Judgments on issues of fact — Nature and form of judgments.

Section 3. Judgments on issues of fact. On issues of law the judgment was pronounced at the time of deciding the issue. But, in the case of a verdict rendered on the trial of an issue in fact, there was no such actual award of judgment. The supposition was, that, after the trial at the circuit, the successful party appeared in court in banc, and on exhibiting and filing the pleadings and minutes of the trial, showing its result, moved for and obtained a rule for judgment according to the verdict. In point of fact, there was no such appearance or motion, and no actual delivery of judgment. The whole effect of these proceedings was had and expressed by a common rule, which was entered in the clerk's office, as of course, by the attorney for the prevailing party, on filing the necessary papers, whether the issue joined was one on a pleading in abatement or in bar of the action, the judgment on a verdict in favor of the plaintiff, was in either case that he recover, according to the nature of the action.

If issue was joined on a plea in abatment, and the plea was found true by the jury, the judgment in every form of action was, that the plaintiff's bill (or writ) be quashed, and that the defendant recovers his costs.

If issue was joined on a plea in bar, and a verdict was found in favor of the defendant, the judgment was, that the plaintiff take nothing by his bill, and that the defendant recover his costs. A principal quality of the judgment rendered on an issue of fact tried by a jury, was, that it was always final, as distinguished from the interlocutory judgments which have been mentioned; for the jury, when they found for the plaintiff, always assessed his damages at the time of delivering their verdict. The delay in entering judgments or the proceedings in suspension, will not be here noticed.

Section 4. Nature and form of judgments. A statement in detail of all the forms and modes of entering judgments need not be made. It is sufficient to state generally that the record was so made up as to show all the principal steps taken in the course of the action, from its commencement until the filing of the record.

Execution against property.

ARTICLE IX.

THE EXECUTION.

Section 1. In general. The practice in relation to executions has been changed in some respects, but, on the whole, remains substantially as before, as to the sale of property, or the arrest of the body. See Code, § 291.

Section 2. Execution against property. An execution against real or personal property was enforced much in the same way that it is now done.

Section 3. Execution against the person. There was nothing in the former practice in this respect which requires notice.

Section 4. Non-imprisonment act. This act was passed for the purpose of abolishing imprisonment for debt, and also to aid in the collection of judgments in cases in which the defendant's person could not be taken in execution, according to the provisions of that act. As this remedy is still in force, no further explanation is required.

Section 5. Attachments. The Revised Statutes provided for an attachment of the property of absconding, concealed and nonresident debtors. 2 R. S. 1. This subject has no immediate connection with the subject of executions, yet, as one of the remedies for collecting debts, it is alluded to.

Section 6. Creditor's bill. Whenever an execution against the property of a defendant had been issued on a judgment at law, and returned unsatisfied in whole or in part, the party suing out such execution might file a bill in chancery to compel a discovery of the property of the defendant. 2 R. S. 173, § 38.

Section 7. General remedies. In concluding this subject, it may be stated that a judgment might formerly have been enforced by an execution against property, or against the person, when permitted by law. If these failed of procuring its satisfaction, proceedings by way of a creditor's bill, or under the provisions of the non-imprisonment act, were his only modes of collecting the judgment.

In some cases an attachment might have been procured, but as that was not a remedy intended merely to aid in enforcing judgments, it is not discussed. It was not until the Code pro

Conclusion.

vided for it that there was an examination or other proceedings supplementary to execution.

Section 8. Writ of error. This proceeding, by way of review of the judgments of the supreme court, was the mode of correcting such errors in law as might have occurred in the various proceedings in the supreme court. The court for the correction of errors was the highest appellate tribunal in this State under the former practice. See the title, Court of Appeals, in this work. The supreme court also corrected errors in fact which might have occurred in that court. And it also corrected the errors of inferior courts, whether the error was of fact or of law.

Section 9. Conclusion. From this brief sketch the student will perceive that though the changes in the practice are important in relation to particulars, it remains unchanged in the great essentials of an action. In the subsequent parts of this work the details of the present practice will be pointed out with care, and with minuteness, and with as much accuracy as can be secured by the most patient labor for that purpose.

CHAPTER III.

PRACTICE IN EQUITY PRIOR TO 1846.

ARTICLE I.

ORGANIZATION OF THE COURT OF CHANCERY.

Section 1. In general. Under the former system, the court of chancery of this State possessed a jurisdiction and power coextensive with that of the high court of chancery in England, with the exceptions, additions and limitations, created and imposed by the constitution and laws of this State.

The whole power of the courts was vested in the chancellor. He exercised an original jurisdiction in every case co-extensive with the State; and an appellate jurisdiction where a concurrent power was vested in the vice-chancellor.

The circuit judges in each of the eight circuits into which the State was divided, exercised, under the name of vice-chancellors, concurrently with the chancellor, within their respective districts, and exclusive of any other circuit judge, all the powers of the chancellor in the following cases: When either the cause or matter arose within the circuit, or the subject-matter in controversy was situated therein, or the defendants or persons proceeded against, or either of them resided therein, subject to the appellate jurisdiction of the chancellor. The chancellor was authorized, not only to review any decisions of the vice-chancellors on appeal, but also to withdraw a cause from them when it was ready to be set down for a hearing and hear it himself. He might, also, refer to them the hearing or decision of any motion or of any cause set down for hearing before him; and might require them to execute such other powers and duties in relation to any matter in the court of chancery as he should, from time to time, direct; and might, by general rules, prescribe the time and manner in which proceedings might be had, and causes brought to a hearing before them, and the cases in which a rehearing might be had before them. 1 Van Sant. Eq. Pr. 4. The officers of the court were masters, examiners, a register, assist

Former jurisdiction as to actions for relief.

ant register, clerks, sheriffs, solicitors and counselors. Of these it is only necessary to speak here of the masters and examiners. They were both very important officers in the organization of the court, and to the prosecution of a suit or proceeding in equity. It was the duty of the masters to hear and determine, or report to the court, upon such interlocutory matters in suits or proceedings as might by order be referred to them. It was the duty of examiners to take and reduce to writing all the oral testimony or proof, as it was called, in an equity suit upon which the cause was to be heard by the chancellor, or by any of the vice-chancellors. Under the present practice a referee performs the duties formerly discharged by a master, and the evidence is now taken orally as in actions at law.

ARTICLE II.

FORMER JURISDICTION AS TO ACTIONS FOR RELIEF.

Section 1. In general. It is not intended to discuss at any length, in this place, the character of the jurisdiction of the court, further than to point out the principal actions or cases which were regarded as proper subjects for equitable interference or relief.

In Adams' Equity will be found an explanation of the principal cases in which courts of equity have usually acted. The first subject mentioned in that work is "Discovery," which is the power to compel a defendant to disclose such facts, knowledge, information or belief, as he may be able, if they are material to the plaintiff's case. And this rule was carried so far as to compel a discovery in equity, for the purpose of using the evidence in an action at law. There was also a similar jurisdiction in suits for a commission to examine witnesses abroad, or for the perpetuation of testimony, or for examinations de bene esse. Of those cases in which courts of ordinary jurisdiction could not enforce a right, may be mentioned the following: Trusts, both ordinary and charitable; Specific performance; Election; Imperfect consideration; Discharge by matter in pais of contracts under seal; Mortgages, perfect or imperfect; Conversion; Priorities; Tacking; Re-execution; Correction; Rescission and Cancellation; Injunctions against proceeding at law; Bills of peace; Bills of interpleader; Injunction against Tort.