structures of the said lunatic to be well and sufficiently repaired, and so kept and maintained during the continuance of the said grant, and should carefully preserve and keep all the deeds, evidences, and writings touching the manors, messuages, tenements, hereditaments, and estate of the said lunatic as then had, or thereafter should come to his hands, custody, or possession, and should not sell or alien his interest in the said custody or grant to any person or persons whomsoever, without the consent or agreement of the Lord Chancellor of Great Britain, Lord Keeper, or Lords Commissioners for the custody of the Great Seal of Great Britain, for the time being, but should in all things demean himself as a careful and faithful grantee or committee of the estate of the said lunatic: That then the said obligation should be void, or else the same to stand, remain, and be in full force and virtue. 1843. RE BULL. Bond given to the Crown by lunatic an Obligation, or Specialty, within Committee of VIII. c. 39. sect. 50. The Records of the Petty Bag office show that this bond, given by the committee of the estate of a lunatic [a debt not of record], has always been treated as an obligation, or specialty, within the statute of the 33 Hen. VIII. c. 39 (a), sect. 50, by which it is enacted that all obligations and specialties which, after the 1st of the 33 Hen. May, 1541, should be made for any cause or causes touching, or in anywise concerning, the King's most royal majesty, or his heirs, or to his or their use, commodity, or behoof, shall be made to his highness, and to his heirs, Kings, in his or their name or names, by these words, "Domino regi," and to none other person or persons, to his use, and to be paid to his Highness by these words—“solvend. eidem domino Regi hæred. vel executoribus suis," with other words used and accustomed in common obligations; and that all such obligations and specialties so to be made shall be good and effectual in the law to all purposes and intents, and shall be of the same nature, kind, quality, force, and effect to all intents and purposes, as the writings obligatory, taken and knowledged according to the statute of the staple of Westminster, have at any time before the making of this present act been taken, used, exercised, and (a) The title of the statute isThe Erection of the Court of Surveyors of the King's Lands, the names of the officers there and their authority.—In the edi tion of the statutes published by 1843. RE BULL. executed against any person or persons, any law, usage, or custom to the contrary thereof notwithstanding (a). Recently, however, the question was raised, whether such bond did come within the above-mentioned statute. The question was first raised in The King v. Lamb, 13 Price, 649; S. C., M'Cleland, 402; but it was not then necessary to determine it. The question was again raised in Regina v. Chambers and others, 11 Meeson and Welsby, 776, and was then determined. A scire facias had been issued against the defendants for the breach of the condition of a bond, given by them to the Crown on the appointment of the defendant Chambers, as committee of the estate of a lunatic, for the due discharge of his duties and passing of his accounts, he having become bankrupt. A motion was made on the part of the assignees of the defendant Chambers for a rule to show cause, why the scire facias and the judgment thereon should not be set aside. It was contended that such a bond was not within the statute, so as to entitle the Crown to treat it as a matter of record, and have a scire facias thereon. That the case was one in which the Crown was neither personally interested, nor the public interests involved. Lord Abinger-after asking whether counsel were aware of any difference between debts due to the Crown because the Crown represents the public interests, and debts due to the Crown by virtue of its prerogative-and after observing that the only question had been, whether the prerogative, which is the foundation of all these rights, should be applied to debts due by virtue of acts of parliament made for the benefit of the public, but that there was no difference in the processadded, that that was a case in which the Crown, by virtue of its office, was entitled to the custody of the lunatic, and might therefore take such securities as it thought fit for the protection of his estate. The Crown exercised this custody by virtue of its pre (a) See also section 53, by which all suits, process, judgments, decrees, and executions of or upon any of the aforesaid obligations, shall be of the same or like strength, force, effect, and intent in the law to all purposes, as writings obligatory taken and acknowledged according to the statute of the staple at West minster at any time before the making of the Act have been used to be taken, exercised, and executed. In the Record Commission edition of the statutes, and in the ordinary editions, the sections of the Act erecting the Court of Surveyors do not correspond: sections 50 and 53 of the latter form part of section 36 of the former. rogative, and did so from the earliest feudal times. That was 1843. therefore a bond taken to the use of the Crown, and within the RE BULL. provisions of the statute of Hen. VIII. The other barons concurred. Rule refused. There is a distinction between execution upon a statute staple and execution upon a statute merchant, of which the student, who has deemed a perusal of the text of Blackstone sufficient for a part of the law now regarded as obsolete, is probably not aware. Blackstone says (3 Com. 420) that upon forfeiture of recognizances or debts acknowledged on statutes merchant or statutes staple, the body, lands, and goods may all be taken at once in execution to compel the payment of the debt. But it will be found, upon examining the statute of the staple and the statute of merchants, that as Judge David Jenkins has stated in his Eight Centuries of Reports, p. 163, "upon a statute staple a capias and extent of lands, goods, and chattels are contained in one writ, but it is not so upon a statute merchant." The statute staple is by far the quickest remedy. The student may consult Fitzherbert's Natura Brevium, Writ of Execution upon a Statute Merchant, and Writ of Execution upon a Statute Staple, pages 130 and 131, edition of 1794, and a note ascribed to Lord Hale. By the Statute of Merchants made at Westminster, 13 Edw. I. stat. 3, c. 1, it is ordained and established, that if the debtor could not be found in the power of the mayor or chief warden of the city or town, then shall the mayor or chief warden send into the Chancery, under the King's seal, the recognisance of the debt, and the Chancellor shall direct a writ unto the sheriff in whose shire the debtor shall be found, for to take his body and safely to keep him in prison until he hath agreed for the debt and within a quarter of a year after that he is taken, his chattels shall be delivered him, so that by his own he may levy and pay the debt; and it shall be lawful unto him during the same quarter to sell his lands and tenements for the discharge of his debts, and his sale shall be good and effectual; and if he do not agree within the quarter next after the quarter expired, all the lands and goods of the debtor shall be delivered unto the merchant by a reasonable extent, to hold them until such time as the debt is wholly levied; and nevertheless the body shall remain in prison as before is said; and the merchant shall find him bread and water; and the merchant shall have such seisin in the lands : Execution upon a statute staple, and execution upon a statute merchant. 1843. RE BULL. and tenements delivered unto him, or his assignee, that he may maintain a writ of Novel disseisin if he be put out, and Re-disseisin also as of freehold, to hold to him and his assigns until the debt be paid; and as soon as the debt is levied, the body of the debtor shall be delivered, with his lands (a). By the statute of the staple, 27 Edw. III. stat. 2, c. 9, it is ordained and established, that in case the debtors be not found within the staple, nor their goods to the value of the debt, the same shall be certified in the Chancery, under the seal of the Mayor of the Staple, by which certification a writ shall be sent to take the bodies of the said debtors without letting them to mainprise, and to seise their lands and tenements, goods and chattels; and the writ shall be returned in the Chancery, with the certificate of the value of the said lands and tenements, goods and chattels. And thereupon due execution shall be made from day to day in manner as it is contained in the statute merchant, [The Statute of Merchants, A.D. 1285. The form of knowledging a Statute Merchant. The creditor's remedy if his debt be not paid. The King's Seals shall be sent to Keepers of Fairs. Taking of Recognizance.] so that he to whom the debt is due shall have estate of freehold in the lands and tenements, which shall be delivered to him by virtue of the same process and recovery by novel disseissin in case if he be ousted; and that the debtor have no advantage of the quarter of a year which is contained in the said statute merchant. 1843. RE BULL. NOTE.-The A statute merchant is a bond knowledged before one of the clarkes of the statutes marchant, mayor or chiefe wardein of the citie of London, or two marchants of the said citie for that pur- Account of a pose assigned, or before the mayor, chiefe warden, or maister of Statute Merchant given other cities or good townes, or other sufficient men for that in the first part purpose appointed, and sealed with the seale of the debtor and of of West's Simthe king, which is of two pieces, the greater is kept by the said boleography. mayor, chiefe wardein, &c., and the lesser peece thereof by the First Part of sayd clarkes. The fee for the sayd seale is for statutes knowledged in fayres of everie pound an halfpennie, and out of fayres of everie pound a farthing. The execution upon statutes marchant is first to take the bodie of the debtor, if he can be found, if otherwise then upon his lands and goods; and it is made in forme following, &c. it Simboleography, which may be termed the Art or Description of Instruments and Presidents, collected by William West, of A statute staple, properly so called, is a bond of record know- the Inner Temledged before the maior of the staple in the presence of one of ple, Esquire, and now newly the two constables of the same staple, for which seale the fee is augmented with of every pound, if the sum exceed not a C li. a halfepeny, and if divers Presiexceed a C li., of every pound a farthing. And by vertue of such Marchants a statute staple the creditor may forthwith, after certificat thereof Affairs. 1605. into the chauncerie, have execution of the bodie, lands, and goods Account of a Statute Staple, of the debtor: and the statute staple, properly so called, is made given in the first as followeth, &c. dents touching part of West's Simboleography. IN THE OFFICE OF THE PETTY BAG IN CHANCERY. PROCEEDINGS, UPON BOND TO THE KING, AGAINST COMMITTEE OF LUNATIC'S ESTATE. Lawrence. Declaration, Plea, and Replication in scire facias, upon bond to the King, against the committee of the estate of The King v. Lawrence, Michaelmas Term, 38 Geo. III. 1798. The King v. Middlesex to wit—our lord the king sent to his sheriff of Middlesex his writ closed in these words, to wit-" George the Third by the Grace of God of Great Britain, France, and Ireland, King, defender of the faith, and so forth, to the sheriff of Middlesex greeting, whereas on the 10th day of March, in the 20th year of our reign at Westminster, in the county of Middlesex, Anna Lawrence of Greville street in the parish of St. Andrew, Holborn, in the county of Middlesex, widow, Samuel Clay Harvey of King Declaration. street, Soho, in the parish of St. Ann, Westminster, in the said county of Middlesex, Esq., and Husband Messiter of Goodge street in the parish of St. Pancras, in the said county of Middlesex, Esq., by their certain bonds sealed with their seals, have a lunatic. |