Britton v Cole
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1724 |
| Date | 01 January 1724 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 574
IN THE COURT OF KING'S BENCH
britton versus cole. Vide post. 1 Salk. 395, 408. 5 Mod. 109, 112, &c. Cattle of a stranger levant and eouchant on lands of a person 'outlawed, taken |and sold on a levari facias. If A. requests B. to take goods, &c. A. is a trespasser. Trespass for taking forty-two sheep and two lambs ; the defendant justifies by virtue of a writ of leveri facias, upon an outlawry directed to the sheriff, who there- COMBEKBACH, MB. ANNO 9 WILL. III. IN B. R. 575 upon made his warrant to Anthony Powel and Joseph Powel, and because the said forty-two aheep and two lambs were then upon the lands, &c. levant and eouchant, the defendant requisivifc Anthony Powel and Joseph Powel to take them, ad fiend, de reddit. exit. & profic. super quo prsed. Johannes Powel and Joseph Powel took them, &e. the plaintiff demurs. The point in law is, whether the cattle of a stranger may be taken and sold by the sheriff upon a levari facias: But Shower and Northy pro quer', moved several exceptions to the plea : 1. That the defendant here pleads only the writ of levari, and the execution thereof, which is indeed sufficient to justify the officer, but a stranger, who commands the bailiffs to do execution, ought to set forth the outlawry, &c. 2. It doth not appear, that the writ was delivered to the sheriff, nor the warrant to the office. 1 Saund. 18, 'tis pleaded deliberat. Co. Entr. 42, 160, 655. [435] 3. Here is a resquest to Anthony and Joseph (to whom the warrant is directed) super quo John and Joseph took them, whereas John was not named before, so that here is no trespass confessed, as there ought to be, before it can be justified. To the first, Holt Ch. J. said, there seems to be a difference between one that comes under the officer, and one that sets the officer on work; as if there be no judgment, the officer is safe, but not the plaintiff who sets him on work; if judgment be set aside for irregularity, the officer is safe, but not the plaintiff who intermeddles; for which he cited the case of Turner and Felgate, anno 1655. (2 Sid. 125, S. C.) If there be judgment against one that is no tertenant, the demandant that recovered is a disseisor, but not the sheriff; so perhaps here you should not only shew, that there was a process, but also that there was an outlawry. If there be judgment against a casual ejector, and execution thereupon, 'tis a good warrant to the sheriff; yet if the plaintiff...
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