case briton against coal the cattle of a stranger levant et couchant on land  extend on a outlawry may be take by to lift up torch for they be the issue S c  Mod S c salk S c comb S c Carth S c skin S c holt S c comy S c ld ray trespass  for take fortythree sheep and two lamb the twenty of may in the seven year of  William the three the defendant justify that the twelve of February in the six  year of William the three before the trespass allege the king writ of to lift  up facias issue out of the exchequer to the sheriff of Gloucester recite that  the late sheriff of Gloucester by virtue of a capias utlagatum issue out of  the common plea against Francis Cresset who be outlaw in somersetshire on the  twelve day of June in the five year of William and mary at the suit of Thomas  coal modus to ward off and mary his wife in a plea of debt have return that  the say f Cresset be then seize ill fee of the land ill question and that he  seize the land into the king hand which be find to be of the annual value of  fiftyfive pound and therefore the king command the sheriff that all and  singular the rend issue and profit of the premise arise thereon from the take  the same into the king hand to the Feast of the annunciation then next ensue  shall be levy accord to the annual value a cro b     salk c cro modern report  er p thereof so that the money thereof arise shall he have before the baron of  the exchequer at such a time by virtue of which writ the sheriff make a  precept direct to all his bailiff and particular to Anth Powell I oh and I  Powell to levy the money aforesaid accord to the tenor of the say writ out of  the issue of the say land and because the say fortythree sheep and two lamb be  after the say inquisition and before the Feast of the annunciation levant et  couchant upon part of the premise the defendant request the say a Powell and I  Powell to take and drive away the say sheep and lamb accord to the tenor of  the say writ super quo idem Josephus p and I Powell take and drive away the  say sheep and lamb on which plea the plaintiff demurrer and the modern report  defendant join in demurrer and holt chief justice deliver the opinion of the  court the case in short be Cresset be outlaw in a personal action and on a  special capias outlaw and inquisition thereon such land be find to be his and  return to be of the annual value of fiftyfive pound the plaintiff cattle be  find upon the same land levant et couchant they be take by virtue of a to lift  up facias and the question be whether this take be justifiable and we be of  opinion it be first because there be a direct command to the sheriff to levy  this duty accord to the annual value out of the issue of the land and cattle  levant et couchant on the land be issue the statute of will c say that in all  respects bon nobilia on the land be issue and in all respects nobilia  comprehend cattle Inst second the land be debtor to the king which make the  cattle liable and if the king have not this remedy his pernancy of the profit  will signify nothing for it will be in the power of the party outlaw to defeat  the king he will let out the ground or take in cattle on contract to feed and  so run away with the whole profit and there be no remedy for the king to get  the money on the agreement now if the person outlaw during his outlawry make a  feoff in fee shall not the cattle of the feoff be issue of the land without  question they shall for the feoff shall take the land in the same plight as  the outlaw person have it and the feoff shall not determine the king right  notwithstanding the book of Henry which say the king interest shall be  determine by the alienation of the outlaw person which book be to be  understand with this difference if a man be outlaw and before inquisition take  be alien his estate and then inquisition be take the alienation of the real  estate before inquisition take prevent the king from have the pernancy of the  profit but if he make alienation after the inquisition take there the king  pernancy of profit continue and this be the constant course of the exchequer  so be the case of the attorneygeneral v freeman a and Windsor v Savill b the  reason of which difference be that until the inquisition be find the king have  nothing for the inquisition that be take on a special capias utlagatum be a  office that entitle the king so that if the alienation be before office find  then it be before the king have a title but after a title be once vest in the  king that shall not be divest by any act of the party issue and profit can  modern report mean the good of a person outlaw for be can have good if after  outlawry he purchase they they be the king without office but as to the real  estate or a chattel real the king can be entitle without office but for  chattel personal be may since issue may be levy on feoff or alienee that come  in after inquisition why not in this case nay perhaps the plaintiff here may  be alienee it be not necessary the king officer shall take notice of his title  he ought to make it appear suppose this plaintiff have a right to the land  precedent to the outlawry as for instance a lease for year from Cresset yet if  this be not find by the inquisition or afterward allow in the exchequer he can  have a action of trespass for if it be not find be must go into the exchequer  by way of to point out de law and plead it there for be shall not falsify the  king title in a action it may be the plaintiff have a title but then he ought  to have show that he have plead it in the exchequer and have it allow there  now if the feoff cattle be forfeitable why not the cattle of one who contract  with the outlaw person and much more the cattle of a stranger or mere  trespasser for a wrongdoer shall not have more advantage than be that have  right the case of Stafford v Bateman a have be quote where it be a Hardres b  raym a cro modern report er p hold that on a become facias for the king debt  no good can be sell but the debtor but that case be quite different from this  for that be a become facias de good et catallis of the debtor on which the  sheriff have no authority to take a stranger good but this be a to lift up  facas de exit terr to explain which it be to be consider there be several  execution for the king first a capias to take the body only second a become  facias three a to stretch out facias which be call the long writ and fourthly  this to lift up facas de exit terr by none of the three first can the  plaintiff cattle be take now as to issue when they be forfeit the whole  inheritance be charge with they if tenant for life be return on a jury and  make default whereby he forfeit issue and die the arrear of the issue shall be  levy on the remainder the land be debtor and become debtor for default of  tenant for life only for which this reason be give that it be a public service  charge on the feesimple and therefore the land must be charge with the issue  by whosoever default be now indeed how this be in case of a outlawry I doubt  for if tenant for life be outlaw and he be find to be but tenant for life  modern report by inquisition and there be a arrear of issue I do not know  whether it can be levy on the reversion because it arise from the tenant for  life own particular neglect and default but however it make no alteration to  those that claim under tenant for life in sir Henry Clare case b two tenant in  common one be indebt to the king and on process the beast of the other be take  and it be hold they can not because the one tenant in common may put his beast  on all the land and so be roll Abr but say the book it will be otherwise for  cattle that come in by wrong on the land of the king debtor and be there  levant et couchant it be say in roll Abr that the king may distrain the beast  of a stranger levant et couchant on a to lift up facias but be can sell they  which must be a mistake in the printer or in those who have the management of  roll manuscript for the end of a to lift up facias be to have a sale and  therefore to allow they may be take on a to lift up facias and not sell be a  contradiction No to lift up facias issue but as to land and where the land be  debtor the cattle of a stranger that be levant et couchant be as liable as the  cattle of the owner and so it be in the case of a rentservice nay if one seize  in fee grant a rend charge though this be a charge on the land by his own act  yet if his neighbour cattle escape thereinto and happen to be there levant et  couchant they be distrainable because the land be debtor this case be adjudge  in point in the exchequer Hodgson v Toobigle a which be trespass as this be  and hale chief baron say that by virtue of a to lift up facias de exit terr of  a person outlaw the cattle of a stranger may be take and so be the constant  practice of the exchequer whereupon the party see the opinion of the court  relinquish his suit so that no judgement be enter and there be another case in  point in the exchequer Wrightson v Rayner b so that we think the defendant  plea good in substance and that the cattle be liable to be take and sell by  virtue of the to lift up facias there have be several exception take to the  plead first exception that the defendant not be a officer ought to have plead  the record of the outlawry which seem to be a good exception but something  complicate which I will explain if there be no judgement and a capias ad to  give satisfaction or other execution be take out the sheriff and all other  person act under modern report he in the execution be justifiable though there  be no judgement but if a stranger of his own head interpose who be not concern  and he set on the sheriff to do execution he can justify this or suppose it be  the plaintiff who sue out the writ he must in his justification plead the  judgement for if there be no judgement he be a trespasser turner v Felgate c  now if the defendant have justify that he do it by command or in aid of the  officer then he have be in the same case with the officer himself but if he  will come in without any authority though he be a party concern in the suit  yet he ought to show some foundation so in outlawry as well as in the other  case he ought to show there be some judgement to warrant the capias ad to give  satisfaction or become facias in trespass the defendant justify distrain the  cattle damage pheasant as bailiff to a in which case though the cattle b lane  a easter term car b Michaelmas term car roll c ray modern report er p be  damage pheasant yet if a do not command the defendant he be a trespasser and  in this case the command be traversable leo roll Rep so in replevin the  defendant make conusance as bailiff to a that he take the cattle damage  pheasant by the command of a the command be traversable because damage be only  concern full v Trimwell d but in replevin of distress for rend the command be  not traversable because it be to try a right bullers case e by all which it  appear that though the king writ shall justify a officer yet it shall not  other except they justify under a officer or there be a judgement to warrant  the writ which must be show by he in his justification and therefore he shall  have show the outlawry to be in be prout to stand open per record in c b for  which omission the plea be ill another exception that have be take to the plea  be that it be not say that the writ be deliver to the sheriff or the warrant  to the bailiff now this be no good exception for though the course be to say  so yet this be a plea in bar wherein certainty to a common intent be  sufficient and if they take any of the good before the writ come to the  sheriff or the warrant to the bailiff it must be show in the replication green  v Jones a the three exception to the plea be that the defendant do request  Anthony and Joseph to do execution and that John and Joseph do it which be not  pursuant to the request and though accord to Lasbrooks case b execution may be  do by one though the warrant be to four yet here as the defendant have plead  the take by John be as much a trespass as the take by Joseph so that as modern  report to the merit of the cause we be all of opinion for the defendant but  for the insufficiency in plead judgement must be for the plaintiff