The Attvrneys gvide, for suing out of fines, concords, and recoveries, &c. Being choice and exact presidents for all sorts of fines, concords, and recoveries. Together with full instructions in all proceedings relating thereunto, and the certain charges of the same. With a table of all the particulars. / Perused and approved by G.T. an able practioner, and others.

Certain causes of the nature and form of a Scire Facias upon a Fine.

* 1.1ANd a Scire Facias to execute a Fine, must agree with the Fine, and then it is not materiall, if one thing be twice demanded ther∣by, as a Manor, and a hundred parcell of the same Manor, 27 H. 8. 2.

* 1.2A Scire facis may be sued upon the note of the Fine, before it be ingrossed by the Chiro∣grapher, 22 H. 6. 13.

* 1.3But of a Fine levyed before time of memory, a man shall not have execution by Scire facias, 1 E. 4. 6. Contr. 16 H. 7. 9.

Where a Fine executory, is levyed of a Seigniory, if the Land escheate, or the Tenant be fore-judged, &c. the Cognisee shall have a Scire facias of the Land in lieu of the services, 48 E. 3. 11.

A Mittimus maketh no mention, whether the Fine be ingrossed or no, but, whereas a certain Fine was levied, &c. 22 H. 6. 13.

If a Fine be levyed to A. in tail, the remain∣der

to B. in tail, the remainder to C. in Fee, And the Record is sent into the Chancery, and the first tenant in tail dieth without issue, & the Record commeth back into the Bench by Mitti∣mus, at the suit of him in the first remainder, and thereupon he had a Scire facias to execute the Fine, and died without issue before execu∣tion had, he in the remainder in Fee, shall not hereupon have a Scire facias, without a new commandement, because the Record was once out of the Court, and come again at the suit of him in the first remainder; unto whom he in the remainder in Fee is an estranger, yet the issue of him which removed the Record, in this case might have a Scire facias, without any new commandement, because he is privy, 14 H. 7. 16. 9 E. 4. 15. 11 E. 4. 13.

If two sue a Scire facias to execute a Fine, and the one dieth, the survivor shall have a Scire facias, without any new commandement, 1 E. 4. 13.

But if divers persons as Heirs unto A. B. pray a Scire facias, it is not grantable, untill they have sued severall Writs to the Justices of the Bench, commanding them to make execution, 11 E. 4. 13. T, 21 E. 4.

* 1.4In a Scire facias to execute a Fine, as Cozen and Heir to him in the remainder or reversion, after the death of the particular tenant, the plaintiff needeth not to shew how Cozen and Heir, so long as the Plea hath continuance, by idem dies, &c. given to the tenant, nor at his appearance, nor untill the plaintiff pray execu∣tion: And then the * 1.5 Coment Cozen and Heir, is to be entred thus in the Roll only: And the

aforesaid I. saith, that he is Cozen and Heir of I. W. (that is to say) son and Heir of T. W. of the Brother and Heir of the same I. W. 33 H. 6. 54. 41 Ed. 3. 13. and 24. 8 H. 4. 31.

* 1.6In Scire facias by him in the remainder upon an estate tail against A. B. supposing the donee to be dead without issue, if A. B. plead that he is issue to the donee, and the plaintiff replyeth that he is a bastard, it is a good replication, 40 E 3. 16.

* 1.7Scire facias upon a Fine levyed to T. R. and W. and to the Heirs of the body of R. the re∣mainder to the right Heirs of the said W. T. di∣ed, and R. died without issue and W. survived and died, his Heirs need no Scire facias to execute this Fine, because it is executed in his life by the union of the Fee and Franktenement in W. 40 E. 3. 20. And so if a Fine be levyed to a Baron and Feme, and to W. and his Heirs, and he dieth, and then the Ba∣ron and feme do dye, the Fine is executed for one moiety in the life of W. Fitzh. Scire facias 19. 43 E. 3. 9. 24 E. 3. 57. * 1.8

Tenant for life in Scire facias had aid of him in remainder, 41 E. 3. fo. 16. & 20. 22 E. 3. 12.

* 1.9In formedone in reverter or remainder, the demandant must mention the death of every one which had estate, and survived his Ancestor, but not so in a Scire facias surfine, 42 E. 3. 19.

* 1.10If the plaintiff have severall estates created by one Fine, he needeth but one Writ of Scire facias, 43 E. 3. 11. though it be of severall things against severall tenants, 11 H. 4. 15. 21 E. 3. 14. 24 E. 3. 25.

* 1.11If in a Scire fa. the Sheriff return the party

summoned, and he appear not, execution shall be awarded, 43 E. 3. 13.

* 1.12If a Fine sur cognisance de droit come ceo, &c. be levyed of a reversion by the name of the Land, it is not executory, 43 E. 3. 15.

* 1.13If the services escheat after a Fine levyed of the Seigniory, the Cognisee shall have executi∣on of the Land escheated, 48 H. 3. 11.

* 1.14A Scire fa. lyeth sometimes of things not comprized in the Writ: as if in a Fine sur re∣lease, the Cognisee render rent in tail, 48 E. 3. 8.

* 1.15If Land be given by Fine for life, the remain∣der to Baron and Feme in tail, and the Baron dieth, and then the Tenant for life dieth, and the Feme entreth, the Fine is executed, so as their issue needeth no Scire facias, 49 E. 3 12.

* 1.16Scire fa. lyeth for the donor in tail, against any that abated after the death of the donee in tail, by Fine without issue, 22 E. 3. 12.

Upon generall non tenure pleaded, the plaintiff * 1.17 may take execution at his perill: But speciall non tenure seemeth a good Plea, 7 H. 6. 25:

A man shall not have excution upon nihil re∣turned, because the tenant may be summoned in the Land demanded, 24 E. 3. 25.

* 1.18If a Fine be levyed to husband and wife in tail, the remainder to his right Heirs, and they having issue, the husband dyeth, the wise hath issue by another husband and dieth, the issue by the first husband entreth and dyeth without issue, and his next heir entreth, as into the re∣mainder in Fee, against whom the issue by the second husband bringeth a Scire fa. and reco∣vereth by reason, that the Fee could never exe∣cute

in possession in the Elder Brother, during the State-tail, 24 E. 3. 30. and 62.

* 1.19Feoffment with warranty from the plaintiffs Ancestor, is a good Plea in a Scire fa. upon a Fine, 22 H. 6. 39.

The Heir shall have his age in Scire fa. Contr. Westm. 2. ca. 45. 24 E. 3. 28. and 60.

Notes

• * 1.1

  Surplusage
• * 1.2

  Vpon the note.
• * 1.3

  A fine be∣fore memo∣ry. Of Land in in lieu of the servi∣ces.
• * 1.4

  Coment Cozen and Heir.
• * 1.5

  How Co∣zen and Heir.
• * 1.6

  Bastarday.
• * 1.7

  Vpon estate executed.
• * 1.8

  Ayd.
• * 1.9

  Death shewed.
• * 1.10

  Severall estates.
• * 1.11

  Default.
• * 1.12

  Reversion.
• * 1.13

  Seigniory.
• * 1.14

  Of things out of the Writ.
• * 1.15

  Execution by entry of him in re∣mainder.
• * 1.16

  Of a rever∣sion.
• * 1.17

  Non tenure generall or special. Nihil re∣turned.
• * 1.18

  Half blood.
• * 1.19

  Feoffment.