Page:The English Reports v74 1907.pdf/372
364 Western and Weild's Case 2 Leonard, 68
challenged, because contrary to the verdict: as in a replevin, no such beast, is not a good retoro, but averia elongata; or riullus venit ex parte querentis ad monstrand. averia: and here the sheriff might have retonled, devastavit, which welI stands with the verdict, 5 H37. 27, But as to tbat, it was said by the Barons, that it is true, that the sheriff of the county where the writ was brought, is concluded by the verdict, to make any retorn contrary to it ; but the sherig of another eoiinty shali not 80 be; but the sheriff of the couiity where the writ is brought ou d e v ~ $ t a ~bict.~and thereupo~ithe p ~ a i r i t shall i ~ have process into another eounty ; but the question farther waa : If a scire facias upon t e s t ~ t ~ shall i n ~ issue into another o where ~ the~ writ~is ~rought, ~ bad r e t o r i ~ e ~ ~ o ~ ~before n t ~that , the sheriff of the c a ~ ~ e v a a t ~for v ~some t concei~~ed, that a d e v ~ t a v iwhere t the writ was brou~ht,ought first ta be retorned, and then upon a t e s ~ t ~ ~process m , should issuc forth into any
- hut others were of opinion, that without a devastavit retor~~ed
county witbin Eri~lar~d upon a testatum, process might be sued forth jmntedi~te~y into any other eounty. ~ i l I ~ said, a ~ If a I recover goods by action brought iri Midd. I may upon a testatt~m, have a capias into any foreign county.
f68J TRIN.31 E t E .
XCI, ~
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1x1a writ of ~ c c o ~bp~t o ~ ~in g ~h t5 n ~ ~the o rd~e f,e t ~ d apTechnolalia (talk)et a ~ enever d , his receiver, ancl j u ~ g ~ e tgiven, it that the cIe€e~i~lat~t should Be., which was f o u ~ ~fnr d the pla~Iitj~, b r o u ~ h this writ of privi~cge: aid if the same accompt ; ~fterward8the defenda~~t shoutd be allowed after judgmeI~t?was the question : Coke, It shall be, allowed, €or the d e f e ~ d ~ rhath i t not surceased his time. This judgmerit to accompt is not properly a judgmeut, for no writ of error lietb upon it before the accompt be ended : ~ a I ~ w o ~ ~ e g u l ~after r ~ ~j u, ~ ~ ~ enon privilege t, shall be allowed, but that is to be iI~tendedof a judgment ended ; but here, n o t ~ ~ i t h s ~this ~ ~j ~ ~i d~gi ~ge :the i t , action is depeiIdir~~, and therefore he coriceived that the privilege should be allowed in this case. It was objected, tbat then the plaintiff should be at great mischief, for he should lose the a d v a n ~ g eof his trial ; for he must begin again, and plead again, arid have a new trial. Clark, The plaintjff shall have benefit of his former trial by way of evidence. TRIN. 27
EtE.
I N THE G O ~ l ~PLEAS, ~ ~ N ROT.
1353.
XCII. BRIANAND C ~ ~ Y ~CASE. ~ N ’ S
In an ~ t i o nof ~ r e s p a ~bys Brian and his wife, and others, against Cawset~; t h a t ill^^ Gardiner was seised in fee, according to the castonte of the mamr of C. of certain lands, and su~~endred them to the use of his last will ; by which he devised them in this manner; i.I bequeath to John Th. my house and land in M. called Larks arid Sone : to Step, Th, my house and land, called Stokes and Newnians, and to Roger Th, my house arid lands, called Lakins and Brox. Moreover, if the said John, Stephen or Roger, live till they be of lawfiitl age, and have issue of their bodies, lawfully begotten, then I give the said lands and houses to them and their heirs i t 1 nianner aforesaid, to give and sell at their pleasure ; but if it fortiine one af them to die without issue of his body, lawfui~ybegotten, then I will that the other bothers, or brother^ have all the said houses and lands in manner aforesaid : arid if it fortune the three to die ~ ~ t ~issue, o u itn like ~ a ~ I ~then ~ e Ir will, , that ali the said ~ 0 arid1 lands be sold by my exec~~tor, or his assigns, and the motley to be given to the poor : the devisor dieth ; John, Stepher1 and Eoger are a ~ ~ i t taccortling e(~ to the intent of ~ ~ t John and Stephen are ad mitt^^^ to his the will, Roger dieth within age, w ~ t h o issue, part, Jobit comes of full age, arid hath issue, J. and surreuders all h i s part oE the whole, and his estate therein, to the use of Stephen and his heirs, who is admittc~~
- Stepherr conies of fit11 age, John the father dieth, Stepben dieth without
ae~o~dingly issue, John the son, as cosin and heir of Stephcn i s admitted, according to the will, and afterwards dieth without issue, the wives of the ~ ) l a j ~ ~are t i ~heirs to him, and