| slovo | definícia |
fieri facias
(encz) | fieri facias, n: |
Fieri facias
(gcide) | Fieri facias \Fi"e*ri fa"ci*as\ [L., cause it to be done.] (Law)
A judicial writ that lies for one who has recovered in debt
or damages, commanding the sheriff that he cause to be made
of the goods, chattels, or real estate of the defendant, the
sum claimed. --Blackstone. Cowell.
[1913 Webster] |
fieri facias
(wn) | fieri facias
n 1: a writ ordering a levy on the belongings of a debtor to
satisfy the debt |
FIERI FACIAS
(bouvier) | FIERI FACIAS, practice. The name of a writ of execution. It is so called
because, when writs were in Latin, the words directed to the sheriff were,
quod fieri facias de bonis et catallis, &c., that you cause to be made of
the goods and chattels, &c. Co. Litt. 290 b.
2. The foundation of this writ is a judgment for debt or damages, and
the party who has recovered such a judgment is generally entitled to it,
unless he is delayed by the stay of execution which the law allows in
certain cases after the rendition of the judgment, or by proceedings in
error.
3. This subject will be considered with regard to, 1. The form of the
writ. 2. Its effects. 3. The manner of executing it.
4.-1. The writ is issued in the name of the commonwealth or of the
government, as required by the constitution, and directed to the sheriff,
commanding him that of the goods and chattels, and (where lands are liable
for the payment of debts, as in Pennsylvania,) of the lands and tenements of
the defendant, therein named, in his bailiwick, he cause to be levied as
well a certain debt of ___ dollars, which the plaintiff, ___(naming him), in
the court of ___(naming it), recovered against him, as ___ dollars like
money which to the said plaintiff was adjudged for his damages, which he had
by the detention of that debt, and that he, (the sheriff,) have that money
before the judges of the said court, on a day certain, (being the return day
therein mentioned,) to render to the said plaintiff his debt and damages
aforesaid, whereof the said defendant is convict. It must be tested in the
name of the officer, as directed by the constitution or laws; as, "Witness
the honorable John B. Gibson, our chief justice, at Philadelphia, the tenth
day of October, in the year of our Lord one thousand eight hundred and
forty-eight. It must be signed by the prothonotary, or clerk of the court,
and sealed with its seal. The signature of the prothonotary, it has been
decided, in Pennsylvania, is not indispensable. The amount of the debt,
interest, and costs, must also be endorsed on the writ. This form varies as
it is issued on a judgment in debt, and one obtained for damages merely. The
execution being founded on the judgment, must, of course, follow and be
warranted by it. 2 Saund. 72 h. k; Bing. on Ex. 186. Hence, where there is
more than one one plaintiff or defendant, it must be in the name of all the
plaintiffs, against all the defendants. 6 T. R. 525. It is either for the
plaintiff or the defendant. When it is against an executor or administrator,
for a liability of the testator or intestate, it is conformable to the
judgment, and must be20only against the goods of the deceased, unless the
defendant has made himself personally liable by his false pleading, in
which case the judgment is de bonis testatoris si, et si non, de bonis
propriis, and the fieri facias must conform to it.
5.-2. At common law, the writ bound the goods of the defendant or
party against whom it was issued, from the test day; by which must be
understood that the writ bound the property against the party himself, and
all claiming by assignment from, or by, representatives under him; 4 East,
B. 538; so that a sale by the defendant, of his goods to a bona fide
purchaser, did no protect them from a fieri facias tested before, although
not issued or delivered to the sheriff till after the sale. Cro. Eliz. 174;
Cro. Jac. 451; 1 Sid. 271. To remedy this manifest injustice, the statute of
frauds, 29 Car. II. c. 3, s. 16, was passed. The principles of this statute
have been adopted in most of the states. Griff. Law Reg. Answers to No. 38,
under No. III. The statue enacts "that no writ of fieri facias, or other
writ of execution, shall bind the property of the goods of the party,
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
sheriffs, &c., their deputies or agents, shall, upon the receipt of any such
writ, (without fee for doing the sam,) endorse upon the back thereof, the
day of the month and year whereon he or they received the same." Vide 2
Binn. R. 174; 2 Serg. & Rawle, 157; 2 Yeates, 177; 8 Johns. R. 446; 12
Johns. R. 320; 1 Hopk. R. 368; 3 Penna. R. 247; 3 Rawle, 401 1 Whart R. 377.
6.-3. The execution of the writ is made by levying upon the goods and
chattels of the defendant, or party against whom it is issued; and, in
general, seizing a part of the goods in the name of the whole on the
premises, is a good seizure of the whole. Ld. Raym. 725; 2 Serg. & Rawle,
142; 4 Wash. C. C. R. 29; but see 1 Whart. Rep. 377. The sheriff cannot
break the outer door of a house for the purpose of executing a fieri facias;
5 do. 92; nor can a window be broken for this purpose. W. Jones, 429. See
articles Door; House. He may, however, enter the house, if it be open, and,
being once lawfully entered, he may break open an inner door or chest to
seize the goods of the defendant, even without any request to open them. 4
Taunt. 619; 3 B. & P. 223; Cowp. 1. Although the sheriff is authorized to
enter the house of the party to search for goods, he cannot enter that of a
stranger, for that purpose, without being guilty of a trespass, unless the
defendant's goods are actually in the house. Com. Dig. Execution, C 5: 1
Marsh. R. 565. The sheriff may break the outer door of a barn 1 Sid. 186; S.
C. 1 Keb. 689; or of a store disconnected with the dwelling-house, and
forming no part of the curtilage. 16 Johns. R. 287. The fi. fa. may be
executed at any time before, and on the return day, but not on Sunday, where
it is forbidden by statute. Wats. on Sheriffs, 173 5 Co. 92; Com. Dig.
Execution, c. 5. Vide 3 Bouv. Inst. n. 3383, et. seq; Wats. on Sher. ch. 10;
Bing. Ex. c. 1, s. 4; Gilb. on Exec. Index, h.t.; Grab. Pr. 321: Troub. &
Hal. Pr. Index, h.t.; Com. Dig. Execution, C 4; Process, F 5, 7; Caines'
Pr. Index, h.t.; Tidd's Pr. Index, h.t.; Sell. Pr. Index, h.t.
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| | podobné slovo | definícia |
fieri facias
(encz) | fieri facias, n: |
Fieri facias
(gcide) | Fieri facias \Fi"e*ri fa"ci*as\ [L., cause it to be done.] (Law)
A judicial writ that lies for one who has recovered in debt
or damages, commanding the sheriff that he cause to be made
of the goods, chattels, or real estate of the defendant, the
sum claimed. --Blackstone. Cowell.
[1913 Webster] |
fieri facias
(wn) | fieri facias
n 1: a writ ordering a levy on the belongings of a debtor to
satisfy the debt |
|