FIERI FACIAS (Lat. that you cause to be made). In Practice. A writ directing the sheriff to cause to be made of the goods and chattels of the judgment-debtor the sum or debt recovered.
It receives its name from the Latin words in the writ (used when legal proceedings were conducted in Latin (quod fieri facies de bona et eatallie, that you cause to be made of the goods and chattels). It is the form of execution in common use where the judgment-debtor has personal property.
2. The foundation of this writ is It judg ment 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. The writ is issued in the name of the commonwealth or of the government, as re quired 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) of the lands and tene ments of the defendant, therein named, in his bailiwick, he cause to be levied as well a certain debt of — dollars, which the plain tiff (naming him), in the court of — (nam ing it), recovered against him, as —dollars, like money, which to the said plaintiff were 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 afore said, whereof the said defendant is convict. It must be tested in the name of the officer, as directed by the constitution or laws, as of some day during the term, 2 Caines, N. Y. 81: 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 amount of the debt, interest, and costs must also be indorsed on the writ. This form varies as it is issued on a judgment in debt, or on one obtained for damages merely.
4. The execution, being founded on the judgment, must, of course, follow and be warranted by it. 2 h, k ; Bingham, Ex. 186 ; 2 Cow. N. Y. 454. Hence, where there is more than one plaintiff or defendant, it must be in the name of all the plaintiffs against all the defendants. 6 Term, 525. It is either for the plaintiff or the defendant. When it is against an executor or adminis trator for a liability of the testator or intes tate, it is conformable to the judgment, and must be only against the goods of the de ceased, unless the defendant has made him self personally liable by his false pleading, in which case the judgment is de bonis testa toris si, et si non, de bonis propriis. 1 Serg. & R. Penn. 453 ; 4 id. 394; 18 Johns. N.Y. 502 ; 1 Hayw. No. C. 598 ; 2 id. 112.
5. At common law, the writ bound the goods of the defendant or party against whom it was issued, from the testa day ; by which is to be understood that the writ bound the property against the party himself, and all claiming by assignment from or by repre sentation under him, 4 East, 538': so that a sale by the defendant of his goods to a bona fide purchaser did not protect them from a ,fieri facias tested before, although not issued or delivered to the sheriff till after, the sale, Croke Eliz, 174; Croke Ja.c. 451 ; 1 Sid. 271; but by the statute of frauds, 29 Car. II. c. 3, 16, it was enacted "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 coro ners, to be executed; and for the better mani festation of the said time, the sheriffs, etc., their deputies or agents, shall, upon the re ceipt of any such writ (without fee for doin4 the same), indorse upon the back thereof the day of the month and year whereon he or they received the same ;" and the same or similar provisions have been enacted in most of the states of the United States. 2 Serg. & R. Penn. 157 ; 1 Whart. P.2nn. 377 ; 8 Johns. N. Y. 443; 12 id. 320; 3 Harr. Del. 512.