No. 3395. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3395. 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 different 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. 2. 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 a 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. 2° Of the venditioni exponas. 3395. 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; (a) he cannot therefore, again return "not sold for want of buyers."(b) Should he make (a) Frisch v. Miller, 5 Penn. St. R. 310. (b) Grah. Pr. 359; Com. Dig. Execution, C 8; 2 Saund. 47, 1; 2 Chit. Rep. 390; Cowp. 406. No. 3396. Book 4, tit. 8, chap. 15, sec. 5, § 2, art 2. No. 3397. such a return, however, according to the English practice, an attachment will not be granted against him. (a) 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.(b) 3° Of the levari facias. 3396. This writ 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.(c) 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. 4° Of the elegit. 3397. 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.(d) (a) Leader v. Danvers, 1 B. & P. 358. (c) 3 Bl. Com. 417; 11 Viner's Ab. 14. No.3397. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3397. By the statute of Westm. 2, c. 18,(a) "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.(b) 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 (a) 13 Edw. 1. (b) Co. Litt. 289; Wats. on the office of Sheriff, 206; Bac. Ab. Execution, C 2; 1 Archb. Pr. 272. No. 3398. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3398. gen But entitled to any but the extended value, which is erally very low, and much below the real value. 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. 3398. 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 defense 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. No. 3399. Book 4, tit. 9, chap. 1, sec. 1. No. 3401. TITLE IX.-OF THE DIFFERENT FORMS OR KINDS OF ACTIONS. 3399. 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. This title will, therefore, be divided into four chapters; the first, treating of actions arising ex contractu; the second, of actions arising ex delicto; the third, of mixed actions; and the fourth of scire facias. CHAPTER I.-OF ACTIONS ARISING EX CONTRACTU. 3400. These are, 1, account; 2, assumpsit; 3, covenant; 4, debt; 5, detinue; each of which will be considered in a separate section. SECTION 1.—OF THE ACTION OF ACCOUNT.(a) 3401. 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. (b) In considering the action of account, it will be necessary to take a view of, 1, the parties; 2, the (a) For the remedy in matters of account in equity, vide post, n. 3927. (b) 13 Ves. 276. |