Commonwealth v. Webster
| Decision Date | 29 June 1852 |
| Citation | 49 Va. 702 |
| Parties | COMMONWEALTH v. WEBSTER. |
| Court | Virginia Supreme Court |
1. The common law writ of capias pro fine is unrepealed and may be used by the Commonwealth.
2. Where there is a judgment in favour of the Commonwealth for a fine and costs of prosecution, the writ may issue for the fine and the costs; but where the judgment is for costs without a fine, the writ is not a proper process to enforce the judgment.
3. Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from imprisonment by paying the fine and costs. But the term of his imprisonment under such capias is limited by the provision in the Code of 1849, ch. 209, § 17, p 781.[a1]
At a special term of the Circuit court of Jackson county, held in January 1852, Samuel S. Webster applied to the Court for a writ of habeas corpus ad subjiciendum, to be delivered from imprisonment in the jail of the county. The writ was issued; and the sheriff made a return thereon that Webster was in his custody by virtue of a commitment on four several writs of capias ad satisfaciendum issued from the clerk's office of the Circuit court of Jackson for fines and costs in cases of the Commonwealth against him And he made the writs and the returns thereon a part of his return to the writ of habeas corpus. Two of these writs were for fines imposed upon Webster in prosecutions for misdemeanor, and the costs of the prosecutions: The other two writs were for the costs of other like prosecutions where no fine had been imposed.
Upon the return to the writ the Court with the consent of the parties, adjourned to this Court the following questions:
1st. Whether a capias ad satisfaciendum can issue in behalf of the Commonwealth against a person convicted of a misdemeanor, on a judgment against him for a fine and costs.
2d. If such capias can issue, is there any means by which he may discharge himself without paying the fine and costs.
At common law the crown for the recovery of its debts, could issue executions against the persons, and the goods and profits of the lands, and the goods and chattels, and the lands, of its debtors. That is it might issue an execution of capias ad satisfaciendum, or of levari facias, or of fieri facias, or of extendi facias: And it might in one combine all these writs. In the case of a subject, whilst the writs of fieri facias and levari facias were the process of execution by which in all cases the judgments might be enforced, yet the subject also might have the execution of capias ad sat isfaciendum in all recoveries for wrongs committed with force; and the extendi facias for recoveries against an heir for the debt of his ancestor. These executions, all of them, existed at common law; and however the statute may have enlarged the number of cases to which some of them were made applicable they were common law, not statutory, process: The writ of elegit was purely statutory. For the recovery of fines to the king, the usual process was against the person of the offender by capias pro fine, if he did not pay the fine which had been assessed, and against the goods and profits of the lands by levari facias. 2 Gab. 606; 1 Chit. Cr. L. 660. It is stated in the latter of these authorities that the imprisonment under the capias pro fine was, in respect of such fine, not as a debt but a punishment for the crime, until the fine was paid. It is true that a capias pro fine is an execution to compel the payment of the fine, as the capias ad satisfaciendum is to compel the payment of the debt. Notwithstanding that point of resemblance, these two species of process were never confounded in practice; and were kept signally distinct in the views of the legislature, in many provisions made relating to the operation and the incidents of a capias ad satisfaciendum. In the original structure of the two writs the levy of the ca. sa. was made a direct satisfaction of the debt; but in the frame of the writ of capias pro fine the imprisonment did not purport to be a satisfaction of the fine; it was a part of the punishment; and the fine still remained in full force and could only be redeemed by satisfaction of the fine whenever it might be made. The frame of the writs of ca. sa. in its teste and return and the interval between them was also distinguished from the other writ. The levy of the ca. sa. was attended with consequences that do not seem ever to have attended the imprisonment under the capias pro fine --such as the effect of a voluntary enlargement of the prisoner to discharge the debt--the effect and the liabilities arising out of an escape--the...
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