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And these recognizances, in some cases, the justices of the peace are enabled to take by the express words of certain statutes: but in other cases (as for the peace, and behaviour, and the like) it is rather in congruity, and by reasonable intendment of law, than by any express authority given them, either by their commission, or by the statute law. Crom. 125. Dalt. c. 168.

But wheresoever any statute giveth them power to take a bond of any man, or to bind over any man to appear at the assizes or sessions, or take sureties for any matter or cause, they may take a recognizance. Yea, wheresoever they have authority given them to cause a man to do a thing, there it seemeth they have in congruity power given them to bind the party by recognizance to do it; and if the party shall refuse to be bound, the justice may send him to jail. Dalt. c. 168.

But he can take no recognizance but only of such matter as concern his office; and if he doth, it seemeth to be void. Ibid.

Every recognizance taken by justices of the peace shall be made payable to the person having the executive power. And all bonds to be entered into by sheriffs or other public officers must be made payable to the justices of the court taking such bond. See Ordinance of Convention (interregno) 1776, ch. 5, p. 57, sect. 7, 8, of the edition of

the laws in 1785.

It must also contain the name, place of abode, and trade or calling, both of principal and sureties, and the sums in which they are bound. Barl. Recog.

And it is most commonly subject to a condition, which is either endorsed or underwritten, or contained within the body of it, upon the performance of which the recognizance shall be void. Ibid.

governor

And

governor of the commonTo be levied of your

When the parties are to enter into a recognizance, it is usual to call their names thus: You A B acknowledge to owe to of this commonwealth, and his successors, the sum of you C D acknowledge to owe to wealth, and his successors, the sum of respective goods and chattels, lands and tenements, for the use of the commonwealth, if default shall be made in the condition following; that is to say, if you the said A B shall make default in appearing, &c. It is said that the parties need not sign it. (Ibid.) But the better practice seems to be for the parties to sign it.

It is also said to be usual for the justices to mark at the foot of the examination, AB in dollars to appear, &c. and from such short note to make out a record afterwards. (Ibid.) But this is not usual in this state.

The recognizance is a matter of record presently, so soon as it is taken and acknowledged, although it be not made up. Dalt. c. 168. And when it is made up, if the justice shall only subscribe his name, without his seal to it, this is well enough; and that may be in either of these sorts, acknowledged before me, JP, or only to subscribe his name thus, JP. Ibid. 176.

If the recognizance be forfeited, and an award of execution thereupon, it issues against the lands and tenements, goods and chattels.' See Rastell's Entries, 546, a. pl. 5.

The justices should always certify, or transmit their recognizances to the next court; or to the court of examination, if they shall be of

opinion that the offence is triable in the district court, and consequently order a court of examination to be summoned.

The conditions of recognizances, in all the variety of cases, are interspersed under their proper titles.

(A) Recognizance with sureties.

county, to wit.

A O, of

Be it remembered, that on the

day of

in the year

in the

in the county aforesaid, yeoman, and A S, of in the county aforesaid, taylor, and B S, of county aforesaid, labourer, personally came before me, JP, a justice of the peace for the said county, and acknowledged themselves to owe and be indebted to A G, governor or chief magistrate of the commonwealth of Virginia, and his successors, that is to say, the said A O the sum of and the said A S and BS each the sum of separately, of good and lawful money of this commonwealth, to be made and levied of their goods and chattels, lands and tenements, respectively, to the use of the said commonwealth, if the said A O shall make default in the condition hereon endorsed (or hereunder written.) Acknowledged before me,

JP.

[The condition is according to the subject matter, and in the form annexed to precedent (B.)]

(B) Recognizance without sureties.

county, to wit.

Be it remembered, that on the day of

in the year

A O, of in the said county, yeoman, personally came before me, JP, one of the justices of the peace for the said county, and acknowledged himself to owe to A G, governor, &c. and his successors dollars, of lawful money of this commonwealth, to be made and levied of his goods and chattels, lands and tenements, to the use of the said commonwealth, if the said A O shall fail in the condition underwritten (or endorsed.)

The condition of the above written (or, within is such, that if the above bound A O shall, &c. for the performance of which the party is bound.) nizance to be void, else to remain in its force.

written) recognizance (here insert the cause Then the said recog

RENTS.

THE word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance. It is defined to be a certain profit, issuing out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year. Yet, as it is to be produced out of the profits of lands and tenements, as a recompence for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in a grant, which is always of part of the thing granted. It must lastly issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantor of the rent may have recourse to distrain. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt; though it doth not affect the inheritance, and is no legal rent in contemplation of law. 2 Bl. Com. 41.

It is impossible to form a sufficient idea of the doctrine of rents as received in this country from England (particularly that class which goes under the denomination of Rent-service) without possessing some knowledge of the Feodal Tenures, from which the law and practice of rents are immediately derived. But as it would far exceed the limits proposed in this publication, to enter at large into an historical account of the origin of feuds; I shall only mention so much of that subject as will be necessary to illustrate this title, and refer the curious and learned reader to such authors as have treated of the matter more in detail. See 2 Bl. Com. ch. 4, 5. Wright's Tenures. Dalrymple on Feodal property. Stuart's view of society in Europe, &c. And an excellent note to Hargrave's Coke on Littleton, folio 64. a.

The introduction of the feodal (feudal or military) tenures in England seems to have been intended by William the Conqueror, with whom they first originated, as a mean to protect his newly acquired dominions against the frequent invasions of his northern neighbours. Under this tenure the king was considered the supreme lord of the whole territory of England, by whom the lands were divided among the lesser lords or barons, and by them among the common people

or vassals, upon condition, generally, to render their lord certain services in the wars; on failure of which services the land became forfeited to the lord of the see of whom it was holden. (2 Bl. Com. ch. 4, 5.) The evidences of the vassal's title were an open and public delivery of possession by the lord; who in return received the vassal's declaration of homage and fealty. 2 Bl. Com. 53. Lit, sect. 85, 91. The services incident to this investiture, were either military, as attending the lord in his wars, or ministerial, as attending him at his courts, &c. 2 Bl. Com. 56. Gilb. Dist. 1.

The qualities annexed to those feuds do not require any particular notice in this place; it is sufficient to observe, that the feudatories being unable to attend to the cultivation of the soil, from their liability to be called out at any season of the year, by their superior lord, it was found necessary to commit the management of their lands to other inferior vassals, requiring in return a compensation in certain parts of its produce, as in corn, cattle, money, &c. which is the origin of Rents.

Under this title, I shall consider,

I. The several kinds of rent. distress.

And herein,

II. The remedy by

I. For what causes a distress may be made, and in what other manner rent may be recovered. II. What goods may be distrained, and what not. III. At what time and place the distress shall be taken. IV. That reasonable distress shall be taken. V. Manner of making a distress. VI. Distress how to be demeaned. VII. Of rescous and pound breach. VIII. Replevying the distress. IX. Sale of the distress. X. Irregularity in the proceedings. XI, Landlord re-entering on non-payment. XII. Attorning to strangers. XIII. Rentin case of an execution. XIV. Rent how far recoverable by executors or administrators. XV. Attachments for rent. XVI. Practical directions as to the making of a distress for rent. XVII. Precedents of replevy bonds, &c.

III. Of the action of replevin.

I. THE SEVERAL KINDS OF RENT.

The usual division of rents, by the common law, is, into rent-service, rent-charge, and rent-seck. Lit. sect. 213.

Rent-service is so called, because it hath some corporal service incident to it, as at the least fealty, or the feodal oath of fidelity. For if a tenant holds his lands by fealty, and ten shillings rent, or by the service of ploughing the lord's land, and five shillings rent; these pecuniary services being connected with personal services, are therefore called rent service. And for these, in case they be behind or arrear, at the day appointed, the lord may distrain of common right, without

reserving any special power of distress; provided he hath in himself the reversion or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired. (2 BI. Com. 52. Co. Lit. 142. Lit. sect. 215.) In the same manner it is, if a lease be made to a man for life, or the life of another, rendering to the lessor certain rent, or for term of years rendering rent. (Lit. sect. 214.) For these are rent-services, because fealty is incident to these Co. Lit. 142. Lit. sect. 131, 132.

rents.

A rent-charge is, where the owner of the rent hath no future interest or reversion expectant in the land; as, where a man by deed maketh over his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrear, or behind, it shall be lawful to distrain for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called rentcharge, because in this manner the land is charged with a distress for the payment of it. 2 Bl. Com. 42. Co. Lit. 143.

Rent-seck, reditus siccus, or barren rent, is in effect nothing more. than a rent reserved by deed, but without any clause of distress. 2 BI. Com. 42.

II. THE REMEDY BY DISTRESS.

This is one of those few cases in which the law permits a man to be his own avenger, or to minister redress to himself, viz. to distrain cattle or other goods for non-payment of rent or other duties, or to distrain another's cattle damage-feasant, that is doing damage, or trespassing upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage. 3 Bl. Com. 6.

A distress is defined by judge Blackstone to be "the taking of a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to produce a satisfaction for the wrong committed; and the most usual injury for which a distress may be taken is, the non-payment of rent." 3 Bl. Com. 6.

It has been already seen, that distress was incident by the common law, to every rent-service, and by particular reservation to rent-charges also. These distresses were substituted in lieu of the forfeiture of the feud or estate by the old feodal law, on the non-performance of the services stipulated to be done by the tenant; and were, in their origin, nothing more than a pledge in the hands of the lord, by retaining which in his possession (for he could not sell the property taken by distress) he might compel a performance; and the detention was no longer lawful, than while the tenant refused to do the services reserved by the feodal contract. Gill. Dist. 2, 4.

But when the military services ceased to be necessary, and the distress was considered merely as a remedy to compel the payment of the money, or other thing reserved, it would have defeated the very object of the distress, to suffer the property to remain in the hands of the

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