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§ 13, 22 Statutes at Large 495 (1759)
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- AND RULES OF COURT 319. The early Common Law Rule exempting lands from sale on Executions has been abolished by
- THE EXECUTION CHAPTER 30 APPELLATE REVIEW’
- THE WRIT OF CERTIORARI’ 0
- JUDGMENT, EXECUTION AND APPELLATE REVIEW Ch. 34
- APPELLATE REVIEW
| § 13, 22 Statutes at Large 495 (1759) ,2’ known as “The Lord’s Act,” if a defendant charged in Execution for a debt not exceeding 1100, which was later extended to £300 by 33 Geo. UI, c. 5, 39 Statutes at Large 24 (1793) ,22 surrendered his assets to his creditors, except wearing apparel, bedding and tools of trade, not in excess of £10, and made oath to comply with the Statute, he might be discharged, unless the creditor otherwise insisted, in which case he was compelled to pay the prisoner a certain amount per week, Thereafter, in England, imprisonment for debt was abolished, except in the case of fraudulent debtors, by the Debtors Act, 32 & 33 Vict. c. 62, 109 Statutes at Large 201 (1869), and its amendments.
19. Manby v. Scott, 1 Mod, 124, 182, 86 Eng.Rep. 781, 780 (1059), In which Hyde, 3., said: “II a man be taken in Execution and lie in prison for debt, neither the plaintiff at whose suit he is arrested, nor the Sheriff who took hint, is bound to find him meat, drink, or clothes (a); but he must live on his own, or on the charity of others: and if no nina will relieve him, ]et him die In the Name of Cod, says the Law (b); and so say I.” 20. See article by Itiddell, Why Pickwick was Gaoled, 17 Ill.L.Rcv. 14, 21 (1022). 21. See Tidd, The Practice of the Courts of King’s Bench in Personal Actions, c. XLI, Of Execution, 962—978 (1st Am. ed., PhIladelphia, 1807) for a diseussion of this Statute. 22. Id. at 962—969 for a discussion of this Statute. 594
JUDGMENT, EXECUTION AND APPELLATE REVIEW Ch. 29 THE LIEN OF EXECUTIONS 318. A General Lien of an Execution binds property after the Writ has come into the hands of the Sheriff and while the Writ remains unsatisfied. Where goods taken in Execution were permitted to remain in the custody of the debtor, at Common Law such goods might be seized at the suit of another creditor. At Common Law and in England, the Writ of Fieri Facias bound the defendant’s goods from the time of its teste, so that a sale of the goods made thereafter by the defendant, though bona fide, might have been avoided.23 This was changed by Section 16 of the Statute of Frauds,2-’ under which the Writ was to bind the property from the time such Writ was delivered to the Sheriff to be executed, who was to endorse on the back thereof when he received the same. But even so, the property in the goods is not altered until the Writ is actually executed. If the party dies after the teste, but before the delivery of the Writ to the Sheriff, the goods are bound in the hands of his executors or administrators. As to this situation, the Law is as it was before the Statute, as this involved no change of property by sale and for a valuable consideration. And under the Statute of Frauds,25 it has been held that a party who bought goods at a sale under an Execution, which had been delivered to the Sheriff subsequent to the delivery of a prior Execution, was protected from the prior Execution, although, as to any other party, the goods were bound by the prior 23- This common-Law Rule prevailed in Tennessee: coffee v. Wray, S Yerg. (Penn.) 464 (1835); cecil v. carson, 80 Tenn. 139, 5 S.W. 532 (1887); in North carolina: Palmer v. clarke, is ltc.(2 Dev.L.) 354 (1830), where it has been changed under the code, welsenfield v. McLean, 96 N.c. 248, 2 SE. 56 (1587). 2& 29 Car. II, c. 3, 8 Statutes at Large 408 (1676). delivery of the first Writ, under which the Sheriff ought to have taken and sold thenttm6 In Rogers v. Dickey,21 an fllinois Court, in commenting on the priority of Execution, declared: “First, that where two or more Writs of Fieri Facias are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant’s goods, the Execution first delivered must have the priority, though the first seizure may have been made on a subsequent Execution. Second, but where the goods are actually sold by virtue of a levy made under a Junior Execution, the sale will be good, and the property can not afterwards be taken from the purchaser by the Senior Execution. The only remedy of the party injured is against the officer.”25 Where goods were taken in Execution and suffered to remain in the custody of the debtor, at Common Law, such goods might be seized at the suit of another creditor.2° Finally, a General Lien of an Execution binds property acquired after the Writ has come into the hands of the Sheriff and while the Writ remains unsatisfied.3° STATUS OF EXECUTION UNDER MODERN CODES, PRACTICE ACTS AND RULES OF COURT 319. The early Common Law Rule exempting lands from sale on Executions has been abolished by statutory enactments, and while under such Statutes resort must usually first 26. Smalleomb v. cross, 1 Ld.Raym. 253, 91 Eng.Itep. 1064 (1697); Hutehinson v. Johnson, I P.R. 729, 99 Eng.Rep. 1343 (1787). 27. 6 III. 495 (1844). 28. Rogers v. Dickey, 6 Ill. 495, 500. See also, English: Payne v. Drewe, 4 East 523, 102 Eng.Rep. 931 (1804); Colorado: Speelman v. Chaffee, 5 cob. 247 (1880).
28. Ibid. 30. Roth v. Wells, 29 N.Y. 471, 490 (1864). be bad to personalty, the general rule now is that the Judgment creates a lien on Real Property. Certain of the Common Law Writs continue in use, especially that of Fieri Facias, although they may be designated by other names. AS among the Common Law Writs, Fiert Facias still flourishes, “frequently, it is true, in a code disguise.” 31 The Writ of Elegit was too feeble a Remedy to survive, although it was long used in Virginia.32 31. Loyd, Executions at Common Law, 62 13. of Pa. L.Rev. 35-1, 364 (1014). 32. Va.Rev.Cocle (1819), c. 134, where the earlier Acts are alluded to. See, also, Earbour V. Breckenridge, 4 Bibb.(Ky.) 548 (1817). 595 One of the surviving Common-Law Writs of Execution, the Writ of Fjeri Facias, is employed in some States under its original name, whereas in others it is used under the Code designation of a Writ of Execution. The early Common-Law Rule exempting lands from sale on Executions has been abolished by Statutes, and while under such Statutes resort must usually first be had to personalty, the general rule now is that the Judgment creates a lien on the Real Property. See. 319 THE EXECUTION CHAPTER 30 APPELLATE REVIEW’ The Writ of Prohibition. The Writ of Certiorari. The Writ of Error. Bills of Exceptions. Status Under Modern Codes, Practice Acts and Rules of Court. THE WRIT OF PROHIBITION
to restrain judicial acts affecting either private or public rights; more specifically it is an Extraordinary Writ under which a Superior Court 1. In general, on the subject of Appellate Review, see: Treatises: Duller, Introduction to the Law Relative to Trial at Nisi Prius, Pt. VII, c. V, Bills of Exception, 315 (Dublin 1791); Lilly, A Collection of Modern Entries, (6th ed., Dublin 1792); Sydney, A Treatise on the Jurisdiction and Modern practice in Appeals to the House of Lords, &e. (London 1824); Palmer, Practice in the House of Lords on Appeals, Writs of Error-, &e. (London l8.~O) Clark, A Summary of Colonial Law, the Practice of the Court of Appeals from the Plantations, &c, (London 1834); Adam, Additional Observations on Bills of Exception, being a Supplement to His Treatise on Trial by Jury (Edinburgh 1836); Burge, Observations on Supreme Appellate Juris -diction of Great Britain, as it is Now Exercised by the Court of the Queen in Council and the House of Lords (London 1841); Macqueen, A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council, together with the Practice of Parliamentary Divorce (London 1842); Hodgson, An Analytical Digest of Statutes and Cases Relating to the Practice of Appeals Against Orders •of Removal (London 1845); Grant, The Practice in the High Court of Chancery, Including Appeals to Parliament, and Proceedings in Lunacy, ivith Official Forms, Pleadings and Costs, 2 vols. (5th ed., London 1845); Elliott, A Treatise on Appellate Procedure (Indianapolis 1892); Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, Of the Proceedings in an Action, 121 (3d S. by Tyler, Washington, D.C. 1893); Id., C. II, Of The Rules of Pleading, 142, 162; Spelling, A Treatise on New Trial and Appellate Practice (San Francisco, 1903); Pound, Appellate Procedure In Civil has authority to prevent an Inferior Court from exceeding its Jurisdiction in a matter over which it has no control, or front going beyond its powers in a matter over which it admittedly has Jurisdiction.
Eighteenth Century, 38 (Boston 1941); Id. c. II, Appellate Review in England in the Eighteenth Century: Bill of Exceptions, 44—46 (Boston 1941); Stone, The Scope of Review and Record on Appeal, Am.B.A.Jud.Adm. Monograph, No. 10 (1942); Goebel, Cases and Materials on the Development of Legal Institutions, e. II, Writ of Error, 128 (Brattieboro 1946). Articles: Kingsbury, Writs of Error and Appeals f,oin the Territorial Courts, 16 Yale Li. 417 (1907); Sunderla,id, The Problems of Appellate Review, 5 Tex.L.Rev. 126 (1926); Currnn and Sunderlnnd, Organization and Operation of Courts of Review, 3 Mich.Jud.Coun.Rep. 51 (1933); Crick, The Final Judgment as a Basis for Appeal, 41 Yale U. 539 (1932); Clark-, Power of the Supreme Court to Make Rules of Appellate Procedure, 49 Harv.L.Rev. 1303 (1930); lisen & Hone, Federal Appellate Practice as Affected by the New Rules of Civil Procedure, 24 Minn.L.Rev. 1 (1930); Sunderianrl, Improvement of Appellate Procedure, 26 Iowa tHey. 3 (1940); Brown, Fact and Law in Judicial Review, 56 Bars’. L.Rev. 899 (1943); Pound, Appeal and Error—New Evidence in the Appellate Court, 56 HarvLJtev. 1313 (1043); Longdorf, Record on Appeal in Civil Cases In Federal Courts, 26 J.Am.Jud.Soc. 179 (1943); Bennett, Evidence Clear and Convincing Proof: Appellate Review, 32 Calif.L.Eev. 74 (1944); Nims, Shortening Records on Appeal, 4 F.R.D. 153 (1946); Yankwieh, Release on Bond by Trial arni Appellate Courts, 7 F.R.D. 271 (1948); O’Halloran, Right of Review and Appeal In Civil Cases Before the Judicature Acts 1875, 27 Can.B.Rev. 46 (1949); Buehsbaum, Appeal as of Right to the New York Court of Appeals on Constitutional Grounds, 24 Sec.
821. 322.
328. 324.
596 Sec. 321 APPELLATE REVIEW 597
THE Writ of Prohibition lies to restrain a judicial act; and judicial acts include all acts based upon a decision, judicial in its nature and affecting either a public or private right. Thus for example, it may be used to prevent a Judge or Court from proceeding in Execution of a Judgment after an Appeal has been taken;3 and it lies to prevent a Court of Criminal Jurisdiction from extending its Jurisdiction beyond the proper N.tU.L.Q.Rev. 158 (1949); Desniond, The Limited Jurisdiction of the New York Court of Appeals, 2 Syracuse L,Rev, 1 (1950); Pest, Oral Aspects of Appellate Argument, 22 Rocky Mt.L.Rev. 273 (1950); Koch, Suggestions to Attorneys Concerning Appellate Rules and Practice, II FED. 117 (1952); Ben- nick, Missouri Appellate Practice and Procedure in Civil Cases, Wash.ELL.Q. 486 (1951); Vestal, Tile Certified Question of Law, 36 Iowa L.Rev. 629 (1951).
L.Rev, 450 (1947); Time to Appeal in Minnesota, 35 MinnLRev. 640 (1051); Raising New Issues on Appeal, 64 Harv.LRev. 052 (1951); Appeal and Error—Municipal Annexation Proceedings—Scope of Appellate Review, I Villanova L.Rcv. 162 (1056); New Trial—Oourt Below—Scope of Discretion— Appellate Review, 17 U. of Pitt.L.Rev. 305 (1956).
- ChristIan, 20 Minn.L.Rev. 272 (1936); Wolfram, The -“Ancient and Just” Writ of Prohibition in New York, 52 Col.L.Rev. 334 (1952).
limits. It does not lie to restrain the institution of a threatened suit, but only one already commenced, If, however, the act is judicial, and can be performed without the existence of an action, Prohibition will lie.4 It will not lie to restrain an act which can be disposed of upon an Appeal or other ordinary Method of Review.5 It may be invoked to restrain an Inferior Court or other tribunal from doing an illegal act beyond its Jurisdiction,6 where it appears that there is no remedy by Certiorari or other adequate proceeding; ‘~ and it may be used to restrain an unauthorized act, even where the Court has Jurisdiction,8 It operates only to prevent the doing of an act, not as a remedy for acts already done.9 THE WRIT OF CERTIORARI’0 321. In general a Writ of Certiorari is an Order by a Superior Court directing an Inferior Court to send up the Record of some Pending Proceeding for Review; or it may serve to bring up the Record of a Case already terminated be-
low, in Cases where the Proceedings are Not According to the Course of the Common Law, and there is no other Method of Review. THE established method by which the Court of King’s Bench from the earliest times exercised superintendence over the due observance of their limitations by Inferior Courts, checked the usurpation of Jurisdiction, and maintained the Supremacy of the Royal Courts, was by the Writs of Certiorari and Prohibition, A Writ of Certiorari (cause to be certified) is a Special Proceeding by which a Superior Court Orders some Inferior Tribunal, Board, or Judicial Officer to trails-mit the Record of its Proceedings for Review, for Excess of Jurisdiction. It is similar to a Writ of Error, in that it is a Proceeding -in a Higher Court to Supervise and Review Judicial Acts, but it was available only in cases Not Reviewable by Writ of Error or otherwise. It does not Review Proceedings within the Jurisdiction of the Lower Court, but inquires into the Jurisdiction and Regularity of the Proceedings. Ordinarily, the Writ did not lie after Judgment. But in some instances, as in certain cases of summary proceedings before an Inferior Court, where the proceedings were not according to the Course of Common Law,” and there was no other method of review, Certiorari was permitted even after Final Judgment.’2 But Errors in rulings which occurred at the Trial could only be reviewed by Motion for New Trial, Bill of Exceptions, or under Modern Procedure, by Appeal. Certiorari does not lie to Review Executive, Ministerial, or Legislative action of other Departments of Government, but merely corrects encroachments of Jurisdiction, where some Judicial Officer has exceeded his authority, and there is no other remedy for Review by Writ of Error or Appeal.’3 1~. Groenwelt v, Buru-ell, 1 Sal]t. 144, 91 Eng.Rep. 134 (1700). 1L King v. inhabitants oC Seton, 7 TB. 378, 101 EngSep, 1027 (1797). It is granted by the Court at its discretion upon Motion or Petition.” The Writ is gen erally granted only upon security given for it due prosecution, and is first used to bring iij the Record and Proceedings in the Court below. When returned to the Higher Court, th Party Respondent is notified to Appear by Notice Similar to a Summons, and the Cour proceeds to act according to Law and Justic in the decision of the case.15 The Return il conclusive as to the Facts,’° and is generall3 the only thing to be considered by the Highei Court, though in some states the Proceedini is a Trial of the whole matter de novo. ThE Writ is also a Mode of Review of the Action ol Administrative Tribunals and newly createc Municipal Boards or Officers whose Proceedings are of a Quasi-Judicial Character, am not in the Manner of a Common-Law Court.’ visors, 8 Cal. 58 (1857); IllinoIs: Bourland V. Sny der, 224 III. 478, 79 N.E. 568 (1900); Iowa: DayS County v. Horn, 4 Greene (Iowa) 94 (1853); Michi gan: In re Robinson’s Estate, 6 Mieh. 137 (1858) New Hampslure: Logue v. Clark, 62 NFl. 1& (1882). 14. Farrell v. Taylor, 12 MIch. 113 (1863); Adam: v. Abram, 38 Mich. 302 (1878); People v. Cunimings 88 Micli. 249, 50 NW. 310 (1801). 15. “It was at one time abused by suing out the Wril and not producing it until the plaintiff’s evidencm had been given in the Low-er Court thus eausint expense and enabling a defendant to hear his Adversar3-’s Witnesses in advance. This was remedied by a Statute of 1601 [43 Eliz. e. 5) and another ol 1624 [21 James I, e. 23, ~ 2), the first allowing thE Court Below to proceed unless the Writ ~vas pr~ dueed before the Jury appeared and one wa~ sworn, and the other requiring the Writ to be produced before Issue or Demurrer w-as Joined. Another Statute [21 James I, e- 23, § 4 (1624)) provided that causes other than those involving freehold or inheritance or title of land, lease or rent’ should not be stayed or removed unless the debt, damages or things demanded amount to or exceed £5.” Pound, Appellate Procedure in Civil Cases, c. II, Appellate Procedure in England in the Eighteenth Century, 61 (Bostoa 1041). 18. Central Pac. B. Co. v, Board of Equalization of Placer County, 46 Cal. 668 (1873); Lo’,s’ v. C.aletta - & C. U. B. Co., 18 111. 324 (1857); Starr v, Trustees of villagu of Rochester, 6 Wead.(N.Y.) 564 (1831). 17. Groenwelt v. Bursvell, I Salk. 144, 91 Eng.Rep. 134 (1700). ‘3. Arkansas: Auditor v. Woodruff, 2 Ark. 73 (1830); California: People v. El Dorado County Super- Sec. 322
599
THE WRIT OF ERROR15 322. At Common Law a Writ of Error was -an Original Writ, issuing out of Chancery, at the instance of a Party aggrieved by any Error in the Foundation, Proceeding, Judgment -or Execution of a Suit, in a Court of Record; and was in the Nature of a Commission to the Judges of the same or a Superior Court, by which they were authorized t0 examine the Rec -end, upon which Judgment was given, and on such examination to Affirm or Reverse the same.
AT Common Law, a Substantive Defect Apparent Upon the Face of the Record, was -available at the Pleading Stage, on Demurrer; After Verdict and Before Judgment, by Motion in Arrest of Judgment; and After Final Judgment, by Writ of Error, which, if -obtained and allowed before Execution, op -erated as a suspension of the Latter Proceeding till the Former was determined.
-suing out of Chancery, at the instance of the Party who was aggrieved by any Error in the Foundation, Proceeding, Judgment, or Execution of a Suit, in a Court of Record,’° and 13. Ia general, on Appellate Review by Writ of Error, see: Treatises: 2 Tidd, The Practice of the Court of King’s Bench in Personal Actions, a XLIII, Of Error, J051—1i41 (Philadelphia 1807); Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, Of the Proceedings in an Action, 142 (3d Am. ed. by Tyler, Washington, D. C. 1900); Martin, Civil Procedure at Common Law, e. XIV, Trial, Verdict, Judgment and Execution, ~ 379, 380, Writs of Error, 322—324 (St. Paul 1005); Gould, A Treatise on the Principles of Pleading, Pt. II, Procedure, c. I, Procedure in General, 112—1 18 (6th ed. by Will, Albany 1900); Goebel, Cases anti Materials on the Development of Legal Institutions, c. II, Writ of Error, 128 (Brattleboro 1946); Pound, Appellate Procedure in Civil Cases, e. II, Appellate Procedure in Englanti in the Eighteenth Century, 38 (Boston 1041); Frank, Coram Nobis: Common Law, Federal, Statutory, with forms (Albany 1053). t10. Coke, Littleton, 288b (Philadelphia 1853); see, also Jagues v. Cesar, 2 Wms.Saund. 100, 85 Eng.Rep. 776 (1670). was in the Nature of a Commission to the Judges of the Same or a Superior Court, by which they were authori~ed to examine the Record upon which Judgment was given. In other words the Writ of Error was an Order, directed to the Judges of the Court in which the Judgment had been given, commanding them, in some cases themselves, to review the Record; in others, to send it to another Court of Appellate Jurisdiction to be examined in order that some alleged Error in the Proceedings might be corrected. The first Form of Writ was called a Writ of Error Corarn Nobis, or Corain Vobis, and was designed to reach the situation where the Error consists of Matter of Fact; the second, called a Writ of Error generally, was directed at an Error in Law Apparent Upon the Face of the Common-Law Record. The Writ was grantable cx debito justitiae {from or as a debt of justice, or as a matter of right] in all cases except Treasons and Felony.20 The strict Common-Law Record consisted of four parts: (1) The Process, which included the Original Writ and the Return of the Sheriff; (2) The Declaration and All Subsequent Pleadings, including Demurrers, if any; (3) The Verdict, and (4) The Judgment. After the Judgment has been entered on the Record, by removing this Record to the Appellate Court and Assigning Errors upon it, the unsuccessful Party in the Trial Court could secure a Review of any Error of Law Apparent upon the Face of Any Portion of the Common-Law Record, the objective being to reverse or modify the Judgment for some Error of Law supposed to exist in the Proceedings as recorded. And in Ruling on such Writ, Errors Not Apparent on the Common-Law Record constituted no ground of Error. If the alleged Error was Not One Apparent upon the Face of the Record, but consisted of an Error that occurred at the Trial, such as the Improper Admission or Re- Directory: lawschool lawschool -> Handong International Law School Admissions Essays I. Instructions lawschool -> Law School Materials for Success Barbara Glesner Fines Download 9.19 Mb. Share with your friends:
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