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§ 13, 22 Statutes at Large 495 (1759)

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§ 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.



Ch. 29

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°


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).
29. Iowa: Border v. Benge, 12 iowa 330 (1861); New York; Farrington v. Sinclair) ~5 Johns, (N.Y.) 420 (1818).

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).

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.




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.

- 320. In general the Writ of Prohibition lies

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.
Cases, c. II, Appellate Procedure in England in the

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. 321



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

Comment: Appellate 1let-k-w in California with The Extraordinary Writs, 36 Calif.L.Rev. 75 (1948).
Notes: The Harmless Error Rule RevIewed, 47 Col.

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).
2. In general, on the Origin, History and Develop-meat of the Writ of Prohibition, see:
Treatises: Rogers, A Practical Arrangement of Ec­clesiastical Law, including a Treatise on Prohibition, and Showing the Present Practice in the Ecclesias­tical Courts, (2nd ed,, London 1849); High, A Treatise on Extraordinary Legal Remedies, Pt. II, Quo %Varronto and Prohibition, c. XXI, Of the Writ of Prohibition, 603—613 (2d ed., Chicago 1884); Plncknett, A Concise History of English Law, Bk, 1, Pt. II, e. VIII, The Rise of the Prerogative Courts, 188 (5th ed., Boston 1956).
Articles: Adams, The Writ of Prohibition to Court

- ChristIan, 20 Minn.L.Rev. 272 (1936); Wolfram, The

-“Ancient and Just” Writ of Prohibition in New York, 52 Col.L.Rev. 334 (1952).
-Comments: Prohibition Not Maintainable Where An­other Remedy Exists, 20 Barv.L. Rev. 334 (1007); Prohibition—Whether a Writ of Right, 26 Harv.L. Rev. 378 (1913); Prohibition—Is the Writ of Pro. hibition a Prerogative Writ? 37 ldich.LJlev. 789 (1939).
-L State v. Judge of Fifth District Court, 21 LeArnt. 113 (1869).

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

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-
4. Sweet v. Ilulbert, 51 Barb-(N.Y.) 312 (1868).
5. People v. Wayne Circuit Court, 11 3fich. 393 (1863).
6’ United States v. Peters, 3 Dallas (U.S.) 121 (1795).
1. State v. Whitaker, 114 N.C. 818, i9 SE. 376, (1894).
S. Appo v~ The People, 20 N.Y. 531 (1800).
0. United States v. Hoffman, 4 Wal].(US.) 158 (1s66)
0, In general, on the Origin, History and Develop­ment of the Writ of Certiorari, see:
Treatises: I Ti&1, The Practice of the Court of King’s Bench ia Personal Actiens, c, Xvii, Of the Removal of Causes from Inferior Gourts, 329--Sod (Philadel­phia 1807); Kinsey, An Abridgment of Decisions of the Supreme Court of New Jersey, on certiorari, to Courts for the Trial of Small Causes, ~5,-c. (Bur­lington, N, J. 1815); Wood, A Treatise on the Legal Remedies of Mandamus aji,l Prohibition, Habeas Corpus, Certiorari anti Quo WltI’ral,to (Al­bany 1880).
Articles: Jenks, The Prerogative Writs in English Law, 82 Yale L.J. 523 (1923); Boskey, Mechanics of the Supreme Court’s Certiorari Jurisdiction, 46 ~Jol.LRev. 255 (1946); Hannoek, Certiorari—Man­damns—Quo Wgrranto_Prohibiejon. Should Thoy he Consolidated? 68 N.J.URev. 37, 39, 47 (1945); Smith, The Prerogative Writs, II CambL.J. 40 (1951).



Ch. 34

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



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.

The Writ of Error: in General

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.
A Writ of Error was an Original Writ is-

-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-

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