to some of the neighbours of the towne where the goods were by them safely to be kept and by the opinion of M. Brook tit forfeiture 44. this order ought to be observed concerning the goods of every one which committeth felony untill he be attainted but yet the felon must have reasonable maintenance out of them for himselfe and his family in the meane time Plowden 68. Sur Statute Merchant of the body Lands and Goods Statute Staple of the body Lands and Goods Recognizance Elegit Of the moietie of the Lands and al the goods Executions Of the moiety of the Lands and of all the Goods of the Debitor Capias ad satisfact Of the body only Fieri facias Of the goods only Levare Facias Of the profits of the Lands and Goods Statute Merchant AN execution finall is when the Defendants lands are extended or his goods sold and delivered to the Plantiff who accepting this in satisfaction ends the suit Execution finall quousque An execution with a quousque and not finall is in the case of a Capias ad satisfaciendum where the body is taken to the intent to satisfie the Plantiffe but is no satisfaction but a pledge for the debt Note that the statute Merchant is a bond or obligation of record acknowledged before the Major of London York Bristoll or of other City or before the Bayliffe of any Burrough or Towne or before other persons there to that purpose appointed and it is sealed with the seale of the Debitor and of the King the forme wherof see Wests pre 106. If a Statute Merchant be not sealed by the party non valet 6 R. 2. Fitz. Execution 131. If a man be bound in a Statute Merchant and doe not pay the debt at the day execution shall be done thereof in this manner How the Statute Merchant shall be executed the money being unpaid at the day First the Connusee may come to the Major or other Officer before whom the Statute was acknowledged and pray him to certifie the same into the Chancery under his seale c. and if he will not certifie it then a Writ of Certiorare must be sued forth of the Chancery directed to the said Officer of the place where the Statute was knowledged to certifie the acknowledgement of the same Statute into the petty-bag Office in the Chancery Executions shall be of body and upon the certification a Writ of Execution ss a capias shall goe out against the body only of the Cognisor si laicus sit to take his body and command the Sheriff to keepe him safely in Prison untill he hath agreed for or fully satisfied the debt But the debitor after he is taken hath liberty given him within a quarter of a yeare to sell his lands and goods to discharge his debts and if he do not agree for his said debt within the next quarter Lands and Goods then all his lands and goods shall be delivered by the Sheriff to the Creditors upon a reasonable extent to hold untill the debt be paid and yet neverthelesse the body of the debitor shall remain in Prison untill the debt be paid And this Writ may be returnable into the Court of Common Pleas or into the Kings Bench. But upon the returne by the Sheriff of that Shire to whom the capias was directed quod laicus est non est inventus in Bal. sua then shall go out an extent against all the Connusors lands and goods and against his body see the Register 247. And upon such an extent come to the Sheriffs hands the Sheriff shall or may presently cause the moveable goods of the debitor to be prized and sold as far as the debt doth amount and the debt without delay to be paid Stat. Acton Burnell 13 E. 1. Note that if the Sheriff can finde no buyer he shall cause the same goods to be delivered to the Creditor at a reasonable price as much as doth amoūt to the debt and if the Prizers of the goods doe set an over high price to the damage of the Creditor then shall the things so prized be delivered to the prizors at the same price and they shall be forthwith answerable to the Creditor for his debt But the Sheriff must sell the goods to them which offer most for them And yet if the Sheriff shall sell them at an underprice it seemeth the Debitor hath no remedy Fitz. Extent 7. see the Statute of Acton Burnell If the Debitor have no moveables whereupon the debt may be levied then shall his body bee taken and kept in prison untill he hath made agreement 13 E. 1. If the Sheriff doe not returne the Capias or do return that the Writ came too late or that he directed it to the Bayliffe of some Franchise he shall be punished and yeild damages to the party grieved according to the Statute of Westminster 2. cap. 39. If the Sheriff returne that the Debitor is a Clark then shall there go out an extent against his lands and goods onely to be delivered upon a reasonable extent as aforesaid but his body shall not be taken If the Debitor found sureties which acknowledged themselves to be principall debitors after the day passed they shal be ordered in all things as the principall debitors scil for their bodies and delivery of lands and goods Stat de mercator But so long as the debt may be fully levied of the goods of the Debitor the sureties shall receive no losse Stat. de Acton Burnell And if any of these Debitors being in prison shall happen to escape the Sheriffe or Goaler must answer the body or the debt and therefore it behooveth the Sheriffe and Goler that the prisoners be safely kept Statute de mercator Note that when any Statute Merchant is certified into the Chancery and thereupon a Writ awarded to the Sheriff and returned into the Common place and the Statute there once shewed that howsoever the process after the same shewing be discontinued that at what time the party sueth to have the process recontinued and to have execution of the same Statute that the Justices of the Bench where the Statute was once shewed may upon the same Record make and award full Execution of the Statute Merchant aforesaid without having the sight thereof another time 5 H 4. cap. 12. And the Dier fo 180. Terminum Pasche anno 2. Eliz. where the Connusee of a Statute Merchant having the same certificate into the Chancery upon a certiorari directed to the Major thereupon sued a Capias against the Connusor returnable into the Bench at which day the Sheriffe returned non est inventus and the connusee there shewed the Statute as he ought and had another Capias before the returne whereof the Connusee died and it was doubted whether his Executors should have a scire facias against the Connusor or that they should begin of new ss to sue a new speciall Writ out of the Chancery
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.
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
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
that reversio terrae is the returning of the Land which is as much in sence as my Lord Dyer defineth it as the Land returning so that reversio terrae is terra revertens which is the Land in a certain degree that is to say when it is discharged of the perticular estate and possession thereof is come thither where the revertion was Plowden 160 196. Creation of Estates The Creation of all manner of Estates by the Habendum of the Deed. TO have and to hold to the said William Hum her his Executors Administrators and Assignes from the ensealing and delivery of these presents unto the end and terme Habendum and for and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing and fully to be compleated and ended if the said William Humber so long shall live and if it shall happen the said William to decease before the end and determination of that said Terme living the said Margaret then to have and to hold the same messuage c. from and immediately after the decease of the said William unto the said Margaret for and during the whole Terme of 100. yeares from thenceforth then next and immediately ensuing and fully to be compleated and ended if the said Margaret so long shall live and keep her selfe sole and unmarried and if it shall happen the said Margaret to decease before the end and determination of the said tearme or not to keep her selfe sole and unmarried during the said tearme then to have and to hold the said Premises unto Henry Humber Habendum To have and to hold to the said Edmund Clark and his Assignes immediately from and after the death and decease of the said Maud Symmes unto the end and tearme and for and during the whole time and tearme of 100 yeares from thenceforth next and immediately following fully to be compleated and ended if the said E C. so long live and to have and to hold the said Messuage c. to the said Jane C. and her Assignes immediately from and after the decease of them tâ—e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth c Note that in such a Lease all those that shall take in remainder Note must be made parties to the Lease To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof c from hence forth from the ensealing and delivery of these presents unto the end and terme and for during the whole terme of his naturall life and from and immediatly after the death of him the said R. I. the said Messuage or Tenement and all other the Premises with all and singular their and every of their appurtenances to remaine and be unto the said I. I. and her assignes for and during the tearme of her naturall life And after the death of the said R. and I. c. To have and to hold unto the said R. I. his Executors and Assignes for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid shall so long live To have and to hold to the Lessee and his heires during the lives of A. B. C. and the longest liver of them To prevent an Occupant this limitation shall prevent the occupant and yet the Lessee may assigne it to whom he will or if he hath already an estate for another mans life it were good to assigne his estate to diverse men and their heires during the life of ceste que vie For If A. hath Land conveighed to him for the life of B and A. dieth without making any estate of it whosoever first entreth into the Lands after the death of A shall have the Land during the life of B. For to the heire of A. it cannot goe because it is no inheritance nor to his Executors because it is not a testimentary estate that should goe to the Executors as goods and Chattels Limitations which do determine an estate without entrie or claime vide plus fo 17. To have and to hold to the Lessee quousque viz. untill I. S. come from Rome A Lessee to a woman quam diu casta vixerit or to a Widdow for her life si tam diu in pura viduitate vixerit or to another dummodo solverit talem redditum or quamdiu as the Lessee shall be dwelling on the Mannor or quamdiu the Lessee se benegesserit donee us quead quousque tam diu to have to the Lessee for 100. yeares if the Lessee so long live all these are limitations which do determine the estate without any entry or claime A Lease is made to A. and his assignes habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives and the longest liver of them Lo. Coke 5. part fo 13. A Lease to A. and B. for their lives A. dieth B. shall have it during his life it is an interest But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation Habendum reddendum To have and to hold unto the said I. W. his Executors and Administrators from and immediately after the time that the estate tearme and interest which the said I G now hath of in or to the Premises shall happen to be ended by the death forfeiture surrender or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll by Sir S. P. Knight deceased to the said I G. and I W. and to one Do. White deceased for the tearme of their lives and the longest liver of them successively at the will of the Lord according to the custome of the Mannor of R. aforesaid which said Copy of Court-roll beareth Date the fifth day of Aprill in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years from henceforth then next and immediately ensuing and fully to bee compleated and ended Reddendum if the said I. W. A. W. and B. W. or either of them so long shall live yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited at the Mannor house of the said Sir H. P. at Saparton aforesaid the sum of thirteen shillings four pence of currant english money at the feasts of St. Michaell the Arch-angell and the Anuntiation of the blessed Virgin Mary by equall portions the first payment thereof to begin and to be made
owne Child Attainders which give Escheat Attainder by Verdict Confession Outlawry Abjuration but upon either of them judgment must be given Forfeiture of Goods and Chattels Going beyond the Sea without license Exigent awarded in Felony though he yeild his body thereupon Clergy in Felony standing mute in Felony Felo de se Flying for Felony though he returne and be tryed and found not guilty These bring a forfeiture of all a mans Goods and Chattels as well reall as personall Attainder to what time it shal relate for the forfeiture of Lands and Goods Forfeiture He that is attainted of Felony by Verdict Confession or Outlawry doth forfeit all the Lands he had at the time of the offence committed so that he can do no Act afterward to encumber the Land If Tenant in taile be attainted of high Treason he shall forfeit for no longer time then for his owne life If a man have an Estate for life of himselfe or of another do commit Treason or Felony the whole Estate is forfeited to the King but no escheat to the Lord. But a Copyhold of Fees as for life is forfeited to the Lord and not to the Crowne and if it be entailed Forfeiture by a Copy-holder the Lord is to have it during the life of the Offender and then his Heire is to have it A man attainted may purchase Pardon Corruption of blood but it shall be to the Kings use untill the party be pardoned yet the pardon giveth not back their Lands or Goods without a speciall Patent of Restitution which cannot restore the blood without an Act of Parliament So if a man hath a Son and then is attainted of Felony and pardoned and then purchaseth Land and then hath issue another Son and dieth the Son he had before the pardon though he be his eldest Son and the Patent have words of restitution to his Lands yet he shall not inherit them but the second Son shall inherit them because the blood is corrupted by the Attainder and cannot be restored by Patent alone but by Act of Parliament And if a man hath two Sonnes Where a man shall be said to dye without Heire although he have one and the eldest is attainted in the life of his Father and dieth without issue living the Father the second Son shall inherite the Fathers Lands but if the eldest Son have any Issue though he dye in the life of his Father then neither the second Son nor the Issue of the eldest shall inherit the Fathers Land but the Father shall be there accounted to dye without Heire and the Land shall escheat whether the eldest Son hath issue or not though he be pardoned after the death of his Father Note that the Heires procreate after the Attainder shall not inherite the Lands of his Father nor of his Mother But the Heires begotten before the Attainder shall inherit the Lands of that Father and of that Mother which was not attainted but the Lands of his Father attainted or of his Mother which is attainted he shall not inherit although the King hath pardoned the Attainder The operation and effect of a pardon For a pardon doth but onely cleare the corruption of the bloud of these children which be borne after the pardon and so to make them capeable to inherit such lands which their Ancestor shall purchase at the time of the pardon or any time after but not to inherit such lands as the Ancestor was seised of before nor to purge the bloud of those children begotten before the pardon as to make them inheritable to any Ancestor Alien and Denizen A man seised of lands in Fee hath issue an Alien borne out of the Kings Leigeance he cannot be heire Propter defectum subjectionis though he be born within lawfull marriage if made Denizen by the Kings Letters patents yet cannot he inherit to his father or any other but otherwise it is if he be naturalized by act of Parliament for then he is not accounted in law Alienigena but Indigena but after one is made Denizen the issue that hee hath afterwards shall be heire to him but no issue that he had before If an Alien come into England and hath issue two sons these two sons Indigenae subjects borne because borne within the Realme and yet if one of them purchase land in Fee and dieth without issue his brother shall not be his heire for there was never any inheritable bloud between the Father and them and where the sons by no possibility can be heire to the Father the one of them shall not be heire to the other An Alien that is naturalized by Act of Parliament is to all intents and purposes as a naturall born subject differs much from denization by Letters patents for if he had issue in England before his denization that issue is not inheritable to his father but if his father be naturalized by Parliament such issue shall inherit so if an issue of an English man be born beyond Sea if the issue be naturalized by act of Parliament he shall inherit his fathers land but if he be made denizen by Letters Patents he shall not and many other differences there are between them An Alien borne out of the Kings leigeance his ancestors not being of the faith and leigeance of England is neither heire to inherit nor to purchase within this realme yet the Lord shall not have the escheate because he died without heire but the King which is the supreame head and the supreame person shall have this Land by the common Law But an Alien borne out of the Realme and within the Legiance of the King his Father and Mother being then and all their live of the legiance of the King shall inherit by the common Law Infants borne out of the Kings legiance the father and mother at the time of the birth being leigemen of England shall inherit by the Statute of 25 E. 3. so that the mothers of the children pass the Sea with the husbands leave and consent this statute extendeth all to children whose fathers and mothers were dwelling in England If an Alien marry here an english woman and hath issue this issue shall inherit to the wife the same law where the husband an English-man marry a woman that is an Alien and hath issue he shall inherit his father All which said trusts every one of them the said A. B. C. D. for himselfe severally and respectively Covenant severall no joynt covenant and for his severall and respective heire Executors and Administrators for as much as shall concerne him or them and his or their said heires Executors or Administrators c. doth covenant c. And the said A. B. C. D. do severally and respectively that is to say either of them for himselfe and by himselfe his severall heires Executor When Covenants are severall they are as severall Deeds written in one Parchment Coke 5. part fo 23.
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
it is if a man make a Feoffment in Fee upon condition that the Feoffee shall not take the profits of the Lands this condition is repugnant and against law and the estate is absolute But a Bond with condition that the Feoffee shall not take the profits is good If a man bee bound with a condition to enfeoffe his wife the condition is repugnant void and against law because it is against a Maxime in Law and yet the Bond is good Deeds suspitions to be forged Yet before anno 13 H. 8. the Deed do stile the King Defender of the Faith or Supream head before the 20. H. 8. such a Deed is a forged Deed. King H. 8. used not the stile of Supreame head in his Charters till 22. of his Raigne nor King of Ireland before 33. of his Raigne New Littleton fo 7. Age to bind man or woman 21. yeares is the full age for man or woman to make good any act they doe 14. their age of discretion and therefore that is the competent age to bind a man in matter of marriage 12. to bind a woman and 9. to deserve her Dower Remainder No remainder may commence upon any repugnancy or impossibility precedent nor upon any condition that goeth to the destruction of the particular estate for conditions alway enure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor Donor Lessor or their heires and as none shall avoid an estate formerly made by the Breach of a condition but onely the privies so none shall take a new estate by performance of a condition but onely the privies Generall Livery and speciall Livery the difference A generall Livery hath two properties first it is full of charge to the heire for he must find an Office in every County where he hath Land or else he cannot sue a generall Livery and he must sue out his Writ of aetate probanda The second property is it is full of danger first it concludeth the heir for ever after to deny any tenure found in the Office Secondly if Livery be not sued of all and of every parcell which the King ought to have whether it be found in the Office or not found the Livery is void and the King may reseise the Land and be answered of the meane profits so it is if the Office be insufficient or the process wherof the Livery was made be insufficient or the like the King shall re-seise Therefore for the ease of the heire and for avoiding such danger the heire for the most part sueth out a speciall Livery which containeth a beneficiall pardon and saveth the said charges and preventeth the said conclusion and other dangers which being of grace and not of right as the generall Livery is the King may justly take more for a speciall Livery then for a generall but ever with such moderation as the heire may ever goe cheerefully through with it 23 Eliz. 77.28 H. 8. One Mr. Shotbolt was bound in an obligation to one Hickman and in the Obligation he was named John Shotbolt which was mistaken but Mr. Shotbolt well perceiving his misnaming sealed and delivered the Obligation as his Deed and in Debt brought upon this Obligation against him by the name of William Shotbolt alias dictus Johannes Shotbolt he pleaded non est factum and this speciall matter was found by verdict at Guild-hall London and whether he should be charged by this Obligation and plea that was the doubt and the Postea was speciall ut supra and by the opinion of the Justices of the Bench the plantiff shall not recover upon this Verdict but it had been better for him to have brought the Action by the name of John Shotbolt as he is named in the Obligation and then if he appeared therunto and pleaded ut supra non est sactum he should have been concluded by the Obligation vâ—… 3 H. 6. 34 H. 6. 5 E. 4. this matter well debated similis casus inter Turpin Jaxon viz Ann for Agraes and she sued by her right name nuper dicta Anna. Hillar 18. Rotulo 738. Dier fo 279. An obligation made beyond the Seas may be sued here in England in what place the party will what if it beare date Bourdeaux in France where shall it be sued and answer was made that it may be alleadged in quodam loco vocat Bourdiaux in France in â—slington in the County of Midd. and there it shall be tryed for whether there be such a place in Islington in the County of Midd. or not is not traversable in that case and so the varieties of opinions in our Bookes well reconciled New Littleton 361. b. 6. pars fo 47. Dondales case 32 H. 6. 25. 48. E. 3. 3. 11 H. 6. 16. Mise Mise is a word of Act appropriated onely to a Writ of right so called because both parties have put themselves upon the meere right to be tried by grand Assize or by Battel so as that which in all other actions are called an issue in a Writ of right in that Case is called a Mise A yeare how into how many parts it is divided A quarter of a yeare is 91 daies halfe a yeare is 182 daies a yeare is 365 daies and to the 6. houres the Law hath no regard Diers Abridgement fo 89. this is according to the computation in the Kalender And when a Patron is to present hee hath six months to present according to the computation of the Kalender which is 182. daies before any Lapse shall accrue But a Month according to the computation of the Law for reservation of rents and re-entries for non payment of Rent c. doth account 28. daies to the Month and no more Kings-Silver Note that the fine pro licencia concordandi is that which is called the Kings-Silver or post fine And if the Fine in the Hamper which is commonly endorsed upon the writ of Covenant be 26. shillings 8. pence then alwayes the Kings-Silver or post-fine is halfe as much more as the Fine in the Hamper Suspension If a Lease be made of 10. Acres of Land for yeares reserving rent and after the Lessor enters in 2. Acres the entire rent is thereby suspended for a contract which is entire may not be apportioned but being suspended in part it is suspended in all being destroyed in part is destroyed in the whole and especially as to the Act of the Lessor which doth suspend or extinguish it Suspension A man gives Land in taile or leaseth it for life or yeares rendant rent with condition for default of payment to re-enter there if the Lessee lease part of the Land to the Donor or Lessor or if the Donor or Lessor enter in part of the land he may not re-enter for rent behind after for the condition is suspended in all and a condition
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