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shall be discharged. Yet the creditor may at any future time have execution against the lands and goods of such defendant, though never more against his person. And, on the other hand, the creditors may, as in case of bankruptcy, compel (under pain of transportation for seven years) such debtor charged in execution for any debt under 100l. to make a discovery and surrender of all his effects for their benefit, whereupon he is also entitled to the like discharge of his person.

If a capias ad satisfaciendum is sued out, and a non est inventus is returned thereon, the plaintiff may sue out a process against the bail, if any were given: who, we may remember, stipulated in this triple alternative, that the defendant should, if condemned in the suit, satisfy the plaintiff his debt and costs; or that he should surrender himself a prisoner; or, that they would pay it for him: as therefore the two former branches of the alternative are neither of them complied with, the latter must immediately take place. (u) In order to which a writ of scire facias may be sued out against the bail, commanding them to show cause why the plaintiff should not have execution against them for his *debt [*417] and damages; and on such writ, if they show no sufficient cause, or the defendant does not surrender himself on the day of the return, or of showing cause (for afterwards is not sufficient), the plaintiff may have judgment against the bail, and take out a writ of capias ad satisfaciendum, or other process of execution against them.

2. The next species of execution is against the goods and chattels of the defendant; and is called a writ of fieri facias, (w) from the words in it where the sheriff is commanded, quod fieri faciat de bonis, that he cause to be made of the goods and chattels of the defendant the sum or debt recovered. (4) This lies as well against privileged persons, peers, &c., as other common persons; and against executors or administrators, with regard to the goods of the deceased. The sheriff may not break open any outer door, (x) to execute either this, or the former writ: but must enter peaceably; and may then break open any inner door, belonging to the defendant, in order to take the goods. (y) And he may sell the goods and chattels (even an estate for years, which is a chattel real) (z) of the defendant, till he has raised enough to satisfy the judgment and costs; first paying the landlord of the premises, upon which the goods are found, the arrears of rent then due, not exceeding one year's rent in the whole. (a) If part only of the debt be levied on a fieri facias, the plaintiff may have a capias ad satisfaciendum for the residue. (b) (5)

3. A third species of execution is by writ of levari facias; which affects a man's goods and the profits of his lands, by commanding the sheriff to levy the plaintiff's debt on the lands and goods of the defendant: whereby the sheriff may seize all his goods, and receive the rents and profits of his lands, till satisfaction be made to the plaintiff. (c) Little use *is now made of this [*418] writ; the remedy by elegit, which takes possession of the lands themselves, being much more effectual. But of this species is a writ of execution proper only to ecclesiastics; which is given when the sheriff, upon a common writ of execution sued, returns that the defendant is a beneficed clerk, not having any

(u) Lutw. 1269-1273 (w) Appendix, No. III, § 7.
(a) Stat. 8 Anne, c. 14.
(b) I Roll. Abr. 901.

(x) 5 Rep 92, Cro. Eliz. 314.

(y) Palm. 54. (z) 8 Rep. 171. (c) Finch, L. 471.

(4) [If, upon a judgment in tort, against two or more, execution be levied for the whole damages upon one only (1 Camp. 343), that one cannot recover a moiety against the other for his contribution; but he may maintain an action for the moiety, if the original action were founded upon contract. 8 T. R. 156; see also 2 Camp. 452,]

(5) A levy upon sufficient personal property to satisfy the judgment is a temporary bar to further execution or suit, and will amount to satisfaction unless it fail, in whole or in part, without the fault of the plaintiff. Green v. Burke, 23 Wend. 490. See Ladd v. Blunt, 4 Mass. 402; Webb v. Bumpass, 9 Port. 201; F. and M. Bank v. Kingsley, 2 Doug. Mich. 379. If the defendant is allowed to retain the property, it is no satisfaction. Peck v. Tiffany, 2 N. Y. 451. Or if it is taken from the sheriff by due course of law. Alexander v. Polk, 39 Miss. 737. levy upon real property is not a satisfaction. Ladd v. Blunt, supra; Shepard v. Rowe, 14 Wend. 260. White v. Graves, 15 Texas, 183.


lay fee. In this case a writ goes to the bishop of the diocese, in the nature of a levari or fieri facias, (d) to levy the debt and damages de bonis ecclesiasticis, which are not to be touched by lay hands. and thereupon the bishop sends ont a sequestration of the profits of the clerk's benefice, directed to the churchwardens, to collect the same and pay them to the plaintiff, till the full sum he raised.(e)

4. The fourth species of execution is by the writ of elegit; which is a judicial writ given by the statute Westm. 2, 13 Edw. I, c. 18, either upon a judgment for a debt, or damages; or upon the forfeiture of a recognizance taken in the king's court. By the common law a man could only have satisfaction of goods, chattels, and the present profits of lands, by the two last-mentioned writs of fieri facias, or levari facias; but not the possession of the lands themselves; which was a natural consequence of the feudal principles, which prohibited the alienation, and of course the incumbering of the fief with the debts of the owner. And, when the restriction of alienation began to wear away, the consequence still continued; and no creditor could take the possession of lands, but only levy the growing profits: so that, if the defendant aliened his lands, the plaintiff was ousted of his remedy. The statute therefore granted this writ (called an elegit, because it is in the choice or election of the plaintiff whether he will sue out this writ or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff, at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety or *one-half of his freehold lands, which he had

at the time of the judgment given, (f) whether held in his own name, [ *419 ] or by any other in trust for him (g) are also to be delivered to the plaintiff; to hold, till out of the rents and profits thereof the debt be levied, or till the defendant's interest be expired; as till the death of the defendant, if he be tenant for life or in tail. During this period the plaintiff is called tenant by elegit, of whom we spoke in a former part of these Commentaries.() We there observed that till this statute, by the ancient common law, lands were not liable to be charged with, or seized for, debts; because by these means the connexion between lord and tenant might be destroyed, fraudulent alienations might be made, and the services be transferred to be performed by a stranger; provided the tenant incurred a large debt, sufficient to cover the land. And therefore, even by this statute, only one-half was, and now is, subject to execution; that out of the remainder sufficient might be left for the lord to distrain upon for his services. And upon the same feudal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment.(i)(6) But, in case of a debt to the king, it appears by magna carta, c. 8, that it was allowed by the common law for him to take possession of the lands till the debt was paid. For he, being the grand superior and ultimate proprietor of all landed estates, might seize the lands into his own hands, if any thing was owing from the vassal; and could not be said to be defrauded of his services when the ouster of the vassal proceeded from his own command. This execution, or seizing of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit; for such elegit is in this case no more in

(d) Registr. Orig. 300, judic. 22. 2 Inst. 4. (g) Stat 29 Car. II, c. 3.

(h) Book II, ch. 10.

(e) 2 Burn. Eccl. Law, 329.
(i) 1 Roll. Abr. 888.

(2 Inst. 395.

(6) [By statute 1 and 2 Vic., c. 110, a great alteration has been made in the law in this respect. By section 11 the sheriff is empowered to deliver unto the judgment creditor all lands, tenements and hereditaments, including those of copyhold or customary tenure, which the person against whom execution is so sued out, or any person in trust for him, shall have been seized or possessed of at the time of entering upon the judgment, or over which the judgment debtor at the time has, or at any time afterward shall have, a disposing power capable of being exercised for his own benefit.]

effect than a fieri facias.(j) So that body and goods may be taken in execution, or land and goods; but not body and land too, upon any judg]*420] ment between subject and subject in the course of the common law. But, 5. Upon some prosecutions given by statute; as in the case of recognizances for debts acknowledged on statutes merchant, or statutes staple (pursuant to the statutes 13 Edw. I, de mercatoribus, and 27 Edw. III, c. 9); upon forfeiture of these, the body, lands and goods may all be taken at once in execution, to compel the payment of the debt. The process hereon is usually called an extent, or extendi facias, because the sheriff is to cause the lands, &c., to be appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied.(k) And by statute 33 Hen. VIII, c. 39, all obligations made to the king shall have the same force, and of consequence the same remedy to recover them, as a statute staple; though indeed, before this statute, the king was entitled to sue out execution against the body, lands and goods of his accountant or debtor.(1) And his debt shall, in suing out execution, be preferred to that of any other creditor, who hath not obtained judgment before the king commenced his suit.(m) The king's judgment also affects all lands which the king's debtor hath at or after the time of contracting his debt, or which any of 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.() 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 actually signing the [ *421 ] 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,(o) 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.

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)(7)

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,

(j) Hob. 58.

(n) 10 Rep. 55, 56.

(k) F. N. B. 131.
(0) Skin. 257.

(1) 3 Rep. 12.
(p) Co. Litt. 290.

(m) Stat. 33 Hen. VIII, c. 39, § 74.

(7) [But the writ of scire facias for the ordinary purpose of reviving a judgment is retained. During the lives of the parties to a judgment, or those of them during whose lives execution may at present issue within a year and a day, without a scire facias, and within six years from the recovery of the judgment, execution may now, however, issue without revival of the judg. ment. Com. Law Proc. Act, 1852, § 128.]

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; and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceed to consider the nature and distribution of wrongs and injuries affecting every species of per[*422] sonal 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 the 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.

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 constitution, is [ *423 ] 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 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.

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; (7) 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

(g) See page 327.

foreign countries. But 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, the trouble, [ *424 ] 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.

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 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, [ *425 ] and the numerous courts of assize 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.

(r) Sp. L. b. 6, c. 2.

(8) De Laud, LL. c. 53. (t) Bodin, de republ. l. 6, c. 6. (w) Otherwise called dies fasti in quibus licebat prætori furi tria verba, do, dico, addico. (r) Spelman of the Terms, 4, c. 2.

(3) See page 407. Caiv. Lex. 255.


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