ther a festival or not; and the reason is the same where the process is returnable in the middle of term, before the relation to the essoin day of that return. That the entry, in the present case, which says, at which day comes here as well the said Thomas in his proper person, as the said George by John Glasse his attorney; and the said Edward being summoned, &c. likewise comes, &c. and afterwards departs in contempt of the Court, was also an estoppel to say, that the judgment was not given on that day, or that it was given on any day before, or even after that day. As to the other objection, it was said, that the very canons prohibiting, were evidence of the fact of sitting on a Sunday; and it was further proved by the returns of the writs, all which were formerly on festivals; and in the year 1763, nine returns out of seventeen were on a Sunday, as appears by the almanack of that year. That it would be strange for the King, by his writ, to order the parties to appear on a day on which no Court was or could be held, if they were not to sit on that day. Besides, the many cases of testing and returns of writ, adjourning terms, casting or warranting essoins, &c., all which were equally objects of the canon law, prove the fact of courts actually sitting on Sundays. they could only have the same force as in other cases, when adopted; viz. to subject to spiritual censures, but not to invalidate the act; like to the canons against holding fairs on a Sunday, which was also prohibited by statute, under temporal penalties; but the contract was binding, till at last, by another statute, the contract was made invalid. But as no act extended in words to the present subject, therefore it was not against the common law for the Court to sit and pronounce judgment on that day; or by construction or intendment of law, the judgment, as As to the canons, given in this case, as the entry imported, the Court must intend that it was given on that day. If the canon had been adopted, i. c. incorporated into our law, and if, in after times, the Legislature had thought it necessary to forbid judgments having relation to the essoin days, they would then have changed the return of the writs; for it is now necessary to take out the writs returnable on the general return days, and the greatest part of these are Sundays; and as they must be considered as common days of return, and as the judgments necessarily relate to these days and no other, if Sundays are to be for this purpose taken as dies non juridici, then most of the judgments given in term must necessarily be bad, as bearing relation to that illegal day; and thus the return days would remain as so many snares for error. But it may be presumed, the Legislature did not thus consider it; and thought the returns and relations of law might still remain, though they knew that the courts, in decency, only sat on Mondays, and that the legal relation to Sunday of the judgment given on Monday, could be no violation of the Sabbath, and would still preserve private rights. For the profanation of the Sabbath was the only object of the Legislature, but it never intended to interfere with private rights. On the other side, it was said, that a common recovery, though now become a usual mode of conveyance, must necessarily be attended with all the ceremonies and solemnities of an actual suit at law; and if those are wanting, the conveyance by recovery is as defective as a will devising lands, to which there are only two subscribing witnesses. That as the recovery pursues the forms of a real action, it is of absolute necessity that the vouchee, against whom the judgment is obtained, should be living on the day when such judg ་ ment is given by the Court, for otherwise such judgment is erroneous. That though, in all cases, the judgment shall relate as far back as can be permitted by the facts appearing on the record, yet no fictitious relation shall presume what is in itself impossible. In the present case, the writ of summons being returnable on Sunday the 13th of May, the judgment in the recovery was not, nor could be given till Monday the 14th of May; for though many nominal return days of writs were very anciently fixed on Sundays, yet both by law and practice, courts of justice cannot now sit upon a Sunday, but the business appointed for that day is, and always must be, dispatched upon the Monday immediately following. As therefore the vouchee died upon Sunday the 13th, the day preceding the judgment, the judgment was given against a person not in esse, and, consequently, was totally erroneous. That it was not sufficient to say the vouchee had done every act necessary to be done by him, that he had executed the deed to make a tenant to the præcipe, had acknowledged the warrant of attorney, and had thereby completed, in substance, every thing requisite to this particular mode of conveyance; for no warrant would empower an attorney to appear in the name of another, after the death of his principal. The vouchee, it was acknowledged, intended to perfect this conveyance, but died before he could accomplish it; and whether he died a day or a month too early, was quite immaterial. Every act done by him might have been done in the month of September, previous to a recovery intended to be suffered in Michaelmas term; and yet it would not be contended, that if such a vouchee had died in October, the recovery could have been perfected in the subsequent term. It was therefore hoped, that the judgment of the Court of King's Bench, reversing the judgment in th erecovery, would be affirmed. After hearing counsel on this writ of error, the Judges were directed to deliver their opinions upon the following question, viz. "Whether the recovery is good, or erroneous, the return day of the writ of summons being on Sunday, the 13th of May, on which day Edward Swann the younger died?” And the Lord Chief Baron of the Court of Exchequer, having conferred with the rest of the Judges present, acquainted the House, "that they all agreed in their opinion, that the recovery was erroneous." Whereupon, it was ordered and adjudged, that the judgment of the Court of King's Bench should be affirmed. tion. Inst. 361 b. 42. When the demandant has obtained judgment Of Execuin a common recovery against the tenant, and the tenant against the vouchee, the Court awards a writ of habere facias seisinam, in the same manner as upon a judgment in an adversary action, to the sheriff of the county in which the lands lie, directing him to put the recoveror in possession of the lands which he has recovered; and when this writ is returned, the recovery is complete and executed. 43. The writ of seisin should bear teste the fourth Wilson, 373. day inclusive after the return of the writ of entry, or last writ of summons, when the vouchee comes in by summons and there should be fifteen days between the teste and the return of the writ of seisin. 44. It is said in the case of Goodright v. Rigby, ante, c. 2. § 25. that the day named in the return of the writ of seisin 2 H. Black. is immaterial, it not being necessary to name any R. 63. particular day, for the return would be good without it; all that was necessary was, that seisin should be delivered after the judgment, and before the return W. Jones 10. 2 Stra. 1185. of the writ, and that the proceedings should all be in the same term. 45. A judgment in a common recovery has no 1 Wils. R.55. manner of operation, nor does it alter the nature of the estate, until it appears to have been regularly executed by the return of the writ of seisin; and as almost all common recoveries are now suffered to uses, the recoverors do not acquire any seisin, and consequently no use can arise until the recovery is executed; that is, until the writ of seisin is returned, for it is now never in fact executed. 5 Term R. Shelley's 46. If a common recovery be suffered of lands let on leases for years, the recoverors have not the reversion presently by the judgment, but it must be executed. 47. By the statute 7 Hen. VIII. c. 4. all recoverors in common recoveries are allowed the same remedies against lessees for lives, and years, by distress, avowry, and action of debt, for rents and services which become due after the recovery, to which the persons against whom the recovery was had were entitled. 48. If a person suffers a recovery and dies before the writ of seisin is issued, the recoveror may have execution against his heir. 49. Thus, in Shelley's case, it was unanimously resolved, that although Edward Shelley died on the very day on which the recovery passed, and consequently before the writ of seisin could have been issued, yet that execution might be sued against his heir *. 50. The awarding of a writ of seisin, its execution, and return by the sheriff, must appear upon record: * In this case Lord Coke states the writ of seisin to have been awarded immediately after the judgment; and the record prefixed seems to warrant such statement. |