In other personal actions, which are commenced by the special writs, before enumerated,'- such as trustee process, replevin, &c. special executions, appropriate to the several actions, are given by the statutes prescribing the writs.

In real actions, the form of execution, in our practice, includes the facias habere possessionem, as to the land, and the fieri facias, as to the costs, and is given by Stat. 1784. ch. 28.

If an ex

Against persons privileged from arrest. ecution should be issued against any of those persons, who, as has been before stated, are privileged from arrest, the form of it should be altered, so as not to run against their bodies.2

Direction of executions. The same rules, which have been stated, as to the direction of original writs to officers, apply to the direction of executions. And though executions are generally directed to the same officers, who served the writ in the case, yet they need not be; but without reference to the writ, they may be directed, to officers qualified to serve them, in any or all the counties or towns of the Commonwealth, where service is required to be made.

So an alias or pluries execution may be directed, without any reference, to the preceding execution.3

Teste of execution. An execution may be sued out, bearing teste on any day, either in term time or vacation; and an alias or pluries may issue bearing

the third and fourth, are unknown in our practice, and the remaining three, are included in the form referred to in the text.

1 Vide ante Chap. VII. page 54.

2 Vide ante Chapter XII. Sect. II. Stat. 1810. ch. 114. Stat. 1816. ch. 111. Stat. 1830. ch. 131. s. 3.

3 Vide ante Chapter VIII. Sect. II.

teste on any day within a year after the return day of the next preceding execution.' Executions should be dated on the day they are issued.2

Where executions should be made returnable. All executions should be made returnable to the court or justice, from whom they issue. And this should be so specified in the execution.3

When executions should be made returnable. Executions issuing from the Supreme Judicial Court, are made returnable to the next court holden in the county, if, by law, there be two terms holden there in a year. If there be but one term holden there, they are made returnable, in six months from their date, or to the next court, whichsoever may first happen.*

Executions issuing from the Court of Common Pleas, are made returnable to the next court, in all those counties where there are four terms of the court, in a year. Where there are less than four terms of the court in a year, they are made returnable in three months, or to the next court, if it shall sit within that time.5

Executions issuing from a justice of the peace, or a justices' court, must be made returnable, within sixty days from the day of issuing them.R

In all the above cases, the time when the executions are returnable, should be specified therein."

SECT. I. LEVY OF EXECUTION.

The execution having thus been legally taken out of the clerk's office, must be delivered to the officer, by whom it is to be served, executed and returned.

The mode of levying an execution has no necessary connexion with the manner in which the writ was served. Thus, though upon the writ, the defendant be arrested, and bail taken, yet the plaintiff may cause his execution to be levied upon real or personal estate, if he can find it, and vice versa. So, though personal estate be attached on the writ, yet the plaintiff may levy his execution upon real estate, and vice versâ.1

Upon what executions may be levied. The common execution in use in our practice, may, in all cases, be levied, either,

1. Upon the body of the person, against whom it issues, unless he be privileged from arrest, as stated under the head of the service of a writ as a capias, or, 2. Upon his real estate, or,

3. Upon his personal estate.

The exceptions under the two last heads, that is the estates in lands, which are not liable to be seized on execution, and the personal estate that is exempted from seizure, are the same as have been stated, in treating of the attachment of property on the writ.s

The judgment creditor when he delivers the execu

1 Clark v. Goodwin, 14 Mass. Rep. 237. Herring et al. v. Polley, 8 Mass. Rep. 113.

2 Ante Chapter XII. Sect. II.

3 Ante Chapter XIII. Sect. II.

tion to the officer, should instruct him, in which of these modes he wishes his execution levied.

SECT. II. LEVY OF EXECUTION UPON THE BODY.

Time of levying. If the person, against whom the execution issues, were imprisoned on the writ, and remains so, at the time of judgment, the execution, — if it be intended to levy it on his body, — must be so levied, within thirty days after judgment, or he will then be discharged from imprisonment upon the writ.'

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But if the person be not imprisoned, at the time of judgment, or being so imprisoned, the execution be not levied upon him within thirty days, as above stated, it may be levied upon his body, at any time with this qualification, however, that if he gave bail on the writ, the execution must be delivered to an officer, to be served and returned, within one year, or the bail will be discharged. If he cannot be found, then the bail will be holden in the manner hereafter to be stated.

Mode of levying. In levying an execution upon the body of the person against whom it runs, the officer must take him into actual custody, and commit him to the county jail. The officer has no alternative, as in the case of serving a writ of capias.

Committal,

bond for jail limits, &c. When thus committed, the person either goes into close confinement, — or, if he please, he may have the jail limits, by giving bond to the creditor, with sufficient surety or sureties, in double the amount of the execution, conditioned to keep within those limits. And when

1 Stat. 1784. ch. 28. s. 10.

2 Stevens v. Bigelow, 12 Mass. Rep. 434.

3 Stat. 1811. ch. 85. s. 1. Stat. 1811. ch. 167. s. 1.

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thus committed, he must so remain until discharged by the creditor, or by order of law.

Jail expenses, &c. If the person go into close confinement, he may claim of the jailor, support as a pauper, which the jailor is bound to furnish, within twenty four hours after such claim, at the expense of the creditor,' and within such twenty four hours, the jailor may call upon the creditor, or his attorney, to give security for such support, and if they do not, he may discharge the debtor, after the expiration of that time.2

But if instead of going into close confinement, he give bond, for the jail limits, the creditor is not bound to support him.

Poor debtors' oath, &c. If the person committed intend to discharge himself by taking the oath prescribed by law, the following proceedings must be had namely.

1. He must complain to the jailor, of his inability to support himself in prison."

2. The jailor must then apply to some justice of the peace for the county in which the prison is."

3. The justice applied to, must make out a notification in writing, under his hand and seal, to the creditor, signifying the debtor's intention to take the oath, and the time and place thereof.5

1 Stat. 1821. ch. 22. s. 1.

2 lbid. s. 2. By Stat. 1819. ch. 94. s. 3. the amount for which the creditor is liable, for the support of the debtor in jail, is at the rate of $1,25 per week; and by sect. 2. of same Stat. he is liable, at this rate, to any town, district, or to the Commonwealth, for any expense they may incur for the support of the debtor in close confinement.

3 Stat. 1787. ch. 29. s. 1.

4 Ibid.

• Ibid.