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Vide Dalt. Sher. 146.

Gilb. on Execu. 21. As soon as

it becomes necessary to justice to inquire to whom the goods belong, the sheriff is bound to make that inquiry. Lord Kenyon, 4 Term Rep. 648. Farr v. Newman, Vide Dougl. 40. Such an inquisition is not evidence. Vide H. Black. Rep. 2 V.

For Costs on a Nonsuit. George the third, &c. To the sheriff of Middlesex, greeting: we command you, that you cause to be made of the goods and chattels in your bailiwick of A. B. 1. which were awarded to C. D. in our court, before us at Westminster, according to the form of the statute in such case made and provided, for his expences and costs, (a) which he has been put to by reason of the false claim of the said A. in a certain plea of trespass on the case, prosecuted in our said court before us, by the said A. against the said C. whereof the said A. is convicted, as appears to us of record; and have you that money before us at Westminster, on, &c. Witness, &c.

Vendilioni exponas. George, &c. To the sheriff of Middiesex, greeting: whereas we lately commanded you, that you should cause to be made of the goods and chattels of C. D. 1. which A. B. lately in our court before us at Westminster, recovered against him for a debt; and also s. which, &c. (here recite the writ verbatim:) and that you should have that money before us at Westminster, on, &c. to render to the said A. for his debt and damages aforesaid; whereof the said C.. D. is convicted, as appears to us of record; and you at that day returned to us at Westminster,that you had made of the goods and chattels of the said C. to the value of the debt and damages aforesaid; which said goods and chatte's remained in your hands unsold for

(a) If on a non pross for not declaring, say, by him laid out in and about his defence in a certain action brought by the said A. against the said C. in our said court before us, for that the said A. hath not declared against the said C. by his bill or declaration, in any personal action, or ejectment, against the said C. D. before the end of term last, being the next term after the appearance of the said C. D. at the suit of the said A. B, whereof the said A. B. is convicted, &c.

Præcipe.

If goods ta

ken are not

of full value.

Where old

taken the

want of buyers: therefore we being desirous that the said A. be satisfied his said debt and damages, command that you sell, or cause to be sold, the said goods and chattels of the said C. by you in form aforesaid taken, and every part thereof, for the best price that can be got for the same, and at least for the debt and damages aforesaid: so that you have that money arising from such sale, before us at Westminster, on, &c. to render to A. B. for his debt and damages aforesaid; and have there then this writ. Witness, &c.

Middlesex. Vend. exponas for A. B. against C. D. for -1. debt and ―s. damages, returnable on next after

This writ is to be signed by Messrs. Provost and Chambre; pay Is. 8d. Seal 7d. a præcipe is to be made for the office.

If the goods taken are not to the full value, the plaintiff may have a venditioni exponas for part and fi. fa. for the residue, in the same writ. Tidd, 923. Thes. Brev. 305. 2 Saund. 47. 1. (2).

Where the old sheriff returns, that he has taken goods, sheriff returns which remain in his hands for want of buyers, the usual way of proceeding is by writ of distringas directed to the new sheriff, commanding him to distrain the old one, to sell the goods, and have the money in court himself. 6 Mod. 299.

goods,

If fi. fa. be irregular.

If sheriff delay sale.

1 B. and P. 359.

Fieri facias

fon non pros.

If the writ of fi. fa. be issued irregular, the defendant may move the court to set it aside, and that the goods or money levied may be restored to him. A third person, whose goods are taken under it, may also move the court to have them restored. But the facts must be clear, or court will leave the party to his action against the sheriff, or direct an issue, and retain the money in court to abide the event of the trial.

If the sheriff delays or refuses to sell, the legal and proper mode of compelling a sale is by writ of venditioni exponas, on which he must return the money into court. Cowp. 406. Cameron v. Reynolds. The sheriff is bound for the amount of his appraisement. Ld. Ray. 1075.

For his costs and charges by him laid out in and about his defence in a certain action of trespass on the case upfor not reply on promises (or as the action is) then lately commenced and depending in our said court before us, at the suit of the said A. B. against the said C. D. for that the said A. B. hath not replied to certain pleas then lately pleaded by

ing.

the said C. D. in the said action, or further prosecuted the same; whereof the said A. B. is convicted, as appears, &c.

For that the said A. B. had not surrejoined to certain rejoinders then lately made by the said C. D. in the said action, or further prosecuted the same; whereof, &c.

The like for

not surrejoin.

ing.

issue.

For that the said A. B. had not entered a certain issue For not en(or certain issues) then lately joined between the said A. tering the B. and the said C. D. in the said action, or further prosecuted the same; whereof, &c.

As to more concerning this writ, see Office of Sheriff, 3 Ed. 101.

Elegit. (a)

This is a judicial writ, given by the statute of West. 2. Elegit, 13 Ed. 1. stat. 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. If the goods are not sufficient, then the moiety, or one half of his freehold lands, which he had at the time of the judgment given, whether held 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 term be expired, or till the death of the defendant, if he be tenant for life or in tail. This execution, or seizing of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken. A term of years may either be extended or sold, as part of the personalty. 8 Co. 171. A rent-charge may be extended. Moor, 32. So may lands in ancient dèmesne. Hob. 47. But a rent-seck, or copyhold lands, cannot. Cro. Eliz. 650. 3 Co. 9.

The stat. says, the sheriff shall deliver to the plaintiff all the chattels of the debtor, (save only his oxen, and beasts of his plough,) and the one half of his land, until the debt be levied, upon a reasonable price or extent.

If the lands are extended upon an elegit, the plaintiff is for ever barred from having another execution; but if he

(a) There is a writ of levari facias, which enables the sheriff to seize the goods, receive rents and profits of his lands till satisfaction is made. Little use is now made of this writ, the remedy by elegit being much more effectual.

If no lands are extended, a

ca, sa, may issue.

Sheriff's duty,

levies on the goods only, upon the elegit, and the sheriff return nihil as to the land, a ca. sa. may issue for the residue against the defendant; for the election cannot be complete, unless the plaintiff has some benefit from the land, for the taking out the writ is not an actual election, but only in order to an election; and if there be no lands, there is nothing to choose, and consequently no election; where there are no lands an elegit is no more in effect than a fieri facias. Hob. 58. Str. 226. Bacon v. Peck, And a fi. fa. may issue for the residue, if no lands be extended.

Upon an elegit the sheriff is to impanel a jury (but no notice thereof is given on the other side,) who are to make inquiry of all the goods and chattels of the debtor, and to appraise the same; and also to inquire as to his lands and tenements, and upon such inquisition, the sheriff is to deliver all the goods and chattels (except the oxen and beasts of the plough,) and a moiety of the lands, to the party, and must return his writ, in order to record such inquisition. 2 Inst. 396.

The sheriff does not put the plaintiff in possession; Ejectment. therefore, in order to recover, he must bring an ejectment. And if the sheriff finds goods, he may deliver them to the plaintiff by appraisement. Ld. Ray. 346.

Appraise

ment.

It lies against peers, &c.

1s. 8d. seal 7d.

This writ lies against peers and members, also against executors and administrators upon a devastavit returned. Carth. 2$3.

Elegit in Debt. To be signed George the third, &c. To by Messrs. the sheriff of Kent, greeting: Provost and whereas A. B. lately in our Chambre, pay court, before us at Westminto be ingross-ster,(a) by bill, without our ed on a 5s. writ, and by the considerastampt parch- tion and judgment of the ment; a præ- same court recovered made for the against C. D. as well a ceroffice. tain debt of 1. as also 80s. which in our said court before us were adjudged to

cipe is to be

[blocks in formation]

(a) If by original say "by our writ, and by the con"sideration, &c."

the said A. for his damages, which he had sustained by means of the detaining the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convicted, as appears to us by record, and afterwards

which he had sustained by
means of the non-perfor-
mance of certain promises
and undertakings made by
the said C. to the said A. as
for his costs and charges by
him laid out about his suit
in that behalf, whereof the
said C. is convicted, as ap-
pears to us of record, and
afterwards

the said A. B. came into our court before us, according to the form of the statute in such case made and provided, and chose to have delivered to him all the goods and chattels of the said C. D. (except the oxen and beasts of his plough,) and likewise a moiety of all the lands and tenements of the said C. D. in your bailiwick, to hold to him the said goods and chattels, as his proper goods and chattels, and to hold a moiety of the lands and tenements aforesaid to him and his assigns, as his freehold, according to the form of the statute in such case made and provided, until he shall thereof have fully levied the said debt and damages; therefore we command you, that without delay, you cause to be delivered to the said A. by reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick (except the oxen and beasts of his plough,) and also a moiety of all the lands and tenements in your bailiwick, whereof the said C. D. or any person or persons in trust for him, on the

day of (the day the judgment was signed) in the 57th year of our reign, on which day the judgment aforesaid was given, or ever afterwards, was seized, to hold to him the said A. the said goods and chattels, as his own proper goods and chattels, and also to hold the said moiety of the said lands and tenements to him and his assigns as his freehold, according to the form of the said statute, until he shall thereof have fully levied the said debt and damages: and in what manner you shall have executed this our writ, make appear to us at Westminster, on next after under your seal, and the seals of those by whose oath you shall make the said extent and appraisement; and have there then this writ. Witness, &c.

Kent. Elegit for A. B. against C. D. for 80s. damages, returnable on

1. debt and Præcipe.

next after

If on an elegit it is found that the plaintiff was seized What proof of the lands, at the time the judgment was given; upon support an

is necessary to

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