ferent from the one at common law, where the writs used in the law courts have been adapted to enforce the execution of decrees in equity.25 At common law, independently of any statute, according to the English practice, the courts of chancery act upon the person and not upon the estate, so that a decree will not bind the right of the defendant in his land. But still those courts possess the power not only to commit the parties for their non-compliance with their decrees, but also will sequester personal estate and land, and by a writ of assistance order the delivery up of the possession of the estate itself. The modes of enforcing a decree where there is no statutory provision for that purpose, according to the English practice, which may still be pursued in some of the states, are as follows: by writ of execution and attachment, by sequestration, and by writ of assistance. 4453. When a decree or order has been made directing some act to be done by any party on record, its performance may be enforced by the personal service of a writ of execution of the decree or order upon that party; and upon a neglect to comply with it, an attachment will issue against him, for in that case he will be acting in contempt of the court. There is a marked difference in the effect of a commitment between that process in equity and a commitment under a capias ad satisfaciendum at law; the former does not operate as a satisfaction of the decree, and, therefore, the plaintiff may have any other means allowed by law for the purpose of enforcing it. The commitment of the defendant for a contempt in not obeying the decree of the court will be no bar to a sequestration, or any other remedy. On the contrary, at law, the commitment of the defendant under a capias ad satisfaciendum is a complete bar at common law against any further proceeding. 4454. When the attachment is returned non est inventus, the plaintiff must proceed to a sequestration. If, on the contrary, the defendant has been arrested under the attachment, and committed for the contempt, the party prosecuting the contempt is at liberty to move for a sequestration against him.26 Sequestration in chancery practice is a writ or commission, sometimes directed to the sheriff, but most usually to four or more commissioners of the complainant's own nomination, authorizing them to enter upon the real and personal estate of the defendant, and to take the rents, issues, and profits into their hands, and keep possession of them, or pay the same as the court shall order and direct, until the party who is in contempt shall do what he is enjoined to do, and which is especially mentioned in the writ." 4455. When the sequestration has not been executed, in consequence of any obstacle lawfully interposed in the way of the commissioners or sheriff, the complainant may have a writ of assistance; or when possession is not given upon an affidavit of the personal service of the writ of execution and demand of possession, and refusal, the plaintiff may then also obtain an order of course for a writ of assistance, which is drawn up in this form, "that a writ of assistance do issue, directed to the sheriff of county, to put the said plain tiff in possession of the premises in question, pursuant to the said decree." The writ is directed to the sheriff of the county in which the lands lie, and, after reciting the ordering part of the writ of execution, authorizes the sheriff' to put the party into possession, and to maintain him there, and commands him, 25 Coombs v. Jordan, 3 Bland, Ch. Md. 303; The Cape Sable Company's Case, 3 Bland, Ch. Md. 606. See Norton v. Tallmadge, 3 Edw. Ch. N. Y. 301; Hall v. Dana, 2 Aik. Vt. 381; Laflin v. Relyea, 7 Paige, Ch. N. Y. 368; Coleman v. Cocke, 6 Rand. Va. 618; McNair v. Ragland, 2 Dev. Eq. No. C. 42. 26 See Dunkley v. Scribnor, 2 Madd. Ch. 443; Errington v. Ward, 8 Ves. Ch. 314. 27 1 Harrison, Chanc. Pract. 191; Newland, Chanc. Pract. 18; Blake, Chanc. Pract. 103; 1 Smith. Chanc. Pract. 432; White v. Gevaerdt, 1 Edw. Ch. N. Y. 336. on the receipt of the writ, to enter into the premises and eject the defendant therein named, his tenants, etc., from the same, and to put the complainant in possession, and to defend him from time to time, in case any interruption shall be offered to such possession. A writ of assistance will be granted, after a sequestration, where the possession of the land was in the defendant at the time of the decree, and afterward such possession has been delivered to a third person, though for a personal demand, and oblige the person in possession to come before the court and be examined pro interesse suo.28 4456. Having attained the end of our labors, if we take a retrospective view of the subjects which have so long occupied our attention, we shall naturally be struck by the fact that the number of rules and their exceptions of which our code is composed is immense. Without a correct classification, this mass would be a perfect chaos. When properly arranged, these rules are not only easily understood by the diligent student, but can be recollected. He who would study chronology without a division of time would not accomplish much; but by its proper arrangement into periods it is not difficult to place any event which has happened in the course of ages where it ought to be. To the unlearned and superficial observer, it may appear strange that so many rules should be required for the guidance of men in the common affairs of life. If these rules are so many laws binding on them, it will be asked, why is a code made so complex? is it not unjust to require that all persons should know these numerous provisions, or be punished for an ignorance which is almost unavoidable when they violate any of them? It cannot be denied that some of the requirements of the law are arbitrary, and not easily understood by any but experienced lawyers, yet most of its provisions are founded on that common sense which men generally possess. These rules are a mere amplification of the principles of natural justice. Most of them, both at law and in equity, have their foundation on the sublime gospel command: “All things whatsoever ye would that men should do unto you, do ye even so to them." 29 Unless laboring under mania, or some other mental defect, men generally perceive right from wrong. But in a country where the laws are and must reign supreme, it is of the greatest consequence that they should be certain, and, for this purpose, they must be very numerous. When the balance of justice is put in the hands of so fallible a being as man, he must have a rule by which to exercise his power; to restrain him from doing wrong when his prejudices incite him to it; to keep him within proper bounds in the exercise of his functions; and to support and encourage him when he is in the right. The law is a lamp in the path of the judge to guide him in his difficult course; a barrier to the oppressor; a shield to the innocent; a protection to the weak; and a blessing to all. In a despotic country, where the will of the sovereign or his minions disposes of the lives, the honor, and the property of his subjects, laws are unnecessary. The same power which makes them puts them into execution; there, the code is very simple-the will of a tyrant. While, like all other human institutions, the law is not perfect, and has many excrescences of which it might be profitably pruned; though it might be greatly simplified by casting away many of the provisions which grew upon it in a dark age; yet it is the greatest monument human wisdom ever erected, and no country can be happy without it; it is the ark of safety, its presence secures order and peace, its absence produces chaos and anarchy: in societate civili aut lex aut vis valet.30 28 Bird v. Littlehales, 3 Swanst. Ch. 299, n. (a). 30 Bacon, De Augmentis Scientiarum, lib. viii, c. 3, Aph. 1. 29 Matth. vii 12. INDEX. A. A l'impossible nul n'est ténu, maxim of, 601. A vinculo, divorces, 293. Ab initio, when partnership is dissolved, 1502. when acts are validated, 3604. Abandonment of personal property, effect of, 494. what loss will authorize an, 1220. when to be made, 1220. effect of, 1221. Abatement, pleas in, 2904-2912. to the parties, 2906, 2907. to the count, 2908. to the writ, 2909. to the form of the writ, 2910. to the action of the writ, 2911. difference between pleas in bar and, 2912. of the freehold, what, 2353. of a nuisance, 2387, 2449. in trespass, pleas of, 3633. effect of, 4112. Abator, who is an, 2353. Abduction of children, remedy for, 2292. Abeyance, what, 1698. Aborigines, rights of, 40. Abortion, punishment of criminal, 2236. Abridgment, when not a piracy, 3787. Abrogation, what, 91. Absence, what, 234. statute of limitation does not run during, 865. Absentees, who are, 234. Absolute executor, who is an, 2173, 2680. sale, what, 969. acceptance of a bill, 1150. rights, what, 199. property, 468, 3520. rights, remedy for injuries to the, 3489. incapacity to sue in equity, what, 4029. Absque hoc, meaning of, 2985. Abuse of process, consequences of, 3593. of a contract, what, 578. by whom made, 1144. when to be made, 1145. effect of, 1149. 687 Acceptance of a bill, conditional, 1151. Acceptor, who is an, 1130. natural, 500. artificial, 503. Accessory contracts, what, 702. when courts of equity will relieve from, 3827. when courts cannot relieve from, 3830. fire, consequence of, on landlord, 1790. Accidents, relief relating to, 3791. Accouchement, proof of, 314. Account. action of, 3405-3423. parties to, 3406. for what cause, 3407. what damages recover in, 3411. evidence to support, 3413. judgment quod computet in, 3414. proceedings before auditors in, 3415. proceedings in error in, 3423. annexed, 2856, n. guardian bound to keep an, 354. books, when evidence, 3141. stated, what, 2856. agent is required to keep, 1351. of several partners, how kept, 1528. who should be parties to bill for an, 4073. jurisdiction of courts of equity in matters of, 3931. defences to matters of, 3932. effect of a stated, 3935. agent, when to, 3938. bills praying contribution to an, 3939. Act of God, carrier not liable for, 1024. Actio personalis moritur cum persona, maxim of, 2754, 2782. Action. |