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than a mere obiter dictum. It states a sound principle. It is decisive of the question at bar.

It may be urged that to reach this conclusion is to impair the doctrine of res judicata, in that it compels a plaintiff to try the merits of his case and be barred by his failure, while no such decisive result inheres in defeat to the defendant. But this consequence does not follow. It is elementary law that the doctrine of res judicata does not operate as an estoppel unless it is mutual and affects both parties alike. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 217. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 127. In a situation like that at bar, the plaintiff puts his cause in issue no further than does the defendant. The bar of whatever judgment may be rendered, where a non-resident defendant appears specially merely for the purpose of protecting his interest in attached property, extends no further against the plaintiff than it does against the defendant. It relates only to the property of the defendant held under effectual attachment. The record of the judgment and the form of the execution when rendered against the defendant explicitly show this. It runs only against the property so attached, and not otherwise. The record of the judgment when against the plaintiff should be equally categorical in showing that the plaintiff has failed to establish his case only against the property attached, and not that he has failed generally to establish a cause of action against the defendant. In such case the question of the general liability of the defendant to the plaintiff has not been put in issue, because the defendant has chosen to rely on his strict right by confining his appearance to the protection of the property alone and not to submit himself to the general jurisdiction of the court. When a defendant pursues this course he cannot at the same time claim the boon of general judgment if he wins, and the shelter of his special appearance if he loses. He cannot gamble with jurisdiction and invoke its benefit if favorable and repudiate its force if adverse. He must select his ground in advance and abide by the issue. If he stands only upon the special ground, he is entitled upon success only to a judgment which protects that property but which goes no further and will afford no shield against further prosecution of the plaintiff's claim against other property or against him personally, provided effectual attachment or personal service may be made.

The plaintiff, by instituting his action and making the effectual attachment of property, offers to the defendant the alternative, first, of coming into court generally and settling all issues by submitting to the jurisdiction of the court with the attendant advantage of ending that cause of action by a final judgment, or second, of appearing specially and protecting only the property attached and settling only

1 But cf. Good Health Dairy Products Co. v. Emery, 275 N. Y. 14 (1937), p. 544, supra.

that question and nothing else. The adjudication will be exactly commensurate with the alternative accepted by the defendant. This result is one of fairness and justice to both parties.

It is contended that because the defendant, after the entry of the order of the Superior Court to the effect that he could not appear specially but must submit to the jurisdiction generally if he desired to make any contest, answered generally attempting to continue his special appearance and also filed cross interrogatories for the taking of a deposition without questioning the jurisdiction, he has waived his special appearance and has in fact submitted himself generally to the jurisdiction of the court. But this contention cannot be supported. After having raised the point seasonably, he did not waive it by proceeding in accordance with the rulings of the court, which until reversed were the law of the trial. Walling v. Beers, 120 Mass. 548. Commonwealth v. Retkovitz, 222 Mass. 245, 253. Harkness v. Hyde, 98 U. S. 476. Southern Pacific Co. v. Denton, 146 U. S. 202. Davis v. Cleveland, Cincinnati, Chicago & St. Louis Railway, 217 U. S. 157, 174. There is nothing inconsistent with this in R. L. c. 173, § 118, which relates only to a general appearance and answer to the merits where rights have not been saved by earlier pleadings.

It is not necessary to determine whether the allowance of the amendment to the record was within the power of the Superior Court or whether there was error in other respects. The questions which have been discussed are decisive of the issues here raised.

Exceptions sustained.1

1 See Salmon Falls Mfg. Co. v. Midland T. & R. Co., 285 Fed. 214 (C. C. A. 6th, 1922). Cf. Harnischfeger Sales Corp. v. Sternberg Dredging Co., 189 Miss. 73 (1939). But cf. The Dupleix, [1912] P. 8.

As to the effect of an appearance in a proceeding begun by attachment or garnishment, see Restatement, Judgments (1942) §§ 38-40.

CHAPTER X

ENFORCEMENT OF JUDGMENTS

SMITH, ELEMENTARY VIEW OF THE PROCEEDINGS IN AN
ACTION AT LAW (2d ed. 1842) 162-176.1

If the judgment be not reversed, vacated, or set aside, the prevailing party has a right to issue Execution. This, if the judgment be, as it almost always is, for so much money,3 is mostly by writ of Fieri Facias, Capias ad Satisfaciendum or Elegit. There are indeed two other modes of execution, one by Levari Facias, and the other by Extent; but the former being altogether unusual, and the latter almost entirely appropriated to the crown, no further notice will be here taken of them.*

A Fieri Facias is, like the Capias ad Satisfaciendum and Elegit, a judicial writ, and issues out of the court in which the judgment against the defendant was recovered. Except in counties palatine (where it is addressed to the palatine officer), it is directed to the sheriff of the county where the venue in the action was laid, commanding him that of the goods and chattels of the defendant, he cause to be made the sum recovered, and have it before the court on the return day: this being delivered to the sheriff, or his deputy, he makes a warrant to one of his officers, or, if he be the officer of a county palatine, grants his mandate to the sheriff, who in his turn issues a warrant to his officer. . . .

When the writ becomes returnable, the sheriff may return Fieri Feci, i.e., that he has levied the sum named in the writ, or a part of it, which he is ready to pay to the execution creditor; or, that he has taken goods which remain unsold for want of buyers; or nulla bona, i.e., that the defendant has no goods within his bailiwick; or, any other legal excuse for not levying. If money have been levied, and the sheriff neglect to pay it over, the creditor may obtain it from him either by rule of court or action. If part only be levied and, of course,

1 Footnotes omitted except as indicated.

2 Cf. pp. 487-489, supra, relative to supersedeas.

3 As to the method of enforcing judgments in ejectment and replevin, see p. 573, infra. In detinue, where the judgment was for a specific chattel or its value, the successful plaintiff could secure a distringas against the defendant to deliver it or a scire facias against a third person in whose hands it was. But if delivery was refused, the plaintiff had only a right to enforce against the defendant a judgment for the value of the chattel. See 3 Blackstone, Commentaries, *413.

4 As to levari facias and extent, see 3 Blackstone, Commentaries, *417-*418, *419-*420.

when nulla bona is returned, he may have a new execution for the residue; and, if he think proper still to proceed by Fieri Facias, may sue out either an Alias Fieri Facias, into the same, or a Testatum Fieri Facias into any other county. If the return be, that the goods are unsold for defect of buyers, he may have a Writ of Venditioni Exponas commanding the sheriff to sell them. And, lastly, if the return be false, an action may be brought against the sheriff. . .

A Capias ad Satisfaciendum, is a writ by which the sheriff is commanded to take the defendant, and him safely keep, so that he may have him in court on the return day, to satisfy the plaintiff. This process lies against every one who was not personally privileged against arrest at the commencement of the suit, and against some who were, such as attornies.

The sheriff must execute it literally according to its terms, and has no power, instead of arresting the defendant, to receive the money due from him, but, if the defendant wish to liberate himself by payment, he must have recourse to the execution creditor, who is bound, on tender of the sum due, to sign a proper authority for his discharge. On the return day of this writ the sheriff generally returns Cepi Corpus et paratum habeo, i.e., that he has taken the body of the defendant and has it ready; or that the defendant is so ill that he cannot remove him without danger to his life; or he may return non est inventus, i.e., that the defendant is not found within his bailiwick. If the last return be made, the plaintiff may sue out an Alias Capias into the same, or a Testatum Capias into another county, or he may, if he please, sue out an Exigi Facias, and proceed to Outlawry.1

If the defendant be taken, he either remains in the custody of the sheriff in the county gaol, or is removed by Habeas Corpus to the prison of the superior court. In either case the law sets so high a value upon the liberty of the subject, that it considers the execution. a satisfaction of the judgment as against him; 2 and, therefore, though the defendant had died in prison, or been discharged by privilege of parliament, the plaintiff's remedy would have been at an end, but for Stat. 2 Jac. 1, c. 13 [1605], and 21 Jac. 1, c. 24 [1624], the former of which gives execution after the privilege of parliament has ceased, and the latter execution against the deceased's goods and chattels; and if the defendant escape from the sheriff, or be rescued, the plaintiff may have new process to retake him, though he will also in that case have a remedy against the sheriff or gaoler for his dereliction of duty.

An Elegit is a writ first given by the statute of Westminster the second [1285], which enacted that where a debt is acknowledged or

1 As to outlawry on execution as distinguished from outlawry on mesne process, see 1 Tidd, Practice (9th ed. 1828) 131-144.

2 See 3 Freeman, Executions (3d ed. 1900) § 462; Abbott v. Osgood, 38 N. H. 280 (1859).

3 For the text of the statute, see p. 575, infra.

recovered in the King's Court, or damages awarded, it shall be in the election of him who sues for such debt or damages, to have a Writ of Fieri Facias, or that the sheriff deliver to him all the chattels of the debtor, saving his oxen and beasts of the plough, and a moiety of his land, until the debt be levied by a reasonable price or extent.2

This writ of execution against the defendant's land may be had as well after his death as before it. The sheriff on receiving it is to empannel a jury, who enquire of the goods and chattels of the defendant, and appraise them, and also enquire of his lands and tenements. The goods and chattels are delivered to the plaintiff at the price at which they have been valued by the jury; a mode different from that pursued in executing a Fieri Facias, under which the sheriff must sell the goods which he has taken. If the goods and chattels were not sufficient to satisfy the plaintiff's demand, the sheriff was to extend a moiety of the lands, under which term were included reversions and rent-charges belonging to the defendant, but copyholds, rents-seck, advowsons in gross, or glebe belonging to a parsonage or vicarage were not extendible, nor were lands held in trust so, until 29 Car. 2, c. 3, s. 10 [1677]; though, by that statute, some species of trust property, to which the defendant was entitled at the time of execution sued, might have been extended. . . .

3

after the expiration of a year and a day, the plaintiff cannot sue out any of the above Writs of Execution, without reviving his judgment by a writ of Scire Facias; the reason of which is, that, after so long a space of time, the court, primâ facie, presumes his demand to be satisfied. We will present the reader with a short account of the proceedings by which the revival of a judgment is effected. . . .

A Scire Facias is a writ founded upon some matter of record. When brought, as it may be, to repeal a patent, it is an original writ issuing out of the Court of Chancery; in other cases it is a judicial writ, and is sued out of the court in which the record on which it is founded happens to be. It is considered as the commencement of a new action. . . . Among the great variety of purposes to which it may be applied, it is here intended to consider only the mode in which it is used, for the purpose of reviving a judgment.5 ..

The Scire Facias states the judgment recovered by the plaintiff,

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2 See 3 Freeman, Executions (3d ed. 1900) §§ 370–371.

3 This was the famous Statute of Frauds.

As to scire facias generally, see 2 Tidd, Practice (9th ed. 1828) 1090-1133. Rule 81(b) of the Federal Rules of Civil Procedure provides in part as follows: "The [writ] of scire facias ... [is] abolished. Relief heretofore available by scire facias may be obtained by appropriate action or by appropriate motion under the practice presented by these rules."

...

5 The right to issue a scire facias on a judgment did not exist at common law, but was given by the Statute of Westminster II, 13 Edw. I, St. 1, c. 45 (1285). But an action of debt could be brought on a judgment both at common law and after the Statute of Westminster II.

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