Law, Book 4 · Chapter 46
CHAP. 46.
Of Iudiciall Writs to execute Iudgements.
THeſe Iudgements hauehave their Iudiciall writs belonging to them, both meere Iudiciall writs, for the execution of them, and new originals in the nature of Iudiciall writs, to vndo ſome matters concerning Iudgements.
Meere Iudiciall writs in reall or perſonall actions, are either ſuch as lye onelyonly within the yeare and day after the Iudgement rendred, or a Scire facias.
Thoſe of the firſt ſort are betweene the 14. H. 7. 15. 19. 15. H 7. 5.parties to the recouerie, for otherwiſe though it be within the yeare, he that recouereth is driuen to his ſcire facias, as if it be for debt or dammages recouered againſt a 38. E. 3. Scire fac. 77 14. H. 7. & 15. H. 7. ibid.fem ſole, who afterwards taketh a huſband, or by or a gainſt ones predeceſſour or Teſtator, and in the ſame Court where the recouery was, for if the record of a recouery in an aſſiſe of nouell diſſeiſin bee remoued within the yeare into the Chancerie by a Certiorare, and from thence to the Common place by a Mittimus, or remoued by writ of error out of the Common place into the K. Bench, & the Iudgement affirmed within the yeare, yet the partie is driuen to a ſcire facias. So if a fine executory be remoued out of the Cōmon place into the Treſurie, and come back by Certiorare and Mittimus, within the yeare no execution ſhall be by an habere facias ſeiſinam, but by a Scire facias onelyonly. But although the Iudges of the Common place ſhould all dye within a yeare after their iudgement, and other Iuſtices be choſen, yet in that caſe execution might bee well enough without a ſcire facias: for it remaineth ſtill the ſame Court, or if the Iuſtices in Eyer come into the Countie, where one hath recouered before the Iuſtices of Aſſiſe, they may award execution by a Scire ſacias within the yeare.
Of this kind are vponupon recouerie in reall or mixt actions.
Habere facias ſeiſinam to put him in poſfeſſion vponupon a freehold recouered, in an aſſiſe, F. N. B. 167.praecipe quod reddat, &c.
Habere facias poſſeſſionem, vponupon a Terme for yeares recouered, as in an Eiectione firme, &c.
A writ to the Biſhop to admit ones F. N. B. 38. b. & f.Clarke vponupon a preſentment recouered in a Quare impedit, or aſſiſe of darrein preſentment: If the ſuit be againſt the Biſhop himſelfe, then this writ may be to the ſame Biſhop, or to the Metropolitan at the parties choice.
Thoſe vponupon a recouery in perſonall actions, are …woforts, either to hauehave execution 27. El Coo. 11. Sir Wil. Harbertieof the profits of his land & Chattels, or a Capias ad ſatisfaciendum.
But in Court Barons Execution is onelyonly by diſtreſſe, and impounding till the 4. H. 6. 17. 22. off. Pl. 72.partie be ſatisfied: for they hauehave no power to ſell or deliuer the diſtreſſe to the partie, neither doth any execution by the body lye there.
In thoſe of the firſt ſort execution ſhall be of any (a)Old N. B. 165. 42. E. 3. 11. 2. H. 4. 14.land which the partie had day of the Iudgement rendred, but for (b)Old N. B. ibid. 2. H. 4. ibid.chettels (though it be (c)24. Eliz.leaſes for yeares) o…ly thoſe which he had day of the execution ſued. (d)24. Eli. ibid.So as if he ſell his goods bona fide, after Iudgement, and before the writ of Execution ſued forth, thoſe goods are not lyable to the execution: or if a writ of execution be ſued forth, and neuer returned, and after the defendant alien his goods, and then the Plaintife purchaſeth another writ which is returned, yet execution ſhall not be of thoſe goods, for writs which neuer are returned are not of record, nor of any force at al. But an alienation made after the Teſte of that ſecond writ had beene nothing worth.
Of this kind are a Scire facias, and a Leuari facias. Fierifacias to lente execution of his goods and Chattels onelyonly. Leuari facias 15. El. Pl. 441. Old N. B. 165.to leuie execution of the profits of his land and Chattels. The forme is, Praedicta pecuniam de terris & catallis praedicti (the defendant) leuari facias, Ita quod ea habeas in ett' tali die praefat. (the Plaintife) deliberand. And this hauing words that he ſhall leuie the money of his lands and chattels, it ſeemeth that the Sherife may take the rents payable by the Tenants in execution of the debt, but not to ſeiſe the land, and deliuer it to the partie.
Statutes.
Weſt. 2. cap. 13. He that recouereth debt or damages in the Kings Court may at his choiſe hauehave a ſcire facias of the land and chattels of the debtor, or a writ for the ſherife to deliuer him all the Chattels of the debtor (except oxen and plow beaſts) and the moitie of his land by a reaſonable extent till the debt be leuied. And if he bee eiected out of the land, he ſhall hauehave an aſſiſe: and afterwards a writ of rediſſeiſin if need be.
…1. E. 1. Stat Acton Burnel. A debt acknowledged to a Merchant, before the Maior of London, Yorke, or Briſtow, or before a Maior or Clarke (appointed by the King thereunto) ſhall be enrolled. And if it be not paied at the day, the debtors moueables ſhall be priſed and ſold in ſatisfaction by the Maior, if he hauehave any within his iuriſdiction, elſe by writ out of the Chancery vponupon a Certificate of the Recogniſance thither. The priſors to take them of the price if they priſe too high; if they hauehave not moueables ſufficient, then he ſhall be impriſoned til, &c. The like proceſſe againſt pledges, in default of ſufficient moueables of the principall.
13. E. 1. Stat, De mercatoribus. A debt acknowledged to a Merchant before the Maior of London, or chiefe Wardein of a Towne, which the King ſhall appoint, or other ſufficient men when they cannot attend, and before a Clarke which the King ſhall aſſigne, ſhall be enrolled, and if it be not payed at the day, the debtor if he be a lay man ſhall be impriſoned by the Maior till, &c. if he be within their power, elſe by writ out of the Chancerie vponupon Certificate of a Recogniſance thither. And if he agree with the ereditor within a quarter of a yeare after, then al the lands which were the debtors, day of the Recogniſance made, and alſo his goods, ſhall be deliuered to the creditors vponupon a reaſonable extent. And of theſe lands ſo deliuered, the coniſee being ouſted, ſhall hauehave an aſſiſe or rediſſeiſin.
The writs out of the Chancerie ſhall be returnable before the Iuſtices of either Bench, and vponupon a Non eſt inuentus returned or that he is a Clarke, writs to all the ſherifes where he hath lands or goods, ſhall go forth to deliuer the ſame vponupon reaſonable extent, and to what ſherife hee will to take his bodie.
The like proceſſe ſhal be againſt the pledges if the money be not paied at the day.
If the debtor or pledges dye, the creditor ſhall hauehave execution vponupon the lands of the heire at his full age.
27. E. 3. cap. 9. The Maior of the Staple ſhal take Recogniſance of debt before himſelfe and the Conſtables of the Staple, whereupon default of paiment being made the debtors body ſhall be impriſoned, and his goods ſold in ſatisfaction (if they bee within the Staple) elſe vponupon a Certificate in the Chancerie, a Writ ſhall goe out from thence to impriſon their bodies, and ſeiſe their lands and goods which ſhall be returned in the Chancerie, and execution thereupon in all reſpects as in the Statute Merchant. Saue that the debitor ſhall hauehave no aduantage of the quarter of a yeare.
5. H. 4. cap. 12. A Statute beeing once ſhewed in the Common place, and the proceſſe afterwards diſcontinued, yet execution may afterwards be awarded without ſhewing it againe.
11. H 6. cap. 10. He that is in priſon vponupon a Recogniſance, ſhall not be deliuered out of priſon vponupon a Scire facias againſt the partie, and ſuretie thereupon found to the king alone, but ſhall finde ſureties ſeuerally as well to the King as to the other partie.
23 H 8 cap. 6. Either of the chiefe Iuſtices, or in their abſence out of the Terme, the Maior of the Staple of Weſtm̄ with the Recorder of London may take Recogniſances. And they ſhall be executed in all reſpects as a Statute ſtaple.
27. Eliz. cap 4. EueryEvery Statute Staple or Merchant, not brought to the Clarke of Recogniſances within foure moneths next after the acknowledging, to enter a true copie thereof, ſhall be againſt all perſons, their heires, ſucceſſors, executors, adminiſtrators, and aſſignes onelyonly, which for good conſideration ſhall after the acknowledging of the ſame Statute purchaſe the land, or any part lyable thereunto, or any rent, leaſe, or profit of it.
32. H 8. cap. 5. Lands lawfully deliuered in execution vponupon a Iudgement or Recogniſance, being euicted without any fraud or default in the tenant before he hauehave leuied the whole debt and damages, the recouerer and the Recogniſee ſhall hauehave a Scire facias out of the ſame Court where execution was awarded, returnable there full forty dayes after rhe date And thereupon a new writ of Execution of the nature of the former to leuie the reſt of his debt and damages, if the defendant make default, or ſhew no good matter in barre.
Magn̄ chart̄ cap. 8. The King ſhall not take the lands or rents of the debtors, if he hauehave ſufficient chattels.
Magn̄ chart̄ cap. 18. The goods of the debtor may be attached after his death by the view of lawfull men. That nothing ſhall be medled with till the Kings debt be payed.
33. H. 8. cap. 39. All Obligations to the king ſhal be of the force of a ſtatute ſtaple.
Prerogatiue.
The King may hauehave a diſtringas to leuie an amercement, or ſuch like, by diſtreſſe … ſale, whether it be an Amercement in the Leet, or Sherifes turne, or otherwiſe.
A Capias ad ſatisfaciendum is to take his Old N B. 167.bodie in execution, for ſatisfying of the partie. And this is alwayes vponupon a recouerie 17. El. Coo. 12. Sir Wil. Harbertie 2. H. 4. 6.in a perſonall action where a Capias lay. Therefore it lyeth not in any reall action as in a writ of dower, or other proecipe quod reddat, nor at the Common Law in debt, detinue, account, &c. but in actions of 40. E. 3. 25. 49. E. 3 2. 49. E. 3 ibid.treſpaſſe, and ſuch like. And here an exigent ſhall be awarded vponupon the firſt Capias, for if he were taken by the Capias, he ſhould pay vntounto the King a fine for a treſpaſſe adiudged againſt hlm.
Prerogatiue.
Of this nature are two ſpeciall writs by the Kings prerogatiue. Capias pro fine Regis, and capias vtlagatum.
Capias pro fine Regis, when the partie is 1. H. 7. 20.adiudged to pay a fine vntounto the King.
Capias vtlagatum, to take one outlawed, Old. N B. 168.which is a kind of Iudgement and determination of the originall writ as appeared before.
Theſe are the Iudiciall writs within the yeare and day.
A ſcire facias which lyeth after the yeare and the day, is to warne the defendant vponupon Old N. B. 163. 27. Eli Coo. 12. in Sir Will. Harb. ….recouerie in reall actions, for in perſonal actions debt onelyonly lay after the yeare, which is a new originall, till Weſtm̄ 2. cap. 45. gaue a ſcire facias, to ſhew cauſe why the Plaintife ſhould not hauehave execution. Therfore here the defendant may plead matters Lit. 116.growing after iudgement rendred to ouſt the other of his execution, as outlawry, &c. or a releaſe of all actions, for in as much as he may plead vponupon this ſcire facias, it may well be called an action, though it be but a writ of execution. But notwithſtanding that a man which recouereth debt or damages, releaſe to the defendant all actions, yet he may lawfully ſue execution by a fieri 8. E. 4. 15. 1. El. Dy. 16…. 19. H. 8. 6. 22. H. 6. 41. 2. H. 7. 3. 24. H 8. Br. peremptorie 63.facias, Capias ad ſatisfaciendum, &c. for theſe cannot be called actions. Here vponupon a Nihil returned, execution ſhall bee preſently againſt the parties to the iudgement. But not (b)1. Eliz. ibid.againſt Executors, or Adminiſtrators, nor in a ſcire facias vponupon a (c)1. El. ibid.Recogniſance (a) 1. Eliz ibid.or (d)1 Eli ibid. 2. El. Dy. 172 8. E. 4▪ ibid.Charter of pardon, vponupon an outlawrie, or ſuch like, or to (e)26. H. 8. … Dy. 198.repeale a patent, for in all theſe caſes two Nihils muſt be firſt returned. And therefore a ſcire facias ſicut alias ſhall go forth. And the (f)The Stat. Weſt. 2 cap. 46. doth ſo recite it.Solemnities of ſōmons, attachment, eſſoyne, view of land, &c. lie not in this writ.
Statutes.
Weſtm̄ 2 cap. 46. For all things recorded before the Kings Iuſtices, or contained in fines (whether contracts, couenants, Obligations, ſeruices or cuſtomes acknowledged, or any other things enrolled) a Writ of Execution ſhall be within the yeare, ſo as the parties ſhall not need to plead: After the yeare a Scire facias. The like is of meſne who by Recogniſance or Iudgement is bound to acquit.
In caſe of life the Iudge may command execution to bee done without any writ.
A woman (a)22 aſſ. Pl. 71.quicke with child, (b)22. aſſ. Pl. ibid.the triall whereof is by a Iurie of women: and the writ for it is called a writ De ventre inſpiciendo, ſhall for (c)23 aſſ. Pl. 2.once and no more, be reſpited (a)22. aſſ. ibid.execution, but it is no plea vponupon her arraignment, to ſay, that ſhe is enſeint, but ſhe muſt anſwer to the felonie.