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The Object of the Statute.

[BK. I. is not complete unless the plaintiff has some benefit from the land, for the taking out the writ is not an actual election, but only in order to an election; and if there be no lands there is nothing to choose, and, consequently, no election" (y).

The object of the statute was strictly equitable; for, while on the one hand it gave a judgment creditor additional means of obtaining satisfaction of his debt if he were ousted of his possession of lands which he had extended, yet it did not give him the right to further writs of execution, without giving the judgment debtor an opportunity of pleading in bar of the further execution if he had any sufficient answer; which could not be done to a mere writ of execution (*). The statute therefore rendered a scire facias necessary, in which the judgment creditor must not only set forth all the proceedings that have been taken, but must show how much has been levied in execution, and the judgment debtor has then opportunity to question that amount, and show if he can that the whole debt has been levied, in bar of further execution, or that the judgment creditor has extended a portion of his lands from which his creditor is not evicted, and from which his creditor has a remedy in futuro (a).

The Courts also early decided that the equivalent remedy would lie, and that the judgment creditor might if he thought fit, in lieu of a scire facias, bring his action of debt on the judgment for the residue of the debt unlevied, to which of course the judgment debtor would have the same opportunity of pleading any answer he might have (b).

The succeeding statutes and modern decisions have not changed the principle thus laid down in the Statute of Westminster; and, if a debtor's lands be extended and the creditor be evicted before he have obtained satisfaction of his debt, he cannot issue further writs of execution without a scire facias, though he may bring his action of debt on the unsatisfied judgment (c)

(y) Beacon v. Peck, 1 Stra. 226; Lancaster v. Fielder, 2 Ld. Raym. 1451; Knowles v. Palmer, Cro. Eliz. 160.

the

(z) "To a fi. fa., or a ca. sa., defendant has no opportunity of pleading;" Holmes v. Newlands, 5 Q. B. 370, per Lord Denman.

(a) Bac. Abr. tit. Execution, B, 368.

(b) Glascock v. Morgan, 1 Lev. 92; Hesse v. Stephenson, 1 N. R. 133; Green v. Elgie, 1 Dowl. P. C. 344; Holmes v. Newlands, 5 Q. B. 370, per Lord Denman.

(c) Holmes v. Newlands, 5 Q. B. 367; Clerk v. Withers, 2 Ld. Raym. 1075; Glascock v. Morgan, 1 Lev.

92.

CH. IV.]

Sci. fa. after eviction under an Elegit.

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In the recent case of the Mayor, Aldermen, and Burgesses of the Borough of Poole v. Whitt (d), in which the plaintiffs sued on a covenant for rent, and the defendant pleaded that one Parr had recovered judgment against the plaintiffs on a bond, and sued out an elegit against their lands and evicted the defendant, the law relating to the writ of elegit was much discussed, and Platt, B., in giving judgment said, " Since 29 Car. II. c. 3, s. 10 (e), the writ of elegit reaches as well the equitable interests of the debtor, being cestui que trust, as by 13 Edw. I. c. 18 it did his freehold interests. Then the only change worked by 1 & 2 Vict. c. 110, s. 11, in cases not affected by the proviso at the end, (ƒ) is that the subject-matter of the execution is altered to the whole instead of a moiety of the lands."

The rule laid down therefore in the statute, and in Coke's commentary upon it (g), and in the old cases, is unchanged; and, in the case referred to in the statute of Hen. VIII., a scire facias is the proper remedy to recover the residue of the debt, after a tenant by elegit has been evicted before he has obtained satisfaction of his debt.

writ.

As to the form of the writ, it must recite the judgment Form of recovered, the election of the writ of elegit by the judgment creditor, and what was levied under it. It must then recite the lawful eviction of the judgment creditor from the possession of the lands so delivered in execution before the satisfaction of his debt, and conclude in the ordinary way with warning the defendant to show any cause he may have why execution for the residue of the debt should not issue against him (h).

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When it

lies.

CHAPTER V.

SCIRE FACIAS AD REHABENDAM TERRAM.

When it lies, p. 58.

When not necessary, p. 59.

When necessary. in case of an Elegit
upon a Judgment, or Recogni-
zance at Common Law, p. 59.
On Tender in Court of Residue of
Debt, p. 60.

When Satisfaction of the Debt has
arisen from accidental Profits,
p. 60.

Does not lie upon a general Aver-
ment that the Debt has been le-
vied, p. 60.

The Defendant may also have a
Scire facias to account, p. 61.
Necessary in all Cases on an Extent

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A scire facias ad rehabendam terram lies for avoiding executions by elegit upon judgments, recognizances, or statutes, which have been justly obtained at first, but which, having been satisfied, ought to cease (a). If execution on a judgment, recognizance, or statute have been unjustly obtained at first, the remedy for the defendant or conusor is by writ of audita querela, or by motion in court (b).

The writ of scire facias ad rehabendam terram lies for a defendant or conusor to recover back his land, extended by the plaintiff or conusee by writ of elegit, when the plaintiff has fully satisfied his debt by accidental profits which do not appear in the extent (e);

(a) 2 Rol. Abr. 880; Bac. Abr. tit. Scire Facias, 135; Ib. tit. Execution, p. 374; 2 V. Wms. Saund. 72 ff, n. 6.

(b) Com. Dig. Audita Querela, A; Bac. Abr. Audita Querela, 424; Turner v. Davies, 2 V. Wms. Saund.

147, n. 1; Snook v. Mattock, 5
Ad. & El. 245; Lester v. Mundell, 1
B. & P. 428; Mitford v. Cardwell, 2
Stra. 1198.

(c) Bac. Abr. tit. Scire Facias, 136.

CH. V.]

Scire Facias ad Rehabendam Terram.

59

or if the judgment be on a statute merchant, or staple, if he have fully satisfied his debt, costs, and damages (d), out of the extended value of the land, and still retain possession of it.

We will take separately each case in which the writ is neces

sary.

necessary.

It has been seen, by the last chapter, that when the plaintiff or conusor has elected to issue a writ of elegit to have execution on a judgment against his debtor's lands, they are to be delivered to him at "a reasonable price or extent;" that is, according to the reasonable yearly value of the land (e), "until the debt be levied "(f). And this has been construed to mean not simply until the debt is, When not but until it may be levied without his wilful default (g). When therefore the debt is certain, and it appears on the record as in a judgment or recognizance, and the yearly value of the land has been ascertained and settled in the extent, it is mere matter of computation when the debt shall have been satisfied; and in such a case, when the debt has been paid by the perception of the usual and ordinary profits of the land so settled, there is no act on record to oppose the debtor's re-entry on his lands. A scire facias is then not necessary, but the debtor may lawfully re-enter, or may bring his action of ejectment (h) against the tenant by elegit, if he continues to retain possession of the lands (i).

or recog

common

But if the defendant or conusor, in an elegit upon a judgment When necessary, in or recognizance at common law, bring the whole of the debt into case of an elegit upon a Court, and tender it to the plaintiff or conusee, and he refuse to judgment accept it, or if he have a release from the plaintiff or conusee, or nizance at have paid him the money and has his acquittance before the law. tenant by elegit can have been satisfied for the debt out of the extended value of the land, the defendant or conusor must have a seire facias to recover the lands within the time of the extent, and he cannot re-enter upon his lands, or proceed by ejectment against

(d) 2 Inst. p. 680.

(e) See ante, ch. iv. p. 49, and n. (e).

(f) See sect. of Stat. West. 2 (13 Edw. I.), c. 18; ante, p. 49.

(g) 2 V. Wms. Saund. 72 ff, n. 6; Sir Andrew Corbett's case, 4 Co. Rep. 81. "Otherwise he which is to levy the sum, by deferring to do it may exclude the reversioner for ever."

(h) 1 Chitty's Arch. Prac. 607, 8th ed.; Bac. Abr. tit. Scire Facias, 136;

2 V. Wms. Saund. 72 gg, n.; Bac.
Abr. tit. Execution, 374.

(i) But it has been held, that if
tenant by elegit or statute neglect to
take the profits, the defendant or conu-
sor, at the time when the debt might
have been satisfied thereout, may sue
out a scire facias to have his land
again, though he cannot in such case
enter, that is, bring an ejectment; Sir
Andrew Corbett's case, 4 Co. Rep.
82 a; 2 V. Wms. Saund. 72 ff, n. 6.

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On tender in court of

debt.

Where Satisfaction of the Debt has accidentally arisen. [Bк. I.

the plaintiff or conusee; because the possession of the plaintiff or conusee being founded upon matter of record, is not to be taken away by entry before he has an opportunity of answering in a Court of record (j).

So, "if the plaintiff or conusee has levied part of the debt acresidue of cording to the extent, the defendant or conusor, upon tender of the residue in Court, on its acceptance being refused by the plaintiff or conusee, shall have a scire facias to recover the lands within the time of the extent: for here it appears on record how much was due at first, how much was paid, and what remains due and in arrear; and the end of the extent being to satisfy the conusor of his just debt, whenever that appears to the Court the extent shall cease (k). But if the defendant or conusor had tendered the remainder of the debt out of Court, or if in Court he had only offered to come to an agreement with the plaintiff or conusee, in neither of these cases should the scire facias be granted, because it does not appear on record that the debt is paid” (1).

Where satisfaction of

arisen from accidental

profits.

So, where satisfaction of the debt has arisen from accidental the debt has profits (m), which do not appear in the valuation of the land settled by the extent on record, as where the plaintiff or conusee has levied part by cutting wood and has received the residue, as appears by an acquittance, the defendant or conusor shall have a scire facias; and "the reason is, because the end of the extent being only to satisfy the conusee his reasonable demands, whenever it appears to the Court that they are answered, whether it be by perception of the profits or otherwise, they will grant a scire facias to avoid the extent, and reinstate the conusor in his former possession, since the end for which the extent was given is answered" (n).

Does not lie

upon a ge

neral aver

ment that

the debt has

been levied.

But no scire facias lies upon a general averment that the plaintiff or conusee has levied the debt before the time of the extent expired, because this may happen by the plaintiff's or conusee's industry in improving the land which the debtor can take no

(j) 2 Rol. Abr. 479, D, pl. 2; 2 V. Wms. Saund. 72 gg, and authorities there quoted; and see a precedent to have delivery of lands extended by elegit in debt; Rastell's Entries, 164, B.

(k) See precedent of scire facias to have delivery of lands extended by elegit, when plaintiff has levied part of the money, and the defendant is pre

pared to pay part of the residue, and brings the money into Court, which plaintiff received; Veteres Intrationes, 138; Moyle's Entries, 101.

(1) Bac. Abr. tit. Execution, 375. (m) Bac. Abr. ubi supra.

(n) 2 Rol. Abr. 482; Bac. Abr. tit. Scire Facias, 136; Ibid. tit. Execution, 375.

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