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judgement_n bring_v debt_n defendant_n 2,294 5 9.7597 5 true
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A19787 The office and authoritie of sherifes. Abridged by the former author Mich. Dalton, of Lincolnes Inne, Esquire; Officium vicecomitum. Abridgments. Dalton, Michael, d. 1648? 1628 (1628) STC 6213; ESTC S116874 144,803 487

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deliuered in execution by force of an Elegit The Lands of a Bishop or Lands which a man hath but during the Couerture may be deliuered in Execution vpon an Elegit Vpon an Elegit if the Sherife shall extend a Lease for yeares the Iury which he shall cause to enquire thereof must finde the beginning of the Lease and also the certenty of the terme to come And this certentie of the Terme ought to appeare vpon the Sherifes retorne of the Inquisition But vpon a Fieri facias the Sherife may extend and sell away the Lease or Terme without reciting any certenty scz the Sherife may in his sale therof recite that the Debtor hath a Terme of such a Close pro termino diuersorum annorum adtunc ventur ' and that he selleth the same to I. S by force of the Furi fac c. But if the Sherife will take vpon him to recite the Terme and recites it falsely and so selleth the same Terme such his sale is void except withall the Sherife selleth also all the Interest which the debtor hath in the same land Also the Sherife ought not or at least needeth not to mention any certenty of the Terme in his Retorne of the Fieri facias but generally quod fieri fecit de bonis catallis c. And the Sherife hath election either to sell quite away a lease for yeares remaining in the debtors hands or else he may onely extend and deliuer the same terme or lease to the Conusee at a certaine yearely value which last seemeth to be the most indifferent course for that there still remaineth a property in the Conusor so as vpon payment of the debt he may haue his terme or lease againe Note that no stay or delay of any execution shal be vpon any writ of Error or Supersedeas except there be security first giuen to the Plaintife in the Court where the Iudgement shall be giuen to prosecute the Writ of Errour with effect to satisfie the debt dammages and costs c. 3. Iacob Cap. 8. Plus hic Cap. 58. CHAP. 29. Execution vpon a Capias ad satisfaciendum VPon this Writ the Sherife must arrest and take the bodie of the partie and put him into prison and there must keepe him without Bayle or mainprise vntill satisfaction or agreement be made to the Plaintife of the whole debt and dammages recouered against him So that if the prisoner doe escape the Sherife must pay the whole debt and dammages except the prisoner be presently taken againe vpon fresh suit Also if the Sherife shall suffer such a prisoner to goe out of prison vpon Bayle or with a Keeper except it bee by the Kings Writ the Sherife shal be answerable for the debt And therefore the Sherife must bee sure to keepe such prisoners safely and may put them in fetters and gyues But if such a prisoner doe escape of his owne wrong scz against the will or without the consent of the sherife or officer then the Officer may take him againe by vertue of the same Writ before the Retourne thereof when and wheresoeuer he can find the prisoner although it bee in another Countie Yea it seemeth the Sherife at any time may take such prisoner making an escape of his owne wrong againe and may keepe his bodie in custodie vntil he hath made his agreement with the Sherife c. Or where such a prisoner doth escape of his owne wrong if hee bee taken againe by the Gaoler c. the prisoner shall remaine in execution for the partie againe if the partie will And yet where a Knight or Bourgesse of the Parliament or other person so priuiledged shall be taken in execution the Sherife ought presently to deliuer such prisoner being sent for by the House c. and the partie may after the Parliament haue a new execution against the Debtor What persons may not bee arrested and taken vpon a Writ of Execution See hic ca. 21. hic infra Such persons as are necessarily attendant in any of the Kings Courts although they being arrested vpon any originall Processe shall be discharged thereof vpon shewing their Writ of Priuiledge yet if they shall bee taken vpon any execution the Sherife ought not to deliuer them vpon their writ of Priuiledge for then the partie should be without remedie Where a man is in the Sherifes custodie vpon an execution the Sherife may not deliuer him nor suffer him to goe at large though with a Keeper vpon any commandement of any of the Kings Courts or Iustices as it seemeth without it be by the Kings writ Plus hic Cap. 21. Yet if one in execution bee suffered to goe at large for a time by the commandement of the Court and by the consent and agreement of the Plaintife and after the prisoner returneth againe this is not any escape But where the Sherife hath one in execution for debt if an Habeas Corpus or Corpus cum causa cometh to the Sherife to haue the bodie at Westminster c. vpon a certaine day heere the Sherife may not onely carrie his prisoner to London through another Countie but the Sherife in these cases may go and take what way or place he shall thinke to be most sure and safe for himselfe and to carrie his prisoner And vpon a Corpus cum causa or a Certiorari c. procured by any person being in execution the Sherife must returne the truth or cause of the prisoners in prisonment that so the prisoner may be remanded c. If the Sherife shall arrest one vpon a Capias ad satisfaciendum and shall not returne the Writ nor sat●sfie the Plaintife this is an escape and the Sherife is chargeable for the debt neither may the Sherife arrest the party againe for the same cause Vide hic cap. 54. If the Sherife hath arrested one vpon a Capias ad satisfac ' c. and after the prisoner is rescued from him this is an escape and the Sherife is chargeable for the debt Execution vpon a Leuarifacias Vpon a Leuari facias the Sherife cannot seise the lands and deliuer them to the party but he is onely to take the corne grasse and other profits growing vpon the lands and the goods and chattells of the debtor and may deliuer them to the party and the Sherife may take the Rents payable by the tenants in execution of the debt and bring them into the Court. Note that the Sherife in debt may deliuer any land whatsoeuer that the party had the day of the Iudgment giuen or at any time af●er into whose hands soeuer they shall come But as to Chattells the execution shall be of such onely as the party defendant had the day of the Execution sued scz the day of the Teste of the writ of execution So that if the defendant shall sell his goods bona fide after iudgement and before the writ of execution sued those goods are not to be taken by the Sherife
nor liable to the execution But if the defendant hath sold his goods by Couin after the Recouerie or writ of Execution sued there the Sherife may take those goods in execution See hic cap. 61 CHAP. 30. Execution vpon a fieri facias VPon a fieri facias the Sherife is onely to take in execution the goods chattels of the defendant scz his leases for yeares of houses or lands and his corne growing or sowne vpon the land or his moueable goods as corne in the barne cattell houshold-stuffe money plate apparrell c. And here the Sherife may either keepe the goods himselfe making his retorne accordingly or the Sherife may deliuer the goods or money for the same being sold to the plaintife in execution or rather the Sherif may sel the goods and bring the mony into the Court and so the Court to deliuer it to the Plaintife And vpon the fieri facias the Sherife needs not to preise the goods by a Iury but the Sherife himselfe may sell the goods as well as he can and yet to preise them by a Iury and then sell them is more indifferent and safe Vpon a Fieri facias the Sherife may sell a Lease or Terme for yeares without enquiry of the value by a Iurie Note that the Sherife is commanded and compelled by this writ of fieri facias to sell the goods of the defendant And the property of the goods seised by the Sherife vpon this writ are not altered by the seisure but by the Sherifes sale thereof For the words of the Fieri facias be Praecipimus tibi quod de terris catallis praed ' I.S. fieri fac ' C.s. Et illos habeas c. ad respond c. And here though the iudgement be afterwards reuersed in a writ of Error yet the defendant shall haue no restitution of his goods but onely shall haue the value thereof as they were sold and the buyers thereof shall quietly enioy them because the Sherife had lawfull authority to sell them Vpon a fieri facias come to the Sherifes hands against A. If A. shall happen to die before the writ be executed here the Sherife may execute the writ vpon the Executors or Administrators of A. Or the goods of A comming to the hands of any stranger the Sherife may leuy or make Execution of these goods in the hands of the stranger But the Sherife or other Officer must be carefull that they take none but the defendants or debtors owne goods in execution for though they shall finde them in the possession of the defendant yet if vpon triall they shall be found to be none of the defendants goods then the Officer which shall take any such goods in execution is punishable and chargeable to the right owner of the goods If therefore it shall bee doubtfull to the Officer whether the goods bee the defendants or no let the Sherife take heed that he retorneth not that he hath taken so much goods of the defendants and that he hath Denarios illos paratos ad reddend c. for so he may be charged double for them scz both to the Plaintife and to the defendant for the same goods But let the Sherife either keepe the goods himselfe vntill the parties bee agreed Or else let the Sherife take securitie of the Plaintife to saue him harmlesse c. And to stay the retorne of his writ vntill he be well aduised what to doe therein Or rather where the property of the goods is doubtfull it is safest for the Sherife either not to meddle at all with such goods as shal not plainly appeare to him to be the proper goods of the defendāt or else to enquire by a Iury in whom the property of the goods be for the Sherife or Officer at his perill must take knowledge in whom the property is but being found by the Iury it excuseth the Sherife Also if the Officer shall attach goods which are not the proper goods of the defendant or shall arrest one man for another of the same name in both these cases the Officer is a Trespasser Goods gaged or pawned for debt can not be taken by the Sherife in execution nor goods demised or letten for yeares nor goods distreined Vpon a fieri facias if the Sherife shall leuy the money and shall keepe the same in his hands still the partie Plaintife may haue his action of account against the Sherife And if the Sherife shall returne fieri feci sed non inueni Emptores then a venditioni exponas shall goe out mes la party nauera vnques vn nouel Execution Note that vpon a fieri facias to leuy xx.l. if the Sherife retorneth fieri feci x.l. quàs habeo ad diem c. at which day he hath not the money and then a new Sherife is chosen here the Plaintife shall recouer that x. l. against the old Sherife c. CHAP. 31. Summons ALl Writs or Processe concerning the Common Law shall be awarded vnder the great Seale of England and shall bee made out in the Kings name onely Summons is a writ directed to the Sherife commanding him to bring in the party by a day or to cite or warne the defendant or tenant to appeare at a certen day to answer to the plaintife or demandant This Summons ought to bee made by or in the presence of two Summoners at the least being neighbours liberi legales In Reall actions the Sherifes order to execute this processe of Summoneas is to goe himselfe or to send his baylife to the land with the Summoners and there to cite or warne the tenant or party by sticking vp of a white sticke in his land which being done the Sherife must retorne two common Pledges for the Plaintife and then the names of the Summoners thus Responsio A. B. vic' Com' infrascr ' Pleg ' de prosequendo Iohannes Doo Richardus Roo See hic cap. 45. Summonit ' infranom ' I. S. the defendant Rich. Den. Hen. Fen ' This Summons or warning of the defendant to appeare and answer c. is so necessary by the Common Law as that without the same all the proceedings yea and the Iudgement after are oftentimes made frustrate and besides the Sherife subiect to punishment In Reall actions the Sherife or his Officer must summon the tenant or defendant vpon the land demanded be he tenant thereof or no and this summons to the tenant must be first to keepe his day of the retorne naming that in certen to answer to the demandment c. Secondly to shew the name of the demandant And lastly to name the land in demand And in writs of Summons the Sherife may not alledge or retorne Non tenancie in him whom the writ supposeth to be tenant In a Petite Cape the Sherife must summon the tenant to answer to his default onely But in a grand Cape the tenant shall be summoned to answer to his default and further to the demandment And