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away, the consequence still continued, and no creditor could take possession of the lands, but only levy upon the growing profits, so that if the defendant aliened his lands, the plaintiff was ousted of his remedy.
Goods Taken at Appraisement. The statute therefore granted this writ of elegit, called so, 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 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 satisfaction of his debt.
Profits from Lands. If the goods are not sufficient, then the moiety of his freehold lands, which he had at the date of the judgment, whether held in his own name, or of some one in trust for him, 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 terminate, as on the death of the defendant, if he be a tenant for life or in tail. During this period, the plaintiff is called tenant by elegit.
Alienation of Lands Prevented. We have before observed, that under the ancient common law, lands were not chargeable for debts, otherwise, the connection between the 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. Therefore, even by this statute, only one-half of the land is subject to execution, that out of the remainder, sufficient might be left for the lord to distrain for his services; and upon the same feudal principle, copyhold lands cannot be taken in execution, upon a judgment.
Debts to the King. But in case of a debt to the king, the common law allowed possession of the lands to be taken, till the debt was paid. For being the ultimate proprietor of the landed estates, he might seize the lands, if anything was owing from his vassal; and was not defrauded of his services, when he himself ousted the vassal.
Followed by a Capias. This execution, or seizing of lands by elegit, is never followed by the imprisonment of the defendant, 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 writ in this case is no more in effect than a fieri facias. So that body and goods may be taken in execution, or lands and goods, but not body and land too, upon any judgment between subject and subject in the course of the common law. 5. EXTENT, OR EXTENDI FACIAS.
1 By statute, the sheriff now delivers to the judgment creditor all lands of the defendant.
When Allowed. This writ issues upon some prosecutions given by statute, as in the case of recognizances for debts acknowledged on statutes merchant or staple; upon forfeiture of these, the body, lands and goods may be taken in execution, to compel the payment of the debt.
The King's Claims Preferred. In suing out execution, the king's claim shall be preferred to that of any other creditor, who had not obtained judgment, before the king commenced his suit. The king's judgment also affects all lands, which his debtor had at or after the time of the contracting of the debt, or which any
of his officers had at or after the time of his entering upon the office; so that if such officer of the crown alienes 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 the king was contracted by the vendor long after the alienation.
Lien of Judgment. 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, but from the date of execution, and now, by the statute of frauds, the judgment shall not bind the lands of a bona fide purchaser, but only from the day of its entry on the record.
Lien of Execution. Nor shall the writ of execution bind the goods in the hands of a stranger or purchaser, but only from the actual delivery of the writ to the sheriff, or other officer, who must endorse on it the day he received it.
Satisfaction Entered. 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 harassed on the same account.
Laches in Issuing Execution. All these writs of execution must be sued out within a year and day after the judgment is entered, otherwise the court concludes prima facie that the judgment is satisfied and extinct.
Scire Facias to Revive Judgment. Yet, however, it will grant a writ of scire facias 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 bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law. SUMMARY OF BOOK III.
In the present book, we have considered the nature of remedies by the mere act of the parties or the mere operation of law, without suit in the courts. We have next reviewed the remedies by suit or action in courts, and have contemplated the nature and species of courts instituted for the redress of particular injuries, and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdiction and cognizance. We afterwards considered 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 dednced and pointed out the method and progress of obtaining such remedies in the courts of justice proceeding from the 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 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 possession of his right, or else gives him a satisfaction, either by equivalent damages, or by the imprisonment of the party guilty of the injury complained of.
Excellencies of English Law. This care and circumspection in the law, in providing that no man's right shall be affected by legal proceeding, without previous notice given him, and yet that the debtor on being thus notified, shall not escape justice; requiring that every complaint be accurately ascertained in writing, and be as exactly answered ; in clearly stating the question, either of law or fact; in deliberately resolving the former, after full discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting snch errors, as may have arisen in either of those modes of decision, from accident, mistake or surprise; and in finally enforcing the judgment, where nothing can be alleged to impeach it; this anxiety to grant every individual the enjoyment of his civil rights, without intrenching on the rights of others; the parental solicitude which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty, which is the felicity of Englishmen.
Unprofessional Acts. While there are delays in the practice of the law, which are complained of, yet those complaints are exaggerated. There may, as in other departments, be a few unworthy professors, who study chicane and sophistry, rather than truth and justice, and who 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 reduced this class to a very small compass.
Delays in the Conduct of a Suit. Yet some delays are unavoidable in the conduct of a suit, however desirous all parties may be for a speedy determination. These arise from liberty, property, civility, commerce, and an extent of populous territory. 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, where little regard is shown to the lives or fortunes of the subject, all causes are quickly decided; the pasha on a summary hearing, ordering which party he pleases to be bastinadoed. But in free states, the trouble, expense and delays of judicial proceedings are the price that every subject pays for his liberty, and in all governments, says Montesquieu, 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.
Civil Law had more Delays. From these principles, it might follow that the English courts are more subject to delays than those of other nations, as they set a greater value on life, liberty and property. Yet, in reality, we enjoy the advantage, while we are exempt from a proportionate share of the burden. The course of the civil law, to which many nations conform their practice, is much more tedious than ours. Especially is this the case in France.
Far less Delay than Formerly. Great improvement in the celerity of justice has resulted from the disuse of real actions; by the statutes of amendments and jeofails, and by other regulations; and also by the increased time and attendance given by the judges in the courta. In the Roman year, twenty-eight days only were allowed to the praetor for deciding causes, whereas in England one-fourth of the year is term time, in which the court sits constantly for the despatch of matters of law. Then we have the close attendance of the courts of chancery for determining suits in equity, and the numerous courts of assize and nisi prius, that sit in vacation for the trial of matters of fact.
CHAPTER XXVII.- PROCEEDINGS IN COURTS OF
Concurrent Jurisdiction. The same jurisdiction is exercised, and the same system of redress pursued in the equity court of the exchequer as in the court of chancery, with a distinction however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere.
MATTERS PECULIAR TO CHANCERY.
1. Infants. On the abolition of the court of wards, the general protection of infants was intrusted to the king in his court of chancery. When, therefore, a fatherless child has no other guardian, the court of chancery may appoint one, and from its proceedings, an appeal lies to the house of lords.
Guardian ad Litem. The court of exchequer can only appoint a guardian ad litem to defend an infant when sued, a power which is incident to the jurisdiction of every court of justice, but