appoints the same process, execution and advantage, in every particular, as is provided for the statute-staple.k A recognizance therefore, in nature of a statute-staple, as the words of the act declare, is the same with the former, only acknowledged before other persons; for, as the statute runs, the chief justices of the King's Bench and Common Pleas, and each of them, or, in their absence out of term, the mayor of the staple at Westminster and the recorder of London jointly together, shall have power to take recognizances for payment of debts, in the form set down in the statute. In this, as in the former cases, the king appoints a seal to attest the contract, and each of the justices shall have the keeping of one such seal, and the mayor and recorder another of the like print and fashion; and every obligation made and acknowledged before either of the justices, or the mayor and recorder, must be sealed with the seal of the conusor, the king's scal, and the seal of the chief justice, or seals of the mayor and recorder before whom it is taken, who are likewise obliged to subscribe their names. Besides this, a clerk was appointed to make, write and enrol all obligations thus [*1134] acknowledged, and at the request of the conusee, his executors or administrators, to certify such obligations into Chancery, under his seal." m By the last general stamp act," "every recognizance, statutemerchant, and statute staple, entered into as a security for the payment of any sum or sums of money, annuity or annuities, or for the transfer of any share or shares in any of the government or parliamentary stocks or funds, or in the stock and funds of the governor and company of the bank of England, or of the East India company, or South Sea company, is subject to the same duty or duties, as a bond given for the like purpose in England, where such payment or transfer is not already secured by a bond or mortgage, or by some other instrument, thereby charged with the same duty as a bond or mortgage; and where such payment or transfer is already secured as above mentioned, to a duty of £1: And every recognizance, statute-merchant and statute-staple, entered into as a security for the performance of any covenant, contract or agreement, or for the due execution of any office or trust, or for rendering a due account of money received, or to be received, or for indemnifying any person or persons against any matter or thing, is subject, by the same act, to the duty of 17. 15s.: And where any such recognizance or statute, together with any schedule or other matter put or endorsed thereon, or annexed thereto, shall contain 2,160 words or upwards, then for every entire quantity of 1,080 words contained therein, over and above the first 1,080 words, to a further progressive duty of 1l. 5s." The statute-merchant having the seal of the conusor, besides the king's seal, the conusee may waive the execution given by the statute Bac. Abr. tit. Execution, (B.) 123 Hen. VIII. c. 6. § 2. Id. § 3. n 23 Hen. VIII. c. 6. § 4, 5. And for the mode of enrolling these recognizances, and certifying them into Chancery, see the same statute; also the stat. 8 Geo. I. c. 25, § 1, 2. 55 Geo. III. c. 184. Sched. Part I. Quare, whether this statute extends to recognizances of bail? 13 Edw. I. and use it as an obligation, by bringing an action of debt thereon: So may the conusee, for the same reason, on the 23 Hen. VIII. c. 6. But it is otherwise of a statute-staple; because the king's seal only is affixed thereto, without that of the party, which is absolutely necessary in all obligations at common law.P t r These several securities bind the land, as against the parties, from the time they are entered into: Therefore, if a man be conusee of a statute, and the debtor, before execution sued, alien by fine, and five years pass, yet the conusee may still sue out execution. But a creditor by statute of J. S. who becomes bankrupt before the statute is *sued and executed, shall come in only pro rata, though [*1135] there were lands bound by the statute. And, by the statute of frauds and perjuries, "the day of the month and year of the enrolment of recognizances shall be set down in the margent of the roll, where the said recognizances are enrolled; and no recognizance shall bind any lands, tenements or hereditaments, in the hands of any purchaser bond fide and for valuable consideration, but from the time of such enrolment."u It is also declared by the register acts, that "no statute or recognizance (other than such as shall be entered into in the name, and upon the proper account of his majesty,) shall affect or bind any manors, lands, tenements or hereditaments, in Middlesex or Yorkshire, but only from the time that a memorial of such statute or recognizance shall be entered at the register office, in such manner as therein is directed." The execution on a recognizance, at common law, seems to have been by levari facias, of the lands and chattels of the defendant; under which his corn, and other present profits of his land, might have been taken: For at common law, we have seen, the body of the defendant, or his land, could not have been taken in execution, unless in special cases. But, by the statute Westm. 2. (13 Edw. I.) c. 18. "when a debt is acknowledged in the king's court, (that is, by recognizance in any court of record, that hath power to receive the same,) the plaintiff may sue out a writ of elegit, under which the sheriff shall deliver to him all the chattels of the debtor, (except his oxen, and the beasts of his plough,) and a moiety of his land, until the debt be levied by a reasonable price or extent." The plaintiff therefore may it seems, since this statute, proceed either by levari facias or elegit at his election, on a recognizance at common law.a On a statute merchant, the first process, after it was forfeited and certified into Chancery, was a writ of capias si laicus, directed to the sheriff, commanding him to take the body of the conusor, if a P Bac. Abr. tit. Execution, (B). And for a fuller account of these securities, the differences between them, and the mode of proceeding thereon, see Bac. Abr. tit. Execution, (B). Com. Dig. tit. Statute Merchant. 92 Bac. Abr. 363. 3 Co. 14. 1 Chan. Cas. 268. 1 Mod. 217. 1 P. Wms. 92. Wales and the counties palatine, by the 8 Geo. I. c. 25. § 6. "See 2 Wms. Saund. 7. (5). as to the time of enrolment. * Ante, 975. y Ante, 1030, 31. z 2 Inst. 395. a Bro. Abr. tit. Elegit, pl. 6. tit. Execution, pl. 42. cites 38 Ed. 3. 12. tit. Recognizance, pl. 7. cites 38 Ass. 5. Vin. Abr. 29 Car. II. c. 3. § 18. extended to tit. Recognizance, F. 1. VOL. II.-46 layman, to satisfy the debt: And if the sheriff returned upon this writ, that the party was dead, or not found in his bailiwick, a writ issued to extend the lands, which might be made returnable in either bench: and the sheriff might thereupon deliver the lands, &c. to the [*1136] conusee, upon a reasonable extent, without the delay or charge of a liberate. If the conusor was a clerk, the sheriff was directed to levy the debt of his moveable goods and chattels. On a statute staple, or recognizance in nature of a statute staple, if the conusor cannot be found within the staple, nor his goods to the value of the debt, the first process, after the certificate under seal in Chancery, is a writ in nature of an extent, to take the body lands and goods, all in one writ; in which respect it is preferable to the statute merchant, as being a much speedier remedy. This writ is returnable in Chancery; and the same sort of proceedings are had under it, for extending the lands, &c. as upon an elegit. But the sheriff, after the extent, cannot deliver the lands, &c. to the conusee, but must seize them into the king's hands; and in order to get possession of them, the conusee must sue out a liberate, which is a writ issued out of Chancery, reciting the former writ and return, and commanding the sheriff to deliver to the conusee all the lands, tenements and chattels, by him taken into the king's hands, if the conusee will have them, by the extent and appraisement made thereof, until he shall be satisfied his debt. Upon this writ, the sheriff cannot turn the tertenant out of possession, as upon an habere facias possessionem; but is only to deliver the legal possession, as upon an elegit, and in order to obtain the actual possession, the conusee must proceed by ejectment.k By the common law, after a full and perfect execution had by extent, returned and entered of record, the conusee could have no re-extent on the effects of the conusor, (because there was one satisfaction given to the creditor on record,) though the lands had been recovered from him before he had levied the debt out of them.' But by the statute 32 Hen. VIII. c. 5. it is provided, that "if after any lands, tenements or hereditaments, be had and delivered in execution, upon a just and lawful title, wherewithal the said lands, &c. were liable, tied and bound, at such time as they were delivered and taken into execution, shall be recovered, divested, taken, or evicted out of or from the possession of any such person and persons [*1137] as have and hold the same in execution, without any fraud, deceit, covin, collusion, or other default of the said tenant or tenants by execution, before such time as the said tenants by execution, their executors or assigns, shall have fully levied their whole debt and damages, for which the said lands, &c. were delivered and taken in execution; then every such recoveror, obligee and recognizee, shall have a scire facias, out of the same court from whence the former execution did proceed, against such person or persons as the former execution was pursued, their heirs, executors or assigns, to have execution of other lands, &c. liable to be taken in execution, for the residue of the debt or damages." This statute, by a favourable construction, was extended to the executors, administrators and assigns of the recoveror,m &c.; and to executions issuing out of any court, where the record is removed by writ of error and affirmed:" But the statute, we have seen, did not extend to a partial eviction. By a subsequent statute? however, which was made for supplying some defects in the statute 23 Hen. VIII. c. 6. it is enacted, that, "in case it shall, at any time or times, before or after the filing or returning of any liberate or liberates, sued out on any extent or extents, upon a recognizance in the nature of a statute-staple, be made appear to the court of Chancery, that sufficient has not been extended and levied, or sufficiently extended and levied, to satisfy such recognizance; or that any omission, error or mistake has happened, in making, suing out, executing or returning any of the said writs, or any process thereupon; or it should happen, that any lands, tenements or hereditaments shall be evicted from any person or persons, who shall have extended the same, by virtue of any such writ or process as aforesaid; that then, and in every such case, the said court of Chancery shall and may award one or more re-extent or re-extents, for the satisfying the same as aforesaid, and that writs of liberate or liberates may be sued out thereupon." By the statute 23 Hen. VIII. c. 6. § 8. there was due to his majesty, a fee of one half-penny in the pound, according to the value or sum entered into and contained in every recognizance in nature of a statute-staple, taken in pursuance of the said statute, to be paid on sealing the first process on every such recognizance. But, by the 9 Geo. I. c. 25. § 3. "the prosecutor of every such recognizance shall, at the time of suing out the first process, or writ of extent thereon, deliver in to the officer who shall make out such [*1138] process or extent, a note in writing under his hand, testifying the sum or value of the damages thereby intended to be extended, or levied thereon; which sum or value the said officer shall insert in the said writ, to be only extended or levied thereon, and no more; and that the said poundage of one half-penny, payable on all process as aforesaid, shall be taken and paid only for every pound, according to the said sum or value so inserted and intended to be extended and levied as aforesaid, and not otherwise: and that no sheriff of any county shall take for the extent and liberate, and habere facias possessionem or seisinam on the real estate, and levy on the personal estate, by virtue of such extent, any more than the same fees as are appointed by the 3 Geo. I. c. 15. for executing a writ of elegit, m Co. Lit. 290. a. Id. ibid. • Ante, 1077. P 8 Geo. I. c. 25. § 4. and habere facias possessionem or seisinam; under the like penalties and forfeitures, and to be in like manner recovered, against every sheriff or person therein offending, as are mentioned and appointed in and by the same act." r We have before seen, that in debt against an heir, on the obligation of his ancestor, the judgment for the plaintiff is general, for the debt and damages, or special, directing them to be levied of the lands descended. On a general judgment, the execution may be general also, against the defendant, his goods and chattels, or a moiety of his lands, by fieri facias, capias ad satisfaciendum, or elegit: But when the judgment is special, the execution is so likewise, by a writ in nature of an extent, to levy the debt and damages, of all the lands descended. And it seems that on a general judgment, although the plaintiff may have execution by elegit of a moiety of all the heir's lands, yet may he also at his election surmise, that the heir hath certain lands by descent, and pray to have execution of the whole of them:" For if the plaintiff had not this election, he might be a loser by the general writ of elegit, upon which he could have only a moiety in execution, inasmuch as the heir might not have any other lands except those descended.* Ante, 970, 71, and see 3 Co. 72. a. Cro. Jac. 450. 3 Salk. 287. 2 Wms. Saund. 7. (4.) 2 Rol. Abr. 71. and see Vin. Abr. tit. Heir, (D.) Bac. Abr. tit. Heir & Ancestor, (H.) 2 Wms. Saund. 7. (4.) Id. ibid. Off. Brev. 83, 4. Append. Chap. XLII. § 28, 9. u Append. Chap. XLII. § 30. * 2 Rol. Abr. 72. Bac. Abr. tit. Heir & Ancestor, (H.) 2 Wms. Saund. 7. (4.) |