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, whether held in his own name, or by any other 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 be expired; as, till the death of the defendant, if he be tenant for life or in tail. 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 lands and goods; but not body and land too, upon any judgment between subject and subject in the course of the common

law.

5. Upon some prosecutions given by statute; as in the case of recognizances 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, &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 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 debt shall, in suing out execution, be preferred to that of every other creditor, who hath not obtained judgment before the king commenced his suit. 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 office of the crown alienes for a valuable consideration, the land shall be liable to the king's debt, even in the hands of a bond fide purchaser; though the debt due to the king was contracted by the vendor many years after the alienation.

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 Westminster 2. 13 Edw. I. c. 45. for the defendant to shew 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 shew 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.

CHAPTER XXVII.

OF PROCEEDINGS IN THE COURTS OF EQUITY.

I HAVE attempted to trace the history, rise, and progress, of the extraordinary court, or court of equity, in chancery. The same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer: with a distinction however as to some few matters,

peculiar to each tribunal, and in which the other cannot interfere.

1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in every feudal view; but resulted to the king in his court of chancery, together with the general protection of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery hath a right to appoint one: and, from all proceedings relative thereto, an appeal lies to the house of lords.

2. Idiots and lunatics are under the sole care of the chancellor or keeper of his majesty's seal, to perform this office for him.

3. The king, as parens patriæ, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And therefore, whenever it is necessary, the attorney-general, at the relation of some informant, (who is usually called the relator) files ex officio an information in the court of chancery to have the charity properly established.

4. By the several statutes, relating to bankrupts, a summary jurisdiction is given to the chancellor, in many matters consequential or previous to the commissions thereby directed to be issued; from which the statutes give no appeal.

On the other hand, the jurisdiction of the court of chancery doth not extend to some causes, wherein relief may be had in the exchequer. No information can be brought, in chancery, for such

mistaken charities, as are given to the king by the statutes for suppressing superstitious uses. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee. Such causes must be determined in the court of exchequer, as a court of revenue; which alone has power over the king's treasure, and the officers employed in its management: unless where it properly belongs to the dutchy court of Lancaster, which hath also a similar jurisdiction as a court of revenue; and, like the other, consists of both a court of law and a court of equity.

Equity then, in its true and genuine meaning, is the soul and spirit of all law: 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 degrée.

1. Thus in the first place 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