Nor in any thing to draw the title in question.
5. May be sued for the residue, after part levied by fieri facias. 6. If upon an elegit nothing be taken but goods, which are not enough, the plain- tiff may have fieri facias. 7. If land in lease for three years be taken, which is not enough, quære, whether now the elegit be peremptory. 58, 59 8. Though the writ of elegit be right, yet if the entry of it upon the roll be wrong, it is error. 90
1. If tenant for term of years certain, sow the land, the lessor shall have the em- blements standing at the end of the term. 132
2. The executors shall have the emble- ments sowed by the ancestor, and not the heir. 232 3. If A. sow the land, and convey it to B. for life, the remainder to C. for life, and B. die before the land be reaped, C. shall have the emblements, and not the executor of B., notwithstanding his es- tate was uncertain. 132 4. So if B. and C. doth die, A. shall have them, and neither of their executors, for they were at no industry nor charge. In margent. 132 5. Lessee for years holds over his term, sows the land, and dies, his executors shall have the emblements of the now uncertain termor. Margent. 132
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May be assigned in the death of the parties, or the like, where the writ is absolutely abated.
Ib. 5. Not helped by consent of parties. Ib. 6. "Tis error to deny the essoin where it
ought to be granted, not e contra. 47 7. Where the defendant may assign a fault or error in that which makes for his advantage.
37 8. If trespass be brought against three, who sever in pleas, and judgment be given against one, and nolle prosequi entered against the other, all cannot join in a writ of error; for 'tis not ad grave damnum of all. 70
The principal and bail cannot join in a writ of error upon the several judg- ments against them.
10. Communis error facit jus. 11. If there be error in the entry of the elegit upon the roll, the taking out of a good writ will not help the faulty roll.
17. Where a writ of error and deceipt may be brought upon one judgment. 218 18. Where the want of a bail is assigned for error in B. R. it must also be alleged that the party was not in custodia. 264, 265 19. Where a man may assign for error that which is contrary to the record, and where not. 264, 265
20. Writ of error varying from the record
doth not remove it. 327 21. A writ of error bearing date the day 5. after the judgment, cannot be defeated by antedating the writ of execution. ESCAPE.
1. To suffer a prisoner to walk into the town, though with a keeper, it is an es- cape, unless it be upon a hab. corp. from a court of justice.
2. If the hab. corp. bear teste in the end of one term, returnable in another, this writ will not warrant the prisoner going at large in the vacation. 3. If the prisoner walk abroad, and return in the time of one sheriff, and escape in the time of another sheriff, this is no escape in the time of the second sheriff. Ib.
4. If one taken upon a cap. escape, and the sheriff die, and a new sheriff be made for the remainder of the year, and then the same person be taken by another cap. for the same cause, and escape, this will not charge the new sheriff. Ib. 5. In an action of debt for an escape, nul tiel record is a good plea. 209 6. The old sheriff remains chargeable with the escape of the prisoner in exe- cution, till he have delivered him over to the next sheriff. 268 7. If an executor bring an action of debt upon escape, where the recovery is by himself, it must be in the detinet only. 264, 272
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1. Where the first vouchee may be es- soined after an essoin of his vouchee. 46 2. Where the same tenant may have sev- eral essoins in several respects. 46, 47 3. The form of the entry of the essoins. 47
warranty, the tenant can have no more essoins.
Ib. The essoin for an advowson is de placi- to terræ. 304
1. If the disseisee enter upon the disseis- or, and the disseisor reenter, the estate of the disseisor is changed, and he is in of another estate. 26 In fee simple, or tail, by what words of a will it may be created. See Devises. 1, 2, 3, 4, &c. If feoffee with warranty suffer a recov- ery to the use of himself and his heirs, his estate is not changed from the old fee simple, but he may vouch still. If tenant by priority and posteriority make a feoffment of all his lands to his own use, the priority and posteriority 27, 280 5. A feoffment to the use of 1. S. in tail, the reversion to the right heirs of the the feoffor, it is still a reversion in the feoffor as before.
6. Where he, who hath no estate at all in the rent, may extinguish it by his re- lease. 130
7. Where an estate made to a feme covert vests till dissent, and where not till as- sent of the baron.
204 Where, and by what means an estate of inheritance once vested may come to be turned into a mere possibility. 257. See Possibility.
9. Where a tail or base fee may cease for a time after it is vested, and be in esse again. 257,259
10. Where a fee simple may be turned into an estate for life. 277,278 11. Tenant in tail, the reversion to the king, grants to the king in fee; the king hath but one fee simple in him.
323, 324 12. Tenant in tail, the reversion in the king, or himself, is attainted of treason; the king hath but one estate in fee. 324 13. Where an estate conveyed to the same uses that the former estate was, shall be said to be the old estate. 280 14. Land to a man and his heirs during the life of I. S. is but for life. 323 15. A disseisin of a tenant for life by the lessor gains a quasi fee, during the life of tenant for life, and why. Ib.
4. After the vouchee hath entered into 1. Descends upon the tenure at common
either was a breach of the covenant not to do waste. Quare, if the verdict had been of ashes instead of oaks.
law, and not on the tenures in gavelkind, bor. English, or by possessio fra
53 2. Where the confession of one defend- 6. Issue whether I. S. was taken by a caant shall not conclude the other. pias, evidence taken by an alias capias.
3. Where the confession of two collectors for a parish, in their acquittance, cannot conclude or bind the right of the parish.
85 2. If it be directed to the tenant and his servants, and he or they do waste, they are imprisonable for contempts; not so when it is directed to the sheriff or coroner, though they have notice of it. lb.
1. Where, and upon what issue the fraud of a conveyance may be given in evidence, and upon what not. 72, 166 WHAT EVIDENCE SHALL BE SUFFICIENT TO MAINTAIN THE ISSUE. See Failer of Records.
2. Issue was upon a devise to 1. S. and his heirs, modo et forma, and the will given in evidence was found I. S. shall have all my inheritance, if the law will allow it.
2 3. Issue was upon a lease 5 Maii hab. a fest. Annunc. per 21 an. ex tunc et evidence et verdict fait de leas. 5 Maii habend. de festo Annunc. per 21 an. next ensuing the date of the indenture. 18, 19 4. Issue was N. unques receivor per maines I. S. evidence and verdict, a delivery from I. D. by the appointment of I. S. to the plaintiff's use.
36 5. Issue was taken upon felling 20 oaks, evidence and verdict was but 10, for
Issue was upon a prescription to tether horses ab et post festum P. evidence and verdict was in vigil. P. in festo P. die Luna in Sept. P. aut postea ad libitum.
10. Upon issue assets or no assets, seised or not seised, and one gave a feoffment in evidence, the other may give fraud in evidence.
72. 11. Issue was a lease 30 March, habend. from the Annunc. next before, for a year, evidence was a lease 25 March habend. from thence for a year. 73 12. Issue upon an alienation in fee, maintained by alienation in tail, or for life.
13. Issue upon these words, If Sir I. S. might have his will, he would kill the king,' &c. Evidence and verdict was, 'I think in my conscience if Sir 1. S &c. 180, 181 14. Issue upon a surrender, evidence must be an actual surrender; one in law will not serve.
203, 4 15. Unreasonable detainer is good evidence to prove a conversion in a trover. 187
16. Where the special matter may be given in evidence, and the general issue pleaded. 39 in margine. 135 WHAT EVIDENCE IS NOT SUFFICIENT TO MAINTAIN THE ISSUE.
17. Issue was upon the deed of the brother's warranty, and the evidence and verdict was a deed of the father, with warranty.
18. If the issue be upon a taking by a capias ad satisfac. and the evidence be a taking by capias utlag. or capias pro fine, with a prayer of the plaintiff that he may remain for his satisfaction. 19. Upon issue feoffavit or non feoffavit, fraud cannot be given in evidence. 20. Upon issue non est factum, matter
3. Cannot alter that which was expressly granted; secus, of that which was but 1. A people heretical may be excommuni- implied.
4. Grant of a house and shops, excepting the shops, is a void exception.
Querela. Elegit.
1. By elegit. See Elegit.
5. If the king grant land and underwood, See Scire Facias. 25 E. 3. 19. Audita expressly, exceptis omnibus grossis ar- boribus boscis et maremiis, the exception as to the underwood is void, and extends but to the great woods. lb. 6. The king may grant a manor adeo plene, except the advowson; not if it were ex- pressly granted. Ib.
7. A man may grant a manor, excepting any of the demesnes and services, so as a real manor, not a reputative, be left. lb. 8. A grant of all the lands in D. excepting black acre, is void, if the grantor have no more land in D.
2. Of lands in ancient demesne. Elegit. 2 3. Divers executions sued upon a joint and several obligation. lb. 4. Where he that is once discharged of execution, shall never be taken again. 2, 60 By scire facias, must be where the first action was laid. 4, 196, 197
23 10. Where it shall cease against one heir, till it may be had against all. 11. Of a judgment in warrantia chartæ can be sued but once after recompense in fee had, otherwise upon recompense for life.
28 12. Where several executions may be sued upon several judgments in several
16. Where execution may be had for part by fieri fac., and for other part by cap. or elegit.
17. If upon an elegit there be no execu- tion but upon goods, which are not enough, the plaintiff may have cap.; for now it is in effect but a fieri fac. though the word be elegit.
58 18. By elegit sued for forty pounds, nothing taken but a lease for three years, of five pounds per annum ; quare, if it be pe- remptory, in regard that as to the re- mainder there is nothing. 58, 59 19. If a man die in execution, his heirs or executors are no farther chargeable. 52, 56, usq. 62 20. By cap. where it is no actual satisfac- tion, but quasi satisfaction, and where it is a full and final satisfaction. 59 21. If joint and several obligors be sued jointly, the same kind of execution must be taken against all; otherwise when they are sued severally. 2,58 22. Where if one in execution escape of his own wrong, he or his executors are no farther chargeable. 60 23. May be taken on a statute, of body, land and goods, at once or severally, one after another. Ib. 24. By cap. did not lie at common law, save in trespass vi et armis. 61 25. Of the body, is in law and nature the best and most forcible. Ib. 26. And peremptory if the party die, or escape. 60 27. Execution after a devastavit returned, cannot be taken by fieri fac. into another county, without a testatum fine first en- tered upon the roll. 68 28. Where, after a fieri fac. which did im- provide emanare, a supersedeas shall be granted, and the execution made, though by sale of a lease, shall be dis- charged.
lb. 29. Execution of a writ of inquiry. See Damages. 9
30. Where the party may pray to have the defendant, who comes in upon a cap. utlag., charged in execution for his debt., where not. 115
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36. If several writs of scire fac. be taken out against several ter-tenants in seve- ral counties, and judgment be given against some by default, and then all the writs abate against all, quære, if the plaintiff shall have execution against any of these tenants, before judgment be given for or against the other. 287 37. Where a writ of execution shall be suspended, quia erronice. 328 38. What shall be an escape out of execu- tion. See Escape. 1, 2, 3, 6.
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