previous notice of the taking of such inquisition, and of the time and place of taking same; and upon the return of such devastavit the plaintiff shall be entitled to immediate execution de bonis propriis without further rule or judgment (d). executor. (d) In an action against an executor, the judgment against him (except Execution in cases where a judgment of assets quando accederint is taken, as to which against see s. 153, post), is that the debt, damages, and costs, or the damages and costs shall be levied off the goods of the testator in his hands, if he have so much, and if not, then the costs to be levied off his own goods (2 Wms. Executors, 6th ed., p. 1823; 1 Wms. Saund. 336). If, indeed, he pleads a plea false within his own knowledge, as ne unques executor, the judgment for debt, damages, and costs is de bonis testatoris et si non de bonis propriis. On the ordinary judgment, however, the writ of execution for the recovery of the debt is a fieri facias de bonis testatoris. A ca. sa. or fi. fa. in the ordinary form against the defendant will therefore be set aside (M‘Stephens v. Hartley, 20 L. T. N. S. 225); and in order to obtain a writ of execution against the body or goods of the executor personally, the sheriff must return a devastavit, which, under the above section, can only be upon the finding of a jury; and see Ward v. Thomas, 2 Dowl. 87; 1 Wms. Saund. pp. 219 (8), 303. As to the liability of an executor for a derustavit committed by the first executor, see Coward v. Gregory, L. R. 2 C. P. 153, and as to the liability of an executrix for a devastavit committed by her husband, see Soady v. Turnbull, L. R. 1 Ch. 494. By 3 & 4 Vict. c. 105, s. 56, an executor who is plaintiff is liable to pay Costs. costs in the same manner as an ordinary plaintiff, unless the Court or a Judge shall otherwise order. As to the liability in general of an executor to costs, see post, the notes to sects. 157, 158. prisoner in execution. 15 76, s. 127. & 16 Vict. c. 138. It shall not be necessary in any case to sue out a writ Detainer of a of habeas corpus ad satisfaciendum to charge in execution any person already in the prison of the Court, but such person may be so charged in execution by a side-bar order upon an affidavit that judgment has been signed and is not satisfied, and the service of such order upon the keeper of the prison for the time being shall have the effect of a detainer (e). (e) This section is only applicable to cases where the debtor is in the Marshalsea (see M'Donnell v. Anderson, 6 Ir. C. L. R. 271). In other cases, a ca. sa. must be issued and lodged with the sheriff. Previous to the Act, the only cases in which it was necessary for a plaintiff to sue out a habeas corpus ad satisfaciendum, was where the debtor was in the King's Bench prison at the suit of an execution creditor, other than the one seeking to detain him. Tidd's Pr., 9th ed., p. 363. a prisoner 139. A plaintiff or defendant arrested under any writ of Discharge of capias ad satisfaciendum shall be entitled to his discharge from execufrom such arrest, on payment or tender to the opposite party tion. or his attorney in the cause, or to the sheriff or gaoler in M whose custody such person may be under such writ, of the amount directed to be levied by such writ (f). (f) Previous to the Act, payment of the sum endorsed to the sheriff or gaoler was not a satisfaction of the judgment (Martin's Case, 2 Show, 139). And if the sheriff, after such payment, allowed the defendant to go, it was an escape (Slackford v. Austen, 14 East, 468). 140. A written order under the hand of the attorney in the cause, by whom any writ of capias ad satisfaciendum shall have been issued, shall justify the sheriff, gaoler, or person in whose custody the party may be under such writ in discharging such party, unless the party for whom such attorney professes to act shall have given written notice to the contrary to such sheriff, gaoler, or person in whose custody the opposite party may be, but such discharge shall not be a satisfaction of the debt, unless made by the authority of the creditor; and nothing herein contained shall justify any attorney in giving such order for discharge without the consent of his client (g). (9) The attorney at Common Law has no authority after judgment has been recovered to proceed further (Butler v. Knight, L. R. 2 Ex. 109), and therefore the sheriff was liable for an escape if he discharged a debtor, on the authority of the attorney, and it turned out that the attorney had not been authorised (Conop v. Chalis, 2 Ex. 484). It would appear from the above section as though the creditor by discharging the debtor, discharged the debt as well. See, however, 35 Geo. 3, c. 30, s. 31, and Doolan v.Doolan, 13 Ir. C. L. R. 27 (referred to ante, p. 147). 141. A writ of execution, after the commencement of this Act, if unexecuted, shall not remain in force for more than one year from the date of such writ (h), unless renewed in the manner herein-after provided, but such writ may at any time before its expiration be renewed by the party issuing it for one year from the date of such renewal, and so on from time to time during the continuance of the renewed writ, by being marked with the seal of the Court, and with a memorandum, signed or initialed by the officer, of the date of the day, month, and year of such renewal, such seal to be provided and kept for that purpose in the office of the Master of the Court out of which such writ issued, or by such party giving a written notice of renewal to the sheriff, signed by the party or his attorney, and bearing the like seal of the Court, and memorandum signed or initialed by the officer as aforesaid; and a writ of execution so renewed shall have effect and be entitled to the same priority as the original writ would have had provided, however, that no writ of habere shall be renewed without the special leave of the Court or a Judge (i). writ remains in force. (h) Previous to the Act a writ of execution might be executed at any How long time before it was returnable (Perkins v. Woolaston, 1 Salk. 321), and no limit was fixed by Statute or otherwise as to the time within which it might be made returnable. Moreover, when a fi. fa. or ca. sa. was taken out within the year and not executed, a new writ of execution might be sued out at any time afterwards without a scire facias, provided the first writ was returned and filed and continuances entered from the time of issuing it, Tidd's Pr. 9th ed. p. 1103. A writ of execution, however, now remains in force for no more than one year from the date of it. Whether the day of the date is to be reckoned in the period provided by the section may be a matter of doubt. In O'Leary v. Loftus, 10 Ir. Jur. N. S. 133, it was held under section 28 of the present Act, that a writ of summons and plaint issued on the 15th June could not be renewed on the 15th Dec., and see Anon., 1 H. & C. 664. That section, however, expressly provides that the day of the date is to be included in the period of six months, during which it is thereby provided a writ of summons and plaint shall remain in force for the purposes of service. As a general rule, when time is to be computed from a day, the day is to be excluded for the purposes of computation (Woolrych on Legal Time, p. 143, Rutter v. Mills, Cro. Jac. 662; Gorst v. Lowndes, 11 Sim. 434; Ammerman v. Digges, 12 Ir. C. L. R. Ap. 1). habere. (i) An application to renew an habere must be promptly made. Thus, Renewing in Smith v. Connell, I. R., 1 C. L. 565, an habere was executed in August, 1866; in May, 1867, the plaintiff moved to renew the habere upon affidavit, stating that in November, 1866, forcible possession was taken by the defendant, and that the plaintiff had attempted to serve the defendant with civil bill processes, but had been prevented by violence, and the Court, under the circumstances, held that the application was too late, and refused the motion. And see also Keogh v. Persse, Ir. R. 5, C. L. 54. If, however, forcible possession is taken after the execution of the habere, the Court will renew the habere if application be promptly made (Linehan v. Anthony, Batty, 453). Otherwise, the only remedy is by a new ejectment (M'Donnell v. M‘Kenna, 2 Ir. Jur. O. S. 111). When a plaintiff applies for a renewal of an habere, either in consequence of the first habere not having been executed, or of its execution having proved abortive, he must satisfy the Court that no change has taken place in the position of the parties, and in general the application should be upon notice (Shea v. M'Donnell, 7 Ir. Jur. N. S. 366, in which case negotiations had been pending, and the Court directed notice to be served). If, after judgment, in an ejectment brought by a landlord against a tenant, the landlord has recognised the tenancy as subsisting, the habere will not be renewed (Glengall v. Hickey, 4 Ir. Jur. O. S. 37). So, also, if a new possession has been given by the plaintiff after execution of the habere (Mahon v. Ejector, 3 Ir. L. R. 345). In such a case the first execution satisties the exigency of the writ, and the only remedy of the party is to bring a new ejectment (M'Donnell v. M`Kenna, ubi supra). Production of renewed writ evi dence of The Court will also require to be satisfied that the lands have not been cropped by the defendant since the former execution of the habere, and if they have the plaintiff will be put under terms (Willington v. Ejector, Bl. D. & O. 193; Walsh v. Ejector, 3 Ir. Jur. O.S. 316). Where no change has taken place in the position of the parties and the habere has not been executed it will generally be renewed. As to the execution of an habere in general, see De Moleyn's Landowners' Guide, 5th ed., pp. 203, 206, 326-328. 142. The production of a writ of execution, or of the notice renewing the same, purporting to be marked with such seal, and initialed as aforesaid, showing the same to have been 16 Vict. c. renewed according to this Act, shall be sufficient evidence of its having been so renewed. renewal, 15 76, s.15. Satisfaction by party. See Reg. Gen. Η. Γ. 1853, Γ. Sv. any 143. When any party who shall have recovered judgment of judgments in of the said Courts, or his personal representative or legal assignee, shall be willing to cause an entry of satisfaction (j) thereof, or a memorandum of part payment, to be entered on the record, such party (j) shall execute a satisfaction piece according to the form No. 8. in the Schedule B. to this Act annexed (which satisfaction piece shall not be subject to any stamp duty); and such satisfaction piece shall be executed in the presence of one witness, who shall attest by affidavit the execution of the same (k); and thereupon it shall be lawful for any attorney of the said Court employed for that purpose to require the proper officer to enter satisfaction or a memorandum of part payment on the record of such judgment; and such officer shall, on having such satisfaction piece verified as aforesaid, and such requisition lodged with him, enter such satisfaction or a memorandum of part payment on the record accordingly. Satisfaction (j) The present section provides for cases where the judgment creditor is of judgments, willing to execute a satisfaction piece. As to entering satisfaction in other cases, see the next section. (j) Where, after the death of the judgment creditor, his will had been proved in England only, and not in this country, it was held that satisfaction could not be entered upon the record, although the satisfaction piece was executed by the executors (Fitzpatrick v. Persse, 6 Ir. Jur. N. S. 129). So, also, when the amount of a judgment had been paid off during the lifetime of the conusee, it was held that probate should be first obtained before the personal representative could satisfy the judgment (Lowry v. Walker, 6 Ir. L. R. 127). When one of the two assignees who had executed a satisfaction piece was in an imbecile state of mind, the Court refused to allow satisfaction to be entered (Rule v. Baillie, 12 Ir. C. L. R. Ap. 49). () When the affidavit had been made in Australia before a police magis trate, and not before a Master Extraordinary, an order to enter satisfaction was, under the circumstances, made (Donelan v. Donelan, 9 Ir. C. L. R. Ap. 9). 144. It shall be lawful for the Court or a Judge to order a memorandum of satisfaction to be entered upon the record of any judgment, judgment roll, or judgment book, if it shall clearly appear to the said Court or Judge that the debt or damages for which the said judgment was obtained have been fully satisfied and discharged (1). Court may faction to be entered on fully paid. order satis judgment () As soon as the judgment is satisfied, the judgment debtor is entitled to Entering have satisfaction entered upon the roll. When satisfied under an execution satisfaction. as, for instance, by a levy under a fi. fa., the debtor may have the writ of execution returned, and satisfaction entered up. If not satisfied in that manner, but by payment, or some other transaction between the parties, the judgment debtor may call on the creditor to execute a satisfaction piece, as provided by the previous section; and if the creditor refuses to execute it he may apply to the Court under this section. The Court will not, however, act under this section except in a clear case, and will not, where there are disputed questions of law or fact, order a memorandum of satisfaction to be entered up (Clendinning v. Knox, 1 Ir. Jur. N. S. 125; Longmans v. Wallace, 10 Ir. Jur. N. S. 191). Where the amount of the judgment had been paid off to the executors of the conusee, who had obtained probate of the conusee's will in England but not in Ireland, the Court refused to allow satisfaction to be entered up, though the satisfaction piece was executed by the executors (Fitzpatrick v. Persse 6 Ir. Jur. N. S. 129; and, in general, the Court must have the personal representative of the judgment creditor before it (Lowry v. Walker, 6 Ir. L. R. 127; Morgan v. Somerville, 9 Ir. R. C. L. R. Ap. 15); but see Redmond v. Crawford, 7 Ir. Jur. O. S. 120. So also where the amount of a judgment had been paid by the representative of the conusor, to three out of four trustees in whom it was vested, the fourth being resident out of the jurisdiction of the Court, the Court refused to allow satisfaction of the judgment to be entered on the record (Kelly v. Blake, 3 Ir. C. L. K. 110; Maher v. Clonbrock, 2 Jones, 640); but see Wise v. Creed, 8 Ir. L. R. 222 (in which latter case the other conusee had disclaimed the trusts by deed). In Hodder v. Kift, 3 Ir. C. L. R. 22, the Court refused to order satisfaction to be entered up at the instance of an assignee of the judgment, there being nothing on the record to show his title. The Court has also refused to make an order, even with the consent of a person acting under a general power of attorney from the conusee (Brennan v. French, 4 Ir. L. R. 120). In Boyd v. M'Clean, 10 Ir. C. L. R. Ap. 37, the Court ordered a memorandum of satisfaction to be entered up, there being a receipt indorsed upon the bond. And for instances of cases where an order has been made, notwithstanding the opposition of the plaintiff, see Sinclair v. Great Eastern Railway Company, L. R. 5 C. P. 391 (where the question at issue between the parties was as to the amount of interest payable on the judgment); Cottenham v. Bodkin 4 Ir. C. L. R. 263; Barnett v. Heron, 8 Ir. C. L. R. Ap. 19. In the latter case the plaintiff, without having taxed his costs, issued execution upon a judgment marked only for the amount of a verdict, |