inquest, to be held by the sheriff, shall be of opinion that the profits, rents, and issues will be sufficient in a number of years, provided for by the statute, to pay all the liens upon it, then it shall not be sold, but it shall be delivered to the plaintiff, that out of the rents, issues, and profits, he may be paid the amount of his execution. This is the case in Pennsylvania and Delaware, and the lands are extended by the writ of liberari facias, and possession is given to the creditor, as practiced upon the elegit in England; but if the lands are not extended, that is, if the rents, issues, and profits will not be sufficient in those states to pay the liens or incumbrances in seven years, then they are condemned, and are to be sold without redemption. In other states, before a sale can take place, the lands must be valued, and, at the sale, must bring a certain proportion of such valuation; in some states, if the creditor will not take them at two-thirds of the appraised value, there is a delay upon giving additional security. In other states, a part of the defendant's land is absolutely protected from sale for the presumed benefit of himself and family. In Virginia, lands cannot be sold on execution; the English process of elegit and extent are there used.

As a further bar to the sale of landed estates, in some of the American commonwealths a right of redemption is given to the defendant, provided it be exercised within a specified time.

86

It is a rule in some states that the lands of the defendant are bound by a judgment from the time of rendition, but this is far from being universal; in Louisiana, they bind from the time they are registered with the recorder of mortgages; in Kentucky, lands are bound only from the time the execution reaches the sheriff's hand.88

The lien created by the judgment continues only for a limited time, so as to operate against subsequent incumbrancers and bona fide purchasers, according to the statutes of the respective states.

Real estate held in reversion and remainder is liable to be sold like an estate in possession, and an equity of redemption may likewise be the subject of a levy.

3395. The usual mode of making a levy is to describe the land which has been seized under the execution by metes and bounds, as in a deed of conveyance; as they cannot be sold, in some of the states, under the fieri facias, because an inquest must be held by the sheriff to ascertain whether the land can, from its profits, rents, and issues, satisfy the debt within a certain time, the writ of fieri facias is returned to the court, with a levy and the proceedings of the inquest, and these things remain until the sheriff is authorized by a new writ, called a venditioni exponas, to sell the land levied upon.

Under this writ, or under the fieri facias, where lands may be sold without any other writ, the lands seized are advertised by the sheriff the time required

86 See Kent, Comm. Lect. 66. It has been deemed unnecessary to detail the various provisions of the statutes of the several states, not only because such details would be useless, as the reader must rely upon the statutes themselves, but because their provisions are subject to constant changes.

87 Hana v. His Creditors, 13 Mart. La. 32.

Bank U. S. v. Tyler, 4 Pet. 366; Million v. Riley, 1 Dan. Ky. 360. In Kansas and Ohio, judgments are liens on the real estate from the first day of the term in which the judgments are rendered, except judgments by confession and judgments rendered at the same term at which the action is commenced. In several states the lien begins from the docketing of the judgment, and when the lands lie in another county, from the date of filing a copy of the judgment in the clerk's office in that county. In the New England states there is no lien by judgment, but the attachment lien on real estate attached on mesne process continues from thirty days to five months after judgment to allow it to be seised on execution. See 1 Washburn, Real Prop. 2d ed. 487, note; Vanseiver v. Bryan, 2 Beasl. N. J. 434; Sheldon v. Arnold, 17 Ind. 165; Durham v. Heaton, 28 Ill. 265; Denegre v. Haun, 13 Iowa, 240; Van Camp v. Peerenboom, 14 Wisc. 65.

by the local statutes, and they are sold at the time and place appointed, by public auction or outcry, to the highest and best bidder. The writ is then returned to court with a statement of what has been done, and the sale is subject to the approval of the court; or for any material misdescription of the property, or any act of the sheriff, or of the inquest, not warranted by law, which may have been prejudicial to any of the parties, the plaintiff, defendant, or purchaser, may be set aside; and then a new sale is ordered by an alias venditioni exponas, which sale is also subject to this salutary supervision.

it

If the sale is affirmed, the sheriff then makes a deed to the purchaser, which conveys to him all the title which the defendant had in the land, and no more. To complete his title, the purchaser should procure the deed to be registered in the proper office.89

3396. On the return day of the fieri facias, the sheriff ought to make his return of what he has done under the writ; and should he neglect to do so, he may be called upon by rule to make such a return within a specified time, and if he do not then return it, or offer a lawful excuse for not so doing, the court will grant an attachment against him; but in some cases, where there is just cause for it, the court will enlarge the time within which he should make his

return.

If the sheriff fails to make return of the execution, all his acts done under it are wrongful, and he will be liable to the debtor as a trespasser," and the creditor may recover from the sheriff the damages he has suffered by the failure to return. This is presumed to be the amount due on the execution, but the sheriff may show that the debtor had no property subject to execution, and no damages have been suffered." If the sheriff finds no property, he must not return nulla bona before the return day.92 The failure of the sheriff to return

the writ after a sale does not affect the title of the purchaser.93

3397. The returns commonly made to a fieri facias are the following. When the sheriff has not found any goods belonging to the defendant on which he could levy, he returns that fact in the common formula, nulla bona. He returns fieri feci when he caused to be made out of the defendant's goods the whole or a part of the money, which he has ready to be paid to the plaintiff.

That he has taken the goods of the defendant to a certain amount, which remain in his hands for want of buyers. In this case he should be careful to specify what goods he has levied upon, for a general levy may render him responsible for the whole debt.

When he has levied upon land, he should so return and state what lands he has seized, by metes and bounds, so that when they are sold by him he may make a definite deed for the same. He should also return what further proceedings, if any, have taken place since the levy.

3398. These several returns will be separately considered.

When the sheriff returns nulla bona to a fieri facias, that the defendant has no goods within his bailiwick, the plaintiff may sue out an alias fieri facias, and after that, when required, as if the same return be made to the alias, a pluries into the same county, or he may have a testatum fieri facias into a dif

89 In the New England states, with the exception of Rhode Island, the sheriff's official return of the proceeding under the execution constitutes the title of the purchaser, as does the sheriff's return of the inquisition of the elegit in England, and no deed is executed, for the title rests upon matter of record. 4 Kent, Com. 434, 4th ed.

90 Williams v. Babbitt, 14 Gray, Mass. 141.

91 Ledyard v. Jones, 7 N. Y. 550; Bowman v. Cornell, 39 Barb. N. Y. 69.

92 Chalmers v. Moore, 22 Ill. 359.

93 Cloud v. El Dorado, 12 Cal. 128.

ferent county, suggesting that the defendant has goods there; but the testatum cannot go into another state, because the laws under which it issues do not extend there. Instead of these, or any of these writs, the plaintiff may, on the return of nulla bona to a fieri facias, issue a capias ad satisfaciendum, where such writ is not forbidden by act of assembly.

When the sheriff returns fieri feci, he becomes liable to the plaintiff for the money he has made on the writ, and the plaintiff may compel him to pay it, either by a rule of court, or by action of debt founded on his return. If a part of the money be levied, and so the sheriff has returned, the plaintiff may have a fieri facias or capias ad satisfaciendum for the residue; but in general the first execution must be returned before a second can issue, because the second is founded on the return of the first, and usually it recites the first execution and the return.

The sheriff is not bound to collect and pay over the amount of the execution before the return day of the writ." But if he has collected it, he must pay it over to the creditor upon demand at any time.

3399. A venditioni exponas is a writ, as has already been intimated, by which the sheriff is commanded to sell goods and chattels, and in some cases lands, which he has taken in execution by virtue of a fieri facias, and which remain in his hands unsold. The object of this writ, as it regards personal property, is to force the sheriff to sell when he has returned a levy unsold for want of buyers, and to bring him into contempt for not selling; he cannot, therefore, again return "not sold for want of buyers." 97 Should he make such a return, however, according to the English practice an attachment will not be granted against him. The proper way of proceeding, then, if the sheriff do not pay over the money on or before the return of the venditioni, is to sue out a distringas against him, directed to the coroner; and if he do not sell the goods and pay over the money before the return of that writ, he shall forfeit issues, that is, the goods and the profits of the lands of the defendant against whom the distringas has been issued, and which have been taken by virtue of such writ to the amount of the debt.9

99

If the debtor die after levy of a fieri facias on lands, a writ of venditioni exponas cannot issue thereon without a scire facias against his personal representatives.100

3400. The writ of levari facias is used for various purposes in England, against ecclesiastics, and, in certain cases, in favor of the crown. It is also used to recover a plaintiff's debt; it commands the sheriff to levy such debt on the lands and goods of the defendant, in virtue of which he may seize his goods, and receive the rents and profits of his lands till satisfaction be made to the plaintiff.101

In Pennsylvania this writ is used to sell lands mortgaged, after a judgment has been obtained by the mortgagee, or his assignee, against the mortgagor under a peculiar proceeding authorized by statute.

3401. The writ of elegit is but little used in the United States, because lands may be sold for the payment of debts. It is not entirely unknown in Virginia, 102

4 State v. Mann, 13 Ired. No. C. 444.

95 Nelms v. Williams, 18 Ala. N. s. 650; Rogers v. Sumner, 16 Pick. Mass. 387.

96 Frisch v. Miller, 5 Penn. St. 310.

"Graham, Pract. 359; Comyn, Dig. Execution, C, 8; 2 Saund. 47, 1; 2 Chitt. 390; Cowp. 406.

98 Leader v. Danvers, 1 Bos. & P. 358.

99 2 Saund. 47, n.

100 Wood v. Colwell, 34 Penn. St. 92. But see Burdett v. Chandler, 22 Tex. 14.

101 3 Blackstone, Comm. 417; 11 Viner, Abr. 14.

102 4 Kent, Comm. 434, 4th ed.

By the statute of Westm. 2, c. 18,103 "where a debt is recovered or acknowledged in the king's court, or damages awarded, it shall be in the election of him that sueth to have a fieri facias to the sheriff to levy the debt upon the lands and chattels of the debtor, or that the sheriff shall deliver to him all the chattels of the debtor, (saving his oxen and beasts of his plough,) and one-half of the land until the debt be levied upon a reasonable price or extent." From the election given to the plaintiff by this statute, and from the entry of the award of this execution on the roll, "quod elegit sibi executionem," etc., this writ derives its name.

On the receipt of this writ, the sheriff holds an inquest to ascertain the value of the lands and goods he has seized, and then they are delivered to the plaintiff, who retains them until the whole debt and damages have been paid and satisfied; during that time the plaintiff is called tenant by elegit.104

The writ of elegit must be returned. If lands have been extended under it, the inquisition must also be returned and filed; and when chattels have been appraised and delivered to the plaintiff, the sheriff should return on the writ that he delivered the goods at a reasonable price fixed by the jury.

Should the tenant by elegit hold over after his debt is fully satisfied, the defendant may recover his land from him, either by an action of ejectment, or by scire facias ad computandum, et rehabendam terram. This, however, is not the preferable remedy. It is a more general and a more advisable mode, for the recovery of the lands from the tenant by elegit, to proceed by bill in equity. If the lands are recovered back by an action at law, the plaintiff in that action will not be entitled to any but the extended value, which is generally very low, and much below the real value. But in equity the tenant by elegit will be compelled to account not for the extended value merely, but for the actual profits of the lands while in his possession.

3402. Here end our investigations respecting an action. It will be recollected that it was considered who should be the parties to the action, by what means they should be brought into court, the statement of the plaintiff's claim in his declaration, the defence or plea, the replication, and other pleadings, until the parties came to an issue of law and of fact, and how such issues must be tried; the evidence and the proceedings in the course of the trial; the argument of counsel and the summing up of the judge; the verdict, judgment, and all the proceedings in the nature of appeals; and finally the execution and satisfaction of the plaintiff when he was right, or his defeat and being obliged to pay the costs when wrong. The whole is a beautiful, logical, and systematic arrangement; and, however it may sometimes be perverted to promote injustice by chicanery and fraud, these being imperfections to which all human institutions are liable, it is still admirably calculated to attain substantial justice. It is true that many technical rules might by judicious hands be pruned, and by that means additional vigor would be given to the institution; yet, with all its imperfections, the mode of attaining justice by an action at law is one of the best contrivances that can be devised by so imperfect a being as man.

103 13 Edw. I.

104 Coke, Litt. 289; Watson, Sheriff, 206; Bacon, Abr. Execution, C, 2; 1 Archbold, Pract. 272. 338

CHAPTER XVIII.

ACCOUNT RENDER.

3403. The different forms of personal actions.

3404. Actions arising ex contractu.

3405. The action of account render.

3406. The parties in actions of account.

3407. For what cause account render will lie.

3408-3411. The declaration.

3412. The pleas and issue.

3413. The evidence.

3414. The judgment quod computet.

3415-3419. The proceedings before the auditors.

3416. The appearance of the parties.

3417. The hearing.

3418. The report of the auditors.

3419. The power of the court over the auditors.

3420-3422. The final judgment.

3421. Judgment for the plaintiff.

3422. Judgment for the defendant.

3423. Proceedings in error on final judgment.

3403. Personal actions are most commonly divided into two species: first, those which arise upon contracts; and, secondly, those which are given for the redress of wrongs, torts, or injuries. They will therefore be considered in the following order: first, actions arising ex contractu; second, actions arising ex delicto; third, mixed actions; and, fourth, scire facias.

3404. Actions arising ex contractu are account, assumpsit, covenant, debt, and detinue, each of which will be separately considered.

.3405. The action of account, or more properly account render, is not common, because in those states where there is a court of chancery the object is much more readily obtained by a bill in equity,' and because the plaintiff has a more efficacious mode of proving his claim, having, in addition to the usual proofs, the responsive oath of the defendant; but still its proceedings and this form of remedy are said in some cases to be more efficacious and prompt than a suit in chancery. Courts of equity, however, have assumed jurisdiction in cases of account concurrent with courts of law on the ground that they afford a more easy and more complete remedy than courts of law.

In considering the action of account it will be necessary to take a view of

1 For the remedy in matters of account in equity, see beyond, 3931.

213 Ves. Ch. 276. The action of account is of course abolished in those states which have abolished the distinctions between law and equity. See note end of chapter VIII. In some, where this distinction still remains, this action is specifically abolished. Mass. Rev. Stat. Ch. 118, 43; Gen. St. Ch. 129; and in most of the states it is rarely used. To supply its place the courts have power under the various statutes to appoint auditors in all matters of complicated accounts, or the plaintiff may resort to the more complete remedy in equity. In California no action at law can be referred without the consent of parties. Grim v. Norris, 19 Cal. 140.