Jurisdictions, Part 106
Execution.
For that, that execution is uſed in many Court-Barons by (Levari facias) let us ſee what Goods upon that, may be taken in Execution and what not, and the order of execution.
GOods pawned ſhall not be taken in execution, for the Debt of him which pawned them, during the time they are pawned, 34 H. 8 Pledge 28. and 4 Ed. 6. Diſtreſſe 75.
Where A. lets Oxen for time, and after A. is condemned, theſe Oxen during the tearme ſhall not be taken in execution, 22 Ed. 4. f. 10.
Debt in Court-Baron, the Plaintiff recovers by Judgment and ſhall have execution, and the Beaſts of the Defendant were taken and delivered to him in Execution, 33 Ed. 3. Tit. Execution 133.
In Debt where three are bonnd joyntly and ſeverally and hath of thoſe three ſeverall Judgments, and if Execution be againſt one, the other ſhall have a ſuperſedeas, but in treſpaſſe againſt three Execution againſt one doth not ſuffice, and the ſame Law is in a ioynt Debt, 4 Ed. 4. fol. 39.
By (Fieri facias) or (Levari facias) the Officer cannot break the Doore nor Cheſt to take Goods in Execution, for if he do, treſpaſſe lies againſt him for the breaking only, 18 Ed. 4. f. 4. & 13 Ed. 4. fol. 9. by Choke, notwitſtanding, 8 Ed. 2. Tit. Executors 152. contrary.
If one recovers in Court-Baron he ſhall not have execution by Eierifacias, nor otherwiſe, but may diſtrain the Defendant after Judgement, and detaine the diſtreſſe in their hands in ſafegard till the Defendant hath ſatisfied the Plaintiff of the condemnation, 22 Aſſ. 72 Statham 11 Ed. fol. 93. Nat. Bre. fol. 165 and 4 H. 6. fol. 17 action.
Bailiff in Court Baron cannot ſell the Goods in execution; but ſhall reſtraine them as diſtreſſe, notwithſtanding, where it is uſed to make, Levari facias, it is a good cuſtome, and note that it is uſed in many Mannors, that the goods are praiſed, and execution made of them by, Levari facias, 22 Book of Aſs. 72.
A Writ of Execution Judicii, lieth, where Judgement is given in a Court-Baron, upon a Writ of right patent, or in debt or treſpaſſe, and the Bailiff will not make execution, this Writ lieth as well, as it lieth where Judgement is given in a Court of Record, and the Sheriff will not make execution, and if he will not levy the execution upon the Goods, it was in vaine to award this Writ, Fitzh. f. 20. A.
Capias doth not lye in Court-Baron, and for that, the Capias to ſatisfie doth not lye to have execution, and Elegit doth not lye there, &c. for this is given by the Statute of, Weſtm. 2. chap. 18.
29 H. 8. Tit. Execution. B. 132. Two are bound in an obligation joyntly and ſeverally, if he ſue one and takes his Body by a Capias to ſatisfie yet he may take the other, but if one ſatisfie him, the other may plead that, 37 H. 8. Tit. condition, B. 16. One taken by a Capias to ſatisfie, is in execution, though that be not returned.
13. H. 4. Tit. Avowris 237. One avowes, for that, that J. S. was ſeiſed of a place where, &c. And, let that to the Plaintiff for life, rendring Rent, and after J.S. grants the reverſion to B. who was bound in a recognſance to the Avowant, and that the Avowant hath that Rent delivered in execution, and good.
15 Ed. 3. Tit. Execution 93. Rent was delivered in execution upon a Recogniſance, time of Ed. 1. Title Audita querela, 402. If the Father be bound in a Recogniſance and dies and his Iſſue within age, the Execution ſhall not be againſt him, for if it be he ſhall have an Aſſiſe.
Time of Ed. 1 Tit. 417. If a man takes a Wife and after be bound and dyes, the VVife is indowed, if ſhe be outed by extent, ſhe ſhall have Aſſiſe, 29 H. 8. Tit. Stat. Merchant 40. If one ſue Execution upon a Statute and he accept part of the Land in name of all, he ſhall not have extent of the reſidue, but it ſeems upon a (Nihil) returned upon the Teſtatum, he may have proceſſe into another County.
2 R. 3. f. 8. Statute Staple was certified by the Maior of the Staple, and the Coniſee upon that ſues a VVrit to take the Body, and to extend his Land in Suff. and Middleſex only, and this VVrit was not returned and by Certiorare he cauſed the Maior to certifie the Statute again, and upon that he hath a VVrit of extent in ten Counties, but not in Suff. and Middleſex, and this VVrit is not returned and he hath the third Certificate, and the third VVrit of Extent into ſix Counties, but not in Suff. and Middle. and now hath his Extent, and hath Land that the Cognifor hath in right of his VVife which died, and for threats durſt not take the profits of the reſidue, and by all the Juſtices the Cogniſee ſhall have a Capias into the County where he took his firſt Writ, and not otherwiſe, that is, into the County of Suff. and Middleſex only, upon the fourth Certificate, and upon that the Coniſor found ſuerties to the King and party according to the Statute, 11 H. 6. chap. 10. He ſhall have a Scire facias againſt the Coniſee, to prove the matter in his VVrit, and to be at the Judgment in the Court, and if he faile of any, he ſhall forfeit his Recogniſance.
2 R. 3. fol. 9. If the Coniſee of a Statute dies, his Executors or Adminiſtrators if he dye Inteſtate ſhall have execution upon it, without ſuing (Scire facias) or that the Coniſor cannot have any Plea, although he have a deed of Releaſe, but if he have a Releaſe he ſhall have an (Audita querela) or a (Scire facias) and ſo it is where one which is no Executor ſues an Execution, the Coniſor ſhall have this VVrit, but upon recovery by the Statute of Weſt. 2. One may have a fieri facias within the yeare to have Execution, and after the yeare may have Scire facias, and if a man be bound in two Statutes one after the other, and he which hath the laſt Statute hath firſt Execution, the other ſhall have a Scire facias and have execution, and if the Sheriff upon a VVrit to have execution returns, the Coniſor dead, the Coniſee ſhall have a Scire facias againſt the Heire of the Coniſer, and the Land Tenants.
25 H. 7. fol. 17. VVhere the Coniſee to whom a Statute is made dyes, his Executors ſhall have Execution without ſuing Scire facias, for that it is given by the Statute, but where one hath a Judgment and dies, it is otherwiſe, Weſt. 2. chap. 45. gives Scire facias upon Judgment, and upon Fine.
15 H. 7. fol. 14. Husband is bound in a Statute and Lands of his VVife were extended, and after the VVife dies, and the Heire of the VVife enters, now may the Coniſee have a Capias for the Body of the Coniſor, though he had not that at the firſt, for that, that the Statute gives the Lands, Goods and Body, and if execution be defeated by lawfull entry, he ſhall not have a Re-extent, but if the Coniſor himſelfe take the profits of the Coniſee or that the profit be deſtroyed by wild-fire, or water, the Coniſee may hold over his Tearm, and the Coniſor cannot enter during the Tearme of extent, but ſhall have a Scire facias, and ſhall not have that before the Tearme ended, without aquittance, or that he leave Money in the Court, and where the Coniſee is ſatisfied within the tearm by caſuall profit the Coniſor ſhall have upon that a Venire facias, and upon that a Scire facias, And if it be extended too low, the Coniſor may lay the Money in Court, and recover his Land, and if it be found too high the Coniſee may pray that the Extenders may take the Land, &c.
11 H. 6. fol. 8. If the Land extended be drowned by water within the Tearm, the Coniſee may hold over the Tearm, and the ſame Law where he is outed by a Guardian in Knights ſervice, 15 Ed. 4. f. 5.
22 H. 8. chap. 5. VVhere Lands delivered by reaſonable extent in Execution, have been recovered, or lawfully diverſted from the Coniſee of the Satute Merchants, Statute Staple or Recogniſances, before they have been fully ſatisfied, and paid there Debts without fraud or covin, remedy given by Scire facias againſt the Recogniſors to levy the reſidue.
VVhere a VVoman recovers dammages in Dower in the Bench, ſhe cannot have execution there of thoſe dammages recovered by capias ad ſatisfaciendum, for that, that the Capias doth not lye in the Originall, 11 H. 7. f. 15. & 2 H. 4. f. 7.
The Statute of Weſtm. 2 chap. 18. gives Elegit, that is to ſay, That the Sheriffe ſhall deliver all the Chattells of the Debtor (except the Oxen and Beaſts of the Plow) and the half of his Land, & that doth not extend to a Court-Baron but to Courts where Proceſs is directed to the Sherift, and the Statute is alſo when a Debt is recovered in a Court of the Kings, and Court-Baron cannot award the halfe of the Land in Execution, for it is no Court of the Kings, but of the Lords, and he cannot meddle with Lands without the Kings Command, but in other Courts Execution ſhall be of Lands, which hath a day of Judgement given, and of Goods in this Court, and Beaſts which the party hath day of the Execution awarded, and ſee alſo execution of Recogniſances and of Statutes for your Learning.
Execution ſhall be of Land which hath day of recovery, 7 Ed. 3. f. 93. and 21. Aſs. 2.
A man ſhall have Execution of Lands which he had day of the Judgement, and not before Abridgment, Aſſ. fol. 93. 19. Ed. 2. Fitzh. Execution 249. Natura brevium fol. 168.
A man ſhall have execution in Debt of no Land but of of that which the Defendant had, day of the Judgement given, and of Chattels which he had day of the Execution ſued, Natura brevium fol. 107. and 2 H. 4. fol. 15.
It ſeems that all the halfe of the Lands which a Recogniſor hath which enters into a Recogniſance day of that, or after are liable in execution by Elegit, 24 Ed. 3. fol. 27. tit. Execution 90. Fitzh. 267. D. & 2 H. 4. fol. 9.
Note where one is bound in a Statute, Execution ſhall be of all his Lands which he had day of the Statute acknowledged, or after in whoſe hands they come by Feoffment or otherwiſe, but it is not ſaid ſo of Goods and Chattells; And for that they ſhall not have them in whoſe hands they come but thoſe only which he had in his hands day of the execution awarded.
But if the Cogniſor, after the Statute acknowledged, lets his Land for yeares, the Cogniſee may out the Leſſee, for the words are, in whoſe hands they come, by Feoffment, or in other manner, Statute of Merchants, fol, 48.
To have execution of a Statute Merchant; firſt, you ſhall have a Writ of Certificate in the Chancery, and there upon Certificate ſhall goe a Capias, returnable in the Common Bench, or Kings Bench; and then within one quarter of a yeare, that it ſhall be taken, ſhall goe an Extent of all his Goods and Lands: See the Statute of Merchants; 37 H. 6. fol. 6. Fitzh. 130. G.
Statute Staple ſhall be certified as the Statute Merchant is, and upon that ſhall goe a Writ of execution to take him, and to extend his Lands, and this ſhall be returned in the Chancery, and not into the Common Bench or Kings Bench, as the VVrit of execution upon a ſtatute Merchant ſhall be, and upon this ſhall goe a Liberate, Fitz. fol. 131. D.
15 H. 7. fol. 14. Upon a ſtatute Staple, he ſhall have the body, lands, and goods by a VVrit, and upon a ſtatute Merchant: Firſt a Capias, by a quarter of a yeare, &c. and upon the returne of that (Non eſt inventus) ſhall have a VVrit to have execution of his Goods and Lands.
Upon a ſtatute Staple after a Certificate, ſhall goe out a VVrit to take his body, and to extend his lands in what County he will; and if that be returned, he cannot have Extent in another County, that is to ſay, a Liberate, 2 R. 3. fol. 7.
Upon a ſtatute Staple ſhall goe a Capias out of the Chancery, returnable in the Chancery to take his body, and to ſeife his lands into the Kings hands, and at the day of returne of that, Liberate. 37 H. 6. fol. 6.
Note that the Statute of Merchants, fol. 79. is, That an execution upon a Recognizance ſhall not be made, as it is upon a Statute Merchant; but as it was uſed by the Law, before the making of this Statute; and this was to have a Scire facias, and upon that an Elegit, or a Fieri facias.
Upon a Recognizance there ſhall go no Capias, but it is uſed otherwiſe at this day; that is, Scire facias returnable into the Chancery, and they uſe now to award a Capias, Fieri facias, or Elegit, 48 Ed. 3. fol. 14.
Statute Merchant hath two Seals, and one is the Seale of the paray, and for that upon that he may have Debt to have execution; but Statute ſtaple, onelyonly the Seale of the party, 15 H. 7. fol. 15.
A man may ſue Debt upon the Statute Merchant, Staple, or Recognizance: See Statute Merchant, Fitzh. 122. D. and fol. 77. the ſame.
Note that there are foure manner of Executions, and note Covin to defeat them void.
THere are foure manner of Executions, that is, of body by Capias, of Chattels by Fieri facias, of Lands by Elegit, and after the yeare after Judgement, by action of Debt, 11 H. 4. fol. 42.
Debt upon Recovery, ſhall not be within the yeare after Judgement, but after the yeare, 5 Ed. 4. fol. 1.
If after Judgement one gives his Goods to one, to defraud me of execution, and notwithſtanding takes the profit of them, I ſhall have Execution of theſe Goods, 22 Booke of Aſſiſes 72. 3 R. 2. the ſame, and 50 Ed. 3. the ſame.
All Conveyances of Lands and Hereditaments, Goods and Chattels, Leaſes, Rent, Common, or Profit, or charge out of Land, Judgment, Execution, Deeds by fraud or Covin, to the intent to defraud Creditors and others, of their juſt and lawfull Actions, Suits, Debts, Accounts, Damages, Forfeitures, Harriors, and Releifs, are voyd, onelyonly againſt the perſons, their Heires, Succeſſors, Executors, Adminiſtrators, and Aſſignes, and every of them, whoſe Actions, Suits, Debts, Accounts, Damages, Forfeitures, Harriots, and Releifs, by ſuch fraud ſhall be, or may be hindred, delayed, or defrauded, notwithſtanding fained conſideration, expreſſing of uſe, or any other matter, or thing to the contrary, 13 Elizabeth, chap. 5.
Debt againſt Executors, they plead gift of all the goods of their Teſtator by Deed, without that that they adminiſtred other Goods; and the Plaintiffe averrs, that the gift was made to defraud the Creditors, 13 H. 4. fol. 9. See 16 Ed. 4. fol. 9.
Iſſue was taken if the Goods were made away to defraud Execution, or not, 43 Ed. 3. fol. 3.
Where Debtors make Gifts and Feoffments fained, of their Goods and Lands, to their Freinds and others, and take Priviledges, Raſtall, Debt, 5.and take profits of their Lands and Goods ſo given by fraud, ſhall be a Capias, and Proclamation, and after, Execution of his Lands and Goods, 2 R. 2. Stat. 2. chap. 3.
Where Debtors make Gifts and Feoffments, Raſtall, execution 5.as it is ſayd in the Statute of 2 R. 2. and flye to places priviledged, and take profits, that the Creditors ſhall have Execution of the ſayd Goods and Chattells, as if no ſuch Gift: had been made, 50 E. 3. chap. 6.
26 H. 8. fol. 2. If a man takes a Wife which hath Goods and aliens them by Covin, ſuppoſing a Divorce to follow, and after they are divorced, the VVife may averr the Covin, and have her Goods againe.
33 H. 6. fol. 5. One buyes in Market open, Goods taken by wrong, if the buyer have knowledge of the wrong, the property is not altered.
14 H. 8. fol. 9. by Brook, If I by fraud and Covin, cauſe one to take your Goods, and to ſell them to me in an open Market, yet that ſhall not change the property, for that I am party to the Covin.
At Northampton before the Lord Dyer, there was a Deed of gift of Goods ſhewed, and in that it was expreſt by words to the uſe of the Donee, and yet it was averred that it was by Covin.
44 Ed. 3. fol. ult. A VVoman hath good cauſe to be endowed, and ſhee procured J.S. to out the Tenant, and then ſhee brought a Writ of Dower againſt J. S. and recovered, and had Execution; the Tenant may have an Aſſiſe againſt her, and recover.
22 Book of Aſs. 1. Aſſiſe, The Tenant, hanging the Aſſiſe, enfeoffs another, or ſuffers another to enter, end recover by Formedon, by elder gift, this Covin ſhall not hurt the Plaintiffe, but that he may recover.
38 Book of Aſſiſes, VVhere one was outlawed of Felony, alleadges Impriſonment at the time of the Outlawry, and it was replyd, that he was in Priſon by his owne Covin, and iſſue upon that.
41 Book of Aſſiſes 2. A man hath right of Action, and makes one by Covin to enter upon him which is in by diſcent, and recovers, he ſhall be adjudged to be in as an Abator, and not by Title.