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A78161 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. I. B.; G. T. 1656 (1656) Wing B82; Thomason E1611_1; ESTC R22388 195,053 388

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dayes of Saint Michael last past before E. A. Knight and his Associates our Justices of the Bench aforesaid by our Writ of Covenant between c. of c. we command you the transcript of the Record and Process of the fine aforesaid with all things concerning those which in your custody are as it is said to us under your Seal distinctly and openly ye send and this Writ c. that looking into the transcript of the Record and Process of the fine aforesaid we may c. And note that a Writ of Error is not maintainable by an Infant to reverse a fine for his Infancy but during his Infancy 50 E. 3. 4. 17 E. 3. 52. 78. 27. lib. Ass 53. For what Errors Fines and Proclamations be not reversable NO Fines or Proclamations upon fines or common recoveries shall be reversable by Writ of Error for false or incongrunous latin razure interlining misentring of any warrant of Atturney or of any Proclamation misreturning or not returning of the Sheriff or other want of form of words and not of matter of substance 23 Eliz. ca. 3. Of error in the Proclamation of a fine IF error be in the Proclamation of a fine they shall be reversed by Plea without Writ of error but that fine nevertheless remaineth of good force still for they are severall matters of Record yet if error be in the fine the Proclamations are void because the fine is the first Record whereupon the Ploclamations depend and sublato subjecto tollitur accidens Plo. 266. a. Dyer fol. 216. pa. 54. 4 Eliz. Of a Certiorari IF a man have recovered and before he have execution the Records thereof be removed into the receipt or treasury the plaintiff may have a Certiorari out of the Chancery to the Chamberlain and Treasurer to remove the tenor of the Record and Process thence into the Chancery And when it is there it may be sent thence by Mittimus into the Court whence it came as the uper Bench if it came thence or into the Common-place if it came thence and there may execution be sued 37 H. 6. 16. A Certiorari with a Mittimus to renew a fine bearing date before the fine come into the Chancery is good enough 1 R. 3. 4. In a Writ of error to reverse a fine the Record it self shall not be removed but the transcript thereof because a Record which commeth into the upper Bench shall not be remanded And if the Judgement be affirmed there is no Chirographer to ingross the fine 40 Ass 19. 29. Ass 43. Yet 5. Mary it is holden that in a Writ of error upon a fine the Record it self shall be certified so that no more Proclamations shall be made thereupon for if it be reversed that endeth all and if the fine be affirmed the Record shall be sent into the Common-place by Mittimus to be Proclaimed and ingrossed for if the transcript only should be removed they might nevertheless proceed in the Common place B. tit Rec. 79. Ideo quaere A Certiorari of the transcript of the foot of a Fine OLiver c. To the Treasurer and Chancellors greeting because for some certain causes we will to be certified or willing for certain causes to be certified or for some certain causes to be certified upon the tenor of the foot of a certain fine levyed in our Court before our Justices long ago or last itinerate at N. in Com. tali by our Writ or in the Court of the Soveraign Lord Ch. late King of England c. in the year c. before I. and his Associates then Justices c. of the Bench by his Writ between A. Demandant and B. Tenant of one Messuage with the appurtenances in N. we command you that you search in the Feet of the fines of the same * Iter signifies a journey or voyage c. circuit at the time aforesaid levyed or of the fines before the aforesaid Justices in the year aforesaid levyed which are in our Treasury under your custody as they say the transcript of the foot of the fine aforesaid to us into our Chancery under the Seal of our Exchequer distinctly and openly without delay you send And this Writ Teste c. Otherwise of the tenor of the note of a Fine OLiver c. To his beloved Clerk W. greeting We willing c. upon the tenor of the note of a certain fine levied c. Anno c. between A demandant and C. Tenant c. we command you that you search in the notes of the fines remaining in your custody a transcript of the note aforesaid to us in our Chancery under your Seal distinctly and openly without delay you send and this Writ T. c. Otherwise before Justices now of the Bench. A Fine levyed in our Court in the year c. before W. and his Associates then our Justices of the Bench by our Writ between c. A Mittimus of the Transcript of a Fine out of the Chancery into the Common place OLiver c. hath sent to the Justices here his Writ close in these words Oliver c. To his Justices of the Bench greeting the transcript of the foot of a certain fine levyed in the Court c. before R. H. and his Associates then Justices c. of the Bench at Westm by his Writ between G. P. and I. his wife plaintiffs and S. P. desorcient of the Manor of C. with the appurtenances to us in our Chancery of our mandate sent to you we send in these presents intercluded commanding that by the inspection aforesaid for the further prosecution of I. L. and M. his wife being one and T. U. and T. his wife being another and also of H. B. third Cozen and Heir of the aforesaid G. and I. of their bodies be gotten you cause to be done that which of right and according to the Law and custome of our Common-wealth of England ought to be done witness my self at Westminster the eighth day of I. in the year c. The transcript of the foot of the fine whereof mention is made in the Writ aforesaid followeth in these words This is the finall Concord made in the Court of c. at Westm in eight dayes of Saint Michael in the year c. before R. H. W. B. P. M. W H. L. T. and H. S. Justices and other faithfull then there present between G. P. and I. his wife plaintiffs by W. F. put in the steed of them to Atturney in the fine gain or lose and S. P. deforcient of the Manor of C. with the appurtenances whereof Plea of Covenant was summoned between them in the same Court to wit that the aforesaid G. hath recognized the aforesaid Manor with the appurtenances to be the right of him the said S. as that which the same S. hath of the gift of the aforesaid G. And for this Recognizance fine and Concord the same S. hath granted to the aforesaid G. and I.
the lessor die during the Term the leasee shall have have fee. 6 R. 2. Fitz. Quid Juris clamat 20. Against T. in common If a Quid Juris clamat be against two as Tenants in the Common he which appeareth must atturn if he plead not that they are joynt-tenants 16. E. 3. Fitz. Quid Juris 21. After assignment If a particular Tenant grant over his estate after the note levied yet must he atturn 17. E. 3. Fitz. Quid Juris 11. Once atturn If the Tenant atturn once upon the grant of the Cognisors he shall atturn no more 4. E. 3. Fitz. Quid Jur. 45. Joynt-tenant T. in common If a joint-tenant or tenant in Common of a Reversion grant his part by Fine the particular Tenant shall not be compelled to atturn 5. E. 3. Fitz. Quid Jur. 40. T. for life upon condition Upon a Lease for life upon condition that if the Leasee die within twenty years that his Executors Administrators or Assigns shall hold unto the end of twenty years the Lessee shall atturn as Tenant for life with protestation to save his interest 16. E. 3. 20. E. 3. Fitz. Quid Jur. 22. 31. Joynt tenant of a reversion If the reversion of two joynt Tenants for life be granted by Fine supposing the one to be sole Tenant the Tenant is not compellable to atturn 32. E. 3. Fitz. Quid Jur. 5. per Seton Tenant by elegit But Tenant by Statute or elegit seemeth not compellable to atturn because the cognisor cannot compel him to account and he may hold the Lands after his sum satisfied until he have levied his damages 6. E 3. 53. Fitz. Fines 99. E. 3 F. Quid Juris 47. Baron sole Cognisor Nor a Tenant for life where the Husband sole is Cognisor of his Wives land for if he do atturn the Wife surviving her Husband may enter for forfeiture 27. E. 3. A Clerk And a Clerk which hath no lay fee is not compelled to atturn 38. E. 3. 18. Reversion Nor Tenant for life in reversion or remainder 34. H. 6. b. Frank marriage Infant Ideot Nor Tenant in Frank marriage lib. Intr. Quid Juris clamat 10. Nor an Infant 43. E. 3. 1. Nor a Lunatick mad man or Ideot as it seemeth because of their disabilities But atturnment made by such persons as are able but not compellable to atturn is good 12. E. 4 Nat. Br. fo 170. b. With exception And an atturn●ent may be with an excepon if the Tenant have a Lease for life without impeachment of wast as he may atturn saving his advantage and it shall be so entred 45. E. 3. 11. 24. E. 3 Covenants Annuity Warranty Acquitall If the Tenant have Covenants to repaire c. 48. E. 3. 32. or have an annuity out of the Land 48. E. 3. 32. or Covenant of warranty or acquitall 41. E. 3. 48. or to fell trees he may atturn saving these advantages Grant Remainder in fee. If A. seised of Lands in fee thereof enfeoff B. to the use of the said A. for life and after to the use of his Executors and Assigns for twenty years after his death And then to the use of C. in fee Quere whether A. shall be compelled to atturn in Quid Juris clamat supposing him Tenant for life only and not mentioning the Term without saving of his Term by protestation Dyer fo 309. pl. 77. 14. El. No view lieth in a Quid Juris clamat 15. E. 4. 28. What Places will barr the Plantiff of Atturnment Seisinin fee. IF the Tenant plead that he is seised in fee the day of the note levied without that that he was then seised for life without shewing how he is so seised 15. E. 4. 28. 1. H. 7. 27. The Cognisor had nothing Or if the Tenant for life plead that before the fine an estranger was seised in fee and released to him in fee without that that the recognisor had any thing in the Lands the day of the note levied 3. H. 4. 3. Non tenure If a particular Tenant plead he holdeth not of the Cognisot the day of the note levied he must shew what estate he claimeth and from whom 3. E. 3. 6. Fitz. Quid Juris clamat 6. 14. E. 3. Fitz. Quid Jur. 9. But if he claim fee he shall not shew how 14. E. 3. 3. Fitz. Fines 7. but traverse that he holdeth for life 1. H. 7. 27. Leasee for eight years upon condition that the Leasor alien within the term he shall have Seisin in fee. Seisin de tali Stat. Qual c. For parcel fee cannot alledge that and say that he claimeth estate according to the Tenor of his Deed but must plead his estate certainly 2. E. 2. Fitz. Quid Jur. 38. If the Tenant confesse for part and plead a plea which may forfeit his estate therein he must atturn by and by 11. H. 4. 57. Cont. 22. E. 3. 18. Fitz. fines 33. Release Release of the Cognisor before the Cognisance to the Heir or his Ancestors in fee is a good barr 44. E. 3. 34. Forfeiture for term of years If a Lessee for years claim for life and fail of it he forfeits his Term 6. R. 2. Fitz. Quid Jur. 20. Plesingtons case WHAT PROCESSE Lie in a Quid Juris clamat Process THe Process in a quid juris clamat is Summons and distress infinite Nat. Imprisonment br 169. a. But if the Tenant appear and plead no good Bar and yet will not atturn he shall be imprisoned 37. H. 6. 14. Disclaimer But if the Tenant disclaim and if it be found against him he shall atturn 4. E. 3. 27. But if the Tenant for life years in Dower by the Curtesie or extent by Plea Claim Fee or Fee-tail and it be found otherwise he doth forfeit his Estate 15. E. 4. 28. Nat. Br. fo 168. b. And the Tenant may atturn by Dedimus Potestatem Att. by dedimus potestatem the form whereof ensueth Oliver c. to his beloved and faithfull I. M. Knight c. whereas our Writ of Covenant hangerh before you and your Associates our Justices of the Bench between R. and P. of 100. Acres c. which I. holdeth for his life of the aforesaid P. to levy thereof a Fine between the aforesaid R. and P. according to the Law and Custome of our Common-wealth of England whereby by our Writ we have commanded our Sheriff of Norfolk that he cause to come before our aforesaid Justices the aforesaid I. at the day in that Writ contained to acknowledge what right he claimeth to have in the Land aforesaid and the aforesaid I. being of himself so impotent that unto the Bench aforesaid at the day to him given without the greatest danger of his body he is not able to travail to acknowledge what right he claimeth to have in the Land aforesaid we tendring the State
his demeasne as of Freehold by the Form of the Testament and last will aforesaid without this that the same I. F. by his last will and Testament aforesaid bequeathed to the aforesaid A. B. c. ut supra as the aforesaid A. B. above alleged And this c. whereof c. And the aforesaid A. B. as before saith c. ut supra in brevi as he before alleged And of this c. The Tenant may atturn for parcell excepting the rest and plead thereunto Attornment for part plea to the rest ANd now at this day here in the Court came as well the aforesaid E. I. by W. W. his Attorney as the aforesaid I. E. in his proper person and hereupon the aforesaid E. I. by his Attorney aforesaid Prayed that the aforesaid I. E. to him thereof may atturn c. And the aforesaid I. E. prayeth hearing of the Writ aforesaid and to him it is read c. he prayeth also hearing of the note of the Fine whereupon the Writ aforesaid issued forth and it is read to him in these words Between R. Plaintiff and P. Deforcient c. rehearsing the whole note which being read and heard the same I. F. as touching the Tenements aforesaid except 10 Acres in D. parcell thereof saith that he is ready to the aforesaid R. thereof to atturn and himself to him in Court here hath attorned of the Tenements aforesaid except the aforesaid 10. Acres of Land and hath acknowledged c. And hath done Fealty c. And as touching the aforesaid 10. Acres of Land in D. the same I. F. saith that he at the time of the levying the note aforesaid was seised of the same 10. Acres of Land with the appurtenances in his demeasne as of Fee without this that he at the aforesaid time of the levying of the note aforesaid the same 10. Acres of Land with the appurtenances held for Term of life only as c. therefore let a Fine thereof be ingrossed Dyer f. 212. p. 35. 4. Eliz. And when the Tenant doth atturn the note of the Fine is to be delivered to the Chirographer And then it must be written upon the back-side of the same note thus The within named A. B. hath atturned himself to the within written C. D. by virtue of this note as it appeareth c. Atturney in quid Juris clamat UPon such a Plea pleaded that the Tenant may forfeit his Estate he may make an Atturney 21 E. 3. 48. Or if the Tenant suggest in Chancery that he will plead so as he forfeit his Estate he may make an Atturney by dedimus potestatem thus Oliver c. To his beloved faithfull F. B. c. Whereas our Writ of Covenant hangeth before you and your Associates our Justices of the Bench between R. P. of a hundred Acres c. which I. holdeth for his life of the aforesaid B. for a Fine thereof between the aforesaid R. and P. according to the Law and custome of our Common-weath of England to be levyed whereby our Sheriff of York by our Writ we have commanded that he should cause to come before our said Justices the aforesaid I. at the day in that Writ contained to acknowledge what right he claimeth to have in the Lands aforesaid and on the behalf of the said I. it is given us to understand that he upon the Fine aforesaid ought not to atturn for that that before the levying of the note of the Fine aforesaid one S. being seised of that Land in his demeasne as of Fee gave it to the aforesaid I. and the heirs of his body And he at the day to him given in the Bench aforesaid that matter to the Writ aforesaid will plead And yet he is so impotent and worn with age that unto the Bench aforesaid at the day to him given without very great danger of his body he is not sufficient to travail to plead that plea we tendring the State of the same I. in this behalf have given you power to receive an Atturney whom before you in his stead he shall will to atturn in this behalf to gain or to lose and therefore we command you that unto the aforesaid I. personally you going you receive an Attorney whom in his stead he shall will to Atturn in this behalf and of the name of the same Atturney to us in our Chancery under your Seal distinctly and openly you certifie returning to us this Writ Witness my self c. The return thereof I Putteth in his place A. B. his Atturney against R. in a Plea in quid juris clamat to gain or lose And as the Tenant may make an Atturney by dedimus potestatem so he may atturn the form whereof followeth Oliver c. To his faithfull I. and M. greeting whereas our Writ of Covenant hangeth before you and your Associates our Justices of the Bench between R and P. of a hundred Acres c. which I holdeth for his life of the aforesaid P. for a Fine between the aforesaid R. and P. according to the Law and custome of our Common-weal of England to be levyed whereby by our Writ we have commanded our Sheriff of Norfolk that he cause to come before our said Justices the aforesaid I. at the day in that Writ contained to acknowledge what right he claimeth to have in the Land aforesaid and the aforesaid I. of himself is so impotent that unto the Bench aforesaid at the day to him given without very great danger of his body he is not sufficient to travail to acknowledge what right he claimeth to have in the Land aforesaid we tendring the state of him the said I. in this behalf have given to you power to receive the knowledgement and to testifie the Atturnment which the aforesaid I. before you shall will to make ye receive And when you have received him and he before you as it is the manner have atturned himself your aforesaid Associates of the cognizance aforesaid distinctly and openly you certifie the aforesaid atturnment testifying that that Fine between the parties aforesaid of the Lands aforesaid before you and your associates aforesaid in the Bench aforesaid may be levied according to the Law and custome aforesaid And have you c. After issue joyned the Tenant may be essoigned thus York ss A. B. against C. D. in a Plea of quid juris clamat in one Messuage c. whereof the Jury by W. C. in 15. dayes of Saint Hillary c. If the issue be found with the Plaintiff the Judgement is in this form Judgement ANd hereupon the premisses being seen and by the Justices more fully understood it is ordered that the aforesaid C. D. for seisin of the Tenements aforesaid with the appurtenances against the aforesaid A. B. by occasion of the claim and Plea aforesaid forefeited to have if he will he may prosecute and also that the Fine aforesaid if he will may be ingrossed and the aforesaid A. B.