Writ of Elegit.—The writ of elegit is a process enabling the creditor to satisfy his judgment debt out of the lands of the debtor. It derives its name from the election of the creditor in favour of this mode of recovery. It is founded on the Statute of Westminster (1285, 13 Ed. I. c. 18), under which the sheriff was required to deliver to the creditor all the chattels (except oxen and beasts of the plough) and half the lands of the debtor until the debt was satisfied. By the Judgments Act 1838 the remedy was extended to all the debtor’s lands, and by the Bankruptcy Act 1883 the writ no longer extends to the debtor’s goods. The writ is enforceable against legal interests whether in possession or remainder (Hood-Barrs v. Cathcart, 1895, 2 Ch. 411), but not against equitable interests in land (Earl of Jersey v. Uxbridge Rural Sanitary Authority, 1891, 3 Ch. 183). When the debtor’s interest is equitable, recourse is had to equitable execution by the appointment of a receiver or to bankruptcy proceedings.
The writ is directed to the sheriff, who, after marking on it the date of its receipt, at once in pursuance of its directions holds an inquiry with a jury as to the nature and value of the interest of the debtor in the lands extended under the writ, and delivers to the creditor at a reasonable price and extent in accordance with the writ, the lands of which the debtor was possessed in the bailiwick. When the sheriff has returned and filed a record (in the central office of the High Court) of the writ and the execution thereof, the execution creditor becomes “tenant to the elegit.” Where the land is freehold the creditor acquires only a chattel interest in it; where the land is leasehold he acquires the whole of the debtor’s interest (Johns v. Pink, 1900, 1 Ch. 296). The creditor is entitled to hold the land till his debt is satisfied, or enough to satisfy it is tendered to him, and under the Judgments Act 1864 the creditor may obtain an order for sale. Until the land is delivered on execution and the writs which have effected the delivery are registered in the Land Registry, the judgment does not create any charge on the land so as to fetter the debtor’s power of dealing with it. Land Charges Registration Acts 1888 and 1900. (See R.S.C., O. xliii.)
Writs of Possession and Delivery.—Judgments for the recovery or for the delivery of the possession of land are enforceable by writ of possession. The recovery of specific chattels is obtained by writ of delivery (R.S.C., O. xlvii., xlviii.).
Writ of Sequestration.—Where a judgment directing the payment of money into court, or the performance by the defendant of any act within a limited time, has not been complied with, or where a corporation has wilfully disobeyed a judgment, a writ of sequestration is issued, to not less than four sequestrators, ordering them to enter upon the real estate of the party in default, and “sequester” the rents and profits until the judgment has been obeyed (R.S.C., O. xliii. r. 6).
Equitable Execution.—Where a judgment creditor is otherwise unable to reach the property of his debtor he may obtain equitable execution, usually by the appointment of a receiver, who collects the rents and profits of the debtor’s land for the benefit of the creditor (R.S.C., O. l. rr. 15a-22). But receivers may be appointed of interests in personal property belonging to the debtor by virtue of the Judicature Act 1873, s. 25 (8).
Attachment.—A judgment creditor may “attach” debts due by third parties to his debtor by what are known as garnishee proceedings. Stock and shares belonging to a judgment debtor may be charged by a charging order, so as, in the first instance, to prevent transfer of the stock or payment of the dividends, and ultimately to enable the judgment creditor to realise his charge. A writ of attachment of the person of a defaulting debtor or party may be obtained in a variety of cases akin to contempt (e.g. against a person failing to comply with an order to answer interrogatories, or against a solicitor not entering an appearance in an action, in breach of his written undertaking to do so), and in the cases where imprisonment for debt is still preserved by the Debtors Act 1869 (R.S.C., O. xliv.). Contempt of Court (q.v.) in its ordinary forms is also punishable by summary committal.
County Courts.—In the county courts the chief modes of execution are “warrant of execution in the nature of a writ of fieri facias”; garnishee proceedings; equitable execution; warrants of possession and delivery, corresponding to the writs of possession and delivery above mentioned; committal, where a judgment debtor has, or, since the date of the judgment has had, means to pay his debt; and attachment of the person for contempt of court. If the judgment debtor assaults the bailiff or his officer or rescues the goods, he is liable to a fine not exceeding £5.
Scotland.—The principal modes of execution or “diligence” in Scots law are (i.) Arrestment and furthcoming, which corresponds to the English garnishee proceedings; (ii.) arrestment jurisdictionis fundandae causa, i.e. the seizure of movables within the jurisdiction to found jurisdiction against their owner, being a foreigner; this precedure, which is not, however, strictly a “diligence,” as it does not bind the goods, is analogous to the French saisie-arrêt, and to the obsolete practice in the mayor’s court of London known as “foreign attachment” (see Glyn and Jackson, Mayor’s Court Practice, 2nd ed., vii. 260); (iii.) arrestment under meditatione fugae warrant, corresponding to the old English writ of ne exeat regno, and applicable in the case of a debtor who intends to leave Scotland to evade an action; (iv.) arrestment on dependence, i.e. of funds in security; (v.) poinding, i.e. valuation and sale of the debtor’s goods; (vi.) sequestration, e.g. of tenant’s effects under a landlord’s hypothec for rent; (vii.) action of adjudication, by which a debtor’s “heritable” (i.e. real) estate is transferred to his judgment creditor in satisfaction of his debt or security therefor. In Scots law “multiplepoinding” is the equivalent of “interpleader.”
Ireland.—The law of execution in Ireland (see R.S.C., 1905, Orders xli.-xlviii.) is practically the same as in England.
British Possessions.—The Judicature Acts of most of the Colonies have also adopted English Law. Parts of the French Code de procédure civile are still in force in Mauritius. But its provisions have been modified by local enactment (No. 19 of 1868) as regards realty, and the rules of the Supreme Court 1903 have introduced the English forms of writs. Quebec and St Lucia, where French law formerly prevailed, have now their own codes of Civil Procedure. The law of execution under the Quebec Code resembles the French, that under the St Lucia Code the English system. In British Guiana and Ceylon, in which Roman Dutch law in one form or another prevailed, the English law of execution has now in substance been adopted (British Guiana Rules of Court, 1900, Order xxxvi.)., Ceylon (Code of Civil Procedure, No. 2 of 1889); the modes of execution in the South African Colonies are also the subject of local enactment, largely influenced by English law (cf. the Sheriffs’ Ordinance, 1902, No. 9 of 1902), (Orange River Colony) and (Proclamation 17 of 1902), Transvaal (Nathan, Common Law of South Africa, vol. iv. p. 2206); and generally, Van Zyl, Judicial Practice of South Africa, pp. 198 et seq.