of him the said I. in this behalf have given you power to receive the cognisance and to testifie the Atturnment which the aforesaid I. before you shal do in this behalf And therefore we command you that unto the aforesaid I. personally going the cognizance which before you in this behalf he shall do ye receive And when you have received it and he before you as it is the manner have atturned himself your foresaid Associates of the cognizance aforesaid distinctly and openly ye certifie the aforesaid Atturnment certifying that that fine between the parties aforesaid of the Land 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. Default By default of appearance distring ad atturnandum shall be awarded 2 E. 3. 9. Nonsuit Non-suit in quid juris clamat is not peremptory ry 18 E. 3. 6. Fitz. Quid Jur. â—7 24. Ed. 3. 3. Fitz. quid c. 39. The Writ of Summons in Quid juris clamat Summons OLiver c. to the Sheriff of York greeting we command you that you cause to come before our Justices of the Bench from the day of Easter in 15. dayes A. B. to acknowledge what right he claimeth in one Messuage and ten Acres of Land with the Appurtenances in B. which M. N. in our Court c. hath granted to C. D. by fine thereof there between them made And have you there T. c. upon which Writ none essoin lyeth 9. H. 6. 22. 33. H. 6. 5. At the return of which Writ the Sheriff doth return him summoned thus endorsed upon the back of the Writ Pledges of the within named A. B. I. M. R. K. S. E. Sheriff And if the plaintiff appear and the Tenant Default make default the entry is thus The Sheriff of York was commanded that he should cause to come here from the day of Easter in 15. dayes A. B. to acknowledge what right he claimeth in one Messuage c. with the Appurtenances in B. which M. N. in the Court of the Lord Protector here hath granted to C. D. by a Fine here thereof between them made And now at this day came the aforesaid C. by H. I. his Atturney and the aforesaid A. B. came not and was mainprised by I. M. and R. L. Distress Therefore he into all c. And he is commanded that he distrain him by all his Lands and Chattels c. And that of the profits c. And that he have his body here from the day of the Holy Trinity in three weeks to acknowledge in form aforesaid c. And the same day is given to the aforesaid C. here c. Essoin At the return hereof none essoin lieth because it is judiciall 9 H. 6. 22. 33 H. 6. 5. The Distress in quid juris clamat OLiver c. to the Sheriff of York greeting we command you that you distrain A. B. by all his Lands and Chattels in your Bayliwick so that neither he nor any for him do lay hand thereupon untill you shall receive further command thereof from us And that you answer us of the profits of them so that you have his body before our Justices at Westminster from the day of the holy Trinity in three weeks to acknowledge what right he claimeth in one Messuage c. with the appurtenances in B. which M. N. in our Court before our Justices at Westminster hath granted to C. D. by Fine thereof there between them made and to hear thereupon his Judgement for many defaults And have you there this Writ T. c. If at the day of the return hereof the parties appear the entry is thus Atturnment generall Heretofore even as it appeareth in the Term of the holy Trinity last past in the Roll 60. it is thus contained ss The Sheriff of E. was commanded that he should distrain A. B. by all and Et supra in brevi inde untill and to hear c. And then And now here at this day came as well the aforesaid C. D. by his Atturney aforesaid as the aforesaid A. B. in his proper person and hereupon the same E. B. prayeth hearing of the Writ aforesaid and to him it is read he prayeth also hearing of the note whereupon the Writ aforesaid issued forth and to him it is read in these words E. S. Between C. D. Plaintiff c. as the note is And then if the Tenant will atturn generally the entry further is For that they being heard and understood the same A. B. saith that he claimeth to hold the aforesaid Messuage c. for Term of his life as by the note aforesaid is supposed and that he is ready to atturn himself thereof to the aforesaid C. D. and himself to him the Court here thereupon hath atturned and recognized c. And had done fealty therefore let the Fine thereof be ingrossed Or if Atturnment be made out of the Court the Cognisee may inform the Court thereof and at his suit then this entry shall be viz. And now here at this day came the aforesaid C. D. in his proper person and saith that the aforesaid A. B. hath atturned to him thereof in his proper person and prayeth that the Fine thereof may be ingrossed at his perill therefore let the Fine therof be ingrossed at his peril c. Atturnment speciall But if the Cognisee appear and will atturn specially it may be done thus The Sheriff was commanded c. ut supra reciting the Process and the Tenant demanding and having Oyer of the Writ and note of the Fine he may plead thus viz. And hereupon the same A saith that he holdeth the Tenements aforesaid with the appurtenances for Term of his life by the demise of M. N. by his certain Deed indented the other part whereof with the Seals of the aforesaid M. N. signed the same A. here in Court produceth the Tenor of which followeth in these words This Indenture made c. reciting the whole Indenture and saving to himself all advantages and conditions written aforesaid saith That he is ready to attorn to the aforesaid C. D. of the TenemeÌ„ts aforesaid by vertue of the note aforesaid And the aforesaid C. D. acknowledging not the writing aforesaid saith that of whom the same A. B. holdeth the Tenements aforesaid with the appurtenances by the demise of the aforesaid M. N. according to the force and effect of the note aforesaid he prayeth that the same A. B. may attorn himself thereof to him c. And the aforesrid A. B. saith that saving to himself all advantages and benefit of the writing aforesaid he is ready to atturn himself thereof to the same C. D. of the Tenements aforesaid c. And afterwards the same A. B. saving to himself the advantages of the writing aforesaid himself to the aforesaid C. D. here in Court hath atturned and acknowledged c.
in mercy c. But atturnments entred upon record before the party mentioned to atturn do first appear in Court in person or by atturney warranted by the hand of one of the Justices of the one Bench or of the other or one Justice of Assize upon a Writ of quid juris clamat quem redditum reddit or per quae servitia as the case requireth is void without Writ of error 23 Eliz. c. 3. upon which Judgement the Cognisee may have execution by habere facias seisinam in this form Oliver c. To the Sheriff of York greeting Know you that whereas C. D. in our Court before our Justices at Westminster by order of the same Court hath recovered his seisin against A. B. of one Messuage with the Appurtenances in L. which M. N. in the same Court granted to the aforesaid C. D. by a Fine thereof between them made therefore Wee command you that to the same C. D. plenary seisin of the Messuage aforesaid with the appurtenances without delay you cause to have and what thereof you shall do you certifie to our said Justices at Westminster in eight dayes of Saint Martin c. And have you there this Writ T. c. A Distringas ad Atturnandum And upon the Judgment to Atturn doth issue a Distringas ad Atturnandum in this form Oliver c. To the Sheriff greeting Wee command you that you distrain A. S. by all his Lands c. So that he be before our Justices of the Bench to atturn to C. D. in a plea of Quid juris clamat in one Messuage with the appurtenances in L. which M. N. in our Court c. hath granted to the aforesaid C. D. by fine thereof between them made and whereupon it is ordered in the same Court that the aforesaid A. S. himself to the aforesaid C. D. thereof shall atturn And have you there this Writ T. c. Quem redditum reddit The Writ of quem redditum reddit is a Writ judiciall and issueth out of the note of the fine against the Tenant of the Land to compell him to atturn to the Cognisee upon the grant of a Rent charge or Rent seck issuing out of the Land N. B. F. 170. b. the form whereof followeth Oliver c. to the Sheriff of E. greeting We command you c. that you cause to come here from the day of St. Michael in fifteen dayes E. F. to acknowledge what Rent he was accustomed to yield issuing out of one messuage with the appurtenances in E. which A. B. in our court before our Justices of the Bench hath granted to C. D. by a Fine there of between them made And have you there this Writ T. c. If the Defendant appear not upon this Writ a Distringas issueth forth in this form OLiver c. To the Sheriff of York greeting Wee command you that you distrain E. F. by all his Lands c. And that you answer to us of the profits of the same and that you have his Body here c. in eight daies of St. Michael next to come To acknowledge what Rent c. issuing out of one Messuage with the appurtenances in L. which A. B. in our Court c. hath granted to C. D. by a Fine thereof between them made and to hear his Judgment for many defaults And have you c. At which day if the Tenant appear the entry may be in this form E. F. In mercy for many defaults c. The Sheriff of E. was commanded that he should distrain the aforesaid E. F. c. as in other Writs of Distringas above And now here at this day came aswell the aforesaid C D. by W. W. his Atturney as the aforesaid E. F. in his proper person And the aforesaid C. D. prayeth that the aforesaid E. F. may atturn himself to him of the Rent aforesaid c. And the aforesaid E. F. prayeth hearing of the Writ a-aforesaid and to him it is read he prayeth also hearing of the note of the Fine whereupon the same Writ issued and to him it is read in these words Between C. D. Plaintiff c. reciting the note c. Atturnment entred In which case if the Tenant atturn the entrie shall be as in a quid Juris clamat and so shall the Judgment and Execution be also mutatis mutandis but the atturnment must be in Court 9 H. 6. 21. 8. H. 6. 15. Divers Tenants If this Writ be against divers Defendants and some appear and some make default Those which appear shall not atturn without the rest untill they appear and after make default 8. H. 6. 15. Default If the Tenant once appear and after make default a Distringas ad atturnandum shall be awarded 9. H. 6. 21. 8. H. 6 15 A Cognisee of a Rent charge or Rents for years shall not have Atturnment quaere Dyer fo 401. Pl. 37. 38. Atturney The Tenant cannot plead by an Atturney but ex consensu quaerentis 1. H 7 27. In a Quem redditum reddit the Tenant appearing is to demand what the Plaintiff hath to shew for the Rent and then he must shew the commencement thereof and his title thereunto which the Plaintiff may answer 31. H. 6. 8. 35. H. 6. Disclaimer In quem redditum reddit if the Tenant will disclaim he may plead that he was not Tenant of the Land the day of the note levyed for this Writ lyeth against none but him which is then Tenant 8 H. 6. 15 Per quae servitia PEr quae servitia is a judiciall Writ issuing from the Note of a Fine and lyeth for the Cognisee of a Mannor seigniory chief Rent or other services to compell him that is Tenant of the land at the time of the note of the fine levyed to atturn unto him 43. E. 3. 8. H. 6. 17. Pl. 46. B. which is made thus The Writ OLiver c. To the Sheriff of K greeting Wee command you that you cause to come before our Justices at Westminster tali die S F. R L. c. at L. c. to acknowledge by what services they hold their Tenements with the appurtenances in B. which services E. L. in our Court before our Justices at Westminster hath granted to W. B. by a Fine there thereupon between them made And have you there this Writ Witnesse c. If the Lord grant the services of his Tenant by Fine or otherwise the Lord before Atturnment shall have such things as lye in prender as the Ward of the body of the heir and of the Land escheats c. but not such things as lye in render as Rents and relief Herriots and other services for he cannot avow for them before the atturnment If a man grant the services of his Tenant for life This Writ lyeth Br. per quae servitia 13. Vpon a grannt for life If services be granted to I. S. for life the reversion to N.
the 19. day of S. in the year c. at B. aforesaid by his certain Charter which the same W. R. with the Seal of the aforesaid F. signed here in Court produceth the date whereof is the same day and year gave and granted the tenements aforesaid with the appurtenances to the aforesaid W. R. to have to him and his Heirs for ever and furthermore the aforesaid F. by the Charter aforesaid the tenements aforesaid with the appurtenances to the same W. and his Heirs against all men did warrant as by that Charter more fully it appeareth by virtue of which said gift and grant the same W. was and as yet is seised of the tenements aforesaid with the appurtenances in his demesne as of Fee and so thereof being seised one D. D. arraigned against him the said W. an Assise of novel disseisin of the aforesaid tenements with the appurtenances before I. C. one of the Barons of the Exchequer of the Lord Protector and F. R. one of the Serjeants at Law of him the said Protector Justices of the same Lord Protector at the Assizes in the County aforesaid assigned to be taken according to the form of the Statute c. whereby the same W. R. hanging that assise often required the aforesaid F. that he the aforesaid tenements with the appurtenances to the same W. would warrant and the same F. those tenements with the appurtenances to the same W. hitherto to warrant hath denyed and as yet doth deny whereupon he saith that he is the worse and hath damage to the value of a hundred pounds and thereupon he bringeth sute c. OF RECOVERIES FOR Assurances c. IN every recovery are to be regarded the demandant the Tenant of the Land and the vouchee as the efficient causes thereof The Land demanded as the matter which must as certainly be set down in Writs of entry as in Writs of Covenant whereupon Fines are levyed The end and effect of such recoveries is to discontinue and destroy estates tailes remainders and reversions and bar the former owners thereof The demandant is he that bringeth the Writ of entry and may be termed the recoverer The tenant is he against whom the Writ is brought and may be termed the recoveree The vouchee is he whom the tenant voucheth or calleth to warranty for the Land in demand And such persons may be demandants Tenants and vouchees in these recoveries as may be cognizors and cognizees in Writs of Covenant and by such names mutatis mutandis Saving if that any recovery be had against tenant in tail the reversion or remainder being in the Kings of England their progenitors and Successors such recovery will neither bar the issue in tail of his entry nor discontinue his estate nor pluck such reversion or remainder out of them 34 H. 8. ca. 20. Quaere tamen si tiel recovery bar issue in tail during the continuance of the esiate tail Dyer fo 132. pl. 1. Item before such persons by such means and in such manner may warrants of Atturney be acknowledged and certified as fines knowledged in the Country saving that the recognizance of warrants of Atturney may be taken by any Justice or Serjeant without a Writ of Dedimus potestatem And fines must be paid upon Writs of Entry as upon Writs of Covenant And all such Writs of entry must be signed by the Protectors Atturney before they can be Sealed In a Recovery with double voucher the fine must be sued first to make him tenant at the time of the Writ of Entry brought for every Writ of entry must alwayes be brought against him that is tenant of the Freehold of the Land demanded at the time of the Writ brought 18. R. 2. and Dyer fo 252. pl. 98. for that that the estate of the tenant in tail which is vouchee is barred in respect of the Assets only which is or may be recovered in value Pl. Bassets vers Manxell fo 11. a. and of execution sued by the tenant against him And if the tenant have but an estate for life or in dower or by the Curtesie then to have a good recovery thereof it is meet that such tenant make a conditionall surrender of his estate to him in the reversion or remainder to the end he may be a present Tenant of the inheritance and then to bring the Writ of entry against him and after that the recovery is executed the particular tenant for breach of the condition may enter and enjoy his Term notwithstanding such surrender In a recovery with a single voucher are included two Recoveries viz. one at the sute of the demandant against the Tenant and another at the sute of the tenant against the vouchee And if it be with a double voucher there are incuded in it three recoveries one by the demandant against the Tenant one other by the tenant against the vouchee and the third by the first vouchee against the second vouchee And in a recovery with a treble voucher are included 4. recoveries whereof three are such as were last mencioned the fourth is a recovery by the second vouchee against the third and in these recoveries the demandant hath judgement to recover the Land against the tenant and the tenant hath likewise Judgement to recover in value against the vouchee and if it be with a double voucher the first voucher hath also the like Judgement to recover in value against the second and if it be with a treble voucher the second vouchee hath the like Judgement against the third And the record also maketh mention of the execution of the Judgement against the tenant by Entry or a Writ of Habere fac seisinam accordingly And when such Recovery is so executed the uses agreed upon do forthwith arise out of the Lands Tenements c. so recovered according to the mutuall agreement of the parties The scope of a common Recovery with a single voucher is to bar the tenant and his Heirs of such only estate tail which then is in him to bar others of such estates as they have of any reversion expectant or remainder dependant upon the same And of all Leases and incumbrances derived out of such reversions or remainders The scope of a Common Recovery with a double voucher is to bar the first voucher and his Heirs of every such estate as at any time was in the same voucher or any of his Ancestors whose Heir he is of such estate and all other persons of such right to a reversion or remainder as were thereupon at any time expectant or dependant and of all Leases Charges and incumbrances derived out of any such reversion or remainder and that will be also a perpetual bar of such estate whereof the tenant was then seised of in reversion or remainder expectant or dependant upon the same c. The scope of a common recovery with a treble voucher is to make a perpetuall bar of the estates of the tenant and of every such estate of inheritance
he putteth himself upon the Countrey And the aforesaid W. likewise Therefore c. Born before marriage And the aforesaid I. P. and A. acknowledge not that they who were parties to the Fine aforesaid nor any of them ever had or have had any thing in the tenements and advowson in the aforesaid Fine contained and say that the aforesaid E. as son and Heir of the aforesaid W. execution of the tenements and advowson against them ought to have because they say that the same W. took to wife one M. which said M. was espoused to the same W. at E. in the County of S. and there the espousals between them were celebrated and say that the sâ—me E. was born at C. in the County of S. beâ—ore marriage And this they are ready to verifie by the Countrey of the aforesaid County of S. and as the Court here shall consider whereof they pray Judgement if the same E. execution of the tenements and Advowson aforesaid as son and Heir of the aforesaid E. in this behalf against them ought to have c. And the aforesaid E. acknowledgeth not any the things by the aforesaid I. P. and A. above alledged and saith that he for any the matters before alledged from execution of the tenements and advowson aforesaid by virtue of the Fine aforesaid ought not to be barred or repelled for that he saith that the aforesaid W. his Father took to wife the aforesaid M. to wit at M. in the said County of E. and there the espousals between them in a lawfull manner and according to the Ecclesiasticall Court were celebrated and saith that hethere within the espousals between them the said W. M. celebrated was born and begotten and this c. by the Countrey of the aforesaid County of E. and as the Court here shall consider whereof he prayeth Judgement and Execution c. and the aforesaid I. P. c say that the aforesaid E. was born at C. in the aforesaid County of S. before the spousall between the aforesaid W. and M. celebrated and this as before he was ready to verifie by the Countrey and as the Court here shall consider c. And the aforesaid E. saith that he was born and was begotten within the espousal between the aforesaid W. and M. celebrated to wit at M. in the aforesaid County of E. and this as before he is ready to verifie by the Countrey of the aforesaid County of E. and according as the Court here shall consider and because it seemeth to our Court here that the issue of the Plea aforesaid by men of both the Counties aforesaid ought to be tryed therfore it is commanded to both Sheriffs of the Counties aforesaid Triall that both of them cause to come here tali die twelve c. by whom c. A Writ to the Bishop to certifie Bastardy THe King to I. by the same grace Lord Bishop of L. greeting Whereas I. M. son of P. of the Brother of G. B. in our Court before us by our certain Writ whereupon he certified that he impleaded I. A. and P. G. of a certain Messuage with the appurtenances in Fee and they the said I. A. and P. according to due premunition by virtue of our said Writ to him made before us they appearing alledged him the said I. to be a Bastard this pretending to verifie and for that cognizance of such like cause meerly belongeth to the Ecclesiasticall Court we command you that yee call forth before yee any which in that behalf shall seem fit to be called forth and diligently thereupon yee make inquisition and the whole truth thereof by your Letters under your seal sealed to us in eight c. wheresoever then we shall be in England ye render more certain and this Writ to us now ye send back T. c. And now here at this day came as well the Return of the Scire facias aforesaid I. B. by B. his Atturney as the afores I. H. in his proper person and the Sheriff returneth that he hath made to know to the same I. H. of being here at this day c. to shew in form aforesaid by N. B. c. honest c. And hereupon the aforesaid I. B. prayeth against the aforesaid I. H. execution c. And the aforesaid I. H. saith that the aforesaid I. B. execution of the Messuage aforesaid with the appurtenances by virtue of the Fine aforesaid I. to whom the plaintiff maketh himself Heir was seised whose estate the tenant hath against him ought not to have for that he saith that the same I. was seised of the same Messuages with the appurtenances in his demeasne as of Fee-tail by virtue of that Fine the estate of which said I. the aforesaid I. H. now hath in those Messuages with the appurtenances and so he saith that the Fine aforesaid was executed in the person of the aforesaid I. by his seisin by virtue of that Fine and this he is ready to verifie whereupon he prayeth Judgement whether the aforesaid I. B. execution of the Messuages aforesaid with the appurtenances by virtue of the Fine aforesaid in form aforesaid executed in this case against him ought to have c. And the aforesaid I. B. saith that he from having execution of the Messuages aforesaid with the appurtenances against the aforesaid I. H. for any the mattrrs before alleged ought not to be excluded for that he saith that the aforesaid I. was not scised of the aforesaid Messuages with the appurtenances by virtue of the Fine aforesaid in form wherein I. H. above hath alledged and he prayeth that this may be inquired by the Countrey and the aforesaid I. H. likewise therfore 12. c. And the aforesaid T. R. as to eight Acres of Wood with the appurtenances in the aforesaid Town of H. whereof execution now is prosecuted against him saith that the aforesaid R. and H. who were parties to the Fine aforesaid at the time of the levying of the same Fine before or after had nothing in the same wood with the appurtenances whereof c. as of Free-hold but that one I. M. then was thereof seised in his demeasne as of Fee the estate thereof of which said I. the aforesaid T. R. now hath the day of the obtaining of the aforesaid Writ of Scire facias had in that wood with the appurtenances and this he is ready to verifie whereupon he prayeth Judgement whether the aforesaid P. son of P. execution of the same eight Acres of wood with the appurtenances by virtue of the Fine aforesaid in this case against him ought to have c. and as to the aforesaid 100. shillings of Rent with the appurtenances in the same Town of H. whereof execution likewise is now prosecuted the same T. further saith that he is not thereof Tenant perceiver nor deforcient of that Rent with the appurtenances nor Tenant of the tenements from whence the same Rent with the appurenances commeth
as of Free-hold nor was at the day of the obtaining of the aforesaid Writ of the said Scire facias or ever afterward And this he is ready to verifie whereupon as to that Rent with the appurtenances he prayeth Judgement of the Writ c. And the aforesaid P. Son of P. as to the said Rent of 100. shillings saith that the day of the obtaining of his Writ of Scire facias to wit the day c. year c. the aforesaid T. R. was tenant as of Free-hold of twenty Acres of Land with the appurtenances in the aforesaid Town of H. whence that Rent with the appurtenances encreaseth And saith that the same T. then was deforcient of the same Rent with the appurtenances as of Free-hold as by the same writ is supposed And prayeth at his perill execution of the same Rent with the appurtenances against him to be adjudged c. therefore c. as to that Rent with the appurtenances it is considered that the aforesaid P. son of P. have thereof execution at his perill against the aforesaid T. R. by virtue of the Fine aforesaid c. And as to the aforesaid eight Acres of wood with the appurtenaeces whereof c. the same P. son of P. saith that at the time of the levying of the Fine aforesaid The aforesaid T. and G. who were parties to that Fine were seised of the same wood with the appurtenances whereof c. in their demeasne as of Fee c. as by the same it is supposed And this he prayeth that it may be enquired by the Countrey and the aforesaid T. R likewise therefore as to this issue 12. c. Know you that it is considered in our Court c. that P. B. son and Heir of P. B. have execution against T. R. of 100. shillings of rent with the appurtenances in H. by virtue of a Fine thereof levyed in the Court of the Soveraign C. late King c. at W. in eight c. in the year c. before W. B. and his Associates then Justices of the same c. of the Bench between R. c. plaintiff and T. P. and B. his wife deforcients of the rent aforesaid with the appurtenances and of other Lands and Tenements in the same Fine contained by default c. And therefore we command you that to the same P. of the rent aforesaid with the appurtenances without delay plenary execution and seisin you cause to have T. c. Know you that it is considered in the Court c. that R. son and heir of R. have seisin and execution against R. D. of the Manor of A. with the appurtenances in your County by the default of the aforesaid R. by virtue of a note of a certain Fine lately levyed in the Court of the aforesaid C. late King c. at Westminster tali die Anno c. before R. B. and his Associates Justices of the aforesaid late King of the Bench and afterward in eight c. in the Habere facias seisinam sur recovery upon default in a Scire fac year c. there granted and recorded before the same Justices and others faithfull of the same late King then there present between R. of A. c. plain tiff and I. of S. and E. his wife deforcients of the Manors of O. and R. with the appurtenances in the County of N. and of the aforesaid Manor of A. in your County And therefore we command you that to the same R. son of R. of the aforesaid Manor of A. with the appurtenances without delay plenary sesin and execution you cause to have T. c. Afterward die loco c. came the within-named Recite of â— Feme Covert upon her busbands default R. W. in his proper person and the within named W. N. being solemnly exacted came not but I. the wife of the same W. within named in her proper person came and saith that the Manors within specified are the right of het the aforesaid I. and that she is ready to shew that the aforesaid R. W. execution of those Manors by virtue of the fine within written ought not to have whereupon she cometh before Judgement yeelded being ready thereof to answer to the aforesaid R. and to defend her right and prayeth that she by the default of the aforesaid W. her husband may not lose thereof her right but that she may be admitted thereof to the defending of the right of her the said I. c. Certain causes of the nature and form of a Scire Facias upon a Fine Surplusage ANd a Scire Facias to execute a Fine must agree with the Fine and then it is not materiall if one thing be twice demanded therby as a Manor and a hundred parcell of the same Manor 27 H. 8. 2. Vpon the note A Scire facis may be sued upon the note of the Fine before it be ingrossed by the Chirographer 22 H. 6. 13. A fine before memory Of Land in in lieu of the services But of a Fine levyed before time of memory a man shall not have execution by Scire facias 1 E. 4. 6. Contr. 16 H. 7. 9. Where a Fine executory is levyed of a Seigniory if the Land escheate or the Tenant be fore-judged c. the Cognisee shall have a Scire facias of the Land in lieu of the services 48 E. 3. 11. A Mittimus maketh no mention whether the Fine be ingrossed or no but whereas a certain Fine was levied c. 22 H. 6. 13. If a Fine be levyed to A. in tail the remainder to B. in tail the remainder to C. in Fee And the Record is sent into the Chancery and the first tenant in tail dieth without issue the Record commeth back into the Bench by Mittimus at the suit of him in the first remainder and thereupon he had a Scire facias to execute the Fine and died without issue before execution had he in the remainder in Fee shall not hereupon have a Scire facias without a new commandement because the Record was once out of the Court and come again at the suit of him in the first remainder unto whom he in the remainder in Fee is an estranger yet the issue of him which removed the Record in this case might have a Scire facias without any new commandement because he is privy 14 H. 7. 16. 9 E. 4. 15. 11 E. 4. 13. If two sue a Scire facias to execute a Fine and the one dieth the survivor shall have a Scire facias without any new commandement 1 E. 4. 13. But if divers persons as Heirs unto A. B. pray a Scire facias it is not grantable untill they have sued severall Writs to the Justices of the Bench commanding them to make execution 11 E. 4. 13. T 21 E. 4. Coment Cozen and Heir In a Scire facias to execute a Fine as Cozen and Heir to him in the remainder or reversion
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.
now in of a new estate Fitz. Nat. fo 135. a. So if A. disseise B. and enfeoffe C. with warranty who infeoffeth D. with warranty upon whom an estranger entreth in whose possession B. the disseisor releaseth his right now all former warranties are extinct And albeit D. is impleaded yet shall he not have warrantia Chartae because he is in of another estate by wrong Fitz. Nat. 135. g. 11 H. 6. 41. 22 H. 6. 22. Release by Jointenant If there be three joynt tenants and the one release to the rest they may deraign the former warranty by vowcher or warrantia Charitae for they be in a 3. part by the release 40 E. 3. 41. Villenage Warrantia Chartae lyeth against a villain 48 E. 3. 17. The Writ of Warrantia Chartae must be sued hanging the principall Plea and before Judgement as of Assise or Entry in the nature of assise 48 E. 3. 2â— Registr orig fo 158. a. for then if the warranter do die yet the Writ shall not abate but his Heir shall be resummoned to answer upon the same yet may a warrantia Chartae be sued before he be impleaded quia timet implacitari and the plaintiff shall recover in value pro loco tempore of such Lands as the defendant had at the purchasing of the Writ Fitz. Na. f. 134. E. 12 H. 4. 12. 21 H. 6. 41. 22 H. 6. 22. 24 E 3. 35. But he must not have execution but if afterwards he be put out by Judgement he shal have his warranty upon his first recovery 21 H. 6. 41. 21 H. 6. 22. 12 H. 4. 12. Non tenure In warrantia Charitae it is a good Plea for the defendant that hanging the Plea the demandant in the principall Plea hath entred upon the plaintiff being then tenant of the Land or that the plaintiff in this action had nothing in the Land the day of the first Writ purchased nor at any time after 21 H. 6. 49. 3 E. 3. 4. 5 E. 3. 5. County Warr. Chartae may be brought in any County if the deed bear not date in a place certain 31 E. 3. Tenant in Common Tenants in Common may joyn in Warrantia Chartae 28 E. 3. 90. Count by Baron Feme upon a fine with warranty I. H. Son and Heir of Isabel which was the wife of R. was summoned to answer I. T. and I. his wife of a Plea that they warrant to them one Messuage with the appurtenances in S. which of him he holdeth and of him claymeth to hold and whereof the Charter of Isabel Mother of the aforesaid I. H. whose Heir he is he hath c. and whereof c. he saith that a certain fine he levyed in the Court of the Lord Protector now in 8. dayes of Saint Hillary in the year c. before T. B. and his Associates then Justices of c. of the Bench between them the said I. T. and I. plaintiffs and R. of B. and the aforesaid Isabell then his wife deforcients of the Messuage aforesaid with the appurtenances among other Lands and tenements by Inter alia per nomen the name of c. with the appurtenances in S. in the County aforesaid by which fine the aforesaid R. and I. have granted for themselves and the Heirs of him the said I. that 4. Acres of land A fine of the reversion with the appurtenances of the aforesaid tenement which G. and M. his wife held for term of the life of her the said M. of the inheritance of the aforesaid Isabel in S. aforesaid the day that this Concord was made and which after the decease of her the said M. unto the aforesa R. and I. and the Heirs of her the said Isabell ought to have reverted after the decease of her the said M. wholly should remain to the afore-I and I. and his Heirs aforesaid to hold together with the aforesaid tenement which to them by that fine remained of the aforesaid R. and Isab and the Heirs of her the said I. by the aforesaid services as aforesaid for ever And Tail the same R. and Isab likewise have granted for themselves and the Heirs of her the said I. that they would warrant to the aforesaid I. and I. and their Heirs the aforesaid tenements with the appurtenances as aforesaid against all men for ever And if it should happen that the same I. and I. should die without Heirs of their bodies issuing then after the decase of them the said I. and I. the aforesaid tenements with the appurtenances as aforesaid should wholly revert unto the aforesaid R. and I. and the Heirs of her the said I. quite from other Heirs of the aforesaid I. and I. to hold of the chief Lords of that Fee by the services which unto the aforesaid tenement do belong for ever and the aforesaid R. and I. afterwards died whereby unto them the said I. T. and I. belonged to have of the aforesaid I. H. as son and heir of him the said I. his warranty aforesaid And one I. R. arraigned a certain assise of novell disseisin before T. W. and I. Justices of the Lord Protector now at the Assizes in the County aforesaid assigned to be taken against them the said I. T. and I. of the aforesaid tenementse and the same I. T. I. have often required him the said I. H. as son and Heir of her the said Isab to warrant to the same I. T. and I. the aforesaid tenements and the same I. H. those tenements so to warrant hath denyed and as yet doth deny whereupon they say that they are the worse and have damage unto the value of 100 l. And thereupon they bring sute c. A Count upon a deed with warranty I. T. was summoned to answer H. W. of a Plea that he render to him one Messuage c. with the appurtenances in B. which of him he holdeth and of him doth claim to hold and whereof he hath his Charter and whereupon c. he saith that whereas the aforesaid I. was seised of the tenements aforesaid with the appurtenances in his demeasne as of Fee and so thereof being seised by his certain Charter which the same H. here in the Court bringeth forth the date whereof at B. tali die Anno. c. did give grant and confirm to the same H. the Tenements aforesaid with the appurtenances Inter alia per nomen amongst other Lands c. by the name as in the Deed c. to have to the same H. His Heirs and assignes for ever and did bind himself and his Heirs to warrant to the same H. his Heirs and Assignes the tenements aforesaid with the appurtenances against all men for ever And the same H. by virtue of that gift oâ— the tenements aforesaid was seised in his demeasne as of Fee and one T. arraigned against him the said H. an assise of novel disseisin of the aforesaid Messuage and Lands with
as at any time had been in the first or second vouchee or any of them or either of their ancestors whose Heirs he or they are of such estate and as well of every reversion thereon dependant as also of all Leases Estates Charges and Incumbrances derived out of any such reversion or remainder Of What things Writs of Entry may be brought and by what means PRecipe quod reddat lyeth of one Acre of Land covered with water or of an Acre of Land 12 H. 7. f. 4. of a water pit 10 Ed. 3. and 14. E. 3. 482. Fitz. Nat. br fô 191. H. and of a passage beyond the water Fitz. Na. br fo 191. I. of a Bailywick 34 E. 3. 423. of an office 27 H. 8. f. 12. of the Advowson of a Church or of the fourth part of Tythes 34 E. 3. of a Portion of Tythes Dyer fo 84. pl. 83. of a certain parcell of Land Dyer fo 84. pl. 83. of the wardship of Land and of an Heir or of the wardship of Land Register 161. 22 E. 3. fo 19. Precipe quod reddat lyeth of all manner of Ecclesiasticall or spirituall profits as of a Rectory Vicarage Portions Pensions Tithes c. by the Statute of 32 H. 8. cap. 7. of all and all manner of Tythes greater mixt and lesser within the Town Hamlet of B. in the County of A. by whatsoever mean growing hapning and yearly renewing c. Thel li. 8. ca. 9. 8. 2. of the fourth part of disines and offerings of the Church of S. P. c. 16 E. 3. In old time de hida terrae per Glanvile de carucatu terrae 4 E. 3. 161. de bovat terrae 6 E. 3. 291. of 6. foot of Land in length and four foot in breadth 14. Ass 13. A Precipe quod reddat lyeth of a Toft and of the scite of a Mill 14 E. 3 of the Hundred of C. and of the Bailywick of B. 34 E. 1. 3 E. 3. of pasture for 6. oxen 3 E. 3. fo 23. 4 E. 2. of a Rod of Land 3 E. 5. of an Advowson 34 E. 1. of a certain portion of Land 11 H. 4. fo 40. 5 H. 7. fo 9. of the moiety of one Rod of Land 41 E. 3. of a Shop Registr fo 2. a. of 4. Acres of Heath 11 Ass 13 of turbary by the name of More 8 E. 3. fo 387. and it lyeth in a Town and not in a Hamlet 8 E. 3. fo 55. 7 E. 3. 3. 6. Of what things a Writ of Entry lyeth not A Praecipe quod reddat lyeth not of a ditch nor of a Pool nor of a Fish-pond 8 E. 3. 381. nor of the Advowson of the Tythes of one wayn-land Registr fo 29. nor of Common of pasture 27 H. 8. fo 12. of estovers 2 E. 3. of Homage and Fealty nor of services to be done 6 E. 2. A Praecipe quod reddat lyeth not de Boveat Marisci 13 E. 3. fo 3. of a ridge of Land E. 1. for the incertainty because a felon or a ridge which is a Land sometime containeth an Acre sometime half an Acre sometime more and sometimes less It lyeth not of a Garden Cottage or Croft 14 Ass 13. 8 H. 6. 3. 22 E. 4. 13. of a Rod of Land 41. 43. 13 E. 3. of a Quarrey of a Mine of a Market 13 E. 3. for they lye not in demesne but in gain nor of an upper Chamber 3 H. 6. fo 1. A Writ of Entry ought not to contain one self thing twice as a Messuage and a house parcell of the same Messuage 3 E. 4. fo 28. 46 E. 3. 26. Nor to name a Town and a Hamlet within the same Town 22 E. 3. fo 14. 41 E. 3. fo 22. In every warrant of Atturney it is good to put two Atturneys at the least for fear of death In a County Palatine as Lancaster Duresme Chester c. may be put in a warrant one Atturney and one of the Justices Clerks If the Writ of Entry be returnable Crastino Martini the Writ of Summons ad warr thereupon must bear teste from that return of Crastino Martini and be returnable 9. returns after the return of the Writ of entre inclusive that is accounting Crastino Mar. for one of the 9. returns tres Paschae which is the 9. return after Crasti Martini for another And the Teste of the Writ of seisin must be the day of that ninth return and be returnable 15. dayes after Then the Writ of seisin may be retutned that seisin was delivered by virtue thereof to the demandant by the Sheriff of the County where the Lands lye upon any day not being Sunday between the Teste and return of the said Writ of seisin Then the Writs of Entre Summons and Seisin must be returned and field with the Custos brevium and the Judgement entred by the Prothonatory and the warrants of Atturney by the Clerk of the warrants If a single Recovery and a Fine be against the tenant the Writ of Entry must bear date and teste before the Writ of Covenant and be returned before If a Writ of Covenant be brought against the tenant and a Writ of Entre against the demandant then the Writ of Covenant must bear date and be returned before the Writ of Entre and this is called a double voucher A Certiorari to the Executor of the Justice before whom the warrrants were acknowledged OLiver c. to his beloved I. R. executor of the testament of Fr. R. lately one of our Justices of the Bench greeting We being willing for certain causes to be certified as well upon a certain warrant of Atturney by which H. S. did put in his stead W. B. and R. C. joyntly and severally against R. P. otherwise W. and R. H. of a Plea of Land in the County of E. as upon one other warrant of Atturney whereby H. L. and I. L. whom the aforesaid H. S. called to warranty did put in their places A. B. and F. R. joyntly and severally against the aforesaid R. and R. H. of a plea of Land in the said County of E. by the aforesaid F. R. lately taken and in your Custody being by reason of the execution of the testament aforesaid as it is said We command you that the warrants aforesaid to our Justices of the Bench at Westminster under your Seal distinctly and openly without delay you send and this Writ that the same Justices looking into the warrants aforesaid further in our Writ of Entre hanging before our aforesaid Justices at Westminster between the aforesaid R. and R. H. and the aforesaid H. and S. of one Messuage c. with the appurtenances in T. and D. in the County aforesaid and process thereof may cause to be done that which of right and according to the Custome of our Commonwealth of England ought to be done witness my self at Westminster the day of 〈…〉 in the year c. It is returned thus THe answer of the within named
aforesaid H. The Defence Hath not disseised hath disseised the aforesaid F. and R. S. of the aforesaid 12 acres of Meadow with the appurtenances as the same F. and R. by his Writ and Declaration aforesaid above do suppose And of this he puts himself upon the Country c. And the aforesaid F. and R. S. pray licence thereof of imparling And they have it c. And afterwards the same F. and R. came again here in Court in that same Term in their Default Judgement proper persons And the aforesaid R. H. although were solemnly called came not again therefore it is considered that the aforesaid Fr. and R. S. do recover their seisin against the aforesaid I. of the aforesaid 12. acres of Meadow with the appurtenances And that the same J. have of the land of the aforesaid T. to the value c. And that the same T. further have of the land of the aforesaid R. H. to the Recovery in value value c. And the same R. be in mercy c. And hereupon the aforesaid F. and R. S. doe pray the Writ of the Lord Protector to the Mercy Sheriff of the County aforesaid to be directed of causing plenary seisin to have to them of the aforesaid 12 acres of Meadow with the appurtenances And to them it is granted retornable here from the day of Easter in 15 days c. All and singular which things at the request of the aforesaid F. and R. S. by the tenor of these presents we have drawn to be exemplified In testimony of which thing our seal unto the writs in the Bench aforesaid appointed to be sealed to these presents we have caused to be put Witnesse E. A. at VVestminster the 12 day of Feb. 1654. When the Writ of seisin is returned the return thereof must be entred upon the same Roll whereupon the Judgement was entred Another to the like effect OLiver c. To all to whom these our present Letters shall come greeting Ye may know that among the Pleas of Land inrolled at Westminster before E. A. Knight and his dd ' vers teâ—â— Associates our Justices of the Bench to wit in the Term of St. Michael in the year c. in the second roll it is contained thus Nott. ss R. T. and R. B. in their proper persons demand against P. T. Gent. and W. H. Gent. the Mannors of H. and M. with the appurtenances and 20 Messuages The Count. 10 Tofts 1 Water-mill 2 Dove-houses 30 Gardens 500 acres of Land 200 acres of Meadow 60 acres of pasture 300 acres of Wood 1000 acres of Ling and Heath 50 Crofts of Moor and 20 s. rent with the appurtenances in H. M. D. c. as their right and inheritance And into which the same P. and W. have not entry but after the Disseisin which H. H. thereof unjustly and without judgement hath made to the aforesaid R. and R. within 30 years c. And whereupon they say that themselves were seized of the Defence for the lands Mannors Tenements and rent aforesaid with the appurtenances in his demeasne as of Fee and right in the time of peace in the time of the now Loâ—d Protector by taking thereof expletion to the value c. And into which c. And thereupon they produce suit c. Demandant against the Vouchee And the aforesaid P. and W. in their proper persons came and do defend their right when c. And call thereof to warranty G. M. Gent. who is present here in Court in his proper person And gratis the Mannors Tenements and rent aforesaid with the appurnances to them he warrants c. Count. And hereupon the aforesaid R. and R. demand against him the said G. Tenant by his warranty the Mannors Tenements and rent aforesaid with the appurtenances in form aforesaid c. And whereupon they say that themselves were seized of the Manors Tenements and rent aforesaid with the appurtenances in his demeasne as of Fee and right in the time of Peace in the time of the now Lord Protector by taking thereof expletion to the value c. And into which c. And thereof they produce suit c. Defence by the Vouchee And the aforesaid G. Tenant by his warranty defendeth his right when c. And furthermore calleth thereof to warranty D. H. who likewise is present here in Court in his proper person and gratis the Mannors The Revoucher Tenements and rent aforesaid with the appurtenances to him he warrants c. Demand against the 2 Vouchee And hereupon the aforesaid R. and R. demand against him the said D. being Tenant by his warranty the Mannors Tenements and Rent aforesaid with the appurtenances in form aforesaid c. And whereupon The Count against the 2 Vouchee they say that themselves were seised of the Mannors Tenements and rent aforesaid with the appurtenances in his Demeasne as of Fee and right in the time of peace in the time of the now Protector by taking thereof expletion to the value c. And into which c. And thereupon they produce suit c. Defence by the 2 Vouchees Non disseisivit And the aforesaid D. Tenant by his Declaration defendeth his right c. And saith that the aforesaid H. hath not disseised the aforesaid R. and R. by their Writ and Declaration aforesaid above do suppose And of this put themselves upon the Countrey c. And the aforesaid R. and R. pray Licence Imparlance thereof of imparling And they have it c. The default And afterward the same R. and R. came again in the Court in this same Term in their proper persons And the aforesaid D. although he was solemnly called came not again but in contempt of the Court departed and made default therefore it is considered that the aforesaid R. and R. do recover their seisin Judgement thereupon against the aforesoid P. and W. of the Mannors Tenements and rent aforesaid with the appurtenances And that the same P. and W. have of the Land of the aforesaid G. to the value c. And that the same G. further have of the Lands of the aforesaid D. to the value c And the same G. be in mercy c. And hereupon the aforesaid R. and Recovery in value R. pray the Writ of the Lord Protector to the Sheriff of the County aforesaid to be directed Mercy of causing plenary seisin to have to them of the Mannors Tenements and rent aforesaid with the appurtenances And to them it is â—anted returnable here from the day of St. Martin in 15 days At which day here came the aforesaid R. and R. in their proper persons And the Sheriff to wit I. B. Knight now returneth that he by vertue of that writ to him directed the 14th day of November last past caused plenary seisin to have to the aforesaid R. and R. of the Mannors Tenements and