briton Vers coal S C comb Carth Mod plead post vol Mod a to lift up facias  issue only where the party land be debtor S C salk Mod skin Com holt any  cattle levant and couchant thereon be issue of such land S C salk Mod Skinn  Com holt and may be seize and sell under such writ S C salk Mod Skinn Com holt  upon a to lift up facias against the issue of a outlaw land the sheriff his  officer or any one act in his or their aid may justify under the writ alone  S C salk vide lev will Bl post Bl burr No other person can S C salk vide lev  will in a justification under a writ and warrant it be not necessary to show  the delivery of the writ to the sheriff r send for sand or of the warrant to  the bailiff under a warrant to a and b b and c can act S C cit post and if a  plea set out a warrant to a and b and that by virtue thereof through mistake b  and c do the act direct by the warrant the court will not after a demurrer and  argument permit a amendment trespass the plaintiff declare that the defendant  the twenty of may will Lord Raymond er p at hanap in Gloucestershire take and  chase fortythree sheep and two lamb of the plaintiff c the defendant plead  that fever will a to lift up facias issue out of the exchequer Lord Raymond  direct to the sheriff of Gloucestershire recite that forasmuch as the late  sheriff of Gloucestershire by virtue of a writ of capias utlagatum issue out  of the common plea against Francis Cresset be outlaw at the suit of the  defendant in debt in somersetshire June will mark in the same year that  December take a inquisition which find that the say Cresset be seize in fee of  land to the value of per annum and seize they into the king hand prout per the  transcript of the writ and inquisition return into the office of the  remembrancer in the exchequer appear and command the sheriff that all rend  issue c of the premise from the time of the seizure into the king hand until  the that of march follow shall be by he levy accord to the value return by the  inquisition c so that he shall have the money before the baron of the  exchequer to be pay to the defendant c by virtue of which writ the sheriff  make a precept to Antony Powell John oak and Joseph Powell command they to  levy c and because the fortytwo sheep and two lamb be levant and couchant upon  the premise c the defendant request Anthony Powell and Joseph Powell to take  and chase they c upon which John Powell and Joseph Powell take and chase they  which be the same trespass c the plaintiff demurrer and this case be several  time argue at bar by Mr Northey and sir Bartholomew shower for the plaintiff  and Mr sergeant wright and Mr keen for the defendant and now holt chief  justice pronounce the opinion of the court and the question upon the plea in  point of law be if a man be outlaw and upon a special capias utlagatum a  inquisition be take and the man land seize into the king hand and the yearly  value return into the exchequer and then a writ of to lift up facias issue  command the sheriff to levy the yearly value out of the issue and profit of  the land and by virtue of that writ the sheriff seize the cattle of a stranger  be levant and couchant upon the premise whether the take of this cattle of a  stranger be in such case justifiable and the whole court be of opinion that it  be because it be within the direct command of the writ to levy that which be  due accord to the yearly value out of the issue and profit of the land for  cattle levant and couchant be part of the issue of the land Westminster Edward  c be a explanatory Act and say that in all respects nobilia shall he issue  Inst and Flet lib cap hold cattle to be comprise under the word nobilia and  that be not restrain to the cattle of the owner of the land but be extensive  to the cattle of all man because the land be debtor to the king and that make  the cattle upon it liable to this execution for if the king shall not have  this remedy the pernancy of the profit of the land upon outlawry will be very  small and Lord Raymond it may he will be worth nothing for then it will be in  the power of the man outlaw defraud the king of the whole by let of the land  to pasturage in which case if he can not seize the cattle levant and couchant  upon the land he can not have any remedy against he who shall hire the land  for agistment nor can be have the money Payable by such contract because it  will be a agreement in gross if a be outlaw make a feoff during the outlawry  the feoff put in his cattle doubtless these be issue because the feoff take  the land in the same plight as the feoff have it but the feoff notwithstanding  be good Henry a but the interest of the king to take the profit continue  notwithstanding the feoff though the opinion in Henry a be contrary if issue  be return upon a juror they shall be levy upon the feoff if a be outlaw and  alien his land before inquisition take the alienation prevent the king from  take the profit otherwise if the alienation be after the inquisition find and  this be the constant course of the exchequer for the king have nothing before  inquisition find upon outlawry as to the real chattel but as to the personal  chattel they be in the king without inquisition find if then the cattle of a  feoff c may be take for issue why not the cattle of the plaintiff who perhaps  be the feoff of Cresset nothing to the contrary thereof appear here and this  plea be in bar shall be good to a common intent and if the plaintiff have any  special title he ought to show it beside suppose that the plaintiff have a  lease from Cresset precedent to the outlawry if it be not find in the  inquisition the plaintiff can reply it in trespass but must Lord Raymond er p  have recourse to the exchequer and plead it by way of to point out de law but  if the plaintiff have no right it will be unreasonable that he shall escape  when he who have right can not objection cro Elizabeth pl answer the case  there be of a become facias de good et catallis and not of a to lift up facias  de exit terrae and therefore he can not in such case take the cattle of a  stranger though the book say that one may upon such a writ seize the cattle of  a stranger but not sell they which seem very strange doctrine the writ be  become facias there be several sort of execution for the king capias ad to  give satisfaction which take the body of the debtor become facias to take his  good a a writ which they call long one comprise a capias ad to give  satisfaction become facias and to stretch out facias but by virtue of that one  can seize the cattle of a stranger because that writ do not give Lord Raymond  any authority to the sheriff to seize they a to lift up facias where the land  be the debtor in case of forfeiture of issue or profit to be take upon  outlawry and there the cattle of a stranger may be take the forfeiture of  issue charge the whole inheritance therefore if tenant for life forfeit issue  and die they shall be levy upon the reversioner because serve on jury be a  charge upon land man for the service of the public the whole fee be charge  with it so if a officer for life neglect his office by which he forfeit issue  c that charge the reversioner in fee if a tenant for life be outlaw and  inquisition find and the land seize into the king hand and a die it be a doubt  whether the arrear of issue shall be levy upon the reversioner because the  charge arise upon the particular default of the tenant for life and not from  any charge upon the inheritance as in the case of issue but if that be the  present case the plaintiff ought to show it for tenant for life shall not be  intend dead unless it be aver issue lose by the lord of the manor levy upon  the copyholder c as to the case in lane roll Abr pl which be obscure report  videlicet that the cattle of one tenant in common shall not be take upon a to  lift up facias upon the outlawry of the other if the estate of the other  tenant in common be particular find it be good law for if a to lift up facias  be to levy the profit of a moiety the cattle of the other tenant in common  there levant and couchant can be take for the tenant in common which be outlaw  can only forfeit the pernancy of the profit of his moiety but that matter of  the tenancy in common must be intend to be find upon the inquisition otherwise  it be not law for if a have land in which b have common of pasture for sheep a  be outlaw and the title of b be not find upon the inquisition his cattle may  be take upon a to lift up facias until he have plead his title in the  exchequer and have it allow contra if his title have be find upon the  inquisition in roll Abr there be some case which seem to be contrary but they  be not Intelligible as roll Abr pl Slqffirod v Bateman the game case with cro  Elizabeth which say that upon a to lift up facias the sheriff may seize but  not sell which be a contradiction for every to lift up facias require a sale  as well as a seizure therefore the book be false print and it ought to be a  become facias as cro Elizabeth S now no to lift up issue for a debt against  the person but where the land be debtor in all case where the land be the  debtor the cattle of a stranger be as well liable as those of the owner of the  land as cattle of a stranger levant and couchant be distrainable for arrear of  a rend service so if a neighbour cattle escape into land out of which a  rentcharge issue and be levant and couchant there be good authority Lord  Raymond though they be not levant and couchant they be distrainable for the  rentcharge and the owner shall not have they again unless he pay the arrear  which be as bare a case as the present case for the rentcharge be against  common right and commence by the grant of the party then it be very reasonable  that the king shall have as good remedy as a private man and for a authority  in point holt chief justice cite a case in the exchequer pasch car between  Hodson and Trodgin or Doobey where hale chief baron take the same difference  that be take here videlicet that the cattle of a stranger may be take upon a  to lift up facias contra upon a become facias and hale then say that the  constant practice of the exchequer be so and the plaintiff there see the  opinion of the court to be against he for the case there be the same with the  principal case here desist from his suit and so no Lord Raymond er p judgement  be give and in the case in roll Abr pl it be say that it be adjudge contrary  at read because the cattle be not aver to be levant and couchant and Rokeby  justice cite a case in corroboration of the say opinion between Wrightson and  Beyner mich car exchequer rot which be in point and the court there of the  same opinion as in this case but no judgement be enter upon the roll and for  these reason the whole court hold the plea good in substance but then for  other exception they hold the plea ill and the first exception be that the  defendant not be a officer shall have plead the record of the outlawry  especial it be at his suit and holt chief justice pronounce the opinion of the  court that this be a good exception for if a writ of capias ad to give  satisfaction c issue to the sheriff against I S and there be no judgement to  warrant it the sheriff and the officer who act under his authority be  excusable if they execute it but if a stranger encourage the sheriff c to  execute it he can justify it so if the plaintiff in the action persuade and  encourage the sheriff c to execute a judicial writ if trespass be bring  against he if he do not plead the judgement he shall be a trespasser trespass  lie against the party after judgement be set aside now in this case the  defendant be either a party concern or not if he be concern as act under the  authority of the sheriff he shall be in the same plight but then he ought to  show it if he be concern as plaintiff in the former action he ought to show  the record of the outlawry to warrant this execution for if the outlawry be  reverse and afterward a to lift up facias be sue he who sue it shall be a  trespasser but here the defendant do not appear to be a party to the former  action except by the recital of the to lift up facias which be not sufficient  but it ought to have be aver then if he be a mere Lord Raymond stranger he  ought not to have request the bailiff to have take the cattle though he be in  the execution of the king writ but he be a trespasser as if trespass be bring  for cattle take c and the defendant justify as bailiff to I S and by his  command that he distrain they damage pheasant if the owner do not command he  he shall be a trespasser the same law for a distress for rend arrear for the  command be traversable in conusance for rend in replevin by bailiff the  command be not traversable because that go to the right but in conusance for  damage pheasant the command be traversable in replevin the second exception be  that it be not say that the writ be deliver to the sheriff or the warrant to  the bailiff say non allocatur for per curian though it be the practice to sa  so yet it be a plea in bar it shall be good to a common intent and if the  cattle be take before the delivery of the writ the plaintiff shall have show  it in his replication for no special matter shall be suppose to intervene to  make a man a trespasser unless it be show a three exception be that the  warrant and request be make to Antony Powell and Joseph Powell upon which John  Powell and Joseph Powell take they and per curian it be ill for that reason  because the trespass be not confess and yet justify for it be no take pursuant  to the command and request for though accord to Lashbrooks case in hut if a  warrant be make to three without joint and several authority one of they may  execute it yet a stranger who be not name in it can execute it fourthly the  trespass isfor take of fortythree sheep and the justification be but for the  take of fortytwo and nothing say as to the fortythird but some of the counsel  say that the record as to that be fortythree but for these reason and defect  in the plead judgement be enter for the plaintiff note Mr keen move to have  liberty to amend John and make it Antony but because it be upon demurrer and  part of the fact videlicet who take the cattle the court hold that it be  matter of substance and therefore not amendable a vide pale yellow exchequer  to