The clerks guide leading into three parts, viz. I. Of indentures, leases, &c., II. Letters of attorney, warrants of attorney, mortgages, licences, charter-parties, &c., III. Bills, answers, replications, rejoynders in chancery, &c., under which are comprehended the most unusual forms of clerkship : to which is added, a fourth part of fines, recoveries, statutes, recognisances, judgements, &c. distresses and replevins : illustrated with cases, and the statutes relating to the same / by Tho. Manley of the Middle Temple, London, Esq.

PART IV. (Book 4)

Of a Fine.

A Fine being of all kinds of Settlements of the greatest Force and Antiquity, is sometimes called Compositio ami∣cabilis, but more usually finalis Concordia, and is so termed as the Lord Coke holds, Quia finem litibus imponit: And so indeed it did antiently; for after some contention had been about a thing by Suit, the Parties agreeing who should have it, a Fine was levied, and so there was an end of the matter: but is now of more common use; because a man thereby may convey his Lands to another in Fee-simple, Fee-tail, for life or years, and that with a Reservation of Rent also, Co. Inst. 2. Part, 511, 514. And any person that hath a Capacity to take by the Grant of a Deed, and may be a good Grantee in a Deed, such person may be a good Conusee in a Fine, and may thereby have and take the thing gran∣ted: And may be levied of all things whereof either a Praecipe quod Reddat; a Praecipe quod faciat; a Praecipe quod Permittat; or a Prae∣cipe quod Teneat lyeth. And the order of proceeding in suing it out, is thus:

First an Original is sued forth, which may be either a Quid juris clamat; Per quae Servitia; De Rationabilibus divisis; Writ of Right Patent or Close; Warrantia Chartae, De Consuetudinibus, or any Writ of Right: But the usual Writ at this day is a Writ of Covenant. And although by the common course they use to take out a Dedi∣mus Potestatem, and to have the Conusance of a Fine before any Original sued forth, yet the Original is alwayes supposed i•• Law to precede the Dedimus; and therefore doth and must bear Teste before it, or it will be erronious. Then there is a Praecipe drawn, and the Concord and Agreement of the Parties, both which are to be fairly written in Parchment. After this, the Conusor or Conu∣sors of the Fine are to come in person before the Judge or Judges authorized to take the Conusance of Fines, who are to take notice of the persons, that there be no Infants, Ideots or Madmen among

them; nor any Feme Covert, for if there be such a Woman, the Judges or Commissioners are to examine her privately and apart, Whether she be free and willing to do it without any constraint of her Husband? Then she with the rest of the Conusors declare publikely their consent, and to subscribe their Names or Marks to the Concord: And if it be by Dedimus Potestatem, it must be re∣turned and certified under the hands and seals of the Commissio∣ners into the Common Pleas, that it may there be recorded and fi∣nished. Which done, the Conusee must compound with the King for his License, and the money paid thereupon is called the Kings Silver; and of this an Entry must be made on the back of the Writ of Covenant. Then it must be enrolled by the Custos Brevium, and upon that Roll the Proclamations are to be indorsed; And thence carried to the Chirographers who make a Note thereof commonly called, The Note of the Fine: And then enter it upon Record, ingross it, and make and deliver the Indentures thereof to the Conusee: And if it be a Fine with Proclamations, it must be proclaimed openly in the Common-Pleas, once every fourth Term then next following. And the next Term after the engrossing, the contents thereof are to be recorded in a Table made for that purpose to be set up in the Court of Common-Pleas at Westminster in an open place all the Term time; and so at every Assises.

The Fine also (if the Parties please) may be enrolled and exem∣plified.

Presidents of Concords; And first of the Praecipe.

Surr. ss. Praec. A. B. Mil. Quod juste, &c. ten. C. D. Conven. &c. de Manerio de S. cum pertin. in H. J. K. et nisi &c. ac de vi∣ginti Messitagits; duabus Salinis, sex cottagiis (here mention the true particular of the Parcells, according to their severall Natures and Qualities, with the numbers of Acres, &c.) And thus you must vary them according to your best Judgments.

The Concords themselves are either Single or Double, some Presidents of single Concords follow.

ET••est Concordia talis, sc. quod praedict. A. recognovit tenementa prae∣dicta cum pertin esse jus ipsius B. ut illa quae idem B. habet de dono praedict. A. et illa remisit et quiet. clam. de se et haeredibus suis praedic••. B. et haeredibus suis in perpetuum. Et praeterea idem A. concessit pro se et haeredibus suis, quod ipse warrant. praedict. B. et haeredibus suis praedicta tenementa cum pertin, contra praedict. A. et haeredes suos in perpetuum. Et pro hac, &c.

Of a Reversion after the death of Tenant for life.

ET est Concordia talis, sc. quod praed. R. recognovit tenementa prae∣dict. cum pertin. esse jus ipsius F. et concessit pro se et haeredibus suis, quod praedicta tenementa quae F. M. et A. uxor ejus tenent ad ter∣minum vitae ipsius A. de haereditate ipsius R, die quo haec Concordia facta fuit et quae post decess, ipsius R. ad praed. R. et haeredes suos debuer' re∣vertere; post decess. ipsius A. remanebunt praed. E. et haered. suis in per∣petuum. Tenend. &c. Et praed. R. concessit pro se et haered. suis, quod ipsi warrant. praed. ten. cum pertin. (sicut dictum est) contra omnes ho∣mines in perpetuum. Et pro hac, &c.

To the Heirs of the Body of the Conusor by J.C. her Husband deceased, the Remainder to the right Heirs of J. C.

ET est concordia talis, sc. Quod praed. J. concessit praed. M. tene∣menta praedict. cum pertinentiis et illa ei reddidit in eadem Curia: Habend. et tenend. eid. M. et haeredibus de corpore ipsius M. de corpore J. C. nuper viri sui defuncti legitime procreatis de capital. domin. &c. Et si contingat quod eadem M. obierit sine haeredibus de corpore suo de corpore ipsius J. C. legitime procreat. tunc post decess. ipsius M praedicta ten. cum pertin. integre remaneant rectis haered. ipsius J. C. defuncti Tenend. &c. Et praed. J. et haered. sui warrant. praedict. M. et haered. de corpore suo de de corpore praed. J. C. defuncti, ac etiam rectis haeredibus ipsius J. C. si eadem M. obierit sine haered. de corpore suo de corpore ipsius J. C. defuncti legitime procreat. praed. tenementa cum pertin. (sicut dictum est) contra praed. J. et haered. suos in perpetuum. Et pro hac, &c.

A Concord with a Render for life, and after Entail.

ET est Concordia talis, sc. Quod praed. T. et F. recogn. maner. tene∣menta et reddit. praed. cum pertin. esse jus ipsius E. ut illa qu••aidem E. et R. habent de dono praedict. T. et F. et illa remiser. et quiet. clam. de ipsis T. et F. et haered. ipsius F. praefat. E. et R. et haered. ipsius E. in perpetuum. Et praeterea iidem T. et F. concesser. pro se & haered apsius F. quod ipsi warrant. Maner', tenementa et redd. cum pertin. praefat. E. et R. e•• haered. ipsius E. contra ipsos T et F. et hered. ipsius F. in per∣petuum. Et pro hac Recogn. &c. iidem et R. concesser. praed. T et F.

Maner. de S. praed. cumpert. ac 10 Messuag. 8 Cottag. 20 Acr. terr', 20 acr. Prati, 160 acr. Pastur. 300 acr. Morae, et 6 solid. redd. cum pertin. &c. Habend. & Tenend. praefat. T. et F. pro termino vitae ip∣sorum T. et F. et alterius eorum diutius vivent. absque. impetitione ali∣cujus vasti, Et quod post decessum praedict. E. et F. et eorum altorius diutius vivent. praedict. parcel. Maner. Tenementor. et redd. praed. cum pertin. reman. Primogenito filio de corporibus praed T. et F. inter eos legitime procreat. & haered. mascul. de corpore praed. primogeniti filii le∣gitime procreat. Tenend. &c, Et si nullus haeres de corpore ipsius primoge∣niti filis fuer. legitime procreat', praed. parcell. maner. tenementor. et redd. praed. cum pertin. reman. secundo genito filio de corpore praed. T. et F. inter eos legitime procreat. Et haered. mascul. de corpore dicti secundi geniti filii legitime procreat. Tenend. &c. Et si nullus hares de cor∣pore ipsius fecundi geniti filii fuer. legitime procreat. ••unc praedict. parcell. maner. tenementor. et redd. praed. cum pertin. reman. haered. de corporibus praed. T. et F. inter eos legitime procreat. Tenend. &c. Et si nullus haeres de corporibus eorum T. et F. inter eos fuer. legi∣time procreat', tunc praedict. parcell. maner. tenementorum et redd. praed' cum pertin. reman. inde rectis haeredibus ipsorum T. et F. in perpetuum. Tenend. &c. Et ulterius iidem E. et R. concess. praef. T. et F. decem Mess &c. cum pertin. B. et C. praed. residuum prae∣dict. maner. tenementorum et redd. praedict. et illa eis redd. in eadem Curia.

An Exemplification of a Fine.

CArolus Secundus Dei gratia, &c. Omnibus ad quos praesentes li∣terae pervener' Salutem; Sciatis quod inter irrotulamenta Bre∣vium et aliorum depend. pro finibus secundum formam statuti de Ter∣mino Paschae apud W. anno Regnt. quondam praecharissime sororis nostrae Eliz. Reginae &c. Rot. 7. continetur sic. ss. Essex ss. Eliza∣beth dei gratia Angl', Franciae et Hiberniae Regina, Fidei Defensor. &c. Vic' Essexiae Salutem, Praecipe E. W. Arm. et J. uxor ejus quod juste et sine dilatione teneant J. W. et J. S. conventionem inter eos factam de duobus Mess', duobus Gardin', duobus Pomariis, viginti acris terrae, viginti acris prati, quadraginta acris Pasture et centum acris ••amtnorum et bruerae cum pertin' in B. et W. et nisi fecerint et praedict' E. & I. fecerint te securum de clamore suo pros. tunc sum. per honos summ. predict' E. et I. quod sint coram Just. nostris apud Westm. in Octab. Sancti Michaelis ostensuri quam non fecerint et habeas

ibi sum. et hoc Breve. T. Meipsa apud Westm. 17. die Septembr. anno Regni Reginae nunc. quadragesimo.

Pleg. de Pros. Johann. Doo, Richard. Roo, Summon. Johannes Den, Richardus Feg. Georgius T. Arm' Vic. ss. J. W. dat. domino Regi sex solidos et octo denarios pro licenc' concord. cum E. W. Armig. et I. uxore ejus de placito conventionis de duobus mess', duobus Gardinis, duobus Pomariis, viginti acris terrae, viginti acris prati, qua∣draginta acr' Pasturae, et centum acr. Jampnorum et Bruerae cum pertin. in B. et W. Et habet Cir: per pacem admiss. coram R. H. uno Just. Dom. Regin. de Banco Justic. in Patria.

ss. Elizabeth. Dei gratia Angliae, Franciae et Hiberniae Regina, Fi∣dei Defensor. &c. Dilecto et fideli suo R. H. uni Justic' suor. de Ban∣co, salutem. Cum Breve nostrum de Convent. pendeat coram vobis et sociis vestris Justic' nostris de Banco. Inter I. W. & I. S. E. W. Arm' et I. uxori ejus de duobus Mess. duobus Gardinis, duobus Pomariis, vi∣ginti acris terrae, viginti acris prati, in B. et W. in Com. Essex ad finem inde inter eos coram vobis et sociis vestris praed' in Banco praed' secundum Legem & consuetudinem Regni nostri Angl' levand', ac iidem E. & I. udeo impotentes existunt quod absque maximo corporum suorum periculo usque Westm. ad diem in brevi praed' content ad Cognitiones quae in hac parte requirunt. faciend', laborare non sufficiunt, ut accepimus: Nos statui eorundem, E. & I. compatientes in hac parte, Dedimus vobis Po∣testatem recipiendi cognitiones quas praed' E. & I. coram vobis facere vo∣luerint de praemissis, et ideo vobis mandamus quod ad praef. E. et I. per∣sonaliter accedentes cognitiones suas praed. recipiatis. Et cum eas recepe∣ritis, praefatos socios vestros inde sub sigillis vestris distincte & aperte red∣datis Certiores, et tunc finis alle inter partes pr d' de premiss. coram vobis et sociis vestris praedict' in Banco praed' levari possit secundum Legem & consuetud' praedict'. Et habeatis ibi tunc hoc Breve. T. Meipsa apud West. 18. die Sept. anno Regni nostri 4^o.

Respons. infranominat. R. H. ad hoc breve. Executio istius brevis patet in quadam schedula huic brevi annex.

Et est Concordia talis, sc. Quod E. et J. in brevi nominat', huic sche∣dulae annex. recogn. ten. in dict' brevi specificat' cum pertinent' esse jus' J. W. in eodem brevi nominat', ut illa quae iidem J. W. et J. S. in dict. brevi nominat' habeant de dono praedict' E. W. et J. et illa remiser. et quiet' clam' de se et haeredibus suis praed. E. et J. et haeredibus ipsius J. W. in perpetuum. Et praeterea iidem E. et J. concess. pro se et haeredibus ipsius J. quod ipsi warrant' tenementa praed' cum pertinentiis praefat. J. et J. et

haered' ipsius J. W. in perpetuum. Et pro hac &c. iidem J.W. et J. S. concess. tenementa praed' cum pertin' praef. E. &c. J. et ill. eis reddider' in eadem Cur. Habend' et tenend' eisd' E. et J. et baered. de corpore ipsius E. per praed. J. legitime procreat' et pro defectu talis exitus, tenementa praed. cum pertin' integre reman' praef. J. et haeredibus de corpore ipsius J. legitime procreatis et pro defectu talis exitus, tenementa praed' cum pertin' integre reman' rectis haeredibus ipsius E. in perpetuum, Tenend' &c.

R. H. ss. H••c est finalis concordia facta in Curia Dominae Regine apud Westm in Octab. Sancti Michaelis anno Regni Eliz. Dei gratia Angl', Franciae et Hibern' Regine fidei Defensor. &c. a Conquestu deci∣mo coram I.D. R.W. I.W. et R.H. Justic' et al' Dom. Regin. fideli∣bus tunc ibi praesentibus inter I.W. et I.S. Quer et E.W. Arm et J. uxor' ejus deforc', de 2. Mess. 2 Gardin. 2 Pomar', 20 acr' Prati, 40 acr' Pasturae et 100 acr' jampnorum et bruerae cum partin' in B. et W. unde placitum conven' summon' fuit inter eos in ead Curia. scil. Praed' E. et I. recogn. praed' ten' cum pertin' osse jus ipstus I.W. ut illa quae iidem I. et I. S. habent de dono praed' E. et I. et illa remis. et quiet' clam. de ipsis E. et I. et haeredibus suis praed' I. et I. et haeredibus ipsius I.W. in perpetuum. Et praeterea iidem E. et I. concesser' pro se et haeredibus ipsius I. quod ipsi warr' praed' I. et I. haeredibus ipsius I. W. praed. tenementa cum pertin' contra omnes homines in perpetuum. Et pro hac recognitione remissione, quiet' clam', warrant', fine et Concordia iidem I. et I. con∣cesser' praed' E. et I. praedicta tenementa cum pertin' et illa eis reddider in eadem Curia. Habend' & tenend' eisdem E. et I. et haeredibus de cor∣pore ipsius E. per praed' I. legitime procreat' de Capitalibus dominis feodi illa per servitia quae ad praed' tenement' pertinent' in perpetuum. Et si contingat quod iidem E. et I. obier' sine haered' de corpore ipsius E. per praed' I. legitime procreat', tunc post decessum ipsorum E. & I. praedicta tenementa cum pertinentiis integre remanebunt haeredibus de corpore ipsius E. Tenend' de capitalibus dominis feodi illius per servitia quae ad praed. tenement' pertinent' in perpetuum secundum formam statuti.

Prima Proclamatio facta fuit 22 die Novemb. term. sancti Michaelis anno undecimo Reg. infr s••r. Secunda Proclamatio facta fuit 24 die Novemb. eod. termino. Tertia Proclamatio 26 die Novemb. eodem Ter∣mino. Quarta Proclam' 29 die Novemb. eod. Termino. Quinta Pro∣clamatio facta fuit septimo die Feb. termino sancti Hillarii Anno 11 dict Reg. infr. scr. Sexta Proclamatio 9 die Feb eodem Termino. Septima Proclamatio die Feb. eod. Termino. Octavo Proclamatio 12 die Feb e••d. Termino. Nona Proclamatio facta fuit 14 die Maii Termino Paschae

anno 12 Reg. infr. scr. Decima Proclamatio 17 die Maii eodem Ter∣mino. undecima Proclamatio 23 die Maii eodem Termino. Duodeci∣ma Proclamatio 28 die Maii eodem Termino. Tertia Decima Procla∣matio facta fuit 22 die Junii Termino Sanctae Trinitatis anno undecimo Reg. infr. Scr. Quartadecima Proclamatio 25 die Junii eodem Ter∣mino. Quintadecima Proclamatio 27 die Junii eodem Termino. Quae omnia & singula ad requisitionem W. W. gen' tenore praesentium duxi∣mus exemplificand. In cujus rei Testimonium Sigillum nostrum ad bre∣via in Banco Sigilland' deputat' praesentibus apponi fecimus T.F.W.W. et F. R. Just. de Banco praed' apud Westm. die &c. Anno Reg. nunc 20. &c.

The Foot of a Fine.

HAEc est finalis Concordia facta in Curia Domini Regis apud Westm. a die Sancti Michaelis in 15 dies Anno Regni Regis Edwardi filii Regis Henrici Tricessimo tertio coram Radulpho de Hengham, Wil∣lielmo de Bereford, Elia de Beckingham, Petro Malore, Williel∣mo Howard, et Lamberto de Trykingham, Justic' et al' domini Regis fidelibus tunc ibi praesentibus, Inter Rogerum de Gamages et Ciciliam uxor' ejus Queren. et Johannem filium Johannis de Bal∣lingham deforc', de Duabus mess. 52 acris terr' et una acra bosci et di∣mid' unius acrae Pasturae et medietate unius acrae Prati cum pertin' in B••llingham unde Placitum conventionis summonitum fuit inter eos in ead' Cur. sc. Quod praedict' R. recogn' praed' tenementa cum pertinen∣tiis esse jus ipsius Johannis. Et pro hac recognitione, fine et Concordia idem Johannes concessit praedict' Rogero et Ceciliae praedict' tenementa cum per∣tin. et illa eis reddid' in ead' Cur'. Habend. et tenend. eisdem Rogero et Ceciliae de Capitalibus Dominis feodi illius per servitia quae ad tenementa pertinent. in perpetuum. Et praeterea idem Johannes concessit pro se et haeredibus suis, quod ipsi warrant. eisdem Rogero et Ceciliae et haeredibus ipsius Caeciliae praedicta tenementa cum pertin. contra omnes homines in perpetuum. Et pro hac recognitione, redditione, warrant', fine et concor∣dia, iidem Rogerus & Caecilia dederunt praed' Johanni viginti libras sterlingorum.

If there be either a precedent or subsequent agreement either before or after the levying of a Fine; the Fine shall operate to those uses only which were so agreed upon or declared as afore∣said; and those are done in this Form:

Au Indenture to lead the use of a Fine.

THis Indenture Tripartite made, &c. between A. B. of C. and D. his wife of the first part; E.F. of G. and H. his wife of the second part, and J. K. and L. M. of the third part. Whereas the said A.B. and D. his wife, having in the Term of St. Hill. &c. last past knowledged a Fine in due form of Law, of all those Six Mes∣suages or Tenements called, &c. with the appurtenances, and of Seven Cottages and one Curtilage with the appurtenances, in the Parish of, &c. to the said I.K. and L.M. and the heirs of the said L. M. for ever. Now this Indenture witnesseth, That the true intent and meaning of the said Fine, and of all the Parties there∣unto and of these presents was and is, and It is by these presents, and by all the Parties thereunto declared, That the said Fine and all effects thereof shall be and enure, and shall be construed and taken to be and enure to the onely uses, behoofs, intents and pur∣poses hereafter mentioned; that is to say, to the use and behoof of them the said, &c. their and either of their assigns, for and du∣ring the natural life of the said, &c. and from and after the decease of the said, &c. then to the use and behoof of the said A. B. and D. his wife, their heirs and assigns for ever, and to no other use or uses, intents or purposes whatsoever, any matter or thing in the said Fine contained to the contrary thereof in any wise notwithstand∣ing. In witness whereof, &c.

Another with grant of an Annuity.

THis Indenture, &c. Between A. &c. and E. of the one part, and B. &c. of the other part. Whereas the said A. hath &c. as by, &c. (prout antea, and here make your necessary recitals,) Now his Indenture witnesseth, and it is hereby declared, &c. That the use and uses, intent and purpose of the said Fine is, and is by these presents declared, limited and appointed to be to the use and uses, intents and purposes hereafter in these presents limited and appointed, and to no other use or uses, intents or purposes what∣soever; that is to say, (here recite and declare the uses) And the true intent and meaning of the said Fine farther is, and by these presents is declared to be, to the intent that he the said E. Brother of the said A. and S. his wife, shall and may have and perceive for and

during the term of their natural lives and the longer liver of them, one annual Rent or Summe of, &c. to be issuing out of the Pre∣misses yearly at the four usual Feasts or Terms in the Year, and to begin at the first of the said Feasts which shall be next after the death of the said A. And if the said Rent or any part thereof be behind or unpaid, &c. that then the said E. shall distrain in the Pre∣misses or any part thereof as for a Rent-charge: and also that he the said E. shall have and enjoy one Messuage, &c. for his natural life, &c. In witness, &c.

This I take to be sufficient as to Presidents, I will now shew what is most necessary to be known in this particular, wherein I will give you several Observations.

And in the first place, take notice that Uses may be thus declared on a Fine, Feoffment or Recovery of Land: but upon a Bargain and Sale no declaration can be of any other use than what the Law doth make upon it. So upon a Covenant of Uses no declaration may be of other uses than what are in the Deed.

2. That whoever may dispose of Land, may dispose of the use thereof, for the declaration of the use doth follow the Land.

3. That although such declaration may be made by words, yet it is not safe to do it otherwise than by Deed Indented.

4. This may be made before, at or after the time of the making the assurance. As for Example, One may Covenant or agree that A. shall recover his Land against him, or that he will levy a Fine or make a Feoffment of it to him, and that the same shall be to the use of himself or others. And if one make a Feoffment, he may declare the uses of it at the same time, and that within the same or another Deed at his pleasure. And if the assurance be past, and no declaration had before or at the time of passing it, a declaration may be subsequent, and such declaration or Indenture may de∣clare and direct the Uses of a Fine and Recovery, but with this difference, viz. Where precedent Indentures are made to direct the uses of a subsequent assurance; and after the assurance is made ac∣cordingly, there no averment shall be received by word, that the same Assurance was to other uses than are declared by the Inden∣ture. But against an Indenture subsequent declaring the uses of the assurance precedent, an Averment may be taken that there were other Uses limited before or at the time of the assurance, than are contained in the Indenture.

5. The declaration of Uses by Indenture must be certain in the

persons to whom; in the Lands, &c. of which; and in the estates and time for which the uses are declared: and it must be compleat and certain, without reference to any other; for incertainty de∣stroyes all.

6. When an Indenture Precedent is to limit the uses of a subse∣quent Fine or Recovery, and it is not pursued in some circumstan∣ces of time, Person, Quantity or the like; yet if no other new mean agreement be proved to intervene, the assurance shall be to the uses in the same Indenture: But if the Variance be in these particulars, and the form of the Indenture be not pursued, there an Averment may be received that it was to other uses than what are contained in the Indenture; and if none such can be made, then is it left to construction of Law.

7. And for the Parties to the Indentures to lead such uses, take this, That a Deed to lead the use of a fine, may be either by an In∣strument Poll or Indented; and the Indented may be either single, of two parts, of three parts called Tripartite, or four parts called Quadripartite, or of more parts, as the case is, thus; This Inden∣ture, &c. between A. of the one part, and B. of the second part. Or Tripartite, as, This Indenture, &c. between A. of the first part, B. of the second, and D. of the third part. Or Quadripartite, be∣tween A. of the first part, C. of the second part, E. of the third part, and G. of the fourth part, and so to name all the persons (ex∣cept the common Vouchee) that bear any part in the Deed, Fine or Recovery. And so in all other matters as the case is, the Inden∣tures are to be drawn up.

In the last place, I will cite Six or Seven Cases in this Point, and so go on to the next head.

1.

In 31 H. 8. Nota, That a Fine being enrolled in London, doth bind as a Fine at Common Law, but not as a fine with Proclama∣tions, and there needs no Livery of Seisin upon the Deed: and this is a Discontinuance without Livery, for that by the custome there, this bindeth as a fine; and the Customes are confirmed by divers Acts of Parliament, Litt. Broo. Case 155.

2.

In Pasche 2 Jac. B. R. in the Case of the Countess of Rutland against the Earl of Rutland, It was held upon Evidence to a Jury,

and to them delivered by the Court for Law, That if there be an Indenture for levying of a Fine to such persons before such a time, to such uses, and the fine be levied to the same persons, within the same time; it shall be to the same uses: And no Averment can be to the contrary, unless it be by other matter in writing. But if a fine be levied to other persons, or at another time, it may be well averred by Paroll to be to other uses: For in the first case the In∣denture is directory to the fine; and in the other case it is but Evi∣dence, Cro. 2.29.

3.

If a Woman who is an inheritrix, covenants by Indenture with∣out the knowledg or consent of the husband to levy a Fine to cer∣tain Conusees and Uses in the Indenture mentioned; and after∣wards the Husband covenants by another Indenture, without the knowledg and consent of his wife to levy a fine to other Conusees and Uses in that Indenture mentioned: and afterwards the hus∣band and wife joyn in a fine to the Conusees in the Indenture of the wife mentioned: In this case the Limitations and Declara∣tions of both the Uses in both the Indentures are void; and the Fine shall be by construction of Law to the use of the woman and her heirs, as if no use had been declared: for the wife alone, though she be Owner of the Land, yet being sub Potestate Viri, cannot li∣mit the use on the one side; And the husband who hath not any thing in his own right, cannot, without the good liking of the wise, limit the use of the Wives Land. So the one is not sui Juris, and hath an Estate; The other is sui Juris, and hath not the Estate: and therefore when they differ in the limitation of the Uses, all which they do must be void.

4.

Tenant for life by Fine granted totum statum to A. and his heirs, the Grantee dyes; the heir being impleaded in a Praecipe prayed ayd, and could not have it, because it is but an Occupance. Co. 10.95. Dyer 321.

5.

In the Case of Iseham and Morris, Pasch. 4 Car. 1. It was Re∣solved among other things, That where one is Lessee for years, and assigns over his Lease in trust for himself, and afterwards pur∣chases

the Inheritance, and occupies the Land, and then levies a a Fine with Proclamations, and the Lessee doth not claim the Lease within the five years, this Fine and Non-claim shall barre the interest of the Lessee, though he who levied the Fine hath the possession by reason of the Trust: But this Trust is included in the fine; and the Trustee not making claim, his Interest is barred thereby. Cro. 1.78.

6.

Nota. It was agreed by all the Justices, and by the Prothono∣taries, That if the Disseisor levy a Fine, and the Disseisee in the preservation of his right against the said fine enter his Claim in the Record of the foot of the fine, that the same is not any such claim as shall avoid the Stat. of 4 H. 7. See for this, the Lord Zouches Case in Plowd. Com. Mich. 29 Eliz. in C. B.

7.

In Hill. 45 Eliz. B. R. Fitz-Williams Case in Ejectione Firm••, it was found, That Fitzwilliams did suffer a Recovery to the use of himself and his wife, with a Remainder to John Fitz-Williams, and with a Proviso in these words, Provided, That it shall be lawful for him and his wife by their Joynt Deed sealed before three Credible witnesses, to alter, change, revoke, determine and make void any use or uses, Estate or Estates limited in the said Deed, and to limit new uses, and that from thenceforth the Recovery shall be to the new uses. And it was found moreover, that Fitz Williams made a Deed, and by it declared, That it was their intent to alter, change, determine, revoke or avoid all the former uses to J. F. and thereupon without more words limit new Uses. In this Case it was doubted, If the old Uses were well revoked, and the new uses in being. And after many Arguments it was adjudged a good Revocation of the old Uses, and a good limitation of new uses. Moors Rep. 683. And it seems the like Law is of the Uses of a Fine.

8.

A Fine was levied to A. to the use of A. for life, the Remainder to E. in tail, the Remainder in fee to B; Provided, That if B. pay 100 l. that he shall have Tail in fee expectant: In this case, upon the payment the use shall arise accordingly. Dyer 314.

9.

If there be Tenant for life, the Remainder in see to an Infant, and they both levy a Fine, and after the fine is reversed as to the Infant; yet the Conusee shall have the Land for the life of the Tenant for life, because that each of them gave that which he might lawfully give. Englishes Case, Co. 1. Part, 76. in Bredons Case.

I will in the last place give you the Statutes concerning Fines; The first of which is,

27 H. 1. Stat. 1. cap. 1. De finibus levatis; Exception against a Fine, that the Plaintiffs or Defendants or their Ancestors were al∣wayes seised of the Lands contained in the fine, shall not from henceforth be admitted in the Parties to the fine or their heirs. The Fines shall two dayes in the Week be publikely and solemnly read, and all Pleas cease in the mean time.

34 Ed. 3. cap. 18. The Plea of Non-claym of Fines from hence∣forth to be levied shall not be any barre.

Marlb. 1. cap. 7. All Fines whereupon Proclamations be not or shall not be duly made (by reason of the adjournment of any term by Writ) shall be as good as if any Term had been holden from the beginning to the end, and Proclamations therein made according to the Statute.

5 H. 4. cap. 14. All Writs of Covenant and other whereupon Fines be levied, the Dedimus Potestatem and all Conusances and Notes of the same before that they be drawn out of the Common Bench by the Chirographer, shall be enrolled in a Roll, to be of Re∣cord for ever; out of the which execution shall be had if the notes or fines shall be imbezelled.

34 H. 7. cap. 24. Every Fine after the engrossing shall be pro∣claimed in the Court the same Term, and the three next, four seve∣ral dayes in every Term, all Pleas ceasing the whilest: which Pro∣clamations so made, the fine shall conclude all Privies and Stran∣gers, except women covert, persons, within 21 years of age, in prison, out of the Realm or of nonsane memory, (being no parties to the fine; so they or their heirs take their action or lawful entry within five years after those imperfections removed. Saving to all persons and their heirs (other than parties) the right claim and interest which they have at the time of the fine; so that they pursue it by Action or lawful Entry within five years next after the Pro∣clamations.

And saving to all other persons such right, title, claym and interest, as first shall grow, remain or come to them after the Proclamations by force of any matter before the fine; so they take their right according to the Law within five years after it growes, &c. And those that be Covert Baron, &c. at the time when it groweth, &c. that they or their heirs take their actions or lawfull entry within five years after those imperfections removed; Saving also to all not parties nor privies, the exception that none of the parties nor any to their use had any thing in the Lands at the time of the fine.

31 H. 8. cap. 36. All Fines levied by any person of 21 years of age, of Lands entailed before the same fine to himself or his Ancestors in Possession, Reversion, Remainder or Use, shall im∣mediately after Proclamation made, be a sufficient Barre against him and his heirs, clayming only by such entayle, and against all other, clayming onely to his use or the use of any Heir of his Body.

23 Eliz. cap. 3. Every Writ of Covenant or other Writ where∣upon any Fine is levied, the Return thereof, the Dedimus Potesta∣tem and return thereof, the Concord, Note and Foot of the Fine, the Proclamations and Queens silver, Also every Writ of Entry in the Post or other Writ whereupon any Common Recovery is suf∣fered; the Writs or Summons ad Warrantizandum, and the returns of all these Writs and every Warrant of Atturney may at any mans request be enrolled; which enrollment shall be of as great force to all purposes in Law as the things themselves if they were ex∣tant.

No Fine, Proclamation or Common Recovery shall be rever∣sed by Writ of Error by reason of false Latine, rasure, interli∣ning, mis-entring the Warrant of Atturney or of any Proclama∣tion, mis-entring or non-return of the Sheriff, or by reason of any other defect of Form in words, and not in matter of sub∣stance.

31 Eliz. cap. 2. Proclamations of Fines shall be onely four times, viz. once in the Term wherein the fine is engrossed, and once every of the three Terms next after.

Of a Recovery.

A Common Recovery is onely Fi••lio Juris, being a certain form used for the better assuring of Lands or Tenements upon any man. And this Recovery by assent is now by common usage a kind of conveyance upon which a use may be limited and averred. And there is a great difference between a Recovery by assent, and a Recovery without assent, though without title. Co. 1. Sir Wil∣liam Pelhams Case 14.

In the formalities whereof three things or parties are required, viz. a Demandant, a Tenant, and a Vouchee, as efficient causes thereof, and the Land demanded as the matter thereof.

1. The Demandant is he that brings the Writ of Entry, and may be termed properly enough the Recoveror.

2. The Tenant is he against whom the Writ is brought, and may be stiled the Recoverce.

3. The Vouchee is he whom the Tenant voucheth or calleth to warranty for the Land in demand: And it is either with a single Voucher, which is where the Writ is brought against him that is to pass the Land immediately, and he doth vouch over the com∣mon Vouchee: And sometimes with a double Voucher, which is when the writ is brought against another to whom he that is to pass the Land hath aliened it, and he doth vouch him that is to make the assurance, and he doth vouch over the common Vouchee; and this is the surest and safest kind of Recovery: And this may be also with a treble Vouchee.

And here observe, That a Common Recovery is much of the nature of a Fine, and hath much favour from the Law at this day, and is in some respects better than a Fine; for a fine will barre the Heir in tail, but not him in Remainder or Reversion; but a Reco∣very bars them all. Co. 1.22.62.

The method of suffering a Recovery, and the manner and order of proceeding therein is as followeth.

First, There must be a Writ of Entry, and therein a Demandant, a Tenant and a Vouchee, for if either of these be wanting, it is not a compleat Recovery; and such persons and by such names may be Demandants, Tenants and Vouchees in Recoveries as may be Cognisors and Cognisees in Fines. Co. upon Litt. 372. But the persons and parties must be competent and capable, and there must be a lawful Tenant to the Praecipe.

2. In the Writ of Entry there must be Land contained, or some other thing demanded, and that such as is demandable, and there∣fore we are to take notice, That of such things and by such names as a Writ of Covenant for the levying of a fine may be had, a Writ of Entry for suffering a Recovery may be had. See Doctor and Stu∣dent, 52. Mores Rep. 953.

3. It must not contain the same thing twice, as to name a Mes∣suage and a House parcel of the same Messuage, nor a Town and a Hamlet within the same Town.

4. If the Writ of Entry be returnable Crastino Martini, the Writ of Summons ad Warrant. thereupon must bear Teste from the re∣turn of Crast. Mart. and be returnable nine returns after the return of the Writ of Entry inclusivè, that is, accounting Crast. Mart. for one of the nine returns, and Tres Paschae which is the ninth return after Crast. Mart. for another. And the Teste of the Writ of Seisin must be the day of that ninth return, and be returnable fifteen days after. If a single Recovery and a Fine be against the Tenant, the Writ of Entry must bear date and Teste before the Writ of Cove∣nant, and be returned before it.

5. If a Writ of Covenant be brought against the Tenant, and a Writ of Entry against the Demandant, then the Writ of Covenant must bear date and be returned before the Writ of Entry; and this is called the double Voucher.

6. That all Writs of Entry must be signed by the Kings Attorney before they be sealed, and Fines to the King are to be paid upon them as upon Writs of Covenant. The Warrant of Attorney by the Clerk of the Warrants, and the Writ of Entry, Summons and Seisin are to be returned and filed with the Custos Brevium, and the Judgment to be entred by the Prothonorary.

7. That in a Recovery with a double Voucher, the fine must be sued first to make him Tenant to the Writ of Entry, brought either by right or wrong: for every Writ of Entry must be brought al∣wayes against him that is Tenant of the Freehold of the Land de∣manded at the time of the Writ brought, he must be at least Tenant for life, or a Disseisor of the Land whereof the Recovery is had, for the Estate of the Tenant in tail which is vouched is barted in respect of the Assets onely, which are or may be recovered in value end of execution sued by the Tenant against him. Plow. 11. Dyer 252. And if the Tenant have but an Estate for life or in Dower, or by Curtesie, in these cases to have a good Recovery, such Tenant is ••o make a conditional Surrender of his Estate to him in Reversion or ••••mainder, that he may be a perfect Tenant to the Inheritance,

and then to bring a Writ of Entry against him; and after the Re∣covery is executed, the particular Tenant for breach of the Con∣dition may enter and enjoy his Estate notwithstanding such Sur∣render.

A President for a Lease to make a Tenant to the Praecipe.

THis Indenture made, &c. Between, A. B. of, &c. of the one part, and C. D. of, &c. of the other part, Witnesseth, That whereas the said A. B. doth hold one Messuage, &c. in D. in the County of M. the immediate Reversion or Remainder whereof doth belong to the said C. D. and his heirs, or to the heirs of his body lawfully begotten for ever. Now the said A. B. for the ma∣king and perfecting of some assurance shortly to be made of the same Messuage, &c. by way of common Recovery, Hath Granted and Surrendred, and by these presents Doth Grant and Surrender unto the said C. D. and his heirs, upon the condition herein after mentioned all that the said Messuage, &c. and all the estate, right, title and interest of the said A. B. therein. To have and to hold to the said C.D. and his heirs, upon condition, That if the said C.D. do not pay or cause to be paid to the said A. B. the Sum of 1000 l. of lawful English money upon the first day of December next come∣ing after the date hereof, That then and from thenceforth this Grant and Surrender shall be utterly void; and it shall be lawfull for the said A. B. into the same Messuage, &c. to re-enter, and the same to repossess and enjoy as in his former Estate. In wit∣ness, &c.

As to the Warrant of Attorney and Dedimus Po••estatem, take this;

First, That in the suffering of Recoveries the Tenants and Vou∣chees do most commonly appear in person; But if they cannot or will not, then they may make an Atturney: And in that case there must be a Conusance for a Warrant of Atturney taken to autho∣rize the Atturneys, and a Dedimus Potestatem to some to take it in this manner:

Lond. ss. Praec. A. B. et C. uxor ejus quod juste &c. redd. D. E. Manerium de M. cum pertin. &c. quae clam••ee ••us et haered. suam et in quae tidem A. & B. non habent ingress. nisi post disse••••nam quam H. H. injuste et sine judicio secit praefat. D infra 30 ann••s jam ultim. clap∣sos &c. ••t dic. &c.

Lond. ss. A. B. et C. po. lo. suo W. W. et R. R. Attornat. suos conjunctim & divisim versus D.E. de placito terrae.

Lond. ss. M. M. Gen. quem A.B. et C. vocant. ad warrant. po. lo. suo. I. I. et L. L. Attornat suos conjunctim et divisim versus D. E. de placito terrae.

Lond. ss. G. W. Gen. Quem M. M. voc. inde ad warrant. po. lo. suo R. G. & R. S. Attornat. suos conjunctim & divisim versus D. E. de placieo terrae.

Secondly, That in these cases there must be two Atturneys at the least, and to give them an authority joyntly and severally, that if one of them dye before the Recovery be suffered, the other may have power to do it. And in the Counties Palatine it is usuall to put one Atturney, and one of the Justices Clerks.

Thirdly, When this is done, the Recoveries may be suffered by the Atturneys without the personal appearance of the parties, and such Recovery is good, only it will require a longer time to per∣fect it: for in this case there must go forth a Summoneas ad war∣ran. which must have Nine Returns ere it can be perfected.

Fourthly, The Recovery thus suffered by the parties in person or by their Attorneys, the same must be entred by one of the Clerks of the Court of Common Pleas upon the Rolls of the same Court, there to remain upon Record.

The Forms of Recoveries suffered in the Common Pleas Court or elsewhere, are well known to Clerks there Practising. How∣ever, I will give you one excellent President of a Recovery suffered in the Court of the Hustings at London, and likewise the forms of Indentures to limit and declare the Uses of Recoveries.

A President of a Recovery suffered in the Hustings Court, London, with double Voucher.

PLacita terrae tent. in Hustingo in Guyhald' Lond' die Lunae proxime post festum sancti Johannis ante Portam Latinam, Anno Regni nostri Jacobi dei gratia Angl' Scot' Franc' & Hibern' Regis, Pidei Defensor, &c. viz. Angl', Franc' & Hibern' 18. et Scotiae 53. Ad hunc Hustingum ven. hic in propria persona sua D.W. et protulit hic in Cur. brev. dicti

domini Regis nunc de Recto Paten. Majori & Vicecomiti London direct•• in haec verba scilicet.

Jacobus Dei gratia Angl', Scot', Franc' et Hibern' Rex, Fidei Defen∣sor, &c. Majori et Vice-Com. Lond. salutem. Praecipimus vobis quod sine dilatione plenum rectum teneatis D. W. de 12 Mess. 2 Gardinis, et 5 Curtilagiis cum pertin. in London quae clamat tenere de Nobis per libe∣rum servitium unius denarii per annum pro omni servitio. Quae R. V. ei deforc. ne amplius inde clam. audiamus pro defe••n Recti Teste Meipso apud Westm. 4 die Maii Anno regni nostri Angl', Fran. & Hibern' 18. & Scot. 53. Et tunc et ibidem idem D. W. invenit pleg. de pros. breve illud, viz. Johannem Doe, et Richardum Roe, et tunc et ibid. et tunc & ibid. id. D.W. po. lo. suo H. C. Attornat. suum vers. praefat. R. V. in placito terrae &c. Et per eund. Attorn. suum tunc & ibid. petit. pro∣cess. ei superinde fieri versus praefat. R. V. secundum cons. Civitatis Lond. Et ei conced. &c. super quo praecept. est tunc et ibid. per eand. Cur. Vice∣com. Lond. secundum cons. Civit. praedict. quod ipsi summon. per bon. summon. praed. R. V. quod sit hic in Cur. ad prox. Hustingum London de placitis tearae in Guihald. Civit. praed secundum Cons. e••usdem Civit. tenend', ad Respondend. praefat. D. W. in placito pr••d. &c. Et idem dies dat. est tunc & ibid. per eand. Cur. prafat. D. W. in eodem placito hic &c.

Ad quem diem scilicet ad Hustingum London de placitis terrae tent. in Guihald. Civit. praed' die Lunae prox. ante festum Nativitatis sancti Jo∣hannis Baptistae Anno regni dicti domini nostri Jacobi nunc Regis Angl' Fran' et Hibern' 18. praed' & Scotiae 53. praed. dictus D.W. per dict. H. C. Atturnatum suum ven. et comperuit hic &c. Et Vicecom' London viz. R.D. & J.C. modo mandaver. et retorn' hic super praeceptum praed' eis direct' quod ipsi virtute praecepti illius summon. praed. R.V. ven. hic ad hunc Hustingum ad respondend. D. W. praefat. in placito praed. &c. prout &c. per Johannem Doe & Richardum Roe summon. &c. Qui quidem R. V. ad hunc Hustingum exact. in propria persona sua compe∣ruit, et modo hic ad Hustingum ult. praed. D.W. per H.C. Attornat. suum petit versus praed. R. V. 12 Mess', 2 Gardina & 5 Curtilagia cum pertin. scituat', jacen. et existen. in Paroch. sancti B. extra B. in Warda de B. Lond. ut ius suum &c. per breve dicti domini Regis nunc de Recto Paten. &c. quae clamat tenere de dicto domino Rege per liberum servitium unius denarii per ann. pro omni servitio &c. Et unde dicit quod ipsemet fuit seisic', de Mess. Gardin. & Curtilag. praed' cum pertin. &c. in dominico suo ut de feodo et jure &c. tempore pacis t••npore dicti Domini Regis nunc &c. Capiend. inde expless. ad valenc. &c. Et quod tale sit 〈◊〉〈◊〉 suum offert &c. Et praed. R. V. in propria persona sua ven. & defend. ••us

praed. D. W. qui &c. Et seisinam ejusdem D.W. de qua seisina &c. et tot. &c. Et quicquid &c. ut de seodo et jure, et maxime de Mess. Gardin. et Curtilag. praed' cum pertin. &c. et vocat inde ad warranti∣zand. E. H. qui modo praesens est hic in Cur' in propria persona sua et gratis Mess', Gardin' et Curtilag: praed' cum pertin. &c. praefat. R.V. warrantizat. &c.

Et super hoc ad eund. Hustingum praedict' D. W. per Attornat. suum praedict' petit versus praed' E.H. tenen. per warran. suam praed' tunc et ibid. in propria p••rsona sua existen. Messuag', Gardin. et Curtilag. praed' cum pertinen. &c. ut jus suum &c. per breve praed. &c. in forma praed' &c. Et unde dicit quod ipsemet fuit seisit. de Messuag', Gardin. et Curtilag. praedict' cum pertin. &c. in dominico suo ut de feodo et jure &c. tempore pacis tempore domini Regis nunc &c. capiend. inde expless. ad valenc' &c. Et quod tale sit jus suum offert &c. Et praed' E. H. in propria persona sua ven' et defendit jus praed. D. W. qui &c. et seisinam ejusd. D. W. de qua seisina &c. et totum &c. et quicquid ex ut de feodo et jure &c. et maxime de Messuag', Gardin. et Curtilag. praedict. cum pertinen. &c. et vocat inde ad warrantizand. praed. E. H. Messuag'. Gardin. et Curtilag. praed. cum pertinen. ver∣sus praed. D.W. &c. Et praed. D.W. per Attornat suum praed. gratis conced. quod praed. E. H. habeat vocare suum praed &c. Ideo stet vo∣care &c. Et super hoc ad ill. eund. Hustingum ad pecitionem dicti D. W. praecept. est per Cur' hic Vicecom' Lond. quod ipsi summon. per ••on. summon. praed. R. M. quod sit hic ad prox. Husting. London' de placitis terrae in Guihald' Civitat' praed' tenend. ad Warrantizand. E. H. praefat. praedic••. Messuag', Gardin et Curtilag. cum pertinen. &c. versus praed. D. W. Et idem dies dat. est tunc et ibidem per eand. Cur' t••m praefat. D. W. quam praefat. R. V. et E. H. in placito praedict' &c.

Ad quem diem scilicet ad Hustingum Lendon de placitis terrae tent. in Guihald. Lond. die Lunae prox' post Festum Apostolerum Petri et Pauli, Anno r••gni di••it Domini nostri Jacobi nunc Regis Angl' Fran' et Hi∣hern' 18. praed' et Scotiae 53. praed. ven hic tam praed' D.W. per praed. H. C. Atturnatum suum quam praed. R. V. et E.H. in propri••s per∣sonis suis et Vicecom' Lond' viz praed. R. D. et J. C. modo mandaver' et returnaver' hic super praecep••um pr••ed. eis direct. quod ipsi virtute prae∣cepti illius summon. praedict' R. M. Eund' hic ad hunc Hustingum ad u••••rrantizand. praesat. E. H. Messuag', Gardin. et Curtilag. praed. cum pertinen. pr••ut eis &c. per J. G. et R. G. summon. &c, Et su∣per hoc tunc et ibidem ad eund. Hustingum dictus R. M. quem praed. E. H. vocavit ad warrantizand. &c. po. lo. suo R. S. et J. G. Attornat.

suos conjunctim et divisim versus praefat. D. W. in placito pr••••d. &c. per R. H. Armigerum Recordator. Civitat. praed' &c. Et modo hic••nd himc Hustingum praed. R. M. per praed. R. S. Attornat. suum vonit et gratis Messuag', Gardin. et Curtilag. praed. cum pertin. &c. praefat. E. H. ver∣sus dict. D. W. warrantizat. &c. Et super hoc ad eund. Hustingum praed. D.W. per Attorn. suum praed' petit versus praefat. R. M. tenend. per warran. suam praed. Messuag', Gardin. et Curtilag. praed. cum pertin. ut jus suum &c. per breve praed. &c. in forma praed. &c. et unde dicit quod ipsemet fuit seisitus de Messuag. Gardin. et Curtila••. praed. cumper∣tin. in dominico suo ut de feodo et jure &c. tempore pacis tempore dicti Domini Regis nunc &c. Capiend. inde expless. ad valenc. &c. Et quod tale sit jus suum offert &c. Et praed. R. M. per dict' R.S. Attorn. suum ven. & defend. jus praed. D. W. qui &c. et seisinam ejusd. D. W. de qua seisina &c et totum &c. et quicquid &c. ut de feodo et jure &c. et maxime de Mess. Gardin. & Curtilag. praed' cum pertin. &c. et vocat inde ad Warrantizand. A. W. civem et aurisabrum London, qui modo praesens est hic in Cur' in propria persona sua et gratis Messuag. Gardin. et Cur∣tilag. praed. cum pertin. &c. praefat. R. M. versus praed. D. W. warran∣tizat. &c. Et super hoc ad Hus••ingum ultim' praed' dictus, D. W. per Attornat. suum praed. petit versus praed' A.W. tenen. per warran suam praed' tunc et ibidem in propria persona sua existen', Messuag', Gardin. et Curtilag. praed. cum pertin. ut jus suum &c. per breve praed. &c. in forma praed. &c. Et unde dicit quod ipsemet fuit seisitus de Messuag', Gardin. et Curtilag. praed. cum pertinen. in dominico suo ut de seodo et jure &c. tempore pacis tempore dicti Domini Regis nunc &c. Capiend' inde expless. ad Valenc' &c. Et quod tale sit jus suum offert &c. Et pr••d. A.W. tenens per Warrant' suam praed. in propria persona sua ven. et de∣send. jus praed. D. W. qui &c. et seisinam ejusdem D. W. de qua sei∣sina &c. Et totum &c. et quicquid &c. ut de feodo et jure &c. et maxime de Mess. Gardin. et Curtilag praed' cum pertin &c. et dicit quod ipse ma••us jus habet tenend. Mes••uag', Gardin', et Curtilag' pr••d. cum pertin. &c. ut tenens inde per warrant. suam praed. sibi et haeredibus suis ut il' nunc tenet quam praed. D. W. habet, petend' Mess. Gardin. et Curtilag•• praed' cum pertin prout il' superius pet. &c. Et de hoc ponit se super mag∣nam assisam dicti Domini Regis nunc &c. et petit recognitionem ei super∣inde sieri secundum cons. Civit. praed. &c. Et super hoc praed. D. W. per Attorn. suum praed. pet. licentiam inde interloquendi &c. Et habet &c. Et postea idem D. W. per Attornat. suum praed. revenit ad i••' eand' Cur' Hustingal' parat ad placitum ejusd' A W ••enen per Warrant suam pr••••••. in forma praed placitat' replicand' &c. Et praed. A. W. tenens per warran•• suam praed' licet solemniter exact' non reven. sed in contemptu praed. Cur•• reces••i•• et desaltam fecit.

Ideo confideratum est tune & ibidem per eand. Cur' quod praed' D.W. recuperet seisinam suam versus praefat. R.V. de Messuag', Gardin. & Curtilag. praed cum pertin. &c. Tenend. eidem D. W. et haered. suis quiele de praed' R. V. et haered. suis ac de praed' E. H. et haered. suis ac etiam de praed. R. M. et haered. suis necnon de praef. A. W. et haered. suis in perpetuum. Et quod praed. R.V. habeat de terris & tenementis praed. E.H. ad Valenc' &c. Et quod praed. E.H. habeat de terris et tenemen∣tis praed. R.M. ad valenc' &c. Et quod praed. R.M. habeat de terris et tenementis praed. A. W. ad valenc' &c. Et quod idem A. W. sit in mi∣sericor. &c. Et super hoc ad il' eund. Hustingum ad Petitionem dicti D, W. praecept. est per Cur' hic Vice-com. Lond. quod ipsi eidem D. W. de Mess. Gardin. et Curtilag. praed. cum pertin. &c. hab ere facer. plenam et pacificam seisinam et qualiter boc praecept. fuer. execut. scire facer. Cur' hic ad prox. Hustingum London de placitis terrae in Guihald. Civitat. praed. tenend. &c. Ad quem diem, scilicet ad Hustingum Lond. de placitis ter∣rae tent. in Guihald. Lond. die Lunae proxime post Festum Sanctae Mil∣dredae Virginis anno regni dicti Domini nostri Jacobi nunc Regis Angl', Franciae et Hibern' 18. praed. et Scotiae 53. praed. Vicecom' London. viz. praed. R.D. et J.D. returnaver' et certificaver' Cur' hic &c. quod ipsi virtute praecepti praed. eis direct' plenam et pacificam seisinam praefat. D. W. de Messuag' Gardin' et Curtilag' praed' cum pertin' &c. babere fa∣cer. juxta exigent. praecepti praed' prout eis superius praecept' fuit &c.

An Indenture of Covenant for a Recovery to be suffered.

THis Indenture made, &c. between A.B. of, &c. of the one part, and B.C. of, &c. on the other part, witnesseth, That it is cove∣nanted, &c. That the said B. C. shall in Easter Term next recover to him and his Heirs for ever by a Writ of Entry sur disseisin in le Post to be had and prosecuted against the said A.B. before the Kings Majesties Justices of the Common Pleas at Westminster, according to the usual course of Common Recoveries heretofore had, the Mannor of S. with the appurtenances in D. in the County of M. being now the Inheritance of the said A.B. and that the said Reco∣very so to be had, and the full force and execution thereof shall be and enure, and shall be deemed, constiued & taken to be and enure to the use of the said A. B. his heirs and assigns for ever; And the said B. C. and his heirs and assigns, shall and will, from and after the time the said Recovery shall be had and perfected, stand and be seized of all the said Mannor with the appurtenances, to the onely

use and behoof of the said A.B. his heirs and assigns for ever, and to none other use, intent or purpose whatsoever. In witness where∣of, &c.

An Indenture declaring the uses of a Recovery already suffered.

THis Indenture made, &c. between T. M. of, &c. of the one part, and A. T. of, &c. on the other part, &c. Whereas the said A. T. hath this present Term of St. Michael recovered to him and his heirs for ever by a Writ of Entry sur Disseisin in le Post, and prosecu∣ted against the said T. M. before Sir John Vaughan Knight, &c. the Kings Majesties Justices of the Court of Common Pleas at West∣minstor, according to the usual order and form of Recoveries here∣tofore used, the Mannor of L. with the appurtenances, and divers other Lands, &c. lying in the Parishes, &c. in the County, &c. at the time of the said Recovery had, being the inheritance of the said T. M. (other than such Messuages and Lands as the said T. lately purchased of one P.S. by the names of, &c.)

Now this Indenture witnesseth, That it is covenanred, conde∣scended to, concluded and agreed between the said parties to these presents in manner and form following, That the intent and true meaning of all the said parties now is, and at the time of the said Recovery so had and suffered was, that the said Recovery should and shall be and enure, and construed to be and enure; And that the said A. T. and his heirs immediately from and after the said Re∣covery so had and executed, should and shall stand and be seised of the said Mannor, and all other the Lands, Tenements and Here∣ditaments, with the appurtenances in the said Recovery meant and intended to be comprised to the only uses and intents hereafter by these presents set forth and declared, and to none other uses, intents or purposes whatsoever; That is to say, to the use of the said T.M. for the term of his natural life; and after his decease, then to the use and behoof of the eldest Son of the said T.M. begotten or to be begotten on the Body of M. the intended Wife of the said T. M. and the heirs males of the Body of the said eldest Son; and for default of such Issue, to the right Heirs of the said T.M. for ever.

A Proviso for Revocation of uses.

PRovided alwayes, That if the said T. M. party to these pre∣sents, shall at any time during his natural life intend or be wil∣ling to alter, change, revoke or make void the said Estates, Re∣mainders, Uses and Limitations before in these presents mention∣ed, or any of them, &c. and shall by any writing or writings un∣der his hand and seal in the presence of two credible witnesses at the least, signifie and declare, That his mind and intent is to alter, change, revoke or make void the Uses, &c. That then and at all times after such writing and writings shall be so signed and sealed, all the said Estates, Uses, &c. before in these presents specified and declared; and in the said writing or writings mentioned, shall from thenceforth cease, determine, be revoked and utterly for ever void.

And that then and at all times after he the said A. T. his Heirs and Assigns, and all and every other person and persons whatso∣ever, which shall be then seifed of the said Premisses, with their Appurtenances, or any part or parcell thereof, shall stand and be seised thereof, or of so much thereof as shall be mentioned and contained in the said Writing or Writings of Revocation, to the onely use and behoof of the said T. M. his Heirs and Assigns for ever, or to such other uses, intents or purposes as in the said Wri∣ting or Writings of Revocation shall be limited, appointed and declared, and to none other use, intent or purpose whatsoever; any thing before specified to the contrary in any wise notwithstan∣ding. In witness whereof, &c.

An Indenture to lead the uses of a Fine and Recovery had and suffered.

THis Indenture made, &c. Between A. M. of, &c. and J.B & G. B. of, &c. of the one part, and R. C. of, &c. on the other part. Whereas the said A. M. being seifed in his Demesne as of Fee, of and in certain Messuages, Lands, Tenements and Heredi∣taments, with the appurtenances scituate, lying and being in W. in the County of C. and it having been agreed between the said A. M. and the said R. C. that for a valuable Consideration of mo∣ney

to the said A. to be paid by the said R. the said A. should con∣vey the same to the said R. and his Heirs, in such manner as the Councel Learned of the said R. should advise or req••••••. And whereas by advice of the said Councel Learned of the said ••. he in Easter-Term last past before the date hereof in the Court of Com∣mon Pleas at Westminster, did commence, prosecute and bring one Writ of Entry Sur Disseisin in le Post against the said R. C. deman∣ding thereby one Messuage, two Gardens, &c. with the appurte∣nances in W. aforesaid, unto which the said R. did appear, and did vouch to Warranty the said A. M. who being then present in Court, the said Vouchee in proper person vouched over one L. M. whereby a good and perfect Common Recovery of the said Pre∣misses with double Voucher, according to the form of Common Recoveries in such cases used, was due in form of Law suffered and executed. And whereas the said R. in Easter-Term aforesaid, by advice of the Councel of the said R C. did levy and knowledg in due form of Law before his Majesties Justices of his Highnesse said Court of Common Pleas, unto the said R. C. and his Heirs, one Fine Sur Conusance de droit come ceo, &c. with Proclamation thereupon had according to the Form of the Statute in that be∣half made and Provided, as in and by the said Fine and Re∣covery, relation being thereunto had, more sully and at large may appear.

Now This Indenture Witnesseth, That the said J. B. G. B. and A. M. and every of them for themselves, their Heirs, Executors, Administrators and Assigns, and for every of them, do covenant, grant, declare and agree to and with the said R. C. his Heirs and Assigns, and to and with every of them by these presents, That the said recited Fine and Recovery, and the Recoveror and Reco∣verors therein named, and their Heirs and Assigns, and the Heirs of the Survivor of them, and all other person and persons which now are or shall be seised of the said recited Premisses, and every part and parcell thereof, shall thereof stand and be seised to and for the onely use and behoof of the said R. C. his Heirs and Assigns for ever, and to and for no other use, intent or purpose whatso∣ever. In witness whereof, &c.

Revocations of Uses in former Indentures mentioned according to the power thereby given.

THis Indenture made, &c. Between E.S. of S. in the County of M. Esq of the one part, and R.H. T.T. J.B. and H.H. of the other part, Witnesseth, That whereas the said E.S. did here∣tofore by his Indenture bearing date, &c. made between him the said E.S. of the one part, and J.O. of P. in the said County of L. Esq on the other part, Covenant, grant and agree to and with the said J.O. his Executors and Administrators, That he the said E. and his Heirs in such manner and form as by the said recited Indenture is covenanted and agreed, should and would convey and assure, or cause to be conveyed and assured unto the Right Honourable H. Earl of D. since deceased, and to the said R. H. T. T. J. B. and H. H. and their heirs, and to the Survivor of them and his heirs, all and singular the Mannors of S. B. and S. in the said County of L. and also all and singular Suits, Seigniories, Services, Franchi∣ses, Priviledges, Court-Leets, Perquisites of Courts and Leets, View of Frank-pledge, and all appurtenances, Emoluments and Hereditaments whatsoever unto the said Mannors and Lordships, or unto any of them belonging and appertaining; and also all and singular his Mannors, Messuages, Lands, Tenements and Heredi∣taments whatsoever within the several Towns, Townships, Fields, Hamlets, Precincts and Territories of S. H. A. and O. and else∣where in the County of L. to the several uses, intents and purposes; in the said recited Indenture mentioned, expressed and declared, and to no other use, intent or purpose in any wise. The particu∣lars of which said Uses do more plainly appear in and by the said recited Indenture, relation being thereunto had. In which said recited Indenture of the 35 year of her Highness Reign, there is nevertheless contained one Proviso or Clause to the tenor or effect hereafter following, that is to say, Provided nevertheless, &c. (here recite the Proviso of Revocation verbatim) Now therefore it is agreed by and between the parties to these presents, and the said E. S. ac∣cording to the tenor, power or liberty of the said Proviso being fully minded and determined to alter the Estate and Estates limited in use in or by the said mentioned Indenture of the 35 year of her Highness Reign unto T. S. of B. and the Heirs males of his body, and also the Estate and Estates limited in use in or by the said reci∣red

Indentures unto J.S. for term of his life, without impeachment of wast, and after his decease, then to E. S. son of the said J. and the heirs males of his body lawfully begotten, doth by these pre∣sents and by force, and according to the said Proviso or the power or liberty thereof, revoke, repeal and derermine all and every the said estate and estates in any wise limited in use in or by the said re∣cited Indentures unto the said T. S. of B. and the Heirs males of his body lwfully begotten; and also all and every the estate and estates in or by the said Indentures limited in use unto the said J.S. for term of his life, and all and every the estate or estates in or by the said Indentures limited in use unto the said E. S. son of the said J. and the heirs males of his body lawfully begotten of, in, for or concerning all and every the Mannors, Lands, Tenements and Hereditaments, with their and every of their appurtenances in any wise comprised or specified in or by the said Indentures. And likewise the said E.S. doth hereby limit, publish and declare ac∣cording to the tenor of the said recited Proviso, that all and every the Estates in any wise, manner or form, limited in use in or by the said recited Indenture unto the said T. S. and the Heirs males of his body lawfully begotten, as also all and every the estate and estates in any manner or form limited in use in or by the said In∣denture unto the said J. S. for term of his life without impeach∣ment of wast, and all and every the estate and estates in any wise, manner or form limited in use in or by the said Indenture unto the said E. S. son of the said J. and the Heirs males of his body law∣fully begotten, shall from thenceforth of, in, for and concerning all and every the Mannor, Lands, Tenements and Hereditaments, with their appurtenances in any wise comprised in the said recited Indenture, shall cease, determine, be frustrate, void and of no far∣ther effect or continuance in Law, any the limitations of use or uses in the said mentioned Indenture, or any other matter or thing whatsoever to the contrary hereof in any wise notwithstanding. And that all and singular the said Mannors, Lands, Tenements and Hereditaments aforesaid, with their and every of their appurtenan∣ces and the only use thereof shall from henceforth remain, conti∣nue and be unto the said E.S. party to these presents and his Heirs for ever; and not in any sort, manner or form unto the said T. S. and the heirs males of his body, nor to the said J.S. for term of his life, nor to the said E.S. Son of the said J. and the Heirs males of his body lawfully begotten, nor to their or any of their Assign or Assigns. In witness whereof, &c.

A Declaration of Uses upon the Revocation above-written.

TO all to whom these presents shall come, E.S. of S. in the County of L. Esq sendeth greeting. Know ye, That I the said E. S. having before the making hereof, revoked, reduced and revested the Estate of Inheritance of all and singular my Mannors, Messuages, Lands, Tenements and Hereditaments whatsoever, with the appurtenances scituate, &c. in and to me the said E.S. and my heirs for divers causes and considerations me thereunto mo∣ving, Have Given, Granted and Confirmed, and by these presents do Give, Grant and Confirm unto A. B. of, &c. and R.L. of, &c. all and singular my Mannors, Messuages, Lands, Tenements and Hereditaments whatsoever, with their appurtenances; To have and to hold the said Mannors, &c. unto the said A. B. and R. L. their heirs and assigns, to the several uses, behoofs, intents and purposes hereafter in these presents specified, and to no other use, intent or purpose whatsoever; that is to say, to the onely sole and proper use of me the said E.S. and my heirs and assigns for ever. In wit∣nesse, &c.

We will now Illustrate the matter with some few Cases. And first,

1.

In Trin. 25 H. 8. Barloe and those who were seised in Fee of the Land gave it to Jo Aprice and Joan his wife, and the heirs of their two bodies engendered; and after Jo. Aprice did discontinue the tayl to the use of Richard his Son and Anne his Wife, and to the heirs of the body of the said Richard; and after the said John dyed, and Joan survived him: And after Richard enfeoffed one Thomas a Bastard son in Fee; After Anne dyes, and one Robert Pattershall and others recover the same Lands against the said Thomas in a Writ of Entry in le Post, wherein Thomas vouched the said Richard, which voucheth over the common Vouchee; and thereupon Judg∣ment and Execution was had: After this Joan dyed, after whose death Richard dyed without lawfull Issue of his Body; and after one Thomas Aprice, younger Brother to the said Richard, and Son of the said John and Joan, brought a Formedon in Descender a∣gainst Thomas the Bastard son, and recovered the Land, for that

Joane was living at the time of the Recovery had, and therefore the first entail was not bound, and by the death of Joane a new right or title in the tayl descendeth to the said Richard, and after his death to the said Thomas his Brother the Demandant. Benloes Rep. 30, 31.

2.

In 29 H. 8. A Recovery was had against Tenant in taile, and he dyed before execution: And by the better Opinion, the Issue is not remitted, neither shall he falsifie, because of the Recovery in value upon the Voucher. Dyer 35.

3.

In the Case of Hunt and Gateley, Pasch. 23 Eliz. in C.B. the case was, That he in Remainder granted a Rent out of the Land, after the Tenant in tail suffered a Common Recovery and dyed with∣out Issue. And it was Resolved by all the Judges of England, That Leases for years, Conusance of a Statute, Grant of a Rent and all other Incumbrances by him in remainder are avoided by the com∣mon Recovery that the Tenant in tail shall suffer of the Land, Moores Rep. Case 298. Capell's Case, 23 Eliz. Co. 1. fo. 62.

4.

In Trin. 12 Eliz. 290. A Recovery was suffered by Husband and Wife, of Tenements in London, (which by the Custome of London binds as a Fine at Common Law,) which was to the use of the Recoverors, &c. untill they made a Lease for 40 years, and then to the use of the husband and wife, and the heirs of the wife: The Lease was made, and then the husband dyed. In this case the Court held that the wife should be concluded, and should not avoid this Lease, but shall hold under the Recovery, so as the Lease pre∣cedes her Estate. But Quaere what remady she shall have for the Rent which was reserved before her Estate by the use was created. Dyer 290. See Co. 2. Part, 57. Beckwiths Case.

5.

Replevin for the taking of three Cowes apud Rowdham, the De∣fendant justifies for damage Feasant as in Freehold; the P••aintiff traverses the Freehold, and thereupon being at Issue a specia Ver∣dict

was found. Where the Case appeared to be; One William Brown, Father to the Defendant, being seised of this Land in Fee, having Issue the Defendant his Son and Heir; Thomas Brown his second son, and Richard a third, by his Will in writing devised this Land to Thomas his son and his Heirs for ever, paying to his bro∣ther Richard 20 l. at his age of 21 years: And if Thomas dyed with∣out Issue, living William his Brother, That then William his Bro∣ther should have those Lands to him and his heirs and assigns for ever, paying the said Summe as Thomas should have paid: Thomas enters and suffers a common Recovery with a single voucher to the use of himself and his heirs, and afterwards deviseth it to the wise of Edward Pells the Plaintiff and her heirs, and dyes with out Issue, living the said William Brown, who entred upon Edw. Pells and took the Distress. Et si, &c. This Case was twice argued at the Barre, and afterwards at the Bench, and the matter was divi∣ded into three Points, 1. Whether Thomas had an Estate in Fee or in Fee tayl only? 2. Admitting he had a Fee, Whether this limitation of the Fee to William be good to limit a Fee upon a Fee? 3. If Thomas hath a Fee, and William only a possibility to have a Fee, Whether this Recovery shall barr William, or that it be such an Estate as cannot be extirpated by Recovery or other∣wise?

To the third Point, Dodderidge held, That this Recovery should barr William, for he had but a possibility to have a Fee, and as it were a contingent Estate, which is destroyed by this Recovery be∣fore it came in esse: for otherwise it would be a mischievous kind of Perpetuity which could not by any means be destroyed. And although it was Objected, That a Recovery shall not barre, but where a Recovery in value extends thereto, as appears, Co. lib. 1. Capell's Case, That a Rent-charge granted by him in remainder was bound; Yet he held, That this Recovery destroying the im∣mediate estate, all Contingencies and dependencies thereupon are bound, and a Recovery shall bind every one who cannot falsifie it: And he who hath this possibility cannot falsifie it, therefore he shall be bound thereby. But all the other Justices were herein against him, That this Recovery shall not bind, for he who suffered the Reco∣very had a Fee, and William Brown had but a Possibility if he sur∣vived Thomas; and Thomas dying without issue in his life, no Re∣covery in value shall extend in value thereto, unless he had been party by way of Vouchee; (And then it should, for by entring into the Warranty he gave all his possibility) Therefore they agreed to the case which Davenport at the Barre cited to be adjudg∣ed

34 Eliz. where a Mortgagee suffers a Recovery that shall no bind the Mortgagor; but if he had been party by way of Voucher, it had been otherwise: and here is not any Estate depending upon the Estate of Thomas Bray, but a Collaterall and meer Possibility which shall not be toucht by a Recovery: And if such a Recove∣ry should be allow'd, then if a man should devise that his Heir should make such a payment to his younger sons, or to his Execu∣tors, otherwise the Land should be unto them: if the Heir by Re∣covery might avoid it, it would be very mischievous, and might frustrate all devices: and there is no such mischief, that it should maintain Perpetuities; for it is but in a Particular case, and upon a mere contingency, which perchance never may happen and be avoided by joyning him in the Recovery who hath such a contin∣gency: And on the other part, it would be far more and a greater mischief that all Executors devises should by such means be de∣stroy'd: And Hutton in his Argument put this Case; If a man gives or devises Land to one and his heirs, as long as J. S. hath Issue of his body, he by Recovery shall not bind him, who made this Gift without making him a party by way of Vouchee; for a Recovery against Tenant in Fee-simple never shall bind a collate∣ral interest, title or possibility, as a Condition or Covenant, or the like. Wherefore they all, besides Dodderidge, held, that this Reco∣very was no barr. But it was adjudged for the Defendant. Pells and Brown, Hill. 17 Jac. B.R. Cro. 2 Part, 590.

6.

In Pasch. 24 Eliz. C. B. A Feme Sole was seised of a Mannor to which were three Copyholds; one of the Copyholders did in∣termarry with the woman, and afterwards he and his wife did suf∣fer a Common Recovery of the Mannor to the use of themselves for their lives, and afterwards to the use of the Heirs of the wife: In this case it was agreed by the whole Court, That the Copyhold was extinct: And said by the Court, That if a Copyholder will joyn with the Lord in a Feoffment of the Mannor, thereby the Copyhold is extinct; and so if he accept a Lease of his Copyhold, Godb, 11. Mich. 29 Eliz. C.B. Godb. 101. accord.

7.

Husband and wife are Joynt-Tenants for life, the remainder to the husband in tail, Remainder to another in Fee, and the husband

doth suffer a Common Recovery: In this case it was held, That this was no barre to the Issue in tail for any part; for there are no moieties between them: And there where the husband alone suf∣fers the Recovery, there is no lawful Tenant to the Praecipe, and so the Recovery is no barr. Co. 3.5. Marquess of Winchester's Case.

8.

In 25 H. 8. it was held, That if my Tenant for life vouch a stranger, who doth enter into the Warranty, and cannot barre the Demandant, and the Demandant doth recover, and the Tenant over in value: That the Land recovered in Value shall not go to me in Reversion after the death of Tenant for life; nor shall the Reversion of the Land recovered in Value be in me in the life of the Tenant for life. Broo. Cases Sect. 70.

9.

In 30 H. 8. it was held, That where there was Tenant for life, a re∣mainder in taile or for life, and the Tenant for life is impleaded and doth vouch him in remainder, who doth vouch one that hath a title of Formedon, & so the Recovery pass by Voucher, then the issue of him that hath a title of Formedon, may bring his Formedon and recover against the Tenant for life; for the recompence shall not go to the Tenant for life, and therefore he may recover: for his Ancestor war ranted the remainder only, and not the Estate of the Tenant for life; and therefore the Tenant for life may not bind him by the Recove∣ry; for he did not warrant to him: and therefore in this case the sure way is to make the Tenant for life to pray in ayd of him in remain∣der, and they to joyn and vouch him that hath the title of Forme∣don, and so to pass the Recovery, for the recompence shall go to them both. Broo. Case 143.

In the last place we come to the Statutes concerning this Point, an abstract whereof followes.

Stat. 7 H. 8. chap. 4. That Recoverors of Lands, Tenements and Advowsons, their Heirs and Assigns, may distrain for Rents, Services and Customs due and unpaid, and make avowry and ju∣stifie the same, and have like remedy for recovering them as the Recoverors might have done or had, albeit the Recoverors were never seised thereof, and shall have also a Quare Impedit for an Ad∣vowson, if upon avoidance any disturbance be made by a stranger, as the Recoverors might have had, albeit the Recoverors were ne∣ver

seised thereof by Presentation. And here Avery Avowant or Bayliff in any Replegiari or Second Deliverance, if their Avowry, Conusance or Justification be found for them, or the Plaintiff be otherwise barred shall recover his damages and costs.

Stat. 21 H. 8. chap. 15. That a Termor for years may falsifie a feigned Recovery had against him in the Reversion, and shall re∣tain and enjoy his term against the Recoveror, his heirs and assigns, according to his Lease: Also that the Recoveror shall have like remedy against the Termor his Executors or Assigns by Avowry, or Action of Debt for the Rents and Services reserved upon such Lease, and due after such Recovery; and also like Action for wast done after such Recovery, as the Lessor might have had if such Re∣covery had never been: and no Stature-Merchant, Staple or Exe∣cution by. Elegit shall be avoided by such feigned Recovery, but such Tenant shall also have like remedy to falsifie such Recoveries as is here Provided for the Lessee for years.

Stat. 34 & 35 H. 8. chap. 20. That no feigned Recovery here∣after to be had by assent of parties against any Tenant or Tenants in tayl of any Lands, Tenements or Hereditaments, whereof the reversion or remainder at the time of such Recovery had, shall be in the King, shall bind or conclude the Heires in tayle, whether any condition or Voucher be had in any such fained recovery or not, but that after the death of every such Tenant in tayle against whom such recovery shall be bad, the Heirs in tayle may enter, hold and enjoy the Lands, Tenements and Hereditaments so re∣covered according to the forme of the gift in tayle, the said reco∣very notwithstanding: And here the Heirs of every such Tenant in tayle, against whom any such recovery shall be had shall take no advantage for any recompence in value against the Voucher or his Heirs; But this Act shall not extend to prejudice the Lessee or Lessces of any such Tenant in tayle made in writing indented of any Mannors, Lands, &c. for 21 years or 3 lives or under, where∣upon the accustomed Rent or Rents is or shall be yearly reserved during the same Term or Terms, but the same Lessee or Lessees shall enjoy his or their Terme or Termes according to the Stat. of 32 H. 8. chap. 28. This Act nowtithstanding.

Stat. 14 Eliz. chap. 4. That all Recoveries had or prosecuted by agreement of the Parties or by Covin against Tenants by the courtesy, Tenants in tayle after possibility of issue extinct. Te∣nant for Life or Lives or of estates determinable upon Life or Lives, or of any Lands, Tenements, or Hereditaments, whereof such particular Tenant is so seised or against any other with Vou∣cher

over of any such particular Tenant, or of any having right or title to any such particular Estate shall from henceforth as against the revertioners of them in Remainder and against their Heirs and Successors be clearly voide; But this Act is not to pre∣judice any persons that shall by good title recover any Lands, &c. without fraud by reason of any former right or title; Also every such Recovery had by the assent and agreement of the person in revertion or remainder, appearing of record in any of the Queens Courts, shall be good against the party so assenting,

But this assent must appear upon the same record, either upon a Voucher ayd prier, receit or the like, and not by any extrajudi∣cial entry or memorandum. Co. upon Lit. 362.

Stat. 14 Eliz. chap. 8. Every fraudulent Recovery against any Tenant for Life or whereupon any Tenant for life, or be that hath right to Estate for life, is vouched shall be void against him in the revertion or in the remainder, unless it be by his own assent ap∣pearing by record.

Recoveries in a writ of right bind all strangers not clayming within the years, as being suffered by a Disseisor, it bindeth the Disseisor by his own Non-claym 5 E. 3.50. Tenant for Life suf∣fering a wrongful Recovery it shall prejudice his right that hath the inheritance though he prayed in ayde and make default: 34 H. 6.2. For no ayde prayer is there necessary, in as much as the other being Tenant of the Freehold a Recovery is good against him. 4 H. 7.3. But that after the death of Tenant for Life, he may fal∣sifie it by action of ad terminum qui praeteriit, or writ of Right; which we call falsifying of Recoveries. 24 H. 8. Br. fan. rec. 41. But he cannot enter, neither can Lessee for years at the common Law falfifie (26 H. 8.2.) for having but a Chattel derived out of a freehold, there is no reason he should falfifie a Recovery which draweth the Fees simple out of the Lessor: Also the present Estate upon which the Lease depends being destroyed, the Lease must needs be extinct.

Of Bargaine and Sale by Deed.

A Bargain and Sale is a real contract upon valuable considera∣tions for the passing of Lands, Tenements or Hereditaments by Deed indented and inrolled within six moneths after the date of it without Livery of seisin or Atturnment of Tenants, so as be by

Deed indented sealed and inrolled, either in the County where the Land lyes, or within one of the Kings Courts of Record at Westm. within six moneths after the date as we said before. Plowd. 307. Co. 2 part. Inst. 672. Concerning which I will give only a few Generals.

1. That if one for money grant a Rent without any word of Bargaine and Sale and the Deed be inrolled, the Rent will pass without atturnment. Cro. 3. part. 166.

2. That Lands in London bargained and sold by Tenant in tayle and the Deed delivered after the same year he made Livery to him, the Lands pass by the bargain and Sale. Yelver∣ton. 123, 124.

3. That as the very words Bargaine and Sale are not needful to make some Land pass by way of Bargain and Sale, where there is an inrolment: So inrolment is not necessary in all cases: As where a reversion is granted for years only there neither inrolment not atturnment are necessary. Cook. 8.93. Foxes Case.

4. That the makers of the Act 27 H. 8. chap. 10. did not ex∣pect that any Land after that Act should pass by way of Limitati∣on of use, save only uses upon Bargain and Sale, which they did in the same Parliament allow after inrolment; And they did pre∣sume that little Land would pass that way, for that the Bargaine being in the Post might not vouch by force of any warranty annex∣ed to the Estate of the Land. Co. 1.120. in Chudleighs Case.

5. That to make a good Estate for years by way of Bargain and Sale for Land to pass, this may be without inrolment of the Deed: But to make a good Estate of the Freehold or Inheri∣tance of Land by way of Bargain and Sale it must have the Re∣quisites of a Deed. viz.

6. It must be by Writing and not by Print or Stamp: in Parch∣ment not in Paper nor upon Lead, Wood or the like. Co. 5.20. 2 part. Inst. 672.

7. That by the Common Law Land might have passed by word for the use only past; but now it must be by Deed, save only in some Cities, Villages and ancient Burroughs, where it passeth by Custome. Dyer 229.

8. That if a Father in consideration of 10 l. paid to him by his Son doth covenant to stand seised to his use, no use will arise with∣out Inrollment. Coo. 7.40.

9. That the Inrollment upon such a Deed, so as to make the Estate to pass, must be in Parchment. Co. 2. Part Inst. 673.

10. The inrolled Deed must be indented, for if it be by Deed-Poll the Estate will not pass. Dyer 229.

The Six moneths given for Inrollment are to be accounted.

1. From the date and not from the time of the delivery of the Deed; and from the date, and from the day of the date is all one.

2. After the account of 28 dayes to the moneth and no more.

3. The day of the date to be taken exclusive. Moors Rep. 40. Case 128. and yet if it be inrolled the same day it bears date, it is good. If it chance (which is very seldome) that it have no date, then the day of the delivery shall be taken for the date, and the six moneths to be cast from thence. Mich. 37, 38 Eliz. Franklin and Garter's Gase. Co. 2. part. Inst. 674. And if the Deed be not thus inrolled, it is of no force at all. Co. 5.1. Dyer 218. Co. 11.48. Moors Rep. 41. Case 148.

This kind of assurance by Bargain and Sale thus perfected by In∣rollment, will as effectually transfer the Land as any other Con∣veyance, and therefore the Bargainee of a Reversion, albeit he may not have benefit of a Condition upon demands of Rent, without giving notice of the bargain and sale to the Lessee; and albeit that A. the Conusee by a Fine of a Reversion before Attornment of the Tenant, bargain and sell the Reversion to B, and that in this case B. cannot distrain for his Rent, until he can get Attornment of the Te∣nant; yet the Bargainee shall have benefit of a Condition of an Assignee within 32. H. 8.

And it seems he may vouch by force of a warranty annexed to the estate of the Land, for he is in partly in the Per, and partly in the Post. Co. 8.94. 3.62. 5.113.

I will Illustrate this Point only with three or four Cases, and then give you Presidents.

Case 1.

Winchcombe having Issue two Sons, conveyed a Mannor unto his eldest son, and to the daughter of Dunce for life, for the Joynture of the wife, the Remainder to the son in Fee; the son having no Issue, his Father in Law Dunce procured him by Deed indented to Bargain and sell to him the Mannor; the Bargainor being sick, who dyed before Inrollment of the Deed within the six moneths, the Deed not being acknowledged: and afterwards the Deed coming to be inrolled, the Clerk who inrolled it procured a Warrant from the Master of the Rolls who writ upon the Deed; Let the Deed be inrolled upon Affidavit made of the delivery of the Deed by one of the wit∣nesses to the same: and afterwards 〈…〉〈…〉 was inrolled within the

six moneths. And the Opinion of the Court was, That the Con∣veyance was a good Conveyance in Law: And therefore the youn∣ger Brother exhibited his Bill in Chancery, pretending the Con∣veyance to be made by practice, without any consideration, Winch∣combe and Dunce, Hill. 13 Jac. in Canc' Godb. Case 376.

2.

Popham's Case, 5 Eliz. If a man bargain and sell to one, and af∣ter to another, the first Deed is inrolled, and after the second, and that the last day of the six moneths accounting the day of the date for none; yet it was held by the Court, That the first Bargainee should have it; sic vide from the Date which are the words of the Statute, are of the same sense as from the day of the date, and that twenty eight dayes make a moneth. Dyer 218. Moores Rep. 40. Case 128.

3.

Chibbornes Case; Lands in London may be bargained and sold by words without Indenture or Inrollment. Dyer 228.

4.

In Trin. 41 Eliz. Fisher against Smith, it was held by the Court. That a bargain and sale of Lands by Deed indented and inrolled, for divers good considerations, is not good to pass the Land, with∣out proof of money paid, which must be averred: But if the Deed say, for a competent sum of money, neither party may urge there was none paid, albeit it be uncertain. Moor. Rep. 569. Case 777.

5.

In the Case of Mallory and Jennings, Trin. 43 Eliz. C. B. it was held by the whole Court, That upon a bargain and fale by Deed indented and inrolled; after inrollment if it be within the six moneths, the Bargainee shall be said to be in from the date of the deed; so that if the Bargainor in the mean time between that and inrollment enter into a Statute, this shall not bind the Land; a Re∣lease to the Bargainee in that time shall be good: also a Recovery against the Bargainee within that time shall be good. And if the Bargainee after the bargain and sale, and before inrollment, do bar∣gain and sell the Land by deed indented and inrolled to another, and after the first deed is inrolled within the six moneths, the bar∣gain and sale by the bargainee is good. So agreed also in Trin. 3 Jac. C.B. between Lellingham and Alsop.

Presidents of Bargain and Sale.

THis Indenture made, &c. between A. B. of, &c. of the one part, and C. D. of, &c. of the other part, Witnesseth, That the said A.B. in consideration of 1000 l. of lawful money of England to him in hand paid by the said C. D. hath bargained, sold, given and granted, and by these presents doth bargain, sell, give and grant unto the said C.D. all that, &c. (Here recite the particular of all the Houses, Lands, and other things) To have and to hold the same, &c. and premisses unto the said C. D. his Heirs and assigns, to the onely use and behoof of the said C.D. his heirs and assigns for ever.

The usual Covenants for Warranty, That the Bargainor hath a good Estate, &c. as also for quiet enjoying, freedom from in∣cumbrances, and the making of further assurance, are to be ad∣ded.

Or it may be by way of Covenant thus:

This Indenture made, &c. witnesseth, That the said A.B. doth for him and his heirs, covenant, grant and agree to and with the said C. D. and his heirs, That he the said A.B. and his heirs, in con∣sideration of 1000 l. of lawful money of England to him in hand paid by the said C.D. shall and will from henceforth stand and be seised of and in all that, &c. (here recite the Lands &c.) to the only use and behoof of the said C.D. his heirs and assigns for ever.

Or else to this purpose;

The said A. B. doth for him and his Heirs covenant with C. D. and his heirs, in consideration of 1000 l. of lawful money of England to him the said A.B. in hand paid, That the said C.D. shall have to him and his heirs, and to his and their own use, all the Lands, Te∣nements and Hereditaments of him the said A. B. lying and being in D. in the County of L. and as they are particularly mentioned and expressed in the Schedule hereunto annexed. (And these if they are to pass any Freehold, are to be inrolled as is before set forth.)

Sometimes they are with a Defeasance after this manner:

This Indenture made, &c. Between, &c. Witnesseth, That whereas the said A.B. hath by his Deed Indented, bearing date, &c.

for the summe of, &c. bargained and sold to the said C.D. all that &c. (Here recite the particulars) To have and to hold to the said C.D. his heirs and assigns for ever, as by the same, relation being there∣unto had, may and will appear. Nevertheless, it is now fully con∣cluded and agreed between the said parties, and the said C.D. doth for him and his heirs hereby covenant and agree to and with the said A.B. and his heirs, That if the said A.B. or his heirs shall well and truly pay or cause to be paid to the said C. D. his Executors, &c. the said summe of, &c. at or before the Feast of, &c. now next coming after the date hereof; That then it shall and may be law∣ful to and for the said A. B. and his heirs into the said, &c. to re∣enter, and the said C.D. from thence to expel and put out, and the same to have as in his or their former estate: And that from the time of the repayment of the said money, and from thenceforth the said C. D. and his heirs shall stand and be seised of and in the said, &c. to the use of the said A. B. and his heirs for ever. And also that all Conveyances and Assurances thereof then had and made to the said C.D. and his heirs, or to any other person or per∣sons, shall after the repayment of the said summe of, &c. be to the use of the said A.B. and his heirs for ever, any thing in the said In∣denture, or in this present Indenture to the contrary in any wise notwithstanding,

Or thus;

Provided, That if the said C. D. or his heirs shall not pay or cause to be paid to the said A. B. his Executors, &c. at or in, &c. the summe of, &c. at, &c. that then and so often as default of pay∣ment of any of the said summes or of any part thereof shall be made contrary to the true meaning hereof, it shall and may be law∣full to and for the said A. B. his heirs, &c. into the said bargained premisses with the appurtenances to re-enter and the same to have again, hold and retain without any wast doing, and the profits thereof coming to his or their own use to receive untill the said summe or summes of money, whereof such default shall be made contrary to the true meaning hereof, shall be paid to the said A. B. his, &c. And that so oft as such default shall be made as aforesaid, the said C. D. and his Heirs shall stand and be seised of all and singular the premisses with the appurtenances, to the use of the said A.B. his Executors, Administrators or Assigns, for the several times aforesaid: And after any sum of twenty pounds, whereof default of payment shall be made to the said A. B. his Executors, &c. re∣spectively shall be paid, that then and so oft the said A. B. and his

heirs shall stand and be seised of the premisses with the appurtenan∣ces to the use of him and his heirs under the condition aforesaid, until the said summe of, &c. be paid according to the true meaning hereof: And that then and from thenceforth the said C.D. and his heirs shall stand and be seised of all the said premisses with the ap∣purtenances, to the only use of the said C. D. his heirs and assigns for ever absolutely, and without any manner of condition or other limitation of use or uses whatsoever. In witness, &c.

Of a Judgment, and the Execution thereof.

A Judgment is the end of a Suit or rather the Sentence or Decree that a Judge doth make at the end of a Suit, which is no more but the pronouncing of what the Law doth set down and deter∣mine in that case Secundum allegata & probata; and this so long as it stands in force, or be reversed by attaint or Writ of Error, is final, and makes an end of the Suit. And here observe,

1. That all Judgments are either by Award, by Confession, by Default or by Tryal. Cro. 2.468.

2. That a Judgment cannot be depheasanced before it be obtain∣ed. Cro, 1.837.

3. That Judgments are much favoured in Law, for Judicia in Curia Regis reddita pro veritate accipiuntur, et Judicia sunt cantum Juris dicta. Judicia in Curia Regis reddita non adnihilentur, sed stent in suo robore, quous{que} per errorem aut attinctam adnullentur; for Inte∣rest reipublicae res judicatas non rescindi; et nihil est tam conveniens na∣turali aequitati quam unum quod{que} dissolvi, eo ligamine quo ligatum est. Co. Inst. 2. part, 360.

4. That if the Plaintiff upon a Judgment dye, his Executors or Administrators may not proceed to take advantage thereof, or have Execution thereupon till they have first sued out a Scire facias. Co. Inst. 2. part. 288, 394.

The Method of proceeding in a Judgment is as followeth, viz. The Judgment being past, the Plaintiff may choose his Execution, and to pursue it; But he is first to take care that this Judgment be entred in due and legal form, which you may see in the Book of Entries. Then he must be careful in the choyce of his Execution: As for Example, If he make choyce of an Elegit, it is to be directed to the Sheriff in the form by Law prescribed; for which see F.N.B. and the Old N. B.

Then the Sheriff having received the Writ must summon a Ju∣ry, and this Jury is to inquire and return what Fee-simple, Fee-tail or for life, Lands, Goods or Chattels the Defendant had at the time of the Judgment, or at any time after. And this must be ve∣ry carefully done, the finding must have certainty in it by the qua∣lity of the Land, as the Mannor of H. a Messuage and 20 Acres of Land, Meadow and Pasture in D. in the occupation of J. S. of the value of, &c. 5. pound Rent, &c. Then the Sheriff is ei∣ther at the same time or some time afterward to deliver the one moyety thereof; and this last he alone doth without the Jury. And herein care must be had that they do it by meets and bounds: and that he do certainly describe that which he doth so deliver, and that he deliver what is divideable; and therefore that he do not divide a Mannor and deliver the moyety thereof, for by this means he may destroy the Mannor. And if the Sheriff shall deliver too much, the Court at the return of the Writ may quash it, and order a new Inquiry.

When the Plaintiff is satisfied, by incursion of time, the De∣fendant may re-enter upon his Land without more ado; but if he hath received satisfaction by some accidental improvement of the Land, there he is to call the party into Court out of which the Writ issued, and there to do it by Scire facias. Co. 5.38, 39. But all Executions are to be taken out within a year after the Judgment, else no Execution can be made out without first suing forth a Scire facias. Westm. 2.45. 13 Edw. 1.

The Execution upon a Judgment shall relate to the day of the Writs date, and the award of the Writ of Execution shall bind all the Goods of him against whom Judgment is, which he had at the day of the Execution awarded.

The Entry of a Judgement may be stayed and arrested, if the Court shall see cause.

That a Judgment may be for a part of the thing only in demand, or for the whole.

That a Judgment may be erroneous and avoidable by a Writ of Error for many causes. Cro. 2.303.

That after Judgment no Issue shall be taken. Cro. 2.126.

That when a Judgment is reversed for Error, the Party is resto∣red to his first remedy. Co. 8.141.

The Forms and Presidents of these things vary according as the case requires, and being only practicable by Attorneys who are or

ought to be well versed therein, we will trouble the Reader with them, but in the next place shew the several Statutes that speak of the same.

Stat. Westm. 2.18. 13 E. 1: That he that recovereth debt or da∣mage in the Kings Court, may at his choyce have a Fieri facias of the Lands and Chattels of the Debtor, or a Writ for the Sheriff to deliver him all the Chattels of the debtor, (except Oxen and Plough-Beasts) and the moyety of his Land by a reasonable ex∣tent, till the debt be levied. And if he be Ejected out of the Land, he shall have an Assise, and afterwards a Writ of Redisseisin if need be: And this last Writ is called an Elegit, which is given upon a Statute also.

Stat. 32 H. 8. cap. 5. That for all things recorded before the Kings Justices, or contained in Fines, (whether Contracts, Cove∣nants, Obligations, Services or Customs acknowledged, or any other things inrolled) the Execution shall be within the year: but after the year a Scire facias, whereupon if satisfaction be not made, or good cause shewed, the Sheriff shall be commanded to Execu∣tion.

That if Lands delivered in Execution upon just cause be recove∣red without Fraud from the Tenant in, Execution before he shall have levied and received his whole debt and damages, he may have a Scire facias out of the Court from whence he had the Execution, returnable in the same Court at a day, Forty dayes (at the least) af∣ter the date of such Scire facias: at which day, if the Defendant be∣ing lawfully warned make default or do appear, and do not plead a sufficient cause (other than the former acceptance of the Lands) to avoid the said Suit for the residue of the said debt and damages, the said Court shall issue forth a new Writ of Execution for the levying thereof.

Stat. 1 Jac. cap. 13. If any taken in Execution be delivered by Priviledg of Parliament, as soon as the Priviledg ceases, the Plain∣tiff his Executors or Administrators may sue out a new Execution against him, and the Sheriff or other Officer shall not be chargeable for the first Arrest.

Stat. 3 Jac. cap. 8. That no Execution is to be stayed upon any Writ of Error or Supersedeas upon it, for reversing of a Judgment for debt or upon a Contract, till the Plaintiff be bound in Recog∣nizance with two Sureties in that Court in double the Summe of the Judgment, to prosecute it with effect, and pay the debt, costs and damages, if the Judgment be affirmed.

Stat. 21 Jac. cap. 24. That the party at whose Suit any one is in Execution for debt or damages recovered, their Executors or Administrators may after the death of the person so charged and dying in Execution, lawfully sue forth new Execution against the Lands and Tenements, Goods and Chattels of the person so de∣ceased, in like manner as if the person so deceased had never been taken in Execution. Howbeit this Act shall not extend to Lands sold bona fide (after the Judgment given) when the money raised thereupon is paid or secured to be paid to Creditors in discharge of due debts.

But to return to Execution, wherein we are to consider,

That the Writs whereby this Execution is made, are some of them against the person, some of them against the goods, some of them against the Lands, and some of them against the Body, Lands and Goods together. Co. 6.87. & 8.141.

For the doing of Execution in a Suit for debt or damages, the Writs are, the Levari facias, the Fieri facias, and the Capias ad Sa∣tisfaciendum; and sometimes the Exigent, the Capias Utlagatum, and the Capias pro fine.

The Levari facias is a Judicial Writ directed to the Sheriff for the levying of a summe of money upon the Lands and Tenements of him against whom the Judgment is. Reg. Orig. fol. 298.

The Fieri facias is a Judicial Writ lying for him that hath reco∣vered in an Action on Debt or Damage, directed to the Sheriff, commanding him to levy the same of the Defendants goods. Old Nat. Bre. 152.

The Capias ad Satisfaciendum is a Judicial Writ (grounded upon a Statute) lying where a man hath recovered in an Action personal any debt or damages in the Kings Court, directed to the Sheriff to command him to take the body of him against whom the debt is recovered, and to put him in prison till Satisfaction be made to him that recovered. And all these three last named Writs are to be sued out within a year and day after the Judgment obtained, and not after without Scire facias: And if they be sued out within the year, they may be continued after the year till Execution. Co. on Litt. 290.

The Exigent is a Writ, that lyeth where the Defendant in an Acti∣on personal cannot be found, nor any thing within the County to be attached or distrained, and is directed to the Sheriff to proclaim and call him five County days one after another, charging him to

appear under pain of Outlawry: And if he be Outlawed, then all his Goods and Chattels are forfeited. And this mostly goeth forth before Judgment, and in some cases after Judgment. If it be be∣fore Judgment, there must go before it three Writs of Capias ad Re∣spondendum, with a Non est inventus upon each of them returned. But if it be after Judgment, as it may on a Capias ad Computandum, or Capias ad Satisfaciendum, there it may issue out after the first Ca∣pias. Termes del Ley.

The Capias Utlagatum is a Writ of Execution or after Judgment, which lyeth against him that is Outlawed upon any Suit, directed to the Sheriff, commanding him upon receit thereof to apprehend the party Outlawed for his contempt in not appearing upon the Exigent, and to keep him in safe custody until, &c. and to bring him into the Court at the day of the return of the Writ, where he is to remain without bail or mainprise. Co. 12.103.

There is also a special Writ in this case called a Capias Utlagatum & inquiras de bonis et Catallis, which is a Writ in a manner the same with the former, but that it gives a farther power to the Sheriff over and besides the apprehension of his body to inquire of and seize upon his Goods and Chattels to the Kings use. Old N. B. 154.

The Capias pro fine is where a Judgment is given in a Case for a Plaintiff, and it is in such a case where the Defendant is also to pay a Fine to the King; the which being not paid, to command the Sheriff to take and imprison him till he pay his Fine to the King, Co. 3.1, 2, 3.

The Extendi facias is that which is called the Writ of Extent, whereby the value of Lands, &c. is commanded to be made and levied: For to extend doth signifie in Law to value the Lands or Tenements of one bound by Statute, &c. who hath forfeited his Bond to such an indifferent rate as by the yearly Rent the Obligor may in time be paid his debt, F.N.B. 131.

And Extent doth sometimes signifie a Writ to the Sheriff for the valuing of Lands or Tenements; and sometimes the Act of the Sheriff upon this Writ. And if the Sheriff delay to execute the Writ of Extendi facias in the delivery of Lands, Goods and Chat∣tels of the Conusor to the Conusee, that are apprised and taken in∣to his hands upon the Extent, he may be be forced to it by a Writ called a Liberate.

The Elegit is a Judicial Writ grounded upon the Statute, and lyeth for him that hath recovered debt or damages in the Kings

Court against one not able in his Goods to satisfie, directed to the Sheriff to command him to make delivery of half the parties Lands and Tenements, and all his Goods, (Oxen and Beasts for the Plough excepted) Old Nat. Bre. 152. Reg. Orig. 129, 299.

The Scire Facias is a Judicial Writ, most commonly to call a man to shew cause to the Court whence it is sent, why Execution of a Judgment passed should not be made. And this commonly is not granted before a year and a day be passed after the Judgment given. In which cases (for the most part) Execution is not grant∣able, until this Writ and the return thereof be had and past. Vet. N. B. 151. And where a man shall be put to this, To have Execution or not, see 21 E. 3.22. Execution, 53, 55, 69, 89, 97, 143. Scire Fa∣cias 126. Execution 102, 164, 243. And here observe, That Exe∣cutions may be arrested and stayed by the Court, wherein the Judg∣ment is given.

By the Common Law for a debt for which a man had Judge∣ment, he could have had neither Body nor Lands in Execution in case of a common person, but the Goods and Chattels and Pro∣fits of the Lands, except in case of an heir chargeable by the deed of his Ancestor: but the Law is now otherwise, for at this day upon a Judgment given for debt or damages in the Courts of Re∣cord at Westminster, generally the moyety of all the Land that the Defendant hath tempore redditionis judicii, or at any time after, and all the Goods and Chattels he hath tempore Executionis, or the day of the Writ awarded, shall be subject and lyable to the Execution•• and all these may be taken in Execution by the Sheriff, into whose hands soever they be come. Dyer 306.34. Co. 3.12. 34 H. 6.45.

The Ca. sa. did not lye at the Common Law against any man for debt, but in case of the King, until 25 E. 3.17. Vide Co. 3. in Sir William Herberts Case.

How the Sheriff and his Officers are to perform their Office in doing execution, the following Observations will shew.

1. If the Sheriff have a Writ of Execution delivered to him, and a Writ of discharge or Supersedeas come to the Sheriff, but he hath not notice of it. In this case he may serve the Execution and justi∣fie it. Cro. 1.440.

2. After half the Land of a man is taken in Execution upon one Judgment, then if there come another Judgment against the same person, a moyety of the moyety only left and not of the whole is to be extended. Cro. 1.482, 483.

3. The Sheriff upon a Fieri facias may not deliver the Defen∣dants

Goods to the Plaintiff in satisfaction of his debt, Cro. 1. part, 504.

4. If the Sheriff open or break any House to do Execution at the Suit of a common person, the Execution is good, but the party whose House is broken, may have an Action of Trespass against him for the breaking of the House. Co. 5.93. Co. 4.91. Semaines Case. Co. 11.82.

5. If the Sheriff have a Fieri facias or a Ca. sa. against a man, and before Execution executed, he pay him the money; in this case the Sheriff cannot do execution after; if he do, an Action of Trespass or False Imprisonment lyeth against, per Justice Jones, and Justice Berkley, B.R. Pasch. 12 Car.

6. If Execution be by Fi. Fa. and the Sheriff seise Goods, and before the sale the Record is removed by Error, and a Supersedeas awarded, and a seizure returned; in this case a Venditioni Exponas may be awarded upon the return of the Fieri facias which is filed, Cro. 1.597, 598.

7. If Execution be for the Plaintiff, if the Defendant be taken by Capias Utlagatum, and if Judgment be affirmed in Error, a Ca∣pias or other Execution lyes without Scire facias, although in an∣other Court. Cro. 1.706, 851.

8. The ancient Sheriff being out of his Office, cannot sell the Goods he took upon a Fieri facias. Yelverton 44.

How Execution is to be done in the Cinque-Ports, see Bendloes 15.

Observe here further, That if the Defendant dye, his body be∣ing in Execution, the Plaintiff may have a new Execution against the Lands or Goods of the Defendant as he pleaseth; but the Plaintiff while he hath the body of the Defendant in Execution, can have no other Execution against his Lands or Goods. Co. 5.65, 66.86, 87. A new Execution may be sued against any man who by Pri∣viledg of Parliament shall be set at liberty. Stat. 5 Jac. cap. 13.

If the Sheriff hath a man in his custody by process of Law, and after this a Writ of Capias ad Satisfaciendum is delivered to him; in this case in Judgment of Law, he shall be in Execution presently upon that Writ, though he never make any actual arrest thereupon. Co. 5.89.

I will now cite some few Cases to illustrate this Point.

1.

If two be in Execution for one debt, and one of them dye under

Execution, this will not discharge the other. But death under Exe∣cution in case where there is but one Defendant is in satisfaction. Cro. 1.851. F.N.B. 146. Cro. 2.136, 143. But this by the Common Law. For now by the Stat. of 21 Jac. cap. 24. If a man be in Exe∣cution for a debt, and dye in Execution for it, the debt unpaid; the Plaintiff shall now have as much remedy against his Lands and Goods, as if he had never been or dyed in Execution. Co. 5.86. Cro. 2.136, 142. 33 H. 6.47. 3 H. 6.7. N.B. 246.

2.

If the Defendant pay the money, by this he shall be discharged of the Execution. So a Release of all Executions will barr in this case, although it be in the Kings case. But a Release of all Suits will not discharge from Execution in the case of the King or Sub∣ject, Co. 8.153. But a Release of the Judgment, and of all debts and duties will discharge the Body out of Execution, Co. 1. part. Inst. 291. But if he make any Depheasance, Release or other such like act to the Defendant being in Execution, amounting to a dis∣charge of the Execution; this will not be in it self ipso facto a dis∣charge of the Execution: but this will make way for his discharge by Audita Querela or some other means. And therefore in case, where the Plaintiff consented that the Defendant his Prisoner in the Kings Bench should come to him out of Prison to the Horse∣shooe▪ Tavern, which was out of the Rules, without a Keeper or any Order of the Court, thinking to have some agreement with him, and he doth come to him, and was taken again upon the same Exe∣cution, and put into the Kings-Bench; he was relieved and dis∣charged by Audita Querela. And a discharge by word in this case is good enough: For if I say to the Sheriff, and bid him discharge such a one he hath in Execution at my Suit, or suffer him to go at large; this is a good discharge both to the Sheriff and to the party. Popham 206, 207. Trin. 24 Car. B.R. Walker and Alder.

3.

If A. and B. Joynt-Tenants for life, the Remainder in Fee, and Judgment is given against A. in debt, and afterwards before Exe∣cution he release to his Companion, this shall not avoid the Exe∣cution upon the Land; But if A. had dyed before Execution, the Survivor would have held the Land discharged. Co. 6.79. Aberga∣venyes Case.

4.

If a Judgment be against one Obligor in the Common-Pleas, and another Judgment in the Kings-Bench against the other Obligor, and a Capias ad Satisfaciendum in the Kings-Bench against that De∣fendant, and then the Body and Lands of the other is taken in the Common-Pleas, and he is delivered by Audita Querela, as he may be: although the Land taken in Execution be evicted, yet his body shall never be re-taken in Execution. Hob. Rep. 2.

5.

If a Sheriff, Gaoler or other Officer, that hath a man in Executi∣on at my Suit for debt or damages, do after suffer him wilfully or negligently to escape, and do not re-take him before I commence my Action against him; In this case I may in an Action of Debt, or Action of the Case (which I will) recover against him, by whose means this is done, (but not against his Executors or Administra∣tors) so much as I am damnified thereby. Plowd. 45. Co. 3.52. Dyer 278. Cro. 3.767. F.N.B. 93.

6.

If the Sheriff take one in Execution at my Suit, be the process by which he is taken, erronious or not, if the Sheriff suffer him to escape, he shall be charged with this escape. Cro. 3.188, 576. Cro. 2.1.

7.

If the Chief Justice of the Court by which the Prisoner is com∣mitted, the Sheriff and the Plaintiff in the Suit all of them agree together to let a prisoner in Execution out for a time, this will be no escape, especially there where the Prisoner doth return at his time. Dyer 275.

8.

If the King or any great Man (out of the ordinary way of Law) shall command or require the Sheriff or other Officer that hath the keeping of such a prisoner to set him at liberty altogether or fo•• time, and he doth so; although he return to prison again, yet this will be an escape in the Sheriff to make him liable to action. Dyer 278, 279.

9.

If a Prisoner be removed out of the Fleet, that was there in Exe∣cution out of the Common-Pleas, and he be removed by a Habeas Corpus cum causa, and then sent to the Marshalsey for another debt and escape from thence; In this case the Keeper of the Marshalsey and not the Warden of the Fleet shall be chargeable for both the first and the second debt. Co. 4.98. Dyer 278.

10.

If a Woman be Warden of the Fleet, and she hath Prisoner one in Execution at my Suit, and they marry together, this shall be ad∣judged an escape in Law in the Woman; for the prisoner is now by Law discharged: So if a man have a Prison in Fee, and his son and heir be his prisoner, and he dye and the prison descend to his son, this will be an escape in Law in the Guardian, for which I may have an Action of Escape. Plowd. 37.

The Statutes concerning this Point are,

Westm. 2. cap. 18. He that recovereth debt or damages in the Kings Court, may at his choyce have a Scire facias of the Lands and Chattels of the debtor, or a Writ for the Sheriff to deliver him all the Chattels of the debtor, (except Oxen and Plough Beasts) and the moyety of his Land by a reasonable Extent, till the debt be levied. And if he be ejected out of the Land, he shall have an As∣sise, and afterwards a Writ of Redisseisin if need be.

Stat. 32 H. 8. cap. 5. Lands lawfully delivered in Execution upon a Judgment or Recognisance, being evicted without any fraud or default in the Tenant before he have levied the whole debt and damages, the Recoverer and the Recognisee shall have a Scire facias out of the same Court where Execution was awarded, returnable there full Forty dayes after the date. And thereupon a new Writ of Execution of the nature of the former to levy the rest of his debt and damages, if the Defendant make default, or shew no good matter in barre.

Westm. 2. cap. 46. For all things recorded before the Kings Ju∣stices or contained in Fines (whether Contracts, Covenants, Ob∣ligations, Services or Customs acknowledged, or any other things enrolled) A Writ of Execution shall be within the year, so as the parties shall not need to plead: After the year a Scire facias.

Of a Statute.

A Statute (as it is taken for a legal assurance) is an Obligation of Record; and it is so called, because it is made in pursuance of and according to the Form particularly provided for the same, and is of three sorts, viz.

1. A Statute Merchant. 2. A Statute-Staple. 3. A Recog∣nisance.

1. The Statute-Merchant is a Bond acknowledged before one of the Clerks of the Statutes Merchant, and Mayor, &c. of the City of London, or two Merchants of the said City for that purpose as∣signed, or before the Mayor of York, &c. chief Warden, Master or Mayor of other Cities or Towns, or before the Bayliffs of any Burrough or other sufficient men for that purpose appointed, seal∣ed with the Seal of the Debtor or Recognisor, and of the King, which is of two pieces, the greater is kept by the Mayor, &c. and the lesser by the said Clerks. This is upon 13 E. 1. Stat. 4. Acton Burnell, 11 E. 1. Co. upon Lit. 289.

And is after this Form.

NOverint universi per praesentes me A. B. de &c. Teneri C. D. de &c. in mille libris legalis monetae Angliae solvendis eidem C.D. ad Festum Sancti Michaelis Archangeli anno Regni Regis &c. Et nisi fe∣cero, concedo quod currat super me et haeredes meos districtio et Poena pro∣vis. in Statut. Domini Regis edit. apud Westm. Dat. apud Lond. die &c. anno &c.

Or otherwise thus:

NOverint Universi per praesentes me. R. D. de M. in Parochia de B. in Com. W. Gen. Teneri et per hoc praesens scriptum de Statut. Mercator. firmiter Obligari H. M. de C. in Comitatu Civitatis L. Ge∣neros. in quingentis libris bonae et legalis monetae Angliae solvend. eid. H. M. aut suo certo Attornato, Executoribus et Assignatis suis in festo &c. Et si non fecero, volo et concedo quod currant super me, haeredes, Execu∣tores et Administratores meo••, Districtiones et poenae praemissae in statut, ••dit, in Parliament. Domini Edwardi primi, quondam Regis Angliae apud Acton Burnell, pro debitis mercatorum Recuperand' Dat.

In English thus:

MEmorandum, That R. T. of H. in the County of K. Esq (such a day and year) came before our Lord the King in his Chancery at Westminster personally constituted, and then and there acknowledged, That he did owe &c. to E. F. of C. in the County of L. Gent. and S. H. of D. in the said County of L. Gent. &c. five hundred pounds of lawful money of England, to be paid to the said E F. and S. H. or to their certain Attorney, Exe∣cutors or Assigns, on the Feast of St. &c. next coming after the date of these presents. And if he shall fail in the payment of the aforesaid summe of Money at the Feast aforesaid, that then the said R.T. for himself, his Executors and Assigns, willeth and granteth, That the said summe of money shall be levied of his Lands and Tenements, Goods and Chattels to the use of the said E.F. and S. H. their Executors and Assigns. Witness our said Lord the King at Westminster the day and year above mentioned.

And these kinds of Statutes, although at first ordained and used for Merchants onely, yet at this day it is and may be used by any others, and it is become one of the most frequent and usual assu∣rances in the Kingdom.

2. The Staple doth signifie this or that Town whither the Mer∣chants by common order and command do carry their Commo∣dities, as Wooll, and the like, to vent and utter by the great or whole-sale.

The Statute-Staple is either properly or improperly so cal∣led.

That which is properly so called is a Bond of Record, acknow∣ledged before the Mayor of the Staple in the presence of one of the two Constables of the same Staple, and sealed with the Seal of the Staple, and sometimes also with the Seal of the party, which it seems is not absolutely necessary: This was devised and used only for Merchants and Merchandizes of the same Staple, and is foun∣ded upon 27 E. 3. Stat. 2. Co. super Litt. 289. But this now may be used by Merchants or any other for the payment of debts, or assurance of Lands or other things, and is of the same nature with the Statute-Merchant.

A Statute-Staple improperly so called, is an Obligation of Re∣cord founded upon the Statute of 23 H. 8.6. and is in the nature

of a Statute-staple, and of the same force: This is and may be ac∣knowledged before one of the Chief Justices, and in their absence before the Mayor of the Staple at Westminster, and the Recorder of London. It is sealed with three Seals, viz. the Seals of the Conusors, the King and one of the Justices; or else the Mayor and Recor∣der.

The Form of it is thus:

Noveritis, &c. me A.B. teneri C.D. in mille libris, solvend. eidem ad Festum sancti &c. Et si defecero in solutione debitī praedicti, Volo & Con∣cedo quod tunc currat super me, Haeredes et Executores meos meos Poena in Statuto Stapulae debit. pro Mercandisis in eadem emptis recuperand. or∣dinat. et provis. Dat. &c.

Or thus;

Noverint Universi per praesentes nos A.B. C.D. teneri et firmiter Ob∣ligari, J.S. in mille libris sterlingor', solvend. eid. J.S. aut suo certo At∣tornato, hoc script. ostend', Haeredibus vel Executoribus suis in festo &c. proxime futur. post. dat. praesentium; et si defecerimus in solutione debiti praedicti, Volumus et concedimus quod tunc super nos et quemlibet nostrum Haeredes et Executores nostros poena in Statuto stapulae de debit' pro Mer∣candisis in e••d. emptis recuperand. ordinat. et provis. Dat. &c. Anno Regni &c. Vide Stat. 23 H. 8.6. Cro. 1.326. Co. 2. Inst. 678.

There are divers other Recognizances taken and acknowledged before the Lord Chancellor, Master of the Rolls and others, as the Justices of the one and the other Bench, Barons of the Exchequer, Judges of the Circuits, Justices of the Peace and Sheriffs: some whereof are by the Common-Law, and some by certain Statutes. And amongst these some are without Seal and recorded onely; and some are sealed and recorded also. Some of them are in the na∣ture of Bayl, and some of them are given to the King, and both these are of the nature of the former kind of Recognisances; which we will not meddle with, but onely those made to subjects and for the payment of money, or the doing of some other thing by one subject to another, wherein he that doth enter into the Statute or Recognisance is called the Conusor or Debtor; and he to whom it is made, is termed the Conusee.

For the better understanding of matters relating to those things, we are to observe, That the forementioned Statutes are much of the nature of a Judgment had upon a Suit in the Kings-Bench or Common-Pleas, and therefore are called Pocket-Judgements.

2. That if the Writing be not as good as a Statute, it will not be good to any purpose: for if void as a Statute, it will be void as an Obligation. Cro. 3.319.494.

3. That a Statute first acknowledged shall be preferred before a Judgment after had: So that if a man acknowledg a Statute, and after confess a Judgment, and the Land be extended on the Judge∣ment, the Conusee shall have a Scire facias to avoid the Extent upon the Judgment: And yet a Judgment had in a Court of Record shall be preferred in case of an Executor before a Statute, and the Executor is to satisfie the Judgment before the Statute. And it is held per totam Curiam, That be the Judgment first or last, it must be first satisfied. Co. 6.45. in Higgons Case. Plowd. 32. Pemberton and Bartons Case. Co. 4. in Sadlers Case. Dyer 80.

4. If one owe me a Debt upon a Statute and dye, his Executor or Administrator must see me paid this debt, before ••e pay any debt to a Subject upon a Bond or for Rent, or upon a single or simple contract: it must be paid next after Debts upon Judge∣ment.

5. All Statutes Merchant and of the Staple are to be brought to the Clerk of the Recognizances within four moneths, and to be en∣rolled within six moneths, otherwise they will be void as to pur∣chasors, 27 Eliz. cap. 4.

6. That a Statute or Recognisance if it be obtained upon an Usurious contract, or of purpose to deceive men in the purchase of their Lands, or for the obtaining of their just debts, they will be void or voidable by this. Cro. 2.67, 425.

7. That if two do acknowledge a Recognisance or Statute of 1000 l. quilibet eorum in solido, this will be joynt and several, and the Conusee may have several Scire Facias's upon it. And it is said that a special Recognisance may by express words bind the Lands of the Conusor in one County only. Co. 2. part, Inst. 395.

8. If a Statute Staple be not sealed with the Seal of the party that doth acknowledg it, yet it seems to be good enough, for the Statute doth not require it: But a Recognisance within the Stat. of 23 H. 8. cannot be good, except the Seal of the party be to it; for so are the words of the Statute: by three Justices of the Common-Pleas, Trin. 22 Jac.

9. If a Statute be made to two, and one of them come with it, he shall have Execution in both their names. And it is the com∣mon

course, that any stranger that comes with a Statute may have Execution of it in the dame of the Recognisee: And if after the death of the Recognisee a stranger come in his own name and shew the Statute, he shall have Execution of it, though (as we said) the Conusee himself come not in person.

10. If the Conusor of a Statute Merchant or Staple, &c. be taken and he dye in Execution; yet the Conusee shall have Exe∣cution of his Lands and Goods: Or if the Conusor in Execution escape, his Goods and Lands shall be taken and executed upon the Statute; For the action given to the Conusee against the Sheriff for the Escape, is not a satisfaction. Co. 5.86, 87. Fitz. 246.

11. A Writ of Extent was awarded in the time of Queen Mary, returnable Quindena Martini, the Writ executed by Inquisition in the life of the Queen; but before the return the Queen dyed, and yet it was returned, and a Liberate granted in the time of the next Queen. In this case, it was doubted by the Court, That the Ex∣tent was not well returned. Dyer 205.

12. In a Scire facias upon a Recognisance, Joynt-Tenancy is a good plea to abate the Writ; and if it be upon a Judgment to have Execution, it is a good barr that the Plaintiff hath assigned his da∣mages to the King, although the King have not levied: So also it is a good barr to say that the Sheriff hath levied the money by Fieri facias, albeit he hath not returned the Writ. Moores Rep. 671, 693.

13. If an Extent be sued by an Executrix upon a Statute made to her Testator, and she dye before the Inquisition taken; this Inqui∣sition may as it seems be taken after her death: and an Admini∣strator de bonis non administratis, of the Testator, upon this Extent sued by the Executrix, may have a Liberate, and shall not need to begin again and have a new Certificate, and a new Extent and Li∣berate, Cro. 1.326.

But this shall suffice as to those Particulars. I will now shew you what is liable to Execution upon a Statute or Recognisance, and when and how. Wherein take notice,

1. That when a man doth enter into a Statute or Recognisance, the Land of the Conusor is not the debtor, but the Body: And the Land is lyable onely in respect that it is in the hands of the Conu∣••or at the time of the acknowledging of the Statute or afterwards: and the Land is not charged with the debt, but chargeable onely, at the election of the Conusee: but the person is chargeable, and the Land in respect of the person. And therefore although the Co∣nusor

alien his Land to another, yet he remains debtor still, and his body and goods shall be taken in Execution. Plow. 72.

2. That the body of the Conusor himself, (but not the body of his Heir, Executor or Administrator) is lyable to Execution, and may be taken, although there be Lands, Goods and Chattels to sa∣tisfie the debt.

3. That all the Demesne Lands, Tenements and Hereditaments corporeal and incorporeal of the Conusor that are grantable over, as his Mannors, Messuages, Lands, meadows, Pastures, Woods, Rents, Commons, Tythes, Advowsons and the like; also his Goods and Chattels, as Leases for years, and all his Emblements, Cattel, Housholdstuff and the like, and Wardships when they were in being, are lyable to Execution upon a Statute. But Annuities, Offices in Trust, Seigniories in Frank-almoigne, Homage, Fealty, Right to Land, things in action and such like are not liable to such Execution. Co. 3.12. Plow. 72. Co. 2.59. Litt. Sect. 318. Dyer 7.205. Co. on Litt. 174. Doct. & Stud. 53. Co. 2. Part. Inst. 397.

4. All the Lands, Tenements and Hereditaments which the Conusor had at the time of the Recognisance entred into or at any time after, in whose hands soever, or by what means soever the same are come at the time of the Execution, shall be subject and lyable to the Execution. But the Lands which the Conusor had and did put away before the time of the Statute or Recognisance entred into are not lyable: And all the Goods and Chattels the Conu∣sor hath or are found in his hands at the time when the Execution is to be made by Extendi facias are lyable: But the Goods and Chattels he had and did bona fide do away before the time of Exe∣cution done, are not lyable to the Execution. Co. 3.12.

5. The Conusee upon other Recognizances shall have the same things in execution as a man shall have after a Judgment in a Suit in the Kings-Bench or Common Pleas, by Fieri facias or Levari facias, all his Goods and Chattels, and by Elegit the moiety of his Lands and all his Chattels, besides the Cattel of his Plow and Im∣plements of Husbandry: But in these cases he cannot take the bo∣dy of the Conusor in Execution, unless it be upon a new Suit, or in case of Bayl in the Kings Bench. Plow. 72. Co. 3.12. Dyer 306.

In the next place I will shew you the Method how a Statute or Recognizance is to be executed, and all the proceedings thereup∣on. Wherein observe,

That Recognisances are of two sorts: 1. Such as are usually

taken in the Kings Courts of Record at Westminster. 2. Such as are in the nature of a Statute staple by the Statute of 23 H. 8.

The proceedings upon the Statute Staple and the Recognisance founded on the 23 H. 8. aforesaid, in the execution thereof are in the same manner as the proceedings in the Statute Merchant, which I mention hereafter; but with these differences:

1. Upon the execution of the Statute-Merchant there issues forth a Capias against the Body before any execution be made of the Lands or Goods and Chattels; and the Lands and goods cannot be extended till a quarter of a year be past after the Body is taken, or the Sheriff have teturned a Non est Inventus. But upon the exe∣cution of the Statute-Staple and the Recognisance, the Body, goods and Lands may be taken altogether at once.

Then secondly, Upon a Statute-Merchant one may have an Action of debt, but otherwise it is of a Statute-staple.

And thirdly, The Capias upon the Statute-Merchant may be re∣turnable in the Kings-Bench or Common-Pleas; but the Writ of Exe∣cution upon the other is to be returnable in Chancery. F.N.B. 130, 131. Co. on Litt 290.

Fourthly, That in a Statute-Staple, presently after the Certificate into the Chancery, the Conusee shall have a Writ to take his body and extend his Lands and Goods returnable in Chancery, which is a Commission directed to the Sheriff of the County where the Goods and Lands lye, for the valuing thereof, whereby they shall be apprised at a reasonable rate by a Jury of sworn men impanel∣led by the Sheriff for that purpose; which Inquisition returned by the Sheriff, he may take and deliver the Lands and Goods to the Conusee; To hold the same till he be satisfied of his debt and da∣mages: or if he refuse, the Conusee may force him to it by a Libe∣rate. Dyer 180. Co. 4.67.

The proceedings upon a Statute Merchant are, That the Conu∣see may if he please bring his Statute to the Mayor, Clerk, or other Officer before whom it was acknowledged, and there if they find the record of it, and the day to be past for the payment of the mo∣ney, they are to apprehend and imprison the body of the Conusor if he be a Lay-person, and can be found within their Jurisdiction. And if he cannot be found then, they are to certifie the Record into Chancery. And this they may be compelled to by Certiorari, if otherwise they refuse to do it. And upon a Nihil returned upon a Testatum est, he may have process into another County; but otherwise it is of goods: And if that Certificate be faulty, or Exe∣cution

be not done upon it by reason of the Conusees death or otherwise, the Conusee or his Executor or Administrator may have another Certificate, and thereupon he shall have a Writ of Capias out of the Chancery directed to the Sheriff of the County where the Conusor lives to apprehend and imprison him (if he be not a Clergy-man) and this to be returned into the Kings Bench or Common-Pleas. And when the Conusor is taken he shall have time for a quarter of a year to make his agreement with the Conu∣see, and to sell his Lands or Goods to satisfie him. And to that purpose he himself may sell his Lands and Goods, although he be in prison, and the sale thereof will be good and lawful. But if in that time he do not satisfie the Conusor, or if upon the Capias the Sheriff return a Non est inventus, then by another or divers Writs (if the Lands and Goods lye in divers Counties) called, Extendi facias to all the Sheriffs of the Counties where he hath Lands, whereby they shall be commanded to extend his Lands and goods, and to deliver the goods to him, and the Lands To hold to him and his heirs till the debt be levied or paid. And this Act of the Sheriff and Jury upon this Writ is called an Extent. And if the Sheriff or Apprisors upon the Extendi facias over-value the Lands or Goods in favour to the debtor, the Conusee hath no remedy but by motion in that Court where the Writ is returnable at the Return day, or at least the same Term, to desire that the Apprisors may take the Lands or Goods at the rate they have valued them, in the same manner as the Corusee is to have them. And a Sale made of Goods in this case by the Sheriff is as strong as if it were in Market-overt. And when the Conusee is in possession of Lands by such an Extent as before, then is he Tenant by Statute; And after the Conusee is once setled in peace in the Lands extended, he shall hold them till he be satisfied his debt, and his reasonable costs and damages for travel, suit, delay and expence. See for this, Dyer 299. Co. 5.87. F.N.B. 130. Co. on Litt. 290. Co. 2. Part, Inst. 395, 396.

The proceedings upon the other kinds of Recognisances are af∣ter another manner. For upon Recognizances at the Common Law, if the money be not paid at the day, the Conusee, his Execu∣tor or Administrator is to bring a Scire facias against the Conusor; or if he be dead, against his heir when he is of full age; or if the Lands the Conusor had at the time of entring into the Recogni∣sance be sold against the Purchasors of them, which the Conusor had at any time after the Recognisance entred into, to warn them

to come into the Court, whence the Scire facias issued, to shew cause why Execution should not be made upon the said Recognisance: and if the party or parties cannot be sound to be warned, or being warned do not appear at the time; or appearing do not shew cause why the debt should not be levied: In this case the Conusee shall have Execution of his moiety by Elegit, or if the Conusor be li∣ving, of all his Goods by Levari or Fieri facias at his Election; but he may not have Execution of his Body, unless he bring an Action of Debt upon the Recognisance (as in this case he may do) or it be by the course of the Court, as it is in the Kings Bench on a Bayl, wherein a Capias doth lye. Dyer 315, 360, 366.

The proceedings against the Sureties upon Statutes are to be in the same manner as the proceeding against the Principal: And yet where the Principal hath moveables to satisfie the debt, the Surety (as it seems) is not to be charged.

I will Illustrate this matter in the next place with some few Ca∣ses. And first,

1.

Tenant by Elegit upon Judgments and Recognisances, is to hold the Land until he be answered his debt without his costs and Mises, &c. But Tenant by Statute Merchant, Statute-Staple, or by Re∣cognisance in nature of a Statute-Staple, is to hold the Land, &c. untill he be paid his debt together with his Mises and Costs. Co. 2. part, Inst. 678.

2.

In case where Extenders upon Elegit, or other Writ of Execu∣tion or upon a Recognisance in Court, do extend the Land too high, they shall not be forced to take it at the rate as the Extenders of Land for Execution upon a Statute-Merchant, Staple or Re∣cognisance in nature of a Statute-Staple shall be. Bendloes Rep. 15. Co. on Litt. 290. Yelverton 55.

3.

If one seised of White-acre, Black-acre and Green-acre enter into a Statute or Judgment against him, and then he enfeoffeth A. of White-acre, and B. of Black-acre, and keep Green-acre to him∣self;

in this case the Conusee or Plaintiff may have his Execution upon the moiety of Green-acre, and not meddle with the other two Acres if he please; but he may not in such case extend a moie∣ty only in the hands of both the purchasors, but he must extend a moiety in the hands of both the purchasors, and of all the rest of the Land subject to the Execution, for if he leave out any 〈◊〉〈◊〉 it, the party grieved thereby will have his remedy, and avoid the Execu∣tion by Audita Querela: for where the Books say each purchaser shall have contribution in that case, it is intended, that such extent shall be avoided of that part and all the Land shall be extended and equally charged. And so it is in this case, where Green-acre shall descend to an heir, there the Conusee may extend onely the moie∣ty of this Acre in the hand of the heir, and not meddle with the two Acres in the hands of the purchasors, if he please. But where there be two or more Conusors in a Statute, &c. there the Lands of them all, and not of one of them, are to be extended. Co. 2. part, Inst. 396.

4.

If two persons recover against one in debt severally, and he that hath the first Judgment sues an Elegit, and hath the moyety of the Land in Execution, and then the other sues an Elegit, In this case, he that last sueth shall have but a moyety of the moyety that is left, Cro. 3.482.

5.

If the Conusee on a Statute or Recognisance in nature of a Sta∣tute, receive his whole debt by the Land, yet may not the Counsor enter; but where upon an Elegit he is satisfied, there the Conusor may enter on his Land. Co. 2. Part. Inst. 600.

In the last place, I will give you the Statutes concerning this matter.

Westm. 2. cap. 46. For all things recorded before the Kings Ju∣stices, or contained in Fines, (whether Contracts, Covenants, Ob∣ligations, Services or Customs acknowledged, or any other things enrolled) a Writ of Execution shall be within the year, so as the parties shall not need to plead, &c.

Stat. de Acton Burnell, 11 E. 1. A Debt acknowledged to a Mer∣chant before the Mayor of London, York or Bristol or before a Mayor or Clerk, (appointed by the King thereunto) shall be enrolled. And if the Debtor fail of his payment at the day, the Debtee or his Executors may call for Execution, and upon notice thereof to the Mayor and Clerk, they shall cause his Chattels and Moveables to be sold as far as the debt doth amount by Apprisement of honest men, and the money without delay shall be paid to the Creditor; and in case they cannot sell them, they shall cause so much of the moveables to be delivered to him as amounts to the debt, and the Kings Seale shall be put to the sale and deliverance; and if the Debtor have no moveables within the Mayors Jurisdiction, then shall the Mayor send the Recognisance unto the Chancellor under the Kings Seal, and the Chancellor shall thereupon direct a Writ to the Sheriff in whose Bayliffwick the Moveables of the Debtor be, who shall proceed therein as the Mayor might have done if the Moveables had been in his power. If the Apprizors set too high a value on the things that are to be sold, they shall be com∣pellable to take them at the same prices, and shall forthwith be answerable to the Creditor for his debt. And albeit the moveable Goods are sold for less than they are worth, yet is the Debtor with∣out Remedy, and it shall be imputed to his own folly, that he would not sell them himself while he might. And if the Debtor have no moveables whereon the debt may be levied, he shall be imprisoned and there remain, till he agree with his Creditor; and if he be in want, the Creditor shall find him bread and water, which the prisoner shall also satisfie before he be inlarged. And if it be a Merchant Stranger that is Creditor, he shall be satisfied for his stay about the business: And if the Debtor have Sureties, they shall be proceeded against in like form as is before declared against the Debtor: howbeit so long as the Debt may be levied of the goods moveable of the Debtor, his Pledges or Mainpernors shall be without damage.

Stat. de Mercatoribus, 13 E. 1. A Debt acknowledged to a Merchant before the Mayor of London, or Chief Warden of a Town which the King shall appoint, or other sufficient Men, when they cannot attend, and before a Clerk which the King shall as∣sign, shall be enrolled; and if it be not paid at the day, the Debtor ••f he be a Lay-man shall be imprisoned by the Mayor till, &c. if

he be within their power, else by Writ out of the Chancery upon Certificate of a Recognisance thither. And if he agree with the Creditor within a quarter of a year after, then all the Lands which were the Debtors the day of the Recognisance made, and also his Goods shall be delivered to the Creditors upon a reasonable ex∣tent: And of these Lands so delivered, the Conusee being ousted, shall have an Assise or Redisseisin.

The Writs out of the Chancery shall be returnable before the Justices of either Bench, and upon a Non est inventus returned, or that he is a Clerk, Writs to all the Sheriffs where he hath Lands or Goods shall go forth to deliver the same upon reasonable extent, and to what Sheriff he will to take his Body.

The like process shall be against the pledges, if the money be not paid at the day.

If the debtor or pledges dye, the creditor shall have Execution upon the Lands of the heir at his full age.

Magna Charta, cap. 8. The King shall not take the Lands or Rents of the debtors, if he have sufficient Chattels.

Magna Charta, cap. 18. The goods of the Debtor may be atta∣ched after his death by the view of lawful men, that nothing shall be medled with till the Kings debt be paid.

Stat. 27 E. 3. cap. 9. The Mayor of the Staple shall take Recog∣nisance of debt before himself, and the Constables of the Staple, whereupon default of payment being made, the debtors Body shall be imprisoned, and his goods sold in satisfaction, (if they be with∣in the Staple) else upon a Certificate into the Chancery, a Writ shall go out from thence to imprison their Bodies and seize their Lands and goods, which shall be returned into the Chancery, and Execution thereupon in all respects as in the Statute-Merchant 〈◊〉〈◊〉 save that the debtor shall have no advantage of the quarter of a year.

Stat. 5 H. 4. cap. 12. A Statute being once shewed in the Common-Pleas, and the process afterwards discontinued, yet Execution may be afterwards awarded without shewing it again.

11 H. 6. cap. 10. He that is in prison upon a Recognisance shall not be delivered out of prison upon a Scire facias against the party and surety thereupon found to the King alone, but shall find Sure∣ties severally as well to the King as to the other party.

Stat. 23 H. 8. cap. 6. Either of the Chief Justices, or in their ab∣sence out of the same Term, the Mayor of the Staple of Westminster with the Recorder of London may take Recognisances; And they shall be executed in all respects as a Statute-Staple.

Stat. 27 Eliz. cap. 4. Every Statute-staple or Merchant not brought to the Clerk of the Recognisances within four moneths next after the acknowledging, to enter a true copy thereof, shall be against all persons, their heirs, successors, executors, administrators and assigns onely, which for good consideration shall after the ac∣knowledging of the same statute purchase the Land or any part ly∣able thereunto, or any Rent, Lease or profit of it.

Stat. 33. H. 8. cap. 39. All Obligations to the King shall be of the force of a Statute-staple.

If the Owner of goods sell his goods after the Teste of the Ex∣tent, and before the Inquisition taken, yet the Sheriff may seise and extend them. Mores Rep. Case 72.

Of a Dephesance.

A Defeasance, which doth infectum reddere quod factum est, signi∣fies in our Law nothing but a Condition annexed to an Act, as to an Obligation, Recognisance, Statute or Judgment, which being performed by him that is bound and chargeable by the Act, the Act it self is disabled and made void, as if it had never been made or done: And this is more peculiarly and properly applied to such conditional Instruments as are made in avoidance of Sta∣tutes and Recognisances at or after the time of entring into the same: It differs from a Condition in this, That a Condition is al∣wayes made at the same time with the Deed, and commonly either annexed to it, or inserted in it: But a Defeasance is alwayes made in a Deed by it self, and for the most part after the Original Deed is made, or Act done to which it hath relation. Wherein ob∣serve.

That all such things as are executory being created, may by con∣sent of all the parties to the creation of it, be defeated; so amongst others, Bargain and Sales, Statutes, Recognisances and Judge∣ments: For it is a rule. That in all Executory things that are made or created by Deed or Record, the same thing by the consent of all the parties may in the like way be defeated and avoided. Nihil est tam conveniens naturali aequitati quam quod unumquod{que} dissolvatur eo ligamine quo ligatur. Co. upon Lit. 236. Plow. 193.237. Co. 1.112, 113.

To make a good Defeasance, these things are necessarily requi∣red:

1. That if it be eodem mode, it must be avoided by some act or

instrument in Writing, as it was created: and therefore a Parol agreement to avoid a Statute will not be good. It must therefore be by Deed, but whether it be indented or Poll is not material, Co. 1.14. Broo. Defeasance 13. Plowd. 393.

2. That if it recite the Judgment or Statute, (which is very fit, though not absolutely necessary) care must be taken to reci•••••• ve∣ry exactly: for if a Defeasance be made of a Statute or Recogni∣sance made 1. Maii, and it be recited to be made 10. of Maii it will be void; so if it recite a Judgment, as of Hillary Term, and in truth it was in Easter Term. Plowd. 393. Co. 1.113.

3. It must be made between the same persons that were partie•• to the Original Deed. 14 H. 8.10. Broo. Estrange al fait 10. And ye•• if a Statute be made to the Husband and Wife, and the Husband alone joyn in making the Defeasance. This shall be a good De∣feasance. Broo. Defeasance 3.

4. That it be made of a thing defeasible, and so is a Judgment, Statute or Recognisance; and so it may be agreed to be upon pay∣ment of a less summe than that mentioned in the Statute or ••udge∣ment, or by the not disturbance of the execution of the Will of S or by the making of a good Estate in Land, or the quiet enjoyment of Land bought or the like. Fitz. bar. 71.20 H. 7.24. 21 H. 7.32.

5. And it is best done before the execution of the Statute, &c. yet if the Defeasance of a Statute come after the Execution and be thus, [That if the Conusor pay so much money, then the Statute shall be void] It is best to adde these words in the Defeasance, [That then tho said Statute and the execution thereof shall be void. Broo. Defeasance 7.]

And thus it seems, a Defeasance may be after a Defeasance, or one Defeasance after another: and regularly in that case the last will stand. Pasch. 8 Jac. C. B. agreed.

Of an Audita Querela.

Audita Querela is a Writ lying where one is bound in a Statute Merchant, Staple or Recognisance, or where a Judgement is given only for debt or damages, and the party in Execution for any debt or duty in any such case, and he hath a release or some other sufficient discharge of all or part of the duty, or some other matter to say in avoidance of the Statute or Judgment, but hath no day in Court to plead it, nor means to make use of it; In this case he may have this Writ, which is in the nature of a Commission to

examine the equity of the case, and give relief to the party in dan∣ger by the extremity like to befall him from the rigour of the Law in it. Co. upon Lit. 290. Cro. 2.646.

The proceedings herein are most properly in Chancery; And there first by Venire facias, with an Alias, and as some say by Pluries upon a Nihil returned: And if the Defendant do not then appear, by a Distringas ad audiendum Judioium; and upon default herein, a Judgment is given: And upon Bayl given to prosecute and stand to the Judgment, he may have a Supersedeas to stay Execution: But after Execution there goes a Scire facias, and no Supersedeas may be had: And this is not returned into the Chancery, but where it is grounded upon a Record in Chancery as a Statute and the like. And no man by this may get himself to be Bayled in case of a Habeas Corpus upon a bare surmise only, but by proof of witnesses in wri∣ting. Dyer 339. F. N. B. 104. Cro. 3. part, 308. Broo. Aud. Quer. 41.

Upon the Statute Staple the course is to have the Audita Querela to the Chancellor: But upon the Statute Merchant it is to be di∣rected to the Justices de Banco, Dyer 332.

In this Suit, the Nonsuit or Default of any one of the Plaintiffs shall not hurt another. Co. 6.25.

This Writ will not lye upon a bare surmise onely, Dyer 232. Cro. 2. 579, 694. But it lyeth for the party himself against whom the Judgment is given, and against whom the Statute is made, or for his Heir, Executor or Admioistrator, or either of them upon whom the charge is come or coming.

If my Ancestor to whom I am heir hath entred into a Recogni∣sance, and the Sheriff after his death extend my Land, or a Rent out of it, I being within age; by this Writ I may avoid the Ex∣tent: so that by this the Infant may avoid not onely his own sta∣tute, but also the extent of the Statute of his Ancestor. Mores Rep. Case 121.

If a Statute be taken by one that hath no power to take it, and af∣ter the Conusor doth enfeoff a stranger of the Land, and the Conu∣see sueth Execution on the Statute, the Feoffee may have this Writ to avoid Execution. Dyer 35.

If an Obligee have a Judgment against the heir of the Obligor and his Land in extent, and the Obligee assign away his Estate in it to a stranger, and after the heir get a Release of this Judgment from the Obligee, he may have this Writ against the Assignee. Ad∣judged Pasch. 7 Jac. B. R. Flowers Case.

Note: An Audita Querela is not returnable in Chancery, but in 〈…〉〈…〉 it is grounded upon a Record in Chancery as a Statute,

&c. And it seems none are to be baffled upon a Habeas corpus by Audita Querela upon a Surmise, but it must be proved by writing. In Trinity Term 14 Jac. B. R. One Pierce was brought in upon a Habeas Corpus and Surmise, That Mosten had recovered in B. R. against Morris in debt upon a Bond, had Judgment against Morris the principal, and a Capias ad Satisfaciendum against him, and after that another Capias against Peirce the Surety, which came in upon Habeas corpus, and brought an Audita Querela and surmised pay∣ment by the principal: And Bayl was denyed him by the Chief Justice, nullo contradicente.

This Remedy is given most properly where the Statute is not good, as where it wants a Seal or the like: for in cases where the Statute is good, and the proceed in the execution of it is erronious onely, there the relief is properly by Writ of Error. Cro. 3.319, 494. In all cases therefore where this remedy is given, it is requisite that these three things be in the case.

1. There must a charge or burthen come or coming upon him that is to have it.

2. It must be such a charge or burthen as that whereof by Law he ought to be discharged and disburthened in all or in part.

3. It must be in such a case as wherein he hath no other way to relieve himself. And therefore it is used and had sometimes to avoid a Judgment and the execution thereof, or to avoid a Statute or Recognisance: As if a Judgment, or Judgment and Execution be had against me, and the Plaintiff in facto release me of the debt; or I be released of it, or of part of it by Law, and yet he sueth Executi∣on out against me for the whole; I may have may relief by this way. So if a Judgment be had against me and another for one debt, and one of us is taken in Execution, and after either of us get a dis∣charge in fact or in Law of the debt, both or either of us must have relief by this way. Pasch. 40 Eliz. C. B. Monke and Brown. Co. 8.152. Plow. 72. Dyer 50.

If the Conusee of a later Statute extend Lands of the Conusor in one County (having Lands in two Counties) and after this the Conusee of a former Statute doth extend the moyety of the Lands in the other County onely: the Conusee of the later Statute may have this action against him, for he ought to have sued out his Exe∣cution upon the Lands in both Counties. Cro. 3 part, 797.

If a Statute be delivered to a stranger to keep, till certain condi∣tions be performed, and he deliver it to the Conusee, or he get it by fraud from him before the conditions be performed; In this case he may be relieved by this Writ. Fitz. 15.16.

If one be Bayl for another for a debt in the Kings-Bench accord∣ing to the course there, and the principal dyes, not paying the debt, nor rendring his Body, and upon a Scire facias and two Nihils against the Bail, he is taken in Execution, he may be relieved by this Writ: for the Bayl is not to be charged till some default be in the Principal to yield himself, &c. but now he being dead, the Bayl is discharged. Goldsb. 174. Cro. 2.645.

In case where one man is chargeable alone towards a Judgment or Statute, and others are to be contributory: as where the Co∣nusor hath sold his Land to divers Purchasors, or a Judgment is had against one, who doth leave his Land to divers heirs, if one of the Purchasors or one of the Heirs alone be or be like to be char∣ged, he may by this force the rest to be contributory to the charge: and if any one of them have a Release or other good discharge, this as it seems will discharge all the rest. But if one after he hath entred into a Statute or Recognizance do convey part of the Lands away and keep the rest, and Execution is sued of the Lands in his hand onely against him or his heir, they shall have no contribution from the purchasors. And yet if any of the purchasors be sued, he shall have contribution against the Conusor, his heir and the rest of the purchasors. Co. 2.92. Dyer 322. Moores Rep Case 607, 700.

A being in Execution was suffered to go at large, and afterwards 〈◊〉〈◊〉 was taken again in Execution, whereupon he brought his Audita Querela. and while he was at large he paid the money, as he proved by witnesses sworn; whereupon it was adjudged, That the Audita Querela did well lye. Mich. 27 Eliz. C. B. Cro. 3. part, Reynells Case.

We might here say something in like manner of Mortgages, Lea∣ses and the like, but the proceedings therein have so near a resem∣blance, when they are to be extended, that I will pass them over in this place; and the rather, because the former parts contain ma∣ny Presidents of them. I will therefore only give one short Dis∣course of Distresses, and so finally conclude this Work.

Of Distresses and Replevins.

DIstress, is the taking away of one mans Chattels for a Trespass done, Rent accrued or in arrear, and the like: Of which some things are levyable; Others cannot be distrained. For which ob∣serve;

That a Cart full of Corn, 2 H. 4.15. a Fold of Sheep, &c. 20 E.

4.3. a Mill-stone, 14 H. 8.25. &c. if it be not part of the Mill, though it be fixed to a piece of Timber with nayles; Windowes and Doors when they are removed off of the books: But a Mill-stone though it be lifted up to be picked and beaten, yet so long as it lyeth upon the other stone remaineth parcell of the Mill and cannot be distrained. No more can Windowes and Doors hang∣ing upon the hooks, though they be removeable; but this must be found upon the same Land a man holds: but in other Lands not holden of him, he cannot distrain, except it be by the Tenants grant. If Dismes be let reserving a Rent, they cannot be distrain∣ed for the Rent, no not when they are severed from the nine parts, in as much as there is no distress but upon Land in demesne.

The King may distrain in another Land of the same mans for his Seigniory or Rent-charge, but so shall not the Grantee, 9 H 6.9. is, That a common person cannot distrain for his Seigniory but in the Land holden of him, except it be by his Tenants grant: But the King may in any place.

13 E. 4.6. That the King for his Services or for a Rent-charge may distrain in all his Tenants Lands; but so shall not the Kings grantee.

Stat. Marlb. cap. 15. Distresses shall not be taken in the Kings High-way or common-street, but by the King or his Officers, ha∣ving special authority.

Stat. Artic. Cler. cap. 9. Nor in the ancient Fees of Churches.

The Distress being put in pound overt, or open pound, that is some place where the owner may lawfully come at them, as if they be things that have life to give them meat, &c. he that distraineth shall not be charged, what hurt soever they receive; for quick Cat∣tel must be put in pound overt, that the Owner may give them sustenance; but dead need not: But if they be marred in his de∣fault that distraineth, he shall answer for them.

Stat. Marlb. cap. 4. None shall lead distress out of the County where they were taken. The Neighbour that doth it to his Neigh∣bour shall be fined. The Lord that doth it to his Tenant shall be amerced.

1 & 2 P. & M. cap. 12. No distress of Cattel shall be driven out of that Hundred, Rape, Wapentake or Lath, where it was taken, except to a pound overt within the Shire, not above three miles from the place where it was taken. No Distress taken at one time shall be impounded at several places, whereby the Owners shall be constrained to sue several Replevins; the penalty of both these

five pounds and treble damages. No person shall take above four pence for the poundage of any whole distress impounded: and where less hath been used, there to take less upon pain of 5. pounds, and loss of the money he hath taken above four pence, any Prescrip∣tion notwithstanding to the contrary.

Bare Hereditaments that may be distrained for, are a Seigniory and Rent-charge.

Seigniories are Services whereby Lands are holden: and Servi∣ces are common to all certain Estates, or proper to Inheritances.

Replevins are of two sorts.

1. Homine Replegiando, for one imprisoned, or in Prison detain∣ed where he should not; as being Baylable or claimed as a Villain, F.N.B. 66. or inward, F.N.B. 67. where indeed he is Franke out of Ward.

2. A Replevin for Goods or Chattels distrained, which accord∣ing to the nature of the Plea ministred by the parties groweth to be either a real or personal Plea; as upon property claimed, then it is personal; if the Defendant avow the taking for Services or Rent behind, &c. then it becometh real, &c. and as strong as a Praecipe quod reddat, in as much he is to have a return. And therefore he shall in that case have aid before any Plea pleaded as in a Praecipe quod reddat; and this may be both by Writ and Plaint in any Court Baron, F. N. B. 70. as well as in the County Court. And being by Plaint, though in the County Court, it shall not proceed if any touching the Freehold come in question; as if the Defendant avow∣ing for damage Feasant, the Plaintiff justifieth by reason of Com∣mon of Pasture.

Stat. Marlb. cap. 21. The Sheriff may replevin Beasts not one∣ly without, but within a Liberty also, if the Bayliff of the Liberty will not.

Stat. Westm. 2. cap. 2. The Sheriff or Bayliff shall take Pledges of the Plaintiff not onely de prosequendo before they make delive∣rance of the Beasts, but of returning the Beasts if a return be adjudg∣ed; he that taketh pledge otherwise shall answer the price of the Beasts.

Upon a Return awarded to the Defendant, the Writ de Returno habendo shall have this Clause, (That the Sheriff shall not deliver them without Writ, wherein mention shall be made of the Judge∣ment). And thereupon the Plaintiff (if he will) may have a judicial Writ to the Sheriff to deliver him the Beasts.

Upon a Return awarded, after which if a Return another time be awarded, there shall be no more Replevins. And if upon his default a second time, or otherwise the Defendant be adjudged to have a New Return, the Distress shall remain irreplegiable.

Stat. 1 & 2 Phil. & Ma. cap. 12. Every Sheriff of a Shire, (be∣ing no City) shall at his first County day, or within two moneths after the receit of his Patent, proclaim in the Shire Town four Deputies at the least, dwelling not past Twelve miles one from an∣other, which in his name shall make Replevins as the Sheriff might do himself.

This is all thought fit at the present to be Added to make this Book Compleat; wherein you not onely find the Choycest Pre∣sidents in their kinds, but the Nature and Use of them according to the Common Law, or as bounded by Statutes; And withall, given a short Touch upon Distresses and Replevins, with the Statutes relating thereto.

FINIS.