Under the writ of fieri facias, goods, money, and securities only may be taken. In order to get at any stock or shares belonging to the debtor, which cannot be reached by this writ, the creditor may obtain from a judge an order, charging such property with payment of the amount for which judgment has been recovered, which operates as a distringas, the judgment creditor having thereupon such remedies as he would have been entitled to, if the charge had been made in his favour by the judgment debtor himself.

By neither of these methods of proceeding, however, can debts not secured by bills, bonds, or other tangible securities, be made available to the creditor. The law, therefore, allows him to attach and compel payment to himself of the debts due to his debtor; as a judge may, on his application, order all debts, owing by any third person, who is called the garnishee, and is allowed to dispute his indebtedness to the judgment debtor, to be attached to answer the judgment debt; and in order to discover the existence and amount thereof, may further direct the oral examination of the debtor himself. So that either by a writ of fieri facias, an order charging stock with the amount of the judgment, or an attachment of the debts owing to the judgment debtor, may the creditor obtain satisfaction out of the goods and chattels of his debtor.

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. Little use is now made of this 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 issued, returns that the defendant is a beneficed clerk, not having any lay fee. In this case a writ goes to the bishop of the diocese, in the nature of a levari or fieri facias, to levy the debt and damages de bonis ecclesiasticis, which are not to be touched by lay hands: and thereupon the bishop sends out 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 be raised.

4. The fourth species of execution is by the writ of elegit, so called because it is in the choice or election of the plaintiff whether he will sue out this writ or one of the former writs of capias or fieri facias, 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 his lands are also 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 book of these commentaries. 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 effect than a fieri facias. 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.

By these several writs and proceedings, the whole of the judgment debtor's property, real and personal, may be resorted to, in satisfaction of the judgment. But,

5. Upon some prosecutions given by statute, as in the case of debts acknowledged on statutes-staple, 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. And by the 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. And his debts shall, in suing out execution, be preferred to that of every other creditor, who has not obtained judgment before the sovereign commenced his suit. The sovereign's judgment also affects all lands which his debtor has at or after the time of contracting his debt, or which any of his officers mentioned in the statute 13 Eliz. c. 4, has 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 sovereign's debt even in the hands of a bonâ fi·le purchaser: though the debt due to the crown was contracted by the vendor many years after the alienation. But as this rule of law might be productive of very great hardship and injustice, it is now provided by several statutes, that no judgment, statute, recognizance,

inquisition, obligation, or speciality, nor any acceptance of office within the statute 13 Eliz. c. 4, shall avail against purchasers, mortgagees, or creditors, unless and until a memorandum thereof be registered in the office of the Common Pleas; so that everybody has notice thereof, and it is his own fault if any one purchases or lends money on mortgage, without searching for judgments against the seller or mortgagor.

Hitherto of writs of execution, which put the judgment creditor in possession of the lands or goods, or of the debt, damages, or costs recovered in the action. There are two other writs of execution, which are applicable to those cases, where either the repetition or continuance of a wrongful act is to be prohibited, or the performance of a contract or duty to be enforced.

The first of these is the Writ of Injunction, which may issue at any time after the commencement of the action, whether before or after judgment; but can only be obtained on an application to the court or a judge. It issues to restrain the defendant from the repetition or continuance of the wrongful act or breach of contract complained of in the action, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right, and may be granted upon such terms as may seem reasonable and just. When issued, obedience will, if necessary, be enforced by attachment.

The performance again by the defendant of the contract or duty, neglect of which has formed the subject of complaint in the suit, may be compelled by a writ of mundamus; to which no return except that of compliance, is allowed. In case of disobedience, the writ also may be enforced by attachment, or writ of sequestration; or the court may direct that the act required shall be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant; and upon its being done, the amount of the expense may be ascertained either by writ of inquiry or reference to the master, and payment thereof enforced in the ordinary

way.

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 harrassed a second time on the same account.

And here this part of our commentaries, which regularly treats only of redress at the common law, would naturally draw to a con

clusion. 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 not only of the forms of practice adopted by those courts, but of the matters more usually cognizable there. These will, therefore, so far as I have not already touched upon them, be the subjects of the ensuing chapters.

CHAPTER XVII.

OF THE JURISDICTION OF THE COURTS OF EQUITY.

General nature of equity-Difference from law-Mode of proof-Mode of trial -Mode of relief.-Matters cognizable in courts of equity. I. Exclusive jurisdiction-Infants-Lunatics-Married women- -Wife's equity to a settlement-Charities-Bankruptcy- Trusts- Mortgages- Equity of redemption.—II. Concurrent jurisdiction—Injunction-Specific performanceDiscovery-Accounts-Administration of estates-Marshalling of assetsPartnership-Fraud-Constructive frauds-Accident-Mistake-Dower— Partition of land-Settling boundaries.-III. Auxiliary jurisdiction— Restraining inequitable defences-Cancellation of deeds-Bill quia timet― Bill of peace-Perpetuation of testimony-Interpleader.

BEFORE we proceed to consider the jurisdiction of the courts of equity, it will be proper to recollect the observations which were made in the beginning of this book on the principal tribunals of of that kind, acknowledged by our constitution. I therein attempted to trace, very concisely, the history, rise, and progress of the Court of Chancery. And what was said of that court will be equally applicable to the other courts of equity. Whatever difference there may be in the forms of practice, it arises from the different constitution of their officers; or if they differ in anything more essential, one of them must certainly be wrong; for truth and justice are always uniform, and ought equally to be adopted by them all.

Let us then take a brief, but comprehensive view of the general nature of equity; which in its true and genuine meaning, is the soul and spirit if all law; for positive law is construed, and rational law is made by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted to each other, are apt to confound and mislead us: as if the one

judged without equity, and the other was not bound by any law. Whereas every definition or illustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity in opposition to each other, will be found either totally erroneous, or erroneous to a certain degree.

Thus it is said, that it is the business of a court of equity in England to abate the rigour of the common law. But no such power is contended for. Hard was the case of bond-creditors, whose debtor devised away his real estate; rigorous and unjust the rule, which put the devisee in a better condition than the heir; yet a court of equity had no power to interpose. Hard was the common law that land devised, or descending to the heir, should not be liable to the simple contract debts of the ancestor or devisor, although the money was laid out in purchasing the very land; and that the father should never immediately succeed as heir to the real estate of the son, but a court of equity could give no relief; though in both instances the artificial reason of the law, arising from feudal principles, had entirely ceased, long before these grievances were remedied by legislative enactment. In all such cases of positive law, the courts of equity, as well as the courts of law, said with Ulpian, “hoc quidem perquam durum est, sed ita lex scripta est."

Again it is said, that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter; but so also does a court of law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature. In general laws all cases cannot be forseen; or if forseen, cannot be expressed: some will arise that will fall within the meaning, though not within the words of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out of the letter, are often said to be within the equity of an act of parliament; and so cases within the letter are frequently out of the equity. Here, by equity, we mean nothing but the sound interpretation of the law; though the words of the law itself may be too general, too special, or otherwise inaccurate or defective.

It has also been said, that fraud, accident, and trust, are the proper and peculiar objects of a court of equity. But every kind of fraud is equally cognizable in a court of law; many accidents are also supplied in a court of law; as, loss of deeds, wrong payments, deaths, which make it impossible to perform a. condition literally, and a multitude of other contingencies; and many cannot be relieved even in a court of equity, as, if by accident, a devise be ill-executed, or a contingent remainder destroyed. A technical trust, indeed,