Chester, for the levying of any fine or fines within the city of Chester, the mayor of the said city for the time being shall have full power and authority to award and send forth such like writ or writs, process or precepts of dedimus potestatem, to any two or more sufficient persons, authorizing them to receive and take the acknowledgement of such person or persons as shall be willing to levy such fine or fines, and by reason of sickness or other reasonable impediment cannot come in person before the said mayor to make such acknowledgement. 2 Vent. 30. 26. The statute of Carlisle only gives authority to Co. Read. 9, two of the justices, or to one of them, attended by an abbot or knight, to take the acknowledgement of fines. But notwithstanding this restriction, writs of dedimus potestatem were frequently directed to persons of inferior quality; from whence many abuses arose, which gave rise to a rule of court made in 43 Eliz., Wils. 95. by which it was ordered, that no writ of dedimus potestatem, directed to commissioners to take the acknowledgement of any fine, should be received or recorded, unless the acknowledgement was taken by some of the Justices of the one Bench or other, or Barons of the Exchequer, or serjeants at law, or knight who was of the quorum. Custom, however, so far prevailed against the positive authority, both of the statute and of this rule, that although a knight was always named in a writ of dedimus potestatem, yet he seldom was one of those who took the acknowledgement of a fine. Jenk. 227. 27. The judges of assise may, in their circuits, per Dyer, 224 b. consuetudinem regni, take the acknowledgement of fines, without any writ of dedimus potestatem; on account of the great confidence which the law places Argenton v. 275. 1 Bos.& Pul. 362. in their judgement and integrity. In such cases, however, a writ of dedimus potestatem ought to be sued out, bearing date before the acknowledgement of the fine; although, if the writ of dedimus potestatem be tested after the date of the acknowledgement, still the fine will be supported. 28. A writ of error was brought to reverse a fine, and the error assigned was, that it appeared upon record that the acknowledgement of the fine was taken by Chief Baron Manwood, on the 27th of March, and the writ of covenant and dedimus potestatem were tested on the 9th of April, so that the acknowledgement was taken without any authority; and by the statute 23 Eliz. the day of the acknowledgement ought always to be certified; but the Court over-ruled this objection, saying, it was good enough, and that otherwise they should reverse many fines. 29. By an order of the Court of Common Pleas, made in Michaelmas term, 39 Geo. III., reciting, that the Lord High Chancellor had been pleased to direct that no writ of dedimus potestatem, to be executed in England, should issue under the great seal, directed to any persons except the judges, serjeants at law, barristers of five years standing, or solicitors or attor nies of some of the courts in Westminster Hall, the Judges of the Court of Session and Exchequer, advocates and clerks to the signet of five years standing in Scotland; it is ordered, that from and after the * There is a petition in the Rolls of Parliament, 28 Edw. III. No. 26. vol. 2. p. 261. from the Commons beyond Trent, praying that a justice of one or the other bench should come twice each year into their counties, to take the acknowledgement of fines. last day of the said Michalmas term, no fine shall be suffered to pass, unless the caption of such fine be before one of the justices or barons of his Majesty's courts of record in Westminster Hall, or one of the serjeants at law, unless an affidavit be made and filed, stating, that the commissioners taking the same are, to the best of the deponent's information and belief, either barristers of five years standing, or solicitors in some of the courts in Westminster Hall, the Judges of the Court of Session and Exchequer, or advocates and clerks to the signet of five years standing in Scotland. 30. It is the duty of all those who are appointed commissioners in a writ of dedimus potestatem, to inform themselves, by means of some people of credit, that the persons who acknowledge a fine before them are really the parties named in the original writ. They should also be extremely attentive in examining whether there be any married woman, infant, ideot, or lunatic, among the parties to the fine; as they are liable to be severely punished by the Court of Common Pleas for any fraud or wilful neglect in the exe- Petty's Case, cution of their office. Although the writ of dedimus potestatem still appears to be granted upon a suggestion of infirmity in the parties, yet such suggestion is seldom true; the writ being usually obtained to save the expence or inconvenience of a journey to Westminster; or for the purpose of levying a fine in vacation time. 1 Freem. 78. 1 Roll. R. 31. The writ of dedimus potestatem recites, that Co. Read. 9. a writ of covenant is depending between the parties, 223. and therefore should bear date after the writ of covenant. 82. A writ of error was brought to reverse a fine Goburn v. levied at Chester, because the teste of the writ of Wright, Cro. Eliz. 740. Vide 13 Vin. Ab. 333. Arundel v. 677. How the to be cer tified. dedimus potestatem was prior to that of the writ of Covenant; and it was held to be a manifest error. 33. But if the writ of dedimus potestatem be tested on the same day with the writ of covenant, the fine will be good. 34. A writ of error was brought to reverse a fine, on the ground that the writ of dedimus potestatem was tested the same day with the writ of covenant; which was contended to be erroneous, because the writ of dedimus potestatem recites that the writ of covenant is depending, whereas the writ of covenant could not be said to be depending until its return. The Court was of opinion that this was no error, for the writ of covenant might be said to be depending immediately on the purchase of it; and if a stranger should buy the land before the return of the writ of covenant, it would be champerty. of 35. By the statute 23 Eliz. c. 3. § 5. it is enacted, ledgement is "That every person that shall take the knowledge any fines, or shall certify them, shall, with the certificate of the concord, certify also the day and year wherein the same was knowledged. And that no clerk or officer shall receive any writ of covenant whereupon any fine is to pass, unless the day of the knowledge of the same fine shall appear in or by such certificate; upon pain that every clerk that shall receive any such writ, shall forfeit for every time that he shall so offend, the sum of five pounds. Fitz. N. B. 146. 36. If the commissioners in a writ of dedimus potestatem refuse to certify the acknowledgement of a fine, pursuant to this statute, within twelve months, a certiorari may be awarded against them, reciting the substance of the writ of dedimus potestatem, and the acknowledgement of the fine, and commanding them to certify it; and in case of their refusal, an alias, a pluries, and an attachment, will issue against them. 37. If the commissioners die before they have Idem. certified the acknowledgement of a fine, their executors must certify it upon a certiorari; and in case of their refusal, the same process lies against them, as against the commissioners. 38. If a person has several writs of covenant depending against several persons in different counties, Idem 327. he may have a writ of dedimus potestatem directed to commissioners, to take their acknowledgements severally. v. 39. If a writ of dedimus potestatem be directed to Downes two persons jointly, and only one of them takes the V. Savage, acknowledgement of the fine, it will be erroneous. Cro. Eliz. 240. 40. A writ of dedimus potestatem was awarded to Anon. Cro. take the acknowledgement of four persons to the Eliz. 576. same fine. The commissioners returned the acknow- 41. It was resolved in the same case, that if a writ of dedimus potestatem be awarded to take the acknowledgement of three persons to the same fine, the commissioners need not take the acknowledgement of all the three persons at the same time, but may take the acknowledgement of one of them at one time, and of another at another time. 42. All the acknowledgements must however appear on the same parchment, otherwise the fine will not be allowed to pass. 43. A writ of dedimus potestatem had been directed Balch v. to commissioners, to take the acknowledgement of 3 Bos. & Pul. 366. |