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admintstrators of every such person or persons, unto whom any such No. XII. rent or fee-farm is or shall be due, and not paid at the time of his death, 32 H. VIII. shall and may bave an action of debt for all such arrearages, against the

C. 37. tenant or tenants that ought to have paid the said rent or fee-farms so being behind in the life of their testator, or against the executors and administrators of the said tenants; and also furthermore, it shall be lawful to every such executor and administrator of any such person or persons unto whom such rent or fee-farm is or shall be due, and not paid at the time of his death as is aforesaid, to distrain for the arrearages of all such rents and fee-farms, upon the lands, tenements and other hereditaments, which were charged with the payment of such rents, or fee-farms, and chargeable to the distress of the said testator, so long as the said lands, tenements or hereditaments continue, remain and be in the seisin or possession of the said tenant in demesne, who ought immediately (1) to have paid the said rent or fee-farm so being behind, to the said testator in his life, or in the seisin or possession of any other person or persons claiming the said lands, tenements and hereditaments, only by and from the same tenant by purchase, gift or descent, (2) in like manner and form as their said testator might or ought to have done in his life-time, and the said executors and administrators shall, for the same dislress, lawfully make avowry (3) upon their matter aforesaid. (4)

II. Provided alway, That this Act, nor any thing therein contained, Redemption shall not extend to any such manor, lordship, or dominion in Wales, money paid in or in the marches of the same, whereof the inhabitants have used, time Wales and the out of the mind of man, to pay unto every lord, or owner of such lord- marches. ship, manor, or dominion, at his or their first entry into the same, any sum or sums of money, for the redemption and discharge of all duties, forfeitures and penalties, wherewith the said inhabitants were chargeable to any of their said lords ancestors or predecessors before his said entry.

nii. And further be it enacted by the authority aforesaid, That if any The husband's man which now bath, or hereafter shall have in the right of his wife, remedy for any estate in fee-simple, fee-tail, or for term of life, of or in any rent due in the rents or fee-farms, and the same rents or fee-farms now be, or here- right, and in after shall be due, behind and unpaid in the said wife's life; then the the life of his said husband, after the death of his said wife, bis executors and ad- wife. ministrators, shall have an action of debt for the said arrearages against the tenant of the demesne that ought to have paid the same, his executors or administrators; and also the said husband, after the death of his said wife, may distrain for the said arrearages, in like manner and form, as he might have donc, if his said wife had been then living, and make avowry upon his matter as is aforesaid.

(1) It is not necessary in an avowry to aver defendant, as administratrix, she well avowed that the place remains in the seisin of the the taking of the goods in the premises, in person who ought to have paid the rent, or of which, &c. the same being charged with the persons claiming under him. The plaintiff, if payment of rent to A. B., and continuing in he is not liable, should shew how he is not possession of the plaintiff, as tenant to C. D.: liable; Hool v. Bell, 1 Lord Raym. 172. It appearing that C. D. was possessed of the

(2) In Braithwaite v. Cooksey, 1 H. B. 465. premises by virtue of a lease for twenty-one it is said that the statute enables the landlord years; it was objected that the defendant was to distrain against executors or administrators. not entitled to distrain under the statute, and This observation is not correct, if intended to that the avowry was bad; but the court of import that there is any such express pro- C. P. held, that as the tenancy did not appear vision.

to be for years, and that as it was unneces(3) To a declaration of replevin, for taking sary for the defendant to shew how the plaintiff the plaintiff's goods, the defendant avowed became entitled to or held the premises, the under the stat. 32 H. 8. c. 37., as administra- avowry was sufficient. Menton v. Gilbee, 2 trix of A. B. who was seised in fee: that C. Moore 48. D. held the premises as tenant to him by vir- (4) An executor upon such ayowry is entue of a demise made to him C. D. at and un- titled to costs, although this statute is subseder a certain yearly rent; and that because quent to those giving costs to an avowant; 2 a sum for rent was due to A. B. at the time of sol. Rep. 437. his death, from C. D., and still in arrear to

No. XII.

iv. And likewise it is further enacted by the authority aforesaid, 32 H. VIII. That if any person or persons which now have, or hereafter shali C. 37.

have, any rents or fee-farms for term of life or lives, of any other per

son or persons, and the said rent or fee-farm now be, or hereafter shall The remedy

be due, behind and unpaid in the life of such person or persons for for a rent, the whose life or lives the estate of the said rent or free-farm did depend or estate whereof continue, and after the said person or persons do die ; then he unto dependethupon whom the said rent or fee-farm was due in form aforesaid, his executors another's life

or administrators sball and may have an action of debt against the tebeing dead.

pant in demesne, that ought to have paid the same when it was first due, his executors and administrators, and also distrain for the same arrearages upon such lands and tenements, out of the which the said rents or fee-farms were issuing and payable, in such like manner and form as he ought or might have done, if such person or persons by whose death ibe aforesaid estate in the said rents and fee-farms was determined and expired, had been in full life and not dead ; and the avowry for the taking of the same distress to be made in manner and form aforesaid.

( No. XIII. ] 1 & 2 Philip and Mary, č. 12.-An Act for

the impounding of Distresses. 1 & 2 P; & M. : FOR the avoiding of grievous vexations, exactions, troubles and Where dis

enacted by the authorily of this present Parliament, That from and tresses taken

aster the first day of April next coming, no distress of cattle shall be shall be im

driven out of the hundred, rape, wapentake or lathe where such dispounded.

tress is or shall be taken, except that it be to a pound overt within the same shire, (1) not above three miles distant from the place where the said distress is taken : And that no cattle or other goods distrained or taken by way of distress for any manner of cause at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevies for the delivery of the said distress so taken at one time; upon pain every person offend. ing (2) contrary to this Act, shall forfeit to the party grieved, for every

such offence, an hundred shillings, and treble damages. How much may

II. And be it further enacted by the authority aforesaid, That after be taken for the said first day of April, no person or persons shall take for keeping poundage. in pound, impounding or poundage of any manner of distress, above

the sum of four-pence for any one whole distress that shall be so impounded ; and where less hath been used, there to take less ; upon the pain of five pounds, to be paid to the party grieved over and beside such money as he shall take above the sum of four-pence;

any usage or prescription to the contrary in any wise potwithstanding. The sheriff III. And for the more speedy delivery of cattle taken by way of disshall appoint tress, it is further enacted by the said authority, That every sheriff of four deputies shires, being no cities nor towns made shires, shall at his first county to make reple- day, or within two months next after he hath received his patent of vins.

his office of sheriffwick, shall depute, appoint and proclaim in the sbiretown within his bailiwick, four deputies (3) at the least, dwelling not above twelve miles, one distant from another ; which said deputies so

appointed and proclaimed shall have authority in the sheriff's name to (1) Driving to the next pound in another driving into another county, the venue may shire does not make the party a trespasser, be laid in either county : Pope ». Davis, 2 although it subjects him to the penalty of the Taunt. 252. statute; Gimbart v.

v. Pelah, 2 Str. 1272. When (2) An offence against this Act is satisfied lands in adjoining counties are let upon one by one forfeiture, although several persons be demise, they may all be taken to a pound in concerned; Partridge v. Nailor, Cro. Eliz. 480; either of the counties, but they cannot be Moore 453. driven through an interinediate county if the (3) The deputy is answerable for the sufcounties do not adjoin : Walter v. Rumbal, 1 ficiency of the pledges as well as the sheriif; Ld. Raym. 53; 1 Salk. 247. In an action for Richards v, Acton, 2 Bl. Rep. 1220.

make replevies and deliverance of such distresses, in such manner and No. XIII, form as the sheriff may and ought to do; upon pain that every sheriff 1 & 2 P. and for every month that he shall lack such deputy or deputies, shall for. Mary, c. 12. feit for every such offence five pounds ; the one half of which forfeitures shall be to the King and Queen's Highness, her heirs and successors, the other half to him that will sue for the same by bill, plaint, information or action of debt, in any the King and Queen's courts of record, in which no essoin, protection por wager of law shall be admitted.

[ No. XIV. ] 1 Elizabeth, c. 19.-An Act giving Autho

rity to the Queen's Majesty, upon the Avoidance of any Archbishopric or Bishopric, to take into her hands certain of the Temporal Possessions thereof, recompensing the same with Parsonages impropriate and Tenths.

[Inserted Part II. Class VIII. No. 4.]

[ No. XV. ) 13 Elizabeth, c. 20.-An Act touching

Leases of Benefices, and other Ecclesiastical Livings, with Cure.

[Inserted Part II. Class VIII. No. 6.]

[ No. XVI. ] 18 Elizabeth, c. 6.-An Act for Main

tenance of the Colleges in the Universities, and of Winchester and Eaton.

[At length, Vol. I.]

[ No. XVII.] 17 Charles 11. c. 7.–An Act for a more

speedy and effectual Proceeding upon Distresses and

Avowries for Rents. FORASMUCH as the ordinary remedy for arrearages of rents, is by 17 Charles II.

distress upon the lands chargeable therewith ; and yet nevertheless, by reason of the intricate and dilatory proceedings upon replcvins, that remedy is become ineffectual :'

II. For remedy thereof, it is enacted by the King's most excellent Majesty, with the advice and assent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by authority of the same, That whensoever any plaintiff in replevin shall be Plaintiff in ponsuit before issue joined (1) in any suit of replevin by plaint or writ replevin being lawfully returned, removed, or depending, in any of the King's courts nonsuit before at Westminster, that the defendant making (2) a suggestion in nature issue joined, of an avowry or cognizance for such rent, to ascertain the court of the how the decause of distress, the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken, to enquire by the oaths of twelve good and lawful men of his bailiwick, touching the

(1) The avowant, after judgment by default 7. or to take the earliest moment to prosecute for want of a plea, may sue the sureties on his writ de retorno habendo. And he may again the replevin bond, and need not proceed distrain the same goods for rent subsequently upon the statute; Waterman v. Yea, 2 Wils. accrued, previously to his executing his re41.

torno habendo, without waiving his action (2) If the plaintiff in replevin is nonsuited, against the sureties in the bond; Hefford v. the defendant is not bound to have his damages Alger, 1 Taunt. 218. assessed by the jury, under stat. 17 Car. 2. c.

fendant may

avow

No. XVII. sum in arrear at the time of such distress taken, and the value of the 17Charles II. goods or cattle distrained : And thereupon notice of fifteen days (1) c. 7.

shall be given to the plaintiff or his attorney in court, of the sitting of such enquiry : and thereupon the sheriff shall enquire of the truth of the matters contained in such writ, by the oaths of twelve good and lawful men of his county; And upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods or cattle distrained shall amount unto that value: And in case they shall not amount to that value, then so much as the value of the said goods and cattle so distrained shall amount unto, together with his full costs of suit ; and shall have execution thereupon by fieri facias or elegil, or otherwise as the law shall require: And in case such plaintiff shall be nonsuit after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff : then the jurors that are impanelled or returned to enquire of such issue, shall, at the prayer of the defendant, enquire concerning the sum of the arrears, and the value of the goods or cattle distrained ; (2) and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same by fieri facias or elegit, or otherwise, as

the law shall require. (3) Judgment upon III. And be it further enacted by the authority aforesaid, That if demurrer for judgment in any of the courts aforesaid he given upon demurrer for the the avowant. arowant, or him that maketh cognizance for any rent, the court shall,

at the prayer of the defendant, award a writ to inquire of the value of such distress; and upon the relurn thereof judgment shall be given for the avowant, or him that makes cognizance as aforesaid, for the arrears alleged to be behind in such avowry or cognizance, if the goods or cattle so distrained shall amount to that value ; and in case they shall not amount to that value, then for so much as the said goods or cattle so distrained amount unto, together with his full costs of suit, and shall have like execution as aforesaid.

IV. Provided always, and be it enacted, That in all cases aforesaid, where the value of the cattle distrained, as aforesaid, shall not be found to be to the value of the arrears distrained for, that the party to whom such arrears were due, his executors or administrators, may from time to time distrain again for the residue of the said arrears. [Extended to Wales and the counties palatine, by 19 Car. 2. c. 5.]

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[ No. XVIII.) 19 Charles II. c. 5.-An Act extending a

former Act concerning Replevins and Avowries, to the 19 Charles II.

Principality of Wales, and the Counties Palatine. c. 5. 17 Charles 2.

THEREAS by an Act of Parliament, intituled, “ An Act for the c. 7.

more speedy and effectual proceeding upon distresses and avow(1) The same notice should be given where ment pro retorno habendo at common law, upon the judgment is on demurrer; Burton v. payment of costs; Rees v. Morgan, 3 T. R. Hickey, 1 Marsh. 444.

349. On a verdict for the plaintiff, with da(2) This statute has taken away the writ of magcs, not finding the amount and value, second deliverance : Per Curiam, Playters v. judgment for the damages and costs, and pro Sheering, 1 Ventr. 64. But see Cooper v. retorno habendo, although not good under this Sherbrooke, 2 Wils. 116; in which the execu- statute, is good for the damages under st. 21 tion of a writ of inquiry, after issuing a writ Henry VIII. c. 19, ante; and is also good at of second deliverance, was held regular. common law, as judgment pro retorno, al

(3) The verdict being for the defendant though not awarded to be irreplevisable; Gaupon cognizance for rent, as to one count, mon v. Jones, 4 T. R. 509. And Q. whether and non cepit as to another, and giving damages, there can be a writ of inquiry, when the jury without finding the amount of the rent, or the have found for the defendant, but omitted to value of the goods, the court, upon writ of find the value ; Freeman v. 'Lady Archer, 2 error, allowed the defendant to enter judg- Bl. Rep. 763,

‘ries for rents,” provision is made where any plaintiff shall be nonsuit No. XVIII, • before issue joined in any suit or replevin, by plaint or writ lawfully 19Charles II. returned, removed, or depending in any of the King's courts at West

C. 5. minster;' be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, That the said Act, and all the powers and provisions thereby made for causes of replevins depending in his Majesty's courts of Westminster, shall be extended and be of the same force and efficacy in all causes of replevin, which are or shall be depending in his Majesty's Court of Common Pleas for the county palatine of Lancaster, the courts of the great sessions of his Lancaster, Majesty's principality of Wales, the court of the great sessions or assizes Wales, Chester. for the county palatine of Chesler, and the Court of Common Pleas for the county palatine of Durham, as fully and as amply for and during the continuance of the said Act, as if the said courts had been mentioned therein.

[ No. XIX. ] 19 Charles II. c. 6.-An Act for Redress of

Inconveniences by Want of Proof of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates do depend.

[Inserted Part II. Class II. No. 16.)

[ No. XX. ] 2 William and Mary, sess. 1. c. 5.—An Act

for enabling the Sale of Goods distrained for Rent, in

case the Rent be not paid in a reasonable Time. :W VHEREAS the most ordinary and ready way for recovery of arrears 2 Wm. & Mary

of rent is by distress, yet such distresses not being to be sold, but sess. 1. c. 5. only detained as pledges for enforcing the payment of such rent, the persons distraining have little benefit thereby: For the remedying whereof,

II. Be it enacted and ordained by the King's and Queen's most excellent Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of June, Goods distrainin the year of our Lord One thousand six hundred and ninety, that cd for rent may where any goods or chattels shall be distrained for any rent reserved (1) be appraised and due upon any demise, lease, or contract whatsoever, and the tenant and sold. or owner (2) of the goods so distrained shall not, within five days (3) next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion house, or other most notorious place on the premises (4) charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff according to law, tbat then in such case, after such distress and notice as aforesaid, and expiration of the said five days, (5) the person distraining shall and may,

(1) This statute evidently extends only to not been given to the tenant of the land; Walter rents reserved upon leasc or contract. The v. Rumbal, 1 Lord Raym. 53. statute 4 George 11. c. 28. s. 5, which gives a (3) This is construed inclusive, so that goods power to distrain for rents and entry, rents of distrained on Saturday morning may be sold on assize and chief rents, also contains a power of Thursday afternoon; Wallace v. King, 1 H. B. sale. The Irish statute 25 Geo. II. c. 13, gives 13. a power of sale in case of distress for rent ser- (4) This is not necessary, if personal notice vices, fee farm rents, or rent charges. This is is given to the party; Walter v. Rumbal, 1 Lord not provided for by any English statute, except Raym. 53. so far as the term chief rents in 4 Geo. II. may (5) In Griffin v. Scott, 2 Ld. Raym. 1424; be supposed to include rents services and fee Str. 717, it was ruled that trespass might be farm rents.

maintained for suffering the goods (in cases (2) The owner of the goods, to whom notice not provided for by the Act) to remain on the bas been given, cannot object that notice has premises an unreasonable time, after the five VOL. IV.

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