it was granted, because it was an high injury to the person whom she eloined. Also the common law holdeth the body the greatest pain and highest coercion.

And the reason is apparent, for as Christ saith, The body is of more worth than raiment. And as it is said in Job, pellis pro pelle, and all that a man hath he will give for his life, but touch his flesh or his bones, &c. Now imprisonment toucheth both, in salva et arcta custodia.

Now touching the case that is agreed, 14 H. 4. 4. 15 E. 4. 10. that where a man takes distress for rent, and upon avowry hath return irreplevisable, that if a beast die in the pound, that now he may distrain anew, and that this should much convince the case in question; he that looks near unto it shall find it nothing like ; for besides that there is no comparison between the body of a man and beast, touching valuation, and so touching satisfaction, it is to be noted that the sum of rent, or the valuation of the damage is not adjudged to the avowant in the replevin, and then the beast taken by him in execution, as in the case in question, but where he had taken the beast by distress, and that is replevied from him. Now upon the right of distraining appearing, the beasts are restored unto him, in that state as they were before, to remain with him as a distress lawfully taken by judgment of the court, and not to be replevied; so this hath no colour of an execution, but is only the effect of the agreement of the parties, or act of law, be it in rent service or rent charge, or damage feasant, that he may distrain and retain, till the rent or damage be satisfied; so that even as if the beast had died before judgment he might have distrained again, so after judgment, for it is alike in both

cases.

But the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judg

ment.

But in this case the debt is adjudged, and the body taken, by a warrant of the court and of the law, in execution for it.

[61 b]

Scire fa.

2 Cro. 148, 136.

3

Cr. 850.

Pasch. 43 Eliz. Rot. 88. Anne Williams brings a a sci. fac. against Edmund Cuttryes and Constance his wife administratrix of Richard Lamb, to have execution of eightyeight pounds debt and damages recovered against Lamb. The defendant pleaded, that the plaintiff, by capias ad satisfaciendum, had taken Lamb himself in [62] execution, in which execution he died, and demanded A man dies in execution, his judgment, and the plaintiff demurred. Hill. 4 Jac., it administrators was adjudged against the plaintiff in the King's Bench; chargeable. which was long after Blomfield's case either argued or published, it being argued 38, 39 Eliz. and published tertio Jacobi.

are no further

SPICER and READ.

A false oath in a matter upon which an indictment for perjury would not lie, was punishable by fine in the Star Chamber, as a misdemeanor.

ed in Star

Chamber.

MASTER WILLIAM SPICER was sentenced in Star Cham- Star Chamber. Perjury not leber, at the suit of Thomas Read, esquire, to four hundred gal, yet punishpounds fine, for that he had taken oath before Baron Snig, according to order taken upon the commission of defective titles, that John Spicer his father was seized of a manor of some estate of inheritance, if his Majesty's title hinder not, whereas in truth the manor was then the said Read's, and so obtained the letters patents from the king. But this was punished, not as a direct and judicial perjury, but as a misdemeanor in abuse of the king's gracious commission, to the disturbance of possessions, which was instituted and intended for the quieting of possessions, in supply and imitation of the statute of 32 H. 8. cap. 9. whereby men are forbid to buy and sell titles, saving to 11 Co. 98. such as are in possession of the lands. And because Read the plaintiff had been sued and troubled by colour of his new patent, a hundred marks damages was given to him, and the sentence ordered to be published through the kingdom.