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By the successor of the conusee, where a recognisance is made to a corporation; as, to the chamberlain of London. 2 Inst. 395. R. 4 Co. 65.
So it may be upon a precept to a serjeant at mace in London, or other officer of any court of record, who does execution, as well as upon process to the sheriff. 2 Inst. 395. R. 4 Co. 65.
So, upon a mandate by the sheriff to the bailiff of a franchise, which has execution and return of writs. R. Cro. Car. 319.
So it lies against (x) an executor or administrator upon a devastavit, R. 2 Leo. 188.
If an elegit upon a judgment, and another upon a statute, be delivered to the sheriff at the same time, execution shall be first made upon the judgment; for that is upon a record. Br. Jud. 79.
But an elegit against an heir does not lie during his minority; though he be charged as terre-tenant. Co. L. 290. a. (y)
Nor, against the wife of the defendant, endowed by the heir within age. Co. L. 290. a.
If an elegit be prayed, the sheriff shall (z) take an inquisition ; (a) for there shall be a reasonable appraisement of the goods, and extent of the lands; which shall be made by an inquest of twelve men. 2 Inst. 396. Dy. 100. Cro. El. 584. (6)
And the inquisition ought to find the lands with certainty ; (c) for to find no certain estate will be insufficient. Clift 877. Vide Statute Staple, (D 5.)
It ought to shew the place and county, where the inquisition is taken, and where the lands lie. Semb. Dy. 208. b.
After the inquisition found, the sheriff shall deliver (d) the moiety; (e) but the jury need not divide it., R. Cro. Car. 319. So the sheriff ought to deliver the lands (f) described with cer
tainty ; (.x) Peers of the realm. i Cromp. 546. Tidd, 1009. .
(y) And therefore, in a scire facias brought against him, the parol shall demur, because he may have a good plea to bar the execution, which might be mispleaded. Gilb. Exec. 58.
(2) No notice is given of executing an elegit. i Cromp. 363.
(a) If there be no lands, the sheriff need not take or return an inquisition 2 Str. 874.
(6) Co. Litt. 389. b. 5 Co. 74.
(d) The goods themselves are u be delivered to the plaintiff at the price at which they have been appraised, Gilb. Exec. 33. T. Raym, 346. et vide 1 Sid. 184, i Lev. 92. i Keb. 105. 261. 465. 556. 691.
(e) The sheriff is not bound to deliver a moiety of each particular tenement and farm, but only certain tenements, &c. making in value a moiety of the whole. Dougl. 472.
(f) 1. If the execution were laid upon lands which did not belong to the conusee, or had been sold before the judgment, antiently, the elegit would have put the party out of possession, and driven him to his assise or ejectment; because, being a stranger to the judgment and execution, he could not traverse. But, as it was thought hard on such executions to turn strangers out of possession, the practice was altered, and the sheriff, instead of actual, delivers only legal possession of the moiety of the lands; and if the plaintiff do not enter, as, it seems, he may by virtue of the elegit, he must proceed by ejectment. Gilb. Exec. 44. 2 Eq. Abr. 381. 3 T. R. 295. 6 Taunt. 202, 1 Mars. 542.-2. In which action he must not only prove the judgment, and, by the judgment roll, that an elegit issued and was returned; he must also prove the writ of elegit, by a true copy thereof, and the inquisition thereon; for it is the elegit and inquisition upon it, which carve out the term, and give the right of entry, the judgment
tainty, for, to say that he delivered a moiety, is not sufficient. i Vent. 259. (g)
Described by metes and bounds. Hut. 16. (h). Distinctly. 2 Brown). 38. But it need not be by metes. Dal. 26.
He ought to deliver a moiety only; for if he delivers more, it will be void for the whole. 1 Sid. 91. 239. (i)
If the defendant be joint-tenant, or tenant in common, it ought to be specially mentioned in the return. Hut. 16. i Brownl. 38.
The sheriff shall make execution of all (k) the goods.
And if it appears that the goods are sufficient for the debt, the sheriff ought not to extend the land. 2 Inst. 395. (1) .
If the goods are not sufficient, he ought to extend a moiety of all the lands, which the defendant or conusor had at the time of the judgment, &c. 2 Inst. 395.
If there are divers conusors, a moiety of the lands of all. 2 Inst. 396.
If the defendant has aliened after judgment, a moiety of the land in the hand of the purchaser, as well as of the defendant. . 2 Inst. 396.
If the lands lie in several vills, a moiety of the land in all; and not the whole in one vill, R. 1 Lev. 160. Cont. Bro. Elegit, 14. (m).
And he may extend a term for years, though it be a chattel. 2 Inst. 396, (n)
And lands, which the conusor or defendant has by extent upon a statute-merchant, &c. 1 Rol. 887. 1. 52. R. 4 Co. 65. b. Vide infra.
So, lands which are antient demesne. 2 Inst. 397. R. 1 Rol.888. 1. 5. (0)
So, a reversion of land upon a lease for years; and the conusee shall have a moiety of the rent, 1 Rol. 894. 1. 12. 3 Leo. 113. Mo. 36. (p)
So, all tenements, as well as land, of the defendant; as, a rent, &c. Bro. Elegit, 13. Mo. 32.
roll being no more than a memorandum that the elegit issued and was returned. Tidd, 1013. Gilb. Evid. 10, 11. Run. Eject. 330. 2 Saund. 69. c. Lib. Pr. Reg. 689.3. Since the record of a court of competent jurisdiction imports incontrovertible verity as to all the proceedings which it sets forth, an examined copy of the judgment roll, containing the judgment, the award of elegit, and return of the inquisition, is conclusive evidence in an action for use and occupation, by one claiming under an elegit, against the defendant's former landlord, that an elegit has issued and been returned; and a copy of the elegit and inquisition need not be produced. 2 M. & S. 565.
(g) 1. If he do not, the return is ill, and may be quashed for uncertainty. Carth. 453. - 2. And if the defendant be joint-tenant, or tenant in common, it ought to be specially alleged in the return, Hut. 16. etiam infra.
(h) Dalt, Sher. 135.
But an elegit executed upon goods only, is not a fieri facias; for a fieri facias is executed by sale by the sheriff, but the elegit by appraisement of the goods by a jury, and delivery to the party. Sid. 184. Lev. 92. Keb. 105. 261. 465. 566. 692. i Ld. Raym. 346.
(m) Vide Sid. 239. et supra.
(n) 1. 8 Co. 171.-2. Or he may sell, and therefore semble deliver it as part of the personalty. Ibid.-3. If it be extended the plaintiff is accountable for all the profits he receives out of the term, upon such extent; and if he receive the debt out of such term, before it expires, the defendant shall be restored to the term itself. Gilb. Exec. 35. — 4. But otherwise he shall keep the term, and not account for the profits of it. Gilb. Exec. 33.,
() So the wife's lands which the husband has during the coverture. Dalt. Sheriff, 136. (p) Gilb. Exec. 38.
So two-thirds of a rent may be extended, though the defendant lias the whole. R. Cro. El. 742.
So he may extend upon an elegit lands before in execution upon a statute. R. 4 Co. 65. b. Vide supra.
So now (9) by the st. 29 Car. 2. 3. lands, tenements, &c. of which any shall be seised or possessed in trust for him, against whom execution is sued, (r) of such estate as the trustee was seised at the time of execution sued.
But upon an elegit the sheriff cannot extend a copyhold. R. 1 Rol. 888. 1. i. Vide Copyhold, (R 18.) (s)
Nor a term for years of a copyhold made by the licence of the lord. R. 1 Rol. 888. 1. 3.
Nor lands of which the defendant is disseised, whilst they are in possession of the disseisor. R. 1 Rol. 888. 1. 7.
Or, of which he has only the trust, and not the estate in law. R. i Rol. 888. 1. 12. But this is altered by the st. 29 Car. 2. 3.
Nor, since the st. 29 Car. 2. 3. lands which the trustee has aliened before execution; for they are not bound by the judgment. R. per C. B.-- An. inter Johnson and cited per Tracy. (Vide Comyns's Rep. 227. S. P. adjudgeil.)
Nor the land of a villein upon an elegit against the lord; for it is the land of the villein, till the lord seises it. i Rol. 888. 1. 20. (t)
Nor a tenement which cannot be granted, or assigned over; as, the office of philizer; for it is an office of trust. Dy. 7. b.
So a bare rent-seck without land cannot be extended. R. Cro. El. 656. (u)
So, if two have judgment, and one sues an elegit, and has a moiety, and afterwards the other sues an elegit ; the sheriff shall deliver but a moiety of the residue. R. Cro. El. 482. Cont. Fitz. Execution, 137.
(9) At common law, if a man was seised of the legal estate in lands, to the use of, or in trust for another against whom a judgment had been obtained, or who had entered into a statute or recognizance, these lands were not liable to execution, upon the judgment, statute, or recognizance, of cestui que trust. Co. Litt. 374. b. 2 Wms. Saund. 11.(17).
(r) 1. “ Like as the sheriff or other officer might or ought to have done, if the said party, against whom execution is so sued, had been seised," &c.— 2. An equity of redemption, therefore, though legal assets, cannot be taken in execution on this statute. 3 B. C. C. 478. i Ves. J. 431. 3 Atk. 739.
(8) 3 Blk. Com. 419.
(t) 1. If upon an inquest taken upon an elegit, the jury find that the party was possessed of a term, which commenced the 2 & 3 Ph. & Mar., when in truth it commenced the 3 & 4 Ph. & Mar., and the sheriff sells the term according to the value found by the jury, the execution is void, for the sheriff has only authority to sell or extend such things as are found to be the party's; but in this case the inquest finding one thing, and the sheriff selling another, the inquest does not warrant the sale. Cro. Eliz, 584. 4 Rep. 74. - 2. But if the inquest had found, that he was possessed of such land for terms of divers years adhunc vent. which they had appraised at so much, without showing the certain beginning or determination thereof, it had been well enough; for they shall not be compelled to find a certainty, not having means to be informed thereof. Cro. Eliz. 584. See Gilb. Exec. 35.
(u) 1. Nor an advowson in gross. Gilb. Exec. 39. But sce Wms. 401. Cro. Eliz. 359. -2. Nor glebe belonging to a parsonage or vicarage. Ibid. 40. Jenk. 207. pl. 36. 3 B. & P. 327.-3. It is said, however, that the lands of a bishop may be extended on an elegit. Dalt. Sheriff, 136. — 4. A rent-charge may. Gilb. Exec. 38. Moor, 32. — 5. Yet it cannot be delivered as a liberum tenementum. Cro. Eliz, 656.
but there said, quod mirum. R. M. 32 & 83 El. in C. B. Br. Jud. 78. Hard. 25, 26. R. 2 Brownl. 97.
Yet if both judgments are of the same term, which is but one day in law, each may take a moiety of the whole. R. Per 3 Bar. Hard. 27. (x)
If the judgment be reversed, the sale and delivery of a term extended upon the elegit shall be void. R. 2 Cro. 246. Dy. 363. a. in marg. Yel. 180.
After inquisition taken by the sheriff, it shall be returned and filed. Dy. 100. in marg.
And after it is filed, it shall not be avoided upon surmise that more is extended than a moiety. 2 Inst. 396.
Or, that it was extended at a small value. 2 Ca. Ch. 183.
And though the extent was at an under-value, the plaintiff shall account only for the value at which the extent is. R. 2 Ca. Ch. 183.
But 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 they find an extent made at an under-value. 2 Ca. Ch. 183.
So, if the whole due upon the judgment be brought into court. R. 2 Ca. Ch. 183.
So, if the inquisition appears to be void, it may be quashed after it is filed. Semb. 1 Vent. 259.
And in ejectment advantage may be taken of the nullity. R. 1 Lev. 160. Per Hale, 1 Vent. 259. R. Sal. 563.
As, if more than a moiety appears to be extended. i Vent. 259. Sal. 563.
Or, all in one vill, and nothing in another. R. 1 Lev. 160. (y)
The entry of the elegit upon the record, should not, in prudence, be made till the return filed. 2 Cro. 339. Godb. 257.
After the inquisition returned, there shall be a liberate, if the plain'tiff will. Vide Statute-staple, (D 6.)
Yet before the liberate, or inquisition returned, the plaintiff may enter. R. 1 Rol. 738. l. 10.
And if the sheriff returns that he has delivered, when he has not, an action on the case lies for a false return; though the plaintiff may enter without it. R. 1 Rol. 738. l. 15.
Tenant by elegit has but a chattel. 2 Inst. 396.
(2) 1. If A. acknowledges two judgments to B., and in the same term he takes out two elegits ; on the one he may have one moiety of A.'s lands delivered to him, and on the other the other moiety, and he is not restrained to a moiety of a moiety, for in judgment of law the whole term is but one day. Hard. 23, &c. And. 27.-2. On lending money, therefore, if the lender take two several bonds and warrants of attorney, one for part and the other for the residue of the money, and enter up two several judgments therein of the same term, he may take the whole of the defendant's lands under them. Gilb. Exec. 56.
(y) 1. In a word, if the inquisition be void for uncertainty, or because more than a moiety has been delivered, or for any other defect appearing on the face of it, as the plaintiff can never obtain possession of the land under it, the court, on a suggestion thereof, or on a scire facias, will order the writ to be vacated, and grant another, and amerce the sheriff. See the form in 1 Towns. Judgm. 129. — 2. So where fraud, deceit, or partialty has been practised, if the writ be not filed, the court will stay the filing of it, and grant another writ. 2 Inst. 396. — 3. And according to the opinion of Lord Hale, which seems to be well founded, they will grant another writ in either of the above-mentioned instances, whether of defect or fraud, after the first has been filed. 2 Wms. Saund. 69. C. i Vent. 259. L. R. 718. 12 Mod. 355. 3 Bac. Abr. 379.
Yet he shall hold ut liberum tenementum ; and he, his executor, or administrator shall have an assise. 2 Inst. 396. (2)
After the debt satisfied upon record, or by the annual rent, at which the extent is made, the defendant may enter. 2 Inst. 396. 2 Vent. 236.
But if the debt be satisfied by a casual profit, he ought to have a scire facias before entry. 2 Inst. 396.
So, if he brings a scire facias, and tenders all that remains satisfied, he shall have his land. 2 Ca. Ch. 183.
(D) To what time an erecution relates.
(D 1.} As to land. By the common law, the lands of the defendant were bound by the judgment; and therefore, before the st. 29 Car. 2. 3. The plaintiff might have had his execution of lands, which the defendant had at the time of the judgment given, or afterwards. 30 Ed. 3. 24. Dy. 306. b. 1 Rol. 892. 1. 37. 2 Inst. 395.
Or, at the first day of the term, in which judgment was given ; for the term is but one day. R. 42 Ass. 17. Bro. Elegit, 17. 19. i Rol. 892. 1. 40.
Though the judgment was signed after the term. 2 Mod. Ca. 310.'
Or, at the day of the inquest taken ; for this is but one day with the day in bank. 21 Ed. 3. 51. b. Adm. Dy. 149. a.
And the plaintiff shall have execution of lands, which the defendant had at the time of the judgment, though he had aliened them bona fide before execution sued. 30 Ed. 3. 24.
Though a statute be afterwards acknowledged, and execution upon it. i Brownl. 37, 38.
So the demandant shall have execution against the vouchee of lands, which he had at the time of the voucher; for this is in lieu of an action. Co. L. 102. a.
And in a warrantiâ chartæ, of land, which the defendant had the day of the writ purchased. Co. L. 102. a.
By the st. de merc. 13 Ed. 1. (to which the st, 27 Ed. 3. and 23 H. 8. 6. relate) the conusee of a statute shall have execution of the lands, which the conusor had at the time of the conusance.
And if it be acknowledged before a judge out of term, when entered upon record, it relates to the time of the acknowledgment. R. Hob. 195, 1 Rol. 892. 1. 35.
So, if after a statute, a judgment be against him, and execution by elegit, the land at the time of the conuzance shall be extended, and the execution by elegit avoided. i Brownl. 37.
If a judgment be in Trinity term, which relates to the first day, (which was 20th June,) and a statute be acknowledged 20th June, execution upon the judgment shall precede the statute. Lat. 53.
So, if there be a capias ad satisfaciendum, and then an extent, and before an inquisition taken, the defendant sells his goods, they shall be liable to the extent. R. Mo. 21.
But a judgment in a personal action binds lands only from the day of the judgment given. Co. L. 102. a. And therefore, by the common law, the plaintiff shall not have exe(z) i Mer 124,