Baskervile and The Bishop of Herefords Case

HILL. 28 ELIZ. IN THE KINGS BENCH. CCCLXXVIII. PENRUDDOCK AND NEWMANS CASE, Execution. Return of the Sheriff: Surrender. In an ejectione firmie, the plaintiff declared upon a lease made by the Lord Morley, and upon not guilty pleaded, this special matter was found, that William Lord Mountegle, seised of the manor of D. whereof &c. became bounden in a statute in such a sum to A. who died, the executors of A. sued execution against the said lord, upon the extendi facias, a libertate issued forth, upon which the said manor was (280] delivered to the said executors, but was not returned. It was further found that the said executors being so possessed of the said manor, the said lord commanded a court baron to be holden there, which was holden accordingly by the sufferance of the executors, and the said executors were also present, at which time the executors in the presence of the said lord said these words, viz. We have nothing to do with this manor. And upon this verdict two things were moved, if because the liberate was not returned, the execution was good : and as to that divers books were cited, 21 H. 6. 8, 18 E. 3. 25. And it was said that there was a difference betwixt a liberate, and a capias ad satisfaciendum, and a fieri facias, for these writs are conditional, ita quod habeas corpus, &c. Ita, quod habeas denarios hic in curia, 3 H. 7. 3. 16 H. 7. 14. But contrary in the writ of liberate, habere facias seisinam, for in such writs there is not such clause, and therefore if such writs be not returned, the execution done by virtue of them is good enough ; and see 11 H. 4. 121. If the sheriff by force of an elegit delivers to the party the moiety of the land of the defendant, and doth not return the writ; if now the plaintiff will bring an action of debt de novo, the defendant may plead in bar the execution aforesaid, although the writ of execution were not returned, and yet the execution is not upon the record. And see the case there put by Hankford : and it is not like to the case of partition made by the sheriff, the same ought to be returned, because that after the return thereof, a new and secondary judgment is to be given, i. quod partitio prdicta firma & stabilis mancat in perpetuum, firma & stabilis in perpetuum teneatur, see the Book of Entries 114. And Egerton solicitor cited a case lately adjudged betwixt the Earl of Leicester and the widow Taufteld, that such execution without return was good enough. Another matter was moved; admit, that here be a good execution, if now the executors being in possession of the said manor by force of that execution and permitting and suffering the conusor to hold a court there in the manor-house, and saying in his presence the words aforesaid, if the same doth amount to a surrender by the executors to the said conusor, or not. And Wray Chief Justice said, that here upon this matter is not any surrender, for here the words are not addressed to the said conusor who is capable of a surrender, nor to any person certain : and it is not like to the case of 40 E. 3. 23, 24. Chamberlains Assize, where tenant for life saith to him in the reversion, that his will is that he enter, the same is a good surrender, for there is a person certain who can take it ; but contrary in this case, for here it is but a general speech...