CH. VII.] Recognizance in the Nature of a Statute Staple. on the 81 Of a recognizance But though this statute, the 23rd of Hen. VIII. c. 6, deprived all but merchants and traders at the staple of the benefits of the security of the statute staple, it framed a new kind of security to be used ad libitum by all men, known by the name of a recognizance on the 23rd of Hen. VIII. c. 6, or a recognizance in the in the nanature of a statute staple, so called because this act limits and statute staple. I appoints the same process, execution, and advantage in every particular as is set down in the statute staple (d), only the recognizance is to be acknowledged before other persons (e). By this statute recognizances in the nature of a statute staple for the payment of debts may be acknowledged before the Chief Justices of the Queen's Bench and Common Pleas, and each of them, or in their absence out of term, before the Mayor of the Staple at Westminster, and the Recorder of London jointly in the form given by the statute (ƒ). In this as in the former cases the King appoints a seal to attest the contract, and each of the said 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 seal, and the seal of the Chief Justice, or seals of the Mayor and Recorder, before whom it is taken (g), {who are likewise obliged to subscribe their names. Besides this the clerk of the recognizance (who is to be appointed for this purpose by the King), or his deputy, shall make and write all obligations thus acknowledged, and enrol them in two several rolls indented, one whereof shall remain with such of the said justices, or with the Mayor and Recorder that take the recognizance, and the other with the clerk (h), who is further obliged at the request of the conusee, his executors or administrators, to certify such obligation into Chancery under his seal (i). Section 7 gives a remedy by audita querela to all persons so bound, who shall be "grieved" by any execution taken out under the authority of this Act. (c) Ibid.; 2 Tidd's Prac. 8th ed. 1133; 2 V. Wms. Saund. 70 a, n. (d) Bac. Abr. tit. Execution, B, 357; 2 Tidd's Prac. 8th ed. 1133; 2 V. . Wms. Saund. 71 c; Com. Dig. tit. 1 Statute Staple, B; and see statute in extenso, 1 Chitty's Stats. 311, sect. 6. (e) See sect. 2. (f) See sect. 2; and 2 Tidd's Prac 8th ed. 1133. (g) Sect. 3. (i) Sect. 5; and see Bac. Abr. tit. Execution, B, 357. ture of a G 82 Must be entered by the Clerk of the Recognizances. [BK. I. On forfeiture of such an obligation the same process of execution is established as upon a statute staple (k), and the sheriff must return his writ into Chancery (1). By stat. 27 Eliz. c. 4, ss. 7 and 8, the whole tenor and contents of 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, and kept by him, and if they are not brought within four months after they are acknowledged to the clerk for the purpose of being so entered, they are made void against subsequent purchasers for money or other good consideration. Recognizances in the nature of a statute staple were held to be exempt from the operation of this Act, but by the 8 Geo. I. c. 25, s. 1, the clerk of recognizances in the nature of a statute staple (taken under the 23 Hen. VIII.) or his deputy, shall yearly prepare and keep three parchment rolls as usual, and at the times of acknowledging every such recognizance shall write on the said rolls the full tenor in hæc verba of every such recognizance, and one of the rolls shall contain all the recognizances taken before the Chief Justice of the Queen's Bench; another, the recognizances taken before the Chief Justice of the Common Pleas; and the other, the recognizances taken before the Mayor of the Staple at Westminster, and Recorder of London; and at the time of the acknowledgment the person before whom the recognizance is taken, and the party acknowledging the same, shall sign their respective names to the roll or enrolment of the recognizance, under the enrolment, as well as sign and seal the said recognizance, and that the three rolls shall at the end of the year be fixed together and be made one roll, and remain in the custody of the clerk, or his deputy at his public office, who shall keep a docket to refer to the said roll for the benefit of searchers by purchasers and others (m). The statute merchant, having the seal of the conusor besides the King's seal, the conusce may waive the execution given by the stat. 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 a recognizance in the nature of a statute staple on the 23 (k) See sect. 6 of 23 Hen. VIII. c. 6; and ante, p. 78; Statute Staple; Com. Dig. tit. Statute Staple, B. (1) Lut. 430; Com. Dig. ubi supra. (m) 2 V. Wms. Saund. 706, n.; Bac. Abr. tit. Execution, B, 357; under this stat., 8 Geo. I. c. 25, s. 4, a reextent may issue on a recognizance in nature of statute staple, if it be made appear to the Court of Chancery that sufficient was not levied under the first extent. CH. VII.] These Securities exempt from Scire Facias. 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 (n). If the conusees neglect to enrol their recognizances within the time limited by statute, they are considered in equity in the nature of debts by bond only (o). The General Stamp Act, 55 Geo. III. c. 184, regulates and appoints the stamps to be affixed to these instruments. reason of 883 of these se the neces facias, quired in Hitherto, in describing the nature of these securities, nothing Origin and has appeared which could give them any advantage over debts on exemption which a judgment had been obtained, or which could exempt the curities from conusee from the necessity of reviving the debt by scire facias sity of a scire after a year and a day had elapsed after the forfeiture of the obli- where regation, or where a new party had become bound by or interested other cases. in the obligation by death or otherwise. In this respect an advantage was first given to a statute merchant by the 5 Hen. IV. c. 12, which enacts, "Item, it is ordained and established 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 showed, that howsoever the process after the same showing be discontinued, that at what time the party sueth to have the process re-continued, and to have execution of the statute merchant aforesaid, that the justices of the bench where the statute was once showed may upon the same record make and award full execution of the statute merchant aforesaid, without having the sight or showing thereof another time after, and that this statute hold place of all statutes merchant not fully executed at this time." Though in terms confined to a "statute merchant," in its interpretation it appears to have been extended alike to the other securities of the same nature. For Bacon, in his Abridgment, after showing that the conusee of a recognizance at common law, if he do not take out execution within a year and a day after payment assigned in the recognizance, must have a scire facias to revive the judgment and put it in execution, says: "but the conusee of a statute merchant, &c., may at any time sue execution on them without the delay or charge of a scire facias (p). Nor was this advantage confined to making such a security (n) 2 Tidd's Prac. 8th ed. 1134; Bac. Abr. tit. Execution, B, 359; 2 V. Wms. Saund. 70 b, n. (2) Bottomley v. Fairfax, 1 P. Wms. 334; Glyn v. Thorpe, 1 B. & Ad. 153. (p) Bac. Abr. tit. Execution, B, 360, and authorities there quoted; 2 V. Wms. Saund. 71 c, n. 84 Scire facias not neces a writ of execution has been taken out within the year. Where Writ of Execution taken out within the Year, [BK. I. available at any time without a scire facias, as pointed out in the statute of Hen. V., but seems to have been early extended also to those cases where there was a new party to the record, though the statutable authority for this is not so clear. It is however laid down by Lord Coke, that "one that is not party to the record, recognizance, fine, or judgment, as the heir, executor, or administrator, though they be privy and though it be within the year, shall have no writ of execution, but are to have a scire facias to enable themselves to the suit, and so likewise of the tenant or defendant's part; for the alteration of person altereth the process. Otherwise it is in case of a statute staple or merchant, &c., because the process is given by other Acts of Parliament (q). Bacon, in his Abridgment, says the reason of this advantage being given to these securities is because "they were designed to encourage strangers to trade with us." Further research however on this subject would be perhaps more curious than useful, as these securities are now practically almost obsolete, though the statutes giving them are not repealed. Sufficient explanation has been given of the nature and object of these securities, and of the reason of their exemption from the ordinary rules requiring a scire facias in other cases. Wherever process of execution has been taken out within the sary where year after judgment, although it has not been served, it is not necessary to take out a scire facias, but the demandant or plaintiff have execution at any time after the year (r). Formerly it may was necessary to enter continuances on the roll, in order to keep alive a writ of execution (s), but now that continuances are abolished (t), the issuing of a writ of execution within the year after judgment, although it be not executed, has the same effect in keeping alive a judgment as when, under the old practice, continuances were entered. In Harmer v. Johnson (u) it was decided in the Court of Exchequer, that succeeding writs of execution need not be tested on the return day of the preceding writ, and may be sued out at any time afterwards without the necessity of entering continuances on the roll. In Greenshields v. Harris (x) (g) Co. 2nd Inst. 471, 395; and see Bac. Abr. tit. Execution, B, 360; 2 V. Wms. Saund. 71 c, n. (r) Co. 2nd Inst. 471; ante, ch. i. p. 10; Bac. Abr. tit. Scire Facias, C, 133. (s) See the former practice, set out in 2 Tidd, Prac. 8th ed. 1155; Com. Dig. tit. Execution, 14, 141; 1 Sid. 59. (t) R. G. H. T. 2 Will. IV. r. 105; R. G. H. T. 4 Will. IV. r. 2, pl. 2; see Jervis's New Rules, 115. (u) 14 M. & W. 336; S. C. 3 D. & L. 38. (x) 9 M. & W. 776; S. C., 2 Dowl. N. S. 272. it was decided, in the Court of Exchequer, that it was enough "if the plaintiff had materials for making up the roll in a regular manner," and therefore a testatum ca. sa. (issued into a different county to the original ea. sa. of the same date, and to which there was a general return of non est inventus,) under which the defendant was arrested more than a year from its date, was held to be sufficient, and the original to warrant the testatum writ; as a general return to the original ca. sa. of non est inventus might be presumed to have been made on the same day; and a writ of ca. sa. runs until it is executed. The whole law on this subject was very fully gone into in the case of Simpson v. Heath (y), in which it was settled that under the old authorities "if the plaintiff sue out process within the year, no scire facias is necessary, and he may act on that process. But if that process expire, he must continue it properly, and then execute that continued process." On this and the preceding case, therefore, it is clear that if the process issued be a ca. sa., as "that runs until it is executed” (~), it is of force until it is executed, and if issued within the year after judgment, may be executed at any time afterwards (within which the judgment itself would be barred, by the statutes limiting the duration of a judgment debt) without the necessity of a scire facias. In the recent case of Franklin v. Hodgkinson and Beale (a), this question was again raised, and appears there to have been satisfactorily settled. In that case Williams, J., in delivering judgment said, "This was an application to set aside a writ of fi. fa. upon the ground that more than two years had elapsed since any step had been taken in the cause, and that therefore a writ of scire facias was necessary to revive the judgment, in order to authorize the issuing of the said writ of fi. fa.. in this case. The facts of the case are as follow: final judgment was signed against both defendants on the 8th of June, 1843, and on the same day a writ of ca. sa. issued against both defendants. Upon this writ the defendant Hodgkinson was taken and was discharged under the Insolvent Act, in or about the month of (y) 5 M. & W. 631. (z) As to this see the stat. 3 & 4 Will. IV. c. 67 (the Uniformity of Process Act), s. 2, and the decisions upon it; Greenshields v. Harris, 9 M. & W. 774; Thomas v. Harris, 1 Dowl. N. S. 793; and Harmer v. Johnson, 14 M. & W. 336. "Writs of ca. sa. in the new process have no fixed re- (a), 3 D. & L. 554. 85 |