Gambar halaman
PDF
ePub
[ocr errors]

with the ap

the caption of this inquisition was possessed of the
goods and chattels following, as of his own proper
goods, viz.
of the price of

which I,
the said sheriff, have caused to be delivered to the said
C. D. to hold to him, as his own proper goods and chat-
tels, in part of satisfaction of his debt and damages
aforesaid, in the said writ mentioned: And further,
the said jurors, upon their oaths, do say, that the said
A. B. at the time of rendring the judgment aforesaid,
was seized in his demain, as of fee of and in
(naming the houses and lands
purtenances, of the clear annual value in all the issues,
beyond reprises, of pounds,

acres of which, or thereabouts, are a true and equal moiety of all and singular the lands, tenements, and hereditaments whatsoever, in the county aforesaid, of the said A. B. which said moiety, I the said sheriff, the day aforesaid, to C. D. in the said writ named, at a reasonable extent, have delivered; to hold to him and his assigns, as his freehold, according to the form of the statute in that case made and provided, until he shall have levied the residue of the debt and damages aforesaid, as the writ aforesaid requires: And further, the said jurors, upon their oaths do say, that the said A. B. at the time of giving the judgment aforesaid, had not, nor at the day of taking this inquisition, hath any other or more goods or chattels, lands or tenements, in the county aforesaid, to the knowledge of the jurors aforesaid. In testimony whereof, as well I, the said sheriff, as the jurors aforesaid, to this inquisition, have severally put our seals, the day, year, and place, above mentioned.

The Return of a Capias ad Satisfaciendum.

I

Return of

Y capias ad sa- the within named A. B. whose body, before the tisfacien

justices within named, at the day and place within condum.

tained, I have, ready to satisfy C. D. of the debt and damages within mentioned, as within to me is commanded.

Or,

Non est in ventus.

The within named is not found in my bailiwic. V. And whereas, it hath been heretofore much doubt. (Stat. 21. Ja. ed and questioned in Englaud, before the statute made à, c. 24.) in the twenty-first year of the late king James the first, if any person being in prison, charged in execution, by reason of any judgment given against him, should happen to die in execution, whether the party, at whose suit, or to whom such person stood charged in execution at the time of his death, were not forever concluded and barr'd to have execution of the lands and goods of such person so dying? And lest any person of sufficiency in real and personal estate, intending to deceive others of their just debts for which they stand charged in execution, should obstinately and wilfully chuse rather to live and die in prison, than to make any satisfaction to their creditors.

VI. Be it declared and enacted, by the authority afore- Debtordying said, That the party or parties, at whose suit, or to in execution, whom any person shall stand charged in execution, for creditor may any debt or damages recovered, his or their executors have new ex

ecution a. or administrators may, after the death of the said per- gainst his son so charged, and dying in execution, lawfully sue estate. forth and have new execution against the lands and tenements, goods and chattels, or any of them, of the person so deceased, in such manner and form, to all intents and purposes, as he or they, or any of them, might have had by the laws and statutes of the Realm of England, if such person so deceased had never been taken or charged in execution.

VII. Provided always, and be it enacted and declared, But not to That this act shall not extend to give liberty to any affect lands

bona person or persons, their executors or administrators, sold by debat whose suitor suits any such party shall be in execu-tor. tion, and die in execution, to have or take any new execution against any the landis, tenements, or hereditaments of such party dying in execution, which shall, at any time after the said judgment or judgments, be by him sold, bona fide, for the paiment of any of his creditors; and the money which shall be paid for the lands so sold, either paid or secured to be paid, to any of his creditors, with their privity and consent, in discharge of his or their debts, or some part thereof.

VIII. And for removing all scruples, which may be entertained among clerks, concerning the issuing of executions,

а

[ocr errors]

A new exe- IX. Be it further enacted and declared, That when cution may

writ of execution shall issue, and the party at whose issue, if the

any former be

suit the same is issued, shall afterwards desire to take not returned out another writ of execution, at his own proper costs executed.

and charges, the clerk may issue the same, if the first writ be not returned and executed. And if, upon a capias ad satisfaciendum, the sheriff shall return, that the defendant is not found, the clerk may issue a (a) fieri facias: And if, upon a fieri facias, shall return, that the party hath nu goods, or, that only part of the debt is levied; in that case it shall be lawful to issue (6) a capias ad satisfaciendum, upon the same judgment. And so, where part of a debt shall be levied upon an elegit (c) a new elegit shall issue for the residue.

And where nihil shall be returned upon any writ of eleJudgment a-şit, a capras ad satisfaciendum, or (d) fieri facius may gainst seve. issue; anil so vice versa. (e) And where one judgment ral execu. is obtained against several defendants, execution theretions as against one.

on shall issue, (f) as if it were against one defendant, and not otherwise.

X. And (8) whereas, by the common law, if a crerela, ditor should take execution upon any judgment, or sta

tute, and the debtors shall before make alienation of part of his lands, and such land shall be omitted out of the extent, the same execution may be avoided by au

ditu querela, and thereby the party extending, may Infancy.

Jose his costs, and be delaied of his just debt; and so again, upon any new extent, toties quoties. And if any

Audita qua

Notes to Edition 1733, (a) This was a question at Common Law, 1 Roll. Abr. 904. Hob. 57. (6) This is agreeable to the Common Law, ibid. (c) This might be at Common Law, Hob. 57. (d) This was questioned at Common Law, Roll. Abr. 904. Hob. 57.

contra.

re) The meaning of these words must be, that where Nihil is re, turned upon a Fieri Facias, an Elegit may issue; or where Fieri Feci for part is returned, a Fieri Facias may issue for the residue; and this might be done at the Common Law, according to several pre. cedents, Vid. Brownl. Brev. Judic. 55. Thesaurus Brev. 115. Oficina Brev. 93.

(f) The meaning of this, is, that where there are several defendants, one sort of execution shall issue against them; and not a Ca. pias against one, and Fieri Fucias against another,

(This clause is not so clearly worded as it ought to have been, but the meaning of it is, when part of the Lands aliened are extend ed, and other part omitted, the execution shall not be avoided for that reason. Vide the Statute 16 & 17 Car. c. 5.

one acre or parcel of land happen to descend to an infant, the whole execution must be deferred, 'till the full age of such infant; and if afterwards, other part of the land or tenements liable to such debt, shall de-, scend to another infant, then further delay will happen during that infancy also. And these inconveniencies Stat. 16 & 17, and delays being remedied in England, by one act of Car. 2, c. 2. parliament made in thic sixteenth year of the reign of the late king Charles the second, which is not binding upon the subjects here:

XI. Be it enacted and declared, by the authority afore- Extent not sard, That when any judgment, statute, or recogni- avoided, by zance shall be extended, the same shall not be avoided

omission of

part of the or delaied, by occasion that any part of the lands or lands. tenements extendible, are or shall be omitted out of such extent.

XII. Saving always to the party and parties, whose Saving relands shall be extended, his and their heirs, executors, medy, for

contribu. and assigns, his and their remedy, for contribution against such person and persons, whose lands are or shall be omitted out of such extent, from time to time.

XIII. Provided always, That this act, or any thing No extent or therein contained, shall not be construed to give any contribution extent or contribution against any heir within the age against in of one and twenty years, during such minority of such heir, for or in respect of any lands to such heir descended, farther or otherwise than might have been made before the making this act.

XIV. And be it further enacted, (a) That no writ of Property fieri facias, or other writ of execution, shall bind the delivery of property of the goods against which such writ of execu- writ. tion is sued forth, but from the time that such writshall be delivered to the sheriff, under-sheriff, or coroners, to be executed: And for the better manifestation of the said time, the sheriff, under-sheriff, and coroners, their deputies and agents shall, upon the receipt of any such writ, (without fee for doing the same) endorse upon the back thereof, the day of the month, and year, when

tion.

Note to Edition 1733. (a) This is a clause of the Statutes against frauds and perjuries, 29 Car. 2, cap. 3, and the design of it was to deelare, when several persons have cxecutions at the same time, against the same person, that which is first delivered, shall be first served: For it seems, at Common Law, they were to take place according to the teste, Comberb. 429, but now it is otherwise.

Officer to he or they received the same: And if two or more endorse time

writs shall be delivered against the same person in the of delivery.

same day, that which was first delivered, shall be sa

tisfied first. (a) Goods taken XV. And be it further enacted, by the authority aforeon fieri faci- said, That when any sheriff, or other officer, or minas, how sold. ister, shall take the goods or chattels of any person

whatsoever, by virtue of any writ of fieri facias, and the owner of such goods or chattels shall not, within three days after such taking, satisfy the party suing out such writ, his debt, damages, and costs, such sheriff, or other officer, shall and may lawfully sell, by auction, the goods and chattels so taken, or so much there

of, as shall be sufficient to satisfy the judgment, for Notice of

the best price that can be gotten for the same: But shall time and place of sale. give notice of the time and place appointed for such

sale, at the church or chapel of the parish, where such goods shall be taken in execution, by setting up a note thereof, before the service begins, in some convenient or usnal place near such church or chapel, and by publishing the same in the church-yard immediately after

divine service, upon the next Sunday after such taking: Sale, when Which said sale shall be made the third day after such to be made.

notice given, as aforesaid, and not sooner.

XVI. Provided always, That if the person, whose Debtor may retain goods, goods or chatteis shall be taken in execution, as aforeon giving se- said, shall give sufficient security to the sheriff, or other curity.

officer, or minister, serving the same, to have the same goods and chattels forth-coming at the time of sale, it shall and may be lawful to and for such sheriff or officer to accept such security; and thereupon to suffer the said goods and chattels to remain in the possession, and

at the risque of such lebtor, until the time aforesaid. Goods to be XVII. Provided nevertheless, If the person, whose restored on goods and chattels shall be taken in execution, shall, tender of debt.

at the time appointed for such sale, tender to the sheriff, or other officer, the debt, damages, and costs, for which bis goods and chattels shall be so taken, such sheriff or officer shall accept the same, and restore the said goods to the owner.

Note to Edition 1733. (a) This was a question upon the Statute, but so determined. Carthew 420.

« SebelumnyaLanjutkan »