5 Rep. 92.

Palm. 54.

8 Rep. 171.

This lies as well against privileged persons, peers, &c., as other common persons, and against executors or administrators with regard to the goods of the deceased (g). The sheriff may not break open any outer doors to execute either this or the former writ, but must enter peaceably, and may then break open any inner door belonging to the defendant, in order to take the goods. And he may sell the goods and chattels (even an estate for years, which is a chattel real,) of the defendant, till he has raised enough to satisfy the judgment and costs (h), first paying the landlord of the premises upon which

may be varied by this act. In pursuance of this act, the judges in Hil. T. 1839, ordered new forms of writs of elegit and fiere facias.

By 6 Geo, 4, c. 16, s. 108, no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors; but shall be paid rateable with such creditors. But by 1 Wm. 4, c. 7, s. 7, no judgment signed, or execution issued on a cognovit actionem signed after declaration filed or delivered, or judgment by default, confession, or nil dicit, according to the practice of the court in any action commenced adversely, and not by collusion, for the purpose of fraudulent preference, shall be deemed or taken to be within the 108th section of 6 Geo. 4, c. 16. And by 2 Vict. c. 29, all executions and attachments against the lands and tenements, goods and chattels of a bankrupt, boná fide executed or levied before the date and issuing of the fiat are valid, notwithstanding any prior act of bankruptcy, if no notice was had of such act of bankruptcy, provided that all fraudulent preferences by the bankrupt are still void.

(g) By 17 Car. 2, c. 8, s. 1, the death of either party between the verdict and the judgment shall not be alleged for error, so as such judgment be entered within two terms after verdict. Judgment may be entered as if the party were alive, but there must be a scire facias by the executor to get execution. See also 8 & 9 Wm. 3, c. 11, s. 6, where plaintiff dies after interlocutory and before final judgment.

(h) By 1 & 2 Vict. c. 110, s. 12, the sheriff or other officer having the execution of any writ of fieri facias, to be sued out of any superior or inferior court, or any precept in pursuance thereof, may and shall seize and take any money or bank notes (whether of the governor and company of the bank of England, or of any other bank or bankers), and any cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, belonging to the person against whose effects such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized, or a sufficient part thereof, and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, as a security or securities for the amount by such writ of fieri facias, directed to be levied, or so much thereof as shall not have been otherwise levied and raised; and may sue in the name of such sheriff, or other officer, for the recovery of the sum or sums secured thereby, if and when the time of pay. ment thereof shall have arrived; and the payment to such sheriff by the party liable, with or without suit, shall discharge him; and the sheriff shall pay over the amount to the execution creditor, and if any surplus, shall pay such surplus to the execution debtor. But no sheriff shall be bound to sue the party liable on such cheques, bills, notes, &c., unless the execution creditor shall enter into a bond, with two sufficient sureties, for indemnifying

the goods are found, the arrears of rent then due not exceeding one year's rent in the whole (i). If part only of a debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue.

Another species of execution is by the writ of elegit, Writ of elegit. which is a judicial writ, given by the statute 13 Edw. 1, c. 18, either upon a judgment for a debt or damages, or upon the forfeiture of a recognizance taken in the king's court. The statute granted this writ (called an elegit, because it is in the choice or election of the plaintiff whether he will sue out this writ, or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff at such reasonable appraisement and

him from all costs and expenses. By s. 14, the government stock, funds, or annuities, or any stock or share in any public company belonging to the debtor and standing in his own name, may be charged by order of a judge with the payment of the amount of the judgment recovered and interest; which shall entitle the judgment creditor to the same remedies as if the charge had been made by the judgment debtor; but no proceedings can be taken to have the benefit of such charge, until six months from the date of such order. By s. 15, the order is to be made in the first instance exparte, and on notice to the bank or company is to operate as a distringas. By s. 16, the securities not realized by the judgment creditor, must be relinquished by him if he afterwards takes the person of the judgment debtor in execution.

(i) By 8 Ann. c. 14, no goods or chattels shall be liable to be taken by virtue of any execution, unless the party at whose suit the execution is sued out shall, before the removal of such goods, pay to the landlord, or his bailiff, all rent due for the premises at the time of the execution, provided the said arrears of rent do not amount to more than one year's rent; and if the arrears are more than one year's rent, the execution creditor must pay the landlord one year's rent, and may then proceed to execute his judgment.

By 56 Geo. 3, c. 50, no sheriff shall, by virtue of process, carry, offer, sell, or dispose of, for the purpose of being carried off from any lands let to farm, any straw, thrashed or unthrashed, or any straw of crops growing, or any chaff, colder, or any turnips, or any manure, compost, ashes, or sea-weed, in any case whatever; nor any hay, grass, or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables, being the produce of such lands, in any case where, according to any covenant or written agreement entered into and made for the benefit of the owner or landlord of any farm, such hay, &c. ought not to be taken off, or withholden from such lands, if such sheriff shall have received a written notice of the covenant or agreement before he shall have proceeded to sale. But such produce may be sold, subject to an agreement to expend it on the land according to the custom of the country, where there is no covenant or agreement, and according to such contract where there is; and in case of such sale, the purchasers may use all such necessary barns, buildings, yards, and fields, for the purpose of consuming such produce as the sheriff shall assign for the purpose, and which the tenant would have been entitled to for the same purpose; and the assignees of bankrupts are prohibited from selling the crops otherwise than as the bankrupt himself might have done.

2 Inst. 395.

price in part of his debt. If the goods are not sufficient, then the moiety, or one half part of his freehold lands (j), which he had at the time of the judgment given, whether held 29 Car. 2, c. 3. in his own name, or by any other in trust for him, are also to be delivered to the plaintiff, to hold till out of the rents and profits thereof the debt be levied, or till the defendant's interest be expired, as till the death of the defendant, if he be tenant for life or in tail. During this period the plaintiff is called tenant by elegit.

Hob. 58.

After the execution by elegit the body cannot be taken: but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit, for such elegit is in this case no more in effect than a fieri facias. So that body and goods may be taken in execution, or lands and goods; but not body and land too, upon any judgment between subject and subject in the course of the common law.

(j) By 1 & 2 Vict. c. 110, s. 11, it shall be lawful for the sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, shall be directed at the suit of any person, upon any judgment which at 1st October 1838 shall have been recovered or shall be thereafter recovered in any action in any of the superior courts at Westminster, to make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold, or customary tenure, as the person against whom the 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, exersise for his own benefit, in the same manner as the sheriff or other officer might then 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, 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 subject to in a court of equity, provided, that if such party suing out execution, and to whom any copyhold or customary lands shall be so delivered in execution shall be liable, and is thereby 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 the party so suing out 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 the judgment shall have been levied provided, that as against purchasers, mortgagees, or creditors, who shall have become such before 1st October 1838, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case the act had not passed.

di facias.

Upon some prosecutions given by statute, as in the case of Writ of extenrecognizances or debts acknowledged on statutes merchant, or statutes staple, (pursuant to the statutes 13 Edw. 1, de mercatoribus, and 27 Edw. 3, c. 9); upon forfeiture of these, the body, lands, and goods may all be taken at once in execution, to compel the payment of the debt. The process herein is usually called an extent, or extendi facias, because the sheriff is to cause the lands, &c. to be appraised to their full extended value before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied. By 33 Hen. 8, c. 39, all obligations made to the king shall have F. N. B. 131. the same force, and, of consequence, the same remedy to recover them as statute staple; and his debt shall, in suing out execution, be preferred to that of every other creditor who has not obtained judgment before the king commenced

his suit. The king's judgment also affects all lands which his 33 Hen. 8, c. debtor has either at or after the time of contracting his debt, 39, s. 74. or which any of his officers mentioned in 13 Eliz. c. 4, have at or after the time of entering on the office; so that if such officer of the crown alienes for a valuable consideration, the land shall be liable to the king's debt, even in the hands of a bond fide purchaser, though the debt to the king was contracted many years after the alienation (k). Whereas by the 10 Rep. 55,56. Statute of Frauds, 29 Car. 2, c. 3, judgments between subject and subject shall not bind the land in the hands of a bona fide purchaser, but only from the day of actually signing the same, which is directed by the statute to be punctually entered on the record; nor shall the writ of execution bind the goods in the hands of a stranger or a purchaser, but only Skin. 257. from the actual delivery of the writ to the sheriff or other officer, who is therefore ordered to endorse on the back of it the day of his receiving the same (7).

(k) By 2 Vict. c. 11, no judgment, statute, or recognizance, thereafter to be obtained or entered into, in the name, or upon the proper account of the queen, or inquisition by which any debt shall be found due to the queen, or obligation, or specialty to be thereafter made to the queen, as directed by 33 Hen. 8, or any acceptance of office to be thereafter accepted by officers whose lands shall thereby become liable to the payment and satisfaction of arrearages under 13 Eliz. shall affect any lands, tenements, or hereditaments as to purchasers or mortgagees, unless and until a memorandum or minute thereof shall be entered with the senior master of the court of common pleas, who shall forthwith enter the particulars in a book, to be intituled "the index to debtors and accountants to the crown," which is to be open to inspection by all persons.

(1) But as to the party himself, and all others, except purchasers for a valuable consideration; writs of execution bind the goods from their teste, yet the property is not

When judgment satisfied,

satisfaction to be entered

on record.

When the plaintiff's demand is paid, satisfaction ought to be entered on the record; but all these writs of execution must be sued out within a year and a day after the judgment is entered, otherwise by 13 Edw. 1, c. 45, a scire facias must issue for the defendant to show cause why the judgment should not be revived and execution had against him, to which the defendant may plead such matter as he has to allege, or the plaintiff may still bring an action of debt founded on the judgment.

Of courts of equity and their jurisdic

tion.

F. N. B. 27.
As to infants.

2 Lev. 163.

CHAPTER XXVII.

OF PROCEEDINGS IN THE COURTS OF EQUITY.

UPON the abolition of the court of wards the care which the crown was bound to take, as guardian of its infant tenants, was extinguished in every feodal view; but resulted to the king in his court of chancery, together with the general protection of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one, and from all proceedings relative thereto an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage

the

Cro. Jac. 641. defence of the infant, if a suit be commenced against him, a power which is incident to the jurisdiction of every court of T. Jones, 90. justice; but when the interests of a minor come before the court judicially, in the progress of a cause, or upon a bill, for that purpose filed, either tribunal, indiscriminately, will take care of the property of the infant.

As to idiots and lunatics.

As to idiots and lunatics, the king himself used formerly to commit the custody of them to proper committees in every particular case; but now a warrant is issued under the royal sign manual to the chancellor, or keeper of his seal, to perform this office for him, and if he acts improperly in granting such custodies the complaint must be made to the king himself in

divested out of the debtor till execution executed; and an execution and sale under a subsequent writ, delivered to the sheriff, will bind the goods; but the plaintiff, in the first execution, has his remedy against the sheriff if the non-execution of his writ did not proceed from his own laches; Payne v. Drew, 4 East, 523.