No. 3400. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3401. 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. 3400. 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. 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.(d) (a) Leader v. Danvers, 1 B. & P. 358. (c) 3 Bl. Com. 417; 11 Viner's Ab. 14. No. 3401. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3401. 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. I. (b) Co. Litt. 289; Wats. on the Office of Sheriff, 206; Bac. Ab. Execution, C 2; 1 Archb. Pr. 272. No. 3402. Book 4, tit. 8, chap. 15, sec. 5, § 2, art. 2. No. 3402. 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. No. 3403. Book 4, tit. 9, chap. 1, sec. 1. No. 3405. TITLE IX.-OF THE DIFFERENT FORMS OR KINDS OF ACTIONS. 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. 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 ACTS ARISING EX CONTRACTU. 3404. 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) 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.(b) In considering the action of account, it will be necessary to take a view of, 1, the parties; 2, the cause (a) For the remedy in matters of account in equity, vide post, n. 3931. (b) 13 Ves. 276. No. 3106. Book 4, tit. 9, chap. 1, sec. 1, § 1. No. 3406. for which it will lie; 3, the declaration; 4, the pleas and issue; 5, the evidence; 6, the judgment quod computet; 7, proceedings before auditors; 8, the final judgment; 9, the proceedings in error. § 1. Of parties in actions of account. 3406. It is a general rule that parties who have an interest in the case must all join and be joined, because it being founded on contract, no recovery can be had by any person except those who have the right, nor against any one, who, though liable, is so only with other persons. But it is not always easy to say whether all the parties who have a right, have such an interest as will entitle them to bring the action; as, where two persons are tenants in common of goods, and one bails them to a stranger to render him an account, he alone shall have the action. On the contrary, if both the tenants in common bail the goods, they must join in the action. (a) So, on the other hand, all persons who are jointly liable must be made defendants, but care must be taken not to include as joint defendants persons who are not so jointly responsible; for example, where there are three or more partners, and one sues two of them in account, where each is responsible only for himself, the plaintiff must fail, because if he were to succeed he might make one of the defendants, who had received only his share of the partnership fund, liable for the acts of his co-defendant, unless there was a joint liability.(b) At common law, account could be maintained only against a guardian in socage, a bailiff or receiver, or by one in favor of trade and commerce, naming himself merchant, against another naming him merchant, (a) Bro. Accompt, pl. 32; Vin. Ab. Acc. E, pl. 14. Whelen v. Watmough, 15 S. & R. 153; McFadden v. Sallada, 6 Penn. St. R. 283. |