deliver his goods in pledge after shal be condemned in personall actions there such Sheep or goods shall not be taken and put in execution untill the lease be determined or the money paid for the pledge Br. distresse 75. So it seemeth of Goods which are distrained for just cause as for rent amercement damage feasant such like and are impounded they are now in custodialegis as long as they are so they may not be taken in execution Br. pledges 28. If the Connusor enfeoffe the King that land is discharged from execution Fitz. 266. so all other lands of the King are exempted from distresses and executions Plowden 242. b. If many men be severally seised of lands and they all severally joyne in one recognizance Satute Merchant or Statute staple in this case the connusee may not extend the land of any of the Connusors onely but all the Connusors ought equally to be charged the one of them alone shall not beare all the burthen because they are all in equall degree and in executions which concerne the realty and charge of the land the Sheriff may not doe execution of the Land of the one alone Co. 3. 13. a 14. When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged because he himselfe is the person which was the debtor and which was bound and therefore he and his lands may be solely charged Co. 3. 14. Br. suite 10 12. And as to a purchasor of lands although their said Lands after the judgement recognisance or Statute be subject to the execution yet such purchasors have greater priviledges given to them by the law then the Connusor himselfe or his heires have So that if land of a purchasor be onely extended for the entire debt such purchasor shall have contribution against all the others of the purchasors and against the connusor or his heir but note that by this word contribution it is not to be understood that the others shall give or allow to him any thing by way of contribution but ought to be intended that the purchasor or party which hath his lands onely extended for all may by Audita querela or scire facias as the case requireth defeate the execution and therby shall be restored to all the meane profits and drive the Connusee to sue execution of all the land so that in this manner every one shall be contributory that is the land of every ter-tenant shall be equally extended co 3. 14. But if the Connusor enfeoffee the connuse of parcell of the land and a stranger of another parcell and reserve parcell in his hands now the connusee shall not have execution against the stranger or any other Feoffee for all shall be extinct against the Feoffees but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands If connusor of Statute Merchant or statute Staple be taken and die in Execution yet the connusee shall have execution of his lands and goods co 5. 86. 87. Fitz. 246. b. If the connusor upon a Statute c. be taken in execution and escape yet his goods and lands upon the same statute may be extended for the escape and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co 5. 86. By the statute of 3. Jacobi cap. 8. no execution shall be stayed or delayed by Writ of Error or superseded for reversing of any judgement in any action of Debt except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given to prosecute the said Writ of error with effect and to pay all the debt damages and costs c. if the judgement be affirmed and also costs and damages for such delay And therefore if a man be condemned in any court and his body put in execution and after he procures a Writ of corpus cum causa or certiorari to be directed to the Sheriff to remove his body there the Sheriff upon the said Writ ought to return the truth scil that his prisoner is condemned by judgement given against him upon which the Prisoner shall be forthwith remanded to prison there to remaine untill he hath satisfied the Plantiff 2 H. 5. cap. 2. Fitz. 151. e. If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor then it seemeth that the said statute hath lost his force against both see the Register 147. If execution be sued of the body and of the land and after the connusor enfeoffeth the connusee of the Land or surrender parcell descended to him in all these cases the body shall be discharged for by discharge of part of the thing in Execution all is discharged Plow 72. b When the extent upon a Statute is satisfied and ran out by efluxion of time the Connusor may enter againe Co. 4. 67. But when the extent is satisfied by casuall profit the Connusor must have a Scire facias ibid. Defeasance to a Statue made after execution is good and defeateth aswell the Statute as the execution thereupon Co. 6. 13. But note where the Statute of Actor Burnell is that if the Prisors of the goods of the Connusor prize them too high in favour of the Debitor and to the dammage of the Creditor the things so prized shall be delivered to the Prisors by the same price and they to yield the Credtior his debt these Statutes are penall and extend not to any other Writs of execution but upon the Statute Merchant or Staple or recognizance and therefore upon a Writ of Elegit or other Writ of execution upon judgement if the extenders or prisors praise the lands or goods too high the Plantiff scil the Creditor hath no remedy Benl 4. P. and M. Note that when the lands or goods are delivered to the extenders they forthwith shall answer to the Creditor his debt by the words of the Statute and yet they shall not pay the money untill the daies assessed and limited in the extent Plow 205. b. If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate yet he hath no remedy Stat of Actor Bur. for in such cases the Debitor may pay the money and recover his lands and good 15 H. 7. 15. The creditor may well refuse to accept because the Sheriff will not deliver but parcell of the lands of the Connusor for if he accept it he shall be concluded to demand all afterward Fitz h. execution 84. 88. Execution upon a Recognizance REcognizance is an obligation of record acknowledged in any Court of Record or before any Judge or other Officer having authority to take it as before the Judges of the Kings Bench or of commons Pleas the Barons of the exchequer the masters of Chancery the Justices of Peace
carry them to the market or faire and there selleth them this sale doth bar me of the property of my goods saving that if it be a horse he must bee ridden two hours in the Market or Faire between ten and five of the Clock and Tolled for in the Tolle-Booke and the seller must bring one to avouch this Sale known to the Tolle-book-keeper or else the Sale bindeth not and for any other goods where the Sale in a Market or Faire shall bar the owner not being the seller of his property it must be sale in a Market or Faire where usually things of that nature are sold As if a man steale a horse and sell him in Smithfield the true owner is not barred by this Sale but if hee sell the Horse in Cheap-side New-gate or Westminster Market the true owner is not barred by this Sale because these Markets are usuall for Flesh Fish c. not for horses So as where by Custome of London every shop there is a Market all the dayes of the week saving Sun-daies and Holly-daies yet if a peice of Plate or a Jewell that is lost or a chaine of Gold or Pearle that is stollen or borrowed be sold in a Draper or Scrivenors Shop or any other but a Gold-smith the sale barreth not the true owner sic in similibus The owner may seise his goods after they are stollen wheresoever hee findeth them except they were sold in a Faire or Market and that bona fide without fraud But if the Thiefe bee condemned of the Felony or out-lawed for the same or out-lawed in any personall Action or have counted a forfeiture of goods to the Crowne then the true owner is without remedie and yet if after the goods were stolen the true owner maketh fresh pursuite after the thiefe taketh the goods with the theef hee may take them againe and if he make no fresh persuit yet if hee prosecute the Felon so far as Justice requireth as to have him arraigned indited and found guilty though he be not hanged nor have judgement of death in all these cases he shall have the goods againe by a writ of a restitution to the party in whose hands they are No Sale on a Sunday or Holiday shall be said a sale in Market Overt to alter the property Waive A Theife having stollen goods being pursued flyeth away and leaveth the goods this leaving is called a waving and the property is to the King or to the Lord of the Mannour where it was wayved But if the Felon be Indited Adjudged found guilty or unlawed at the suite of the owner of these goods he shall have restitution of them as before Stray Property in live Chattel is thus gotten when they come into other mens grounds then the party or Lord into whose grounds or Mannours they come causeth them to be seised and with a Withe put about their necks and to be cryed in three Markets adjoyning shewing the Markes of the Cattel which done if the true owner claime them not within a yeare and a day then the property of them is in the Lord and if the stray remaine with the Lord eight or ten Months and then strayeth away to another Lordship and is seised by a second Lord the first Lord hath no remedy to have it againe Wrecke Where a man Dog or Cat escape alive out of Ships it shall be no wreck but the things shall bee prized by the Sheriffe or Coroner and delivered to those of the Towne where they be found to answer them So as if any within the yeare and day prove that the goods bee his they shall be restored to him Westminster cap. 4. Treasure hid in the earth not upon the earth nor in the Sea and Coyne though not hidden being found Treasure Trove is the Kings Stanford 410. 10 Eliz. Plowden fo 322. If a man be out-lawed Indited of Felonie or Treason Forfeitures or confesse it or be found guilty of it or refuse to be tryed by Peeres or Jury or be attainted by Jury or fly for Felony though hee be not guilty or suffer the Exigent to bee awarded against him although hee be not outlawed or go over the Seas without License all the goods he had at the judgement hee forfeiteth to the Crowne except some Lord by Charter can claime them for in those cases prescription will not serve except it bee so ancient that it hath had allowance before the Justices in Eire in their circuites Execution sued in personall Actions or in the Kings Bench in ancient time Recoveries in personall Actions are of two sorts either to have execution of the profits of the land and Chattels or a capias ad satisfaciendum In those of the first sort execution shall be of any land which the party had the day of the judgement given but for Chattels though it be Leases for yeares only those which he had the day of the execution sued So as if he sell his goods bona fide after judgment before execution sued forth those goods are not liable to the Execution Or if a Writ of Execution be sued forth and never returned and after the Defendant Alien his goods and the Plantiffe purchase another Writ which is returned yet the Execution shall not be of these goods for Writs which never are returned are not of record nor of any force at all but an alienation made after the teste of that second Writ had been nothing worth Old Na. Br. 165. 42. E. 3. 11. 2. H. 4. 141. Executors with all things incident to that Office Executors BY Executor-ship goods are gotten when a man is possessed of goods maketh his last Will and Testament in writing or by word and maketh one or more Executors thereof these Executors have by the Will and death of the parties all the property of their goods Chattels Leases for yeares Wardships and extents and all right concerning those things Those Executors may meddle with the goods and dispose them before they prove the Will but they cannot bring an Action for any debt or duty before they have proved the Will The proving of the Will is thus they are to exhibit the Will into the Bishops Court and then they are to be sworne and the Bishops Officers are to keep the Will Originall and certifie the Copy thereof in Parchment under the Bishops scale of Office which Parchment so sealed is called the Will proved Administration and Executors By letters of Administration property in goods is thus gotten when a man possest of goods dieth without any Will there such things as the Executors should have had if he had made a Will were by ancient law to have come to the Bishop of the Diocesse to dispose for the good of his soule that died he first paying his funerall and debts and giving the rest ad pios usus This is now altered by the Statute Law so as the Bishops are to grant Letters of
because that by a Release of Demands all the meanes and remedies and the causes of them which any hath to Lands Tenements Goods Chattels c. are extinct and by consequence the right and interest to the thing it self But note although that a Release of all Demands be of so great extent yet that extendeth not to such Writs by which nothing is demanded neither in fact nor in Law by doing onely to releive the Plaintiff by way of discharge and not by way of demand A Release of all Demands is not a bar in a Writ of Error to reverse an Outlawry By a release of all demands Rent-seck all Actions mixt Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons Profits apprender Conditions before they be broken or performed or afterwards Annuities Recognizances Statutes Obligations and Contracts c. are released and discharged If a man by Dead covenant to make a house or to make an Estate and before the Covenant broken the Covenantee release to him all Actions Suits and Quarrels that is no discharge of the Covenant because that at the time of the Release nothing was due nor was it any debt or duty or any cause of Action in esse but in this case of all Covenants is a good discharge of the Covenant before it be broken A Release of all duties extendeth to all things due which is certaine and therefore dischargeth Judgments in personall Actions and Executions also If the Plaintiff after Judgments release all Demands the execution is discharged By a Release of all Quarrels all Causes of Actions are released although no Action be then depending Coke 10. pars fol. 51. 38 H. 8 Release 6 H. 7. 15. 19 H 6. 3. 4. 40 E. 3. 22. 5 Eliz. Dyer 217. By a Release of all Suites the execution is released If a man be in Execution If a man make a Lease for ten years the remainder for twenty years he in remainder releaseth all his right to the Lessee he shall have an estate for thirty years for one Chattell cannot drown in another and yeares cannot be consumed in years Cokes Littleton 260. b. Co. 6. pars fo 47. a Release of all Debts or Duties he is to be discharged of the Execution because the Debt or Duty is discharged If Judgment be given in an Action of Debt and the body of the Defendant is taken in execution by Capias ad satisfaciendum and afterwards the Plaintiff releaseth the Judgment by that the body shall be discharged of the execution In an Action of Debt brought by Hoe in the Kings Bench If a rent be behind for twenty years and the Lord do make an Acquittance for the last that is due all the rest are presumed to be paid And the Law will admit no proof against this presumption Cokes Littleton fol. 373. Phelix Marshall was baile for the Defendant and afterwards before any Judgment given the Plaintiff released to Pehlix all Actions Duties and Demands and after Judgment was given against the Defendant and upon a default of the Defendant Scire facias went out against Phelix Marshall who pleaded the said generall Release upon which plea the Plaintiff demurred And it was adjudged that this Release shall not bar the Plaintiff for the words of the baile are conditionall viz. Si contigeret predictum defendentem debit dam. ill prefat quer minime solvere aut se prisonae Mareshalss ea occasione non reddere c. So that it may not be by the said Baile any certaine duty untill Judgment be given for before that none may know to what summ the Debt and Damages will amount to he which is baile for the Defendant is not bound in any certaine summ at the first but his Recognizance being generall shall be reduced to a certainty by the Judgment and not before The effect of a speciall bail given in the Kings Bench. The Condition c. That where the above named H. C. and one R. H. in their proper persons have undertaken so the above bounden C F. by a Recognizance or Mainprise taken and knowledged before the Justices of the Kings Bench at Westminster that if it happen the said C. F. to be condemned in any Action at the suit of T. B. Esquire that then the said R. H. and H. D. did grant all Costs and Damages and Executions which should be judged to the said T. B. in that behalf should be levied to the use of the said T. B. of the Lands and Chattels of the said R. H. and H. C. if so it be that the said C. F. do not pay the same Damages himself to the said T. B. or restore and yeild himself againe by meanes thereof to the Prison of the Marshall of the Marshalsey if the said C. F. his Heires c. and every of them at all times hereafter from time to time do well and truly acquit discharge or save harmlesse the said H. C. and R. H. their Heires c. and every of them against the said T. B. his c of and for the breach and forfeiture of the said Recognizance and Mainprise and of and for the execution of the said Action whereupon the same Recognizance and Mainprise was so taken and knowledged and also of for and upon all other Bonds Obligations and Recognizances wherein the said H. C. standeth bound to any other person or persons for and in the behalf of the said C. F. that then c. Cases in Law of divers and sundry manners and matters I. A. by Indenture bearing date the third of May Livery and seisin void but if in this case Livery be made by the Lessor himself at the day that this Lease in futuro is to commence then the Lease is good but if by Attorney then void vide plus de hoc fol. 50. fol. 51. leaseth a Messuage to B. to have to the said B. from the Feast of the Annunciation of our Lady then next coming for the terme of his life and Livery is executed the tenth of March following the Livery in this case is void because every Livery ought to vest the Freehold in him to whome the Livery is made at the time of the Livery and this Grant did not commence untill the Annunciation following so that the livery could not bring a possession before the terme was to begin and where there is no Estate present whereunto the livery may be annexed nor whereunto it may unite in the mean time then such livery is void Plowden fol. 156. An estate of Frank-tenement at the Common Law may not commence in futuro A Frank-tenement be it in possession reversion or remainder may not be limited to commence at a day to come but ought to take effect forthwith in possession reversion or remainder as if a man make a lease for life to begin at Mich. next that is void so if a man make a lease for life to have from the date
such lease or terme yet false recitall notwithstanding if the Sheriff sell also all the interest that the Debitor hath in the said land that sale is good Also the Sherriff need not to mention any certainty of a terme in his returne of Fieri facias but generally quod fieri fecit de bon catall c. Note that it is at the election of the Sheriff to extend or to sell a lease or terme as long as it remaineth in the hands of the Debitor scil the Sheriff at his election may sell that quite or he may extend and deliver it to the Connusee at a certaine yearely value as of Frank-tenement and there the Connusee to whom the terme is delivered hath a property which is uncertain and the Lessee or connusor himselfe hath another propetty so that upon the payment of the debt or upon the debt received of the revenew of that by the connusee the connusor shall have his terme Plow 5. 24 Co. 8. 171. Note there a diversitie between the sale by the Sheriff of a terme and an extent of a terme and that upon sale of a terme by the Sheriff the partie hath no remedie to have his terme againe if any remain after the debt satisfied as it seemeth Execution upon Capias ad satisfaciendum NOte upon a Capias ad satisfaciendum although the Defendant be not found the Plantiff may not have another execution 20. E. 2. and this capias ad satisfaciendum is onely against the body which the Sheriff must be sure to keep safe or else perhaps pay the debt himselfe and therefore if the Sheriff shall take a upon a Capias ad satisfaciendum to him directed or shall have any prisoner to him committed for debt upon any execution and he after shall let the Prisoner goe at liberty before the debt be satisfied the Creditor may either have his action of debt against the Sheriff and shall recover his debt or the Creditor may have his action of the case against the Sheriff 22 H. 7. 23 Fitz. 93. a. c. And if the Prisoner doe escape of his owne wrong against the Will of the Officer although he escape and get out of sight or into another County where the Sheriff or Officer hath no authority yet if fresh suite be made and he be taken again upon the fresh suite he shall be said to be still in execution Co. 3. 52. And if the Prisoner do escape against the will and without the consent of the Sheriff or his Officer may then the Sheriff or his Officer take him again where or whensoever hee can find him by vertue of the same Writ before the returne thereof yea though it be in another County And if that the prisoner which so escaped be followed with fresh suite and taken again before an action be brought by the Plantiff against the Sherriff for the escape it shall be adjudged no escape Co 3. 44. 52. And if the Plantiff hath brought his action against the Sheriff for the escape before he hath taken the prisoner againe Or if upon the escape the Sherriff or his Officers did not make fresh suit after the Prisoner yet in both these cases if the escape were against the will of the Officer the Sheriff may take such prisoner again and keep his body in custody untill the prisoner hath made his agreement with the Sheriff or otherwise the Sheriff may have his action upon the case against such prisoner for such his wrongfull escape if the prisoner that so escaped be able to make him satisfaction And the prisoner in these cases shall not be relieved because the escape was of his owne wrong and without the consent of the Sheriff or Officer co 3. 52. If the connusor of a Statute Merchant or Staple is taken and dies in execution yet the connusee shall have the execution of his goods and lands Co. 5. 87. Connusor upon a Statute is taken and escape yet his goods and lands upon the same statute may be extended For although by the law unica tantum fiat executio yet that is to be understood of an execution with satisfaction Where 2. men are condemned in debt and the one is taken and dieth in execution yet the other may lawfully be taken in execution co 5 86. So if two be bound joyntly and severally in one Obligation and the one is sued condemned and taken in execution yet the other also may be sued and taken in execution untill the Plantiff be satisfied in deed of his intire debt co 5. 86. If a man hath judgement in an action of debt and after the judgement outlawes the Defendant there if the Defendant be taken by Capias utlegat at the suite of the King he shall be in execution for the Plantiff if he will co 5 88. Also in all cases when the Plantiff may have a cap. ad satisfaciendum and the defendant is taken by cap. pro fine there the Defendant is in execution forthwith if the Plantiff will without any prayer of the partie co ibidem And in such cases if the Sheriff suffer such prisoner to goe at large it seemeth to be an escape and that thereby the Sheriff is subject to pay the Plantiff his debt Fitz. 121. p. By the law those which are in execution ought not to goe at liberty within the prison much lesse abroad though with their keeper but such prisoner ought to be keept in arcta salva custodia yea the Sheriff may keep such as are in execution in Gives and Fetters to the intent that they may the sooner pay and satisfie their creditors 13 E. 1. cap. 11. 2 R. 2. cap. 12. co 3. 44 Plow 360. a Where the Sheriff hath one in execution for debt an Habeas Corpus commeth to him to have the body in the Kings Bench at a certain day and he carrieth his prisoner to London to an Inne c. and the Prisoner of his owne head goeth at large and after commeth againe to the Sheriff so as the Sheriff at the day of the returne of the Habeas corpus doth deliver the body in court this was adjudged to be no escape for that the commandement of the Writ is performed scil to have the body in court at such a day and in such case the Sheriff may go and take what way or place he shall think to be most sure and safe for himselfe and to carry his prisoner co 3. 44. It was adjudged if one being in execution no commandement although of the K. himselfe without Writ is sufficient Warrant to discharge the Keeper c. and so by the same reason shall not discharge the Sheriff But note that inasmuch as escapes are so penall to Sheriffs Bayliffs of Liberties and Goalers the Judges of the Law have alwaies made a favourable construction as much as the law will permit in favour of the Sheriffs Bayliffs of Liberties and Goalers who are Officers and Ministers of Justice co 3. 44. Note if
a man recover debt or damages against against another he may chuse to have a cap. or elegit but if he take the Capias he shal not have the Elegit afterwards nec e converso 15 H. 7. 15. Fieri facias THis Writ of Fieri facias is onely against the goods scil Leases for yeares or moveables goods as Cattel Corne House-hold-stuffe Money Plate Apparrell and this Writ ought also to be sued within the yeare after the judgement Co. 3. 12. In the execution of a Fieri facias it is the surer course for the Sheriff either to keep the goods untill the parties be agreed or else to take good security of the Plantiff to defend and save him harmeless and to stay the returning of his Writs untill he may be well advised what to doe therein But if he take a bond of the Plantiff it is questionable whether it be good or no in law and not within the compasse of the Statute of 23 H. 6. ca. 10. to be taken colore Officii But the safest and surest course for the Sheriff or Officer is not to take in execution or not to meddle at all with any such goods as shall not not plainly appear to them to be the proper goods of the Defendant for it seemeth that the Officer is bound at his perill to take knowledge whose the goods are or at lest that they be the proper goods of the defendant Note that after the Fieri facias a man may have the Elegit but not e contra because the Elegit is of a higher nature then the fieri facias Upon a fieri facias the Sheriff may sell a Lease or terme of yeares and upon a fieri facias the Sheriff ought to sell to levy the debt Co. 5. 90. Co. 8. 171. Upon a fieri facias if the Sheriff sell the goods and after the judgement is reversed in a Writ of Error yet the defendant shall not have restitution of his goods but the value of them for what they were sold and those which so buy such goods of the Sheriff may lawfully enjoy them for the Sheriff which made the sale had lawfull authority to sell and by the sale the Vendee hath absolute property in the goods and if the sale of the Sheriff by force of the Fieri facias shall be avoided by subsequent reversall of the judgement then no man will buy and by consequence no execution shal be done Co. 5. 90. and 8. 96. and 143. Levari facias THis Levari facias is onely to be executed upon the profits of the Lands and upon the goods or the Sheriff may hereupon take the rents payable by the tenants in execution for the debt and bring them in Court but he cannot seise the land and deliver that to the party by this VVrit Plow 441. a. and this ought to be sued within the yeare after the day of payment to be made by the recognizance or after the judgement for after the yeare the Connusee or Plantiff is now by the Statute of Westminster 2. cap. 45. to have a scire facias whereby the Sheriff is commanded that he give knowledge to the Defendant that he appeare in the Chancery at a certaine day there to shew what he can say why he should not pay the debt or dammages and if he come not at the day or doe come and can say nothing why execution ought not to be done then the Sheriff shall be commanded to do execution Fitz. 266. c. And if the Sheriff upon the Levari facias shall returne that he hath levied part of the sum scil 20 l. part thereof which he hath delivered to the party now upon this returne the party which ought to have the money may have a sicut alias Levari facias directed to the Sheriff to levy the residue of the sum Fitz. 265. h. Summons SUmmons is a Writ to the Sheriff to cite or warne one to appeare at a certaine day and the Summons must be made by or in the presence of two or three Summoners and these summonitors ought by law to be liberi legales homines as it seemeth In Summons in reall actions the Summoners in the presence of the Pernors or Veiors ought to summon the tenant first to keep his day of the returne and to name that in certainty to answer c. Secondly they ought to name the name of the demandant and Lastly they ought to name the Land in demand co 6. 54. This word Pernor seemeth to signifie the Pernor of the profits of the land or the Occupier or Farmer therof And this Veior to signifie such as are sent by the Court to take view of the place in question for the better decision of the right Minshaw Note that the Defendant ought alwaies to be summoned 15. daies at the least before the day of the returne of the Writ 28 E. 1. cap. 15. Fitz. 177. Note when the Tenant appeares by the summons he may not take advantage after to say that he was not well summoned and so if he bee essoined for all that affirmeth the Summons 46 E. 3. Br. Summons 22. Note also if the Sheriff shall summon him which hath no land to or by his person and shall returne him summoned it is good And in Actions of annuity Covenant or the like Summons is the process hath he land or not and where a man hath no land where he may be summoned there the Sheriff may summon him by his person 33 H. 6. 4. H. 7. 7. In a Writ of right of Advowson the Sheriff may summon the Defendant in the Church Br. returne 101. 11 H. 6. In a quaere impedit the Sheriff may summon the Defendant in the Church IX H. 6. and so by advise it was done inter Lancelotum episcopum Eliens and the Author of this book Anno 16. Jacobi regis In a Praecipe against 4. the Sheriff cannot summon the one but that is a summons to all 3 E. 4. Br. Summons 10. In a Praecipe there ought to be two summoners for if there be but one and the Tenant maketh default and loseth by default he shall have a Writ of disceit against the Sheriff Plow 393. Note that the Tenant may wage his law of non summons and yet a corporation recluse and decrepit may not do their Law but their summons shall be tryed by the country 33 H. 6. fo 8. Thel 334. Quaere Attachment ATtachement cannot bee by land nor by Chattel reall as a lease for yeares 7 H. 6. 27 H. 6. neither may a Table dormant or any other thing fastened unto the free-hold be attached 21 H. 7. fo 26. but an Attachment must be made by mooveables which may be forfeited by outlary and which shall be forfeited by the default of the party if he appeare not Br. 1. 4 In debt trespasse or the like a man ought not to attach the Defendant by his horse whereupon he rides where he hath other goods whereby he may be attached
THE LAW OF CONVEYANCES SHEWING The Natures Kinds and Effects of all manner of Assurances with the manner of their several executions and operations ALSO Directions to Sue out and Prosecute all manner of Writs of Extent Elegit and Judiciall Writs upon Statutes Recognizances Judgments c. A Warrant to Summon a Court of Survey And the Articles to be given in Charge and Inquired of in that Court With an Exposition of diverse obscure Words and Termes of Law used in Ancient Records c. AND ALSO Plaine Decimall Tables whereby may be found the true Values of Lands Leases and Estates in Possession or Reversion With a Concordance of Years c. By JOHN HERNE Gent. LONDON Printed by T. R. for Hen. Twyford and Tho. Dring and are to be sold at their Shops in Vine Court Middle Temple and at the George in Fleetstreet neer Cliffords Inne 1656. TO THE READER Courteous Reader THIS Tract for the drawing and right managing of all the Essentiall and Accidentall parts of the Laws touching Conveyances and Assurances which before lay diffusedly in the Books of Law in large Volumes are here now methodically handled being Composed by a very eminent Lawyer and Great Conveyancer in the City of London lately deceased which coming into my hands and being by men of good judgement held to be of excellent use I was perswaded to make the same publick for the Generall good which I have done accordingly And for the further advantage of those that desire knowledge in Records and in Buying and Selling Land c. I have added an Exposition of many obscure and abstruce words used in the Book of Doomsday and in other ancient Records Charters and Writings And likewise very exact Decimall Tables wherby the value of Lands sold or let in Possession or Reversion may easily be knowne And also a Concordance of years from King William the Conqueror to this present time in which the yeare of our Lord and the yeare of the Reigne of each King are plainly set down I doubt not but this peice will be of much use and little Charge which is the onely desire and end of J. H. THE LAW OF CONVEIANCES OR A perfect explanation of all the essentiall and accedentall parts of all sorts of instruments for the conveying of all things whether corporall or incorporall and what words actions and circumstances are required by Law thereunto THe Office of the Premises of the Deed is to expresse the Grantor Grantee Premises and the thing to be granted The Office of the Habendum is to limit the Estate and to explane the Premises Habendum And his Office is to give to enlarge and to be persuing to the Estate contained in the Premises of the Deed but his Office is not to be repugnant contrary lesser nor to exclude any of the interest before given in the Premisses for if it so doth the estate precedent given shall stand and the habendum shall be voide As if a Feoffment be made to one and his heires by the Premises of the deed Habendum to him and his heires during the life of I. S. Or if a Feoffment be made to one and his heires by the Premises of the Deed Habendum to the lessee for terme of his life those words of limitation during the life of I. S. or during the life of Tenant for life are void words for that the Habendum is repugnant to the Premises vide Lo. Cokes 2. Reports Baldwins Case Fol. twenty three touching repugnancy between the Premises and the habendum Sometimes the habendum doth controll and qualifie the generall implication of the estate which passeth by construction of Law by the Premises of the Deed as for example A Lease to two habendum to one for life the remainder to the other for life this limitation doth alter the generall implication of the joyntenancy which would have been without the habendum and therefore the habendum voide in that the Premises doth make them joynttenants the habendum would sever the joynter and make the one to have the whole during his life and the other the whole after him Plowden fo 133. vide Sir Ed. Coke 2. Par. fo 55. Buchlers case such a remainder is good And if two acres bee given to two habendum the one acre to one and the other to the other that is a voide habendum because it excludeth the interest of the one in the one acre and of the other in the other acre where the Premises of the deed hath made them joynt-tenants of every parcell Remainders Every remainder ought to have these severall properties and things following as Notes and Rules to discerne and know when remainders are good But note that where a remainder is once well raised by the Livery and Seisin though the perticular estate be afterwards avoided by condition in Law as by a recovery in wast or if a Feme Tenant for life disagree to the Livery after the death of her husband c. Yet he to whom the remainder is limited shall be Tenant in taile in remainder vi 1. part Shellies case fol. 101. good cases upon this An estate precedent made at the same time the remainder doth commence As if the lessor confirme the estate of his Lessee for yeares the remainder in Fee this remainder is void because the estate for yeares was made before the remainder and not at the time of the remainder If the lessor disseise his Tenant for life and then makes a new Lease to him for life the remainder in in Fee that remainder is void because the Tenant for life is remitted to the estate which was made long time before the remainder appointed so the estate precedent was not made at the same time of the remainder and therefore the remainder void So if the heire endow his mother the remainder in Fee this remainder is void though Livery and Sesin be made to the mother because the dowre hath relation to the death of her husband and so for that the estate precedent was not made when the remainder was appointed the remainder is voide The perticular estate must continue when the remainder shall vest and the remainder must commence in possession at the very time the perticular estate endeth as well in Wills as in the grants for there may not a meane time between them As if one make a Lease for life and that a day after the death of Tenant for life it shall remaine over this remainder is void because the first estate is determined before the appointment of the remainder So if one make a Leese for life upon condition that if he doth not such an Act that his estate shall cease and that then it remain over in Fee this remainder is void because it doth not vest during the estate precedent The remainder must be out of the lessor executed or executory at the time of the Livery and seasin made and at the time of the possession taken by
to the Major to make Certificate notwithstanding the first Certificate and to have out of the Chancery a new Capias or no or whether at the suite of the Executors the Justices of the Bench might have awarded an alias Capias or a Writ of extent upon the first proceeding or not But it was agreed by the Court that no Scire facias did lie in this case but upon oath made by the Executors in the Chancery that the debt is not satisfied they shall have a new Certiorari to the Major c. to make a new Certificate of the Statute and so to begin all anew again Dier 180. Satute Staple THe Statute Staple is of two sorts or in two manners the one by force of the Statute 27 E. 3. cap. 9. the other by force of the Statute 23 H. 8. cap. 6. The first is an obligation of Record acknowledged before the Major of the Staple in presence of one of the Constables of the same Staple and is sealed with the seale of the Staple and Seale of the party but such Statute Staple shall not be taken but onely amongst Merchants of the same Staple and for Marchandizes of the same Staple 23 H. 8. ca. 6. The other is an obligation also of Record and of the same nature and force as the first is as to the execution thereof But it is acknowledged before the one of the chief Justices and in their absence out of Terme before the Major of the Staple at Westminster and the Recorder of London and is sealed with their Seales viz. with the Seale of the Connusor of the King and of one of the said Justices or of the Major and Recorder 23 H. 8. cap. 6. The formes of these Statutes Staple vide West 108. 109. Note that all Statutes Merchant and Staple shall be brought to the Clarke of the Recognizances within 4 Months and inrolled within six months or else such Statute shall be void against Purchasors c. 27. Eliz. cap. 4. A Statute Staple must be certified into the Chancery in the like manner as a Statute Merchant and upon that Certificate a Writ of execution shall go presently forth both against the body si laicus sit and against the lands and goods of the Connusor returneable in the Chancery in the petty-bagg Office there and not into the Court of common Pleas or Kings Bench as the Writs of Execution upon a Statute Merchant shall and upon the Writ of execution the Sheriff shall take the body of the Connusor and shall also per sacramentum proborum legalium hominum juxta verum valorem Fitz. 131 d. presently extend and price and shall seise into the Kings hands his Lands his Goods and Chattels and that extent and prizement or valuation of the Lands and goods shall returne and certifie into the Chancery as aforeraid and therupon the Reconusee shall have another Writ called a liberate to the Sheriff out of the Chancery to deliver to the Conusee those lands and goods to the value of his debt and upon that liberate delivered to the Sheriff then such lands and goods as are taken in execution shall be delivered to the Connusee by the Sheriff and not before And this execution shall be made in manner as is before declared upon a Statute Merchant 27 E 3. cap. 9. Plow 62. b. And so note that upon a statute Merchant the connusor shall bee imprisoned for halfe a yeare and if hee doth not sell his lands within the same time for to pay his debts then his lands shall be delivered to the obligee until his debt be satisfied And upon statute staple the Debitor or connusor after that hee is taken shall not have liberty to sell his lands and goods within the halfe yeare as he shall have upon Statute Merchant But by force of this statute Staple if the money be not paid at the day forthwith after certificate therof in the chancery the creditor may have Execution of the body Lands and goods of the Debitor ss the connusor shall be imprisoned and all his lands and goods shall be extended instantly 27 E. 3 cap. 9 Also note that upon Statute staple the extent shall be first made and returned and aftet a Writ of liberate shall be awarded but delivery shall not be made at the beginning untill the thing appeareth certainly by the return of the Sheriff Plow 62. b. All obligations and specialties made to the King or to his use for any cause shall bee of the same force as Statute Staple is 33 H. 8. cap 59. and so for obligations made by parsons for their first fruits 26 H. 8. cap. 39. The lands of many Accomptants to the King shal be liable and put in execution as if they had been bound in Statute Staple 13. Eliz. Cap. 4. The heir that claimeth by the gift of his Ancestor shall be bound to pay the Kings debt 33 H. 8. cap. 39. The heir in taile by the same Statute shall be liable to pay the Kings debt due by his Ancestor Plow 240. b. 249 b. 554. b. Fitz. 217. c. But if tenant in taile become in debt to the King by receipt of the Kings moneyes or otherwise unlesse that it be by judgement recognisance obligation or other specialty and dieth the land in the seisin of the issue in taile by force of the said act of 33 H. 8. shall not be extended for such debt of the King For the Statute of 33 H. 8. extendeth only to the said 4. cases and all other debts of the King remain at the common law Execution upon Statute IF Tenant in Taile become in debt to the King by one of the said 4. wayes scil by judgment recognisance obligation or other specialty and dieth and before any prosces or extent the issue in taile bona fide alien or Lease the Land intailed now this Land shall not be extended by force of the said Act of 33 H. 8. C. 7. 22. So where debt was originally due to a subject and after comes or accrues to the King by reason of attainder Out-lawry Forfeiture gift of the partie or by any other way or meane such debt is not within the said Statute of 33 H. 8. to charge lands intailed in the possession of the heir in taile Co. 7. 22. But lands in fee-simple were extendable at the common law for debt of the King into whose hands soever they should come and therefore as to them the said Statute of 33 H. 8. was not but a declaration of the ancient law Co. 7. 21. Two Joyntenants in fee the one of them being a debtor of the King dieth the other shall hold discharged Fitz. Execut. 113. The heire shall bee chargeable to pay debt of the King although he bee not named or that this word Heir be not comprised within the recognizance obligation or specialty 33 H. 8. cap 39. The King shall be preferred in his suit and execution before common persons by the Statute 9 H. 3.
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he
c. those which are meere Recognizances are not sealed but are inrolled And sometimes are sealed with the seale of the party and may be with condition annexed or may bee single and then to have indentures of defeasance Also the King may by his commission give authority to any man to receive connusance of another man and to returne it in Chancery and by vertue of such commission if the man knowledge it before a commission any debt to another to be paid to him at a certain day and that certifieth into the Chancery with the commission c. Now upon certificate made of this connusance if he doth not pay the debt at the day he shall have an elegit upon this recognizance so taken aswell as if it were taken in the Chancery Upon a Recognizance there shall not goe a Capias but a Scire facias returnable in Chancery and upon the returne thereof they use to award a Capias a fieri facicias or an Elegit at the election of the Connusee 48 E. 3. fo 14. Upon a Recognisance the connusee may not have an action of debt against the heire for the recognizance is quod tunc vult concedit quod dictae pecuniae summa de bonis catall terr tenementis c. levetur so that the charge is imposed upon his Goods and Lands so that debt lieth not therupon against the heire co 3. 15. Yet upon a recognizance acknowledged to the use of the King although the words of the recognizance are de bon catt terr tenemenntis c. levetur the King shal have liable to his execution as wel the body as the lands goods of his Debitor see co 3. 12. b 11 93. a. Execution by force of a Recognizance in case of a common person shall bee of all the Goods and Chattels of the Connusor except his Plowcattle and implements of husbandry and of the moietie of his lands west 103. Note that this word Recognizance extendeth oftentimes in our Books to Statute Merchant and Statute staple Execution by Elegit AN Elegit is a Writ judiciall and lieth for him that hath recovered debt or damages in the Kings Court and must be sued within the yeare Tearmes de ley By force of an Elegit the Sheriff may take in Execution and deliver unto the party scil unto the cerditor the one halfe of the lands of the Connusor and all his good and chattels praeter Boves affros de carvia sua saving onely his Oxen and beasts of his plow untill the debt be levied upon a reasonable price or extent And this is by force of the Statute of Westminster 2. cap. 18. which is the first statute that did subject land to be taken in execution or upon a recognizance which is in the nature of a judgement 13 E. 1 ca. 18. co 3. 12. This Statute of Westminster 2. which giveth the Elegit provideth quod Vicecomes liberet ei omnia cattalla c. medietatem terrae suae quousque debitum fuerit levat per rationabile praetium extentum which last word praetium is to be referred to Chattels extentum to be referred unto lands rationabile praetium extentum ought to be sound by inquisition and verdict scil the apprizing of the goods and the extent or valuation of the Lands ought to be per sacram 12. probor legalium hominum c. for the Sheriff himselfe cannot appraise the goods nor value nor extend the lands upon an elegit neither can the Sheriff upon an elegit deliver any goods in Execution or extend any lands but onely such as are appraised and valued by the Jurors of the inquisition Co. 4. 74. otherwise it seemeth of all other sorts of Executions The words of this Statute of Westminster 2 ca. 18. are thus liberent ei medietaeem terrae debiteris which by construction of Law is the moietie of all that he hath at the time of the judgment given or at any time after Co. 7. 19. and by the equity of that Statute the Sheriff may deliver to the Creditor or Connusee the moietie of the Rents Br. Parliament 10â— Plow 178. Also these words in the said statute quousque debitum fuerit levatum shall be intended be or might be levied for if the Conusee or tenant by elegit or tenant by statute Merchant or Staple neglect to take the profits yet when the connusee might have been satisfied of his debt according to the extent the connusor shall have againe his land but it seemeth he may not enter in such case but is put to his scire facias Co. 4. 82. If Tenant by elegit be outed by a stranger there the time shall on and he is put to his remedie against the trespasser ibm If the Connusee be outed by wrong by the connusor or by any other claiming under him for life or years c. the connusee shall hold over co 4 66. If the lands delivered in execution be lawfully recovered taken or evicted from the possession of the connusee before his debt be satisfied he shall have a scire facias and upon that a new writ of Execution Statute 32 H. 8. ca. 5. co 3. 87. This Statute of Westminster 2. cap 18. that giveth the elegit doth not extend to Copyhold Lands for it should be prejudiciall to the Lord and against the custome of the Mannor that a stranger should have interest in the land holden by copy where by the custome it may not be transferred to any without c. co 3. 9. Terme for yeares may not be extended by the Sheriff upon elegit without finding the beginning and certainty of the terme by inquisition for execution by elegit ought to be by inquisition and if it be found by the inquisition that the debitor was possessed of certain land per terminum quorandum annorum ad tunc ventur This inquisition is insufficient for they ought to find the certainty and the reason is because that after the debt satisfied the party is to have again his terme if any part thereof remaine which certainty of terme ought to appear upon the returne of the Sheriff as it seemeth Cok. 4. 74. But upon a Fieri facias the Sheriff may sell the lease or terme without reciting any certainty scil the Sheriff may recite that the Debitor hath a terme of such a thing pro terminis diversis annorum ad nunc ventur and that he sold that by force of a fieri facias to I. S. and that is good so if the Sheriff sell all the interest that the Debitor hath in the Land that is good notwithâ—standing misreticall for by the common intendment the Sheriff may not have precise connuzance of the certainty of the commencement and certainty of the end of the terme but if he take upon him to recite the terme and mistake it reciting it falsly and sell the same terme this sale is void because there is not any