by the Court," that no common recovery, wherein the tenant or tenants, vouchee or vouchees, or any of them, shall appear and defend by attorney, shall be arraigned at the bar, unless an affidavit or affidavits in writing, on parchment, shall be made and annexed to a copy of the præcipe, and warrant or warrants of attorney, acknowledged by such tenant or tenants, vouchee or vouchees, by virtue of any writ or writs of dedimus potestatem; in which affidavit or affidavits, the person or persons making the same, shall swear that he or they knew the party or parties acknowledging such warrant or warrants of attorney; that the same was or were duly signed and acknowledged upon the day and year, or several days and years, mentioned in the caption or several captions thereof; that the party or parties acknowledging, and also the commissioners taking the same, were all of full age and competent understanding; that the femes covert (if any) were solely and separately examined, apart from their hus bands, and freely and voluntarily consented to acknowledge the same; that all the said parties knew the same warrant or warrants of attorney was or were intended for suffering a common recovery to pass his, her, or their estate or estates; and further, that the razure or razures, interlineation or interlineations (if any), in the body or caption of such original warrant or warrants of attorney, was or were made before the said parties or any them signed the said warrant or warrants, and before the commissioners signed the said caption or cap. tions which affidavit or affidavits (together with the said copy of the præcipe, and warrant or warrants of attorney, whereunto the same shall be annexed) shall be filed in the office of enrolment of writs for of 수 fines and recoveries. And it is ordered, that all and every such affidavit or affidavits as aforesaid, shall be made by some attorney or attorneys of the courts of Westminster-hall, or of the sessions in Wales, or of the counties palatine of Chester, Lancaster, or Durham; and shall be sworn before a person duly authorized to take affidavits in this court, except where the party or parties respectively, at the time of their acknowledging such warrant or warrants of attorney, shall be in that part of Great Britain called Scotland, or in Ireland, or in some other parts beyond the seas. And in case the said party or parties shall be in Scotland, then the said affidavit or affidavits shall be made by one of the clerks of his Majesty's signet, and sworn before one of the Judges, or other person duly authorized to take affidavits or depositions in the Court of Session, or Court of Exchequer, in that part of the United Kingdom. But if the said party or parties shall be in Ireland, or in any other parts beyond the seas, then the said affidavit or affidavits shall be made by one of the commissioners who hath taken the acknowledgement of such warrant or warrants of attorney, and shall be sworn either before some person duly authorized to take affidavits in this court, or before some magistrate of the place where such acknowledgement shall be taken, having authority to administer an oath, and in the presence of a public notary, which notary shall also certify in writing, under his hand and seal, as well the due administering of the said oath, as also the name, signature, and office of the magistrate administering the same." 16. By a rule of court made in Mich. 29 Geo. III. it is ordered, that no common recovery be suffered to pass, unless the taking of the warrants of attorney be before one of the Justices or Barons of his Ma jesty's courts of record at Westminster, or one of the Serjeants at Law, unless an affidavit be made and filed, stating that the commissioners taking the same are either barristers of five years standing, or solicitors or attorneys of some of the courts in Westmin2 H. Black. ster-hall, the Judges of the Court of Session or Exchequer, or advocates or clerks of the signet of five years standing, in Scotland. Ex parte R. 275. 1 H. Black. R. p. 527. Of the Writ 17. By a rule of court made in Trin. 30 Geo. III. it is ordered, that from and after the first day of Mich. term then next ensuing, in every common recovery wherein the tenant or tenants, or the vouchee or vouchees, warrant or warrants of attorney shall be taken under a dedimus potestatem, there shall be written on every copy of the præcipe, and of such warrant of attorney having such affidavit or affidavits as is or are required by the rule of this court made in Hil. 14 Geo. III. thereto annexed, the allocatur of the Lord Chief Justice, or some one other of the Justices of this Court, in the same or like manner as allocaturs are now written on fines taken by dedimus potestatem; and the copy of the præcipe and warrant or warrants of attorney with the allocatur thereon, shall be filed as directed by the said rule; and that at the time of signing such allocatur, the writ of entry for such common recovery shall be produced before the judge signing such allocatur, who may mark such writ with his title, name, or initials thereon; and such writ shall also be produced at the time of the arraignment of such recovery. 18. If the person whom the tenant vouches be not of Summo- in court, then a writ of summoneas ad warrantineas ad Warrantizandum. zandum issues, to compel the vouchee to appear in court, and warrant the land. 19. In adversary suits, if upon a writ of summoneas Booth, 43. Pigot, 148. ad warrantizandum, the sheriff returned the vouchee 1 Inst. 101 b. summoned, and the vouchee made default, a capias ad valentiam issued for the tenant. But if the sheriff returned nihil upon the summons, an alias and a pluries issued, and then a sequatur sub suo periculo; and if the vouchee still made default, judgment was given for the demandant; but no judgment was given for the tenant, because it appeared that the vouchee had not assets. 20. Where the vouchee, who comes in upon a writ of summoneas, appears by attorney, the warrant ought to bear date after the teste of the writ of summoneas. But still the omission of this circumstance will not invalidate a recovery. 21. In a writ of error to reverse a common reco- Wynne v. Lloyd, very, the error insisted on was, that the warrant of The Court said, that a common recovery being a common assurance, they would intend another warrant of attorney, made in due time. 22. By the common law, a writ of summoneas ad warrantizandum had nine returns. By the statute 16 Cha. II. c. 16. § 10. the returns were abridged to five; and now, by the statute 24 Geo. II. c. 48. § 8. they are reduced to four inclusive: as if the writ of entry is returnable on the morrow of All Souls, then the writ of summoneas must be returnable from the day of St. Martin in fifteen days, being the fourth and last return of Michaelmas term. And if there are three vouchers, the writ of summons for the T. Raym. 16. 1 Sid. 213. 1 Lev. 130. Barnard v. Woodcock, 1201. second vouchee is to be returnable four returns, both inclusive, from the return of the summons of the first vouchee: and writs of summons are tested four days inclusive from the writ of entry. 23. The Court of Common Pleas will not enlarge the return of a writ of summons, so as to make a term intervene between the teste and the return. 24. Thus where a motion was made in Easter term 18 Geo. III. that the writ of summons in five re 2 Black, Rep. coveries might be tested in the Michaelmas term preceding, and be made returnable in that Easter term, instead of the usual course authorized by the statute 24 Geo. II. c. 48, which is, that it should be tested the fourth day inclusive from the return of the writ of entry, and be returnable the fourth return after the return of the writ of entry; in consequence of which writs of summons must be returnable either in the same term in which they were tested, or at farthest, in the very next term. next term. The occasion of this application was, that Earl Cowper, the vouchee, had acknowledged the warrants of attorney to appear to the summons, before commissioners appointed by dedimus (which recited the summons as returnable in the preceding Hilary term) at Florence, on the 13th December 1777, but they did not arrive in England till after the end of Hilary term; and as the return is usually of the same term wherein the recovery is in fact arraigned at bar, and the teste must precede the actual acknowledgement of the warrant of attorney by the vouchee, this proceeding could not be made regular, without suing out a writ of summons with a much longer return than the course of practice will at present allow. The like inconvenience must occur whenever the vouchee dwells in distant any |