Alton v Jarvis
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | Court of the Queen's Bench |
English Reports Citation: 88 E.R. 954
IN THE QUEEN'S BENCH.
See Lehain v. Philpott, 1875, L. R. 10 Ex. 247.
case 208. alton against jarvis. [See Lehain v. Philpolt, 1875, L. R. 10 Ex. 247.] Qu. Whether goods taken under a writ of levari facias, issued by a court baron upon a judgment for costs, may be sold without a writ de executione juclicii. Trespass for entering his close, and taking cattle. The defendant justified by several judgments in a court-baron, where the plaintiff had levied a plaint against the defendant; whereupon judgment was given for the defendant, and costs given him; and thereupon the defendant, by virtue of a levari facias, took the cattle and sold them ; and for this the plaintiff brings his action. The defendant demurred to the declaration. Raymond for the plaintiff insisted, that they could not sell the cattle upon a levari in a court-baron, without alledging a custom for so doing (a) ; and cited Bro. Abr. "Execution," 80. Lutw. 1524. Dalt. Sher. 419. Lut\v. 1410. Kel. 106. The bailiff ought to keep the distress until the parties agree (b). Lutwych contra. If the bailiff cannot sell, it is to no purpose to take execution ; but the words of the writ are, "quod levari facias, so that he have the money at the next court(c)," which cannot be, unless he may sell; and he cited Bro. Abr. " Execution," 26. 2 Lev. 81. 3 Keb. 126. 8 Co. 41. Raymond replied, that Bro. " Execution," 26, is no judgment, but only an inference; and is precedent in time to Bro. " Execution," 80. Q. Holt, Chief Justice. " Distraining" is " levying." (Q.) If a man distrain for rent, and impound the distress, and then bring [145] debt for the same rent, the defendant may plead " levied by distress." As to the selling by the...
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