his officers mentioned in the statute 13 Eliz. c. 4, hath at or after the time of his entering on the office: so that if such officer of the crown aliens for a valuable consideration, the land shall be liable to the king's debt even in the hands of a bona fide purchaser; though the debt due to the king was contracted by the vendor many years after the alienation. (n) Whereas judgments between subject and subject related, even at common law, no farther back than the first day of the term in which they were recovered, in respect of the lands of the debtor; and did not bind his goods and chattels, but from the date of the writ of execution: and now, by the statute of frauds, 29 Car. II, c. 3, the judgment shall not bind the land in the hands of a bona fide purchaser, but only from the day of [*421] actually signing the same: which is directed by the statute to be punctually entered on the record; nor shall the writ of execution bind the goods in the hands of a stranger, or the purchaser, (0) but only from the actual delivery of the writ to the sheriff or other officer, who is therefore ordered to endorse on the back of it the day of his receiving the same.

Limitation on time of issuing execution. These are the methods which the law of England has pointed out for the execution of judgments: and when the plaintiff's demand is satisfied, either by the voluntary payment of the defendant, or by this compulsory process, or otherwise, satisfaction ought to be entered on the record, that the defendant may not be liable to be thereafter harassed a second time on the same account. But all these writs of execution must be sued out within a year and a day after the judgment is entered; otherwise the court concludes prima facie that the judgment is satisfied and extinct: yet, however, it will grant a writ of scire facias in pursuance of statute Westm. 2, 13 Edw. I, c. 45, for the defendant to show cause why the judgment should not be revived, and execution had against him; to which the defendant may plead such matter as he has to allege, in order to show why process of execution should not be issued: or the plaintiff may still bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law. (p)1

Summary of the book. In this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, and their respective officers. In the course, therefore, of the present book, we have, first, seen and considered the nature of remedies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a review of remedies, by suit or action. in courts: and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general;

(0) Skin. 257.

(n) 10 Rep. 55, 56. 1 By 15 and 16 Vict. c. 76, § 128, during the lives of the parties to a judgment and within six years of the judgment, execution may issue without scire facias. By the same statute, 134, a writ of revivor to revive judgments less than ten years old shall be (74)

(p) Co. Litt. 290.

1169

allowed without rule or order; otherwise if more than ten years old. The common law rule as to the time within which execution shall issue has been changed by statute in many American states.

and then have shown in what particular court application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceed to con[*422] sider the nature and distribution of wrongs and injuries affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint or original writ, through all stages of process, to compel the defendant's appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer; or the truth of the facts alleged and denied, upon issue joined, and its several trials; to the judgment or sentence of the law, with respect to the nature and amount of the redress to be specifically given: till after considering the suspension of that judgment by writs in the nature of appeals, we have arrived at its final execution; which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body who is guilty of the injury complained of.

Ubi jus ibi remedium'- Due process of law. This care and circumspection in the law-in providing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; and in finally enforcing the judgment, when nothing can be alleged to impeach it;- this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation, this parental solicitude *which pervades our whole legal [*423] constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it must be owned to have given a handle, in some degree, to those complaints of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowledge, a few unworthy professors: who study the science of chicane and sophistry rather than of truth and justice; and who to gratify the spleen, the dishonesty, and wilfulness of their clients, may endeavor to screen the guilty, by an unwarrantable use of those means which were intended to protect the innocent. But the

[There is no wrong without a remedy. These are the spirit of the con

stitution. Ashby v. White, Ld. Raymond, 938; 1 Sm. Ld. Cas. 473.]

frequent disappointments and the constant discountenance that they meet with in the courts of justice, have confined these men (to the honor of this age be it spoken) both in number and reputation to indeed a very despicable compass.

But

The law's delay. Yet some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes as were mentioned in examining a former complaint: (q) from liberty, property, civility, commerce, and an extent of populous territory: which, whenever we are willing to exchange for tyranny, poverty, barbarism, idleness and a barren desert, we may then enjoy the same dispatch of causes that is so highly extolled in some foreign countries. common sense and a little experience will convince us that more time and circumspection are requisite in causes, where the suitors have valuable and permanent rights to lose, than where their property is trivial and precarious, and what the law gives them to-day, may be seized by their prince to-morrow. In Turkey, says Montesquieu, (r) where little regard is shown to the lives or fortunes of the subject, all causes are quickly decided: the basha, on a summary hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in *free states, [*424] the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty; and in all governments, he adds, the formalities of law increase in proportion to the value which is set on the honour, the fortune, the liberty, and life of the subject.

Improvement in procedure. From these principles it might reasonably follow, that the English courts should be more subject to delays than those of other nations; as they set a greater value on life, on liberty and on property. But it is our peculiar felicity to enjoy the advantage, and yet be exempted from a proportionable share of the burthen. For the course of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the suitors of those courts in England where the practice of the Roman law is allowed in its full extent. And particularly in France, not only our Fortescue (s) accuses (on his own knowledge) their courts of most unexampled delays in administering justice; but even a writer of their own (t) has not scrupled to testify that there were in his time more causes there depending than in all Europe besides, and some of them a hundred years old. But (not to enlarge on the prodigious improvements which have been made in the celerity of justice by the disuse of real actions, by the statutes of amendment and jeofails, (u) and by other more modern regulations, which it now might be indelicate to remember, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty-eight judicial or

(q) See page 327.
(r) Sp. L. b. 6, c. 2.
(t) Bodin, de repub. l. 6, c. 6.

(8) De Laud, LL., c. 53. (u) See page 407.

triverbial (w) days allowed to the prætor for deciding causes: (x) whereas, with us one-fourth of the year is term time in which three courts constantly sit for the dispatch of matters of law; besides the very close attendance of the court of chancery for determining suits in equity, and the numerous courts of assize [*425] and nisi prius that sit in vacation for the trial of matters of fact. Indeed, there is no other country in the known world, that hath an institution so commodious and so adapted to the dispatch of causes, as our trial by jury in those courts for the decision of facts; in no other nation under heaven does justice make her progress twice in each year into almost every part of the kingdom, to decide upon the spot, by the voice of the people themselves, the disputes of the remotest provinces.

And here this part of our Commentaries, which regularly treats only of redress at the common law, would naturally draw to a conclusion. But, as the proceedings in the courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by these courts. These will, therefore, be the subject of the ensuing chapter.

OF PROCEEDINGS IN THE COURTS OF EQUITY.

Before we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity,1 it will be proper to recollect the observations which were made in

(w) Otherwise called dies fasti in quibus licebat prætori fari tria verba, do, dico, addico (lawful days, in which the prætor was permitted the use of three words, do, dico, addico, I give judgment, I expound the law, I execute the law). Calv. Lex. 285. (x) Spelman of the Terms, § 4, c. 2.

1 It is not to be assumed, because the system of equity has grown up as an independent and distinct system from that of the common law, that therefore the two are opposed and hostile to each other, and may be expected to operate at cross purposes. On the contrary, they are to be regarded as the two parts of a complete and symmetrical structure, the purpose of which is to accomplish justice in all the varying circumstances of human transactions. On the other hand, we are not to suppose, because equity is said to supply the defects of the common law, that it may do this at the discretion of the chancellor, and regardless of other rules than his own sense of what is right and just. It needs but the most cursory examination to show that the jurisdiction of equity is very clearly defined

and limited, and that the discretion of the chancellor in administering this discretion is closely restrained within the lines of precedents which have evolved general rules for his guidance.

The general heads of equity jurisdiction may be stated as follows:

FRAUD.- Equity is said to abhor fraud; and therefore it will lend its aid to set aside contracts which are tainted by it, and even to vacate judgments and decrees where they have been obtained by means of it. The law has a concurrent jurisdiction in a great many cases, and will.refuse to enforce contracts tainted with fraud; but this negative relief is not always sufficient for the purposes of complete justice, and therefore equity lends its aid to compel the surrender of contracts, the restoration of property dishonestly ob

the beginning of this book (a) on the principal tribunals of that kind, acknowledged by the constitution of England; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.