UNDER MESNE tioned, and then and there forcing and breaking open, breaking to PROCESS. pieces, damaging and spoiling the said doors, windows, locks, bolts, bars, staples, and hinges of the said A. B. in the said first count mentioned, the said C. D. by leave of the court here for this purpose first had and obtained according to the form of the statute in such case [*631] made and provided, saith that the said A. B. ought not to have or maintain his aforesaid action thereof against him; because he saith that before the said time, when, &c. in the said first count mentioned, to wit, on, &c. (the teste of the writ; here set forth the writ of latitat the indorsement for bail, delivery of the writ to the sheriff, and warrant to the defendant, and delivery thereof to the defendant, as in the precedent, ante, 587 to 589.) By virtue of which said warrant the said C. D. as such bailiff as aforesaid, afterwards and before the time appointed for the return of the said writ, to wit, at the said time when, &c. in the said first count mentioned, and within the bailiwick of the said G. H. as such sheriff as aforesaid, peaceably and quietly entered into the said dwelling-house, in which, &c. the outer door thereof then and there being open, and there then and there being reasonable and sufficient ground and cause for the said C. D. to suspect and believe, and the said C. D. then and there suspecting and believing that the said A. B. then was in the said dwellinghouse, in order to take and arrest the said A. B. under and by virtue of the said writ and warrant as it was lawful for him to do for the cause aforesaid; and in order to arrest the said A. B. under and by virtue of the said writ and warrant, he the said C. D. did then and there necessarily and unavoidably make a little noise and disturbance in the said messuage or dwelling-house, and stay and continue therein making such noise and disturbance for the said space of time in the said first count mentioned. And the said C.D. further saith, that at the said time when, &c. in the said first count mentioned, the said A. B. not having been taken or arrested under or by virtue of the said writ or warrant, and the entrance of divers, to wit, rooms and [*632] apartments in the said dwelling-house, in the said first count mentioned, and of and belonging to the same being fastened and stopped by and with the said doors, windows, locks, bolts, bars, staples and hinges in the introductory part of this plea mentioned, and there then and there being reasonable and sufficient ground and cause for the said C. D. to suspect and believe, and the said C. D. then and there suspecting and believing that the said A. B. then *was in the said rooms and apartments or one of them, he the said C. D. did then and there demand and request one I. K. being the only person then and there present in the said dwelling-house to deliver the keys of the said respective doors to him the said C. D. and to permit and suffer him the said C. D. to enter into the said PROCESS. rooms and apartments in order to search for the said A. B. therein, UNDER MESNE but the said I. K. then and there wholly neglected and refused so to do, and then and there obstructed and hindered the said C. D. from entering into the said rooms and apartments or either of them for the purpose aforesaid (u), so that without forcing and breaking open the said doors, windows, locks, bolts, bars, staples, and hinges, the said C. D. could not at the said time when, &c. enter into the said rooms and apartments to search for or arrest the said A. B. in the same; therefore he the said C. D. at the said time when, &c. in the said first count mentioned, in order to search for, find, and arrest the said A. B. under and by virtue of the said writ and warrant, necessarily broke open the said doors, windows, locks, bolts, bars, staples and hinges in the said first count mentioned, and in so doing necessarily and unavoidably a little broke to pieces, damaged, and spoiled the same, doing no unnecessary damage to the said A. B. on the occasion aforesaid; which are the said several supposed trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above thereof complained against him the said C. D. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] seizing his goods under [*633] a fieri facias [First plea, general issue, as ante, 568. Second plea, as fol- Justification of entry into lows:-] And for a further plea in this behalf as to the breaking and plaintiff's entering the said dwelling-house in the said first count of the said house, and declaration mentioned, and in which, &c. and making a noise and disturbance therein, and staying and continuing therein, making and continuing their said noise and disturbance in the said messuage or against him dwelling-house of the said A. B. for the said space of time in that (x). count mentioned (y), and there seizing and taking the said goods and 'chattels in the said first count of the said declaration mentioned, and converting and disposing of the same to their own use; and also as to the seizing and taking of the said goods and chattels in the said last count of the said declaration mentioned, and converting and disposing thereof to their own use, above supposed to have been done by the said C. D. and E. F.; they the said C. D. and E. F. by leave, The judg &c. say (actio non, as ante, 470, fourth precedent,) because they say (u) These allegations must be according to the facts, 3 Bos. & Pul. 229. (x) See the precedents, 9 Wentw. Ind. xcvi. and crx. and as to the mode of justifying under final process in general, see Com. Dig. Pleader, 3 M. 24. and ante, Vol. 1. Index. tit. (y) If there was any illegal abuse ment a tiff (z). Fieri facias against plain tiff. term, UNDER FINAL that the said C. D. before the said time, when, &c. in the said first PROCESS. count of the said declaration mentioned, to wit, in gainst plain- &c. (here state the judgment in debt or assumpsit, and the reference thereto, as in the precedents, ante, 191 to 194, observing the notes, and then proceed as follows:-) And the said C. D. and E. F. further say, that afterwards and before the said time, when, &c. to wit, on, &c. (state the fieri facias, indorsement to levy, and delivery thereof to one G. H. as sheriff, as ante, S52, 353, and then proceed as follows:) by virtue of which said writ the said G. H. Esq. so being warrant to sheriff of as aforesaid, afterwards and before the return of one of the defendants the said writ, and before the said time when, &c. to wit, on the day of in the year aforesaid, at, &c. aforesaid, made his certain warrant in writing, sealed with the seal of his said office of sheriff of the said county of as aforesaid, directed to the said the said time when, &c. being Sheriff's (a). [*634] E. F. (he the said E. F. then and at bailiff of the said sheriff,) and by the said warrant the said sheriff then and there commanded him the said E. F. that of the goods and chattels of the said A. B. in his the said sheriff's bailiwick, he should cause to be made to the said C. D. in the said writ named, as well the said debt of £, which the said C. D. had lately recovered in the said court of our said lord the king before the king himself, at Westminster aforesaid, as also the said sum of £, for his damages, costs and charges aforesaid, so that the said sheriff' might have the said sums of money before our said lord the king at Westminster aforesaid, (or if in C. P. " of the Bench aforesaid,") on, &c. (the return day of the writ), to render to the said C. D. for his debt and Delivery of damages, costs and charges aforesaid; which said warrant afterwards and before the return of the said writ, and before the said time when, &c. to wit, on the same day and year aforesaid, at, &c. aforesaid, was delivered to the said E. F. so being such bailiff as aforesaid, to be executed in due form of law; by virtue of which said writ and warrant, the said E. F. so being such bailiff as aforesaid, and the said C. D. as the servant of the said E. F. and by his command afterwards and before the return of the said writ, to wit, at the said time, when, &c. peaceably and quietly entered into the warrant to such defendant. Entry and seizure by the two defendants. (z) When the plaintiff in the original action justifies under a fi. fa. he must state the judgment, but the sheriff or his officer need not, and if there be any doubt as to the regularity of the judgment the latter should plead separately. Com. Dig. Pleader, 3 M. 24.-3 Lev. 20.-Stra. 509. 993. 1184: -1 Wils. 17. (a) As to the mode of pleading a warrant, see ante, 588. n. u. Examine with the warrant. Where only the sheriff or the plaintiff in the original action justifies, the warrant need not be stated, but where the bailiff justifies it should be stated. PROCESS. [*635] said messuage or dwelling-house, in which, &c. (the outer door there- UNDER FINAL of being then and there open), in order to seize and take, and did then and there seize and take in execution the said goods and chattels of the said A. B. in the introductory part of this plea mentioned, the same then and there being in the said messuage or dwellinghouse, for the purpose of levying the monies so directed to be levied by the said indorsement, on the said writ as aforesaid, and by the said warrant, and did then and there by sale thereof, levy a certain sum of money, to wit, the sum of £, part and parcel of the debt and damages costs and charges aforesaid (b); and in so doing the said E. F. so being such bailiff as aforesaid, and the said C. D. as his servant as aforesaid, did then and there necessarily and unavoidably make a little noise and disturbance in the said messuage or dwellinghouse, and stay and continue therein making such noise and disturbance for the said space of time in the said first count of the said declaration mentioned t, as they lawfully might for the cause aforesaid, doing no unnecessary damage to the said A. B. on that occasion; which are the said several supposed trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above thereof complained against them the said C. D. and E. F. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] 66 of entry into a fi. fa. [This plea is similar to the last as far as the asterisk, omitting in Justification the enumeration of the trespasses and what relates to the seizure of plaintiff's the goods, and stating that the judgment was recovered and execu-house under tion issued against one J. K." and at the asterisk insert the fol- against anlowing averment :-] And the said C. D. and E. F. further say, that other person before and at the said time when, &c. divers goods and chattels of (c). the said J. K. liable to be taken in execution by the said E. F. as such bailiff as aforesaid, under and by virtue of the said writ and warrant, were in the said messuage or dwelling-house in the said first count of the said declaration mentioned, and that thereupon, under and by virtue of the said writ and warrant, the said E. F. &c. [State the entry into the dwelling-house of plaintiff, and the seizure of the (b) Where the plea is by the sheriff, the sale of the goods and the return of the writ may be as in the precedent, post, 635. (c) See the notes to the last precedent. It frequently happens that under an execution against a debtor, a fraudulent conveyance of his goods to a third person in whose house they 480 UNDER FINAL goods of J. K. therein, as ante, 633, from the asterisk to the end, PROCESS. omitting what relates to the sale of the goods.] Justification [Same as the precedent, ante, 633, to the t, and then proceed as folby a sheriff lows:- And afterwards and before the return *thereof, to wit, on [*636] under a fi, fa. the same day and year last aforesaid, at the parish aforesaid, in the (d). county aforesaid, sold the same goods and chattels, and by sale thereof and of certain other goods and chattels of the said A. B. made and levied the sum of £, towards satisfaction of the debt and damages aforesaid, as it was lawful for him to do for the cause aforesaid. And the said C. D. afterwards and before the return of the said writ, to wit, on the day and year last aforesaid, at the parish aforesaid, paid to the said E. F. the aforesaid, in the county of sum of £, part of the said sum of money so made by sale of the said goods and chattels as aforesaid, in part satisfaction of the debt and damages aforesaid, and afterwards and at the return of the said writ, to wit, on, &c. returned the said writ to the said court of our said lord the king before the king himself at Westminster aforesaid, and then and there returned thereon, that by virtue thereof, he had caused to be levied of the goods and chattels of the said A. B. the said sum of £, part whereof, to wit, the sum of £, he had retained for poundage due on the said levy, and that -, residue thereof he had paid to the said E. F. in part satisfaction of the debt and damages therein mentioned, and that the said A. B. had not any other or more goods and chattels in the bailiwick of him the said C. D. whereof the said C. D. could cause to be levied the residue of the said debt and damages or any part thereof. Which are, &c. [Same as the precedent, ante, 635, to the end.] (d) See the notes to the precedent, ante, 632. Though the above form is given, it does not appear to be necessary in this case to state a return, 10 East. 73. It is said indeed in 1 Salk. 409. Com. Dig. Pleader, 3 M. 24.-6 T. R. 235. that in justifying under a fi. fa. the sheriff or other principal offi cer must shew that the process has been returned, but this seems erroneous, for the distinction is between mesne and final process, and no return of the latter need in general be stat ed in pleading, 4 Co. 67. a.-5 Co. 90. a.-2 Salk. 700.-Ld. Raym. 776.Com. Dig. tit. Return. E. 1.-Execution, C. 7.-10 East. 73. |