Jurisdictions: or, The lawful authority of courts leet, courts baron, court of marshallseys, court of pypowder, and ancient demesne : together with the most necessary learning of tenures, and all their incidents, of essoynes, imparlance, view; of all manner of pleadings, of contracts, of the nature of all sorts of actions, of maintenance; of diverse other things, very profitable for all students of innes of court and chancery : and a most perfect directory for all stewards of any the sayd courts. / Heretofore writ in French by the methodically learned, John Kitchin of Grays-Inne, Esq; and now most exactly rendred to more ample advantage in the English tongue; with a demonstrative table, pointing out all matter of consequence, throughout the whole work. Whereunto is added the authentick formes of all manner of writs, with their severall returnes in English, very usefull for all men in this Common-wealth, as they be now used.

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 condem∣ned, 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 Execu∣tion 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 on∣ly, 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 exe∣cution

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 executi∣on; 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 execu∣tion, 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 up∣on 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 Ele∣git 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 obli∣gation 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 exe∣cution, 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 A∣vowant, and that the Avowant hath that Rent delivered in execution, and good.

15 Ed. 3. Tit. Execution 93. Rent was delivered in execu∣tion upon a Recognisance, time of Ed. 1. Title Audita que∣rela, 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. Mer∣chant 40. If one sue Execution upon a Statute and he ac∣cept part of the Land in name of all, he shall not have extent of the residue, but it seems upon a (Nihil) retur∣ned 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 up∣on 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 Cer∣tificate, 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 Re∣cognisance.

2 R. 3. fol. 9. If the Conisee of a Statute dies, his Exe∣cutors or Administrators if he dye Intestate shall have exe∣cution 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 (Au∣dita 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 a∣gainst the Heire of the Coniser, and the Land Te∣nants.

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 Sta∣tute, but where one hath a Judgment and dies, it is other∣wise, 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 Co∣nisee 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 defea∣ted 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 can∣not 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 Veni∣re facias, and upon that a Scire facias, And if it be exten∣ded too low, the Conisor may lay the Money in Court, and recover his Land, and if it be found too high the Co∣nisee 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 reasona∣ble extent in Execution, have been recovered, or lawfully diversted from the Conisee of the Satute Merchants, Sta∣tute Staple or Recognisances, before they have been fully satisfied, and paid there Debts without fraud or covin, re∣medy 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 dam∣mages

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 with∣out 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 exe∣cution of Recognisances and of Statutes for your Learn∣ing.

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 Judge∣ment given, and of Chattels which he had day of the Exe∣cution sued, Natura brevium fol. 107. and 2 H. 4. fol. 15.

It seems that all the halfe of the Lands which a Recog∣nisor 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 acknow∣ledged, 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 Mer∣chant is, and upon that shall goe a Writ of execution to take him, and to extend his Lands, and this shall be re∣turned 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 sta∣tute 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, onely the Seale of the party, 15 H. 7. fol. 15.

A man may sue Debt upon the Statute Merchant, Sta∣ple, 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 bo∣dy 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 af∣ter Judgement, but after the yeare, 5 Ed. 4. fol. 1.

If after Judgement one gives his Goods to one, to de∣fraud 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, onely against the persons, their Heires, Successors, Exe∣cutors, Administrators, and Assignes, and every of them, whose Actions, Suits, Debts, Accounts, Damages, For∣feitures, Harriots, and Releifs, by such fraud shall be, or may be hindred, delayed, or defrauded, notwithstan∣ding 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 admini∣stred 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, and take profits of their Lands and Goods so given by fraud, shall be a Capias, and Procla∣mation, and after, Execution of his Lands and Goods, 2 R. 2. Stat. 2. chap. 3.

Where Debtors make Gifts and Feoffments, as it is sayd in the Statute of 2 R. 2. and flye to places privi∣ledged, 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 Co∣vin, and have her Goods againe.

33 H. 6. fol. 5. One buyes in Market open, Goods ta∣ken 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 re∣covered, and had Execution; the Tenant may have an Assise against her, and recover.

22 Book of Ass. 1. Assise, The Tenant, hanging the As∣sise, enfeoffs another, or suffers another to enter, end re∣cover 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.

Notes

• Rastall, Debt, 5.
• Rastall, execution 5.