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land_n	body_n	heir_n	tail_n	3,829	5	10.3007	5	true

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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

6. 46. not in Entry in nature of an Assize nor other Action And so is 21 H. 6. 18. and also 34 H. 6. 22 48. in Trespass and all other Actions except Assize where although the Bar be at large yet the Plaintiff ought either to Traverse it or to Confess and Avoid the same Where it appeareth that a Plea at large is where the Plaintiff in his Replication medleth not with the Defendant's Bar As to say That a Stranger was seised and did Enfeoff him or That his Father was seised and died seised and so he was seised until c. not shewing expresly the Discent to be after the Defendant's Title And 38 Ed. 3. 10. the Defendant in Trespass did plead his Freehold and the Plaintiff Replied Que il prist ses arbres prist and could not but was forced to make Title And 1 2 Mariae Dyer 171. the Defendant in a Replevin avowed that B. was seised and let to him for years to which the Plaintiff Replied that antequam B. aliquid habuit A. was seised and let to C. whose Estate the Plaintiff had and doubted whether it were not a meer Title as before at large because he doth no way encounter with the Avowry nor Confess and Avoid the same but only with the word Antequam Where also a Case is Vouched in 41 Ed. 3. how the Defendant in Trespass did plead his Freehold to which the Plaintiff Replied Que long temps devant le Defendant riens avoit en le Franktenement J. S. fuist seisie Et Lesse a luy pur ans and so was he possest until c. and holden a good Plea But 3 4 Mariae Dyer 134. where the Defendant in Trespass doth plead his Freehold the Plaintiff is to Traverse the same or to Convey a Title to himself and alledge a Disseisin and Regress and the Trespass mean quod nota vide accordant 34. H. 6. 32. And by 42 Ed. 3. 2. the Defendant in Trespass for taking a Ship pleaded the Gift of the Plaintiff and the Plaintiff would have Replied that he took his Ship prist and ill and after would have added to that his Plea Absque hoc that the Ship was the Plaintiffs tempore doni and ill also and lastly would have pleaded that tempore doni the Ship was to Alice at Stile and was not suffered wherefore he added to his Plea that after the Gift Alice gave the same unto him and so he took his Ship and that holden a good Plea And the Defendant Rejoyned That it was the Ship of the Plaintiff at the time of the Gift And 49 Ed. 3. 19. the Defendant in Trespass did Prescribe in Common to which the Plaintiff Replied that the Place was his Several Absque hoc that the Defendant had Common there But where the Plaintiff in an Assize shall be forced to Answer the Bar without making Title at Large Vide Bro. Abridgm Tit. Assize viz. to every Special Bar. And what shall be good Replications and Titles further than hath been before-mentioned see the Abridgments of Fitz. and Bro. Tit. Replications and Titles where the same more plainly appears As if against an Act of Parliament Recovery or Matter of Record the Title must be set forth Specially and de puisne temps and so 10 Ass. 23. of a Waranty But against a Matter en fait the Plaintiff maywell say That after his Father was seised and died seised without shewing coment And as it appears by 47 Ed. 3. 13. If the Title be before the Fine or Recovery it may be general And 18 Ed. 4. 10. the Defendant in Trespass pleaded a Gift in Tail by the King and the Plaintiff Replied Ne dona pas and good And 9 Ed. 4. 46. where the Defendant giveth to the Plaintiff a Title and in his Plea destroyeth the same That Matter the Plaintiff may Maintain or Traverse without other or further Title And so is 40 Ed. 3. 5. and 3 Ed. 4. 18. where holden that where the Defendant in Trespass made Title by a Gift in Tail of a Stranger the Plaintiff Replied That he was seised until the Defendant did the Trespass and Traversed the Gift in Tail and good although his Title was but of his own Possession Next shall be shewn In what Cases there is no occasion either for Replication or Rejoynder And therefore First It appears by 2 Ric. 3. 9. that where Error is alledged in that which the Course of the Court doth approve and allow of there needs no Answer to the same And by Littleton 12 Ed. 4. 13. where one doth Counterplead the Possession upon a Voucher or plead Quod partes ad finem nihil habuerunt mes A. c. he shall add also Et hoc petit quod c. And so is 22 H. 6. Bro. Replic 21. But 7 H. 6. 20. to the contrary in the Plea of Partes ad Finem But 31 H. 6. 21. as also 22 H. 6. and in all other Cases where the Plea is in the Negative as Non Culp ' Ne dona pas Ne unque seisie que Dower Nul Tort Nil debet c. Otherwise upon Pleas in the Affirmative But this Matter is more proper to be Treated of in the Title of Issues But by 2 H. 4. 4. where the Defendant in Debt did plead that the Plaintiff had nothing tempore dimissionis And 11 H. 4. 79. where said that an Issue shall be always upon an Affirmative and Negative except in Special Cases Vide Dyer 2 Eliz. 182. the Tenant in a Formedon by Fish to parcel did plead one Fine and so to the other parcel another Fine To which the Plaintiff Replied Quod seperal ' Fines minime proclam ' fuerunt and good although there said that it would have been better to have made several Replications Then it is to be observed where not only Rejoynders but also Surrejoynders ought to be As 5 Ed. 4. 108. where in Debt upon an Obligation with Condition for performing an Arbitrement if the Defendant pleads Quod Arbitratores non fecerunt c. And the Plaintiff doth say Prist que cy that is ill for he ought to shew the Award and alledge the Breach and the Defendant must thereto plead That they made no such Award to which the Plaintiff must say Prist que cy and the Defendant Rejoyn Que prist que non And so you may see Count Bar Replication Rejoynder Surrejoynder and Rebutter to Surrejoynder in Pleading A Rebutter is where a man grants Land to the use of himself and the Issue of his Body to another in Fee with Waranty and the Donee Leaseth out the Land to a Third person for years the Heir of the Donor impleads the Tenant alledging the Land was in Tail to him the Donee comes in and by virtue of the Waranty made by the Donor Repels the Heir because tho' the Land was Entailed to him yet he is Heir to the Warantor likewise So if I grant to the Tenant to

which divers Grants and Renders were made and in the third Render all the Mannors Lands and Tenements were rendred to A. and B. and the Heirs of the Body of A. and in the fourth Render part of the Premisses were rendred to B. in Tail the Remainder to the Right Heirs of A. It was Resolved that the same was not Error First That the fourth Render as to that was contained in the third Render should be in the quality of a Charter which needs not such a precise Form as a Judgment Secondly That the Conusor should not assign that for Error because he gets an Estate by it and no man shall reverse any thing for Error unless he can shew that the Error is to his advantage So More Case 202. If an Infant levy a Fine and take an Estate by Render he may not have Error for this And see Mich. 31 Eliz. in B. R. Leon. Rep 1 Part 317. Pigot and Harrington's Case where Baron and Feme were Tenants for Life the Remainder in Fee to an Infant and they three levied a Fine and the Infant only brought Error to Reverse it It was Objected that they all Three ought to joyn in the Writ according to 29 Ed. 3. 14. But per Cur ' the Writ is well brought for the Error is not Assigned in the Record but without it in the person of the Infant and that is the Cause of Action for him and for no other and the Fine was reversed as to the Infant only Vide Cro's Iacobi 330. Point's Case and Bulstrode's 1 Part 206. Batts and Ienning's Case where Inspection of an Infant in Error to Reverse a Fine upon the day of Adjornment of the Term held good by all the Judges of England And see Mo. Case 701. That a Writ of Covenant Retornable before the Date is Error CHAP. XIV Of Appeals Indictments and Informations APPEAL according to Co. on Littleton Lib. 2. cap. 11. comes from the Latin word Appello to Call quia Appellans vocat Reum in Iudicium and is used in our Law for the private Accusation of a Murderer by a Person who had Interest in the Party murdered It is as much as Accusatio with the Civilians for as in their Law Cognizance of Criminal Causes is taken either upon Inquisition Denunciation or Accusation so it is in ours upon Indictment or Appeal Indictment comprehending both Inquisition and Denunciation Accusation or Appeal being a lawful Declaration of another man's Crime of Felony at least for tho' there be an Appeal of Mayhem yet that according to Bracton is but in a manner an Action of Trespass before a Competent Iudge by one who sets his Name to the Declaration and undertakes to prove it upon the Penalty that may ensue of the contrary Appeal by others is defined to be The violent pursuing of a Subject unto Death and is the most nice kind of Suit that is commenced at the Common Law for every small matter will quash the same if it be not freshly pursued and shall in divers respects be taken strictly in favorem vitae And Note That the Process in every Appeal is to bear Date the same day of the Retorn and if not it will be a Discontinuance of the Process Note also That the Omission of any word which is material in the Writ of Appeal will abate the same And it is to be Observed That the Process in an Appeal doth vary from all other Proceedings at the Common Law for there shall be no Amendment of a Writ of Appeal nor is the Discontinuance of it helped by any Statute Then Where an Appeal of Murder will not lie for the Heir For which see Mich. 33 H. 8. Dyer 50. The Statute of 31 H. 8. made it Treason for a Woman to Poison her Husband A Woman Poisoned her Husband Afterwards the Statute of 32 H. 8. Of General Pardon pardoned the Offence the Heir brought an Appeal of Murder And it was the Opinion of all the Justices that now an Appeal of Murder did lye for the Heir for that now Murder was turned into Treason and the greater Offence shall extinguish the lesser And see Co. Lib. 6. fo 13. in the Case of Pardons acc and 7 Eliz. Dyer 235. where Petty Treason is pardoned by a General Pardon there one who killed his Master was Indicted of Murder and holden the Indictment did not lye against him but being found Guilty was Reprieved And see Mich. 33 H. 8. Dyer 51. and 33 Eliz Co. Lib. 4. 45. where an Appeal of Murder was brought against W. to Answer to A. B. alias dict' A. B. Fratri haered ' of the Person murthered but because the Plaintiff in the Appeal was named Brother and Heir in the Alias dictus which is no part of the Name the Appeal did Abate and the Defendant discharged by the Court. And see 5 Ed. 6. Dyer 69. where there were three Brothers and the Middle Brother is killed and the Eldest Brother dies within the Year without bringing any Appeal and the Question was If the Younger Brother might maintain an Appeal It was not Resolved but left a Quaere See 11 Ed. 4. 11. Stamf. 59. 20 H. 6. 43. by Fortescue that he shall not but 16 H. 7. 15. contra Then How Appeals shall be brought by Infants First See Pasch. 17 Ed. 4. Pl. 4. and More Case 646. where an Appeal was brought by an Infant and the Defendant prayed to be dismissed because the Plaintiff was an Infant Per Cur ' If the Defendant be guilty he shall stay in Ward till the Infant comes of Age. But by 27 H. 8. 1. b. the Plaintiff now shall appear by Guardian By Co. 2 Inst. 5. If an Infant bring an Appeal of the Death of his Ancestor the Parol shall not demur for want of Battail but the Infant shall be outed of it as if the Appellor were Old or Maimed But Mirror of Iustices 127. contra the Parol shall demur And see 2 Ed. 4. 19. b. and 20. a. acc and 11 H. 4. 93. a. And Pasch. 27 H. 8. 25. an Infant brought an Appeal of Murder in the time of H. 8. and prayed that the Parol might demur and Resolved it should not By 35 H. 6. 10. If an Infant be found guilty of Felony 't is in the discretion of the Court to give Judgment or not as they find the Infant hath Discretion or Malicious Intent By Owen 59 63. and Popham 115. in an Appeal of Murder after Pleading to the Writ the Defendant must Plead over to the Felony else it is a Confession of it for there his Life is in question And see 3 Cro. 223 224. where in an Appeal of the Death of an Husband the Defendant pleads Ne unques accouple c. and quoad c. Not Guilty The Plaintiff Replies fueront accouple but pleads nothing to the rest yet it seems the Plea is not Discontinued because the first Plea is not Triable at Common Law so answers

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 〈◊〉

11. the Defendant in Trespass of Assault and Battery Justified at another day of the Plaintiff's own Assault Absque hoc that he was Guilty antea vel postea and the Plaintiff Replied De injuria sua propria and ill for the Reasons aforesaid quod nota And 43 Ed. 3. 11. the Plaintiff in a Replevin did Declare the Taking the 1st of May and the Defendant did Avow in the same Place at another Day for Damage fesant To which the Plaintiff Replied That it was his Common And the Rule of the Book is for that the Taking shall be intended the Day in the Avowry the Plaintiff's Replication is a Departure And to that Intent is 33 H. 6. 14. where the Defendant in a Quare Impedit did Claim nothing but as Ordinary Judgment if without a Special Disturbance To which the Plaintiff Replied That such a Day Year and Place he did Present c. To which the Defendant did Rejoyn That at the same day the Church was Litigious sans ceo que il Refusa apres cel Iour To which the Plaintiff alledged a Tender after and a Refusal and by the Whole Court holden a Departure quod nota So that by these later Books it appears if the same be Law that the Day in most Cases may be made Material upon the Defendant's Plea and Traverse which in some Cases shall be only to the Time before As namely when the Defendant pleading a Feoffment and the like which being intended to continue proveth that he cannot be Guilty after And sometimes the Time after as when in Trespass he pleadeth a Lease determined made in another Kings Reign Or else the Time before and after as appears in Brook in the Title of Traverse But where his Plea enableth him but to one Special Time and Justifieth at another Day within his Special Time as De son Assault demesn or a License for a Time or a Special Maintenance or for Common for a Time or the like There the Defendant is to Traverse the Time before and after for the most part as appears in the said Title of Traverse 5 Ed. 4. 5. 10 Ed. 4. 2. 20 H. 6. 5 23. 31 H. 6. 37. and other Books there But as 2 Ed. 4. 24 25. If the Defendant Justify for a Time in a former King's Reign then he shall Traverse the Time after only because upon that Writ he cannot be Guilty before And 27 Ass. 12. He that Justifieth in Maintenance as one of the Indictors needs not Traverse the Time before or after and He that Justifieth as a Commissioner the Time before Then shall be shewn Where the Place and County are by the Defendant in his Answer to be Traversed For which see partly before in the Title of General Issue That in Trespass Local if the Defendant Justify in another Place in the same County he may chuse so to do and Traverse the Place or plead the General Issue at his Pleasure but if in that Case his Justification be in another County by the better Opinion he shall be forced to the General Issue and so seems 9 H. 6. 62. in this Title of Traverse and the Jury bound to find the same upon Pain of Attaint It appears also in the same Title that although the Matter in the Declaration be Transitory yet if the Defendant's Justification goeth only to another County or other Place there the County or Place is Traversable and he cannot plead the General Issue For which see 27 H. 6. 1. 43 Ed. 3. 29. 7 H. 6. 35. 9 H. 6. 50 71. 21 H. 6. 8 9. and divers other Books in the same Title of Traverse in Brook where it appears That if the Special Justification be in any other County the County is Traversed otherwise the Place if the Justification be in the said County And by many of these Books it appears That if the Defendant doth Justify by reason of a Special Bailment in another County or of the Plaintiff's own Assent he is to Traverse the County but if he Justify for the like Matter in the said County he is to take no Traverse quod nota And so is 21 Ed. 4. 29. by all the Court That if the Defendant in Debt upon a Contract of a Horse alledge the same to be in another County upon Condition and Traverse the former County tamen quaere because in that Action and Detinue the Defendant may Wage his Law And 22 Ed. 4. 39. the Defendant in Trespass for Taking away his Goods did Justifie by Commandment Conditional viz. to Take them only in another County and Traversed the County where the Plaintiff laid his Action and good And so is 34 H. 8. Bro. Traverse 36. 8. In an Action of Disceit for Making of False Cloaths in Bartholomew-Fair contra formam Statut ' the Defendant said That he made them bien duement at D. in another County and Traversed the Making of them in Bartholomew-Fair and good And always in a Replevin the Place of the Taking is Traversable for which see 16 H. 7. 7. where the Plaintiff declared of a Taking in A. in the County of Oxon in a Place called P. and the Defendant said That the Taking was in P. in the Town of O. sans ceo que il prist in A. and holden That the Defendant at his pleasure may either Traverse the Town or the Place quod nota Next shall be shewn Where the Plea is good without Traverse and where the Traverse doth make the Plea ill And therefore first see 28 H. 8. Dyer 29. where the Defendant in Debt upon a Contract shewed That the Contract was Conditional without Traverse and good and the Traverse was on the other part And Ibid. eodem Anno 33. one did declare upon a Lease of 24 Acres and the Defendant pleaded That he Let the same and 4 Acres more and good and ought to take no Traverse because Confest and more Yet 35 H. 6. 38. and 32 H. 6. 3. Bro. Tit. Traverse seem to the contrary and their Pleas to the Count. And 3 Eliz. Dyer 202. in Account by Edward Clere Administrator of Sir Iohn Clere against Barty and the Dutchess of Suffolk his Wife who pleaded that Sir Iohn Clere made Walter Herend his Executor without Traverse and Demurr'd to in Law See Mich. 10 11 Eliz. 280. in a Replevin between Wootton and Sir Anthony Cook in Dyer where Cook did Avow as in his Freehold To which Wootton did Reply That the Land did discend to him and Cook in Coparcenary without Traverse But it is there said That if one Avow that A. was seised in Fee and granted to him a Rent-Charge and the Plaintiff Replies That A. was seised in Tail at the time of the Grant and died he ought to Traverse Absque hoc quod fuit seisitus in feodo And see the Case of Vernon Mich. 21 22 Eliz. Dyer 366. Rul'd according to a like Precedent 12 H. 8. Rotulo 639. That

to be known How one shall have Divers Pleas when one of them shall go to the Whole And therefore first see 1 Ed. 4. 29. In an Assize of the Office of Clerk of the Crown brought by two Persons where the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office because the last went to the Whole it was holden to be double And yet 37 H. 6. 30. the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good And eodem Anno 38. the Defendant did Justify to the Third Part for one Cause and to the other Two Parts by another Cause And Mich. 13 14 Eliz. Dyer 305. the Defendant in Trespass of Trees may plead as to the Cutting Not Guilty and as to the Taking he may plead a Gift of them And so 33 H. 6. 12. and 48 Ed. 3. 18. in Debt against an Executor the Defendant did Plead to part an Acquittance and to the rest plene Administravit And so is 28 Ed. 3. 91. See more hereof in this especial Title Deux Pleas un va al Tout in Brook where this Difference is holden That if one Person pleads divers Pleas and the one of them goeth to the whole Writ or Action that only shall be received And where several Pleas are pleaded by divers Defendants in any Personal Action and one of them goeth to the Whole that Plea shall be first Tried and the rest of the Defendants shall have Advantage thereof Where also a difference is taken between this kind of Pleading and a Double Plea and touching this any Person may shew the same to the Court as Amicus Curiae and the other none but the Party And see the Book of 9 H. 6. in that Title 4. which takes this difference That if there be two Defendants in a Real Action and they plead severally to the Action and One of their Pleas goeth to the whole as Bastardy and the like the other shall have no Advantage But otherwise if one of them doth Plead to the Writ the same shall be first Tried and the other shall have advantage of it The like in Personal Actions to the Action But if there be but one Defendant either in Real or Personal Actions and he pleads several Pleas to the Writ or Action and one of them goeth to the Whole that which goth to the whole shall only be taken And accordingly seems 37 H. 6. 37. Then shall be shewed Where the Plea is ill without shewing of the Deed or Record First It appears 20 H. 7. 6. That he which is a Stranger to the Patent and Deed and claimeth nothing by the same or by him that hath Right shall not shew the same And some question 1 H. 7. 24. if the Termor of a Common shall And 29 Ass. 21. seems That he that deriveth but a Particular Estate shall not But 14 H. 4. he that deriveth any Interest be it Particular or otherwise by Commandment shall shew And 21 Ed. 4. 50. a Servant that Justifieth a Distress for his Master shall shew the Deed but otherwise of an Incumbent that pleadeth a Grant of Prochein Avoidance to his Patron because he claimeth only the Incumbency and not the Patronage And 9 H. 7. 13. one brought a Quare Impedit and Counted that A. was seised and did Grant proximam Advocationem to B. and after did grant to C. who granted the same to him and the Question was Whether he should shew the Deed made to B. And 42 Ass. 2. one shall plead a Will without shewing because it appertains not to him And 22 Ass. 52. the Under-Escheator shall shew the Patent But 28 H. 8. Dyer 29. not And 39 Ed. 3. 37. the Grantee of Prochein Avoidance was not enforced to shew a Composition which declared to be his Grantor's Title because he had not his whole Estate But 22 H. 6. 42. the Servant shall but otherwise of the Servant of a Collector that Distrained for a Tax because an Act of Parliament the Principal Matter of his Title And 7 H. 6. 1. he that prays to be Received by reason of a Remainder or a Woman that demandeth Dower of Rent shall not shew the Deed because it doth not belong to them And upon this Reason see the Books 38 Ed. 3. 37. 14 H. 4. 30. 11 H. 4. 83. and divers other Books That where the Deed doth appertain to him there he shall not be forced to shew the same And so 35 H. 6. 31 32 where his Authority is determined and the Patent doth appertain to another as to another Officer and the like And this Learning is approved of in Plowden in the Case of Second Deliverance brought by Throgmorton against Tracy where one pleaded a Lease by a Corporation to begin after another was determined where holden That the first Lease need not be shewed for Three Reasons First Because it did not belong to him Secondly Because that Estate was determined And Thirdly Because the Defendant's Estate was Executed And further touching the Learning in this Point see Dyer first 28 H. 8. fol. 29. left doubtful whether a Particular Grantee shall shew the Main Grant And Ibid. 30 H. 8. 54. rather that he shall and therefore learn what the Law in that Case is And some Books take a difference where one deriveth himself an Interest to the Whole in Part of the thing there he shall shew but if but to part of the Estate then not Next Where the Estate is Executed there need not the Deed for the most part to be shewed And first 15 Ed. 4. 16. If one Convey to a Possession Executed in himself by the Grantee of a Reversion and Attornment there he need not shew the Deed. Otherwise to a Rent or to Land in Remainder by Grant of a Corporation But the Issue in Tail of a Rent Executed shall have a Formedon in the Discender And by 11 H. 4. 39. and 14 H. 4. 31. if a Remainder be once Executed the Issue in Tail may have a Formedon as of a Gift in Possession But in a Formedon in Remainder the Deed must be shewed And so is 18 H. 8. 4. and 34 Ed. 3. Yet 10 Eliz. Dyer 277. in a Formedon in Remainder upon a Gift to Uses in Tail holden that he need not shew the Deed for two Causes One because the Estate may be made without Deed and the other because it appertained to the Feoffor And therefore 1 2 Mar. Dyer 174. a Stranger to a Deed shall plead a Grant without saying that it was by Deed. And by Dyer 28 H. 8. 29. Tenants in Common making Partition to Present by Turns when it is once Executed the Deed thereof need not after to be shewed quod nota The like Law as it seems of Executors and Administrators touching the shewing of the Will where the difference is that being Defendant or bringing

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

4 5. Mariae 162. How the Plaintiff Recovering 40 l. against one that hath Land in divers Counties may dividing his Debt or intirely have several Elegits But by Hobart 58. There may not be two several sorts of Executions out an once but one after another Yet Idem fo 2. If one Elegit be sued out and entred of Record tho' the Plaintiff get nothing by it yet he shall never have other Execution till something be found and no man will Record the Execution till he find somewhat Vide Yelvertons Reports fo 52. Where said That if a man be taken upon a wrong Writ of Execution tho' it be returned Executed yet because he in Truth never was in Execution a new Capias may issue out against him And Idem 180. Where Goods are taken in Execution in another County upon a Testatum returned That the Defendant Nulla habet Bona c. in London where the Action was Tried but in the County of B. where the Goods were taken which is false the Execution shall be avoided and the Party restored to his Goods again But by Moor Case 428. though the Court grant an Erroneous Execution yet that will not excuse the Sheriff where there is an Escape Yet by Hetley Rep. 157. Where the Sheriff upon a Fieri Facias takes a part of the Defendants Goods in Execution and delivers them to the Plaintiff and they be taken from him he shall have Execution de novo And by Popham in his Reports fo 206. one may be discharged out of Execution by word only as where one is in Execution at my Suit and I bid the Sheriff let him go this is a good discharge Vide Dyer 306. Where said That in all Cases where the Law doth once adjudge a Defendant to be in Execution at the Suit of the Plaintiff if the Sheriff suffer him to escape he shall be chargeable to the Plaintiff for the same in an Action of Debt or upon the Case Yet by Popham 41. if he be taken in a Fresh Pursuit tho' in another County by that he shall be in Execution again And by Co. lib. 3. 71. where the Sheriffs of London at the going out of their Office by Indenture did deliver B. in Execution to the New Sheriffs and he being in Execution at the Suit of C. and D. did make his Escape D. only is named C. sues the Escape and had Judgment and held that B. was not in Execution of the Old or new Sheriffs and that the Old are to give notice to the New Sheriffs of them in Execution tho' they be upon Record and the Prisoners are in Custody of the Old Sheriffs tho' out of Office till delivered to New and if the Old Sheriffs die the New must take notice of them at their Peril and the Prisoners are in Custody of the Law between the death of the Old and the coming in of the New Sheriffs But see Co. lib. 4. Blomfields Case where two were bound jointly and severally by Bond both sued and condemned and taken in Execution the one escaped the other brought an Audita Querela and held not to lie Vide Rolls Abridgment 904. Where said That if A. be taken in Execution on a Capias ad Satisfaciendum at the Suit of B. and escape from the Sheriff and no return is made of the Writ nor is the Writ filed or any Record made of the Award of the Capias B. may have a Scire Facias against A. and thereupon what Execution he will And see More Case 1177. and Hob. 55 56. Foster and Iacksons Case If the Defendant die in Execution this is a discharge of the Execution for ever as an Escape is Yet Co. lib. 5. 86. contra But by Hob. 59. If two be bound jointly and severally to me and I sue them jointly I may have a Capias against them both and the Death or Escape of the one shall not discharge the other But I may not have a Capias against one and another kind of Execution against the other when I sue them jointly But when I sue them severally I may sever them in their several kinds of Execution but yet so as if a very satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita 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 his Heir or Executor if he dies here none may be had against either of the others For where the Law gives three or four kinds of Execution by way of Choice and the Plaintiff chooseth a Capias ad satisfaciendum and the Defendants Body is taken thereupon it cannot be for part as in a Fieri Facias Vide Anderson Part 1. Case 166. Where the Plaintiff sued a Capias ad Satisfaciendum against one of the County of C. that was brought into Court in Custody of the Sheriff where the Plaintiff was present and being asked by the Court whether he would pray that the Prisoner might be committed to the Fleet answered that he would not And this he did because the Prisoner was poor and not able to pay and had escaped out of the Sheriffs Custody against whom he said he intended to bring his Action and thereupon the Court discharged him of his Execution not committing him to the Fleet nor leaving him in the Custody of the Sheriff because the Sheriff did not pray it Then as to the Force of an Elegit See Westm. 2. cap. 18. Dyer 206 335. Co. lib. 7. 49. lib. 4. 67 68. Fitzh Nat. Brev. 48. Plowd 224. 178. 2 H. 4. 14. Bulstrode part 2. 98 99. Lane 20. That upon an Elegit the Sheriff is to make Execution of a moiety or one half of all the Houses Lands Meadows Pastures Rents Reversions and Hereditaments whereof and wherein the Defendant at the time of the Judgment had or after had any sole Estate or Interest in Fee Tail or for Life into whose hands soever the same do afterwards come So also if the Husband and Wife do hold Lands for their two Lives they are Extendable upon this Writ But a Right only to Land an Annuity Copyhold-land the Land the Husband holds in Right of his Wife in Fee or for Life is not Extendable after her Death nor liable to Execution And all the Goods and Chattels except only the Beasts of the Plow which the Defendant hath or at time of Execution had are liable to Execution on this Writ as on a Fieri Facias But no Goods and Chattels really and Bona Fide made away before Execution are liable to be taken upon this Writ Vide Hob. 57. An Elegit may be sued of Lands in Ancient Demesn And ibidem it may be sued after a Capias or Fieri Facias both and after a Capias returned non est inventus But

two become Bail for him and the Plaintiff Recover and the Process continued till Judgment against the Bail Execution may be against either of the Bail without naming the other And Idem 896. he may have Execution against one of the Bail at one time and after have Execution against another of the Bail But Idem 897. if a man have once Execution against the Bail he may never after have Execution against the Principal Or if once against the Principal never after against the Bail And Idem ibid. if the King Recover in a Scire facias on a Recognizance acknowledged in Chancery he can have no Execution against the Body But a Capias lies on a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in an Action in the Kings-Bench But no Capias will lye upon a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in the Common-Pleas but there an Action of Debt will lye upon the Recognizance So if the Bail in an Inferiour Court enter into a Recognizance That if the Principal pay not the Damages and Costs recovered or render himself to Prison Tunc Concedit the Damages and Costs de terris catallis suis levari ad opus Querentis no Capias will lye upon this Recognizance So neither for the Plaintiff in Detinue to recover Damages against the Garnishee because as by 7 H. 6. 45. before-cited not party to the Writ So if an Inferiour Court be held by Charter and the Bail there Enter into Recognizance no Capias will lye for this But by Hobart 284. Abridged by Rolls 898. If the Principal after Judgment render his Body in Court in Exonerationem Manucaptorum and the Plaintiff doth not take him in Execution and this is Entred of Record as it must be the Plaintiff may after this Take him in Execution by Capias ad satisfaciendum And Idem 899. if A. Recover against B. in the Kings-Bench Damages and Costs and upon this hath Judgment against the Bail after Scire facias and after B. and the Bail joyn in a Writ of Error upon the Statute in the Exchequer-Chamber and while this is Transacted the Year and Day is Elapsed in this Case the Court of Kings-Bench may grant Execution For it is a void Writ of Error and as if none had been brought And Idem 891. if a Recognizance of Bail be taken by a Judge of the Kings-Bench at Serjeants-Inn in London upon an Original brought in London and it be Certified and Inrolled in the Kings-Bench it seems it may be extended in London or Middlesex In the next place we shall Consider Where Execution may be had by Scire facias and where it may be had without And first as to the Writ of Scire facias ought to be known That Execution must be had within a Year of the Iudgment otherwise it cannot be taken out till there be first sued out a Scire facias which is a Writ Iudicial going out of a Record and lies where one hath recovered Debt or Damages in the Kings Court and he sueth not to have Execution within the Year and Day he must have his Writ to warn the Party and if the Party comes not or if he comes and says nothing in discharge or stay of the Execution then the Plaintiff shall have a Writ of Fieri facias to Command the Sheriff to levy the Debt or Damages of the Defendant's Goods Or where the Process is a Capias he may have another Writ of Execution called a Capias ad satisfaciendum to Take and Imprison the Body of the Defendant till he satisfie the Party Plaintiff And so on a Iudgment to Recover Lands if the Plaintiff do not sue out Execution within the Year after the Iudgmen● he may not have Execution till he have 〈◊〉 Summoned the Defendant to shew C●use why Execution should not be had against him And if the Defendant cannot be found upon Summons or cannot or doth not shew Cause why Execution should not be made then a second Iudgment is awarded That Execution be done upon the first Iudgment And here by Co. 1. Inst. 290. and Dyer 148. this Writ of Scire facias being Entred the Tenant or Defendant may thereunto plead any Matter accruing after the Judgment as Release Outlawry c. to prevent the Execution But it appears by Old Natura Brev. 163. Dyer 270 271. Hobart 56 57. Cro. 1 Part 185. Bulstr. 2 Part 230. Lane 16. Finch's Ley 477. That if the Plaintiff sue out Execution within the Year he may Continue the Iudgment after the Year without Scire facias But see Fitzherbert's Natura Brevium Tit. Scire fac ' and Brook's Abridgment 134. by which as also by divers other Books it appears That Execution may be had within the Year against a Party to the Judgment without a Scire facias but otherwise if the Record be removed into another Court And with these Authorities doth agree 14 15 H. 7. And it appears also there That the Year shall not be accounted from the Time of the Recognizance but only from the Time of the Payment And 23 H. 8. ibid. 119. if one Recover in Annuity a Fieri facias shall go out within the Year and after Scire fac ' infinite because Executory And with this agrees Bro. 28. where said That if one Recover in a Writ of Annuity he may have a Fieri facias of the Arrerages incurred within the Year and a Scire facias after as oft as the Annuity is behind and no Writ of Annuity after And in every Scire fac ' in which he Recovers after the first Judgment he shall have Execution of the Arrerages within the Year by Fieri facias And 11 H. 4. 34. Bro. 119. after Judgment had in Annuity the Plaintiff after a Scire fac ' may have a Fieri fac ' to levy it as it becomes due And 21 Ed. 4. 1 2. if Rent be granted by Fine the Party may have a Scire fac ' in Infinitum as before in Annuity or as in Covenant upon Covenant as one Recovering in Trespass may bring a New Action And 22 H. 6. 15. Bro. 54. one Condemned in the Common-Pleas and in Execution Attainted after in an Assize Remanded also thither and could not be Committed there for that Execution also without Process And see 39 Ed. 3. 15. Bro. 122. One had a Scire fac ' to Execute a Judgment in a Praecipe quod reddat and Execution thereupon by Default and after surmized to the Court That the Person against whom he had his Writ of Scire fac ' and Iudgment was not Tenant but one B. against whom he had another Scire fac ' quod nota And Note by the Book of 22 H. 6. 11 12. That at the Common Law until the Statute of Westm. 2. De hiis quae c. If one had Recovered in Debt and taken out no Scire fac ' within the year

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