A A 8 5 9 6 1 Sc0ul Wimhi ^whMnh h^ LA Bar also the P COI HA of Q use ■ P^ Ans- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY R, 'ALUER '.C. "JPTCY. ?wers in rks, and isions in HIGH Y AND T CON- {, AND 3 Series • for the ' PER- QS and CON- 3on. 4s. 20s. IPINQ. licitors' Inter- P' Bool medi...-^ xj^j. vl^ls duujcul. i*. u«. Just published, price Is. A CHART OF THE HISTORY OF ENGLAND FOR THE USE OF STUDENTS. By F. H. Lascelles, LL. B., Camb., Barrister -at -Law. " Wliy, they are nothing' but maps and lists of names and dates. . . . I should really think, though," said Tom, "it must be a capital plan for making you remember history." — " It is, I flatter myself. ... I in- vented it to coach him in his history." — Tom Brown at Oxford. WORKS PUBLISHED BY RICHARD AMER. PEN AND INK SKETCHES FROM LIFE OF MOST OF THE 3JuDgc5 anl) tl)c Seating C^oun^cl Practising in the several Courts of Chancery. BY A LOUNGER IN THE COURTS. CONTENTS— No. 1. Price Sixpence. THE LOUNGER. LORD JUSTICE SIR HUGH CAIRNS (at the Bar). VICE-CH.\NCELLOR SIR WILLIAM PAGE WOOD. ATTORNEY- GENERAL SIR JOHN ROLT, Q.C., M.P. R. P. AMPHLETT, Q.C. W. T. S. DANIELL, Q.C. G. M. GIFF.iRD, Q.C. W. M. JAMES, Q.C. J. W. WILLCOCK, Q.C. CONTENTS— No. 2. Price Sixpence. THE LOUNGER'S CONFESSION. LORD ROMILLY, MASTER OF THE ROLLS. R. BAGGALLAY, Q.C, M.P. G. JESSEL, Q.C. C. J. SELWYN, Q.C, M.P. T. SOUTHGATE, Q.C. EDMUND BEALES, M.A. CONTENTS— No. 3. Price Sixpence. LETTER BY THE LOUNGER. THE LOUNGER IN LORD ROMILLY'S CHAMBERS. VICE-CHANCELLOR STUART. VICE-CHANCELLOR MALINS (at the Bar). J. BACON, Q.C. E. K. KAJISLAKE, Q.C, M.P, MISS FRAY. CONCLUDING LINES. PROCEDURE V Y ♦ mm & m WITH FOEMS. BY FREDERICK STONE, SOLICITOE, And elements Inn Prizeman. LONDON : li I C II A E. D A M E R, ICato 13oofcsclIcr anU ^uf)l(sl;cr, LINCOLN'S INN GATE, CAEEY STEEET, W.C. 1882. T St 7li2 p LONDON : PiONTED BY C. F. EOWORTH, BEKAW'S BUIIDINGS, OHANCEEY LANE. Q ]^ CONTENTS, ELEGIT Statutes. ..... Advantage of Elegit Eelatfve Eights of Elegit Creditors and Trustees in Bankruptcy What may be delivered in Execution . What may not be delivered . Seizure and Inquisition . Delivery and Recovery of Possession Eeturn ..... Costs, Poundage and Expenses Account and Recovery after Satisfaction EQUITABLE EXECUTION Appointment of Eeceiver EEGISTEATION . . STATUTORY SALE .... FOEMS PAGE 5 5 6 7 10 12 16 18 19 20 22 23 24 27 29 31 INDEX 43 '^'83141 ELEGIT. Statutes. — The statute of Westminster II. (13 Edw. 1), c. 18, from whicli the writ of elegit has its origin, provides that it shall be in the election of a judgment creditor to have a writ of fieri facias, or that the sheriff deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough), and the one half of his land, until the debt be levied according to a reasonable price and extent. The Statute of Frauds (29 Car. 2, c. 8), s. 10 (r/), enabled the sheriff to deliver execution of tenements and hereditaments of which any person other than the debtor was seised or possessed in trust for the debtor ; but this provision is more than covered by the 1 & 2 Vict. c. 110, s. 11, which enacts, that it shall be lawful for the sheriff to whom any writ of elegit shall be directed 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 cus- tomary tenure, as the person against whom 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 judgment, or at any time afterwards, or over (a) Tliis part of s. 10 is repealed by the Stat. Law Eev. Act, 1881. 6 PROCEDURE ON ELEGIT wliicli sucli 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 exercise for his own benefit, in like manner as the sheriff might at the time when this act was passed have made and delivered execu- tion of one moiety of the lands and tenements of any person against whom a writ of elegit was sued out; which lands, tenements and hereditaments 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 was at the date of this act subject to in a Court of Equity. The creditor is entitled to issue writs of elegit for the whole debt into different counties at the same time, and to execute all or any of them. Advantage of Elegit. — If the debtor is a trader, and the judgment debt is so near to 50/. as to make it uncertain whether or not the costs of judgment and of a writ of fi. fa. and the sheriff's costs and expenses chargeable against the debtor would, with the debt, exceed 50/., it is now better to issue a writ of elegit, instead of a fi. fa., whether the debtor have any lands or not, because sect. 87 of the Bank- ruptcy Act, 1869, requiring the sheriff, where the goods of a trader have been taken in execution for more than 50/. and sold, to retain the proceeds for fourteen days, does not apply to an elegit [Ex parte Abbott, re Gourlay, 15 Ch. D. 447 ; 50 L. J., Ch. 80 ; AND EQUITABLE EXECUTION. 7 43 L. T. Eep. (N. S.) 417). But where tlie debtor is not a trader, or where it is certain that the debt, costs and sheriff's expenses will not exceed 50/., it is better to issue a fi. fa., because that process is more prompt and convenient, and 1 & 2 Yict. c. 110, s. 12, enabling the sheriff to seize bank notes and negoti- able and other securities, is limited to fi. fa. Relative Rights of Elegit Creditors and Trustees in Bankruptcy. — In ascertaining the rights of elegit creditors, as against trustees in bank- ruptcy, the first inquiry should be — At what time did the trustee's title commence ? This time must be fixed -^dth reference to sect. 11 of the Bankruptcy Act, 1869, which provides (in effect) that the trustee's title shall commence (1) at the time of the act of bankruptcy being completed on which the order of adjudication is made ; or (2) if the bankrupt have committed more than one act of bankruptcy — then that the trustee's title shall commence at the time of the first act of bankruptcy committed within twelve months next preceding the order of adjudication, but that the trustee's title shall not commence at any time j)rior to the act of bankruptcy on which the order of adjudication is made, unless at the time of committing such prior act, the bankrupt was indebted to creditors to the extent of 50/. or up- wards, and such debts are still remaining owing at the time of adjudication. Having ascertained, by the light of this section, at what time the trustee's title commenced, the next inquiry should be — Did the seizure by the sheriff take place (1) before or 8 PROCEDURE ON ELEGIT (2) after tlie time at wliicli the trustee's title com- menced ? If before — then the creditor is a secured creditor under sect. 16, sub-sect. 5 of the Bankruptcy Act, 1869, and is therefore entitled under sect, li^ of that act to enforce his security by delivery in exe- cution. If after — then the sheriff has seized the trustee's property, and the creditor is unsecured, unless he can bring himself within sect. 95 of the last-mentioned act by proving, (1) as to land, that the seizure [b) took place before the date of the order of adjudication, and that he (the creditor) had not at the time of such seizure notice of any act of bank- ruptcy committed by the bankrupt and available (c) against him for the particular adjudication which has been made, or (2) as to goods, that both the seizure and the delivery (rf) took place before the date of the order of adjudication, and that he (the creditor) had not at the time of such dclkery notice of any act of bankruptcy committed by the bankrupt before the seizure and available (c) against him for the particular (&) " Seizure" in sub-s. 2 of s. 95, B. Act, 1869, probably means seizui-e by or on behalf of the creditor after legal or equitable delivery in execution ; see 27 & 28 Vict. c. 112, s. 1 ; but it may be open to contention that the creditor is protected from the seizure by the sheriff's officer. (c) Although an act of bankruptcy, consisting of non- compliance with a debtor's summons, is only available on the petition of the creditor issuing the same, there is no distinc- tion between this act of bankruptcy and any other for the purpose of this section. {d) " Sale" in sub-s. 3 of s. 95, B. Act, 1869, includes deHvery. {Ex imrte Vale, 18 Ch. D. 137 ; Ab L. T. Eep., N. S. 200.) AND EQUITABLE EXECUTION. 9 adjudication which has been made. The same law applies to liquidation by arrangement, the date of the trustee's appointment being substituted for the date of the order of adjudication. Seizure and delivery of goods under an elegit, the total amount leviable under which is not less than 50/., is (probably) an act of bankruptcy {Ex parte Vale, tibi siqira). Notice to the under-sheriff or ofhcer of an act of bank- ruptcy is not sufficient to affect the creditor {Kv parte Schulte, L. R., 9 Ch. App. 409 ; 30 L. T. Eep. (N. S.) 478). If the creditor be improperly restrained, he should at once apply to the Court by which the order was made, to have the order rescinded, and proceed to delivery, to avoid the danger of being served before delivery with notice of a secret or other act of bankruptcy committed prior to the seizui-e. In the event of resolutions for composition under sect. 126 of the Bankruptcy Act, 1869, being registered, the debtor's property is not thereby divested from the debtor, nor are the creditors affected until registra- tion. A^'CKsditoi', therefore, who, before registration, delivers his writ to the sheriff, and thereby binds the debtor's goods as against the debtor, or who, before such registration, obtains delivery of his lands in execution, is secured {Ex. parte Jones, L. E.., 10 Ch. 663 ; 44 L. J., Bank. 624 ; 33 L. T. Eep., N. S. 116 ; Ejc parte Maclarcn, 16 Ch. D. 534 ; 50 L. J., Ch. 203 ; 44 L. T. Eep., N. S. 36) ; and a creditor who, by reason of his debt being inaccurately stated in the debtor's statement of affairs, or of any other non-compliance with sect. 126, is not bound by the composition, may even after the registration of the 10 PROCEDURE ON ELEGIT resolutions issue and proceed with his execution {Ex parte Lang, 5 Ch. D. 971 ; 87 L. T. Rep., N. S. 449). With reference to the priorities of elegit creditors, as between themselves, the sheriff being bound to execute the writ first delivered to him, the creditor whose writ is first delivered will obtain priority as to the goods and hereditaments, which the sheriff law- fully delivers to the creditor thereunder. But a second or subsequent writ will take priority, if, at the time of its delivery, the execution of the first writ is suspended. What may be delivered in Execution.— The following, when within the county, may be delivered in execution by the sheriff after the in- quisition under an elegit. The officer, on receipt of the warrant, should forthwith seize such of them as consist of goods, and, if these be insufficient, then, on the creditor or his representative pointing out such of the following as are lands, tenements or hereditaments capable of actual seizure, and of which the debtor at the date of the judgment, or afterwards, had the immediate present right of possession, the officer should seize these also, and hold both goods and the lands, tenements and hereditaments above mentioned, until the inquisition and delivery by the sheriff to the creditor : — 1. All {e) the goods and chattels (/) of the (e) The sheriff is bound to deliver in execution all the goods to the creditor, although the appraised value may be vastly greater than the debt and costs. {Ormandy v. Barrow Chemical Co., L. T. Newspr. 23 Oct. 1880, p. 423.) (/) Including tenant's fixtures, which the tenant has the AND EQUITABLE EXECUTION. 11 debtor (g), except those stated on pages 12 — 14 below. If the goods and chattels deliverable under the elegit be insufficient to satisfy the execution, but not otherwise {Eaddrick v. Heslop, I'Z Q. B. 287), then: 2. Lands, tenements and hereditaments of which the debtor, or any person in trust for him, was at the date of the judgment, or at any time afterwards, seised or possessed, or which the debtor at such date, or afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit. The estate of the debtor or trustee must be in possession, and not in reversion or remainder (except in reversion expectant on the determination of a term, and, if so expectant, the reversion must be of some annual value). In the description numbered 2 above, are included the right to remove [Ormandy v. Barrow Chemical Co., uhi sup,), and ready money not on the debtor's jDerson. {B. v. Wehh, 2 Show. E. 166.) {g) It has been stated that the sect. 17 of the Statute of Frauds, repealed by the Statute Law Eev. Act, 1881, is the well-known section of that number relating to the sale of goods for 10^ or upwards. In correction of this it has been stated that the section repealed is the one commonly numbered 16, directing that writs of execution shall only bind goods from the time of the delivery of the writs to the sheriff. Neither statement is correct. The section repealed is the one numbered 18 in the Statutes of the Eealm, requiring the enrolment of recognizances, which section is numbered 17 in the revised edition of the statutes, owing to a recital in the original statute being erroneously numbered as a separate section. The 19 & 20 Vict. c. 97, s. 1, protects the title to goods acqmred for value before seizure under the writ and without notice of the delivery of any writ to the sheriff. 12 PROCEDURE ON ELEGIT following : — Estates for years (h) — for life — in tail — in fee simple — in joint tenancy — in tenancy in com- mon — in coparcenary — by entireties — by the curtesy — in dower after assignment — in freebencb — at the will of the lord of the manor (^) — of customary tenure — of the tenure of ancient demesne. Also rent- charges — tithes — and lands, tenements and hereditaments over which the debtor has a power of appointment exerciseable for his own benefit without the assent of any other person. What may not be delivered. — The following may not be delivered in execution by the sheriff under an elegit : — 1. The debtor's oxen and beasts of his plough. 2. The wearing apparel and bedding of the debtor or his family, and the tools and imple- ments of his trade, the value of such apparel, bedding, tools and implements not exceeding in the whole Jhe value of 5/. (8 & 9 Yict. c. 127, s. 8). 3. (Pro- bably) bank-notes, cheques, bills of exchange, promis- sory notes, bonds, specialties or other securities for money (Ic) . 4. Arrears of rent accrued due before (//) These may be delivered to the creditor either as part of the lands of the debtor at an annual value or as part of the chattels at a price. In either case the particulars of the term should be set out in the inquisition. (?■) As to these the creditor is liable to the like payments and services as the debtor would have been, and the creditor is entitled to hold the lands until such payments and the value of such services, as well as the debt, have been levied. (1 & 2 Vict. c. 110, s. 11.) {k) The 1 & 2 Vict. c. 110, s. 12, enabling the sheriff to seize these securities, is expressly limited to fi. fa ; but it AND EQUITABLE EXECUTIOX. 13 the inquisition (/). o. Glioses in action (/). 6. Money and articles on the debtor's person [Sunhol/Y. A/ford, 3 M. & W. 254) . 7. Growing produce which yields no annual profit, or which is produced without the labour of man {))i). 8. The 56 Gfeo. 3, c. 50, contains provisions prohibiting the sheriff from carrying off, selling, or disposing of, for the purpose of being car- ried off from lands let to farm, otherwise than as the tenant might, any straw, turnips or manure in any case, or any hay, grass, roots or vegetables, being produce of such lands. The sheriff is to give notice to the landlord a)id his steward of the seizure {)i). 9. Goods ecclesiastical. 10. Goods under distress for rent, or otherwise in custodid legis. {Ttirucr v. Ford, 15 M. & W. 212; 15 L. J., Ex. 215.) 11. Goods being upon any demised premises, unless the creditor shall, before the removal of such goods from off the premises, pay to the landlord all such rent for the premises as at the time of taking such goods is due not exceeding oneyear^feht (o) ; but no landlord of may be doubted wbetlier the reasons wby, before this act, a fi. fa. could not be levied on these securities apply to an elegit. {I) Sharp V. Key, 8 M. & W. 379 ; 9 Dowl. 770. (m) If the tenant's interest in the land be extended as land at an annual value, such produce "will belong to the creditor, subject to account. {n) See the act here referred to. The tenant's interest in farm lands should generally bo delivered as land at an annual value, equal to the annual value of the tenant's interest over and above the rent jmyable, and not as chattels at a price. (o) 8 Anne, c. 1-1, s. 1. This statute does not apply whcro 14 PROCEDURE ON ELEGIT any premises let at a weekly rent lias any lien for more than four weeks' arrears of rent, and if such premises are let for any other term less than a year, the landlord has no lien for more than the arrears of rent accruing during four such terms or times of pay- ment (7 & 8 Vict. c. 96, s. 67). 12. Goods which the debtor has assigned (7;) to or deposited with an- other person as security for a debt (see p. 29, infra). 13. Money in the hands of a third person as trustee for the debtor. 14. Goods of a foreign ambassador or minister, or of his domestic servant (7 Anne, c. 12, s. 3). 15. Generally, such things as may not be taken under a fi. fa. 16. If the goods are sufficient to satisfy the execution the lands cannot be ex- tended {Haddrick v. Seslop, 12 Q. B. 287). 17. An advowson in gross (because it cannot be valued at any certain rent). 18. The glebe lands of an eccle- siastical benefice or the churchyard. 19. Lands held upon trusts for the benefit of the debtor other than a simple clear trust for the debtor alone {Gore v. Botcser, 24 L. J., Ch. 318). 20. Under an elegit the tenancy is not subsisting or the rent is iincertain, or •where the landlord claiming is not the immediate landlord of the debtor. The landlord is not entitled to more rent than is due at the time the goods were first taken possession of by the sheriff. The Queen's taxes due at the time of the seizure, not exceeding one year's arrears, must be paid to the collector before sale or removal. (43 Geo. 3, c. 99, s. 37 ; 43 & 44 Vict. c. 19, s. 88.) (p) The enactments relating to interpleader (1 & 2 Will. 4, c. 08 ; 1 & 2 Vict. c. 45 ; and C. L. P. Act, 1860) are suffi- ciently comprehensive to apply to goods taken under elegit. The application will not be granted after deliver}'. AND EQUITABLE EXECUTION. 15 against a mortgagor, lands, tenements or heredita- ments, the legal estate in which was not at the date of the judgment or afterwards Tested in the mortgagor {Hatton v. Hayicood, L. E.ep., 9 Ch. App. 229 ; 30 L. T. Eep., N. S. 279 ; 43 L. J., Ch. 372). 21. Under an elegit against a mortgagee, lands, tenements and hereditaments, the legal estate in which was not at the date of the judgment or afterwards vested in the mortgagee. 22. Under an elegit against a mortgagee who has heen paid off, any legal or equitable estate or interest or any dis- posing power in or over any lands, tenements or hereditaments vested in any person for valuable consideration under a conveyance from the mort- gagee (18 & 19 Vict. c. 15, s. 11). 23. A re- mainder in fee whether vested or contingent {Re South, L. E., 9 Ch. 369 ; 43 L. J., Ch. 441 ; 30 L. T. Eep., N. S. 347 ; 22 W. E. 460). 24. A reversion expectant on the determination of an estate for life or any greater estate {Re South, ubi supra). 25. The interest of a debtor in lands or goods already delivered in execution by the sheriff under an elegit. 26. Generally, no lands, tenements or hereditaments of which the debtor or any person in trust for him, was not at the date of the judgment or afterwards " seised or possessed " (within the technical meaning of those words), or over which at such date or after- wards the debtor had no power of appointment which he might without the assent of any other person exercise for his own benefit {q). {q) When the debtor dies between the issuing of the ■writ and delivery in execvition, see 21 Jac. 1, c. 24. 16 PROCEDURE ON ELEGIT Seizure and Inquisition.— The writ of elegit having been delivered by the execution creditor's solicitor to the under-sheriff, the latter issues a warrant thereon to the sheriff's ojQ&cer, who places a bailiff in possession of the execution debtor's goods, and of such of the lands and tenements of the debtor in his possession as are pointed out by or on behalf of the creditor. The creditor then emj)loys a licensed valuer to make an inventory and valuation of the goods, and a valuation of the lands, and subpoenas such witnesses as may be A necessary to prove the ownership and value of the goods and lands. The subpoenas are issued from the High Court, either the Central Office or the District Registry, according as the proceedings may be in the one or the other. The evidence of the ownership of the goods is often meagre ; the possession of them by the debtor, under circumstances which do not raise a I presumption against his being the owner, is generally accepted as sufficient {Rohson v. TheUiison, L. Rep., 2 Q. B. 642). Proof of possession of the land by the defendant, or receipt of the rent by him, is j^rimd facie evidence of his title to it {Barnes v. Harding^ 1 C. B., N. S. 568), and the mere possession of land is prhnd facie evidence of a seisin in fee (Wms. on Seisin, 1878, p. 7). As soon as the creditor's solicitor is aware of the effect of the evidence that he is pre- pared to tender, although it is the sheriff's duty to prepare the inquisition, and he generally does so before the inquisition is held, yet it is better that the solicitor should inform the under-sheriff as early as possible before the inquisition is held what form of j inquisition will be required. The creditor's solicitor AND EQUITABLE EXECUTION. 17 obtains an appointment from the under-slieriff for the holding of the inquisition, which will generally, for good cause, be held at any place within the county that may be selected by the solicitor ; but it should be borne in mind that the sheriff's costs are greater if the under-sheriff should have to leave the place where the sheriff's office is situate. No notice of the writ of elegit, or of the inquisition, need be given to the debtor, and it is better that no information as to the same should be given to him by the solicitor, unless his (the debtor's) presence is indispensable as a wit- ness. The sheriff's officer summons the jury, often one day for the next, but generally at a longer in- terval ; although at the special request of the solicitor, the under-sheriff will sometimes, where there is good cause shown, assemble a jury (consisting of persons who assent to attending on such short notice) on the sa me d ay as notice is given to them. At the time appointed, the under-sheriff, sheriff's officer and jury attend to hold the inquisition. The creditor should attend by solicitor. The under-sheriff charges the jury as to the duty they have to perform, and ad- ministers the oath (r) to them. The creditor's wit- nesses being sworn, are then examined by the credi- tor's solicitor, and notes of the evidence taken by the under-sheriff. The debtor rarely attends unless subpoenaed. The inquiry is ex parte, but it is con- ceived that the debtor, and any person whose goods or lands have been seized, is entitled to be present (?■) The 30 & 31 Vict. c. 35, s. 8, empowers the sheriff to permit a juror to affirm. S. B 18' PROCEDURE ON ELEGIT and to liave taken on his "behalf such evidence ten- dered by him as may be relevant to the inquiry. The under-sheriff sums up the evidence to the jury, and the foreman, in reply to questions from the under-sheriff, states the findings of the jury as to the goods and lands and their value. The under-sheriff then fills up the parchment inquisition in accordance with the findings, and each of the jurors signs and acknowledges one of the twelve jurors' seals ap- pended to the parchment inquisition, and the under- sheriff signs the same with the sheriff's name in full, • and affixes the sheriff's seal thereto. A paper duplicate of the inquisition is also generally signed and sealed by the jurors and under-sheriff in the same manner. If the inquisition should be adjourned, the person who sits for the sheriff on the first occasion should complete the same. The under-sheriff afterwards indorses his return on the writ of elegit, and signs and seals the same, and if there is nothing special, he will generally, on payment of the sheriff's costs, hand /^^^ the writ with the return thereon and the parchment yj; , inquisition to the creditor's solicitor. The inquisition ''^'"'^^ may be good in part and void as to the residue {RolerU v. Farry, 13 M. & W. 356). ^ Delivery and Hecovery of Possession. -^a Immediately after the inquisition, the officer will give ., up the goods to the creditor or his agent ; but if the debtor tender the sum at which they have been appraised by the jury at any time before delivery, the sum must be accepted, and the goods not de- ! livered to the creditor. AND EQUITABLE EXECUTION. 19 After delivery, the creditor generally sells tlie goods by auction, often allowing the officer to have the concjuct of the sale. If the value of the goods stated in the inquisition be not sufficient to satisfy the debt and costs, and lands are to be delivered in execution, the officer will also deliver possession to the creditor of such lands; but if peaceable ^ possession cannot be delivered, the delivery under I this writ is merely symbolical, and only gives the / creditor a right of entry {Taylor v. Cole, 3 T. E. / 292). To obtain actual possession, he must commence \ an action to recover possession of the lands, obtain judgment, and issue a writ of habere facias ^wss^-.s- sionem, under which the sheriff mil give the creditor actual possession, using force if necessary. Unless at the date of the judgment, or afterwards, the debtor, or some person or persons in trust for him, . were entitled to the actual present possession of the /J lands, the creditor could not obtain judgment in the -'^ .action to recover possession. His remedy in that A^n^^case would be by sale under 27 & 28 Yict. c. 112 y^ {post), and he would have a right to the rents to be recovered by action or distress, and this without previous attornment by the tenant {Lloyd v. Davies, 18L. J., Ex. 80; 2 Ex. 103). Return. — A writ of elegit, when executed, should in all cases be retmTied, esped aHyif goods or lands have been delivered in executionunder the same, and in the latter case the inquisition also should be filed ; but ""with a return of nihil, the inquisition need not be / filed {Stonchome v. Ewcn, 2 Str. R. 874). ;y_ 20 PROCEDURE ON ELEGIT Costs, Poundage and Expenses. — The costs of the writ of elegit, which should he indorsed, are 21. 2s., plus 2s. Qd., 5s., 6s. or 7s. (as the case may be), for the warrant. The creditor is not entitled to an order to tax his costs of and incidental to the inquisition immediately after the taking of the inquisition [MaJion v. Miles, 45 L. T. Rep. (N. S.) 540) ; but, on an account being taken on the application of the debtor for re-delivery to him of the unsold goods or lands, they would be allowed. The sheriff is not entitled to any remune- ration, except by statute. By 28 (erroneously known as 29) Eliz. c. 4, it is enacted, that it shall not be lawful for the sheriff to take for the executing of any execution upon the lands, goods or chattels more or other consideration or remuneration than 12^/. of and for every 20s. where the sum exceedeth not 100/., and Q>d. of and for every 20^. being over and above the said sum of 100/. that he shall so levy or extend and deliver in execution by virtue of any such execution. The 3 Greo. 1, c. 15, s. 16, enacts, that for ascertaining the fees for executing of writs of elegit, so far as the same relate to the executing of real estates, it shall not be lawfvd for the sheriff to receive any other or greater consideration than is thereinafter mentioned (which shall be lawful to be demanded and taken), that is to say, the sum of 12d. for every 20s. of the yearly value of any lands, tenements and hereditaments, whereof possession or seisin shall be by him given, where the whole exceedeth not the yearly value of 100/., and the sum of Qd. only for every 20s. per annum over and above AND EQUITABLE EXECUTION. 21 the said yearly value of 100/. In Nash v, Allen (1 Dav. & M. 16 ; 4 Q. B. 784 ; 12 L. J., Q. B. 298), the writ of elegit was indorsed to levy 1,003/. lO-s. and interest, and 50s. costs of the writ of elegit ; the sheriff delivered in execution lands of the yearly value of 49/., and claimed and received 27/. ll.s. 9(r/. poundage. It was held that he was only entitled to poundage on the 49/. yearly value. The sheriff is not entitled to poundage on the yearly value of the lands, unless they are delivered in execu- tion by him {Carter v. Ilufjhen, 2 H. & X. 714; 27 L. J., Exch. 225). The result appears to be, that as to goods and leaseholds, the sheriff is entitled to "poundage as on a fi. fa., and, in addi- tion, as to other lands, tenements or hereditaments delivered in execution by him, to poundage on the yearly value (neither more nor less, whether the debt and costs exceed the yearly value or are less than that value). The sheriff is also entitled to the follo^ving fees under the table authorized by the judges under 7 Will. 4 & 1 Yict. c. bz>, s. 2 : — £ s. d. Warrant in London or Middlesex ... 2 6 In other counties where the most distant part of the county does not exceed 100 miles from London 5 Not exceeding 200 miles 6 Exceeding 200 miles 7 Executing warrant if the distance from the sheriff's office or the bailiff's resi- dence do not exceed 5 miles .... 1 1 If beyond that distance . . . per mile 6 ^ 22 PROCEDDllE ON ELEGIT Each, man left in possession when ahso- £ s. d. lutely necessary, if boarded per diem 3 6 If not boarded .... ,, 050 Summoning the jury, use of room and presiding at inquisition 2 2 Travelling expenses of the under-sheriff from his office to the place of inquisi- tion per mile 10 These travelling expenses are to be ap- portioned rateably to the parties if more than one inquisition be held at the same time and place. Jury 12 Drawing and ingrossing the inquisition per folio 16 Account and Recovery after Satisfaction. — The best mode of proceeding to obtain an account, and after satisfaction to recover the lands delivered in execution, is to apply to the Court out of which the elegit issued for a reference to one of the Masters to ascertain the amount received by the creditor, and for an order that if it appear that the creditor's debt and costs are satisfied possession shoidd be delivered to the debtor. As to the goods delivered to the _, ■ icreditor, it would seem that so long as they remain -/undisposed of the debtor has a similar right to recover such goods on payment into Court and applying to the Court for the return of the goods (2 Saund. 68, n. ; Ormandij v. Barrow Chemical Co., L. T. Newsp., 23 Oct. 1880, p. 423). AND EQUITABLE EXECUTION. 23 EQUITABLE EXECUTION. No judgment entered up after tlie 29tli July, 1864, affects any land until such land has been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judg- ment (27 & 28 Yiet. c. 112, s. 1). Land here includes all hereditaments, corporeal or incorporeal, or any interest therein (sect. 2). A creditor who has issued an elegit and proceeded to inquisition thereon has no charge, as against the trustee in bankruptcy or liquidation by arrangement, on the debtor's equity of redemption if, by reason of the legal estate being vested in a mortgagee, the sheriff cannot lawfully deliver the land in execution to the creditor {Hatton v. Sayicood, 30 L. T. Eop. (N. S.) 279 ; L. Eep., 9 Ch. App. 229 ; 43 L. J., Ch. 372 ; Ex parte Evans, 13 Ch. D. 252 ; 48 L. J., Bank. 97; 41 L. T. Eep. (N. S.) 665). In this case and in all others in which the sheriff cannot legally deliver the subject-matter in execution to the creditor, it is necessary, in order to constitute the creditor secured as against a trustee in bankruptcy or liquidation by arrangement or other adverse claimants, and to entitle the creditor to an order for sale of the debtor's interest in lands and hereditaments under 27 & 28 Yict. c. 112, that equitable delivery of the subject-matter in execution should be effected. Appointment of Eeceiver. — It is now settled that the appointment of a receiver is such delivery in execution. Such appointment is the best means 24 PROCEDURE ON ELEGIT of effecting equitable execution, and may be ob- tained (1) as in The Anglo-Italian Bank v. Daries, (9 Ch. D. 275 ; 47 L. J., Ch. 833 ; 39 L. T. Eep., N. S. 244), by commencing a fresb action in the Chancery Division, claiming to have it declared that the creditor is entitled to a charge, and to have such charge enforced by sale, fore- closure, delivery in execution or otherwise as the Court may direct, and asking for a receiver; or (2) as in Smith v. Con-ell (6 Q. B. D. 75 ; 50 L. J., a. B. 38 ; 43 L. T. Eep., N. S. 528), by applying in the original action in which judgment was ob- tained for the appointment of a receiver (s) , It is doubtful whether, if the first course were now taken, it would not be at some risk to the creditor on the question of costs. The second course is consequently here recommended. In the majority of the cases in which it is necessary to obtain equitable execution the debtor is in difficulties, and a delay of a day or two often results in the debtor disposing of his interest, or filing his petition for liquidation or the creditor becoming fixed with notice of an act of bankruptcy. The method of effecting equitable execution indicated below is intended to meet such cases, and especially to enable the creditor to con- stitute himself a secured creditor within the meaning of the Bankruptcy Act, 1869, sect. 12, and sect. 16, sub-sect. 5, at the earliest moment. It is better to issue a writ of elegit in all cases in which equitable (s) An ordei" for tlie ajipointmeiit of a receiver in tlie ori- ginal action, after final judgment, is " interlocutory" ■within the meaning of sub-s. 8, s. 2d, Jud. Act, 1873 (Smith v. Coivell, ichi SI'}').). AND EQUITABLE EXECUTION. 25 execution is to be obtained, notwithstanding Ex parte Evans, ubi supra, p. 23 {Anglo-Italian Bank v. Bavies, uhi supra, p. 24). If the debtor have no goods or lands which can be delivered in execution by the sheriff, the writ of elegit should not be delivered to the under-sheriff, but the creditor should show by affidavit that there are no goods or lands which can be so delivered, and such affidavit, together with the writ of elegit exhibited, should be dis- patched to the creditor's solicitor's London agents with instructions to obtain the appointment of a receiver in the original action. If, however, the debtor have some goods or lands which can be delivered, and the delay which would necessarily be entailed by waiting for the inquisition and return would probably defeat the creditor's rights against the property only deliverable by ec^uitable execution, the writ of elegit should be delivered to the under- sheriff, under which the sheriff should forthwith seize such goods and lands (as to the latter on their being pointed out to him), and the inquisition should be taken, and such goods and lands delivered to the creditor by the sheriff in the ordinary manner. If the goods deliverable under the writ of elegit de- livered to the sheriff are manifestly insufficient to satisfy the judgment debt and costs, this should be clearly shown by affidavit, and immediately after the issuing of the writ of elegit, and without waiting for seizure, inquisition or return, the affidavit should be sent to the creditor's solicitor's London agents to obtain a receiver as last above mentioned. The application in any of the above cases in which the expediency of an immediate appointment can be 26 PROCEDURE ON ELEGIT shown, sliould be made by motion ex parte (t) in the original action {Kv parte Evans, ubi supra, p. 23 ; Order LII. rule 4) for the appointment of an interim receiver without security {Douglas v. Bulbeck, L. T. Newsp., G Sept. 1879, p. 331). As soon as the order is made it binds the debtor's interest {Ex parte Evans, uhi supra) {u). After the appointment, notice thereof should at once be given to the tenants, mort- gagees and other persons, if any, who in the absence of notice might pay any moneys affected by the order to the debtor. It may be that, before the time of the appointment of the creditor's receiver, the debtor has, unknown to the creditor, committed an act of bankruptcy avail- able for adjudication. In this case it will be neces- sary for the creditor to prove that the execution against the land was executed by " seizure " before the date of the order of adjudication (sect. 95, sub- sect. 2, Bankruptcy Act, 1869). To avoid any question being raised as to whether anything more than the delivery in execution by the receiver's appointment is implied by the word " seizure " in this sub-section, the receiver should forthwith after his appointment do everything in his power to effect an equivalent to such seizure, by demanding of th© tenants the rents, or of the mortgagees or other persons, any moneys that would, but for the order, {t) If by defendant it should be on notice, but wlietber by plaintiff or defendant, the application, if on notice, may be to a judge at cbambers. {u) But if a receiver in bankruj)tcy bas j)roTiously been appointed tlio judgment creditor's order will be ineffectual {Salt V. Cooper, 16 Ch. D. 544). AND EQUITAKLE EXECUTION. 27 have been payable to the debtor. The next step to be taken is, on notice to the debtor, to move to continue the appointment of the receiver before the interim order has lapsed. The moneys received under the appointment being paid into Court, there will be no difficulty, by the ordinary process of the Coiu't, in the creditor obtaining payment of the same, so far as they will extend to satisfy the amount owing, and in the debtor enforcing an account and payment of any surplus to himself. REGISTRATION (»). — ♦ The 27 & 28 Yict. c. 112, provides as follows: — Every writ or other process of execution of any judgment entered up after the 29th July, 1864, by virtue whereof any land (ir) shall have been actually delivered in execution, shall be registered in the manner provided by the 23 & 24 Yict. c. 38, but in the name of the debtor (.r) against whom such writ or process is issued, instead of, as under the last-mentioned Act, in the name of the creditor; and no other or prior registration of such judgment shall he or he deemed necessary for any 2'>urpose ; and no reference to any such prior registration shall be {v) A different law prevails as to judgments entered up c?i or before the 29tli July, 18G4. {w) "Land" includes all hereditaments corporeal and in- corporeal and any interest therein (s. 2). {x) "Debtor" includes husbands of married women, as- signees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons (s. 2). 28 PROCEDURE ON ELEGIT required to be made in or by the memorandum or minute of sucli writ, or other process of execution which, shall be left with the Senior Master of the Court of Common Pleas for the purpose of such re- gistry. The 23 & 24 Yict. c. 38, above referred to, provides as follows : — The registry in this act re- quired of any writ of execution, or other due process on any judgment, shall be made by a memorandum or minute referring to the judgment already regis- tered, so as to connect the registry of the writ of execution, or other process, therewith, such memo- randum or minute to be left with the Senior Master of the Court of Common Pleas at West- minster, who shall forthwith enter the particulars in a book in alphabetical order by the name of the person in whose behalf the judgment upon which the writ of execution, or other process issued, was regis- tered, and also the year and the day of the month when every such memorandum or minute is left with him, and such officer shall be entitled for any such registry to 5s. (sect. 2). The only registration now required is that of the writ of elegit, if the lands be actually delivered in execution by virtue of such writ, or if not so delivered, then the order appoint- ing a receiver or other order by virtue of which such lands are so delivered ; but, in the latter case, where the order is preceded by a writ of elegit, although under such writ nothing be done, it is safer to re- gister the writ of elegit as well as the order. In any case the registration is not to be made until after the delivery in execution. In the register counties of Middlesex and York, the acts relating to the regis- tration of judgments there must also be complied with. AND EQUITABLE EXECUTIOX. 29 STATUTORY SALE. Under the Common Law Procedure Act, 1860, sect. 13, when goods have been seized in execution, and some third person claims to be entitled under a bill of sale or otherwise to such goods by way of security for a debt, the Court or a judge may order a sale of the whole or part thereof. In applying under this section, if the debtor is a trader and the debt and costs exceed 50/., the effect of sect. 87 of the Bank- ruptcy Act, 1869, requiring the sheriff to retain the proceeds of sale for fourteen days, must be borne in mind. Should the creditor be desirous of proceeding to a sale of the debtor's lands or hereditaments or his interest therein, the action, if not already in the Chancery Division, should be transferred to that division under Order LI. rule 2. The application must be on notice and may be either to the Court or in Chambers. {IliUman v. MiojJteic, 1 Ex. D. 132.) A creditor to whom any land or hereditaments, cor- poreal or incorporeal, or any interest therein, shall have been actually delivered in execution by virtue of a judgment, and whose writ or other process of execution is duly registered, is entitled forthwith, or at any time afterwards while the registry of such writ or process continues in force, to obtain from the Chancery Division, upon petition in a summary way, an order for the sale of his debtor's interest in such 30 PROCEDURE ON ELEGIT land or hereditaments. Every petition may be served upon the debtor only. The Court directs such in- quiiies to be made as to the nature and particulars of the debtor's interest and his title as appear to be necessary, and in carrying into effect the order for sale the practice of the Chancery Division with re- spect to sales of real estates of deceased persons for the payment of debts is followed. (27 & 28 Yict. c. 112, s. 4.) If it appear that any other debt due on any judgment is a charge on such land or here- ditaments, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) is to be served with notice of the order for sale, and after such service is bound thereby, and the proceeds of such sale are distributed among the persons entitled according to their priorities (sect. 5) ; and by sect, 6 of the same statute it is provided that every person claiming any interest in such land or hereditaments through or under the debtor by any means subsequent to the delivery of such land in execution is bound by every such order for sale and by all the proceedings consequent thereon. AMD EQUITABLE EXECUTION. 31 1. For Form of Prcecijje, see No. 2, Appendix E., Rules of Court, 1875. 2. Writ of Elegit. In TnE High CorRT of Justice. 1882. B. No. 100. Queen's Bench. Division. Between A. B Plaintiff, and CD Defendant. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to the sheriff of greeting: Whereas lately in our High. Court of Justice in a certain action there depending, wherein A. B. is plaintiff, and C. D. is defendant, by a judgment of our said Court, made in the said action and bearing date th.e first day of March, one thousand eight hundred and eighty- two, it was adjudged that the said CD. should pay unto the said A. B. the sum of one hundred pounds, together with, interest thereon after the rate of four pounds j)er centum per annum from the first day of March, one thousand eight hundred and eighty-two, together also with, certain costs as in the said judgment mentioned, and which costs have been taxed and allowed by one of the taxing masters of our said Court, at the sum of ten j^ounds, as appears by the certificate of the said taxing master dated the third day of March, one thousand eight hundred and eighty-two. And afterwards the said A. B. came into our said Court, and according to the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C D. in your bailiwick, except his oxen and beasts of the plough, and also all sucb lands, tenements, rectories, tithes, rents and here- ditaments, including lands and hereditaments of copyhold or customary tenure in your baiHwick as the said C D. or any one in trust for him was seised or jjossesscd of on the (a) first day of March, one thousand eight hundred and eighty-two, or at any time afterwards, or over which the said C D. on the said first day of March, one thousand eight hundred and eighty-two, or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit ; to hold to bim the said goods and chattels as his proper goods and chattels, and to hold (rt) Date of judgment. 32 PROCEDURE ON ELEGIT the said lands, tenements, rectories, tithes, rents and here- ditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of one hundred pounds and ten pounds, together with interest upon the said sum of one hundred pounds at the rate of four pounds per centum per annum from the said first day of March, one thousand eight hundred and eighty- two, and on the said sum of ten pounds at the rate of four potmds per centum per annum from the said third day of March, one thousand eight hundred and eighty-two, shall have been levied : Therefore we command you, that with- out delay you cause to be delivered to the said A. B. by a reasonable price and e'xtent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D. or any person or persons in trust for him was or were seised or possessed of on the said first day of March, one thousand eight hundred and eighty- two, or at any time afterwards, or over which the said C. D. on the said first day of March, one thousand eight hundred and eighty-two, or at any time afterwards, had any disposing power which he might withovit the assent of anj' other person exercise for his own benefit ; to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns until the said two several sums of {b) one hundred pounds and ten pounds, together with interest as aforesaid, shall have been le-\ded. And in what manner you shall have executed this our writ, make appear to us in our Court aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraise- ment ; and have there then this writ. Witness, Eotjkdell Baron Selboe]!^e, Lord High Chancellor of Great Britain, the day of in the year of our Lord one thousand eight hundred and eighty- two. Levy £110 and £ (c) for costs of execution, &c., and also interest on £100 at four pounds per centum per annum, from the 1st day of March, 1882, and on £10 at the same rate from the 3rd day of March, 1882, iintil payment, besides {b) The full amount of the judgment must be inserted or the reason for any variance must appear on the face of this writ. {Sherwood v. C'larlr, 15 M. & ^\. 764.) (c) Ante, p. 20. AND EQUITABLE EXECUTION. 33 sheriff's poundage, officer's fees, costs of levying, and all other legal incidental expenses. This writ was issued by of solicitor for the plaintiff. The defendant is a and resides at in your bailiwick. The writ is in- dorsed to levy £ and £ for costs of the same writ, and also interest on £ at £4 per cent, per- annum from the day of , 1882, and on £ at the same rate froia the day of , ia82, besides, &c. Defendant is a and re- sides at , in my bailiwick. The writ was issued out of the High Court of Jus- tice,Ciueen's Bench Division, by ,of agents for , of „ , plaintiff's solicitor. 3. Warraiit. shire to wit : — John Brown, esquire, sheriff of the county aforesaid, To my bailiff's, greeting : By vii'tue of her Majesty's WTit of elegit to me directed and delivered, I command you and each of you, jointly and severally, to seize and take all the goods and chattels of C. D. in my bailiwick (except his oxen and beasts of the plough). And also all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure in my bailiwick, as the said C. D. or any person or persons in trust for him, was or were seised or possessed of on the day of , 1882, or at any time after- wards, or over which the said C. D. on the said last-mentioned day, or at any time after- wards, had any disposing power which he might without the assent of any other per- son exercise for his own benefit, so that I may cause the same to be deHvered to A. B. as by the said writ I am commanded and forthwith certif j' the same to me. Given under the seal of my office this day of , 1882. Bj' the same sheriff [no si^na furej. / Sheriff's \ V seal. / 4. Subpoena. Ix THE High Court of Justice. 1882. B, No. 100. Queen's Bench Division. Between A. B Plaintiff, and CD Defendant, Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To [liere insert names of not more than three persons] greeting : We command you, and every of you, That all S. C 34 PROCEDURE ON ELEGIT things set aside, and ceasing every excuse, you and every of you be and apj^ear in your proper persons before our sheriff of Yorkshire, at in the said countj^, on the day of 1882, by of the clock in the forenoon of the same day, to testify the truth, according to your know- ledge, in a certain action now in the Uvieen's Bench Division of our High Court of Justice, depending between A. B. I)laintiif, and C. D. defendant, on the part of the plaintiff, in which action an inquiry will be then and there made of the goods and chattels of the said C. D. in the bailiwick of the said sheriff, except his oxen and beasts of the plough, and also of all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure in his said bailiwick, as the said C. D. or any person or persons in trust for him was or were seised or possessed of, on the day of , or at any time afterwards, or over which the said C. D. on the said day of , or at any time afterwards had any disposing power which he might, without the assent of any other person, exercise for his own benefit [?/ subpoena duces tecum, adcT], and that you then and there bring with you and produce \liere particularize the documents'] : And hereof fail not at your peril. Witness, Eoundell Baron Selborne, Lord High Chancellor of Great Britain, the day of 1882. This writ was issued by of , agents for of , solicitor for the plaintiff. 5. Charge to the Jury. Your charge is to inquire what goods and chattels (except oxen and beasts of the plough) C. D. is possessed of, and the value thereof. Your charge also is to inquire what lands, tenements, rectories, tithes, rents and hereditaments, in- cluding lands and hereditaments of copyhold or customary tenure, the said C. D. or any 2:)erson or persons in trust for him was or were seised or possessed of on the day of , 1882, or at any time afterwards, or over which the said C. D., on the said last-mentioned day, or at any time afterwards, had any disj)osing power which he might, without the assent of any other person, exercise for his own benefit, and also to inquire and say what is the yearly value thereof, that the same may at a reasonable price and extent be de- livered to A. B. To hold the said goods and chattels to the said A. B. as his own proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents, and AND EQUITABLE EXECUTION. 35 hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns until the sum of £ (d), together with interest thereon at £4 per cent, per annum from the said last-mentioned day, and the sum of £ (e) and interest thereon at the rate aforesaid from the (/) day of , 1882, shall have been levied. 6. Juror^s Oath {g). You shall well and truly try what goods and chattels (ex- cept oxen and beasts of the plough) C. D. is jjossessed of, and the value thereof. You shall also well and truly try what lands, tenements, rectories, tithes, rents, and heredita- ments, including lauds and hereditaments of coj^j-hold or customary tenure, the said C. D. or any person or persons in trust for him was or were seised or possessed of on the day of , 1882, or at any time afterwards, or over which the said C. D. on the said last-mentioned day, or at any time afterwards had any disposing power which he might without the assent of any other jDerson exercise for his own benefit, and the yearly value thereof, and a true verdict give accord- ing to the evidence. So help you God. 7. Return o/" Nihil. The within-named C. D. had not nor hath any goods or chattels in my bailiwick, nor had nor hath he or any person or persons in trust for him any land, tenement, rectory, tithe, rent or hereditament in my bailiwick, nor any dis- posing power over any such land, tenement, rectory, tithe, rent or hereditament in my bailiwick, which I can cause to be delivered to the within-named A. B. by a reasonable price and extent as within I am commanded. The answer of John Beow^n, (Sheriff's seal.) Sheriff of shire. {d) Debt. {e) Costs of judgmeut. (/) Date of allocatur. [g) bee note (?■), p. 17, ante. c2 36 PROCEDURE OX ELEGIT 8. Return of Delivery of Goods and no Lands. By virtue of this "srrit to me directed, I have caused to be delivered to the withiu-named A. B. all the goods and chattels of the Tnthin-named C. D. in my bailiwick (except his oxen and beasts of the plough) at the price of £ : To hold the said goods and chattels as his proper goods and chattels in [or part] satisfaction of the several sums and interest •vrithin mentioned : And I do fiu'ther certify and return that the said C. D. had not nor hath, nor had nor hath any person or per- sons in trust for him, any land, tenement, rectory, tithe, rent or hereditament in my bailiwick, nor any disposing power over any such land, tenement, rectory, tithe, rent or heredita- ment in my bailiwick, which I can cause to be delivered to the said A. B. as -nithin I am commanded. The answer of JoKN' BKOW^', (Sheriff's seal.) Sheriff of shire. 9. Return of Lands delivered and no Goods. By virtue of this writ to me directed, I have caused to be delivered to the within-named A. B., at a reasonable extent, all the lands, tenements, rectories, tithes, rents and heredita- ments in my bailiwick, which the within-named C. D., or any person or persons in trust for him, was or were seised or possessed of on the day of , 1882, or at anytime afterwards, or over which the said CD. on the said last- mentioned day, or at any time afterwards, had any disposing power which he might, without the assent of any other per- son, exercise for his own benefit : And I do further certify and return that the said C. D. had not, nor hath, any goods or chattels in my bailiwick which I can cause to be delivered to the said A. B. as within I am commanded. The execution of this writ appears in the inquisition hereunto annexed. Th.e answer of JoHLX Brow^^, (Sheriff's seal.) Sheriff of shire. 10. Lnquisition. shire to wit : — An inquisition indented, taken at , in the coxmty of , in the year of our Lord 1882, before me, John Brown, sheriff of the county aforesaid, by virtue AND EQUITABLE EXECUTION. 37 of the writ of elegit of our sovereign lady Queen Victoria, to me directed in this behalf and to this inquisition annexed by the oath of {insert names of the twelve jurors), twelve honest and lawful men of the county aforesaid, who, being sworn and charged, say upon their oath that C. D. named in the said writ, on the day of taking this inquisition had no goods or chattels in my bailiwick to the knowledge of the said jurors [or was possessed in his own right of the goods and chattels following, that is to say, a certain term or tenancy from year to year from Lady-day now last past, and 80 on from year to year until such term or tenancy shall be determined, of and in a certain farm-house, land and pre- mises called or known by the name of the Home Farm, situate at E., in the parish of F., in the said county, now in the occupation of the said C. D. as tenant of one Q-. H., at the yearly rent of £ , payable half-yearly at Lady-day and Michaelmas ; Also certain Hve and dead farming stock, implements of husbandry, household furni- ture and other goods, chattels and effects being at the time of the taking of this inquisition In the possession of me the said sheriff at and upon the said farm-house, land and premises, that is to say, two hundred sheep, three tables {set out particulars), of the price or value of £ , which said goods and chattels I, the said sheriff', have caused to be delivered to A. B. named in the said writ : To hold to him the said goods and chattels as his own proper goods and chattels in satisfaction [or part satisfaction] of the several sums and interest in the said wiit mentioned, as by the said writ I am commanded: And the jurors aforesaid, upon their oath aforesaid, do further say that the said C. D. on the day of , in the year aforesaid, was pos- sessed of a certain farm-house, land and premises called or known by the name of the Eichdale Farm, situate at E. in the parish of F. aforesaid, now in the occupation of the said C. D. as tenant of the said Gr. H., at the yearly rent of £ , payable half-yearly at Lady-day and Michaelmas, for a term as tenant from year to year from Lady-day now last past, and so on from year to year until the said term shall be determined, and being of the clear yearly value of £ in all issues beyond the said rent and all reprizes] [or was seised in his demesne (//) as of freehold for and duiing the term of his natural life of and in a certaia farm-house {^describe the same) now in the occupation of the said C. D. [h) In his demesne, i. e., the land is retained by the person named under his own dominion for his own use, and has not been granted out by him to any other freeholder (Wms. on Seisin, p. 6) . 38 PROCEDURE ON ELEGIT [or of one ], and being of the clear yearly value of £ in all issues beyond reprizes] [_or was seised in his demesne as of fee of and in a certain farm-house, as in the last example, down to '^ reprizes ^''^. \_If the debtor is a joint tenant, tenant in common, or coparcener : — was seised in his demesne as of fee of and in one undivided moiety \_or equal undivided part or share] of and in, as in the last example.'] [If the lands are in mortgage, hy deposit of deeds or by equitable charge, the legal estate remaining vested in the debtor: — which said farm- house, land and jiremises are in mortgage to one of , by deposit of the title deeds thereof, and a memo- randum of equitable charge on the said farm-house, land and premises dated the day of , ISS , and made between the said C. D. of the one part, and the said of the other part, subject to redemption on payment of the sum of £100 and interest thereon at £o per centum per annum, and which said farm-house, land and premises are of the clear yearly value of £ in all issues, after deducting £5 per annum in respect of the said interest and beyond all reijrizes] [or was seised or possessed for a customary estate of in- heritance in fee simple at the will of the lord, according to the custom of the manor of , in the said county of , and in a certain farm-house {describe it), the same being within and parcel of the said manor, and a customary tene- ment of the said manor, and being of the clear yearly value of £ , OS before, down to " reprizes "] [or was seised as of fee and right, or was seised as of freehold for and during the term of his natiu'al life, of and in a cei'tain annuity or yearly rent of £ , payable half-yearly, on the day of , and the day of in each year, and charged upon and issuing and payable out of a certain farm- house {describe it), and which said annuity or yearly rent is of the clear j-early value of £ in all issues beyond reprizes] [or was seised as of fee and right of and in all and singular the tithes of com, grain, haj', wood, grass and wool {as the case may be) arising, growing, renewing, increasing, or happening within the parish of in the said county, and within the bounds, limits and titheable places in the said parish ; and which said tithes are of the clear yearly value of £ in all issues beyond reprizes] [or had a disi^osing power over a certain piece of land containing or there- abouts, situate in White Street in the parish of , in the said county, now in the occupation of one , which said power was created by an indenture dated the day of ,18 , and made between of the first part, the said C. D. of the second part, and Y. Z. of the third part ; whereby the said piece of land was granted unto the said AND EQUITABLE EXECUTION. 39 Y. Z. and his heirs, to such uses as the said C. D. should api^oiut, and which said power the said C. D. on the said day of , 1882, might without the assent of any other person have exercised for his own benefit, and which said disposing power over the said piece of land is of the clear yearly value of £ in all issues beyond reprizes] ; And which said farm-house, land and premises [or one undivided moiety of and in the said farm-house, &c.] [_or annuity or yearly rent] [or tithes] [or disiDOsing power over the said piece of land] I, the said sheriff, on the aforesaid day of taking this inquisition have caused to be delivered to the said A. B. \_i/equitablu murt- gafjed, add, subject as aforesaid]. To hold according to the nature and tenure thereof to him and to his assigns according to the form of the statutes in such case made and provided until the said several sums 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. on the aforesaid day of taking this inquisition had not any other or more goods or chattels in my baiHwick, nor had he or any person or persons in trast for him. on the said day of , 1882, or at any time afterwards, any other or more lands or tenements, rectories, tithes, rents or heredita- ments in the said county whereof he the said C. D. or any person or persons in trust for him was or were seised or possessed on the day of , 1882, or at any time afterwards, nor had he the said C. D. on the said last- mentioned day or at any time afterwards any other or more lands or tenements, rectories, tithes, rents or hereditaments in the said county 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 knowledge of the said jurors. In witness whereof as well the jurors aforesaid as I the said sheriff have to this inquisition set our seals on the day and year and at the place first hereinbefore mentioned. A. (L.S.) Z. I. (l.s.) J. Q. (l.s.) E. C. (L.S.) Y. K. (l.s.) L. S. (L.s.) T. E. (L.S.) X. M. (L.s.) N. u. (L.S.) V. G. (l.s.) W. 0. (L.S.) p. w. (l.s.) X. JoHX Brow:?^ (Shei ■iff's seal) Sheiifl of shire. 40 TROCEDURE ON ELEGIT 11. Affidavit in support of &%. parte Motion for Appoint- ment of Interim Receiver without Security. 1882. B. No. 100. In the High Coitrt of Justice. Queen's Bench Division. Between A. B. .... Plaintiff, and CD Defendant. I, A. B., of 1, Brown Street, Sheffield, in the county of York, corn merchant, the above-named plaintiff, make oath and say as follows : — 1. On the day of , 1882, I obtained in this action a judgment against C. D. of 2, White Street, in Sheffield aforesaid, corn dealer, the above-named defendant, for the Slim of £100 and costs, which were subsequently taxed and allowed at the sum of £10. An office copy of the said ju.dgment is now produced and shown to me marked "A." The said judgment is still wholly [or to the extent of £ ] unsatisfied (?'). 2. On the day of , 1882, I caused a writ of elegit in execution of the said judgment to be issued directed to the sheriff of shire. 3. I have made inquiries as to the defendant's property and effects, and I verily believe that there are no goods or chattels or lands, tenements or hereditaments, or any dis- posing power over lands, tenements or hereditaments which the said sheriff can cause to be delivered in execution by virtue of the said wiit of elegit, save and except certain household furniture and effects which are insufficient to satisfy the said judgment debt and costs, and the value of which said furniture and effects is under £ 4. The defendant is the owner in fee simple {or as the case may be) of two dwelling-houses and premises numbered respectively 2 and 3 in North Street, in Sheffield, aforesaid, subject to a mortgage thereof in fee to E. F. of Sheffield, aforesaid, gentleman, for seeming the sum of £500, and interest at £5 per cent, per annum. (i) This affidavit should be sworn before the sheriff seizes any goods, unless the inquisition has been held, in which case the writ of elegit, with the retm-n indorsed, and if anything has been delivered thereunder, also the inquisition, should be referred to in this affidavit as exhibits. If the land is in a register county state the fact of registration of the judgment in the county register. AND EQUITABLE EXECUTION. 41 5. The said dwelling-houses and premises are of the yaltie of £1000 and upwards, and of tho clear yearly value of £50 and upwards. 6. By reason of the said dwelling-houses and premises being in mortgage as aforesaid, and the legal estate therein being vested in the said E. F. as such mortgagee as aforesaid, the said sheriff cannot cause the said dwelling-houses and premises, or the defendant's estate or interest therein, to be delivered in execution by virtue of the said writ of elegit. 7. It is desirable, in order to enable me to obtain equitable execution of the said j udgment against the equity of redemp- tion of the defendant in the said dwelling-houses and premises, that a receiver be aj^pointed to receive the rents and profits, surplus or other proceeds of sale and all other moneys to which the defendant is now or may be entitled arising from or in respect of the said dwelling-houses and premises, but without ijrejudice to the rights of the said E. F. or of any other prior incumbrancers, and as regards the said E. F. or any other prior incumbrancers in possession without prejudice to such possession. 8. The defendant is in pecuniary diificulties and it is of the utmost importance that an interim receiver should be ap- pointed immediately and without any delay to be occasioned by such receiver giving security and without previous notice to the defendant, and unless such receiver be so appointed and equitable execution obtained in manner aforesaid, I verily believe that the defendant by assigning his estate or interest in the said dwelling-houses and premises on receiving notice of any application for the appointment of such receiver, will deprive me of the benefit of my said judgment, or that I shall otherwise lose the benefit thereof. 9. G. H., of Sheffield aforesaid, chartered accountant, is, in my judgment, a fit and proper person to be api^ointed such interim receiver. Sworn, &c. 12. Affidavit of fitness of proposed Receiver. [Heading as in No. 11.] I. K. L., of , bank manager [or other acquaintance of the receiver's), make oath and say as follows: — - 1. I have for years now last past and upwards known and been well acquainted with G. H., of Sheffield aforesaid, chartered accountant, the person proposed to be appointed in 42 PROCEDURE ON ELEGIT, ETC. fins action tlie receiver of the rents and profits, surplus or other proceeds of sale, and all other moneys to which the de- fendant is now or may be entitled arising from or in respect of certain dwelling-houses and premises situate in Sheffield aforesaid. 2. The said G. H. is and has for years now last past and upwards been an accountant carrying on business at Sheffield aforesaid. 3. The said Gr. H. is a person of respectability and in- tegrity and of good credit, and is, in my j udgment, a fit and proper person to be appointed such receiver as aforesaid. Sworn, &c. The above and another affidavit in similar form by some other acquaintance of the proposed receiver's are required. For Form of Petition for Sale under 27 & 28 Vict. c. 112, see Upjohn's Chancery Forms, 1879, p. 721. INDEX. Abbott, Ex parte, Re Ooitrlay, 6 Account, 6, 22 Act of bankruptcy, seizure and deliverj' of goods of trader for not less than 50/. is, 9 Advowson in gross, 14 Affidavit, in support of application for receiver, form of, 40 of fitness of proposed receiver, form of, 41 Affirmation, 17, n. (r) Ambassador, 14 Anglo-Italian Bank v. Davies, 24 Apparel, 12 Bank notes, 12 Bankruptcy trustees, rights of, against elegit creditors, 7 Beasts of the plough, 12 Bedding, 12 Charge to jury, form of, 34 Choses in action, 13 Churchyard, 14 Composition, 9 Copyholds, tenant by elegit of, liable to same services as debtor, 12, n. {i) 44 INDEX. Costs, 20 Custodid legis, goods in, cannot be delivered, 13 Death, of debtor after execution, 15, n. (g) Debtor's summons, act of bankruptcy by, notice of, is equal to notice of any other act of bankruptcy, 8, n. (c) Delivery, 18 equivalent to sale, when, 8, 9 in execution, judgment does not affect land until, 23 Demesne, 37, n. [h) Ejectment, 19 Elegit, form of writ of, 31 advantage of, 6 creditor's rights against trustee in bankruptcy, liquida- tion by arrangement and composition, 7 — 10 creditor, entitled to, into different counties, 6 debtor's interest in land or goods ali'eady delivered, can- not be delivered, 15 what may bo delivered under, 10 what may not be delivered under, 12 Equitable execution, 23 Equity of redemption, when legal estate in mortgagee cannot be delivered, 14 Evidence on inquisition, 16 Expenses, 20 Fees to sheriff, 21 Fixtures, are deliverable, 10, n. (/) Glebe lands, 14 Goods, are bound from delivery of writ to sheriff, 11, n. {g) title to, acquired for value without notice of delivery of writ, protected, 11, n. {(j) Bale of, under statute, 29 INDEX. 45 Growing produce, 13 Habere fac. poss., 19 Hereditaments, 11 Inquisition, evidence at, 16 preparation of, 16 adjournment of, 18 costs of, 20 form of, 36 Instruments, negotiable, 12 Juror's oath, form of, 35 Jury, 17 charge to, form of, 34 Landlord, Lien for rent, 13 Lands, 11 Liquidation by arrangement, 9 Money, 10, n. (/), 12, n. (/,•), 13 Mortgagee, what may not be delivered under elegit against, 15 Mortgagor, what may not be delivered under elegit against, 15 Nihil, form of return of, 35 Notice, to sheriff does not affect creditor, 9 of inquisition, not necessary, 17 Oath, 17 form of, 35 Officer, duty of, 10, 16 Oxen, 12 46 INDEX. Possession, recovery of, 18 Poundage, 20 Power of appointment, 12, 15 Prpecipe, form of, 31 Priority of elegit creditors amongst themselves, 10 Eeceiver, 24 appointment of, is delivery in execution, 24 affidavit in support of application for, form of, 40 affidavit of fitness of proposed receiver, 41 Eecovery, of possession, 18 by debtor after satisfaction, 22 Redemption, equity of, where legal estate in mortgage cannot be delivered under elegit against mortgagor, 1 5 of goods, 18, 22 Eeference to master to take account, 22 Registration, 27 Remainder, 11, 15 Eent, arrears of, 12 landlord's lien for, 13 Return, 19 forms of, 35, 36 Eeturn of goods, 18, 22 Eeversion, 11, 15 Sale, statutory, 29 Satisfaction, recovery by debtor after, 18, 22 Secured creditor, what constitutes, 8, 24, 26 Seisin, 16 Seizui-e, 8, n. [b), 10, 16, 26 Smith V. Coioell, 24 INDEX. 47 Statutes, 13 Edw. 1, c. 18 (Elegit), 5 28 (erroneously called 29) Eliz. c. 4 (Poundage), 20 21 Jac. 1, c. 24 (Deceased debtor), 15, n. {q) 29 Car. 2, c. 3, s. 10 (Trust estates), 5 s. 10 (Goods bound from delivery of wi-it), 11, n. ((/) 8 Anne, c. 14, s. 1 (Eent), 13, n. (o) 3 Geo. 1, c. 15, s. 16 (Poundage), 20 43 Geo. 3, c. 99, s. 77 (Taxes), 13, n. (o) 56 Geo. 3, c. 50 (Growing crops), 13 1 & 2 Will. 4, c. 58 (Interpleader), 14, n. (p) 7 Will. 4 & 1 Yict. c. 55 (Fees), 21 1 & 2 Vict. c. 110, s. 11 (Elegit), 5 s. 12 (Bank notes, &c.), 7, 12, n. [k) 7 & 8 Yict. c. 96, s. 67 (Rent), 14 18 & 19 Vict. c. 15, s. 11 (Mortgagees), 15 19 & 20 Vict. 0. 97 (Protection of purcbasers of goods), 11, n. (.7) 23 & 24 Vict. c. 38 (Eegistration), 27, 28 32 & 33 Vict. c. 71, s. 11 (Bankruptcy— Eelation), 7 s. 12 (Bankruptcy, secured creditor), 8, 25 s. 16, sub-s. 5 (Bankruptcj', secured creditor), 8, 25 s. 87 (Bankruptcy, retention of pro- ceeds), 6 s. 95 (Bankruptcy, protection), 8, 26 s. 126 (Bankruptcy, composition), 9 36 & 37 Vict. c. 66, s. 25, sub-s. 8 (Judicature, receiver), 24 43 & 44 Vict. c. 19, s. 88 (Taxes), 13, n. (o) 44 & 45 Vict. c. 59(Stat. LawEev. Act), 5, n. (a), 11, n. {d. cloth. COOKSON ON THE HISTORICAL METHOD OF STUDYING ENGLISH LAW. Price Is., by post Is. \d. ALLEN'S INQUIRY INTO THE RISE AND GROWTH OF THE ROYAL PREROGATIVE IN ENGLAND. A New Edition, with the Author's Latest Con-ections, Bio- grapliical Notices, &c., &c. 8vo. 1849. 5s. (Pub. at 12s.) GUST'S TREATISE ON THE WEST INDIAN IN- CUMBERED ESTATES ACTS. With an Appendix, containing the Acts, General Rules, &c. , and Reports of Cases, &c. Second Edition. 12mo. Price 10s. 1865. 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