Execution.]—If the judgment is general, execution is sued out as in ordinary cases; or the plaintiff may sue out a special writ in the nature of a writ of extent, suggesting that the heir has lands by descent, and praying execution.() If the judgment be special, a special writ of execution is also sued

out.

Extent against Heir on Special Judgment against him.

VICTORIA, &c., to the sheriff &c. [recite judgment against C. D., son and heir of E. F., deceased,] &c. &c., to be levied of the lands and tenements which were of the said E. F., in fee simple at the time of his death, in the hands of the said C. D., whereof the said C. D. is convicted: Therefore we command you, that by the oath of honest and lawful men of your bailiwick you diligently inquire of what lands and tenements the said E. F. was seised in fee simple at the time of his death, and which descended to the said C. D., as son and heir of the said E. F., by hereditary right after the death of the said E. F., and of which the said C. D., on the , on which day the said A. B. sued out his writ of summons for the debt aforesaid against the said C. D. was seised in his demesne as of fee, and how much those lands and tenements, with the appurtenances, are worth by the year in all issues beyond reprises, according to the true value of the same, and when the said inquisition shall have been by you so made, that without delay you deliver the said lands and tenements, with the appurtenances, to the said A. B., to hold to him and his assigns as his freehold until the said debt and sum first aforesaid, and costs aforesaid, shall be thereof fully levied. And in what manner, &c. &c., under your seal and the seals of those by whose oath you shall make the said extent and appraisement; and have there the names of those by whose oath you shall make the said extent and appraisement, and this writ. Witness, &c.

Scire facias.]-Where the action was against the ancestor, who had died after judgment, it may be revived against the heir and terretenants, or tenants of the lands, whereof the ancestor was seised at the time of the judgment, or at any time afterwards. (2)

2. Devisees.

An action lies against a devisee in the same circumstances as against an heir.(3)

(1) Bowyer v. Rivitt, W. Jon. 87.

(*) See post, "Death, &c., of party."

(3) 11 Geo. 4 & 1 Will. 4, c. 47. See Braithwaite v. Skinner,

5 M. & W. 313.

CHAPTER IX.

PEERS AND MEMBERS OF PARLIAMENT.

Peers.

A PEER cannot be held to bail, nor outlawed, nor taken in execution by ca. sa. ;(1) and if during the action a party become a peer, he is entitled, on motion, to be discharged, if in custody. (2) If afterwards, however, the privilege ceases, the plaintiff is not barred from suing out a new writ of execution. (3) The peer should be correctly described in the writ of summons by his title of dignity.(*) But the court has refused to set aside a writ for omitting the christian names of a baron, and simply describing him as "The Right Hon. Baron S."(")

Member of Parliament.]—A member of the House of Commons is also privileged during the sitting of Parliament, and practically during the whole year, from being held to bail, outlawed, or taken in execution. Moreover, where a trader, otherwise subject to the bankrupt laws, is a member of Parliament, "if any creditor or creditors of any such trader having privilege of Parliament to an amount, hereinafter declared to be requisite (501.), to support a petition for adjudication of bankruptcy, shall file an affidavit in any court of record at Westminster, that such debt is justly due to him, and that such debtor, as he verily believes, is such

of

(1) See those titles post.

(2) Phillips v. Wellesley, 1 Dowl. 9; Ex parte Burton, Id. 14. (3) 2 Jac. 1, c. 13, s. 2.

() Thus: The Right Hon. John Thomas, Baron

or Viscount

[or Earl

&c.] The eldest and other sons of the higher peers are generally known by titles of courtesy, and should be styled thus: "John Russell, Esq., commonly called Lord John Russell."

(5) Wells v. Baron Suffield, 4 C. B. 750.

trader, and shall sue out of the same court a writ of summons in the form contained in schedule E., to this act annexed, against such trader, and serve him with a copy of such summons, if such trader shall not within one month after personal service of such summons pay, secure, or compound for such debt to the satisfaction of such creditor or creditors, or enter into a bond in such sum, and with two sufficient sureties, as any of the judges of the court out of which such summons shall issue, shall approve of, to pay such sum as shall be recovered in such action, together with such costs as shall be given in the same, and within one month next after personal service of such summons cause an appearance to be entered to such action in the proper court in which the same shall have been brought, every such trader shall be deemed to have committed an act of bankruptcy from the time of the service of such summons."(1) Thereafter the proceedings in bankruptcy against such trader are the same as in other cases, except that he shall not be subject to be arrested or imprisoned during the time of such privilege, except in cases made felonies or misdemeanors by the act.(2)

Form of Writ of Summons to be Served on a Member of Parliament under "the Bankrupt Law Consolidation Act, 1849."

VICTORIA, &c.

To C. D., of

hath been

&c., Esq., having privilege of Parliament, greeting: We command you that within one calendar month next after personal service hereof on you, you do cause an appearance to be entered for you in our Court of in an action [on promises or debt, or as the case may be], at the suit of A. B., and you are hereby informed that an affidavit of debt for the sum of £ filed in the proper office, according to the provisions of "the Bankrupt Law Consolidation Act, 1849," and that unless you pay, secure, or compound for the debt sought to be recovered in this action, or enter into such bond as by the said act is provided, and cause an appearance to be entered for you within one calendar month next after such service hereof, you will be deemed to have committed an act of bankruptcy from the time of the service hereof.

Witness

at Westminster, the

day of

(1) Bankrupt Consolidation Act, 12 & 13 Vict. c. 106, s. 77.

(2) Ibid. s. 66.

This Writ is to be served within four calendar months from the date thereof, including the day of such date, and not afterwards, and is to be endorsed with the name of the Plaintiff, or his attorney, in manner following, that is to

say:

This writ was issued by E. F., of [or plaintiffs] within named :

Or,

attorney, for the plaintiff,

This writ was issued in person by the plaintiff within named, who resides at [mention the city, town, or parish, and also the name of the hamlet, street and number of the house of the plaintiff's residence, if any such there be.]

CHAPTER X.

CLERGYMEN,

Fieri facias de bonis ecclesiasticis.]-When a creditor fails to levy any goods of a beneficed clergyman, under the writ of execution addressed to the sheriff, he may by another writ have recourse to the ecclesiastical goods of the debtor; but this writ is of a limited nature, being determinable by his death, resignation, or amotion.(1) Thus, where a writ of fi. fa. has been sued out against a party, and the sheriff has returned nulla bona, and that he is a beneficed clerk having no lay fee, the course is to sue out a writ of fi. fa. de bonis ecclesiasticis, directed to the bishop of the diocese, who is the ecclesiastical sheriff. (2) It is irregular to issue the fi. fa. de bonis ecclesiasticis, before a previous writ to the sheriff has been returned as above; and it is not too late, three months after the sequestration, to apply to the court to set it aside, though, in the interval, a fi. fa. to the sheriff has been issued and returned. (3)

Form of Fi. Fa, de Bonis Ecclesiasticis.

by

reco

VICTORIA, &c., to the Right Reverend Father in God divine permission lord bishop of greeting. We command you that of the ecclesiastical goods of C. D., clerk in your diocese, you cause to be made £ which A. B., lately in our Court of vered against him, whereof the said C. D. is convicted, together with interest upon the said £ at the rate of four pounds per centum per annum, from the day of on which day the judgment aforesaid was entered up, and have that money, together with such interest as aforesaid, before, &c., at Westminster, immediately after the execution hereof, to be rendered to the said A. B. for

() Bunter v. Cresswell, 14 Q. B. 825. (2) Phelps v. St. John, 10 Exch. 895.

A. D.