A statute staple or merchant is once certified in Chancery, there is no occasion for a new certificate if the conusee dies ; but there is occasion if the Chancellor he named by his Christian name, and dies ; or if the first certificate was insufficient. 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-merchanit. If the land be extended upon this writ, and the body be not found ; a new capias shall not be directed to the sheriff of another county, without a testatum that latitat there. The executor of the conusee must have a new certificate ; for the certificate had in the life of the conusee will not serve. A scire facias does not lie for the executor; for the statute prescribes the process, and that must be used : as Westm 2, cap. 35, gives the writ of ravishment of ward; this writ was not the words vi and armis: for this would not follow the form prescribed by the statute. Lands extended are evicted, at common law a new extent would not lie ; so if the husband died seised in right of his wife : but at this day, by the statute 37 H. 8, where there is a total eviction, a new extent may be awarded. But at common law, and at this day, such eviction does not hinder a capias for the body of the conusor. Where, after a younger statute is extended, an extendi facias upon an elder statute comes to the sheriff; the sheriff has his choice whether to return this matter, or to extend the elder statute.
By all the judges of England.
Citations:
[1220] EngR 290, (1220-1623) Jenk 163, (1220) 145 ER 105 (B)
Links:
Litigation Practice
Updated: 18 May 2022; Ref: scu.461202
