therefore see no force in the suggestion that the statute is unconstitutional, in that the judgment debtor has under it no notice of the supplementary proceeding after judgment affecting his rights of property." And in Ketcham v. Kent, supra, the court aptly said that if notice were given the judgment debtor before issuing the garnishment, "the very advantage sought by the writ would possibly be of no avail, as a disposition could be made of the fund or property before service could be had."

We conclude that the provision of § 1391 of the Code authorizing the issue of a garnishment execution on the ex parte application of the judgment creditor, is not in conflict with the due process clause. 2. Nor does this secion deprive the judgment debtor and garnishee of property without due process of law by interference with their liberty of contract. The statute in no wise prevents them from making such contract as they choose, but merely subjects the proceeds of the contract that become due the judgment debtor to the payment of the judgment rendered against him. This is not an interference with the right of contract within the meaning of the due process clause. Compare Philbrick v. Philbrick, 39 N. H. 468, 474, and Laird v. Carton, 196 N. Y. 169, 172. The suggestion that a substantial constitutional right of the garnishee is impaired because he may be put to some additional expense of bookkeeping in keeping his account with the judgment debtor, is plainly without merit.

3. It is further contended that this section of the Code is void because contrary to public policy. This, however, does not present a federal question.

Affirmed.1

JABITSKY v. SOLOWACHIK.

MUNICIPAL COURT, BOROUGH OF BROOKLYN, NEW YORK.

1933.

150 Miscellaneous 713.

PLAINTIFF procured verdict in negligence action after trial before court and jury against defendant Nathan Weinberg and Benjamin Weinberg; after rendition of verdict plaintiff moved

(a) For an order directing the clerk of the court to enter in the docket of this cause that the defendants are liable to execution against their persons, and

(b) For an order directing the issuance of an execution against the persons of the defendants in the event an execution against the property of said defendants shall be returned unsatisfied.

1 See Newman and Kaufman, "The New York Garnishee Execution as a Practical Remedy," 12 N. Y. U. L. Q. Rev. 255 (1934).

DITORE, J. Judgment modified by inserting therein that a body execution may issue. In an action to recover damages for personal injuries, plaintiff is entitled to body execution. (Civ. Prac. Act, § § 764, 826.) The fact that plaintiff has not issued execution to a marshal as against defendants' property is immaterial at this time. A body execution will issue only when execution against property has been returned unsatisfied and this must be considered by the clerk before he issues said body execution. Settle order on notice.1

In PEOPLE ex rel. LEVINE v. SHEA, 201 N. Y. 471 (1911), VANN, J., said (pp. 474-475): “Imprisonment for debt dies hard. Barbarous, cruel and senseless, it puts its victim in jail in order to make him do something which in most instances the imprisonment itself prevents him from doing. It is the lawful use of torture and differs only in the degree of the suffering caused from the thumb screw, the rack and the boot. The spirit which for generations pervaded and upheld it is illustrated by the following official utterance of an eminent English judge3: 'If a man be taken in execution and lie in prison for debt, neither the plaintiff at whose suit he is arrested, nor the sheriff who took him, is bound to find him meat, drink, or clothes, but he must live on his own, or on the charity of others; and if no man will relieve him, let him die in the name of God, says the law, and so say I.' (Manby v. Scott, 1 Mod. 124, 132.)

Many efforts have been made to put an end to the evil as well as to soften the hideous features known to former times. The noted Stilwell act, passed in 1831, brought about one of the great reforms in the history of legislation by abolishing, with some exceptions, imprisonment for debt based on contract when the defendant was innocent of fraud. (L. 1831, ch. 300.) Other acts of less importance followed, and in 1886 a marked advance was made by limiting the

1 Body execution is allowed in New York in certain classes of cases by N. Y. C. P. A. §§ 764-772. See People ex rel. Harris v. Gill, 85 App. Div. 192 (N. Y. 1903), affd. without opinion, 176 N. Y. 606 (1903); Matter of Perine, 158 Misc. 597 (N. Y., 1936). Arrest on mesne process is allowed in certain classes of cases by N. Y. C. P. A. §§ 826-875. See Note, 26 Col. L. Rev. 1007 (1926). Body execution in actions at law is also allowed to a limited degree in some other states. See Note, 37 Yale L. J. 509 (1928). We shall consider later the enforcement of decrees in equity by imprisonment of the defendant. See Ch. XIV, infra.

2 Imprisonment for debt was anything but "senseless" in the days when a defendant's choses in action could not be reached either by execution at law or by bill in equity and when only half his land at most could be extended under an elegit. See 8 Holdsworth, History of English Law (2d ed. 1937) 229–236. Nor is it wholly without useful application today in cases where a defendant has income from a spendthrift trust which is judgment-proof or has made fraudulent conveyances which cannot be proved, or in situations like that described in Train, Mr. Tutt's Casebook (1936) 549-572.

3 Hyde, J., in 1659.

4 Now N. Y. Civil Rights Law § 23. In most states constitutional provisions forbid imprisonment for debt, usually excepting cases of fraud and sometimes excepting tort cases. See Note, 41 Harv. L. Rev. 786 (1928). Cf. p. 23, supra.

period of imprisonment and restricting the circumstances under which a debtor could be imprisoned. (L. 1886, ch. 572, sec. 5.1)" 2

1 Now N. Y. Civil Rights Law § 72.

2 See Ford, "Imprisonment for Debt," 25 Mich. L. Rev. 24 (1926); 3 Freeman, Executions (3d ed. 1900) § 451. See also Holdsworth, Charles Dickens as a Legal Historian (1928) 136-143.

PART THREE

SUITS IN EQUITY

CHAPTER XI

HISTORY OF EQUITY

BOLLAND, THE YEAR BOOKS (1921) 55-59.

IN the ordinary way the men of the middle age, speaking broadly, got justice in the Court of Common Bench, when they did not or could not for some reason or other get it in their own local courts. The procedure in that Court was not easily adaptable for the remedy of many wrongs which might be very real wrongs and yet could not be brought within any of the heads for which a man might get a writ. No Court which administers strict law, and strict law only, is so adaptable; and the Court of Common Pleas administered strict law; and law strictly administered often involves hardship and morally inequitable results. Process in the Common Bench was slow, one may fairly suppose, somewhat expensive and was certainly often very dilatory. Further, the Court of Common Bench sat only at Westminster, a fact which put it still further out of the reach of the poor man living far away from London. Every few years our earlier Kings sent out a company of Justices to hold what were called General Eyres in every county of the kingdom. The King's Justices of Eyre had the powers, within their several jurisdictions, of the King himself. . . . The King's residual or extraordinary function of causing justice to be done where ordinary means failed lay in their hands, and they were not only entitled but bound to exercise it. And they exercised it in this way. When they arrived at the county town in which they were to hold their Eyre they caused public proclamation to be made that anyone who desired to make complaint of and to have a remedy for any wrong of any sort done to him might present to them a bill stating all the facts, and they promised that justice should be done to him by them. These bills were presented to the Justices in large, in very large numbers. . . . The Justices inquired into the complaints in a very thorough-going way. They were bound by none of the shackles which bound them when trying a case commenced in the ordinary way by writ. They were administering a sort of primaeval law, absolute equity; the sort of law one may suppose the Jewish Kings administered in the

gate of Jerusalem. No rules stood in their way to prevent their finding out the exact truth of the matter. They did not concern themselves with finding out what, if any, particular law applied to the matter. They were there to see that right was done, no matter what the law said. They even interrogated the parties; a thing unknown to common law process. This equitable jurisdiction of the Justices in Eyre is earlier than the equitable jurisdiction exercised by the Chancellor or even by the King's Council. It is the very beginning of our English equity.1

MAITLAND, EQUITY (1909) 1-11.2

suppose that we ask the question -What is Equity? We can only answer it by giving some short account of certain courts of justice which were abolished over thirty years ago. In the year 1875 we might have said 'Equity is that body of rules which is administered only by those Courts which are known as Courts of Equity.' The definition of course would not have been very satisfactory, but now-a-days we are cut off even from this unsatisfactory definition. We have no longer any courts which are merely courts of equity.3 Thus we are driven to say that Equity now is that body of rules administered by our English courts of justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as Courts of Equity.*

This, you may well say, is but a poor thing to call a definition. Equity is a certain portion of our existing substantive law, and yet in order that we may describe this portion and mark it off from other portions we have to make reference to courts that are no longer in existence. Still I fear that nothing better than this is possible. The only alternative would be to make a list of the equitable rules and say that Equity consists of those rules. This, I say, would be the

1 See also Bolland, The General Eyre (1922) 75-82; 2 Holdsworth, History of English Law (4th ed. 1936) 336–347; Select Bills in Eyre (ed. Bolland, 1914) xv-xxx, xl-lxiii. With the cessation of the General Eyre and its replacement by the later Assizes, the procedure by bill in eyre became obsolete, and the common law became rigid. The equity of the Chancellor thus became necessary to mitigate the rigors of strict law; and it developed on lines independent of those foreshadowed by the earlier equitable jurisdiction of the common law judges sitting in eyre, mainly because the Chancellor adopted, as we shall see, a different procedure from that of the common law courts.

2 The same text appears in the 2d edition by Brunyate (1936) 1-11.

3 In 1875 the Judicature Acts (36 & 37 Vict. c. 66, and 38 & 39 Vict. c. 77) took effect. By 36 & 37 Vict. c. 66 § 16, there was conferred upon the High Court of Justice, with certain exceptions of minor importance, the jurisdiction previously "vested in, or capable of being exercised by" the Court of Chancery and the common law courts. See 1 Holdsworth, History of English Law (6th ed. 1938) 638-643. Cf. Ch. XVIII, infra.

4 Cf. Patterson, "What is Equity?" 9 Am. Bar. Assn. J. 647 (1923).