43. That the Elegit hath relation to the Judgment, and so becomes prior to the King's Title; like the Relation of a Bargain and Sale to an Inrollment. And as a strong Argument for it, the Words in the Writ of Elegit were repeated and enforced, quo die Jud' reddit' fuit, which shewed a Relation to that Day; and consequently did affect the Lands at a Time when the King had no Interest in it.
Arugment for Defendant in Error. From the Course of the Court of Exchequer.—On the other Side it was argued with the Judgment, That this was the common Practise of the Court of Exchequer in this Case; that the Course of a Court is the Law of that Court, and to be taken Notice of by all other Courts; that 'tis Time out of Mind, and consequently of equal Duration with the Common Law, and always deemed to be Parcel thereof. That the Records and Experience of the ancient Clerks were both concurring to prove it the common Usage in the Exchequer. That when Lands are seized into the King's Hands by Virtue of an Outlawry and Inquisition, it was [74] never known that the King's Hands were removed by Force of an Elegit sued afterwards, tho' upon a Judgment precedent. That it hath been their constant Practise to continue the Pernancy of the Profits in the King, notwithstanding such Elegit. That 'twould be of dangerous Consequence to alter the same by a new Opinion. That 'tis not so very material, whether this Practise be more reasonable than another, but whether it be certain and known. For if it be so, 'tis much better to have it continued than changed, because of the Confusion which must follow, by shaking the Rights and Possessions enjoyed under the former Practise. That 'tis not in many Cases so considerable what the Rule is, as that it be fixed and understood; and therefore no Reason to alter it, or at least not without the Aid of the Legislature; for by the same Colour that some Judges of Parts and Sagacity shall think fit to swerve from their Predecessors, others of less Capacity may pretend to do the same, and so nothing but Uncertainty would ensue.
Judgment. Elegit.—But besides, this is not merely a Course of the Court, 'tis also agreeable to the Rule and Reason of the Laws. Baden hath no Interest in the Land 'till he sues his Elegit; whereas the King's Title to the Land was compleat by the Outlawry and Inquisition, which was Prior to the Elegit; and a Judgment of it self doth not affect the Land, till Election made. A Judgment at Law is only an Award of the Court ascertaining of the Debt, and declaring that the Plaintiff shall recover. In it self it doth no more affect the Land than a Bond. 'Tis true, when the Suit is ended by a Judgment, the Party may resort to an Elegit for his Execution, if he thinks fit, and can find any Thing subject thereto. At the Common Law, before the Statute of Westminst. 2. cap. 18. a Subject, upon his Judgment for Debt or Damages, could not have Execution by taking away the Possession of his Adversary's Land, because that would hinder the Man's following of Husbandry and Tillage, which then was reckoned beneficial to the Publick: So is 2 Inst. 394. and Sir William Herbert's Case, 3 Rep. 11, 12. nothing but a Levari or Fieri facias. Then by the Statute, sit in Electione illius, and Coke in his Comment on those Words, saith, After the Suing of an Elegit, he can't have a Capias: So that by him, the Suing out of the Writ is the Determining of his Election. 2 Inst. 395. Foster and Jackson's Case. Hob. 57. Even the Elegit it self doth not (when sued out) immediately touch the Lands; for if the Chattels be sufficient to pay the Debt, and it so appears to the Sheriff, that thereby he may satisfy the Plaintiff's Demand, then he ought not to extend the Land; and this appears by the Frame of the Writ, as 'tis in the Register 299. 2 Inst. 395. which shews that no Title can be acquired to the Land, till the same be Extended.
Relation a Fiction. Judgment affirmed.—The Elegit cannot by Law have Relation to the Time of the Judgment, so as to avoid the King's Title; for Relation is only a Fiction; and Fiction shall never bind or prejudice the King in his Right, much less in his Prerogative; and no Case can be shewn, where a Relation shall conclude the King: [75] nor is it any Objection, That this is a Prerogative for the Benefit of a Subject; for in Truth all the Prerogatives are for the Advantage and Good of the People, or else they ought not to be allowed by the Law. Besides Practise and Reason, there's express Authority in our Books for it; as the Case of Masters versus Sir Herbert Whitfield 1657. Hardres 106. And if there were no Book for it, the Practise is
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