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Taylor v. Taylor -
45 15, 24, 30, 32, 33, 43, 85
Warren v. Howe -
51 36 89 87
24 39, 78 16, 108
48 5 5 45 34
AS THEY AFPECT
JUDGMENTS BEFORE THE RECENT STATUTES.
Ar common law, the goods and chattels of the debtor under a writ of fieri fucias, and the growing profits of his lands under a writ of levari facias, were the only things which could be taken in execution by the creditor on a judgment for debt or damages, and even of the growing profits of the land he might be deprived by a subsequent alienation of the land itself.a To provide a more effectual remedy the i3th of Edw. 1. st. 1, c. 18, (Westminster 2), enacted that when a debt was recovered or acknowledged, or damages awarded
a 3 Co. 11.
in the King's Courts, it should be in the election of the creditor to have a writ of fieri facius, or to have delivered to him all the chattels of the debtor (saving only his oxen and beasts of the plough) and the one half of his land, until the debt should be levied upon a reasonable price or extent.
In pursuance of this statute a writ of execution was framed, called a writ of elegit, from the words of the entry on the rolls, Quod elegit sibi executionem fieri de omnibus catallis et medietate terræ. On the suing out of this writ, the sheriff wa to impannel a jury to make inquiry of all the goods and chattels of the debtor, and to appraise the same, and to make the same inquiry as to his real property, and upon such inquisition to deliver all the goods and chattels, and a moiety of the lands, to the plaintiff, by metes and bounds, at the appraised value.
The inquisition must find the lands with certainty, their value, the place and county where they lie, where the inquisition is taken, and the estate the defendant has in them, whether he is seised in severalty, or as joint-tenant, or tenant in common.
1 Arch. Prac. by Chitty, 445.
If the goods and chattels of the debtor are sufficient to satisfy the debt, the lands ought not to be extended. If, however, the goods and chattels are insufficient for this purpose, the sheriff must deliver execution of the lands to the plaintiff after the jury have found their value, and return the writ, that the inquisition may be recorded in the Court out of which the elegit issued.d But the sheriff delivers only legal possession, the creditor being left to take actual possession under his elegit ; or, if prevented from taking possession by entry, to proceed by ejectment,e in which he must produce an examined copy of the judgment roll containing the award of the elegit, and the return of the inquisition.
Although the plaintiff in possession under his elegit is said to hold the land ut liberum tenementum, he, in fact, acquires no freehold, but only a chattel interest, which devolves on his personal representatives.8
€ 2 Inst. 395.
e 3 Term. Rep. 295 ; Rogers v. Pitcher, 6 Taun. 202 ; 2 Saund. Rep. 69 C, n. 3.
f Ramsbottom v. Buckhurst, 2 M. & S. 567.