|
|
|
|
|
|
|
322 C00MBS v. JORDAN.
its nature, cover the whole subject of the decree, it would seem,
that the plaintiff should not be allowed to vex the defendant unne-
cessarily by having two or more executions against him at the
game time; that is, to execute a fieri facias for the recovery of the
money, and a capias ad satisfaciendum or attachment to enforce a
specific performance; but should take one such execution, as, from
its terms, may embrace the whole of what he claims under the
decree, (n) But even in the case of such complex decrees if the
plaintiff is satisfied, or waives all but the money demand, he may
then have a fieri facias for that. And therefore it would seem,
that, as to mere money demands at the least, this act of Assembly
has virtually given to decrees in equity an incidental lien upon real
estate, similar to that which is attendant upon a judgment at com-
mon law.
In the case under consideration, the sale to Jeremiah Booth was
made befores but not ratified until some time after the passage of
the act making equitable interests liable to be taken in execu-
tion, (o) It could not be considered as a complete bargain and
sale; as a perfect contract between the court and Booth until it
was finally ratified and assented to by both parties. And as that
was not until after the passage of that act, it must therefore be
treated as a case in all respects, and in every point of view, fully
within it as to time. In regard to the nature of the equitable inte-
rest in the land which Booth acquired by this contract, I am also
entirely satisfied that it is such a one as must be held to be em-
braced by that act.
The principle is believed to be universal, that a judicial lien can
(n) DICKINS v. HIFFNER.—In this case a decree having been passed for a con-
veyance of a tract of land as therein specially described, and also for costs; the
plaintiff by his petition, on oath, stated, that the defendant had been regularly served
with ft copy of the decree, but had complied with no part of it. Whereupon he
prayed an attachment, which was awarded and returned attached. After which the
plaintiff by petition prayed for a fieri facias for the costs; and an attachment of
contempt for the non-performance of the other part of the decree.
1807.—KILTY, Chancellor.—The Chancellor was not satisfied that he had the
power, under the act (1785, ch. 72, s. 25) to issue a fieri facias in the manner
prayed. The allowance of that kind of execution appears to be for cases in which,
the property sold can satisfy the demand of the plaintiff in the decree specified. It
is possible, that if every other part of the decree was complied with, a fieri facias
might then issue for the costs; but it does not appear regular to issue one kind -of
execution or process for one part of the decree, and another for another. The party
may fitter proceed with Ms attachment in the usual manner, or without proceeding
on the one served, take out & writ of capias ad satisfaciendum against the defendant,
as that kind of execution will go to the whole.—M. S.—(o) 1810, ch. 160.
|
|
|
|
|
|
|
|
 |
