Page:Harvard Law Review Volume 4.djvu/138

122 122 HARVARD LAW REVIEW. Other property, there was no reason why a judgment against him should not bind him personally, in form as well as in legal effect, unless he employed the proper means for hmiting the judgment to the assets by descent in his possession. In respect to the mode in which it was enforced, a judgment against an heir differed widely from a judgment against an ex- ecutor. A general judgment against an heir, i.e.y a judgment which was not limited to the assets which he had by descent, did not differ at all, either in its form or in respect to the mode in which it was enforced, from ordinary judgments. On the other hand, a special judgment against an heir, i.e.^ a judgment which was limited to the assets which he had by descent, could be enforced only against such assets. What was the nature of the execution which issued on such a judgment? At common law, as well as by statute in England, the only kind of execution against land was (and is) an extent.^ Ordinarily, as has been seen, the land of a judgment debtor could not be taken on execution at common law, and even when an extent was given by statute it was limited to one half of the land belonging to the judgment debtor; but a judgment against an heir on the obligation of his ancestor, />., when the judgment was limited to the assets which the heir had by descent, was an excep- tion to the general rule in both of the foregoing particulars ; and the reason is obvious. If such a judgment could not have been satisfied out of the land which had descended to the heir, it could not have been satisfied at all, and so would have been worthless.^ Therefore, an extent could be issued on such a judgment at common law ; and whenever an extent issued at common law,^ it went against all the land that was liable, the arbitrary limitation of an extent to one half of the debtor's land existing only by statute. Such, then, being the remedy provided by the common law for enforcing against an heir an obligation imposed upon him by his ^ See supra, p. 119. The reader must not be misled by the name of a writ of elei^t. This name (which was taken from a word which the writ always contained when legal proceedings were in Latin) has nothing to do with the nature or legal operation of the writ. Every elegit is an extent, though not every extent is an elegit. An extent made under an elegit differs from other extents only, first, in being made under the authority of a statute, and, secondly, in being limited to one half of the land. 2 See Sir William Harbert's Case, 3 Rep. b, 12a. 8 An extent at the suit of the king is the typical case of an extent at common law. Land could always be taken in execution to satisfy a judgment in favor of the king.