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 obtained 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 quousque per errorem aut attinctam adnullentur for Interest reipublicae res judicatas non rescindi et nihil est tam conveniens naturali aequitati quam unum quodque 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 Jury 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 very carefully done the finding must have certainty in it by the quality 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 either 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 Defendant 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 restored 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 damage 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 extent 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 Covenants 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 Execution That if Lands delivered in Execution upon just cause be recovered 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 after the date of such Scire facias at which day if the Defendant being 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 Plaintiff 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 Recognizance 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 deceased 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 Satisfaciendum 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 recovered 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 Action 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 before Judgment there must go before it three Writs of Capias ad Respondendum 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 Capias 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 Chattels of the Conusor to the Conusee that are apprised and taken into 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 grantable 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 Facias 126. Execution 102 164 243. And here observe That Executions may be arrested and stayed by the Court wherein the Judgment is given By the Common Law for a debt for which a man had Judgement he could have had neither Body nor Lands in Execution in case of a common person but the Goods and Chattels and Profits 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 Record 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 Executionâ— 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 justifie 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 Defendants 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 Capias or other Execution lyes without Scire facias although in another 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 being 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 Priviledg 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 Execution 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 Execution 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 Subject 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 discharge of the Execution this will not be in it self ipso facto a discharge 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 Execution and put into the Kings-Bench he was relieved and discharged 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 Execution he release to his Companion this shall not avoid the Execution upon the Land But if A. had dyed before Execution the Survivor would have held the Land discharged Co. 6.79 Abergavenyes 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 Defendant 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 Execution 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 Administrators 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 committed 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 foâ— 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
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 Recorder 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 debitiÌ„ praedicti Volo Concedo quod tunc currat super me Haeredes et Executores meos meos Poena in Statuto Stapulae debit pro Mercandisis in eadem emptis recuperand ordinat et provis Dat. c. Or thus Noverint Universi per praesentes nos A.B. C.D. teneri et firmiter Obligari J.S. in mille libris sterlingor ' solvend eid J.S. aut suo certo Attornato 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 Mercandisis in eâ—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 nature 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 Judgement 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 â—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 Judgement 5. All Statutes Merchant and of the Staple are to be brought to the Clerk of the Recognizances within four moneths and to be enrolled within six moneths otherwise they will be void as to purchasors 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 common 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 Execution 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 Extent 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 damages 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 Inquisition may as it seems be taken after her death and an Administrator 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 Liberate Cro. 1.326 But this shall suffice as to those Particulars I will now shew you what is liable to
Original Deed. 14 H. 8.10 Broo. Estrange al fait 10. And yeâ— if a Statute be made to the Husband and Wife and the Husband alone joyn in making the Defeasance This shall be a good Defeasance 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 payment of a less summe than that mentioned in the Statute or â—udgement 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 danger 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 writing 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 directed 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 Recognisance 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 Extent so that by this the Infant may avoid not onely his own statute 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 after the Conusor doth enfeoff a stranger of the Land and the Conusee 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 Adjudged 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 payment 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 Execution 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 discharge 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
Escripts and Monuments before by these presents bargained and sold as also all the true Copies of all such other Deeds and Writings as do touch and concern the before bargained premises or any part thereof Together with any other Lands Tenements or Hereditaments not before mentioned The said Copies to be written at the Cost of the said D. his Heirs and Assigns An Assignment with a Proviso to have the Lease again upon payment of a sum of money THis Indenture made c. between G. B of c. of the one part and W. H. of c. of the other part Whereas one R. G. and his Wife by their Deed indented bearing date c. for the consideration in the said Deed indented expressed did demise grant and to farm-let unto the said G. B. all that the moyety and half-deal of the Mannor of D. with the appurtenances set lying and being in c. and the moyety and half-deal of all their Messuages Dove-houses Edifices Buildings Lands Tenements Rents Reversions Services Mills Meadows Leasows Pastures Woods Under-woods Commons Heaths Profits Commodities and Hereditaments to the said Mannor of c. belonging set lying and being within the Town Fields Parishes and Hamlets of C. N. D. within the said County of G. or accepted reputed or taken c. To have and to hold c. with divers Covenants Articles Agreements and Reservations in the said Indenture contained as by the said Indenture c. Now this Indenture witnesseth That the said G. B. for divers and sundry c. hath given granted alienated assigned and set over and by these presents doth c. as well the said moyety c. as also all the Estate Right Title Use Interest Possession Claim and Demand whatsoever of the said G. B. had and made as is aforesaid To have and to hold the said moyety and half-deal of the said Mannor of D. with the appurtenances and all the Estate Right Title Use Interest Clatm Possession and Demand whatsoever of the said G. B. c. Provided nevertheless and it is agreed between the said Parties to these presents That if the said G. B. his Heirs Executors or Assigns or any of them do at any time hereafter pay and deliver or cause to be paid and delivered unto the said W. H. his Executors or Assigns or any of them the sum of c. of lawful money of England at one entire payment at or in the Church-Porch of the Parish-Church of C. aforesaid within the said County of G. at or in the place where the said Parish-Church now standeth that then and from thenceforth as well this present Grant and Assignment and every Clause Article and Sentence herein contained to be utterly void frustrate and of one effect as also that then and from thenceforth the said moyety of the said Mannor of D. and al other the premises whatsoever with their appurtenances and every part and parcel thereof by these presents assigned and set over unto the said W. H. shall come and be to the said G. B. his Executors and Assigns for and during all the number of years that shall at the time of the payment to be had and made in manner and form aforesaid be then to come and unexpired of the said term of c. years granted unto the said G. B. Executors and Assigns as is aforesaid as though this present Indenture of assignment of the premises had not been had or made In witness c. A revoking of a pretended Contract of Matrimony LEt all Men know and take notice by these presents That we F. D. of S. and J. H. of c. being desirous to have matters cleared between us concerning such proceedings as have been about treaty of Marriage between us and that we both notwithstanding any pretence of Contract between us may hereby declare and manifest to all people that there was no absolute Contract or Engagement between us at any time for Marriage of each other but that we are free one from the other in that kind and may each of us freely marry with others We do therefore freely and without any compulsion declare manifest and make known unto all people that we the said F. D. and J. H. were never absolutely contracted together in any Contract of Matrimony neither did we nor any of us profess or declare that we would marry each other unless c. our Friends c. we do therefore hold our selves no wayes to be tyed or obliged each to other in any manner of Contract of Matrimony or for Marriage each of other and therefore we do hereby freely and absolutely release and discharge each other of and from all manner of Contracts of or for marriage heretofore had or pretended to be had or made between us and we do hereby freely and fully release acquit and discharge each other of us and of and from all manner of Actions Suits or Claims prosecuted or which may be begun or prosecuted in any Court Ecclesiastical or Civil concerning the premises And in testimony of our free and full consent herein we the said F. D. and J. H. have hereunto subscribed our Names the day of c. An Assignment of Lands taken upon an Extent THis Indenture made the c. between T. H. of c. and W. W. of c. of the one Party and J. B. of c. of the other Party Whereas the said T. H. lately recovered by Judgment in His Majesties Court of Kings Bench the sum of c. against T. C. of B. c. and thereupon the said T. H. in Michaelmas Term last did take and sue forth Execution by Writ of Elegit directed to the then Sheriff of the said County of W. Whereupon by Inquisition and by the Jurors then and there sworn taken by the said Sheriff at the City of c. The day of c. Amongst other things it was found That the said T. C. at the time of the said Inquisition was possessed for and during the term of c. years then to come of and in one Messuage or Tenement and divers parcels of Land Meadow and Pasture to the said Messuage or Tenement belonging or appertaining in C. in the said Parish of c. as his proper Goods Which said term and interest of the said T. C. of or in the said Messuage or Tenement the Jury at the time of the said Inquisition did apprize and value at c. pounds which said term of years the said Sheriff the day of the same Inquisition did deliver to the said T. H. at the price and apprizance aforesaid To hold unto the said T. H. and his Assigns as his proper Goods and Chattels according to the form of the Statute in that behalf made and as parcel of the same debt and damages of the said T. H. recorded as aforesaid And the said Jurors also found That the said T. C was at the time of the said Inquisition seized in his Demeasn as of Fee of and in
any sufficient discharges to any of my said Tenants or Farmers requiring the same And the same sum and sums of Money Rents Issues and Profits so had and received to pay and deliver to me the said G. K. my Executors Administrators and Assigns and to be accomptable unto me the said G. K. my Executors and Administrators from time to time for all every or any the said sum or sums of Money so as asonesaid by the said C. P. had taken and received at the Feast of St. Michael the Archangel next ensuing the date hereof or before the end of Candlemas Term then next ensuing and at the Feast of the Annunciation of the blessed Lady St. Mary the Virgin then next following or before the end and expiration of Trinity Term then next ensuing and so from time to time at the Feasts and Dayes before prefixed to give and make a true account or accounts to me during the continuance of the power to him given and granted as aforesaid And further I do by these presents give full power and authority to my said Attorney at any time hereafter to elect and choose some one sufficient and able person to be Steward of my Courts of my said Mannors c. and also to place and displace at his will and pleasure upon just occasion any Bayliff or other Officer or Officers whatsoever as occasion shall require and also giving and by these presents granting unto my said Attorney full power and lawful authority for me and in my name stead and place and to my use as aforesaid for non-payment of all every or any my said Rents arrerages of Rents Issues Amerciaments and Profits to distrain impound arrest sue implead and imprison all every or any my said Tenants or Farmers which shall refuse to pay my said Attorney all or any such sum and sums of Money Rents Issues and Profits by them or any of them respectively due and payable unto me as aforesaid and the same persons again to discharge acquit and release of and from the same at his will and pleasure And further to do or cause or procure to be done in and about the premises all and whatsoever to the said C. P. shall seem requisite and needful to be done as effectually as if I my self were then and there personally present And which c. so to be done I do hereby covenant and grant for me my Heirs c. to justifie aver and maintain as fully and perfectly to all intents constructions and purposes as though the same were actually done by my self In witness c. A Warranty of Attorney to confess a Judgment WHereas K. B. widow of c. Executrix of the last Will and Testament of J. B. Esq hath sued out of the High-Court of Chancery an Original Writ of Debt for Two hundred pounds against me T. H. and J. W. of c. Esq and Sir R. B. of c. Knight my Sureties returnable this Trinity Term in the Court of Common-Pleas at Westminster These are therefore to require you to appear for me and my Sureties and to make Declaration for us the said T. H. J. W. and Sir R. B. at the suit of the said K. B. and thereupon to confess a Judgment either by non sum informat nihil dicit or otherwise as you shall think fitting and this shall be your sufficient warrant in that behalf In witness c. A Warrant to acknowledge satisfaction Mr. T. W. VVHereas in Trinity Term in the Twentieth year of the Reign of our Soveraign Lord King Charles over England c. there was a Judgment had and obtained in His Majesties Court of Common-Pleas at Westminster against A. P. of c. for c. Debt and c. Damages and Costs at the suit of c. These are to require you to acknowledge satisfaction upon the said Judgment and this shall be your sufficient warrant for the same In witness c. Another Warrant to acknowledge satisfaction Mr. T. F. VVHereas I heretofore retained you my Attorney in His Majesties Court of Kings Bench at Westminster to sue charge and implead R. E. upon several actions and a Habeas Corpus depending against him and whereas you thereupon further proceeded by my direction to the recovery and entry of four several Judgments the one of 50 l. Debt and 7 l. 10 s. and 8 d. Damages another c. another c. and the other c. for that I have received full satisfaction from the said R. E. for and concerning all those actions and several executions by you in my behalf obtained and entred against him by force whereof he remains Prisoner in the custody of the Marshal of His Majesties said Court These are therefore to will and require you to discharge those several actions by search or otherwise out of the Entry-Book of the Marshal of that Court or other declarations remaining on file there And further I do hereby direct and authorize you to acknowledge satisfaction upon Record upon the several Judgments above specified and all other Judgments chargeable against him for my satisfaction and so to release his person out of the Marshals custody from all causes touching me And for the doing thereof this shall be your sufficient warrant and discharge In witness c. An Indenture for suing forth a writ of Entry of a Mannor to the intent a Recovery may be had THis Indenture tripartite made the c. between H. E. of c. of the first part W. G. of c. of the second part and A. B. and C. D. of c. of the third part Witnesseth That it is covenanted granted concluded condescended unto and fully agreed upon by and between the said Parties to these presents And the said H. E. doth for himself his Heirs c. covenant c. that he the said E. or his c. before the Feast of c. at the proper Costs and Charges in the Law of the said W. G. his Heirs or Assigns shall permit and suffer the said A. B. and C. D. to bring and sue forth out of His Majesties High-Court of Chancery one Writ of Entry sur disseisin en le post against the said W. G. returnable before the Justices of the Common-Pleas at VVestminster at a certain day before the said Feast of c. by which Writ the said A. B. and C. D. shall demand against the said W. G. all that the Mannor of c. by the name of c. or by any other name or names whatsoever whereunto the said W. G. shall appear before the said Justices at the said day of return to be contained in the said Writ in his own proper person or by his Attorney sufficiently authorized by the Law for the same upon which appearance the said A. B. and C. D. shall declare against the said W. G. according to the nature of the said Writ and that he the said H. E. shall permit and suffer the said W. G. to make defence
Covenant 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 alwayes against him that is Tenant of the Freehold of the Land demanded 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 â—o make a conditional Surrender of his Estate to him in Reversion or â—â—mainder that he may be a perfect Tenant to the Inheritance and then to bring a Writ of Entry against him and after the Recovery is executed the particular Tenant for breach of the Condition may enter and enjoy his Estate notwithstanding such Surrender 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 making 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 comeing 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 witness c. As to the Warrant of Attorney and Dedimus Poâ—estatem take this First That in the suffering of Recoveries the Tenants and Vouchees 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 authorize 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 clamâ—ee â—us et haered suam et in quae tidem A. B. non habent ingress nisi post disseâ—â—nam quam H. H. injuste et sine judicio secit praefat D infra 30 annâ—s jam ultim clapsos c. â—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 perfect it for in this case there must go forth a Summoneas ad warran 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 However 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 directâ— in haec verba scilicet Jacobus Dei gratia Angl ' Scot ' Franc ' et Hibern ' Rex Fidei Defensor 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 liberum servitium unius denarii per annum pro omni servitio Quae R. V. ei deforc ne amplius inde clam audiamus pro defeâ—n Recti Teste Meipso apud Westm 4 die Maii Anno regni nostri Angl '
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 after another manner For upon Recognizances at the Common Law if the money be not paid at the day the Conusee his Executor 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 Recognisance 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 living 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 Cases 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 Recognisance 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 Execution 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 Recognisance 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 himself 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 moiety 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 Execution 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 moiety 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 Statute 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 Justices or contained in Fines whether Contracts Covenants Obligations 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 Merchant 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 compellable 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 without 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 assign shall be enrolled and if it be not paid at the day the Debtor â—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 extent 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 attached 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 Recognisance 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 within 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 Sureties 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 absence 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 acknowledging of the same statute purchase the Land or any part lyable 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 Extent 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 signifies 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 Statutes and Recognisances at or after the time of entring into the same It differs from a Condition in this That a Condition is alwayes 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 observe That all such things as are executory being created may by consent of all the parties to the creation of it be defeated so amongst others Bargain and Sales Statutes Recognisances and Judgements 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 unumquodque 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 required 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 reciâ—â—â— very exactly for if a Defeasance be made of a Statute or Recognisance 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 partieâ— to the
against him for he ought to have sued out his Execution upon the Lands in both Counties Cro. 3 part 797. If a Statute be delivered to a stranger to keep till certain conditions 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 according 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 Conusor 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 charged 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 Leases and the like but the proceedings therein have so near a resemblance when they are to be extended that I will pass them over in this place and the rather because the former parts contain many Presidents of them I will therefore only give one short Discourse 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 observe 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 hanging 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 distrained 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 having 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 Cattel must be put in pound overt that the Owner may give them sustenance but dead need not But if they be marred in his default 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 Neighbour 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 Prescription 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 Services are common to all certain Estates or proper to Inheritances Replevins are of two sorts 1. Homine Replegiando for one imprisoned or in Prison detained 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 according 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 avowing for damage Feasant the Plaintiff justifieth by reason of Common of Pasture Stat. Marlb cap. 21. The Sheriff may replevin Beasts not onely 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 deliverance of the Beasts but of returning the Beasts if a return be adjudged 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 Judgement 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 being 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 another 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 Presidents 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 The Table A INdenture of Annuity 1 118 159 450 571 Assignment of a Lease in trust 10 138 176 Atturney Letter of Atturney 33 144 147.199 200 Another 34 146 148 149 201 203 204 319 341 Award the form thereof 34 172 584 587 Assignment of two several Obligations 52 Assignment of two Apprentices c. 53 Assignment of a Lease of Partition c. 57 Assignment of a wharf-stocke c. with a general Release c. 61 Assignment of a Lease c. with an Execution 62 67 134 491 Assignment with a Proviso 96 Assignment of Lands taken upon extent 98 Apprentiship Indenture thereof 119 Assignment of a moyety of a house goods c. 136 Assignment of an Annuity 140 175 Apprentice discharge of him 144 Arbitrement condition of a bond thereof 153 160 Apprentice covenant for his truth 153 Annuity released 330. Atturney Letters of Atturney several kindes thereof 342 343 344 345 346 347 369 386 Assignment letter of Atturney of several bonds 381 Answer in Chancery beginning end thereof 425 Title of a Second answer c. 427 Affidavit that a Defendant cannot answer without sight of writings 429 Administrators account the form thereof 430 Answer in Chancery to a bill there-exhibit 431 Articles of agreement form thereof 439 454 561 Acquittance for purchase money 501 Attornment of tenants indorsing thereof ibid. Assignments of several Leases with good Covenants 536 Articles for buildings 557 Articles to Surrender Copyhold lands c. 565 Assignment of a bond for collaterall Security 570 Articles to hold Coyhold lands from year to years c. 574 Allotment of several parcels of Land an Indenture to that purpose 632 Atturney Letter of atturney Irrevocable with covenant c. 650 Another of another kind 651 Of a mans Estate in generall 652 Of severall Sums of money 653 Assignment of certain debts 654 B BIll of Sale 17 170 Bond assignment thereof 41 Bargayne and Sale of a Mannor with necessary Covenants 102 120 Bargayn and Sale of a house in London 130 Bill of Debt 163 489 654 Bill obligatory 164 Bargaine and Sale of houshold-stuffe and others 170 171 Bargaine and Sale of trees 208 Bargaine and Sale absolute of a house Land 214 607 609 Brewers Clarke a condition for him 225 Bargaine and Sale of woods 320 618 619 Burgess to serve in Parl. Indenture 357 Bills in Chancery Several formes thereof 420 433 Bill of Revivor 424 Bargaine and Sale deed to revoke it 442 Bargaine and Sale for collaterall Security 483 Bargaine and Sale upon Surrender of a Lease 511 Bargaine and Sale in trust 523 A plain Bargaine and Sale to be enrolled 556 Bargaine and Sale from the mortgages and mortgager to another before time of redemption 593 Bargaine and Sale conditionall to Feoffees in trust 599 Bargaine Sale of Swan and Swan-mark 617 C Condition to pay a Summe of Money at two payments c. 32 179 Condition to make Free an Apprentice 33 Condition to pay Money in 14 dayes c. 56 160 Condition to yay Money to Children at their several Ages according to a Will c. 59 60 Condition to pay Rent quarterly c. 87 158 188 192 332 549 Covenant to deliver possession or a deed 95 185 300 Contract of matrimony revoked 97 Charter-party for a ships voyage 100 395 Conveyance in Fee of a house and land c. 125 Copyhold Covenant to Surrender it 151 156 199 332 Covenant for further assurance 151 154 158 Covenant that he is lawfully seized c. 152 Covenant not to cut down or Sell trees c. 152 Condition of a Bond of Arbitrement 153 160 Condition to find one dyet by the year 155 Condition to save a tenant harmless for payment of rent the title being in controversy 155 547 Condition to discharge Churchwardens of a child c. 156 Condition for quiet enjoyment c. 157 187 188 327 Condition to Save harmless c. 161 183 190 193 196 197 198 Condition to pay money upon a nonsuit 162 Condition to perform Covenants 162 180 298 Condition to deliver Hay or Oats at a day 179 Condition to stand to an Award c. 180 Condition not to demise or alien without consent 181 Condition to justifie actions c. 182 Condition to pay money yearly c. 183 185 Condition to seal an Indenture by a day 184 Condition to assign a Lease c. by a day 186 302 Condition not to do any act to prejudice the estate of the Obligee in a Lease c. 187 Condition from a husband to secure childrens estates 189 Condition for an hired Servants truth 191 Condition to pay money at the end of an Apprentiship 194 Condition to repay money upon dislike c. 195 Condition to build a house or Farm ibid. 299 Conveyance of Land upon marriage 218 Condition that Land is free from incumbrances 224 Condition for a Brewers Clerk 225 Covenant to seal a new Lease and the Lessee in the interim to enjoy 236 Covenant to pay the Sheriff for an Arrest 238 Covenants between Partners at the dissolution of their Partnership 238 Conveyance from tenant in tayle to Baron and Feme and the heirs of the Baron for ever
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 Release 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 bargain and sell the Land by deed indented and inrolled to another and after the first deed is inrolled within the six moneths the bargain 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 incumbrances and the making of further assurance are to be added 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 consideration 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 Tenements 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 thereunto had may and will appear Nevertheless it is now fully concluded 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 lawful 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 persons 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 Indenture 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 payment 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 lawfull 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. respectively 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 appurtenances 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 appurtenances 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 determine in that case Secundum allegata probata and this so long as