not punctually paid, with interest from the date, this latter stipulation is a penalty, and cannot be enforced, the interest accruing only from the expiration of the year. But if the bond were to pay in twelve months $100, with interest from the date, and if the principal was punctually paid, the interest to be remitted, the debtor can entitle himself to a remission of the interest only by paying the principal punctually. Upon like principles, when a deed of trust to secure a debt not payable for ten years, stipulated for the annual payment of interest, and provided that if any such annual interest were not punctually paid, the whole debt should immediately become payable, and that the deed might be enforced as to all, it was held that the proviso was a penalty against which equity would relieve, in case the interest were paid or tendered at any time before a sale under the deed. But had the debt been made payable immediately, with a proviso that the deed should not be liable to be closed for ten years, if the interest were annually paid, equity would not have interposed. (Nicholls v. Maynard, 3 Atk. 521; Waller v. Long, 6 Munf. 78; Bonafous v. Rybot, 3 Burr. 1370; Gowlett v. Hansforth, 2 Wm. Bl. 958; Mayo v. Judah, 5 Munf. 495.) This equitable principle is frequently invoked where. a lessee neglects to pay his rent at the time specified, whereby a right of re-entry accrues to the lessor, or the lease is in such contingency absolutely avoided; and the principle has even been applied by a court of law, by a rule to stay proceedings, upon payment or tender of the rent. (1 Lom. Dig. 356-'7; Goodtitle v. Holdfast, 2 Stra. 900; Anon. 1 Wils. 75.) The practice in equity allowed to the tenant relief against the forfeiture at any indefinite time, but the statute touching re-entries, already referred to (Ante p. 239, 2k) limits the period to twelve months, and enables the tenant to assert his equity in court of law, as well as in chancery. (V. C. 1873, c. 138, § 17 to 20, 24; Peachy v. Somerset, 2 Wh. & Tud. L. Cas. (Pt. II), 458.) 21. Where the Condition is to do a Collateral Thing. Compensation is by no means universally possible in case of conditions to do collateral things, and when the performee of the condition cannot be put into a plight essentially the same, or at least as advantageous, as if the condition had been performed, equity does not interpose. Hence a breach of the condition by assigning the premises without license; by the ten ant's neglecting to repair; by omitting to keep the premises insured; by adopting a prohibited course of husbandry; or by exercising a forbidden trade on the premises; will in none of these cases be relieved against in equity, because there is no known measure of damages, whereby the breach may be compensated. Neither will equity interpose to grant relief against forfeitures of shares in public works, for non-payment of calls, from considerations of public policy, connected with the necessity of punctuality in such cases; nor where the forfeiture is exacted by a statute, nor in pursuance of a condition in law. (1 Lom. Dig. 357-'8; Peachy v. Somerset, 2 Wh. & Tud. L. Cas. (Pt. II), 460 & seq) It should be observed that, whilst equity will give a person relief against a penalty, where it is only intended to secure the performance of a stipulation, so, on the other hand, it will not permit him to elect to pay the penalty, and so evade the specific execution of the contract, unless the alternative was contemplated. (Peachy v. Somerset, 2 Wh. & Tud. L. Cas. (Pt. II), 465.) 3. Condition to pay stipulated Damages. Al The parties may fix their own measure of damages for the breach of any stipulation between them, provided they appear to have made an actual estimate, in good faith, of the loss which will accrue in the contingency contemplated. In that case equity will not interfere to prevent the performee from enforcing the payment of the full sum agreed on, which is, in no sense, a penalty in order to secure performance, but the true measure of damage occasioned by non-performance. It is not enough to make the damages lequidated, and recoverable eo numero, that they should be so denominated by the parties. though said to be liquidated, yet if the exhorbitance of the estimate or any other circumstance shall satisfactorily demonstrate that really no actual and bona fide computation was made of the loss which would result from the breach of the contract, the sum named is a penalty, and not liquidated damages. Amongst other circumstances which refute the idea. of any real computation, and therefore of the damages being truly liquidated, is the fact that the stipulations are several, and an aggregate sum is named; for it is impossible that the same sum can be at once a compensation for the breach of all the stipulations, and of each one separately. (1 Lom. Dig. 358-'9; Peachy v. Somerset, 2 Wh. & Tud. L. 34. Estates on Condition, which are Securities for Money. Estates on condition, which are securities for money, arise, (1), By compulsory process of law; and (2), By the assent and conveyance of the debtor. W. C. 1o. Estates on Condition, which are Securities for Money, by compulsory Process of Law. Estates on condition, which are securities for money, by compulsory process of law, are (1), Estates by elegit, and other judicial liens; (2), Estates by statute-merchant; and (3), Estates by statute-staple; W. C. 1. Estates by Elegit, and other Judicial Liens. See 2 Bl. Com 161-2; 3 Do. 418; 3 Th. Co. Lit. 517-'18; 1 Lom. Dig. 367, & seq.; V. C. 1873, c. 182, § 619; Id. c. 183, § 26. We are to discuss this subject by adverting to, (1), The nature of the estate by elegit; (2), The proceeding with a writ of elegit; (3), The liabilities of tenant by elegit; (4), Proceedings if tenant by elegit is evicted; (5), The present state of the law in Virginia in respect to the writ of elegit; (6), The lien of judgment and decree; and (7), Other judicial liens besides those of judgments; W. C. 15. The nature of Estate by Elegit. By the feudal law, introduced into England immediately after the Conquest, the lands of feudal tenants were not liable to debts in general, because such liability would of itself have interfered with the prompt and effective rendition of the military services, which constituted the safe-guard and protection of the realm; and would besides have made it easy to evade that principle of non-alienability without the lord's consent, which was an essential element to the feudal system. For debts due to the king, indeed, the common law allowed lands. to be taken, as appears by Magna Charta, c. 9, because the king, by the doctrine of feuds being the grand superior and ultimate proprietor of all landed estates, could not be defrauded of the military services, when the ouster of the vassal proceeded from his own action. (3 Bl. Com. 419; 2 Do. 161; 1 Lom. Dig. 368-'9.) The feudal restraints upon alienation had already begun to give way, especially to the demands of trade and commerce, when, by statute Westm. II, 13 Edw. I, c. 18 (A. D. 1285), it was provided that, "when a debt should be recovered, or recognizance should be acknow ledged in the king's court; or when damages should be adjudged, it should be in the election of the plaintiff to sue out a writ commanding the sheriff to make the debt or damages out of the goods and chattels of the debtor, or to deliver to the creditor all the chattels of the debtor (except oxen and beasts of the plough), and a moiety of his land, until the debt should be levied by a reasonable price or extent; and that, if the creditor were ejected from that tenement, he should recover the same by writ of novel disseisin, and afterwards, if need be, by a writ of re-disseisin.” When a creditor chose to avail himself of this latter alternative, there was an entry upon the roll, Quod elegit sibi executionem fieri de omnibus catallis et medietate terra (that he elected to have execution against the debtor's chattels, and a moiety of his land); and thence the execution itself came to be denominated an elegit, and the estate devolved, by means of it, upon the creditor, "until the debt should be levied by a reasonable price or extent," was known as an estate by elegit. (2 BI. Com. 161; Bac. Abr. Execution (C), 2.) The words of the statute are that the creditor shall have the property delivered to him, per rationabile pretium vel extentam, which implies that there is to be a valuation made. This valuation, it has been always held that the sheriff alone cannot make. It must be made by a jury which the sheriff impannels for the purpose, whose charge is to appraise the debtor's goods and chattels (except beasts of the plough), which thereupon the sheriff is to deliver to the creditor as his own; and if thereby the debt is satisfied the lands are not to be extended; but if the debt is not thereby extinguished, the moiety of the debtor's lands is to be delivered to the creditor at an annual sum, to be assessed by the jury, to be held by him until the residue of the debt shall be levied. (Bac. Abr. Ex'on, (C.) 2.) The language of the statute is medietatem terræ, which has been always interpreted to mean the moiety of the freehold lands, for leasehold is subject to the execution of jieri facias), whereof the debtor was seised at the date of the judgment, or afterwards, and so have ever been the terms of the writ of Elegit. (3 Th. Co. Lit. 518, n (D); Lilly's Entries, 576; Fitzh. Nat. Br. 595.) Tenant by Elegit has plainly only a term for years, and yet the precept of the writ is that the moiety of the lands shall be delivered to the creditor at a reasonable price and extent, "to be holden as his freehold" (ut liberum tenementum), until the debt shall be thereof levied. "But ut," says Lord Coke, "is similitudinary," because the tenant is, by the statute 13 Edw. I, allowed a writ of assise as a tenant of the freehold shall have, "and to that respect his interest hath a similitude of a freehold, but mullum simile est idem." (Fitzh. Nat. Br. 595; 1 Th. Co. Lit. 487.) In Virginia, until 1850, there was a statute essentially the same as 13 Edw. I, c. 18; but by the revisal of the Code, which took effect 1st July, 1850, several changes were made, of which it will suffice to note two, namely, 1st, that personal chattels are wholly excluded from the operation of the writ; and 2nd, that it applies to the debtor's lands, leasehold as well as freehold. (1 R. C. (1819), c. 134, § 1, 4 to 8; V. C. 1873, c. 187, § 8 to 10, 22; 1 Lom. Dig. 370, & n. 3.) 28. Proceedings with a Writ of Elegit. The proceedings with a writ of elegit will be best set forth by explaining in succession; (1), The form of the writ; (2), The mode of levying it; (3), What property may be extended under it; (4), Proceedings on it against an heir; (5), Proceedings against purchasers from the debtor; and (6), The return of the writ; W. C. 1. The Form of the Writ of Elegit. The statutes in Virginia, with a particularity far exceeding their English prototype, have always prescribed, and do now prescribe, the precise form, not only of the writ, but also of the officer's return, including the inquisition taken before him, by the jury, of the value of the lands levied upon. At present the writ is more brief than it was formerly, or than the English precedents, reciting simply the recovery of the judg ment, and commanding the sheriff to cause all the real estate of, or to which the debtor was possessed or entitled, at or after the date of the judgment, to be delivered by reasonable extent, to the creditor, for him and his assigns to hold the same until the debt is levied thereof. (V. C. 1873, c. 187, § 8; 1 Lom. Dig. 370; 1 R. C. (1819), c. 134, § 1.) 2. The Mode of levying the Writ of Elegit. When the jury have found the possession or title and value of the land, the sheriff, and not the jury, is to set out and deliver the same to the plaintiff; and when a moiety only was subjected, it was requisite that it be done by metes and bounds, unless in the case of joint-tenants, tenants in common and co-parceners, when it was impossible, as the debtor was himself seised only of an undivided portion. In case of fraud, partiality, or any other irregularity in executing the |