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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 subProviso as ject to in a Court of Equity; provided always, to copyhold that such party suing out execution, and to

lands.

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 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

gagees, or

the judgment, shall have been levied: provided Proviso as also, that as against purchasers, mortgagees, or to purchacreditors, who shall have become such before sers, mortthe time appointed for the commencement of this creditors. 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.

At common law no execution lay against the lands of a defendant at the suit of a subject. The levari facias only authorized the sheriff to levy the rents and profits accruing from time to time until the judgment was satisfied, but he could not take possession of the lands themselves (u): so that if the defendant aliened, the plaintiff was ousted of his execution (v). In two instances, however, the lands themselves might have been extended, viz. for debts due to the crown, and, as against the heir upon an obligation of his ancestor; and in these cases the whole of the lands were delivered to be held until the debt was paid (x).

In this state of the law came the statute of Acton Burnell (y), and the statute De Mercatoribus (z), and in the same reign the statute of Westm. 2(a), which gave the writ of elegit. It is so called from the language of the enactment: "when a debt is recovered or acknowledged in the King's Court, or damages awarded, it shall be in the election of him who sues for such debt or damages, to have a writ of fieri facias to the sheriff for levying the debt of the lands and chattels, or that the sheriff deliver to him all the chattels of the debtor, (saving only his oxen and beasts of his plough,) and a moiety of his lands, until the debt be levied by a reasonable price or

(u) Co. Rep. 3-12; Finch L. 471.

v) Bla. Com. 3, 418.

(x) Co. Rep. 3-12; Plowd. 441 a; Cro. Jac. 450. (y) 11 Ed. 1.

(3) 13 Ed. 1.

(a) 13 Ed. 1, c. 18.

extent, and if he be evicted he shall recover by writ of novel disseisin, and afterwards by writ of re-disseisin, if there be occasion." These were followed by the statutes of 27 Ed. 3, c. 9, and 23 Hen. 8, c. 6, by virtue of which a creditor, by judgment or recognizance, might have execution of a moiety, and the conusee of a statute merchant, statute staple, and recognizance in the nature of a statute staple, of all the lands which the debtor or conusor had at the date of the judgment or recognizance, into whose ever hands they might subsequently have fallen. These latter securities are now unknown in practice, having given way to the more convenient practice of confessing judgment by warrant of attorney.

The lands of cestui que use were made liable to execution by statute 1 Rich. III. c. 1, but when, by the statute of 27 Hen. VIII. c. 10, uses came to be executed, and a new estate arose under the denomination of trusts, these were protected. Hence the statute 29 Chas. II. c. 3, s. 10, which subjected trust estates to execution against the cestui que trust in the same manner as if he had been seised of the legal estate. The old writ of elegit therefore ran in this form. After reciting the judgment: "And afterwards the said (plaintiff) came into our Court before us at Westminster, and according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said (defendant), except his oxen and beasts of the plough, and also a moiety of all the lands and tenements of the said (defendant) in your bailiwick, to hold, &c. Therefore we command you, that without delay you cause to be delivered to the said (plaintiff), by a reasonable price and extent, all the goods and chattels of the said (defendant) in your bailiwick, except his oxen and beasts of the plough, and also a moiety of all the lands and tenements in your bailiwick, whereof the said (defendant), or any person or persons in trust for him, on the day of in the

year

of our reign [the day of signing judgment], on which day the judgment aforesaid was given, or ever afterwards was seised, to hold the said goods and chattels to the said (plaintiff), as his proper goods and chattels, and also to hold the said moiety of the lands and tenements aforesaid to him and his assigns as his freehold, according to the form of the statute aforesaid, until the debt and damages aforesaid shall be thereof fully levied; and in what manner you shall have executed this our writ make appear to us at Westminster immediately after the execution hereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement."

The remedy afforded by this writ was very inefficient. Copyholds could not be extended (b), nor a term of years outstanding in a trustee (c); and though the judgment bound the land of which the defendant himself was seised from the time it was signed, though he might afterwards have conveyed it away, trust estates were bound only from the issuing of the writ, so that if the trustee aliened before the writ issued, the plaintiff had no remedy (d). So the assignment of a legal term before the writ was delivered to the sheriff was good against the execution, though if vested in the defendant at that time it might either have been taken as a chattel under a fieri facias, or extended under an elegit (e). And where an estate was limited to such persons, for such estates and interests, and to such uses as A. should appoint, and in the meantime and in default of appointment to A. in fee, it was held that the execution of the power by A. after a judgment obtained against him, and before an elegit issued, defeated the judgment lien (ƒ).

(b) 1 Roll. 888.

(c) 2 Vern. 248. (d) Hunt v. Coles, Com. Rep. 226; Harris v. Pugh, 4 Bing.

335.

(e) 2 Inst. 395.

(f) Doe d. Wigan v. Jones, 10 B. & C. 459. This decision

C

To execute the writ the sheriff was to impanel a jury, who were charged to ascertain what goods and chattels the defendant had, and also to inquire of his lands and tenements, their situation and description, what estate he had in them, in whose occupation, and their net annual value. The jury must also have set a value upon the goods and chattels, by virtue of the words in the statute, "reasonable price and extent" (g). The latter, saving beasts of the plough, were then to be delivered to the plaintiff at the price assessed, not sold, as on a fieri facias, and if these were not sufficient (h), then a moiety of such lands as were extendible were to be delivered also. And the sheriff must have ascertained the exact moiety (į) and set it out by metes and bounds (k), otherwise the inquisition was void. For these reasons the writ of elegit was seldom resorted to; the judgment indeed operated as a passive incumbrance on the land, and clogged its alienation, and this was the main beneficial effect of the above statutes, at least in modern times.

It would be desirable that the first branch of the elegit should be altered into a fieri facias, but it may be questionable whether the 20th section extends so far; such an alteration does not seem necessary or expedient" for giving effect to this or any other provision in the Act (1).

66

Any judgment.]-At the time the Statute of Westminster was passed, no costs were allowed to a de

has since been followed in equity, Skeeles v. Shearley, 3 M. & C. 112.

(g) Price referring to goods and extent to lands, 2 Inst. 395. (h) 2 Inst. 395.

(i) Berry v. Wheeler, 1 Sid. 91, 239.

(k) Pullen v. Birkbeck, Carth. 453; Farray v. Durrant, 1 B. & Ald. 40.

(1) Instead of an elegit, the bill, as it was introduced into the House of Lords, authorized a new writ for this purpose in nature of a fieri facias and habere facias possessionem. The alteration was made in the committee.

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