Mounson against Cleyton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 810
IN THE KING'S BENCH.
[240] case 24. mounson against cleyton. Trinity Term, 6 Car. 1. Eoll 1343. If a man taken in execution be rescued, the plaintiff may have a new ca. sa. or a scire facias on the judgment. Ante, 75. 109. 153. Post. 255. 29 Ass. pi. 41. 3 Co. 44. 52. Moor, 57. 354. F. N. B. 246. Hobart, 60. Yelv. 52. Cro. Eliz. 478. Cro. Jac. 486. 2 Jones, 21. 97. 1 Vent. 269. Lutw. 1266. 1 Show. 174. 249. Carth. 212. 3 Com. Dig. 185. Sdre facias to have execution upon a judgment in debt. The defendant pleads, that at another time the plaintiff had sued execution by a capias ad satisfaciendum, and the defendant was taken in execution. The plaintiff replies, that true it is he sued a capias ad satisfaciendum, and the defendant was taken thereupon; but he presently rescued himself and escaped. The defendant demurs thereupon. And all the Court conceived, that the replication was good : for the plaintiff, not having the fruit of his execution, may have a new execution ; and it is not reason the defendant should take advantage de son tort demesne: and as there is no cause for. the defendant to have an avdita querelu when he is escaped and taken again, unless it be for a voluntary permission by the sheriff; so there is not any bar for him to have new execution : and although it is no good return upon a capias ad satisfaciendum, that the defendant rescued himself (for the sheriff at his own peril ought to have kept him), nor any plea in debt upon an escape, yet the party himself shall never take advantage of his own tortious act. And as it was said, that it appears the plaintiff might have his remedy as well against the sheriff' as against the defendant; so it was answered, that doth not take away his remedy against the party who escaped, unless the defendant shews that the plaintiff had sued the sheriff and recovered against him; and it may be the sheriff here is dead, and then no power to sue his executors. Wherefore, it appearing that the remedy remains against the party himself, rule was given that judgment should be entered for the plaintiff, unless, &c. See 8 & 9 Will. 3. c. 27.
English Reports Citation: 79 E.R. 823
IN THE KING'S BENCH.
case 7. mounson against cleyton. Seire facias may bo had on a judgment against a defendant who has escaped, notwithstanding the plaintiff...
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