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were sold under the value; it being his own folly, says the statute, that he did not sell them himself, and pay his debt with the produce. If the debtor had no movables, then his body was to be taken, and kept in prison till he or his friends had made agreement with the creditor; and should he be so poor as not to be able to support himself in gaol, the creditor was to sustain him with bread and water; which expense, as well as the debt, was to be defrayed by the debtor before he could be released. If the creditor was a merchant stranger, the debtor was likewise to pay all expenses attending his extraordinary stay here. If, instead of taking the body, the creditor would accept sureties, or mainpernors, for the payment, they were to bind themselves before the mayor, in like manner as the original debtor, and were to be subject to the same execution; though that was not to be till the goods of the principal were first exhausted.

Complaint, it seems, was made to the king, that this statute had been misinterpreted by sheriffs, and the execution of it delayed, upon various pretences. The king, therefore, in a parliament holden the thirteenth year of his reign, caused the statute of Acton Burnel to be rehearsed, and then several declarations were made by the legislature for enforcing it: these are contained in the Statute of Merchants, 13 Edw. I., st. 3. By this act, the recognizance may be taken before the mayor of London, or before some chief warden of a city, or of any other good town where the king shall appoint, or before the mayor and chief warden, or other sufficient men chosen and sworn thereto, when the mayor and chief warden cannot attend; and before one of the clerks to be appointed by the king. The recognizance is to have two parts; one to remain with the mayor or chief warden, the other with the clerks. The seal of the writing obligatory also is to be of two parts; the greater of which is to remain with the mayor or chief warden, the other with the clerk. Instead of the prefatory process against his movables, by this act the body of the debtor, if he is a layman, is to be taken in the first instance, and committed to prison till

facias should issue against the extenders upon the recognizance (Year-Book, 40 Edw. III., fol. 27; et vide 44 Edw. III., fol. 2; 2 Hen. IV., fol. 17; 2 Rich. III., and 15 Hen. VII., fol. 15). If the conusee once agreed to the extent, he could not disagree afterwards (44 Edw. III., fol. 2).

he has agreed about payment of the debt; and if the keeper of the prison do not receive him, he is to be answerable for the debt: a like power is given to the chancellor, if the debtor is not within the jurisdiction of the mayor. Within a quarter of a year after he is taken, his chattels and land (without confining it to burgages devisable, as the last act did) are to be delivered to him, that he may pay his debts by selling them; and such sale of his lands and tenements during the quarter of a year, for the discharge of his debts was declared good and effectual. If he did not make agreement about payment within the second quarter of a year, all his goods and lands are to be delivered to the creditor by a reasonable extent, to hold them until such time as the debt is wholly levied (a); and the debtor is still to continue in prison, and be kept on bread and water by the merchant. The merchant is to have such seisin in the lands and tenements delivered to him or his assignee as to be entitled to maintain a writ of novel disseisin, and re-disseisin, as if it was a gift of freehold to him and his assigns, till the debt is paid. When the debt is paid, the land is to be restored, and the debtor delivered from prison. The statute directs that writs issued by the chancellor for taking the debtor should command the sheriff to certify the justices of one bench or the other what had been done therein, at a certain day; at which day the merchant is to appear, and there sue, if agreement is not made. If the sheriff returned non inventus, or that he was a clerk, then they proceeded against the goods and land, as before-mentioned. The creditor is to be allowed all damages, costs, and ex

(a) If the land should be "extended" too low (or for too small a sum), the conusor could not have a re-extent, for he could tender the money and have his land again; and if the land was extended at too high a value, the conusee could not have re-extent, for he could pray that the extenders should have it; and they should answer according to the statute of Acton Burnel (the above act); but it ought to be at the first day of the return of the extent, for if he agreed to the extent, he could not refuse it (Year-Book, 15 Hen. VII., 14). And it was held that the conusee, under statute merchant or staple, should recover his costs, damages, and expenses (Ibid.). A statute merchant was extended, and the extent returned, and the conusee came and said that the lands were extended too high, and prayed that the extenders should have it according to the statute of Acton Burnel, and it was awarded (Year-Book, 40 Edw. III., fol. 21). In another case, the conusee complained that the land was valued too high, that is, at 3s. an acre, whereas it was only worth 1s. an acre (Year-Book, 21 Edw. III., 21).

penses. If there are sureties, they are to be proceeded against, as the principal debtor is.

It is ordained by the statute, that all lands that were in the hands of the debtor at the time of acknowledging the recognizance, even if given away since by feoffment, are to be delivered to the merchant; and after the debt paid, they are to return to the feoffee. Further, it was added by way of caution, that should the debtor or his sureties. die, the merchant shall not take the body of his heir, but shall have his lands, in like manner as if the debtor was living. All persons might enter into recognizances under this act, except only Jews, to whom this statute was not to extend. There was a saving of the old method of acknowledging recognizances, which was to be practised as before. The writ to take the person recited the acknowledgment of the recognizance, and then commanded, quòd corpus prædicti A. si laicus sit, capias, et in prisonâ nostrâ salvo custodiri facias, quousque de prædicto debito satisfecerit.

This last statute may be considered as contributing to extend the power of alienating land. In the same sessions, as we shall see presently, any common creditor by judg ment was empowered to take half the debtor's land in execution; but we see that, in favor of trade, a merchant who had resorted to this security might have the whole. A recognizance acknowledged with the formalities here prescribed, was in after-times called a statute merchant; and a person who held lands in execution for payment of his debt, as hereby directed, was called tenant by statute merchant.

CHAPTER X.

EDWARD I.

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ORIGIN OF ESTATES-TAIL-REGULATION OF THE EYRE-JUSTICES OF NISI PRIUS-JUSTICES OF GAOL-DELIVERY-OF REPLEVIN - OF ACCOUNTANTS - WASTE OF EXECUTION OF PROCESS OF SUMMONING JURORS-OF ESSOINS-WRIT OF ELEGIT - BILL OF EXCEPTIONS SCIRE FACIAS-CUI IN VITA-QUOD EI DEFORCEAT-OF PRESENTATIONS ΤΟ CHURCHES - ADMEASUREMENTS OF DOWER AND PASTURE-WRITS IN CONSIMILI CASU-EJECTMENT OF WARD PRESENTMENTS OF JURORS TO BE SEALED - RAPE-STATUTE OF WINCHESTER-STATUTE OF CIRCUMSPECTE AGATIS.

HE most distinguished period of this king's reign is the thirteenth year, when great alterations were made in the law by several statutes. In this year we have the statute of Westminster the second, the statute of Winchester, the statute of merchants mentioned in the preceding chapter, and the statute of circumspecte agatis. Each of these is an important occurrence in the juridical history of this reign (a).

(a) The general legislation of the reign, and indeed of any other, may fitly be considered, first, as relating to the titles of transfer of land; and next, and especially, with reference to religion, or the church; and then as regarded the administration of justice. As regards the titles or transfers of land, this reign is remarkable for the attention given by the legislature to the subject of fines, which were used as a species of record or registration of a title or a transfer of title. The subject of fines is closely connected with that of recoveries, which only differed therefrom in that both, being founded on suits, or supposed suits for land, a fine was in accord entered into by the parties in cases, and a recovery was a judgment recovered by default. And both had this value that, being records of courts of law, they were preserved under the protection of the king's courts, and were not like private deeds, which might be lost or destroyed, a consideration of no small importance in times of constant turbulence and disturbance. These fines or recoveries were solemn records of titles or transfers of title; and there is abundant evidence in the reports and records of subsequent reigns that they were used as far back as the last reign for purposes of conveyance, or as permanent records of conveyance, the titles or limitations of land. Fines thus used, recording several successive limitations, are mentioned as of the time of Henry III. (vide Year-Books), and see (Bellewe's Cases, temp. Rich. II., Fines). That recoveries were used for the purpose of transfer of land is apparent from one of the earliest statutes of this reign, that of Gloucester (6 Edw. I., c. 11), against feigned recoveries, in which he to whom the freehold belonged VOL. II.-39

457

In discoursing of these statutes, we shall begin with the statute of Westminster the second. The first chapter of caused himself to be impleaded by collusion and made default, or came into court, or gave it up; and the legal effect of a recovery is shown by another statute of the same reign (13 Edw. I., st. 1, c. iv.), "that if a man had lost his land by default, he had none other recovery than by writ of right, which was not maintainable by any that could not claim of mere right as tenants for life or entail" (13 Edw. I., s. 1), and that statute therefore provided that they might recover their estate by another writ than by a writ of right, which lay only for the owner in fee-simple. Thus, then, the effect of a recovery by default was, that those who were not parties or privies could recover in a real action according to their right, but then they were driven to such actions. The effect of a record was always that it bound parties or privies, and this applied to a fine as well as a recovery. And hence the subsequent statute (13 Edw. I., c. 32) against feigned recoveries by religious men to avoid the mortmain laws. Thence the statute de donis about the same time. (13 Edw. I., c. i.) passed against alienations of estates-tail, enacted that fines contrary thereto should be void, so that even the heirs could avoid them. It is observable that there is no prohibition of feigned recoveries to bar estates-tail, although the legislature were well aware that such recoveries were used, having already provided against them in the earlier statute of Gloucester. Then a later statute of the reign (18 Edw. I., s. 4, c. i.), the statute as to the modus levandi fines, described the formalities of fines and declared, "And the cause wherefore such solemnity ought to be done in a fine is, because a fine is of so high a bar, of so great a force, and of so strong a nature that it concludeth not only such as be parties and privies thereto, and their heirs, but other people of the world, being of full age, and within the four seas, the day of the fine levied, if they make not their claim of their action within a year and a day." But this certainly was not carried out, for in the subsequent statute (27 Edward I., c. i.) it was provided, that, as fines levied in the courts ought to and do make an end of all matters, and therefore are called fines, but the parties and their heirs had been admitted to defeat them by alleging that they or their ancestors were always seized of the land, it was provided that such exceptions should not be allowed in future. The tenor of these statutes strongly shows the extreme importance attached to these permanent records of titles or transfers of land; and their importance in such an age may easily be understood. Nevertheless, as times altered, and as the law became more firmly settled, the courts of law, in spite of the express provisions of these statutes, permitted persons, at first strangers, and then even the heirs, to defeat fines by showing that the parties to the fines had no estate in the land. The Year-Books of Edward III. and Bellewe's Cases, temp. Richard II., contain numerous cases of fines defeated on that ground. On the other hand, a statute passed in this reign enabled parties to have executions upon fines without being put to a real action. It is remarkable that in the very statute of Westminster 2, in which fines to bar estatestail were prohibited, the legislature made provision for the summary execution of fines (St. of Westminster 2, c. xlv.), reciting that of such things as he recorded before the judges and enrolled in their rolls, process of plea ought not to be made by summons, etc., as in cases of deeds out of court, and it provided that those things which were found enrolled before them of record or continued as fines, that thenceforth they should have such vigor that it shall not need to plead to them; but when the fine was levied within a year, the party should forthwith have execution, and if the fine was levied of a further time passed, there might be scire facias to call upon the opposite party to show cause why the fine should not be executed. The practical

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