Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	administrator_n	executor_n	heir_n	2,970	5	8.7602	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43221	Maxims and rules of pleading, in actions real, personal and mixt, popular and penal describing the nature of declarations, pleas, replications, rejoynders, and all other parts of pleading, shewing their validity and defects, and in what cases they are amendable by the court, or remediable by the statute-law, or otherwise : likewise, which of the parties in his plea shall first offer the issue, and where special matter may be given in evidence upon the general issue : of demurrers upon evidence, of verdicts, general and special, and of bills of exceptions to the same, of judgments, executions, writs of error and false judgment, and of appeals, indictments, and informations and the pleadings relating thereunto / published from the manuscript of Sir Robert Heath ... ; with additions of new matter to every title, from all the reports since his time.	Heath, Robert, Sir, 1575-1649.	1694 (1694)	Wing H1340; ESTC R21584	172,855	372

he was obliged after the year to take out a New Writ of Debt And see by the Book of 5 Ed. 4. and Experience That where a Scire fac ' is had upon a Iudgment there shall be no Execution without a Garnish i. e. giving Notice or Warning to the Party or two Nichils returned Vide 19 Ed. 4. 5. where said That in all Cases where the Heir Executor or Administrator may sue to have an Execution of any thing recovered by the Ancestor Testator c. he must first have a Scire facias against the Party against whom the Judgment is had to warn him to shew Cause why Execution may not be had for him against the Defendant and then if he either make Default or at his Appearance cannot shew good Cause why Execution should not be had against him Execution shall be awarded for the Plaintiff as it should have been for him under whom he claimed Vide Roll's Abridg. 890. If one recover Damages of A. whereof part is levied by a Fieri facias but not all and A. dies the Plaintiff may have a Scire fac ' against the Heir at his Election And Idem 900. a Scire facias lies upon a Recognizance if the Conusor be dead against the Heir in general or against I. S. Son and Heir of the Conusor without suing of the Ter-Tenants for he shall have no Contribution against the Ter-Tenants And see Dyer 208. If a Judgment be had against one that hath Land who dies and the Land discends to his Heir after a Scire facias had he may have Execution of this Land in the Heirs hands by Elegit against him Vide Co. Lib. 5. 88. If a Judgment be had in the Common-Pleas and removed from thence by Writ of Error into the Kings-Bench and there confirmed within the year the Plaintiff may have the same kind of Execution in that Court as he might have had in the Common-Pleas without any Scire facias But by Hob. 196 197. where the first Action is laid there the Execution must be by Scire facias if it be had Vide Godbolt 76. where W. had Judgment in Debt in the Common-Pleas against F. and after the Year without Scire facias took out a Capias against him and Arrested him whereupon he brought Error upon the Judgment in the Kings-Bench where the Judgment was affirmed and F. was discharged W. took him again by an Alias Ca. sa without any Scire fac ' out of the Kings-Bench and upon that the Sheriff returned a Cepi It was Moved He might be discharged for that having been once in Execution in the Common-Pleas and set at liberty by Sureties in the Kings-Bench upon a Writ of Error he ought not to be taken again But deny'd by the Court. For there said That one being in Execution and discharged by Privilege may be in Execution again But 16 H. 7. 2. and 21 Ed. 4. 67. as also 8 H. 7. 10 12. contra Vide Cro. 1 Part 334. where Judgment was had in Debt by Husband and Wife for the Debt of the Wife as Administratrix of her former Husband and after Judgment and before Execution the Wife died the Husband brought a Scire facias and Scire feci being Returned had Judgment by Nichil dicit and held the Scire fac ' ought not to have been brought by the Husband but being done the Judgment thereupon though Erroneous must stand till Reversed by Error Next we shall consider What Plea or Matter will stay Execution For which see first 10 H. 6. 6. That in Debt or Scire fac ' upon a Iudgment or Redisseisin no Plea that the Defendant hath Error hanging of the first Judgment And so is 37 H. 6. 16. in a Scire facias in the Common-Pleas after the Record removed until it be Reversed For it s there said that 't is but Tenorem Recordi removed and that if nothing be done in the Kings-Bench upon Error or the Judgment be affirmed then at the Election of the Plaintiff in the first Judgment he may have Execution in the Common-Pleas quaere tamen But 19 H. 6. 7 8. if the Record be not removed or the Party be not delay'd the Court useth to grant Execution notwithstanding Error And so 7 H. 6. 42. if the Plaintiff in Error do not sue out a Supersedeas Execution shall be granted notwithstanding his Writ of Error be allowed But 4 H. 6. 31. no Debt or Scire fac ' after the Record be removed by Error unless for a Nomine poenae in the Annuity See more hereof afterwards in the Title Error Next What other Pleas one shall have in Bar of Execution See Brook 6. in Abridging the Case of 20 H. 6. a good Plea That formerly the Sheriff by another Writ levied the Mony or took the Body in Execution although the Writ was not Returned And so 21 H. 6. 5. where also 37 H. 8. and 19 Ed. 3. are Vouched somewhat differing The like 44 Ed. 3. 18 in a Scire fac ' upon Arrerages of Annuity although there Payment or Riens arrere be no Plea Vide Dyer 344. If a Judgment be against an Heir by Nichil dicit in an Action against him on the Deed of his Ancestor on a Scire fac ' he cannot plead Riens per Discent at the time of the Writ brought but Execution shall be against him of his own Lands by Elegit And see Godbolt 79. where Judgment was given on an Obligation of 400 l. and a Scire fac ' was sued on the same Judgment for 300 l. and the Party did not acknowledge that he had received the other 100 l. and held That the Scire fac ' should not Abate and that he should have Execution But by More Case 693. in a Scire fac ' on a Recognizance Joyntenancy will Abate the Writ Vide Noy 143. where A. recovered against B. in Debt and afterwards brought a Scire fac ' To which B. pleaded That A. was Outlawed and held a good Plea if he be Outlawed after the Plea in Bar pleaded in the Action of Debt But otherwise it is if he be Outlawed before for then B. might have pleaded that in Bar of the first Action And it was said there That the Mony being in Court if the King's Counsel pray to have it for the King they must shew the Outlawry sub pede Sigilli and he must confess himself the Party Outlawed And see Godbolt 96. where Debt was upon a Recovery in a Scire fac ' in London on a Recognizance taken in the Chamber of London and it was not shewed That it was a Court of Record and that they had been used to take Recognizances And Exception was taken to it and Cases put That though a judgment were void yet Execution might be by Scire fac ' and the party might not plead that in a Writ of Error And this difference was taken where Execution was sued on such a Judgment and Debt brought

Judgments in certain Actions in the Kings-Bench there particularly named and not touching the King may be Reformed in the Exchequer-Chamber or in Parliament and if in the Exchequer-Chamber then before the Iustices of the Common-Pleas and the Barons of the Degree of the Coif and the Record to be brought back again into the Kings-Bench And see the Statute of 31 Eliz. cap. 1. of Discontinuance of Writs of Error in the Exchequer and the Kings-Bench That it shall not be needful for all to be present And by the Writs of Error in the Register it appears That sometimes a Stranger to the Judgment may have his Writ of Error as Tenant by Resceit Vouchee He in the Reversion or Remainder and the Tenant both at one time And if the Feme be Resceived upon the Default of the Husband both of them may have Error or False Judgment And if Erroneous Execution be awarded upon a Recognizance the Feoffee may have a Writ of Error as appears 17 Ass. 24. See Dyer 4 H. 8. 1. accordingly and that he in the Reversion by the Common Law might have it when his Title accrued and by the Statute of 9 R. 2. presently But 21 Ed. 4. 27. in Debt against a Sheriff upon an Escape he shall have no advantage of Error in the first Record because he is a Stranger to it And so is 9 Ed. 4. 3. That a Stranger shall not Falsify but in that which disproveth the Cause of Action But 22 Ed. 4. 30. the Vouchee Tenant by Resceit Garnishee in Detinue or Foreign Attachment in London may have these Writs Then shall be considered Whether the Heir or Executor or Successor shall have these Writs And first by Fitzh Nat. Brev. touching the Successor if the Matter touch and lye in Succession then the Successor of the Abbot Parson and the like shall have these Writs But if Judgment in Debt or Damages in an Action Personal be given against a Bishop or a Parson his Executor and not the Successor shall have these Writs And for Debt or Damages recovered the Administrator or Executor and not the Heir shall have these Writs But touching that which the Heir is to have by Discent of that the Heir shall have Error and False Judgment The Heir shall likewise have a Writ of Error to Reverse an Utlary of Felony or Treason against his Father as appears by Fitzh Nat. Brevium and by that Reason the Executor shall have a Writ of Error to Reverse an Utlary in Trespass or Debt against his Testator because of his Right to the Goods And so is 11 H. 4. 65. But where the Writ of Error doth both Entitle the Heir and Executor as where Judgment in an Assize or Entry sur Disseisin c. is given against one who dieth if the Heir do not bring Error or Attaint for the Principal the Executors are remediless for the Damages and Costs recovered And so seems the Book of 9 Ed. 4. 12. 314. But if the Heir Reverse the Judgment he shall not as it seems be restored to the Damages but the Executor by Scire facias upon that Judgment of Reversal Yet if two Jointenants lease Land and Damage the Survivor shall be restored to the one and the other And accordingly 46 Ed. 3. 13. the Feme had an Attaint of a Verdict against her and her Husband although the Goods of the Husband subject to the Damages And so 19 Ed. 4. 6. the Executor shall not have Damages recovered in Detinue of Charters before the Heir have a Scire facias to have the Charters And see 50 Ed. 3. 3. where one in the Remainder in Tail recovered in Wast and before Execution died without Issue and his Executor had Execution And see 11 H. 4. 16. That if one of the Sisters after Abatement die and the Aunt and Niece joyn in Mortdancestor the Damages from the Death of the Aunt Jointenant and before the Damages for the surviving Aunt to be several Where also appeareth That if found for the Baron and Feme Plaintiffs in an Assize and that the Goods of the Husband were taken like Judgment as before shall be given And 14 Ed. 3. Fitzh Execution 15. if three Coparceners recover and one of them die before Execution the Damages survive not except they had once joyned in an Elegit See more hereof before in the Title Execution and in the Abridgments of Brook and Fitzherbert under that Title And by this Reason the Heir to the Land and not the Heir at the Common Law shall have these Writs as the Heir in Tail Special and Borough English and the like For it is not like to a Condition or Waranty as are 9 H. 7. 24. 3 H. 4. 19. and other Books Then we shall see What things one shall be Estopped by or past the Advantage to assign Error For which see Fitzh Nat. Brev. as followeth viz. That if one Utlawed do purchase his Charter of Pardon yet he may have Error to Reverse the Utlary And so is 18 Ed. 3. But against a Disclaimer the Tenant shall have no Writ of Error But as there and 6 Ed. 3. after Non-tenure found against him he may And one Condemned shall not assign Error in the Process Yet he that doth Confess the Action shall have a Writ of Error And it appeareth there also That if in a Writ of Entry sur Disseisin there want these words Quod clamat esse Ius Haereditatem if the Tenant plead he shall not have advantage thereof by Error And so in a Writ of Detinue of Charters of Land and in the Count the Certainty of the Land is not declared yet thereof is a qu●ere And so of the like to this for which see Brook's Abridgment Tit. Error and 25 H. 8. Dyer 5. That the Party having Interest in the Land by Discent or otherwise shall neither have Error or Attaint Some things there be also that one shall not Assign for Error As That the Clerks of their own Heads gave Judgment Or That the Jury gave a Verdict contrary to the Judgment because these are Repugnant to that which the Court do as Judges Neither as there appeareth may many Things be assigned for Error that were for the advantage of him that doth Assign them As That he made an Attorney was Essoined had Aid the View or the like when it ought not or that he had a Day longer than he ought as appeats in Bro. Abridg. Tit. Error See 14 Eliz. Dyer 315. that the Plaintiff shall not Assign That he wanted the Judgment Ideo in misericordia nor the Defendant Quod Capiatur c. And touching Diminution which according to Fitzh Nat. Brev. 25. and Bulstr. 1 Part 43. is where a Record is Certified in part but not all of it so that there is some Diminution in part thereof then the Party concerned in it may have a Writ directed to the Court from whence it came to send the whole 〈◊〉

upon it and held tho' Debt might not be brought on such a Judgment yet That upon a voidable Judgment a man should recover and might take out Execution and that it should stand good until the Judgment were Reversed And see Mo. Case 672. where said That in a Scire fac ' to have Execution it is a good Plea to say That the Plaintiff hath assigned the Damages to the King tho' the King hath not levied them so that the Sheriff hath levied them by Fieri fac ' tho' he hath not Returned the Writ By Co. Lib. 8. fo 12. if one pleads a Plea to a Scire facias unto which the Plaintiff demurs the Defendant may joyn in Demurrer and plead over part of a Statute ad Informandum Curiam By 1 Cro. 65 66. The Plaintiff shall not after Issue find a Fault in his own Pleadings and take advantage thereof As in a Scire fac ' against an Administrator durante Minori Aetate Executoris the Defendant pleads Plene Administravit specially The Plaintiff Replies Quod Devastavit but doth not say Quis Devastavit but the Issue was Quod praedictus A. B. the Administrator non Devastavit and it was found for the Defendant Upon which it was moved in Arrest of Judgment by the Plaintiff and alledged for Cause That it is not said in the Replication who Devastavit and so might be the Executor under Age sed non allocatur for the Plaintiff shall not take advantage of a Fault in his own Replication after Issue And with this agrees 1 Cro. 135. where said That the Plaintiff after Verdict shall take no advantage of his own ill Declaration Vide 1 Cro. 39. Co. Lib. 5. 39. b. Lib. 7. 4 6. Lib. 8. 59. Vide Mo. Case 11. fo 78. where an Executor pleads to a Scire facias upon a Judgment against him Plene administravit jour del Brief purchase and ill for he might have paid Specialties before The like if he had pleaded Nulla bona temps del mort le Testator ou unque puis but the Plaintiff lost the advantage he might have made of that ill Plea by taking Issue Where there be several Defendants they must joyn in Dilatories tho' they may sever in Pleas to the first Action As Pasch. 26 H. 8. Pl. 7. where a Scire facias was brought against Two for Damages recovered in Assize by Three one of the Defendants pleaded That one of the Plaintiffs suggested by the Writ to be dead was alive at the time the Scire facias was brought and the other Defendant pleaded That another of the Plaintiffs supposed by the Writ to be alive is dead and ill For they ought to Joyn in their Pleas to the Scire facias because they are Dilatories tho' there said they might have severed in their Pleas at first to the Writ or Action But Mich. 7 H. 7. Pl. 8. Mich. 10 H. 7. Pl. 6. and Mich 12 H. 7. Pl. 3. one Imparls and the other demands the View in a Praecipe quod reddat Quaere tamen de hoc Then of the Venditioni Exponas If the Sheriff Return Quod cepit bona ad Valenciam Et quod non invenit Emptores the same Writ of Venditioni Exponas is to be awarded out Touching which see 34 H. 6. 36. where the Sheriff did Return That the Goods were not taken by him but by his Predecessor Et ideo venditioni exponere non potuit and thereupon a Distringas nuper Vic' was awarded See the Form thereof in Brook 11. And see Cro. 1 Part 567 568. where the Sheriff took Goods on a Fieri facias and before Sale the Record was removed by Error and a Supersedeas awarded and yet upon Cepit bona return'd by the Sheriff a Venditioni Exponas was awarded And by Yelverton 6. If one recover Debt on an Obligation and delivers a Fieri facias to the Sheriff to levy the same and the Defendant brings a Writ of Error upon the Judgment and hath a Supersedeas upon it to the Sheriff here so much Goods as the Sheriff took by virtue of the Fieri facias before the Supersedeas came to him shall be liable to satisfie the Plaintiff and a Venditioni Exponas shall go out upon it But after the Supersedeas comes to the Sheriff he must not proceed upon it And by Dyer 363. If the Sheriff Return upon a Fieri facias Quod cepit bona non invenit Emptores or delay to deliver the Goods the Plaintiff shall have a Vendition● Exponas to compel him to sell the same and bring in the Mony But if he Return That the Goods were taken by his Predecessor the Plaintiff may have a Distringas nuper Vic' to Command the former Sheriff to sell the Goods and bring in the Mony But by Co. Lib. 3. 12. after the Sheriff hath Returned on a Fieri facias Non invenit Emptores the Plaintiff cannot have a Capias ad satisfaciendum or an Elegit Vide Co. Lib 5. 90. If the Sheriff levy Mony on Execution and give it to the Plaintiff tho' he Return not the Writ yet the Execution is good And the Sheriff ought to use his utmost Endeavour to levy the Mony on a Fieri fac ' upon the Defendant's Goods and Chattels and for that purpose to Enquire after them and it behoves the Plaintiff to Enquire also and search diligently if he can find any and upon finding them to give Notice to the Sheriff who ex Officio is to take and sell them if he can otherwise he must be Impowered by a Venditioni Exponas by virtue whereof he may sell them and give the Plaintiff his Mony But by Yelverton 44. If the Sheriff do seize the Defendant's Goods on a Fieri fac ' the Property is not altered yet the Sheriff may not sell them without a Venditioni Exponas where he hath made no Return of his Writ and is out of his Office Then Touching Execution against a Clerk If the Sheriff Return Clericus est Beneficiatus upon a Fieri fac ' then shall be awarded a Writ to the Bishop to Sequester his Spiritual Promotion See thereof 13 H. 4. Abridged by Brook Pl. 38. But that seems upon the Return of Nulla habet bona c. See hereof more in Brook Process 2. And see 21 Ed. 3. 7. Bro. 44. That if the Party Condemned be present in Court at any time within the Year and the Day and deny not but that he is the same Party the Court at the Request of the Plaintiff may Commit him in Execution Otherwise after the Year and the Day quod nota And so 21 Ed. 4. 13. if the Defendant be present in Court at the Judgment See also accordingly Dyer 2 3 Eliz. 182 183. and 14 Eliz. 306. And see more hereof in Bro. Tit. Office de Court. And see 21 Ed. 3. 29. where upon a Return of a Writ of Execution upon a Statute Merchant Returned Nichil