Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	act_n	debt_n	payment_n	1,520	5	10.3594	5	false

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

Whole which is to be Tried first For if that be against the Plaintiff tho' he should have Verdict on the other he can have no Judgment But for the Inconveniency and for that this Plea to the Whole comes after the Venire facias and the other was before therefore 't was Tried but if both had been before the Venire facias it could not have been and 't was found for the Plaintiff and Judgment was had with a Cesset Executio till the other was Tried for the Concord was laid in another County So the Plaintiff Released to him and took Execution tho' the Judgment was on the first Plea CHAP. XII Of Executions EXecution is the last Performance of an Act as of a Judgment in a Suit viz. Where Judgment is given in any Action That the Plaintiff shall Recover the Land Debt or Damages as the Case is and where a Writ is awarded to put him in Possession or to do some other thing whereby the Plaintiff may be the better satisfied his Debt or Damages that is called a Writ of Execution and when he hath the Possession of the Land he sues for or is paid off his Debt or Damages or hath the Body of the Defendant awarded to Prison then he hath Execution And where the Plea is in an Inferiour Court as County-Court Hundred-Court or Court-Baron and they defer Execution in favour of either Party or other Cause then the Party may have a Writ de Executione Iudicii Vide Co. Lib. 6. fol. 87. a. Where is said to be two sorts of Executions the one final the other with a quousque tending to an End An Execution final is that which makes Mony of the Defendant's Goods or Extends his Lands and delivers them to the Plaintiff which he accepts in Satisfaction and is the End of the Suit and all that the King 's Writ Commands to be done The other Execution with a Quousque is tending to an End but not final as in the Case of a Capias ad Satisfaciendum c. which is not final but the Body of the Party is to be taken to the intent to satisfie the Plaintiff and his Imprisonment is not absolute but until the same be performed And by Co. Lib. 8. 141. the Method of obtaining these Executions are by certain Iudicial Writs some of which are against the Person some of them against the Goods and Chattels some of them against the Lands and some against the Body Goods and Lands And by Co. ubi supra The Execution for Debt is Fourfold 1. Of Goods only by Fieri facias 2. Of the Moiety of Lands by Elegit 3. Upon a Statute or Recognizance 4. Of the Body by Capias ad Satisfaciendum Then Touching Executions upon Iudgments by Writs of Capias ad Satisfaciendum First Shall be declared against what Person an Execution will lye by Capias As namely 26 H. 8. 7. Not against an Abbot but upon a Testatum the Plaintiff may have an Elegit into another County Otherwise of a Knight the like as an Abbot of a Bishop Duke c. if it be not upon a Rescous or other Contempt as 11 H. 4. 15. and other Books are And by Co. Lib. 8. 141. Lib. 5. 88. Lib. 6. 53. Lib. 3. 12. Magna Charta 2. 18. Westm. 2. 11. This Writ of Execution may not be had against a Duke Earl or Baron or their Wives but in some Special Cases nor against an Heir or an Executor but in some especial Cases Then In what Actions and other Cases Execution may be had by Capias See first 34 H. 6. and 48 Ed. 3. Bro. 12. That in Scire facias upon a Recognizance no Capias Yet 7 H. 4. 34. granted for the King in a Recognizance for the Peace Nor against Executors in whose hands Assets were found if not as it seems upon a Devastavit Return'd See more touching Executions against Executors in that special Title Devastavit in Brook's Abridgment And in 42 Ed. 3. 11. if one Recover in an Action upon the Case against an Hostler because he is not charged upon a Wrong but a Laches no Execution lieth by Capias The like in an Action upon the Statute of Hue and Cry And so is 42 Ass. 17. in the Case of an Hostler although there was a Capias in the Mean Process But 2 H. 4. 6. and Roll. Abridg. 898. one in Dower did Recover Damages and could not have Execution of them by Capias because no Capias in the Mean Process And so 11 H. 7. 15. in an Assize And 7 H. 6. 45. No Execution by Capias against one not Party to the Writ as there where upon Issue in Detinue found against the Garnishee the Plaintiff recovered the Thing against the Defendant and Damages against the Garnishee and could not have Execution of the Damages by Capias And Note this Difference 40 Edw. 3. 25. That in Detinue of a Bag or Box of Writings Execution lieth by Capias Otherwise if there be one or more Writings in Certain quod Nota. Vide Pluis in Bro. Tit. Capias and Process Court Baron Antient Demeasn Statute Merchant c. And yet as appears 11 H. 7. 15. In an Assise where no Execution by Capias lieth against the Party for the Damages yet if the Disseisin be found to have been with force and the Party to be taken by Capias pro Fine either within or after the year as the said Book is he shall remain in Execution for the Party Quod Nota Et quaere inde And so is 7 H. 4. 39 40. Not mentioning whether the Capias were within the year or after for in all other Cases the difference is taken where the Defendant is taken within the year upon the Capias pro Fine and where after For in Fitz. Nat. Br. 121. In the one Case he shall remain in Execution without the Plaintiffs Request and in the other not altho' he do request the same And 7 H. 6. 5. Somewhat doubtful if the Plaintiff request not the same But 7 H. 4. 4. is clear without request of the Plaintiff because the words of the Writ are Ad Respondend ' tam Nobis quam Parti And see 14 H. 7. 15. and 15 H. 7. 5. In an Assise where the Disseisin was found with Force and the Record removed and the Defendant taken pro Fine Regis within the year yet could not remain in Execution at the request of the Party because there he could not have Execution without Scire Facias And so is 1 H. 7. 20. When it is after the Year or in the time of another King But as appears 11 Ed. 4. 67. This is no Execution for the Party but at his Election for altho' as the Case was there he was discharged by consent of the Plaintiff upon Recognizance given yet the Plaintiff had at his Pleasure a new Execution And so is 4 Edw. 4. 16. But more doubted whether there the Gaoler may

Querela But if a Capias ad satisfaciendum be had against one of them in this Case so as there is such an Execution as is a Satisfaction no other can be had against him or against his Heir or Executor if he die For where the Law gives several kinds of Execution by way of Choice and he Chuseth a Capias ad satisfaciendum and the Body is taken it cannot be for part as in a Fieri facias But see the Statute of 21 Iac. 1. cap. 24. how the Law is thereby changed in this Point For it is Enacted by that Act That he or they at whose Suit any Person is charged in Execution for Debt or Damages recovered their Executors or Administrators may after the Death of the Person so charged in Execution lawfully sue forth New Execution against the Lands and Tenements Goods and Chattels of the Person so Deceased in like manner as if the Person Deceased had never been in Execution And see Roll's Abridgment 903. That if one Recover in Debt against I. S. and then Outlaw him on the Judgment and afterwards I. S. is taken within the Year by Capias Utlagatum at the Suit of the King and dies in Prison before any Prayer made by the Plaintiff That he might be in Execution at his Suit This is no Satisfaction therefore the Executor or Administrator of him that is dead may be charged for the Debt notwithstanding he was in Execution by being taken upon the Capias Utlagatum But by Anderson 1 Part Case 273. if one that hath an Execution of Land Release one Acre of the Execution all is Extinct by the Release of the Execution in one Acre And by Hobart 60. If the Party in Execution Escape of his own wrong the Plaintiff can have no other Execution of him or of his Executors But if he take one in Execution where there are several Debtors by one Obligation there he may take another after the Escape of that one or he may have Satisfaction from the Sheriff upon the Escape at his Choice And by Co. 5 Part 86. and 6 Part 13. and 8 Part 152. and Dyer 152. If the Defendant pay the Mony he is discharged But if the Plaintiff makes any Release or other such like Act to the Defendant being in Execution amounting to a Discharge this will not be a Discharge Ipso facto but by this means he may have a Discharge And yet if the Plaintiff himself shall deliver the Prisoner out of Execution he is thereby Ipso facto discharged of the Execution for ever So if the Plaintiff doth acknowledge Satisfaction upon Record So by 13 H. 7. 1. Plowd Com. 36. and 33 H. 6. 47. If one taken in Execution upon a Capias ad satisfaciendum doth Escape and the Plaintiff bring his Action against the Sheriff or hath a Cepi Returned on the Writ and it be Filed by this the Defendant is discharged against the Plaintiff for ever But if no Cepi be Returned nor Action brought against the Sheriff the Law will Adjudge the Party to be out of Execution But by Co. 5 Part 86. If Two be in Execution for one Debt on a Bond made by Two and the Sheriff suffers one of them to Escape this will not discharge the other till the Plaintiff hath Recovered his Debt of the Sheriff But by Co. 8 Part 143. and 38 H. 6. 4. If one be in Execution upon a Capias ad satisfaciendum and the Court adjudge the Judgment or Execution Erroneous and so null it by this the Defendant is discharged of that Execution Yet by Fitz. Nat. Brev. 146. If Two be in Execution for one Debt and one of them dies under Execution that will not discharge the other But 38 H. 8. Dyer 6. One in Execution being a Burgess of the Parliament and discharged by a Writ of Privilege doubted whether discharged for ever But by the Statute of 1 Iac. 1. cap. 13. it appears That if a Prisoner be delivered out of Execution by Privilege of Parliament it is no discharge but after the Privilege is gone he may be taken again So Pasch. 30 H. 8. Dyer 62. Trewynyard's Case where Trewynyard being a Burgess of Parliament was taken upon an Exigent after a Capïas he brought a Writ of Privilege of Parliament and the Sheriff let him at Liberty In this Case it was Resolved First That the Privilege was Grantable notwithstanding the Execution because the King and Realm have an Interest in the Body of every Burgess of Parliament and the Common-Weal shall be preferred before the Interest of any private Person Secondly That after the Parliament ended he might be taken in Execution again For that the Plaintiff shall not be prejudiced in his Execution by the Act of the Law which doth Wrong to no man See 3 Ed. 6. Dyer 66 67. where the Sheriffs of London in Debt upon an Escape by going at large by Baston in London did plead That their Predecessors let him at large and good And Note by Dyer 4 5 Mar. 162. 10 Eliz. 275. and 12 13 Eliz. 206. If the Prisoner have the King's Protection to go at large by Baston it is an Escape and the Warden of the Fleet may be Charged upon an Escape And see the same Book of Dyer 10 Eliz. where Debt was brought against the Marshal of the Kings-Bench or his Deputy And see Plowden's Commentaries in Platt's Action of Debt against the Sheriffs of London where it seemeth That by the Custom of the City of London one in Execution in Ludgate may go by Baston within London but otherwise in Southwark But Note the same Book of Dyer in 3 Ed. 6. That the Sheriffs of London were there Charged for suffering one in Execution in Ludgate to go at large in London by Baston quod nota Then Where the Act of the Court of the Law or of the Plaintiff doth discharge the Party of the Execution As namely 24 Ed. 3. 44. If one recover the Land and Body in a Writ of Ward and Release the Body the Land is thereby discharged But otherwise of a Grant The like seemeth 40 Ass. although the Land be Extended and Granted over The lik in Pop●'s Case in Plowden's Commentaries If the Cognizor after Execution Enfeoff the Cognizee of part but it is otherwise before Execution for there the Lands be in the Hands of the Cognizor and his Body is Charged See 6 Ed. 4. 4. and 24 Ed. 3. 45 46. That if one in Execution be Outlawed or Condemned for Felony and afterwards have his Pardon yet touching his Body the same shall still remain in Execution Notwithstanding by the same Book of 6 Ed. 4. if he take himself to his Clergy he shall be out of Execution And so seemeth the Book 7 Eliz. 248. but ibid. 261. è contra See hereof Bro. Abr. 272. And see 10 Eliz. 275. That one in Execution by Agreement of the Parties and the Chief Justice went at large for a

Material Matter of the Title And 35 H. 6. 59. in Trespass by a Bishop against a Prior who said That his Predecessor was seised and died and then himself Elected and gave Colour To which the Plaintiff Replied That he was seised until by A. disseised upon whom the Predecessor of the Defendant did Enter c. There the Defendant is to Traverse the Dissesin by A. as most Material But as it appears by the same Book 27 H. 8. first cited in this Division That although the Defendant Convey by Mean Degrees from the Plaintiff himself yet if he plead false in any Point the Plaintiff by like Pleading may Traverse him As in the said Case of 27 H. 8. he may say That after his Lessee did surrender to him Absque hoc that he did assign his Estate to the Defendant modo forma c. And 43 Ed. 3. 7. the King in a Quare Impedit made Title by an Heir in his Ward Conveying the Discent to him by Mean Degrees of Cosinage the Defendant shall not say Nul tiel in Reie nature nulla talis persona in Rerum natura as in the Mean Conveyance of Kindred quod nota But in a Mortdancestor or other Action Ancestrel as is 9 Ed. 4. 6. the Mean Conveyance of Kindred is Traversable But there said to be otherwise in any other Action by the Books in all Cases of Challenge In the next place it will be requisite to know Where the Commandment is Traversable For which see 37 H. 6 7. where the Defendant in Trespass did plead That the Freehold was to I. S. and that he by his Commandment did the Trespass and the Plaintiff made Title by a Lease from a Stranger Absque hoc que le Defendant Enter per Commandment J. S. and good per Cur. And see 14. H. 6. and divers other Books there Vouched in Bro. Traverse 325. That if the Defendant in Trespass do Justify by the Commandment of the Owner the Commandment is Traversable quaere tamen But in all Cases where the other Conveys from the same Person the Commandment is Traversable The like as it seems of Qui Estate if both Parties Claim from one Person as 11 H. 4. 81. 19 H. 6. 56 57. 10 Ed. 4. 6. 18 Ed. 4. 10. and 6 Ed. 4. 12. in the Title of Traverse in Brook But see more hereof in the Title Qui Estate where the same is Traversed although they do not Convey by one Person And in some Cases there are several Traverses to be taken in one Plea as by Experience the Defendant in an Information that pleads a Special Plea or is to Traverse an Office ought to Confess and Avoid or Traverse every of the Kings Titles alledged And see 12 Ed. 4. 14 19. That the Defendant in Trespass did plead a Gift in Tail to his Father and gave Colour and the Plaintiff made Title by a Common Recovery To which the Defendant did Rejoyn That his Father before the Recovery made a Feoffment and took an Estate back again and then after the Recovery and before Execution died Sans ceo que le Recoveror entra en vie son Pier Et sans ceo que son Pier avoit auter Estate tempore brevis Et sans ceo que le Recoveror fuit seisie prout in Replicatione specifica● ' Et issint le Recovery feint c. and admitted And 22 H. 6. 16. One Utlaw'd by the Name of I. S. of D. Butcher came in upon the Capias Utlagatum and said That he was Demurrant at S. and not at D. and was a Husbandman and not a Butcher and so two Traverses taken In some Cases there shall be Traverse upon Traverse As 9 H. 6. 1 2. and other Books where in a Praecipe against Two one pleaded Non-tenure and the other Iointenancy with a Stranger and Traversed Sans ceo que le auter Riens avoit and the Plaintiff Replied That the Defendants are Tenants as the Writ supposeth and Traverseth Absque hoc que le Stranger Riens avoit And see 18 Ed. 4. 10. That if the Defendant in Trespass make Title by a Feoffment or Gift in Tail and give Colour to the Plaintiff the Plaintiff without making any Title may Traverse the Feoffment or Gift per totam Curiam praeter Brian but contrary in Assize Yet by Brook or the Reporter the Law seemeth with Brian and for that the Defendant is in possession it seems the Plaintiff shall be forced to make Title against him as well in Trespass as in Assize quod nota Next of the Plea of Tout temps prist or Semper paratus which is a Plea by way of Excuse or Defence for him that is Sued for any Debt or Duty belonging to the Plaintiff As in Debt upon an Obligation with Condition for the Payment of a lesser Sum to the Obligee although the Place be named in the Obligation yet the Obligor by 7 Edw. 4. 3. is bound to plead Tout temps prist Tender les deniers in Court yea although the Obligee as it was pleaded there Refused the same because part of the Sum contained in the Bond. Otherwise if the Condition be to Perform an Arbitrement c. as is 16 H. 7. 7. c. And yet 7 H. 6. 18. the Obligor is not bound to Tender at another Place than where mentioned in the Obligation no more than the Tenant who Tendred his Rent upon the Land at the time of the Distress And if a Defeasance to an Obligation be for the Payment of a Lesser Sum the Obligor according to 33 H. 6. 3. need not to plead Uncore prist And 21 Ed. 4. 42 52. If an Obligation be with Condition for the payment of a Lesser Sum and the Obligor Tender and the other Refuse he shall not plead Uncore prist But 21 H. 6. and other Books against the same and so is Experience at this day And 21 Ed. 4. 25. the Obligor did in this Case of Payment of a Lesser Sum plead Uncore prist where it s said That if the Obligee take Issue upon the Tender and found against him he hath lost the Advantage of the Obligation for ever And according to this Learning is 20 Ed. 4. 1. and other Books But if the Condition be to make a Feoffment or to perform an Arbitrement or to pay Mony to a Stranger he shall not plead Uncore prist The like 16 H. 7. 7. 11 H. 6. 27. 22 H. 6. 39. of an Abitrement The like 19 H. 8. 12. 27 H. 8. 1. and 14 H. 6. 23. where to do any Collateral Act although to perform Covenants and one of the Covenants be to pay his Rent as the same Book 27 H. 8. is Then is to be known Where the Tender shall be made in Court and where not Vide 7 H. 4. Bro. Tit. Arbitrement 12. where the Defendant in Trespass pleaded an Arbitrement in Bar to give a Piece of