more evidence that he does owe it than the defendant produces that he does not.

89. Judgment. If the case be heard by a jury their decision is called a "verdict." The verdict, when "entered" is called a judgment and becomes a part of the written records of the court. This judgment varies according to the remedy provided for the wrong which the evidence shows to have been done. When a judgment is entered in a "court of record" it usually becomes a lien upon all real estate owned by the debtor in the county. So far the remedy has proved to be of little satisfaction to the creditor, for though he has a judgment, he seems as far as ever from securing satisfaction in the way of money. But these steps have all been necessary that the agencies of the law might make no error in their procedure, for to do so would be quite as great a wrong against the debtor as not to provide any remedy for the creditor. So far the steps taken have been to fix the liability with certainty, the remaining steps will be taken for the purpose of realizing upon that established liability.

90. Execution. This is an order issued by the court to its executive officer (constable or sheriff), directing him to seize the property of the debtor and convert it into cash, that the judgment may be paid. The execution is usually first served upon the debtor, that is, read to him, and a demand made upon him by the officer for either cash or property with which to satisfy it.

91. Levy. In case the debtor refuses or neglects to turn out property in satisfaction of the execution when it is served upon him, the officer may seize any such property he can find belonging to the debtor. This is called "making a levy." Property so seized is, after being advertised according to law, exposed for sale, usually by auction to the highest bidder. The proceeds are first applied in satisfaction of the costs and then to the claim itself, after which, anything remaining is turned over to the debtor.

92. Exemptions.-Not all property owned by the debtor is subject to levy under an execution. The several states have passed statutes called "exemption laws," by the terms of which certain property of certain persons is vouchsafed to them. This is to prevent the individual from being so deprived of the necessities of life, or of resources by which these necessities may be obtained, as to be in danger of becoming a public charge. As a rule, heads of families are

the most favored class in this regard. As this is a matter of statutory regulation, the student should consult the statutes of his own state for further details. (See page 242.)

93. Garnishment.-The debtor may have no property subject to execution, but another may owe him on account, note or other form of indebtedness. This person may be called in and made to testify as to the amount of such indebtedness. A judgment will then be entered against him for such amount as may be due, and in favor of the plaintiff. This is called "garnisheeing the debt of another."

94. Replevin.-When a party fails to perform that which he has contracted to do, the law, as we have seen, gives to the injured party a redress. This redress is in nearly all cases a money damage. The law does not usually compel a party to literally perform his contract, neither can he, as a rule, be imprisoned for not doing so. There are cases, however, when the law does not deem a money compensation a just equivalent. One of these is the unlawful taking and detaining of the goods of another. The remedy for this is an action of replevin. The executive officer of the court takes possession of the goods, and if after trial the judgment is in favor of the plaintiff, the actual goods are delivered to him; but if in favor of the defendant, the goods are returned to him. The scope of this action has been generally much enlarged by statute, until now it embraces all cases of unlawful detention of the goods of another, whether the original taking was lawful or not. It is certainly, where applicable, a wholesome remedy, and without it the law would in such cases come far short of giving complete redress.

95. Attachment.—In many cases, before the plaintiff could comply with the long formalities of a suit at law, and then secure an execution, the defendant would have put all property out of his hands, or would be out of the state. In such cases the court will issue an attachment. This is in effect reversing the order of the steps, bringing the execution first, after which comes the trial, judgment, etc. In Illinois there are nine statutory grounds, one of which must be sworn to by the plaintiff or his agent, before he can have the benefits of this action. It is a grave thing to deprive a man of his property before it is legally determined that he is indebted to the plaintiff.

In most states the plaintiff in an attachment case must give a bond before the writ will issue. The bond is conditioned that the

plaintiff will reimburse the defendant for any loss occurring to him should the attachment prove to be unlawfully sued out.

96. Injunction.-This may be said to be a negative remedy. It is rather to prevent an injury than to right one already done. If A is about to do that which would be an irreparable injury to B, he can secure an injunction against A. This is the order of the court restraining A from doing the act.

97. Specific Performance. This is perhaps the only genuine case where the law will compel a party to literally perform his contract. It will not lie for every contract. It will lie only in a few well defined cases, and these usually relate to real estate.

CHAPTER X.

DEFENSES.

98. Meaning.-While it may be true that the defendant has not fulfilled his contract in every particular, or not at all, yet there may be some legal excuse for his failure to do so. Any reasons which he may offer, and which the law will accept as relieving him from the consequences of his failure, are called his defenses.

The principal defenses are: (1) Statute of Frauds; (2) Statute of Limitations; (3) Tender; (4) Payment; (5) Performance; (6) Forfeiture; (7) Set off; (8) Recoupment.

STATUTE OF FRAUDS.

99. The Statute of Frauds was a famous English statute, passed in the reign of Charles II., and since substantially re-enacted in the statutes of most, if not all the states. It provided that certain classes of contracts must be in writing in order to be valid. It is, in fact, a question of evidence. The statute forbids any oral testimony to be introduced to prove the contract. If it be not in writing, so that the contract itself can be introduced, the plaintiff is simply unable to make out a case, which he must do. The defendant then objects to all oral evidence, and wins his point, not by the strength of his own defense, but by the weakness of the plaintiff's case.

To

Contracts falling within the list it simply adds another essential to the four already considered, but as the question is only raised as a defense, it is considered in that connection here. It was called the Statute of Frauds because the object of requiring certain contracts to be in writing was to prevent frauds and perjuries.

The statute provides that the following classes of contracts, among others, must be in writing:

I. Contracts for the sale of any interest in lands.

II. Leases of land, for more than one year (with certain exceptions).

III. Contracts by their terms not to be performed within one year.

IV. Contracts made upon consideration of marriage, except mutual promises of marriage.

V. Contracts to answer for the debt, default or miscarriage of another.

VI. Contracts for the sale of goods, chattels or choses in action for the price of $50 or more, unless:

1st. The buyer receives a part of the thing purchased;

2d.

The buyer pays part of the purchase price;

3d. The sale be by auction.

100. Contracts for the Sale of any Interests in Land. The sale of lands was always considered of much importance, and hence it is not surprising that this was made an important feature of this statute. Indeed under the American system of registering titles, the conveyance itself must of necessity be evidenced by writing. The statute includes not only the sale (the deed) itself, but the contract to sell as well.

A, in the presence of witnesses, offers to sell to B a certain piece of real estate for a certain price. B accepts the offer. They agree to meet on a future day, when B is to pay the purchase price and A is to deliver the deed of transfer. On the day set they meet, but A, having changed his mind, refuses to transfer the property. B has no remedy.

101. Leases of Land for more than one year.1-Long verbal leases would certainly lend an inducement to fraud, and many perjuries would result from relying on the memory of witnesses for the provisions of such a contract. The statutes of the states are not all uniform as to the maximum verbal lease permitted, some allow two and others three years.

'Arizonia, Alabama, California, Colorado, Delaware, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, Oregon, Rhode Island, Texas, Virginia, West Virginia, Wisconsin, Wyoming.

It becomes an important question whether the year referred to is to begin at the time of making the lease or on the day it goes into operation.

The language of the English Statute in reference to this section was "From the making thereof," and this langauge has been copied in many of the states. In these latter states the year counts from the day of making the lease.1 When this phrase or its equivalent has not been used in the statute, the year is to be considered as referring to the duration of the term."

102. Contracts by Their Terms Not to Be Performed within One Year from the Making thereof.-There is certainly no provision of this statute more salutary than this. Experience has shown the danger that exists in allowing transactions of a remote date to rest solely on the testimony of witnesses. They may not at the time have had a clear understanding of the agreement, and even though they had, they may now honestly differ in their recollections of it. It may seem that sometimes it works a hardship, but it must be remembered that it is a part of the law which every one is supposed to know, and he who neglects to take advantage of its provisions has no one to blame.

A verbally contracts in June with B for his services for one year from the first of the following July. This is not binding upon either, for by its terms it is not to be performed within a year.

A part performance, such as B working for the first four months of the term will not relieve the parties from the provisions of the statute. B can however, collect for the value of the services actually rendered, and if he perform his part entirely he can collect the entire consideration previously agreed upon.

It will be observed that the contract must be one that is not "By its terms" to be performed within one year. If it may be performed within a year, but is prolonged beyond that term, the statute does not apply.

103. Contracts Made upon Consideration of Marriage, except Mutual Promises of Marriage. This section has reference more particularly to a custom more common formerly than now. It was an agreement made by the parent, guardian or relative of the prospective bride with the groom, by which he or they were to settle a certain amount of

1 Illinois, New Jersey, Massachusetts, Pennsylvania. Colorado, Georgia, Iowa, New York.