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day of A.D. 18-a was possessed of his own right of the goods and chattels following, that is to say of the value or price of £-- which said goods and chattels I the said Sheriff have caused to be delivered to the said A. B. to hold the said goods and chattels as his own proper goods and chattels in part satisfaction of the sum and interest in the said writ mentioned.b And the jurors aforesaid upon their oath further say that the said C. D. [or "one W. C. in trust for the said C. D."] was on [&c.] seised in his demesne as of fee of and in a dwelling house and farm with the appurtenants commonly called or known by the name of Pd situate and being in the parish of in the county aforesaid; that is to say one messuage fifty acres of arable land &c. of the clear yearly value of £in all issues beyond reprizes [or " of freehold for and during the term of his natural life" or "of and in one undivided moiety of and in &c." or "in his demesne as of fee at the will of the lord according to the custom of the manor of in the county aforesaid " or " that the said C. D. on &c. was seised as of fee and right [or of freehold for and during the term of his natural life'] of and in a certain rent charge [orannuity'] of £ payable by four equal quarterly payments on &c. and charged and chargeable upon and issuing and payable out of certain lands and premises with the appurtenants situate and being in the parish of in the county aforesaid " or "that the said C. D. on &c. had a certain disposing power over (stating the nature of the power) which power he the said C. D. might without the assent of any other person have exercised for his own benefit" [if in mortgage say "which said &c. are subject to a certain mortgage to one E. F. of by indenture bearing date &c. subject to redemption on payment of £- and interest at five per cent. per annum at a day mentioned "] which said I the said Sheriff on the aforesaid day of taking this inquisition have caused to be delivered to the said A. B. (subject as aforesaid if in mortgage) to hold according to the nature and tenure thereof to him and his assigns according to the form of the statute in such case made and provided until the sum and interest in the said writ mentioned shall have been levied And lastly the jurors aforesaid upon their oath aforesaid say that the said C. D. in the said writ named on [&c.] had not any other or more goods or chattels in my bailiwick nor had he or any person in trust for him on [&c.] on which day the judgment aforesaid was entered up or at any time afterwards any other or more lands or tenements nor any rectory tithes rents or hereditaments in the county aforesaid whereof he the said C. D. &c. was seised or possessed at the time of entering up the said judgment or at any time afterwards nor had he the said C. D. at the time of entering up such judgment or at any time afterwards any other or more lands [&c.] in the county aforesaid over which he had any disposing power which he might without the assent of any other person have exercised for his own benefit to the

a Ante, p. 195, n. (a).

b If anything has been deducted for rent, taxes, or the like, state it as in fi. fa., ante, p. 187.

c Ante, p. 195 n. (b).

d As now the whole instead of a moiety is to be delivered, it is sufficient to describe it in any manner whereby the estate may be identified, Doe d. Roberts v. Parry, 13 M. & W. 358; Sherwood v. Clark, 15 ib. 766 and it would seem now for the same reason to be sufficiently certain to describe a term (without showing its beginning or end), as a "term of years yet to come." 2 Wms. Saund. 68 g, 69. But the inquisition must be certain as to the locality of the lands where the inquisition is taken, the nature of the defendant's estate therein, and their value, ib. 70 d;


Sparrow v. Mattersock, Cro. Car. 319;
Moore, 8; Dyer, 208; Semble, such a
degree of certainty as would do in a
conveyance would suffice; 13 M. & W.
357. Before inquisition filed, the Court
may examine it, and if they find fraud,
partiality, &c., may stop the filing and
award a new elegit, 2 Inst. 396; so if
the lands are extended at an under value,
Com. Dig. Exec. (C 14). If the return
be void, the objection may be taken in
an action of ejectment brought to re-
cover actual possession, Fenny v. Dur-
rant, 1 B. & A. 40: and see Pullen v.
Purbeck, 12 Mod. 368. If voidable
only, and not void, the Court will quash
it, ib.
The inquisition may be good in
part and bad in part, see Morris v.
Jones, 2 B. & C. 242; Doe d. Roberts v.
Parry, 13 M & W. 356.

knowledge of the said jurors. In witness whereof as well I the said Sheriff as the jurors aforesaid have set our seals to this inquisition on the day and year and at the place aforesaid.



It seems formerly to have been held that the bare entry on the Satisfactory roll of a prayer of an elegit was a bar to all other executions, but execution. this was after great consideration reversed. The entry on the roll, What writs therefore, of an award of an elegit is no longer a bar, and the may issue plaintiff may issue a ca. sa. or fi. fa. if nothing be done, or returned, upon the elegit. So if the Sheriff deliver goods to the plaintiff for part of the debt, and return nihil as to the land, a ca. sa. or another elegit, or a fi. fa. may issue for the residue, or he may have debt upon the judgment. So if the return be that he cannot deliver the lands, because they are already extended, a ca. sa. or fi. fa. may afterwards issue. Several elegits might, even before the Common Law Procedure Act, 1852, be awarded for the whole debt into different counties.d


The words of the old writ of elegit were, as to lands, " to hold Interest of as his freehold," yet the interest which a tenant by elegit had was tenant by held not to be a freehold, but a chattel interest, which devolved upon his executors ; but the writs published by the Judges, pursuant to The Common Law Procedure Act, 1852, use, instead, these words, "to hold the said lands, &c., according to the nature and tenure thereof, to him and to his assigns according to the form of the said statutes until, &c.," words seemingly more appropriate to the interest adjudged to him by the old authorities. The operative words in the Chancery precedents are nearly the same. A tenant by elegit has a right to distrain without attornment.f

The words of the Stat. of Westm. the 2nd are 66 quousque debitum fuerit levatum," which are construed to mean be or might be levied; for if the tenant by elegit neglect to take the profits it is all one; it seems, however, that the defendant cannot in such a case enter, but is put to his sci. fa.s

c. 14.

By the statute of 8 Anne, c. 14, s. 1, no goods, &c., shall Landlord's be liable to be taken by virtue of any execution on any pre- claim for tence whatsoever, unless the party at whose suit the said execu.. rent, under 8 Anne, tion is sued out shall, before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord, not exceeding one year's rent. There seems to be no doubt, therefore, that where goods are delivered under an elegit that the landlord is entitled to a year's rent, for the words are any execution or extent; indeed it would be at variance with the spirit of the Act that the landlord should be affected by the nature of the execution; that under a fi. fa. he should have a year's rent,

a See 2 Wms. Saund. 68 d.

b Ibid.

c Ibid.

d Ibid, 68 c.

e 1 Wms. Exors. 564.

f Lloyd v. Davies, 2 Exch. 103.
See Dalt. ch. 28; 15 & 16 Vict.
c. 76, s. 132.

See post, "Removing without sa-
tisfying year's rent."

but under an elegit not. But as under an elegit the Sheriff has no power to sell, but only to deliver, whence is the landlord's claim to come, or how is he to act? He should not, if the execution creditor (upon notice) refuse to satisfy the landlord's claim, deliver the goods, but return the facts; indeed, in such a case, the common return of nulla bona seems sufficient,a

How given.

Nature of.

For what amount it may issue.

Satisfactory execution,




There was no capias for the debt or damage of a subject at common law (except in actions of trespass vi et armis); such process being at variance with the nature of the contract between the parties, the mild spirit of the common law, and in no less conflict with the stern relations of the feudal system. The first alteration in the law seems to have been introduced by the Stat. of Marlbridge (52 Hen. 3, c. 23) in an action of account, and from that time to have been gradually enlarged to its present character.

It is a judicial writ, issued at the instance of one who recovers in a personal action, debt, or damages, in the Queen's Courts.& It cannot, properly speaking (as Sir W. Blackstone says), be sued out against any but such as were liable to be taken upon the former capias.®

The sum recovered must exceed 201., exclusive of the costs recovered by the judgment.f A soldier or sailor in H. M. S. cannot be arrested for any original debt under 301.8

It is an execution of the highest nature, inasmuch as it deprives a man of his liberty till he make the satisfaction awarded; and, therefore, when a man is once taken in execution upon this writ, no other process can be sued out against his lands or goods.h It is, however, provided by 21 Jac. I. c. 24, that if the defendant die, while charged in execution, the plaintiff may, after his death, sue out a new execution, against his lands, goods, or chattels.

a See Riseley v. Ryle, 11 M. & W. 16; Cocker v. Musgrove, 9 Q. B. 223.

b Dalt. ch. 29; Foster v. Jackson, Hob. 56; Doct. & Stud. 18; 3 Rep. 11; Co. Litt. 289 a; Gilb. 59-68.

c See 13 Edw. 1, c. 11; 25 Edw. 3, st. 5, c. 17; 19 Hen. 7, c. 9; 23 Hen. 8, c. 14, 15; 4 Jac. 1, c. 3; 8 & 9 Will. 3, c. 11.

d Co. Litt. 289 a.

e 3 Bl. Com. 414; Cassidy v. Steuart, 9 Dowl. 366; that is to say, as a general rule- but infants, Dow v.

Clark, 1 C. & M. 860; and bail, Goodchild v. Chaworth, 2 Str. 1139, have been taken, and the Court refused to interfere in a summary way. Ibid.

f 7 & 8 Vict. c. 96, s. 57. See Mason v. Nicholls, 14 M. & W. 118; Newton v. Conyngham, 5 C. B. 751; Walker v. Hewlett, 6 D. & L. 732.

16 & 17 Vict. c. 9, s. 52; ib. s. 56. h Corpus humanum non recipit æstimationem. It is said to be a full execution, but not a full and perfect satisfaction, Hob. 59.

The expression "the imprisonment is not absolute, but with a quousque" seems most consistent with the authorities, and with general principles, and not inconsistent with the above statute; for it is not framed on the admission that the death of the party operated as a satisfaction or extinguishment of the debt, but merely upon this, that doubts existed, and that it was time that such doubts should be removed by legislative enactment. In Burnaby's ca., where the question was, whether a commission in bankruptcy was valid, the debt being one upon which Burnaby had been charged, and was then in execution for, it was decided, that the body of the debtor being in execution, it was a satisfaction of the debt in point of law; so that the plaintiffs were not creditors who could petition; and the commission was superseded. All, however, this seems to determine, is, that the plaintiffs, who had made their election by arresting the debtor, could not be permitted, by the bankrupt laws, to proceed against his estate also. If the debtor be discharged, by consent of the execution creditor, the execution is satisfied, not only as against him; but if he be one of two joint contractors, the discharge, with such consent, will enure to the benefit of all. Not so, however, if the discharge be by act and operation of law, as under the Insolvent Debtors' Act, or the like, that not being a discharge with the plaintiff's consent. If judgments are obtained in separate actions against persons who are jointly liable for the same subjectmatter, satisfaction of one judgment is, in effect, a satisfaction of both. If a judge discharge a person in execution, when he ought not, he may by leave of the Court be retaken. So if a man be charged in execution, and rescue himself and escape, the execution is not satisfied, it is execution without satisfaction. So if the Sheriff liberè et voluntariè suffer a man to escape, it is execution without satisfaction. So if a man be discharged because of a permanent or temporary privilege, it is no satisfaction. So on a joint judgment against two, although one be taken in execution, the other may also. So the escape of the one does not discharge the other, for each is no more than a pledge. In Higgen's ca.k it was held, that if the execution creditor take the bail in execution, although he had not full satisfaction, he shall not afterwards meddle with the principal; but this, perhaps, may be by the doctrine



a Burnaby's case, 1 St. r. 653; Cohen v. Cunningham, 8 T. R. 124.

b Clark v. Clement, 6 T. R. 526; Tanner v. Hague, 7 T. R. 420; Blackburn v. Stupart, 2 East, 243; Heeles v. Fraser, 7 Sc. N. C. 470; Herring v. Dorell, 8 Dowl. 604; Ward v. Broomhead, 7 Exch. 726.

c Nadin v. Battie, 5 East, 146; Raynes v. Jones, 9 M. & W. 105.

Turner v. Davis, 2 Wms. Saund. 148; Bailey v. Haynes, 15 Q. B. 539.

[blocks in formation]

Several writs.

of election. On the other hand, if he take the body of the defendant in execution, he shall never have execution against the bail. If there be judgment against A. and B., and A. be taken on a ca. sa., and a fi. fa. be executed against B., A. seems entitled to his discharge; because by executing the fi. fa. against B., the whole debt, or some part of it, is actually levied; and then A. cannot be in execution in order to satisfy the entire sum according to the writ, because he would be a pledge to satisfy that which is no debt at all, or, at least, in part no debt. A debtor cannot agree with his creditor to be taken in execution a second time upon the same judgment. When the Sheriff has several writs of ca. sa. in his office against the same individual, the same rule applies as to writs of fieri facias. "The Sheriff is authorized to arrest in all the actions in which he holds writs; it is not material which writ he chooses to enforce by warrant; he has an authority in every action, not arising out of any relation from one writ to another, but from the operation of the law, which empowers him in each of the causes to arrest or to detain if he has already arrested in any one. If, indeed, the Sheriff has acted collusively or improperly in the first arrest, so that an action would lie against him, the Court will hold that his subsequent act, grounded upon such an arrest, is void; but not so where the objection to the arrest arises from no misconduct of the Sheriff." d It is not necessary in any case to sue out a writ of habeas corpus ad sat. to charge in execution a person already in the prison of the Court; it is now done by a judge's order made upon affidavit that judgment has been signed, and is not satisfied. This order is served on the keeper, and has the effect of a detainer. A man being in custody under process of contempt, may be charged in execution.f If issued under the 12 & 13 Vict. e. 106, s. 257, against a bankrupt during the suspension of his certificate of conformity, it cannot be enforced after such certificate has come into operation.g When to be If issued in the lifetime of the judgment creditor, it may be executed after his death. If unexecuted, it does not remain in force for more than one year from its teste unless renewed.i Bound to The Sheriff is bound to know the person of every man in his know every bailiwick.

Charging one in exe



man in his bailiwick.

a Cro. Jac. 320; Gilb. 71.

b Gilb. 70.

c Tanner v. Hague, 7 T. R. 420; Blackburn v. Stupart, 2 East, 243; but a cognovit, founded upon a new writ, is valid; Shawdy v. Colwell, 8 Dowl. 375.

d Barrack v. Newton, 1 Q. B. 532; Hooper v. Lane, 10 ib. 546; Reynolds v. Newton, suprà; Collins v. Yewens, 10 Ad. & E. 572; Barratt v. Price, 9 Bing. 570; 1 Dowl. 725, S.C. Samuel v. Buller, 1 Exch. 439. As to the rule on a fieri facias, see ante, p. 179;

but if taken on the only writ in the
Sheriff's office, and that be bad, de-
tainers lodged afterwards are also bad;
Barrack v. Newton, 1 Q. B. 529. See
also Wright v. Stanford, 1 Dowl. N. C.

e 15 & 16 Vict. c. 76, s. 127.
f Wade v. Wood, 1 C. B. 462.

In re Everard, 6 Exch. 111.
h Ellis v. Griffith, 16 M. & W. 106.
i 15 & 16 Vict. c. 76, s. 124.

Dean of Hereford v. Macnamara, 5 D. & R. 97; Dyke v. Duke, 1 Arn. 14; 4 Bing. N. C. 197, S. C. Ante, p. 171.

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