Their nature and objects. Different kinds of diligence. English forms of execution. CHAPTER XIII. EXECUTORIALS. THE executorials of the law are the legal proceedings or process by which the sentences or decrees of a competent court are carried out, or a nexus is laid over the person or property of an alleged debtor, until such decrees have been obtained and put to execution. These writs are in Scotland technically termed diligence; and with reference to their objects and nature, are divided into two classes, viz. diligence in execution, and diligence in security. Diligence in execution comprehends execution against the person of the debtor, viz. imprisonment or caption;' execution against his personal property, viz. poinding, and arrestment followed by furthcoming; and execution against his real estate, viz. adjudication and poinding of the ground. Diligence in security comprises imprisonment on a meditatione fuge warrant, arrestment to attach moveables, and inhibition and adjudication in security to throw a nexus over heritage. Besides these, the law of Scotland allows arrestment to be used as a means of founding jurisdiction; and arrestment of the debtor's person when in meditatione fugæ may also be resorted to for the same purpose. In England, diligence receives the general name of 'process;' but particular forms of it, in allusion to their nature and purposes, are also designated as execution and attachment. It should seem that anciently the executorials of the law were very similar in both countries; but now, of a long time, they have gone on diverging from each other in an ever-increasing ratio, partly by usage and partly by legislative interference, until their original resemblance has become greatly destroyed or obscured. So much is this the case, that any reasoning from one to the other is almost certain to lead to confusion and error; and there is nothing of which the Scottish lawyer ought to be more distrustful than any reference to English cases as precedents in relation to questions of diligence. Nor does this danger exist only where the decision has proceeded avowedly on the peculiar principles and practice of English law in relation to such matters; it is also to be apprehended whenever there is reason to believe that they have in any way affected even indirectly the ratio decidendi,—a circumstance which, on careful examination, will be found to occur much more frequently than might at first sight be expected. It might be supposed that the danger indicated would be most effectually guarded against by simply ignoring all acquaintance with the English forms and principles of execution; but when it is remembered that English cases are continually quoted and referred to not only in the Court of Session, but also in the House of Lords, which there is reason to believe contain more or less of this element, it seems that the danger will be more effectually prevented by obtaining such a general notion of the English principles and forms of execution as will enable the Scottish lawyer to understand and appreciate the more important respects in which they differ from those recognised in his own system. With this object, an outline of what in English law corresponds to the Scottish forms of diligence, will be found in the subjoined note, and we shall besides advert to the subject as occasion may serve (a). (a) When in England final judgment has been signed, the judgment creditor may in general issue execution against the person of his debtor by the writ of capias ad satisfaciendum, commonly known as the ca. sa. The personal estate may be seized by the writ of fieri facias, or fi. fa., and the realty by the writ of elegit. All these writs must be executed by bailiffs or sheriff-officers, under the authority of the Sheriff of the county, who is responsible for any irregularity in the procedure. Contrary to the Scottish practice, these writs cannot in general be executed concurrently; but the judgment creditor must make his election. If he take the personal estate, he may afterwards proceed against his debtor's person or real estate; but if he resort to imprisonment, he cannot afterwards seize his debtor's goods or lands, even if he should consent to liberation: for imprisonment on a ca. sa. is held, as the phrase imports, to be a satisfaction for the debt, unless the debtor die in prison, escape, or be rescued; and when the debtor's real estate has been taken in execution, the creditor cannot have recourse against his person or personal estate. After signing judgment, the creditor may find out what debts are owing to his debtor, by obtaining an order for his oral examination; and by certain procedure he may afterwards Scottish executorials. General principles. In examining the Scottish executorials in so far as they are available for or against partnerships, companies, corporations, and their members, it will be necessary to consider most of the forms of diligence under their separate titles; but before proceeding to do so, some general considerations will demand attention, and with these the remainder of the present chapter will be occupied. I. DILIGENCE AT THE COMPANY'S INSTANCE. The company being, as we have already seen, a quasi person in law, separate from the members of which it is composed, it may competently use diligence not only against its debtors among the public, but also against such of its own partners as stand to it in that relation. Inasmuch, however, as it is not a corporation, and therefore has not the privilege of suing in the descriptive or proper name, so neither has it the power of doing diligence in this manner; but must appear after the same manner in using diligence as if it were attach and recover such debts from the garnishee (arrestee). If the debtor has any Government stock, funds, or annuities, or any shares in a public company, standing in his name, a judge may make the judgment debt a charge on such stock or other interest. Decrees in Chancery must state the time within which the party is to do what is ordered; and after service, the decree may be enforced by writ of attachment against his person. If he cannot be found, or on being taken, refuses to comply with the order, a commission of sequestration may issue against his estate and effects. If the decree order payment of a sum of money within one month, it may be enforced by fi. fa. or elegit at common law; and in any case, such a decree may be registered in the Court of Common Pleas so as to bind the defendant's lands. In the County Courts, the judge generally fixes a time within which the debt must be paid; and after judgment, a fi. fa. may issue if the debt is not paid within the time specified. If the debtor has no goods, the judge may in certain cases commit him to prison for a period not exceeding forty days. This imprisonment is not, however, a satisfaction for the debt. Until judgment is signed, the law of England does not in general afford the creditor the means of attaching in security either the personal or real estate of his alleged debtor. In other words, there is nothing now in English law corresponding to arrestment on the dependence, to inhibition, or to adjudication in security. When, however, a judgment, decree, rule, or order is signed, it may be registered, and then becomes ipso facto a charge on all the real estate of the judgment debtor, creating in effect a statutory mortgage. Jurisdiction cannot be created by arrestment of goods belonging to the debtor in the hands of third parties, except by ancient custom in the city raising action. That is to say, the diligence must either proceed in name of all the members composing the company; in the company name with joinder of at least three partners, if the partnership consist of so many; or in the social name, which embraces those of individuals (a). name of officials. The question is often asked, whether a company may not do Diligence in diligence in name of its manager or other officials. In answer to this, it may be sufficient to observe, that as the law always requires much greater exactness in diligence than in ordinary action, it is obvious that diligence at the instance of the company in such a form must, as a rule, be incompetent (b). estoppel. Cases no doubt may be found where, ex equitate, the Court has Effect of permitted diligence to be done for an unprivileged company in name of its officials; but these are not to be relied on as precedents. When examined into, it will be found that in some the objection. was not stated; while others are to be explained on the principle of estoppel already referred to. The defender had done something, either before the diligence was raised or pendente processu, which of London, where it is termed 'foreign attachment.' Foreigners, however, as well as Englishmen, may be sued in a common law court if the action is personal, and if the writ be served upon them personally while in England. When judgment has been obtained against a company or a person deceased, it cannot be put to execution against an individual partner or executor, until it has been transferred against him by writ of scire facias, which is a diligence in the form of an action. When a creditor has reason to believe that his debtor is about to abscond, he may apply to a judge of one of the superior courts; and on making affidavit that the claim is above £20, a writ of capias in the Queen's name, addressed to the Sheriff, may be obtained for the debtor's arrest. The debtor must then either lodge the amount with the Sheriff, or put in special bail. Similar procedure may also be taken before the judge of a County Court or a commissioner of bankruptcy in country districts. In general, however, action for the claim must have been commenced by issuing of the summons before a judge will grant the warrant; yet a county judge may do so before action has been raised, provided it be commenced within seven days thereafter. Foreigners travelling in England on business or pleasure may be arrested in this manner, even though not intending to defraud their creditors. The writ of ne exeat regnum may still be issued in Chancery for the like purposes. (a) Wilson v. Ewing and Co., 1836, 14 S. 262; Fleming v. Ballantyne, 1842, 5 D. 305. All the decisions cited before as fixing the modes in which alone companies may sue, apply a fortiori to cases of diligence at their instance. See per Lord Moncreiff in Fleming v. Ballantyne. (b) See ante 543 et seq., suing by officials. Forsyth, 1834, 13 S. 42; Wilson v. Ewing, 1836, 14 S. 262. Unnecessary joinder of officials does not affect the diligence. When plea of estoppel will be most favourably received. disabled him from taking the objection to the instance. Thus, in Wilson v. Kippen (a), a committee of a private association was found entitled to charge certain of its members, because these persons had agreed to its appointment for the purpose of recovering outstanding debts. And in Fisher v. Syme, a charge at the instance of a banking company was sustained; but in that case the suspenders had bound themselves to make payment to the cashier nominatim (b). It must be observed, however, that where diligence is raised in the social name, which would in itself be a good title to sue, the mere adjunction of the name of a manager or other official will not render the instance invalid, any more than it would render it good were the company to have been designed by a descriptive name without joinder of partners (c). When, therefore, an official undoubtedly entitled to act for the company, raises diligence in its social name, and in his own for its behoof, there does not seem to be any objection to the instance; and this becomes doubly strong when the bill or other liquid document of debt on which the diligence proceeds had been drawn in such a way that the company appears therein as creditor per procurationem of its official (d). The plea of estoppel in answer to the objection that the diligence does not proceed in name of the proper parties to represent the company, will be more favourably received when the diligence is directed at the company's instance against its own partners. For while the public cannot be supposed a priori to be privy to arrangements by which the company agrees to appear judicially in some other form than those recognised by the common law, the case is different with its own members, who must be aware of, inasmuch as they have been parties to, such private arrangements (e). When obligations in which the company is creditor can be assigned, it will often be found more convenient to proceed in this way than at the instance of the company. We shall have occasion (a) 1822, 1 S. 282. (b) 1827, 6 S. 216. Many more examples of the operation of this principle will be found under the head of 'Suing by Officials.' (c) Robertson v. Anderson, 1841, 3 D. 986; London and Edinburgh Shipping Company, 1841, 3 D. 1045. (d) Fleming v. Ballantyne, 1840, 3 D. 242. (e) See Sturrock v. Thoms, 1851, 13 D. 762; Thom v. North British Bank, 1848, 10 D. 1254. |