Charles Viner.

A general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole (Volume 11) online

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Online LibraryCharles VinerA general abridgment of law and equity : alphabetically digested under proper titles, with notes and references to the whole (Volume 11) → online text (page 1 of 72)
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XTyTE allow of the Printing and Publifhing of the
^^ Book Intituled, ^ General Abridgment of Law
and Equity, Alphabetically digefted under proper
Titles, ^c. By Charles Finer, Efq;


W. Fortefcue.
J. Willes.
E. Probyn.
Law. Carter.
J. Fortefcue A.
W. Chappie.
T. Parker.
M. Wright.
Ja. Reynolds.
The. Abney.
T. Burnett.


General Abridgment



Alphabetically digefted under proper TITLES


to the WHOLE.


Favente Deo.

ALDERSHOT in Hampfliire nenr Farnham i?j Surry ;
PRINTED for the Author, by Agreement with the La^vn-Patefaees,




The feveral TITLES, with their Divifions and Subdivifions.


CCIRE Facias.

*-' In what Cafes there ought to be. . O. a

Need not be. P. a

Where a Scire Facias muft be, or a

new Adion. N. a

Lies. On what Judgment. N. a. 2

After a Scire Facias. O. a

How, and againfl; whom. R. a

By whom. E.a. 2

By Fieri Facias. Q_ a. 2

Levari Facias. O. a 5

Habere Facias Pcffeffionem. Q. a. 4

Habere Facias Seifinam or Pofleffionem

&c. How, and in what Cafes nc-

celTary. Q. a. 5

Goods of whom may be put in Execution. S. a

Difcharge out of Execution. What will. T. a

f .: £ tr .:

Execution after Execution.
After Efcape.

Delivery by Parliament.
Dying in Execution.
! Capias or Fieri Facias.


Habere Facias Pofleffionem.
Keflitution awarded. In what Cafes.
Made. In what Cafes by the Sherif} j And

in what by the Coroner, &c. A. b

Obftruftion of Execution. The Oflcnce there-
of, and how relieved. 3 b
Pleadings in Bar of Execution. C. b
Writ and Inquifition. Return thereof. D. b
Equity. E^ t>


Executor or Adminiftrator. How confidered. A. 2

His Power as to Adminiftrations. A

As to Teftaments and proving them. B

Probate By whom as Executor, and be-
fore whom, and how. B. 2
In wha: Court it may be. B. '


U. a. 2

U. a. 3

U.a. 4

U.a. 5



Z. a

X.a: 2

Of Wills of Land. B. 4

Stayed or compelled. In what Cafes. B. 5

The Force of Probate. B. 'i

BonaNotabilia. What; And where. H

Of v.'hat Value they ought to be. I

Pleadings. I. 2

Adminiftration. Granted. In what Cafes. C

Inteftate ; Who though he left a VVill. G ^

How. On the Statute 91 E. 5. cap. it. D

To feveral. Their Power and Pleadings. D. z

On the Death of whjt Perfon. F.

By whom granted, G

Metropolitan. F

At what Place. G. 2

To whom it ought to be granted. K

As next of Kin K. 5

Perfons interefted. K. 4

Where it is granted to Debtor or Debtee. K. j

Atts done by Adminiftrator where there is

an Executor. Good or not. K. 6

Durante Minore JEvdic. Aiftions and
Pleadings. L. M. 2

In what Cafes ; And to whom. L. t

Wlien fuch Power determines. L. 5

The Power of luch Adminiftrator. M

Where fuch Adminiftrator afier Judg-
ment, and before Execution, comes
to ifj, what is to be done. M. 5

Aftions by Executor at 17 againft fuch
Adminiftrator. Mi 4

De Bonis No.i. la what Cafes; And to
whom. , K. 2. M. 5

What fuch Adminiftrator fhall have. M. 6
Aftions by him ; And Pleadings. M. 7

In what Cafes he may proteed in Ac-
tions begun before. M S
Repealed. In what Cafes. M. 9
Where it voids all me^n Afts. M. 10
What Aftions fuch Adminiftrator is
liable to. ' M. IT
Second (or after) Adminiftrator. Hi.s

Power. Xvl. 12

Alade. By whom they may be. N

For a collateral Relpcdt. O

* How

A TABLE of the feveral TITLES,

Howthev mav be made. By what Will. R
In what Ma^nner. S

Aftions by them for Aft in Life of Tefta-

tor. P

What Aftion Executor or Adminiftrator
fliall have. Q.

Declarations. Q^ 2

"VN'hat Perlons may have or b: Executors or

Adminiftrators. T

"V\ hat Things Executor iliall have and not

the Heir. V

What he fliall have as AfTi^nee. X

What he or Adminilirator lliall have. In

refpeft of the Limitation. Y

\\ hat the Heir fiiall have, and what the

Executor. Chattels. Z. Z. 2

V* hat the Executor muft do in Favour of

the Heir. Z 5

What fhall go neither to the Executor or

the Heir, Donatio Caufa Mortis. Z 4

^^ bat the Wife fhall have Paraphernalia. Z. 5
Dillribution. In Cafe of Intcftacy. Before
the 22 & 25 Car. 2 Z. 6

In what Cafrs. Z. 7

Liow ; And by whom ; And to -whom Z 8
What an Advancement within the 22 Car.

2. to be brought into Hotchpot. Z. 9

Of what Thir.g's. Z 10

To whom. Z. II

When the Ri<;ht 111. 11 be faid to be

vefled. Z. 12

By the Court on a Devife. Z, 1 5

By the Cuftom of York and London, and

to whom. Z 14

Compelled. How ; And by what Court. Z. 15

power of Executors before Probate. A. a

Suits againfi them before Probate. A a. 2

W hat is an Adminiflration to m 'ke a Cotifent

to the Executorfhip. Act in Law. 6. a

De fon Tort. By what Aft. C. a

Of what he inay be. C.a. 2

His Power. D- a

Charged. How ; Where there is an Ad-

miniflrator or Executor. E. a

Where he takes fubfequent Adminiftration.

E. a. 2
Chargeable. How far. E. a. 3

Chargeable as Executor. Who. F. a

"VV'here he may retain, or Allowances be

made him. F a. 2

Aftions by or againft him. F. a j

Pleadings by or againft him. F. a. 4

Affets. Whatlhall be. G. a

At what Time. _ G a. 2

Thirgs which never were in Teftator

or Executors. G. a 5

Pleading Perfonal AfTets. G. a. 4

Equity. Suiisas to AfTets. G. a. 5

Charged. In what Adtions Executor may

be. H. a

In what Cafes though not named. H. a. 2

On Covenant of the Deceafed. H. a. 5

On Promiles by himfelf. H. a. 4

Favoured or not. In refpedl of the Fund

diminifhing in Value. H. a. 5

Demeanor of PlaintitF. How in Anions

againft Executors. I. a

Of Executors. How in Aftion againft

them. . K. a

Retainer. By Executor or Adminiftrator. L. a

In what Cafes. M. a

Pleadings in Retainer. M. a. 2

Powerof an Executor. N. a

To prefer one Creditor to another, or pay

his own Debv firlt. N. a. 2

Among themfelves. O. a

What particular Interefl he has in Tefla-
tor's Goods. O. a. 2

Charged. For what Debts of Teftator. P. a
Where he fliall pay Cofts. P. a. 2

What Debts ought to be firfl fati.-fied.

f^a. U. a

In refpeft of .^ftions commenced. CT^ a. 2

Judgments in Life of Teftator. R. a

without a Devaftavir. S. a

in their own Time. T. a

Before Legacies. X. a

Debts by Specialty. X.a z

Without Specialty. X. a. 5

By Ipecial Direction of Chancery. X. a. 4

Devaftavit. What is. X, a. y

Who fhall have the Action. X. a. ^,

Liable. Who, 1£ a. 7'

Proceedings and Pleadings. X. a. S

Judgment de Bonis Tellatoris fi &c. fi non

de Bonis propriis. Damages Y. a

Actions againft Executors tiy what Names Z. a
Pleadings. Traverle good and ncceflary,

Z. a. 2
By Executors and Pleadings. In the Ds>
bet and Dctinet. Z. a, 5

Where he muft name himfelf Execaior.

Z a. 4
Againft Adminiftrators alleging by whom

Adminillration was granted. Z. a. 5

Pleadings in Adtion.s by or aga'inft Execu-
tors or Adminiftrators. Z. a. 6
Replications to Pleas of Judgments &c.

good or not. Z. a. 7

Pleadings. Ne unques Executor. Ne

unques adminiftred as Executor. Z. a. S

Pleadings. Where there muft be Mon-
ftrans of the Teftament or Letters of
Adrainiltration. Z. a. 9.

What fliall be anAdmifTion of AfTets
What Plaintiff muft do on Plcne Admini-

ftravit pleaded.

Pleadings fraudulent by Executors or

Adminiftrators. Z. a, 12

In what Cafes he muft name himfelf

Executor or Adminiftrator. Z. a. ij

Bond to the Ordinary. In what Cafes Ex-
ecutor muft account in the Spiritual
Court. Z.a. 14

Joint- Executors. What Afts or Pleas of
one Ihall hind his Companion. A. b

Remedy for one againft the other, and

Pleadings. A. b. 2

What one may do without the other;

And where one is an Infant. A. b. }

Aftions againft them and Pleadings;

And Judgment. How. A. b,4

In what Cafes one fhall anfwer alone on

Default of the other. A. b. j

Aftions by them and Pleadings. A h. 6

Joinder in Adtion by and againft Executors.

And of Summons and Severance. A. b, 7
Where the Survivor fhall have theSur-
plus, and join or be joined in Adlions
wi[h Executor &c. of the deceafed Co-
Executor. A. b. S
Aftions againft them, and Pleadings by
Survivors &c. A. b. 9

With their Di villous and Subdiviiions.

Judcrment. In what Cafes againft Executor,
and how. 6 °

Of Affets quando acciderint. B. b. 2

General. On a falfe Plea. C. b

De Bonis Teflatoris only. D- °

Execution of it. E- "

De Bonis Teflatoris fi &c. fi non, de Bo-
nis propriis. 1* • b
Dc Bonis Propri is. In what Cafes. Gb
Executor or Adminiftraror. Debtor toTef-
taior or Iiiteftate. The ElTeft thereof H b
Debtee or Creditor. Ei\ct\ thereof. I. b
Legatee, Take. How as Executor or
Legatee. ■'^- °
Eleftion to take as Executor or Legatee.
What is. _L b
Where he fhall take as Executor or Devifee.


Where as Purcharor. N. b

Where he fliall have the Surplus. O. b

Truftee. His Power. P- b

Infant Executor; What he may do. And

And the


S. b
T b

bound in what Cafes,
Refufal. What is, and how,
Effeft thereof.

At what Time it may be.

By one. The Etfett thereof.
Aftions by or againft Executors of Execu

tors ; And Pleadings. X. b

What muft be firft applied to pay Debts or

Legacies. _Y. b

Equity. In what Cafes Executor or Admini-

ftrator muft be a Party. Z. b

Decrees on Executors. A. c

Favoured or charged. In what Cafes
more or lefs in Equity than elfewhere. B. c

Allowance to Executors. C. c

By Executors ; What ; And in what
Cafes. t). C

Where Executors or Adminiftrators are in-
cluded though not named. E. C
Where the Word Executors includes Admi-
niftrators. F- C

Alleged. In what Cafes cr Aftions they

mull be.

How. And in whom.


by Conjunttio:! of Eftates.
By Pnrchale of Part of the Land charged.
By Aft in Law. 1

By Unity of PofietTion by the Ad of th


By a Feoffment or other Aft of the Party.
Avoided or prevented. By whit Aft.
Sufpenfion. Of Rent or Common.
What Ail: will make aSufpenfion. Of Part

or of the whole.

Aft in Law.

Aft of God, Enemies Sec.

OtPei-fonal Things.
A Perfonal Thing once fufpended fliall be

Sufpenfion avoided.
Quoad one and not quoad another.
Ot Part where it Ihall be of the whole.


What is Extortion. And who may be guilty

of it.
Punifhable. How.



A. 2
. E




(N. a) Scire Facias.

In what Cafes there ought to be a Scire Facias.

^nd where Execution may be by Fieri Facias, Capias, of
Elegit, without Scire Facias.

^fter the Tear upon Error brought,
^. TJT a 03mt rcCGl)er0 2^ebt ot Daumtrcis, an^ tlje Judgment is Anireintiid

X affirmed in \. ru ot Lrror in anoth":i Court witliin the Year, County of
))£t lis fljaU mt DilUt nil (?teCUttOn tljCrC ttJitl)OUt a Scire Facias, t!e= f 'I'^P^'^

cciufet'jieoi;r.:!^rija..iitO» 20 (ic. 2. Cvecution 133- (Cluaere, found a oTf-
imjerljer tm Cintts^ ftoui tlje Crcljcquct Ct)ambti%) 1 j p, ?• 16. Ja, cdcor with

Force, and

■^•ithin tlie Year the Rcc rd was removed by Certiorari into the Chancery^ and from thence into
C B"by5VIi.rmii<;, *nd arte- tlie D;fc-nrijnt was taken by Capias [Jio Pine Regis within the Year,
and'Dc';; It off red Juierv pro Fine Regi'^, and prayed to go at large; and the Plaintift prayed
tlvSt he may ven..iin for lii> Execution, and bv the Opinon of the Court, he iTiall not remain for the
Executi6n of the Party, becaule now ihe Party ought firft to haveSci. Fa. thoiigh it be within the
Year, becacfe th«,- R-eco'<1 and Cj ia^swaided is in another Court than where the Plea is ; For per
Frowike, ■whfye Record is removed by Writ of Erro; in B. R. and affirmed within the Year, yet the
Plaintiff fr^ll have Sci. Fa. beicre Capias or B.legit ; For in alia Curia. Br. Execution, pi. ^9 cites
J4H. Y'lS^nd 15 H 7. 5 -i^ Sowherethc Teftacor recovers and dies within th-e Year, the Exe-
cutor fliallha'/e Sci. Fa. withto the Year; ^For Alia Perfona. Per Mordaunt Ibid But ot a

Record removed our ofthe County into Bank the Plea fhall be held 35 in the Coanry ; For there is

no conlingoutof a ("durt-ot Record Ibid.— '^ And it all the Juftices of C. B. die, and othere

are cliote, vet they ihali have fuc+i Execution as if tfie firft Judges were alive ; For this is in on*

and the fame Courr Ibid. And of Pleas in the County, if the Juftices in Eyi-ecome there they

ihall hold the Pleas, and dial 1 make (bch faxecution as the County fliall make, which the Juftices

agreed, and tie Cafe where the Jufticesdied alfo. Ibid. And per Vavifor, if a Fine executory

lie removed out of f<ankinto the Treafury-, andretwn'd by Certiorari and Mittimus within the Year,
yet the Party Jhall not have ExecutJion by Habere Facias Seiiinam, but Sci. Fa. though it be with-
it. the Year. Ibid Br Scite Facias, pi. 1 19. cites S. C.

>Jote, in the Refiduc cf this Cafe the heft Opinion was, that it appears by the Mittinius that the
Plaintiff had not Exe::ution in Pais before the Juftices of AfSfc by Elegit or Fi. Fa. and yet by Award
the De'enoant fi.ur.n Surety pro F"ii'e Regis, and went'quit; For it is in another Court now, and
therefore the Party .ftall iiave Sci. Fa. af. Well as after the Year ; For if inTrefpafs the Defendant is
convtted, and alter rhe Year the King fues Capias pro Fine, by which he k laken, he fhall not ftaf
in Extrution for the Party ; For the I'arty cannot have Execution by Capias after the Year, but
■within the A" ear ; ideo Nota. But otoerwifeot the King by his Prerogative. Br. Execution, pi. 61.
cites 14 H. "7. 1-9. 20.

If the Record is removed out of C B. into B. R. by Writ of Error, and the Judgment ilfirmed, the
PJa -i.iS fhali not have Execution there, though it be within the Year, without luing Scire Facias,
bee aufe the Record is now In another Court, and beiore other Judges. Br. Executions, pi. 119.
K.bii) cites 21 Aff. 14.

2. 3if a ^an recovers IDCtlt Ot Daniajjegi in B. R. and after with Lane 20.
in the Year tne Defendant brings VVric ol Error in the Exchequer P^'^''- 4. fac.
ChamDer, lUljC^^'t^ tljC ftrlt Judgment is affirmed after the Year expired, J],' ^^^i.''"

]pctt!)c EEConcroc map Ijabe (£]cccut(on bp Capias ot Jfien lacings, p and
mtlM tlje 2^cac aftet tlje affirmance uiittjout a <^are jfacias i ifou<"^cms tob«
tl)E atfumancc is a neto 3iutsmcnt» ^. s I:a» U\ tljc dcOcqucc, ^ c.
pec Cue*

B 3. S9


tanc lo. 3. So if after the Year aftet tljC ECCOUCt)? tljC DefenDatlt brings

Dennis V. ^'j-jt of Error, and the Judgmenc is attirmed, tljOllglj bZfOXZ tlJC

Drakes. P. n^fjf Qf (grcQc {jtcugijt tljE EccoUerot U)a0 put totjis^clre jFa*

to beTc ciasi, ytt tljt0 afficumnce 10 a neu) Jiuugmeiu-, auo tt)c Kccoueror

map l)a\3e uiitljm tljc i^cac aftec tljc ^itficmance, a jfieri jfacia^, oc

CEapiajs, Uiitljuut ^ciie ifaciasi. ^. s 3la» in tljc ^Sjccljequec, pec

cut. i^. 12 Ja* 05*ia»

So if after 4. So if IjC tt Nonruited in the Writ of Error, jfot t\)tlt t!)OU0;l)

'[''w"" f tljEte i^ notoiij? miflSioofmcnt giUen in amtmance oi tDe fiiit
Erro/in'thc liUOffment, pet tije S©rit ot Crcuc tcijiuegi it. ^. 12 3ja. 05. E.

Exchequer 5. So if tljC It the Writ ot Error be difcontinued, pCt t)C lUfjO tC"

Chamber couct'D 10 uot M to ijtj) ^citc if aclas, if oc tl)e brtngino; of tljc l©rit

abates by the (jf ^gfj^Q,; {ja^ revived the hrll Judgmenc. [email protected] 12 Jja* 15. l^l. ftDjUOlS^-
snTof the CO bCtlUeCll '^''»" ■ft^^»0' * Mhwes and Hanford.

PlaimitFs, _ :

Execution may be taken out within a Year after the Abatement without any S'ci. Fa to revive the
ludgment, but it is necefl'ary that a Remittitur be entred to warrant the Execution from B. R. For
till then the Record remjins in the Exchequer Chamber, and Unlefs a Remittitur be entred the Plain-
til? muft fue out a J.cire Facias. But if a Remittitur be entred, the Court will not examine into the

Time ot its Entry ; Per Cur. C:irth, 256. Howard v. Pitt. -That for want of cutijng a Kcmitti-s

tur tlie Execution will be erroneous, but not void, and denied 4 Le. 197. Ruffe I's Care, i Sjlk.

c6i. Howard v. Pitt Carth. 2:57. S. G. If the PlaintiSin Writ of Error be nonfuited af-

t'cr the Year, the Plaintitiin the firit Aftion fliall have Scire Facus, and oj^iit to have th; Party*
returned warned, or to have 2 Nihils returned before Execiltion be awarded. Br. Execution, pU-
07. cites 5 E. 4. 6.
* Roll Rep. 10:5.. pi. 45. S. C. 8c S. P. adttiitfed.

A Statute is 6. 3'f A. recovers againit B. in B. P-.. Damages and Cofts, aitU UpOU

the move j|.|j|(j |j^^0 judgment againft tne ifaii aftct <Btm ifacias fc. ano attcc

Remedv ^' ^"'^ ^^^ ^^'^ J"'" '" '^ ^^^"^ ^^ ^"^'^ ^'P''^'^ ^- '^tiittUT tU tlj? €K^

flnce there- CljCqUCK CliamfcCr, anU alter the Year and iii. Day palks, til tlJtjS

upon Exe- calc, ttjig i©rit of (Stcot, tlje QLoutt of 15. E*

cution may ^y^^. gj-^-^j^^- ^Xu'UUOa , JfOC It 13 H void Writ of Error, aUil 30 if

«ut wTthout no iS^i'it of €rriit ijaa i^fcn liiougJjt, anH tljcreforelt fljall not bcanp

, sci Fa. Contmuiiiice of tljc iica luDsiucnt i Xiit tlje 3^car ana tijc Dap

or other itctiig pait, tljc ipialnti;!:" tannot Ijane erccutioa tuitljutit a ^cice

Suit, which jfaciagj, tljot'ujlj tlje ^cat paflcu after tljc ttScit btotigtjt. Cr. 9

in*"theafe ^^C. 3. E. aDjUHSCH pCt tOt+ CUC* bCttnCCn Bames and Hill.
of a Recog-

riiance ; For there if a Year be pad after the Acknowledr>;ement no Execution can be fued againft
the Partv himfelf acknowleding it, without a Sci Fa. firft fued out againll him, and if he be dead,
then though the Year be not pall yet muft a Scire Facias be fued, and thereupon the Executor De-
fcndant may plead fomc Plea to hold off the Execution for a Time. Wentw. Off. Executor 139.
6ee tit. Error, CK)

7. 13. E. 1.45. After the Ye&t a Scire Facias pall iffue to prju Caitfe
vjhy Execatinn may not be done.

8. In Replevin^ if the Plaintiff" recovers Damages^ and Error is brought^
and the ^r/i Jttdgnient is affirmed inB. R. he who recovers the Damages
cannot have Fieri Facias or Elegit there at firlt, but Sci. Fac. tho' it
be within the Year, becaufe the Record is come into another Court thaa
•where the firlt Judgment was given, and it was faid there, that they
nay award Scire Facias before the Judgment affirmed, and when the Defen-
dant comes, the.n to affirm the firll Judgment and award Execution im-
mediately j quod nota. Br. Scire Facias, pi. 151. cites 21 Alf. 14.

9. Scire Facias upon a Recognizance ; the Defendant was returned
dead^ and thereupon Garnifhment ihall ilFue againji the Tertenants, which
was returned that they are warned, and they did not come^ by which
Elegit was awarded j And fo fee that in Scire Facias upou Recogni-
»ance a Man Ihall have Execution by Elegit. Br. Elegit, pi. 16. cite»
^8 £. |. IS.

to. Before

Execution. q

I o. BeJore the Statute whkh gave Scire Facias upon Recovery, //
the I'ear hadpa(Jed^ and no Execution made^ he Ihould not have Execu-
tion, but yet he might have had iitiw Original j Per tot. Cur j For Re-
covery without Execution is no Pica; quod nots. Per Thorp clear-
ly there. Br. Ex^cmioos, pi. 17. cites 43 E. 3. 2.
. II. Elegit lies upon a Recognizance. Br. Elegit, pi. 2. cites 44 E.
3. 10.

12. At Common Lano, if a Man had recovered in Debt and did not S. P. Br.
take Execution liiithin the Jear^ he was put to a new Original, but now txecmioii,
by the Statute of V\''efl;minlter 2. he ihall have Scire Facias, and vet beft'opniU*
he may have a new Original il he will &c. Arg. in Trefpafs. Br, Detce, on, cites S.C
pi. 10. cites 20 H. 6. II.

13. // the Plaintiff" in Writ of Error nonfuited after the Tear, the Plain-
tifFin the iirfl: Action /hall have Scire Facias for Execution. Br. Non-
iilit, pi. 30. cites E. 4. 6. and 22 H, 6. 7.

14. Where the Sheriff returns upon a F/ Fa. of 20 1, qnod Fieri Feci
to I. &c. and has not the Money tn Court at the Day.^ and another She-
riff is made, Set. Fa. Jhall ijjhe to the new Sheriff again ft the old Smriff\
and thereupon Fi. Fa. or Elegit, becaufe Diltringas Vicec.m' ad ha-
bend' Denat'&c. is too long Procefs &c. qaod noca. Br. Executions,

pi. 69. cites 9 E. 4 50. _ - -p .,

15. If the Court changes.^ As if the Record comes into B R. by Writ ^"- Scii-eFa-
of Error, and Judgment is affirmed, the Plaintiff himiclt who reco- ^^^^'^P j^^^'
ver'd Ihall not have Fi. Fa, againll ilie Detendant there, but firil Sci.,"
Fa. Qf*^ Nota. Br. Executiin, pi. 64. cites 15 H. 7. 14 15.

16. A Man con'dcmned and ;/; Execution for 100 /. pleaded Acquittance ^- .'-^"'^
ajter the' laff Continuance.^ and it is laid that he jhall h^vi Sci. Fa. the fame , ,^^''*cit(L'
icrm^ 'and A-idtta J^uercia m another Term &c. and alter he fhall find s. ci
Suretie.'i ard go ijt large. Br. Executic^ns, pi 73. cites 21 H. 7. 30.

17. Il a Man recover iin Writ of Annuity., he fhall ha've Ft. Fa. of the
Arrearages incurr'd within the Tear, and Scire Facias as foon as tbsAnniti^
ty is arrear-j and r.e'.e'r Writ c4" Annuity again ; For it is executory :, and
the fame Law of Account and ftidgmetit upon Compoption, which is execu-
tory from Ttrat to Time &c. And in every Scire Facias in which he recovers
(3jter the firji Judgment hifljnll have Execution thereof of the Arrearages
•within the Tear ty ft. Fa. For every one is founded upon the JudgmenB.
Br. Execuiioff, pi. 119. cites '23 H. 8. and 32 E. 3.

18. judgment was given ia the County-Court, and a Writ of Fal/e
Judgment was brought, only to delay the Execution, upon which thfe
Reccrd was removed, and the VV^rit ierved, and the Plaintiff was non-
i'uitedi and thereupon the Detendant pray'd a Scire Facias to have Exe-
cutiuiij and upon good Advifement the W^rit was granted, for other-
wife he could have no judicial Writ to have Execution, becaufe the
Record liiall not be lent back again in alio Comitatu, D. 329, a. b.
pi. 14, Mich, 15 & 16 Eliz. Anon.

19. At Common Law there was no Remedy for a Judgment-Creditor
for Debt or Damages either againll the Body or Lands of his Debtor,
unlefs in fpecial Cafe, but only as to his Goods and Chattek, and
Corn, and other prefent Profit growing upon his Land, to which Pur-
pofe the Common Law gave hun two ieveral Writs to be fued within
the Year, viz. a Levari Facias., whereby the Sheriff was commanded
Quod de Tefris& Catallis iplius A. &c. Levari Faciat, and the other
called a Fien Facias^ which was only de Bonis & Catallis, both which
Writs were to be brought within the Year, but atterwards_ he might
tring Debt. 3 Rep. n. Mich. 26 & 27 Eliz.. in Scacc. in Sir Wii^
Jiain Herbert's Cale.

BO. li

4 Execution.

Mo. 566. 20. li Judgment in C. B. be affirmed in a Writ of Error the Plaintiff

E'-77*- may have Ca, Sa. or Fi. Fa. within the Year, and fhall not be put to

Garnoncc. ^rhig a Sci. Fa. s Rep. 88. Hill. 40 Eliz. the fecond Refolution

S. C. ad in Garnon's Cafe.

(udg'it, and

refolv'd that after the Year he fliall have iScire Facias. Cro. E. 70(J. pi. 28. Leighton v. Gar-

non. S. C. faid to be the Cburfe ot ths Coiaft. S. C. cited by Jones J. Gcdb 572. that the

Writ of Error was brought within a Year of the Judgment in C B. but it was not affirm'd in two
Years after, and yet theVe he had the fame Procefs in B. R. as he was to have had in C. B. and that
in dgarnon'jB Cafe thi Jlidges delivered their Opinions that if after the Year and Day he brings
Error and the Judgment is affirmed, he oui^ht to have the like Procefs here as in C B. and that was
a Scire Facias, becaufe the Year was p4ft irt G. B. although it were within the Year of the Judg-
ment affirm'd here.

21. Scire Faelas yvisgivefi in Execiititifti t)y the Statute of Weftminjier 2.
For at Common Law it the Plaintiff had fucceeded [furceafed] to fue
Execution by Fieri Facias or Levari Facias a Year and a Day, he had
been driven to his new Original. Co. Litt. 290. b. 291. a.

22. A Judgment being of eight Tears Jtanding^ the Defendant being
taken in Execution without Notice or fuing a Scire Facias in the pro-
per County J and therelore it was prayed that he might be difcharged j
but the Court would not j and thereupon he brought an Audita ^tierela^
ana was bailed by lour Mainpernors. 2 Roll Rep. 42.Trin. i6jat;. B.R.
JMumperfon v. Gates.

23. \i J. recovers a Debt as Executor of J. S. and makes S. his Exscti'-

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