executed before the fi. fa. was on the file of returned writs, and cited Miller v. Parnell (a). Follett shewed cause. The fieri facias not having been effectually executed need not be returned. Miller v. Parnell admits that both processes may issue at the same time, though only one may be executed (b). BAYLEY B.-There is no doubt that a fi. fa. and ca. sa. may issue together and be concurrent, for if nothing is done on either, no award of execution is entered on the roll. But if one is executed, a return of that must be entered before you can so enter the award of another execution. Now if both are executed concurrently, the entry on the roll must be that both were awarded and issued on the same day, which would be irregular. The capias ad satisfaciendum should have recited the return to the writ of fi. fa., and what levy had taken place under that writ. It might then have gone for the residue. It is clear upon principle that two executions cannot be acted upon at the same time. Here two issue, and a seizure of goods takes place, which if made the subject of an action of trespass could only be justified under the fi. fa. Here, before any return to the writ of fi. fa., the defendant's person is taken under the ca. sa. The other Barons concurred. 1831. HODGKINSON v. WALLEY. (a) 6 Taunt. 370. 2 Marsh. 78. S. C. cited Edmond v. Ross, 9 Pri. 5. (b) Com. Dig. Execution H. cites cases contrà. Another point arose respecting the cognovit on which the judgment and execution were founded having been signed by the defendant in custody, in absence of any attorney for him. It appeared that by the practice of the Exchequer and K. B. no attorney need be present. But see now Reg. H. 2 W. 4. Reg. I. § 72. post. 1831. HODGKINSON V. WALLEY. Per Curiam.-Rule absolute with costs, in case of defendant undertaking to bring an action; without costs, if he should not. SCOTT against MARSHALL. In Exchequer A Rule nisi for costs of the day for not proceeding to a rule for costs of the day makes itself trial, was drawn up for 8th November. Cause was attempted to be shewn on 14th. But, per Curiam, absolute unless this being a rule unless cause shewn, became absolute on the 8th, no cause having been shewn before or on that day. cause be shewn on or before a certain day, and cause cannot be shewn after that day. Burchell for, Watson against, the rule (a). (a) See Dax's Practice, 76. The distinction in Exchequer is between a rule nisi, which makes itself absolute on a certain day, unless cause be shewn, (as above) and a rule to shew cause on a certain day, in which case, the day after that mentioned in the rule is the day for shewing cause. Where the certified by clerks of the peace, town clerks, &c. to this Court is under 57., they may verify the return or cer tificate by affidavit without commission or personal appearance. Ex parte TOMLINS, Town Clerk of Richmond, in Yorkshire. HE Court permitted this gentleman to verify his THE return of estreats, &c. to this Court, required by 3 G. 4. c. 46. § 14. by affidavit without a commission or personally appearing, the amount being under 5l., and directed a similar course for the future where the estreats, &c. did not amount to that sum (b). Starkie moved. (b) See 2 Y. & J. 142, Ex parte Hodgson. LISLE against Chetwode. 1831. proceedings on a bail SAUNDERS applied at the instance of the bail to Affidavits in set aside proceedings on a bail bond, on an affi- support of an application davit which was originally intitled as in an action to set aside against the bail, i. e. Lisle v. Wilson and another, and having been rejected by the officer, had been afterwards amended by intitling it as above against the original defendant. BAYLEY B.-The affidavit may be intitled either way (a). bond may be intitled either in the original action or in that against the bail. Rule granted. Before which case (a) Kelly v. Wrother, Hil. 1816, 2 Chit. R. 109 acc. it was held in 4 T. R. 689, 8 ed. 456, that if a bail bond is irregularly assigned, or being regular, is sought to be set aside on terms, the affidavit and rule should be intitled in the original cause; but if the bail bond is regularly assigned, and the motion is to set aside the proceedings for some irregularity in the process in the action on the bail bond, the affidavit &c. should be entitled in the action against the bail. Tidd. 9 ed. 304. General words EJECTMENT for lands in Anglesea. At the trial in a deed fol lowing particular words specifically before Bolland B. at the Summer Assizes for Anglesea, in 1831, the claim of lessor of the plaintiff describing and enumerating a certain house and closes are controlled and limited thereby. In 1816, William M. a tenant in tail, suffered a recovery and stated in the deed to make a tenant to the præcipe his intention to cut off the entail of the capital mansion house, tenement, lands &c. thereinafter particularly mentioned. He then described the property conveyed as "all those the capital mansion house, messuage or tenement, with the several out offices, gardens, plantations and hereditaments thereunto belonging, commonly called or known by the name of Cefn Coch, situate &c. and also eight fields (stating their names)" parts and parcels of the demesne lands of Cefn Coch, together with all and singular houses, lands &c. &c., hereditaments and appurtenances whatsoever to the said capital messuage, tenement, lands, hereditaments and premises appertaining &c. or therewith set, let &c." The Cefn Coch estate consisted of the mansion house with the above eight fields, and also of five other fields, contain very was narrowed down to five fields said to be demesnes of Cefn Coch. The lessor of the plaintiff was sister of the Rev. William Meyrick, who died 14th October, 1829, without issue, seised as tenant in tail of the mansion of Cefn Coch, with the lands annexed to it, under a recosuffered by Thomas Meyrick, senior, in August, 1739, of "all that capital messuage and tenement called Cefn Coch and all the demesne lands, meadows, pastures, and appurtenances whatsoever to the same capital messuage belonging or appertaining, or therewith usually held or enjoyed, then or late in the occupation &c. And all that water grist mill with the appurtenances called Melin y Cefn Coch, and the lands thereunto belonging, or therewith usually held and enjoyed, and then or late in the occupation &c. And all that fulling mill, called Pandin' Cefn Coch, all which said several messuages, mills, tenements, lands and premises were situate &c. in the parish of Llanfechell in the county of Anglesea." The uses were to the settlor Thomas Meyrick, senior, for life, with remainders in tail in succession to William Meyrick his first, and to Thomas his second son, and to his daughter the lessor of the plaintiff. 1832. DOE 0. MEYRICK. ing about thirty-four acres, the property in dispute, as well as of a corn grist mill, called in a previous settlement of 1739," Melin y Cefn Coch, with the lands thereto belonging," and a fulling mill. Melin y Cefn Coch was surrounded on three sides by the five fields in question, but the lands originally thereto belonging were only eleven acres. The whole Cefn Coch estate was cultivated by Thomas M. as tenant to William M. for many years before and after 1816, and new purchases of contiguous land made from time to time by William M. were also cultivated by Thomas M. In 1824, Thomas M. suffered a recovery of premises described in the recovery deed as "all that water corn mill with the appurtenances called Melin y Cefn Coch and the lands &c. belonging thereto, called or known by the name of Tyddyn y Felin Cefn Coch" (i. e. the house of the mill of Cefn Coch) and of the fulling mill and "all those five fields, closes or parcels of land or ground part of Tyddyn, &c. aforesaid, situate &c. containing by estimation thirty-four acres or thereabout." In 1819 at the death of William M., Thomas M. entered the rest of the premises, except the mansion house of Cefn Coch and the eight fields:-Held, that notwithstanding the general words in the deed of 1816, only the mansion house of Cefn Coch and the eight fields particularly described passed by that deed, and that the other five fields part of Tyddyn y Felin Cefn Coch passed by the deed of 1824. |