Breton and Cole
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1728 |
| Date | 01 January 1728 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 277
IN THE COURT OF KING'S BENCH
13. breton and cole. In trespass, &c. the defendant pleads, that one Creswick was outlawed, and that there was an inquisition upon the outlawry, upon which it was returned, that the land of Creswick was of the annual value of 591. and that upon this, a levari facias de exititibus terras was granted out of the Exchequer, directed to the Sheriff of Gloucestershire ; and that the defendant being with the sheriff, and the beasts of the plaintiff being upon the land, he said to the sheriff, execute your writ, and that by force of such writ, he took the beasts of the plaintiff being levant and couchant upon the land, upon which the plaintiff demurred; and after diverse exceptions to the pleading, which were over-ruled; the point in question was, if upon such a writ of levari facias to answer to the King de exitibus terra;, the beasts of a stranger levant and couchant may be taken and sold ; and per Northey, the beasts of a stranger are not issues, for the intent of the law where issues are returned upon a man is, that he by this means shall be compelled to appear; now the taking of the beasts of another never could inforce the defendant to appear, and though issues are returned, yet it is in supposal of law a real distress, which is sometimes given, and the return of so much in issues, is that the value of the land is so much, and the land is charged for so 278 TERM. MICH. 7 WILL. 3. B. B. SKINNER. 618. much, and the sheriff also by his return is bound to levy so much, so that the issues of the land is the natural product of the land, soil, the pasturage and herbage of the land, without manuring; for the King may not plough and sow the land. But it was said on the other side, that in this case the land is the debtor, and the beasts are not taken but in respect of their being upon the land ; as in the case of a distress for rent, the beasts of a stranger may be taken by the same reason; and if the herbage be the only issue or profit [which Holt Chief Justice said was all one] of the land, and [618] the owner put in beasts by way of agistraent; if the beasts of a stranger may not be taken, the King shall be answered of nothing: and Holt Chief Justice said, that this is a charge upon the laud for the value returned ; and therefore if there be tenant for life, the reversion in fee, and issues are forfeited by the tenant for life, this shall bind the reversion; and he said...
To continue reading
Request your trial
-
Thornby v Fleetwood et Al'
...8 Co. 14. Jenk. 280. (e) 3 Lev. 289. 2 Vent. 187, 213, 269, cited ante, 323. (g) 5 Mod. 112. Salk. 395, 408. Comb. 434, 469. Garth. 441. Skin. 617. 12 Mod. 175. Holt 421, S. C. (h) 9 Mod. 167, 181. 2 P. Wms. 4, 362. 10 Mod. 89, 230. 1 Bro. P. C. 450, S. C. (1) I Vent. 413. 2 Vent. 1. 1 Sid.......
-
Britton v Cole
...is a bar. 1 H. 7, 7. 19 H, 7, 30. 3 Cro. 431. 21 H. 7, 7. 3 D. 305, pi. 1, S. C. 1 SALKELD, 396. JUDGE 343 Post, 408. Comb. 434, 469. Skin. 617. Cases B. R. 175. Holt, 421. 1 Keb. 57, 74, 76. Beasts of stranger, levant and couehant, seizable on a levari facias ; so of joint-tenant and commo......
-
Britton against Cole
...be taken by levari facias, for they are the issues.-S. C. 5 Mod. 112. S. C. Salk. 395, 408. S. C. Comb. 434, 469. S. C. Garth. 441. S. C. Skin. 617. S. C. Holt, 421. S. C. Corny. 51. S. C. 1 Ld. Eay. 305. Trespass for taking forty-three sheep and two lambs, the twentieth of May, in the seve......
-
Britten against Cole
...take them, is bad; for the trespass is confessed, but not avoided.-S. C. 1 Salk. 395, 408. S. C. Comb. 434, 469. S. C. Garth. 441. S. C. Skin. 617. S. G. 12 Mod. 175. S. C. Holt, 421. S. C. 1 Ld. Ray. 305. S. C. 3 Ld. Ray. 145. S. C. Corny. 51. In trespass for taking his cattle, the defenda......