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and that execution still remains to be had, and commands the sheriff to make known to the defendant that he be in court at the return day, to shew why the plaintiff ought not to have execution. After the judgment has been revived by means of this writ, the plaintiff must take out execution within a year and a day from the revival; for if he do not, or if the defendant happen to die, he cannot afterwards take out execution, but will be forced to bring a new Scire Facias.

A Scire Facias upon a judgment is necessary, not only when the plaintiff has delayed to take out execution within a year and a day, but also when any new person is to be benefited or charged by the execution of the judgment; for it is a rule that executions, and all other judicial writs, must pursue and correspond with the judgments on which they are founded; therefore, if a judgment be obtained against A., and he die, a writ of execution cannot issue against his executor, for he was no party to the judgment; so, if the plaintiff obtain judgment, and marry, execution cannot issue in favour of her husband, for he is not mentioned in the record. In these and similar cases, a writ of Scire Facias is sued out, which recites the facts as they have happened; the judgment given upon that writ includes the new party intended to be benefited or charged, and execution may be afterwards sued out upon that judgment.

BLACKSTONE, COMMENTARIES, vol. 3, *412-*413.

IF the plaintiff recovers in an action real or mixed, wherein the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession, of a chattel interest. These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ.1

Upon a replevin, the writ of execution is the writ de retorno habendo: and, if the distress be eloigned, the defendant shall have a capias in withernam; but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed.2

1 What is the writ of execution in ejectment?

2 These writs were available to a defendant in replevin who succeeded on an avowry or cognizance. A successful plaintiff in replevin required no execution except for costs. Cf. pp. 110–111, supra.


3 Blackstone, Commentaries (2d ed. 1768) Appendix, xxvi-xxvii.


GEORGE the second, by the grace of God of Great Britain, France, and Ireland king, defender of the faith, and so forth; to the sheriff of Oxfordshire, greeting. WE command you that of the goods and chattels within your bailiwick of Charles Long, late of Burford, gentlemen, you cause to be made two hundred pounds debt, which William Burton lately in our court before us at Westminster hath recovered against him, and also fifty pounds, which were adjudged in our court before us to the said William, for his damages which he hath sustained, as well by occasion of the detention of his said debt, as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have that money before us in three weeks from the day of the holy Trinity, wheresoever we shall then be in England, to render to the said William of his debt and damages aforesaid: and have there then this writ. WITNESS Sir Thomas Denison,2 knight, at Westminster, the nineteenth day of June, in the twentyninth year of our reign.

[Sheriff's Return.3]

By virtue of this writ to me directed, I have caused to be made of the goods and chattels of the within-written Charles Long, two hundred and fifty pounds: which I have ready before the lord the king at Westminster at the day within-written, as it is within commanded



Tidd, Forms of Practical Proceedings (5th ed. 1819) 753-754. `

GEORGE the Third, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith. To the sheriff

1 This was the form in an action of debt in the Court of King's Bench. The senior puisne justice; there being no chief justice that term. - NOTE BY BLACKSTONE.

3 This is the return of fieri feci, previously mentioned, p. 568, supra.

4 This was the form where the action was brought in the Court of King's Bench.

day of

in the

year of

of greeting: Whereas John Doe lately in our court before us
at Westminster, by our writ, and by the judgment of the same court,
recovered against C. D.1 his term then and yet to come of and in
dwelling houses, &c. (as in the declaration in ejectment,) with
the appurtenances, situate and being in the parish of
in your
county, which A. B. on the
our reign, had demised to the said John Doe, to hold the
said John Doe and his assigns, from the
past, for and during and unto the full end and term of years
from thence next ensuing, and fully to be complete and ended; by
virtue of which said demise, the said John Doe entered into the said
tenements with the appurtenances, and was possessed thereof, until
the said C. D. afterwards, to wit, on the

day of

day of

same to the
then last

in the year aforesaid, with force and arms, &c. entered into the said tenements with the appurtenances, which the said A. B. had demised to the said John Doe, in manner and for the term aforesaid, which was not then nor is yet expired, and ejected the said John Doe from his said farm; whereof the said C. D. is convicted, as appears to us of record: Therefore we command you, that without delay you cause the said John Doe to have the possession of his said term yet to come of and in the tenements aforesaid with the appurtenances: And in what manner you shall have executed this our writ, make appear to us, on wheresoever we shall then be in England, and have there this writ. Witness Sir Charles Abbott, Knight, at Westminster, the year of our reign.

day of

in the


13 Edward I, St. 1, c. 18.2

WHEN Debt is recovered or knowledged in the King's Court, or Damages awarded, it shall be from henceforth in the Election of him that sueth for such Debt or Damages, to have a Writ of Fieri facias unto the Sheriff for to levy the Debt of the Lands and Goods; (2) or that the Sheriff shall deliver to him all the Chattels of the Debtor (saving only his Oxen and Beasts of his Plough) and the one half of his Land, until the Debt be levied upon a reasonable Price or Extent. (3) And if he be put out of that Tenement, he shall recover by a Writ of Novel disseisin, and after by a Writ of Redisseisin, if need be.3

1 If the judgment was by default, the execution is against "Richard Roe," the casual ejector. — NOTE BY TIDD.

2 The translation from the Latin is that of 1 Stat. at L. 194 (Eng. 1762). 3 Under the early common law, real estate was not subject to execution on private judgments and ordinarily could not be reached on execution at all. See 2 Freeman, Executions (3d ed. 1900) 881-882.

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29 Charles II, c. 3.

"XIII. And whereas it hath been found mischievous, that Judgments in the King's Courts at Westminster do many Times relate to the First Day of the Term whereof they are entred, or to the Day of the Return of the Original, or Filing the Bail, and bind the Defendants Lands from that Time, although in truth they were acknowledged, or suffered and signed in the Vacation Time after the said Term, whereby many Times Purchasers find themselves agrieved:"

XIV. Be it enacted by the Authority aforesaid, That from and after the said four and twentieth Day of June.[1677] any Judge or Officer of any of his Majesty's Courts at Westminster, that shall sign any Judgments, shall at the signing of the same, without Fee. for doing the same, set down the Day of the Month and Year of his so doing, upon the Paper Book, Docket or Record which he shall sign; which Day of the Month and Year shall be also entred upon the Margent of the Roll of the Record where the said Judgment shall be entered.

XV. And be it enacted, That such Judgments as against Purchasers bona fide for valuable Consideration of Lands, Tenements or Hereditaments to be charged thereby, shall in Consideration of Law be Judgments only from such Time as they shall be so signed, and shall not relate to the First Day of the Term, whereof they are entred, or the Day of the Return of the Original, or filing the Bail; any Law, Usage or Course of any Court to the contrary notwithstanding.

XVI. And be it further enacted by the Authority aforesaid, That from and after the said four and twentieth Day of June no writ of Fieri facias, or other Writ of Execution, shall bind the Property of the Goods against whom such Writ of Execution is sued forth, but from the Time that such Writ shall 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 or [and] Year whereon he or they received the



5 George II, C. 7 (1732).

WHEREAS his Majesty's Subjects trading to the British Plantations in America lie under great Difficulties, for want of more easy

Methods of proving, recovering and levying of Debts due to them, than are now used in some of the said Plantations: And whereas it will tend very much to the retrieving of the Credit formerly given by the trading Subjects of Great Britain to the Natives and Inhabitants of the said Plantations, and to the advancing of the Trade of this Kingdom thither, if such Inconveniences were remedied

IV. And be it further enacted by the Authority aforesaid, That from and after the said twenty ninth day of September, one thousand seven hundred and thirty two, the Houses, Lands, Negroes, and other Hereditaments and real Estates, situate or being within any of the said Plantations belonging to any Person indebted, shall be liable to and chargeable with all just Debts, Duties and Demands of what Nature or Kind soever, owing by any such Person to his Majesty, or any of his Subjects, and shall and may be Assets for the Satisfaction thereof, in like manner as real Estates are by the law of England liable to the satisfaction of debts due by Bond or other Specialty,1 and shall be subject to the like Remedies, Proceedings and Process in any Court of Law or Equity, in any of the said Plantations respectively, for seizing, extending, selling or disposing of any such Houses, Lands, Negroes, and other Hereditaments and real Estates, towards the Satisfaction of such Debts, Duties and Demands, and in like Manner as Personal Estates in any of the said Plantations respectively are seized, extended, sold or disposed of, for the satisfaction of debts.2



3 Murphey 43.

SAMUEL NICHOLSON and Hulon Grizzard recovered judgments in Northampton County Court, against Charles Edmonds; and he being indebted to E. B. Freeman, conveyed to him in trust, a tract of land, to secure the debt; this conveyance was made after the recovery of the judgments aforesaid. He was then sued by other creditors, and judgments were recovered in Northampton County Court at December Term, 1817: And from that term executions issued, as well upon these latter judgments as upon the judgments of Nicholson and Grizzard. All these executions were delivered to the Sheriff on the same day, and he made the following return thereon: to wit,

1 See 3 Blackstone, Commentaries, *430.

2 In the United States today legal interests in land may ordinarily be levied upon and sold on execution. See 2 Freeman, Executions (3d ed. 1900) 882-887. In some states, however, land may be levied upon only where no personal estate can be found. See Eaves v. Garner, 111 Ga. 273 (1900).

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