Bridgman oh Harwood v Philip this case be cite in keate v Clopton report in  the present volume a hill car rot Writ of elegit be sue out upon a judgement  obtain by to know facias against the conusee of a recognizance and the conusee  die before execution yet the execution be good as the statute create the  elegit have not make any provision concern the abatement of it by the death of  the defendant it ought to be construe as Bridgman oh er p other process of  execution which do not abate by death where the defendant have no day in court  the clause in the writ of elegit command the extent to be upon warning of the  defendant and in his presence be but a recommendation to the sheriff not a  precept to make the writ void if disobey if the execution have not be well  make by reason of the decease of the defendant it be absolute void not  voidable only special verdict hark ms No fol eject strong by John Harwood  against John Phillips of acre of meadow acre of pasture and of wood in Norton  Bagot upon the demise of James Silverlock upon a special verdict the jury find  that Thomas Coningsby of Norton Bagot and Thomas Coningsby of north Mimms may  car do acknowledge a recognizance in chancery of l to the say James Silverlock  Payable at the Feast of the ascension that term car be sue out a to know  facias direct to the sheriff of Middlesex and a nothing return and a alias to  know facias and a nothing thereupon return and thereupon the conusee demand  judgement and execution against the conusors of the say l to be render unto he  by virtue of the say recognizance and the defendant appear not but make  default and then default be record by the court and thereupon judgement be  give that the plaintiff recover his debt against the defendant by default and  that be have execution against they and that the plaintiff elegit performance  de speech debt is owed levand per breve speech domini king de c that thereupon  the plaintiff Nov sue out a writ of elegit out of the chancery upon the  judgement aforesaid against Thomas Coningusby of Bridgman oh Morton Bagot  whereby the protector command the sheriff quod in all respects catalla pillage  t c in balliua svan ad valentian predict l per the pure milk of reason price  inter praeter large Italian snake et afros de caruca svan in present time  speech thomae who indeed Thomas soret per Self viscount forewarning si feel or  perceive beforehand ibidem volvisse a saying beforehand jacobo or his  certainly attornato to weigh well to make et si catalla pillage non to put  under in valor predict l tunc catalla pillage such somewhat bruised valor per  the pure milk of reason price Dec non center point the earth Self thomae  Coningsby de Morton in balliua svan per extent a saying beforehand jacobo sive  attornato his similiter to weigh well to make tenant Himself et assign nest ut  book tenementurn suum until what time pillage l ind plenary leve et quod ipse  become to make ind to know to make a saying beforehand protector in cancellar  svan pillage in vis pur happiness nariae tunc prox seq ubieunque tunc to be  testae c Nov that thereupon before the execution of the say writ Dec pillage  Thomas Coningsby to go after who death in pillage eight pur the sheriff return  a inquisition take before he Jan upon the say writ and so find the inquisition  whereby the land in the declaration inter alian be find to be in the seizure  of the say Thomas Coningsby the recognizor and that these land in the  declaration inter alian be deliver to James Silverlock the plaintiff lessor as  the moiety of the land of the say Thomas Coningsby tenendum c until what time  c and the jury find a conveyance whereby Thomas Coningsby Feb for demise the  say land to the defendant for ninetynine year with a clause of redemption upon  payment of and find the entry of Silverlock the lessor of the plaintiff Oct  and his demise to the plaintiff pro ut of the premise in the declaration and  the entry of the plaintiff and that he be possess until what time the  defendant John Phillips afterward Oct upon acre of pasture with the  appurtenance then in the possession of the say John Phillips to see it shall  be Harwood be parcel of the land in the declaration specify do enter and eject  the say John Harwood from his farm aforesaid in the say acre modus et form pro  ut send utrum c the defendant be guilty of the ejectment in the say Bridgman  oh acre a swearer prediction ignorant c and as to the residue they find that  the defendant be not guilty the question upon this special verdict be whether  as the defendant die after the manuscript have before instead of after in this  place b the testae of the writ of elegit and before the inquisition take  whereupon the moiety be deliver the execution of the writ be good and two  point make of it first whether it may be Le alley execute after the death of  the conusor Bridgman oh er p second if it may not whether it be only voidable  by error or void in itself see my argument at large that the execution be good  and so I deliver my opinion but the case be adjudge when I be sick pasch well  Tr car argument at large hark ms No fol Bridgman c j ejection strong by John  Harwood against John Phillips upon a special verdict the case be upon a  recognizance in chancery by Thomas Coningsby and two to know facias and return  nothing judgement be give that the plaintiff recover his debt and have  execution and a elegit award wherein the sheriff be command to deliver to the  recognize all the chattel of the recognizor praeter large Italian snake et  afros de caruca to the value of the debt by a reasonable price thereof in  presence of the conusor who indeed Thomas the reconusor foret per Self  viscount ad ind forewarning si presence ibidem volvisse and if the chattel be  not sufficient then the chattel such sublus valor per the pure milk of reason  price and the moiety of his land upon extent to weigh well to make to the  recognize tenendum c after the testae of this writ and before any extent the  recognizor die and after a inquisition be take whereby the land in question be  extend and deliver to the lessor of the plaintiff be the conusee and whether  this extent by virtue of this writ it be returnable and file duly be make  after the defendant death be good or no be the general question I conceive the  inquisition after the death of the cognizor the elegit be issue before his  death be well find and the execution good and so the plaintiff who be the  lessee of the recognize ought to have judgement this case if we pare off the  excrescence will be bring to a narrow room and therefore to make plain my way  I shall say a little to they the rather because if they have be insist on in  those argument at the bar which I hear it be argue the last term when I be  sick Bridgman oh first then this case be upon a abatement of a writ of elegit  which be a judicial writ and so not to be resemble to original writ where the  death of the defendant before judgement be general a abatement of the writ for  the writ be the foundation of the action and in case where the action die not  with the person if it concern good a executor be concern and if land a heir be  concern and so at the time of the judgement to be give another person not  mention in the writ come to be interest in the good or land and the judgement  to be give agree not with the writ and proceed upon it and therefore in such  case the law will abate the writ and not give judgement but in case of a writ  of execution well award the interest be regular bind from the time of the test  and the death or other act of the defendant can make no alteration neither do  it falsify any part of the writ as I shall show present next question arise  upon the death of the defendant and not to be compare to case of abatement  upon the death of the plaintiff Clear and veer case car b r I Cr have be cite  of all hand upon a recognizance in nature of a statute staple the recognizor  die after the writ of to stretch out award and before inquisition take it be  adjudge that this extent make after the death of the conusee be mere void  against the opinion of justice crook and I conceive the law be accord but I  allow not the reason give because the writ be that he shall extend and seize  into the king hand ut ei c and the sheriff have not any warrant to deliver it  to a executor or administrator for a liberate may be afterward sue out by the  executor upon the return of the writ of extent and a capias ad to give  satisfaction be ad to give satisfaction a b the plaintiff and a become facias  be become facias so much et that habeas in person justice c such a day ad  reddendum a b which word be as special apply to the plaintiff as the word ut  ei to set free and yet if the plaintiff die after the testae and before the  execution the sheriff ought to execute the writ and the return that the  plaintiff be dead be not good as justice crook put it in Clear and veer case  Cr and be agreeable to common experience but I take the true reason why a  extent can be after the death of the plaintiff be because the plaintiff by law  upon a statute staple and also by a recognizance in chancery by equity of the  statute of Acton Burnell if the land be extend too high may upon the return of  the writ pray that the extenders shall have the land at the rate and shall pay  the debt which none but the plaintiff can pray and therefore if the writ of  execution shall not abate by his death it may Bridgman oh be prejudicial to he  which reason hold not upon the death of the defendant but in case of other  Bridgman oh er p writ of execution where no such collateral advantage be to be  lose by the plaintiff death the execution after his death be good but now in  the three place to come home to our case we be to consider what the law be in  case the defendant die after a writ of execution take forth and before it be  execute and I conceive the execution be well make notwithstanding his death  and that as well touch land as touch good to begin with a become facias the  law be clear that after a testae of a become facias a alienation of good or  chattel good fide shall not hinder the execution now by the statute of fraud  car c S the good be not bind till the delivery of writ c so be sir Gerard  fleetwood case   Cr hill Elizabeth c b I Cr car b r Audley and halsey case and  the book there cite be Cr for by the award of execution the good be bind now  by the statute of fraud car c S the good be not bind till the delivery of writ  c so that they may be take in execution into who hand soever they come the  reason be the same in case of death as where he alien good fide for at the  time of execution make they be the alienees in one case and the executor in  the other but the good be bind by the execution award no alteration subsequent  in respect of the defendant shall alter the case and the authority be in point  that a become facias may be execute after the defendant death Vincent case e  judgement be against he for debt and a become facias award he die the  execution be make upon the administrator it be true the administrator by a  writ of error reverse the judgement and a quaere be make upon it whether the  administrator can bring a writ of error but it be take for grant that the  execution be well make for the error be not in the execution but in the  judgement otherwise it shall have be in act of assignment performance but the  error there for which it be reverse be for error in the judgement itself and  in park and Moses case Cr p Elizabeth b r it be adjudge in a recovery against  pierce that a become facias award in his lifetime and serve upon his good in  the hand of his executor be good and so I take it in common experience upon a  judgement in ejection strong after a to have fac possession take out the  defendant die yet the execution may be make by the sheriff the reason of the  law which will also hold in our case be these first there be nothing appear  upon record to falsify or contradict the writ for it be become facias de good  et catallis a b that be those which be his good and chattel then when the writ  be award to have fac possession svan termini Himself prediction ad haec to  come ad haec at the time of the testae and the Bridgman oh like second  execution which be the life of the law be to be favour the defendant have no  day in court nor any thing be allow he to plead to hinder the execution if he  have any puisne matter he must sue his hearing complaint and the three reason  be the sheriff ought to obey the writ if he shall return a corpse and in truth  the party be not dead the plaintiff can not traverse it and therefore he be  answerable upon such return h in trespass upon the capias the sheriff can  return a corpse but non be invention and so upon a exigent a corpse be not  good for say Prisot the chief justice it be better to put the executor to a  writ of error than to suffer the sheriff to return that which may be false to  which no answer can be give but a difference have be take between a become  facias to have possession and other writ which need not to be return and file  and a elegit which must be return of record and file to that I answer the  necessity of return one writ and not the other arise because by the Act of  west c a inquisition must be take upon a elegit to appraise the good and  extend the land by jury but alter not the law as to execution in the life or  after the death of the defendant and upon a elegit or extent upon a stat the  good be bind by the writ sue out as be agree in Audley and halsey case Cr car  b r h James c b as well as upon a become facias and therefore in conways and  Brandlys case judgement in debt for be give against lessee for year the  plaintiff sue out a elegit the defendant between the testae and return assign  it and after the sheriff extend it and the inquest find the value at l which  the sheriff deliver to the plaintiff tenendum ut good et catalla suapropria in  full penalty debt is owed Himself and adjudge a good execution this be in all  elegit and as I say before the reason be the same in case of death as in the  case of alienation good fide for in truth they be not the defendant good at  the time of execution so that as to good there be no difference between ail  execution by elegit or by become facias upon the death of the defendant  Bridgman oh er p and the law be the same as to a writ of execution upon the  land which bear testae before and come to be execute after the death of the  defendant as it be upon good and therefore in a writ of entry upon a common  recovery or other writ of entry the to have facias seisinam be test in the  life on the tenant may be execute after his death that be Shelleys case the  that of October a recovery be suffer the same day a to have facias seisinam be  award he die the same Bridgman oh day the writ of seize appear in the case to  be execute after his death and good enough upon a statute staple or  recognizance of that nature the process be to take the body and to seize and  appraise the good and extend the land of the defendant I conceive he may  return a non be invention for the body if he be alive at the testae and to  return a extent but if a corpse be return which suppose he dead at the time of  the writ there be no further execution but then a alias to stretch out fac go  without any to know facias for the land which he have die recognitionis and  the good which he have tempore death but yet by the book Elizabeth it appear  the executor of the conusee sue execution and a corpse return and yet a extent  withal which if it be law must be understand of a corpse after the testae of  the execution though the book mention it not for otherwise it be against all  the precedent and against the reason and authority of law which hold the  execution void if the defendant be dead at the testae of the writ but upon a  statute merchant a capias first issue and upon a non be invention or corpse  return then without any to know facias a extent go out which I urge to show  that the death of the defendant do not at all retard the execution and it be  observable the statute de mercatoribus be make the same year that the statute  west a the word of the statute de mercatoribus are That after the quarter of  the year all the land and good of the debtor shall be deliver to the merchant  by a reasonable extent to hold they until the debt be levy and the statute e  of the staple c refer to the statute merchant and the statute of west which  give the elegit upon a judgement or recognizance be the same it give the  election of a be made fa or quod sheriff freely ei in all respects catalla  debtor To take out an ox et ajris carucae et center point terrae of oneself  until what time debt is owed to be alleviate per the pure milk of reason price  et extent but it be true upon a recognizance or judgement if either the party  plaintiff or defendant die before the writ of execution there must be a to  know facias because in those case they be leave to the rule of the commonlaw  which require alteration of the process where there be alteration of the  person whereas the process in the case of a statute merchant or statute staple  be by Act of parliament the use I make of all this be that the elegit be make  by statute and the statute not have make any provision concern the abatement  of it by the death of the defendant it ought to be construe as other process  of execution which Bridgman oh where the defendant have no day in court do not  abate by death there be one and but one great objection in this case and that  be the writ of elegit be quod in all respects catalla prediction thomae per  the pure milk of reason petrium c  in presentiam speech thomae who indeed  Thomas foret per ten forewarning si presence ibidem volvisse a saying  beforehand jacobo the plaintiff to weigh well to make and if they be not  sufficient then the good and chattel somewhat bruised valor and the medietalem  the earth Self thomae per extent a saying beforehand jacobo similiter to weigh  well to make so the writ command the extent to be upon warning to the  defendant and in his presence how can that be obey when he be dead before the  extent this be a objection of great weight but I shall give a double answer to  it First I say it may be reasonable construe that the praemonitio be not  require to the land but only to the good for the word touch the land be that  the good somewhat bruised valor and the moiety of the land for extent  similiter to weigh well to make now there may be reason why he shall be  present at the appraisement and delivery of the good which extend not to the  land because there be a exception of large Italian snake et afri de carcuca  and the defendant alone know which they be and second the chattel may be  deliver in satisfaction before the return of the writ and though they be of l  value he may have they in satisfaction of the debt of l unless the defendant  pay down the money and in our principal case it do not appear there be any  good I confess I shall have think the a word similiter ought reasonablyto be  understand similiter as the good that be forewarning ne condition et in  present time of the defendant si interest volveri but I find that both the  register and f n b in the writ of elegit upon a recognizance in chancery  are Tibi to take beforehand quod catalla Bridgman oh er p Self r c per the  pure milk of reason appraisal the same not price To take out an ox et afris  carucae in preasentia prediction r per ten ind praemoniendi si interest  volveri faciend say beforehand advance r c facias to set free et si catalla  that ad valentian predict non to put under tunc catalla that si minus  valentian per the pure milk of reason appraisal ac etian center point terrae  Self r in balliua tua per extent similiter in presentiam tua in form predict  faciend praefacto r facias to set free c that be the inquisition for the land  be in present time tua that be viscount and not in present time of the  defendant but I do not rely on this answer the elegit as it be issue out of  chancery I be sure be not agreeable with the register but it be in something  nonsense and whether the register be Bridgman oh misprint I know not but I  give the full answer that the statute W c give the elegit alike cum debt is  owed to be regain and when it be in curian king recognitum well financial loss  adjudge in case of judgement damage recover and recognizance in case of a  elegit upon a judgement or damage recover in the common plea the writ  runs Quod freely ei in all respects catalla debtor To take out an ox et afris  de caruca et center point terrae of oneself until what time without that  clause of forewarning or do it in the presence of the defendant as you may see  it in the register Judicial fol for damage recover in a assize and the common  contact practice be accord in all the court at Westminster so it be also upon  a judgement upon a recognizance in the common plea as appear in the register  Judicial fol and upon a known on good evidence fol now the statute of west be  the ground as well for the elegit in the chancery as in the other court and  therefore this clause of give the defendant warning and execute the writ in  his presence be but direction to the sheriff to inform he what be fit not  coercive to make the writ void if he do it not for the writ be ground upon the  statute of west which enjoin it not nor do other court require any such  warning neither do the sheriff ever return that he be warn or that execution  be in his presence and therefore it be but a advice not a precept to the  sheriff and come in only by way of parenthesis the writ of elegit after the  death of the defendant shall not be execute against a heir within age but the  parole shall demurrer if a to know facias be sue and a writ of extent upon a  statute be to extend nisi some infra lifetime existence per decent  haereditarium descendent if the sheriff extend the land of a heir within age  it be void for the statute e de mercatoribus to which the statute staple refer  and the equity whereof reach to a elegit be express that he shall have the  land of the heir if he be of age or when he shall be of full age till he have  levy the debt if the sheriff in such case extend the land of such a heir it be  void for he go beyond his power and he do more than it command he but in  process of execution though the sheriff do not all that be command he if the  sheriff have warrant to do what be do it be well enough for the party and  therefore upon a capias ad to give satisfaction which seem conditional though  the Bridgman oh writ be never return the execution be good otherwise upon a  capias in mesne process and so it be become facias with de terris et catallis  a b et that habeas such a day ad reddend g the execution be good though the  writ be not return h upon a statute staple the writ issue to take his body and  extend his land and good the sheriff return a extent of his land without  mention his good and yet it be adjudge the execution be good as to the party  for the defendant have no day to plead nor any prejudice and so in the  principal case the law require no summons nor notice to the defendant nor his  presence and if he have be alive the execution will not be avoid for his  absence and therefore I think the inquisition be well take and so be the writ  of elegit well execute another question be made admitting the execution not  well madewhether it be void or voidable but this be by way of admittance of  that against which I have argue and therefore I shall say little to it yet I  conceive take it for grant that the execution be not well make in respect of  the death of the defendant it be then absolute void for the writ be abate in  facto for though it will excuse the sheriff yet it will not make the execution  good a recognizance be acknowledged the recognizor dies the conusee take out a  execution without a to know facias against the heir or terretenant if they be  oust they shall have a assize which show it be mere void there be a objection  in this case upon the verdict which be not make at the Bridgman oh er p bar  which have stick with I upon the return of the writ of elegit nothing appear  to the contrary and it shall not not supply by the editor d be suppose but  that the defendant be alive the writ of elegit be first quod freely ei in all  respects catalla ad valentian predict mille a balance and then follow el si  catalla predict non to put under in valour predict mille a balance tunc  catalla predict si somewhat bruised valor nec non medietet the earth to set  free to make so that the delivery of the land be but conditional c if the good  be not sufficient and the inquisition find nothing touch the good as it be  find in this verdict which find only the land and the delivery of the moiety  of they to the plaintiff lessor but to this I give a double answer first it be  observable that the word of Westminster be quod freely ei in all respects  catalla debtor To take out an ox el afris de caruca et center point terrae of  oneself until what time and they be the Bridgman oh same word as be in the  statute de mercatoribus and e c of the statute staple and the execution go out  joint there against good and land and there be no word in the statute of  Westminster that the land shall not be extend if the good be sufficient but it  be the wisdom of the law though they allow that kind of proceed among merchant  for hasty payment of their debt to take both good and land yet a recognizance  or judgement be record at commonlaw they make the exposition agreeable where  it may be without prejudice to the course of commonlaw which be not to seize  the land no not in the king case while the good be sufficient but I take this  clause et si fort though in word conditional to be but defective for if the  sheriff shall return no one good and so extend the land the extent be good  though in truth he have good sufficient and no averment shall be against the  sheriff return and by the same reason if the sheriff make no return at all as  touch the good it be but a directive clause I conceive the execution as to the  land be good though the sheriff may be amerce and the book of h cite before of  the execution of a statute be a warrant to my opinion for though there be no  such conditional clause in the writ of execution of a statute staple as it be  in elegit yet the foundation of both writ be the same but it be discretional  but second I say in a verdict the not find of collateral matter shall be  supply and the law which be favourable to verdict will suppose the jury doubt  of nothing but what relate to the matter in question before they the question  grow concern the land and therefore the jury find the inquisition concern the  land and meddle with nothing else