ings being in his name; or if his office be vacant, by the solicitor general.t When the replication or demurrer is filed, the defendant must rejoin within four, or join in demurrer within six days." The rule to rejoin or join in demurrer, like the rule to plead, is entered on the back of the writ of extent. After replication, the king by his prerogative may waive it, and reply de novo, before issue joined, in the same or another term: or he may waive his demurrer to the defendant's plea, and reply to issue. So, if the defendant demur, the crown, instead of joining in demurrer, may traverse, or confess and avoid, the inducement. But the defendant is not allowed to change his *plea, or waive it and plead the general issue, without the [*1128] consent of the attorney general. So, after issue joined, the king may waive the issue and demur, or take another issue, in the same term, though not in another term. But if the king join issue upon a traverse of his title, he cannot it seems afterwards waive it, to traverse the title of the defendant; at least this cannot be done after the term has expired, and the jury process issued: Neither can he waive the issue, after verdict.s m с d Issue in fact being joined, the cause may be tried either at bar or nisi prius: And the king may try it in what county he pleases. In practice, however, it is always tried at nisi prius, in Middlesex.k And if one of the defendants plead to issue, and another demur, the king may either bring on the trial or demurrer first, as he pleases.1 The king cannot be compelled to proceed to trial: And laches not being imputable to him, there can be no trial by proviso, when the king is a party;" but in cases of great delay, the court on motion will it seems give judgment for the defendant or claimant, if the attorney general will not proceed in a reasonable time." The notice of trial is of course always given by, and cannot be given to the crown. And when the defendant or claimant resides more than forty miles from London, he is entitled to ten days notice of trial." In other cases, he seems to be in strictness entitled to six days notice only.r Notice of trial being given, the record is entered, and cause called on: And at the trial, the defendant or claimant, being considered as a 2 Cro. Car. 347. Vaugh. 65. Hardr. 455. Plowd. 322. a. a T. Jon. 9, 10. Co. Ent. 402. Man. L. Ex. 602. b Cro. Car. 347. 2 Rol. Rep. 41. Staundf. Prærog. 65. b. Plowd. 322. a. Hardr. 455. Vaugh. 65. d 13 Edw. IV. 8. a. Staundf. Prarog. 65. b. Vaugh. 55. Semb. Vaugh. 64. 1 Mod. 276. 13 Edw. IV. 8. a. pl. 1. Id. ibid. Man. L. Ex. 602. Hardr. 455. and see Com. Dig. tit. Prærogative, D. 85. West, 213, 14. Man. L. Ex. 602. h Sav. 2. Cro. Car. 348, 9. Ante, 812. i 1 Sid. 412. 1 Vent. 17. Parker, 189. and see Cro. Car. 348. 2 Price, 113. * West, 216. Man. L. Ex. 612. Ante, 812. 11 Str. 266. m Co. Lit. 57. b. n 6 Mod. 247. and see F. N. B. 241. A. Plowd. 243. b. 2 Leon. 110. pl. 144. o Parker, 51. and see 3 Anstr. 753. West, 216. Man. L. Ex. 612. Ante, 1126,7. P Man. L. Ex. 612. a Id. ibid. R. temp Jac. II. Man. L. Ex. Append. 233. and see West, 216, 17. Id. App. 128. plaintiff, may be nonsuited; but the nonsuit on a traverse is peremptory," at least after issue joined. And when the traverser offers to demur upon evidence given for the king, the counsel for the crown [*1129] cannot be compelled to join in demurrer: The court in such case, however, may direct the jury to find the special matter. The verdict on a traverse, which may be either general or special, is confined to the points in issue; the jury having no damages or costs, nor any other collateral matter, to enquire into: And the postea being returned, a rule for judgment is given, which is a four day rule, when there are so many days between the trial and end of the term; otherwise the rule is for the last day of term. Before the expiration of the rule, the unsuccessful party may move in arrest of judgment; or for a new trial, or judgment non obstante veredicto: And when the trial is in vacation, the motion must be made within the first four days of the following term.d The king being in possession under the extent, is seldom at the trouble of entering up judgment, upon a verdict in his favour, unless a writ of error render it necessary. The form of the judgment for the king, whether upon a verdict or nonsuit, is that the defendant or claimant take nothing by his traverse: And upon such judgment, no execution issues for the king, such execution being anticipated by the extent itself; but the lands, goods, and choses in action, are dealt with, as if no claim had been made. On the other hand, when the defendant or claimant obtains judgment on the extent, the judgment is, that the king's hands be amoved from the possession of the goods, &c. and that the defendant or claimant be restored to the possession thereof: and on such judgment being entered, the legal possession is transferred immediately, by operation of law, from the king to the party, who may put himself into actual possession without further process, or sue out a writ of amoveas manus, if necessary, to amove the king's hands.k On this writ the sheriff must forthwith restore the whole of the property seized, to the defendant or claimant; and has no right to deduct any thing for fees or poundage, or expenses of any kind; the sheriff being entitled to his fees, when he is entitled to them at all, not from the defend[*1130] ant or claimant, but from the crown or *prosecutor of the extent. The judgment against the king usually concludes with f Bro. Abr. tit. Travers d'Office, 54. 4 Co. 57. b. Staundf. Prærog. 77. b. 2 Salk. 448. Bul. Ni. Pri. 216. Man. L. Ex. 618. Man. L. Ex. 619. h West, 217. Man. L. Ex. 618. And for the form of an issue and judgment of amoveas manus in the Exchequer, on a writ of extent in aid, defended by the assignees of a bankrupt, with continuances by imparlance, vicecomes non misit breve, and curia advisari vult, see Append. ChapXLII. § 22. i3 Salk. 145. * West, 217. Man. L. Ex. 620. a salvo jure regis; the effect of which is to prevent the king's being concluded, with respect to any title which is not expressed in the pleadings.m use. "p 66 With regard to costs, it is a general rule that the king, or any person suing to his use," shall neither pay nor receive them; for, besides that he is not included under the general words of the statutes which give costs, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them. But there are some exceptions to this rule, created by different statutes: Thus, by the statute 33 Hen. VIII. c. 39. § 54. "the king, in all suits upon any obligations or specialties made to himself, or any to his use, shall have and recover his just debts, costs and damages, as other common persons use to do, in suits and pursuits for their debts." This act is confined to suits on obligations or specialties made to the king, or any to his use: And therefore, where a bond debtor to the crown took out an extent in aid against his simple contract debtor, the latter was holden not to be liable to pay costs; for though the simple contract debt, when found by inquisition, may be considered as a specialty debt to the king, yet it does not come within the meaning of the term of a specialty made to the king, or to his When lands are sold by virtue of the statute 25 Geo. III. c. 35. the monies produced by the sale are directed to be paid, accounted for and applied, towards discharge of the debt due to the crown, and of all costs and expenses which shall be incurred by the crown, in enforcing the payment of such debt, in such manner as the court of Exchequer shall order and appoint: And, by the statute 43 Geo. III. c. 99. § 41. costs may be levied against collectors of taxes, in certain cases. But costs are not recoverable on the statute 25 Geo. III. c. 35. even in the case of an immediate extent in chief, when goods and lands are seized, the goods alone being more than sufficient to pay the debt levied; this statute being holden to give the crown a right to costs, in cases only when it is necessary to resort to a sale of the lands." So, costs are not recoverable on an extent in aid, under the statute 53 Geo. III. c. 108. although sued to secure the stamp duties on policies of assurance, in the hands of an insolvent agent of the company, and founded on their [*1131] bond to the crown, for the due payment of those duties; and although the debt be of such a nature, as that an immediate extent might have been issued on it. The bill of costs of the crown solicitor, for business done under an extent, we have seen,' is taxable: And if, on the taxation of his bill, a considerable sum be disallowed, the court will not only order the costs of the taxation to be paid to the defendant by the solicitor, but if he have received the whole amount of his bill by sums paid him on account, they will m Hil. 9 Edw. IV. fo. 51. pl. 14. F. N. 3 Blac. Com. 400. and see Cowp. 367. 1 Anstr. 50.7 Durnf. & East, 367. Hul lock on Costs, 21. West, 227. Man. L. Ex. 561, 2. P 1 Price, 434. and see 5 Price, 189. 2 Anstr. 369. West, 228. Man. L. Ex. 562. 43 Price, 280. ▾ Id. 40, 1 Price, 434. * Anle, *94. order him to pay interest on the balance reported to be due from him." And if a greater sum than is actually due, and costs, have been levied under an extent in aid, out of personal effects; or received by the prosecutor of the extent or his attorney, under an agreement for a compromise, in order to stay proceedings; the court on motion will order the surplus and costs which have been so levied, to be refunded to the defendant, together with the costs of the application." The writ of extent for the subject is founded on a recognizance, at common law or by statute; or on a judgment in an action of debt against an heir, on the obligation of his ancestor. A recognizance is an obligation of record, which a man enters into before some court of record, or magistrate duly authorized, with condition to do some particular act: And it is either at common law, or by statute. A recognizance at common law is either to the king, or a subject; and may be acknowledged before any one of the judges out of term, and in any part of England, and may be entered on record, as well out of as in term: So, the Chancellor or Keeper may take recognizances and award execution, or hold plea of scire facias and audita querela in Chancery, to avoid execution, &c. as the case requires, on all recognizances taken in that court." By the custom of the city of London, the mayor and aldermen, or the mayor singly, may take recognizances; for the custom is not only reasonable in itself, but, as all other customs of the city, has [*1132] been confirmed by act of parliament. And the king, by special commission, may appoint any person to take recognizances from one man to another; and such recognizances, duly certified with the commission into Chancery, are binding: and though the commission be so particular as to mention only a recognizance to be taken from A. to B. yet the commissioners have a general power to take a recognizance from any other person. But recognizances at common law are not perfect records, till they are enrolled in some court of record;d for since the law allowed any one judge out of court, and in any part of the kingdom, to take these recognizances, which are the highest security of the common law, it was very necessary they should be enrolled, to perpetuate the u 9 Price, 349. 1 Price, 448. and see 3 Price, 280. y 5 Price, 189. And see further, as to the law and practice of Extents for the king, in chief and in aid, Mr. West's Treatise on that subject, and Mr. Manning's Summary of the Law of Extents, p. 513, &c. per tot. from which, as will be seen by the references, the foregoing account of the practice on Extents for the king, has been principally taken. See also Mr. Chitty junior's Treaties on the Pre rogatives of the Crown, Chap. XII. XIII. in which Extents are fully treated of, with the means of obtaining redress from the Crown. Bro. Abr. tit. Recognizance, 24. a Bac. Abr. tit. Execution, (B.) 2 Wms. Saund. 7. (5.) b Bac. Abr. tit. Execution, (B.) 2 Wms. Saund. 7. (5.) c Id. ibid. F. N. B. 267. d But see 2 Vern. 750, 1 Barn, & Ald. 153. contract, and by that means secure the creditor his just debt; which must have been very precarious and uncertain, while the security lay in the hands of a private person, who might either through carelessness mislay, or by ill practices be prevailed upon to suppress it. It is the acknowledgment, however, that gives a recognizance its force as a record, and the enrolment is for safe custody, and notifying it to others: Therefore, although enrolment be necessary to the validity of a recognizance, yet it bound the lands at common law, from the time of the caption.f Recognizances by statute are either founded on a statute-merchant, or statute-staple; or are in nature of a statute-staple, by the 23 Hen. VIII. c. 6. A statute-merchant is a bond of record, acknowledged before the mayor of London, or chief warden of some other city or town, or other discreet men for that purpose chosen and sworn, or before one of the clerks of the statute-merchant, pursuant to the statute of Acton Burnel, (11 Edw. I.) enforced and amended by the statute 13 Edw. I. stat. 3. c. 1. de mercatoribus. This recog nizance is to be entered by the clerk on a roll, which must be double, one part to remain with the mayor or chief warden, and the other with the clerk, who shall write with his own hand a bill obligatory, to which a seal of the debtor shall be affixed, together with the seal of the king, for that purpose appointed. The statute-staple is a bond of record, acknowledged before the mayor of the staple, in the presence of the constables of the staple, or *one of them, pursuant to the statute 27 Edw. III. stat. [*1133] 2. c. 9. To this end, the statute requires that there shall be a seal ordained, which shall remain in the custody of the mayor of the staple, under the seals of the constables; and that all obligations made on such recognizances, shall be sealed therewith. This security was only designed for the merchants of the staple, and for debts on the sale of merchandizes brought thither; yet, in process of time, others began to apply it to their own purposes, and the mayor and constables would take recognizances from strangers, surmising that they were made for the payment of money, for merchandizes brought to the staple: To prevent this mischief, the parliament, in the 23 Hen. VIII. reduced the statute-staple to its former limits; and laid a penalty of 407. on the mayor and constables who should extend the benefit of the statute to any but those of the staple. But though the statute 23 Hen. VIII. c. 6. deprived them of this benefit, yet it framed a new sort of security, to be used by all persons, known by the name of a recognizance on the 23 Hen. VIII. or recognizance in the nature of a statute-staple; so called, because this act limits and Bac. Abr. tit. Execution, (B.) F. N. B. 267.2 Wms. Saund. 7. (5.) 12 Wms. Saund. 7. (5.) and the cases there cited. 8 For an account of these different securities, and the proceedings thereon, see 2 Wms. Saund. 69. e. &c. b Bac. Abr. tit. Execution, (B.) i Bac. Abr. tit. Execution, (B.) By the statute 27 Eliz. c. 4. § 7, 8. the whole tenor and contents of all statutes-merchant and statutes-staple shall, within six months after they are acknowledged, be entered in the office of the clerk of recognizances taken according to the 23 Hen. VIII. c. 6. who is to enter the same statutes in a book provided for that purpose; otherwise they are made void, as against subsequent purchasers. |