now extended in its operation to all lands, tenements, and hereditaments of which a debtor is seised or possessed, or of which he is cestui que trust. 51 law rule in king. In the case of a debt to the king however, as appears by CommonMagna Charta, c. 8, it was allowed by the common law for him debt to the to take possession of the lands of his debtor till the debt was paid. For he, being the grand superior and ultimate proprietor of all landed estates, might seize the lands into his own hands if anything was owing from the vassal, and could not be said to be defrauded of his services when the ouster of the vassal proceeded from his own command (h). This writ is called an elegit, because the plaintiff or conusee Why called an elegit. has made his election to sue out execution of the land itself; and it is given by this statute, instead of the common-law writs of execution of levari facias, or fieri facias, of the growing crops, or of the goods and chattels; the entry, when the proceedings were in Latin, being, that the plaintiff " elegit sibi liberari," &c. "omnia catalla debitoris (exceptis bobus et averiis carucæ) et medietatem terra" (i). Under this writ of execution the defendant's goods and chattels are not sold, but only appraised by a jury; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff at such reasonable appraisement and price in part satisfaction of his debt (k); the land being extended at a "reasonable extent" for the residue (1). This reasonable price and value is ascertained by the sheriff under the writ, on inquisition taken before a jury (m). that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments, and the value of such services, as well as the amount of the judgment, shall have been levied: Provided also, that as against purchasers, mortgagees, or creditors, who shall have become such before the time appointed for the commencement of this Act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case this Act had not passed." (h) 3 Bla. Com. 419; and see 2 Bla. Com. 105, as to the allodial right of the King in the soil, which (i) Co. Litt. 289. b. And see 2 (7) See note (e), ante, p. 49. 176. 52 Was for merly a full of the debt. Effect of Execution under an Elegit. [BK. I. Formerly, when an elegit had been sued out and was exsatisfaction tended upon the land of the defendant and returned and filed of record, it was considered in law as a full satisfaction and end of the suit, and a ca. sa. against the person of the debtor, or a fi. fa. against his goods and chattels, could not afterwards be sued out on the same judgment, the whole debt being considered satisfied under the elegit; for the creditor was "to hold the land until he be fully satisfied" (m). The reason of this is explained in Crawley v. Lidgeat (m): “ the taking of the land in extent for the debt being in judgment of law as if the plaintiff had taken a lease for years in satisfaction of the debt; that is, he elects to hold the land for so many years, till the debt be satisfied out of the rents and profits of it; and therefore he is not entitled to any other means of satisfaction by ca. sa. or fi. fa. (n). Though the debts were unsatisfied by plain. tiff's evic tion from the lands. Now, although the tenant by elegit, if "put out of the tenement," could then ". recover by a writ of novel disseisin, and afterwards by a writ of re-disseisin if need be (0), he could only do this if he were unlawfully evicted by one without any or with inferior title; but if the tenant by elegit were divested of the lands he held in execution by one having a title paramount to his own, that is, a better title than the debtor from whom he extended the lands, (as and in the nature of a "lease for years" till his debt was satisfied (p)), it is clear that he could not recover (m) Crawley v. Lidgeat, Cro. Jac. 339. See Fenny v. Durant, 1 B. & Al. 40; Morris v. Jones, 2 B. & C. 242. (n) 2 Arch. New Prac. 99; 1 Chitty's Arch. 8th ed. 604. (0) These writs were abolished by 3 & 4 Will. IV. c. 27, s. 33. (p) Crawley v. Lidgeat, Cro. Jac. p. 339; and see the law, as to writs of elegit generally, 2 V. Wms. Saund. 68 a, n.; and see Knowles v. Palmer, Cro. Eliz. 160; Bac. Abr. tit. Execution, D; Co. Inst. 395; Co. Litt. 289. b. ; 2 Tidd, 8th ed. 1077-1137. If lands, however trifling the value, be extended under an elegit, the party cannot afterwards sue out a fi. fa. or ca. sa. on the same judgment; but he may sue out other writs of elegit directed to the sheriffs of other counties; 2 Arch. New Prac. 99; Chitty's Arch. Prac. 8th ed. 606; and see Foster v. Jackson, Hob. 59. "An elegit in divers counties one after another the plaintiff may have as the books are ; H. 7, 19; 4 E. 5; Philip & Mary; Dyer, 162." Co. Litt. 290. a."Where a party takes an elegit and can have no fruit of it, he may resort to another execution, though the election be entered of record." "Upon the elegit, if there be no execution but upon goods, because there is no land, and the goods appear; I am of opinion the plaintiff may have a capias, for now it is in effect but a fi. fa., though the word be elegit. But if there be land extended it is otherwise." Hob. 59. The Statute 32 Hen. VIII. c. 5. CH. IV.] 53 Hen. VIII. To remedy this manifest deficiency of justice, the stat. 32 The remedy given by Hen. VIII. c. 5, was passed (q): which, after reciting that stat. 32 "Whereas before this time divers and sundry persons have c. 5. sued executions, as well upon judgments for them given of their debts and damages as upon such statutes merchant, statutes of the staple or recognizances, as have been to them before made, recognized, and knowledged; and thereupon such lands, tenements and other hereditaments as were liable to the same execution have been by reasonable extent to them delivered in execution for the satisfaction of their said debts and damages, according to the laws of this realm; nevertheless it hath been ofttimes seen that such lands, tenements, and hereditaments, so delivered and had in execution, have been recovered, or lawfully divested, taken away, or evicted from the possession of the said recoverors, obligees, or recognisees, their executors or assigns, before such time as they have been fully satisfied and paid off their said debts and damages, without any manner of fraud, deceit, covin, collusion, or other default in the said recoverors, obligees or recognisees, their executors or assigns, by reason whereof the said recoverors, obligees and recognisees have been thereby set clearly without remedy, by any manner suit of the law to recover or come by any such part or parcel of their said debts, and damages as was behind, and not by them levied or received, before such time as the said lands, tenements and other hereditaments, so by them had in execution were recovered, lawfully divested, taken or evicted out of and from their possessions, as is aforesaid, to their great hurt and loss, and much seeming to be against equal justice and good conscience"proceeds to enact :-" For reformation whereof, be it enacted, That if hereafter any such lands, tenements, or hereditaments, as be, or shall be had and delivered to any person or persons in (9) Bac. Abr. tit. Execution, B, 368. 54 The Statute 32 Hen. VIII. c. 5. [BK. I. execution, as is aforesaid, upon any just and lawful title, matter, condition or cause, wherewithal the said lands, tenements, and hereditaments were liable, tied and bound at such time as they were delivered and taken into execution, shall happen to be recovered, lawfully divested, taken or evicted out of and from the possession of any such person and persons, as now have and hold, or hereafter shall have and hold the same in execution as is aforesaid, without any fraud, deceit, covin, collusion, or other default of the said tenant or tenants by execution, before such time as the said tenants by execution, their executors or assigns, shall have fully and wholly levied or received the said whole debt and damages, for the which the said lands, tenements and other hereditaments were delivered and taken in execution as is aforesaid; then every such recoveror, obligee, and recognisee shall have and may have and pursue a writ of scire facias, out of the same court from whence the said former writ of execution did proceed, against such person or persons as the said writ of execution was first pursued, their heirs, executors, or assigns, of such lands, tenements, and hereditaments as were or been then liable or charged to the said execution, returnable into the same court at a certain day, being full forty days after the date of the same writ; at which day, if the defendant, being lawfully warned, make default, or appear and do not show and plead a sufficient matter or cause (other than the acceptance of the said lands, tenements, and hereditaments, by the said former writ of execution) to bar, avoid, or discharge the said suit for the residue of the said debt and damages remaining unlevied or unreceived by the said former execution, then the Lord Chancellor, or other such justice or justices before whom such writ of scire facias shall be returnable, shall make eftsoons a new writ or writs out of the said former record of judgment, statute merchant, statute staple or recognizances of like nature and effect as the said former writ of execution was, for the levying of the residue of all such debt and damage as then shall appear to be unlevied, unsatisfied or unpaid, of the whole sum or sums in the said former writ of execution contained, any law, custom, or other thing to the contrary hereof heretofore used in any wise notwithstanding" (r). This provision is re-enacted, in similar terms, by the 8th Geo. I. c. 25, s. 4, which provides that, "if it should happen (r) See 2 Co. Inst. 677; Bac. Abr. tit. Scire Facias, C, 135. Lord Coke, in his Commentary upon Lit tleton, 289. b., speaks of this enactment as 66 a profitable statute passed since Littleton wrote." CH. IV.] Remedy by Scire Facias on Eviction. that any lands, tenements, or hereditaments should thereafter be evicted from any person who should have extended the same," before sufficient had been extended and levied by virtue of any writ of extent, that then and in every such case, "the Court of Chancery shall and may award one or more re-extent or reextents for the satisfying the same." Under the provisions of these statutes, therefore, the tenant by elegit, if lawfully evicted before his debt is satisfied, has now his remedy over by writ of scire facias, to which writ of execution, if the defendant cannot plead a good bar, "other than the acceptance of the said lands, tenements or hereditaments, by the said former writ of execution," the plaintiff shall have a "writ of like nature and effect as the said former writ of execution was;" that is, by another elegit, or writ of execution of “like nature and effect," on which it would seem that the plaintiff or conusee has the same privileges as on the issuing of the original elegit; that is, if the sheriff return nihil to the writ (s), and the plaintiff "can have no fruit of it," the plaintiff or conusee may at his election sue out a fi. fa. against the debtor's goods and chattels, or a capias ad satisfaciendum (t) to take his person in satisfaction of the debt. the lands execution, But if part only, and not the whole, of the land be evicted; If part of indeed, if all but one acre be evicted, or the whole for a time taken in only, as by a prior judgment, the plaintiff or conusee cannot remain have a re-extent under these statutes, but must hold the residue till he be satisfied (u). If the chattels of the debtor are sufficient to satisfy the debt, the sheriff ought not to extend the land for the residue under this writ, as by the Statute of Westminster the Second, which gives the elegit, the lands are only to be extended "if the goods are not sufficient" (x). in plaintiff's hands, the statute does not apply. If no lands extended, the elegit If no lands be extended under an elegit, but part of the debt is levied on the debtor's goods and chattels under it," the elegit in nature is but in the nature of a common fi. fa. upon which if part be of a fieri levied the plaintiff may afterwards have a ca. sa. ; the election (8) Knowles v. Palmer, Cro. Eliz. 160. (t) Foster v. Jackson, Hob. 57, 58; Glascock v. Morgan, 1 Lev. 92; Cooper v. Langworth, Moor, 545, pl. 724; 3 Bla. Com. 419; Lancaster v. Fielder, 2 Ld. Raym. 1457; Pullen v. Purbeck, 12 Mod. 357. (u) Bac. Abr. tit. Scire Facias, C, 135; Fulwood's case, 4 Co. Rep. 66 a; Co. Litt. 289. b.; Crawley v. Lidgeat, Cro. Jac. 338; 2 V. Wms. Saund, 68 e, n. (x) 3 Bla. Com. p. 418; 2 Co. Inst. 395. facias. |