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46

Costs.

When must assign and when suggest Breaches. [BK. I. tion, but as to the part of which performance is not pleaded but is excused there must be a suggestion on the roll; "or, if the matter of excuse is traversed, then there must be no assignment, but a suggestion of breaches, the truth of which, without any issue, must be tried with a view to ascertain the amount of damages, if the issue on the traverse is found for the plaintiff, otherwise not" (a). The statute does not authorize any other double pleading in a replication than the multiplication of such breaches as might be properly assigned at common law (y).

On any further breach of covenants or agreements, or nonpayment of further instalments, or of an annuity, after judg ment entered up, as seen by the section of the act (z), the plaintiff may have a scire facias assigning or suggesting such further breaches or non-payments, and calling on the defendant to show cause why execution should not be had for the same on the judgment, "upon which there shall be the like proceedings as were in the action of debt upon the bond, for assessing of damages upon the trial of issues joined upon such breaches, or upon inquiry thereof upon a writ to be awarded in manner as aforesaid." The rules and decisions therefore relative to assigning or suggesting breaches, in the original action, as above referred to, will be applicable to the proceedings on scire facias (a). In practice, however, it is usual, after reciting the judgment recovered and the prior breaches, to allege or assign the further breach in the declaration.

The plaintiff is entitled to costs on the scire facias by the 3 & 4 Will. IV. c. 42, s. 34 (b). And this was the case even before this statute under the decisions on the stat. of 8 & 9 Will. III. (c).

(x) Per Parke, B., in Webb v.
James, 8 M. & W. 658; and see 2 V.
Wms. Saund. 187 c.

(y) Webb v. James, ubi supra.
(z) Ante, p. 32, n. (b).
(a) For references to the forms see
Appendix, post.

(b) The following is the section,
"That in all writs of scire facias, the
plaintiff obtaining judgment on an
award of execution shall recover his
costs of suit upon a judgment by de-
fault, as well as upon a judgment

after plea pleaded, or demurrer join-
ed; and that where judgment shall
be given either for or against a plain-
tiff or demandant, or for or against
a defendant or tenant, upon any de-
murrer joined in any action whatever,
the party in whose favour such judg-
ment shall be given shall also have
judgment to recover his costs in that
behalf."

(c) Brook v. Booth, 11 East, 387;
1 V. Wms. Saund. 58 h.

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CHAPTER IV.

TO LEVY RESIDUE OF DEBT AFTER EVICTION FROM
POSSESSION UNDER AN ELEGIT.

When necessary, p. 47.

Remedy for Debts at Common
Law, p. 47.

Of the Writ of Elegit, p. 48.
Common-law Rule in Debt to the
King, p. 51.

Why called an Elegit, p. 51.
Was formerly a full Satisfaction

of the Debt, P. 52.
Though the Debt were unsatisfied
by the Plaintiff's Eviction from

the Lands, p. 52.

The Remedy given by Stat. 32
Hen. VIII. c. 5,

p. 53.
If Part of the Lands taken in
Execution remainin Plaintiff's
Hands, the Statute does not ap-
ply, p. 55.

If no Lands are extended the Ele-
git is in the nature of a Fi. Fa.
p. 55.

Form of Writ, p. 57.

cessary.

A WRIT of scire facias is necessary to enable a plaintiff who has When nealready levied a part of his judgment debt, or debt of record, by means of a writ of elegit, to levy the residue of his debt, when from some cause or other he becomes dispossessed of the lands extended, and cannot levy the residue of the debt under the elegit.

In order more perfectly to explain why a scire facias is required in such a case (adopting the recommendation of Lord Coke, to endeavour to discover "the reason of the law, which is the life of the law" (a), " Fœlix qui potuit rerum cognoscere causas”), it becomes necessary briefly to describe the nature and effect of the writ of elegit.

debts at the

At the common law there existed but two writs of execution Remedy for for the subject on a recognizance, or judgment recovered for common debt, or damages (b), either of which it was necessary to sue out

(a) Co. Litt. 183. b.

(b) Unless the damages were given in an action of trespass vi et armis; for where the act was committed with force, the law allowed the defendant to be arrested on mesne process; and

it was a rule that wherever a capias
ad respondendum lay in process, a
capias ad satisfaciendum would lie
after judgment, 2 V. Wms. Saund.
68; and see Sir William Herbert's
case, 3 Co. Rep. fol. 11.

law.

48

Of the writ of elegit.

Writs which lay at Common Law.

[BK. I. within a year after the recognizance or judgment; one a writ of levari facias, by which the sheriff might levy the corn, and other present profit which grew upon the land, and the rents payable by the tenants, and the beasts levant and couchant upon the land, the land in all such cases being considered as the debtor (c); and the other a writ of fieri facias, by which the sheriff was to seize the conusor's or the defendant's goods and chattels in execution (d).

The Statute of Westminster the Second (13 Edw. I.), c. 18, the same which gives the writ of scire facias in personal actions, first changed the old common-law rule, and gave to plaintiffs a writ of elegit under which the sheriff was to deliver to the plaintiff possession of one half of the defendant's land until

(c) Davy v. Pepys, Plowd. 441; Breton v. Cole, Skin. 619; 2 V. Wms. Saund. 68; 3 Bla. Com. 418.

(d) It is worthy of remark how modern enlightenment and civilization are, with respect to imprisonment for debt, slowly bringing back the statute law to the wise provisions of the old common law, under which all a man's goods and profits were liable to his creditors, but his person was free, and his possession of his land was protected, that he might earn further profits, for the benefit of his family, his creditors, and the country. When this sound principle shall be once again fully re-established, we shall look at the enactments on our statute book, for imprisoning men for debt, and caging them up from all possibility of effort to wipe out the debt or to support their families, and for making them a burden on the community, on whom their support is thus thrown, as barbarisms alike cruel and impolitic. It is worth while extracting Lord Coke's Commentary on the common-law rule. "At the common law, where a subject sued execution upon a judgment for debt or damages, he should not have the body of the defendant, or his land in execution (unless it were in speciall cases); and the reason of the law

was, that the body in case of debt,
should not be detained in prison, but
be at liberty, not onely to follow his
owne affairs and businesse, but also to
serve the King and his country when
need should require; nor to take
away the possession of his lands in
that case,
for that would hinder the

following of his husbandry and tillage,
which is so beneficiall to the common
wealth, whereof you may reade at
large in Sir William Herbert's case.

"But by the common law he should have execution in that case, onely of his goods and chattels, and of his corne and other present profit that grew upon his land, to which purpose the law gave him two severall writs, to be sued within the yeare, one a levari facias, whereby the sheriffe was commanded, quod de terris et catallis ipsius A. levari fac', and the other called a fi. fa., which also was onely de bonis et catallis."

In Sir William Herbert's case, 3 Co. Rep. fol. 11, it was, after argument "resolved at the common law (except in special cases), neither land nor body was liable to execution in debt, or damages recovered; but execution was to be done by fieri facias, or levari facias of his goods and chattels, and profits growing upon his land."

CH. IV.] Effect of 10th Section of Statute of Frauds.

the debt should be levied, "upon a reasonable price or extenť” (e).

The 10th sect. of the Statute of Frauds (29 Car. II. c. 3) rendered liable "all such lands, tenements, rectories, tithes, rents and hereditaments" of a debtor, "as any other person or persons be in any manner or wise seised or possessed in trust for him" to execution by elegit, upon any judgment, statute, or recognizance thereafter to be obtained or made (ƒ). And, by the 1 & 2 Vict. c. 110, s. 11, the application of the

(e) That is, according to the reasonable yearly value of the land. The word "price" is referable to the defendant's goods and chattels, and "extent" to the defendant's land; Palmer's case, 4 Rep. 74 b; 2 V. Wms. Saund. 68 g, n.

The following is the section of the Statute of West. 2, (13 Edw. I. c. 18,) which gives the writ of elegit : "When debt is recovered or knowledged in the King's Court, or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages, to have a writ of fi. fa. unto the sheriff for to levy the debt of the lands and goods; or that the sheriff shall deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough), and the one-half of his land, until the debt be levied upon a reasonable price or extent. And if he be put out of that tenement, he shall recover by a writ of novel disseisin, and after by a writ of re-disseisin, if need be." (The writs of novel disseisin and re-disseisin are now abolished.)

(f) The following is the section : "And be it further enacted, that it shall and may be lawful for every sheriff or other officer, to whom any writ or precept is or shall be directed, at the suit of any person or persons, of, for, and upon any judgment, statute, or recognizance hereafter to be made or had, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, tene

ments, rectories, tithes, rents, and hereditaments, as any other person or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed, in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution hereafter shall be so sued had been seised of such lands, tenements, rectories, tithes, rents, or other hereditaments of such estate as they be seised of, in trust for him at the time of the said execution sued; which lands, tenements, rectories, tithes, rents, and other hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged from all incumbrances of such person or persons, as shall be seised or possessed in trust for the person against whom such execution shall be sued ; and if any cestui que trust hereafter shall die, leaving a trust in fee simple to descend to his heir, then, and in every such case, such trust shall be deemed and taken, and is hereby declared to be assets by descent, and the heir shall be liable to and chargeable with the obligations of his ancestors, for and by reason of such assets, as fully and amply as he might or ought to have been if the estate in law had descended to him in possession in like manner as the trust descended; any law, custom or usage to the contrary in any wise notwithstanding."

E

49

50

The Writ of Elegit now extends to all the Lands. [Bк. I. writ of elegit was made to extend to "all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him shall have been seised or possessed of at the time of entering up such judgment, or at any time afterwards have any disposing power which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff, or other officer, may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out" (g). The writ therefore is

(g) See the forms of the writ of elegit, as altered by the stat. of Victoria; 9 Ad. & E. 986; 4 M. & W. 546.

The following is the 11th section of the 1 & 2 Vict. c. 110, enlarging the operation of the writ of elegit :

"And whereas the existing law is defective in not providing adequate means for enabling judgment creditors to obtain satisfaction from the property of their debtors, and it is expedient to give judgment creditors more effectual remedies against the real and personal estate of their debtors than they possess under the existing law; be it therefore further enacted, That it shall be lawful for the sheriff or other officer, to whom any writ of elegit, or any precept in pursuance thereof, shall be directed, at the suit of any person, upon any judgment which at the time appointed for the commencement of this Act shall have been recovered, or shall be thereafter recovered, in any action in any of her Majesty's superior Courts at Westminster, to make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised

or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out; which lands, tenements, rectories, tithes, rents, and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the Court out of which such execution shall have been sued out, as a tenant by elegit is now subject to in a Court of equity: Provided always, that such party suing out execution, and to whom any copyhold or customary lands shall be so delivered in execution, shall be liable, and is hereby required to make, perform, and render to the lord of the manor or other person entitled, all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform, and render, in case such execution had not issued; and

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