We there observed that till this statute, by the ancient common law, lands were not liable to be charged with, or seised for, debts; because by these means the connection 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 feodal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment. (i)(45) 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 seise 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 seising 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 (46) may then be had after the elegit; for such elegit is in this case no more in effect than a fieri facias. (j) (47) So that body and goods may be taken in execution, or land and goods; but not body and land too, upon any judgment between subject and subject in the course of the common law. But, 5. Upon some prosecutions given by statute; as in the case of recog*420] nizances or 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, etc., 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. (7) (48) And his debt shall, in (i) 1 Roll. Abr. 888. (1) Hob. 58. (k) F. N. B. 131. (45) By the statute 1 & 2 Vict. c. 110, a great alteration has been made in the law in this respect. By s. 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 seised or possessed of at the time of entering up the judgment, or over which the judgment-debtor at the time has, or at any time afterwards shall have, a disposing power capable of being exercised for his own benefit -STEWART. In this country lands have always been subject to sale on execution for the payment of the debts of the owner. Dewit v. Osborn, 5 Õhio, 480, 483 (1832). And lands descended to the heirs are liable for the debts of the ancestor. Boone's Law of Real Property, ? 275, pp. 311, 312 (1883). As to this liability in Rhode Island, see Hopkins v. Ladd, 12 R. I. 279 (1879). The homestead exemption in this country generally is not in derogation of the common law, but it is rather the limitation and exclusion of that exemption which is not in accordance with the common law. Riggs v. Sterling, 60 Mich. 643, 648 (1886). (46) Vide supra, p. 414. (47) Vide supra, p. 417. (48) The writ in aid was formerly grossly abused; the king's name often became an engine of great fraud or oppression,-to remedy which stat. 57 Geo. III. c. 117 was passed. The abuse to which I have adverted was this: not only any person indebted or likely to be indebted to the crown on specialty or record, but any one so indebted in part, or by 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. (n) Whereas, judgment between subject and subject related, even at common law, no further 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 [*421 only from the day of 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, (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 hereafter 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; (49) 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. (Þ) (50) (m) Stat. 33 Hen. VII. c. 39, 2 74. (n) 10 Rep. 55, 56. (0) Skin. 257. simple contract only, might obtain the extent in aid to be issued in his favor. The instant that the writ issued, all the property of the debtor became liable to the extent at the suit of the crown; and thus his creditors were deprived of participation in such property, the whole perhaps being absorbed by the alleged crown-debtor. But the statute mentioned above limits the issuing of this writ to cases where a debt shall be actually due to and previously demanded on the part of the crown. Before the statute, it was sufficient that the party suggested the existence of the debt to entitle him to sue out the writ and to the money levied thereon; but now the writ cannot be issued unless the sum actually due to his majesty be stated and specified in the fiat endorsed thereon; and, when levied, the sheriff is to pay the amount over to his majesty's use. Any overplus is to be paid into court, subject to its disposition on summary application. The expectation of preference formerly capable of being realized is by the statute, therefore, in a great degree defeated.-CHITTY. (49) Hannon v. Dedrick, 3 Barb. 122, 194, 195 (N. Y. 1848). (50) But the writ of scire facias for the ordinary purpose of reviving a judgment, now called a "writ of reviver," 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 judgment. Com. Law Proc. Act, 1852, s. 128.-STEWART. The common law rules on this subject have been changed by statutory enactments in a majority of the United States. See Little v. Little, 5 Mo. 227, 228 (1838). Gilbert v. Stockman, 81 Wis. 602, 609 (1892). 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. 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 We application must be made for the redress of particular injuries, or the *422] doctrine of jurisdictions and *cognizance. We afterwards proceeded to consider 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 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 indi*423] vidual in the nation, this parental solicitude which pervades our whole legal 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 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; (g) 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 despatch of causes that is so highly extolled in some 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, () 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, expense, and delays of [*424 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 honor, 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 to be exempted from a proportionable share of the burden. 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 despatch of matters of law; besides the very close attendance of the court of chancery for determining *suits in equity, and [*425 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 despatch 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 jurisdic (q) See page 327. (r) Sp. L. b. 6. c. 2. (s) De Laud. LL. c. 53 (t) Bodin. de republ. l. 6, c. 6. (u) See page 407. (w) Otherwise called dies fasti in quibus licebat BOOK III.-25. 1379 prætori fari tria verba, do, dico, addico. [Lawful days, tion, 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 those courts. These will therefore be the subject of the ensuing chapter. *426] CHAPTER XXVII. 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, it will be proper to recollect the observations which were made in 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. (1) (a) Pages 45, 50, 78. (1) That the courts of equity and courts of law are not opposed to each other, and often concur in the exercise of their powers, to promote the ends of substantial justice, is not now disputed. It is said that matters of fact should be left to courts of law for the decision of a jury, (1 Ridgway's Parl. Car. 9;) and issues are oftentimes directed for that purpose; yet there is no doubt," says lord Eldon, "that according to the constitution of this court it may take upon itself the decision of every fact put in issue upon the record." And again, "This court has a right (to be exercised very tenderly and sparingly) of deciding without issues." 9 Ves. 168. The general rule is that a court of equity will never exercise jurisdiction over criminal proceedings. Yet in a case where the plaintiffs indicted defendant's agent at the sessions, where the plaintiffs themselves were judges, for a breach of the peace, lord Hardwicke made an order to restrain the prosecution till after hearing of the cause and further order; and where a bill is brought to quiet possession, if the plaintiff afterwards prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 302. The court of chancery has no jurisdiction to prevent a crime, except in the protection of infants. Therefore it is said that the publication of a libel cannot be restrained. 2 Swan. 413. Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. The court of chancery has a concurrent jurisdiction with the.admiralty, (Gilb. Eq. Rep. 228,) and may repeal letters of reprisal after a peace, though there is a clause in the patent that no treaty of peace shall prejudice it. 1 Vern. 54. So equity may relieve after verdict in King's Bench or Common Pleas, and even grant a perpetual injunction after five trials at law on the same point, and verdicts the same way; but equity is very tender in the exercise of this power. 2 P. W. 425. 10 Mod. 1. And a court of equity will not review the orders of the Exchequer as a court of revenue; nor interfere where that court, as a court of revenue, is competent to decide the subject-matter. 3 Ridgw. P. C. 80. Matters arising out of England -A question concerning the right and title to the Isle of Man may be determined in a court of chancery. I Ves. 202. Where the defendant is in England, though the cause of suit arose in the plantations, if the bill be brought here, the court agens in personam [Acting against the person] may, by compulsion of the person, force him to do justice; for the jurisdiction of the chancellor is not ousted, (3 Atk. 589. See I Jac. & W. 27;) and this although in general all questions respecting real estates belong to the country where they are situate. Elliott v. Lord Minto, 6 Mod. 16. Ist It is assistant to the common law by removing legal impediments to a fair decision of a question depending in those courts; as preventing the setting up of outstanding terms, etc. 5 Mad. 428. 2 J. & W. 391. 2d. It acts concurrently with the common law by compelling a discovery which may enable those courts to decide according to the real facts and justice of the case; as where the discovery is to ascertain whether the defendant did not promise to marry, (Forrest, Rep. 42;) or to disprove the defendant's plea, that he had made no promise within six years, and to compel him to state whether he has not promised within that time, (5 Mad. 331;) but he has a right to protect himself in equity by the statute of limitations from a discovery as to the original constitution of the debt, or whether it has since been paid. 5 Mad. 331. So he may be required to disclose whether he is an alien or not, (2 Ves. Sen. |