De clerico admittendo, which is a judicial writ directed, not to the sheriff, as in the two former cases, but to the bishop or his metropolitan, requiring them to admit and institute the clerk of a plaintiff who has recovered a presentation to a benefice in a quare impedit. 3. A special writ of execution issues to the sheriff in all cases where the judgment is, that something special be done in order to compel the defendant to do it; as in replevin, a writ de retorno habendo, and the like.

Executions in actions, where money only is recovered as a debt or damages, and not any specific chattel, are of five sorts:-1. Capias ad satisfaciendum, the intent of which is to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages ; it, therefore, doth not lie against any privileged persons, as peers, members of Parliament, executors, administrators, for the debts of the deceased, unless a devastavit has been returned, or such other person as could not be originally held to bail. This is a writ of the highest nature, and, therefore, when once executed, no other process can be sued out against the party's land or goods, except, by 21 Jac. 1, c. 24, the party die in execution, or have escaped, or been discharged on the ground of privilege, or of irregularity. No defendant can now be taken on a capias ad satisfaciendum for a debt not exceeding the sum of £20, exclusive of the costs recovered. But this does not apply to a plaintiff who has been nonsuited, for he may be taken in execution for the costs (a e).

2. A fieri facias, which commands the sheriff that he cause to be made of the goods and chattels of the defendant the sum or debt recovered And by 1 & 2 Vict. c. 110, s. 12, the sheriff may take any money or bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other secu

rities for money. And the sheriff may sue for the amount of the bills, &c. This writ lies against privileged persons, peers, &c., as well as common persons; and against executors and administrators, with regard to the goods of the deceased, and on a devastavit the plaintiff may have a fieri facias against the representative's own goods (af).

3. A levari facias is a writ of execution which affects a man's goods and the profits of his lands; and by virtue of which the sheriff may seize all his goods, and receive the rents and profits of his lands till satisfaction be made to the plaintiff. This is the most ancient judicial process of the law, but little use is now made of it, the remedy by elegit, which takes possession of the lands themselves, being much more effectual.

4. Elegit is a judicial writ, given by the statute of West. 2, c. 18, either upon a judgment for a debt or damages, or upon the forfeiture of a recognizance taken in the King's court; for, by the common law, land was not liable to any debt, because the debt was contracted upon the personal security; but by this writ two things are done :- 1st, The goods and chattels of the defendant, except his oxen and beasts of the plough, are delivered to the plaintiff; and, 2dly, The whole of his lands and tenements. Formerly, indeed, only a moiety of the defendant's lands could be taken, but by 1 & 2 Vict. c. 110, s. 11, the whole of the defendant's lands are to be extended, which includes lands of copyhold and customary tenure, trust estates, and estates over which he has a sole power of disposition. The goods are not sold, but delivered to the plaintiff at a reasonable appraisement and price, in satisfaction of his debt; and if the goods are not sufficient, then the lands. 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, and during this period the plaintiff is called tenant by elegit. The sheriff does not deliver actual possession of the lands, and the execution creditor, if he cannot enter and take possession without force, must bring an ejectment. When the judgment is satisfied, the best, though not only, course is for the defendant to apply for a reference to a master of the court. The plaintiff cannot sue out a capias ad satisfaciendum, or fieri facias, after having sued out an elegit; for he hath his election, from whence it is called elegit, whether he will sue out this writ, or a capias ad satisfaciendum, or fieri facias; but if execution can only be had of the goods, because there are no lands, he may have a ca. sa., so that the body and goods, or the land and goods, may be taken in execution; but not body and land too, except upon some prosecutions given by statute; as statutes merchant and staple, bonds to the king (a g).

Scire facias.]-It should be noticed that sometimes, before execution can be issued, a scire facias. is necessary, which occurs chiefly where there is (1) any change of the parties by death, by marriage, or by bankruptcy or insolvency; (2) where the plaintiff has not sued out execution within a year and a day after judgment (a h).

CHAP. XXXVI.

EQUITY.

[See 3 Black. Com. ch. 27; 4 Steph. Com. Bk. V. ch. 14.]

Having noticed the subject of civil injuries as cognisable at law, we have now to speak of such civil injuries are are cognisable in courts of equity, and the proceedings thereon.

Law and equity.]-Law and equity are not to be considered as in opposition to each other, though some writers treat them as being so. They say that it is the business of a court of equity to abate the rigour of the common law, but no such power belongs to equity. Courts of equity were bound by the doctrines of law as to the exclusion of half-blood from inheritances, and that the father could not succeed to the son, and so lands devised were formerly no more liable in equity to the simple contract debts (unless expressly charged) of the ancester or devisor than at law. Again, it is said that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But this is no more than courts of law are in the habit of doing. Each endeavours to fix and

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adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense in a single tittle. It has also been said that fraud, accident, and trust are the proper and peculiar objects of a court of law. But every kind of fraud is equally cognisable and equally adverted to in a court of law. So many accidents are supplied at law, as loss of deeds, mistakes in receipts or accounts, wrong payments, and the like. Some accidents cannot be relieved in equity, as the omission to execute a power or a will badly executed. Some trusts are cognisable at law, as bailments, deposits, &c., though a technical trust created by the limitation of a second use, is noticed only in courts of equity. Lastly, it has been said that a court of equity is not bound by rules or precedents, but acts from the opinion of the judge, founded on the circumstances of each case. But the truth is that courts of equity adhere to precedents as much as courts of law, and are even less unyielding in this respect.

The rules of decision are, in fact, equally apposite to the subjects of which they take cognisance. In mercantile transactions both jurisdictions follow the marine law, and argue from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction they both follow the law of the proper forum; in matters originally of ecclesiastical cognisance they both equally adopt the canon or imperial law, according to the nature of the subject; and if a question came before either, which was properly the object of a foreign municipal law, they would both receive information as to what is the rule of the country, and would both decide accordingly.

Difference between law and equity.]—The essential difference between equity and law is to be