英文法律词典 F-19

FIDUCIARY¹. This term is borrowed from the civil law. The Roman laws called a fiduciary heir, the person who was instituted heir, and who was charged to deliver the succession to a person designated by the testament². Merl. Repert. h. t. But Pothier, Pand. vol. 22, h. t., says that fiduciarius heres properly signifies the person to whom a testator has sold his inheritance, under the condition that he should sell it to another. Fiduciary may be defined to be, in trust, in confidence.

2. A fiduciary contract is defined to be, an agreement by which a person delivers a thing to another, on the condition that he will restore it to him. The following formula was employed:' Ut inter³ bonos agere opportet, ne propter te fidemque tuam frauder. Cicer. de Offc. lib. 3, cap. 13; Lec. du Dr. Civ. Rom. §237, 238. See 2 How. S. C. Rep. 202, 208; 6 Watts⁴ & Serg. 18; 7 Watts, 415.

FIEF, or FEUD⁵. In its origin, a fief was a district of country allotted⁶ to one of the chiefs who invaded the Roman empire, as a stipend⁷ or reward; with a condition annexed⁸ that the possessor should do service faithfully both at home and in the wars, to him by whom it was given. The law of fiefs supposed that originally all lands belonged to lords, who had had the generosity⁹ to abandon them to others, from whom the actual possessors derive¹⁰ their rights upon the sole reservation of certain services more or less onerous¹¹ as a sign of superiority. To this superiority was added that which gives the right of dispensing¹² justice, a right which was originally attached to all fiefs, and conferred upon those who possessed¹³ it, the most eminent¹⁴ part of public power. Henrion de Pansey, Pouvoir, Municipal; 2 Bl. Com. 45 Encyclop6die, h. t.; Merl. Rep. h. t.

FIELD. A part of a farra separately enclosed; a close. 1 Chit. Pr. 160. The Digest defines a field to be a piece of land without a house; ager est locus¹⁵, que sine villa¹⁶ est. Dig. 50, 16, 27.

FIERI FACIAS, practice. The name of a writ¹⁷ of execution. It is so called because, when writs¹⁸ 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 chattels¹⁹, &c. Co. Litt. 290 b.

2. The foundation of this writ is a judgment²⁰ 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 proceedings²¹ 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 commonwealth²² 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 tenements²³ of the defendant²⁴, therein named, in his bailiwick, he cause to be levied²⁵ 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 daimages, which he had by the detention²⁶ 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 prothonotory, or clerk of the court, and sealed with its seal. The signature of the prothonotary, it has been decided²⁷, in Pennsylvania, is not indispensable. The amount of the debt, interest, and costs, must also be endorsed²⁸ 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 defendants³⁰. 6 T. R. 525. It is either for the plaintiff or the defendant. When it is against an executor or administrator³¹, for a liability of the testator or intestate, it is conformable to the judgment, and must be˜20only 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 assingment 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 injustice³², the statute³³ 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 enacts³⁴ "that no writ of fieri facias, or other writ of execution, shall bind³⁵ the property of the goods of the party, against whom such writ of execution is sued forth³⁶, but from the time that such writ shall be delivered to the sheriff, under-sheriff, or coroners, to be executed; and for the better manifestation³⁷ 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,) endorse²⁹ 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 levying³⁸ 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 premises³⁹, is a good seizure⁴⁰ 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 lawfully⁴¹ 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 Taunt⁴². 619; 3 B. & P. 223; Cowp. 1. Although the sheriff is authorized⁴³ 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 trespass⁴⁴, unless the defendant's goods are actually in the house. Com. Dig. Execution, C 5: 1 Marsh⁴⁵. 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.