PRACTICE. 155
It was utterly impossible under such circumstances, that there could be any settled course of practice. A few things, however, were so well settled that neither judge, jury, nor counsel thought of questioning them, and a compari- son with the modern practice may be useful. —
1. Every writ, in general, ran against the body of the defendant, that is, its mandate was to attach the goods, " or for want thereof the body of the de- fendant, and him safely keep," &c.
This mandate did not mean what it said, but exactly opposite what it said. It meant that the sheriff might arrest the body of the defendant, and put him in jail without his making any search for goods, and without regard to whether the defendant had any goods or had not.
Of course the defendant had the right to furnish suitable bail but whether it was suitable or not, the sheriff was the judge.
This put the bail for the time being in the shoes of the sheriff. They had the power, as he had, at any time and any place, to take the body of the de- fendant, even if sick unto death, as not unfrequently happened, and commit him to jail, and if they failed to do so, alter judgment, they became bound to pay the entire claim against him ; and this in the few cases in which it can be applied is understood to be still the law of this state.
But in practice the power went far beyond this. The sheriff claimed the right under the capias issued while the dying man was living, to keep his rot- ting corpse above ground until the debt claimed was satisfied, and this has repeatedly been done in this province and state ; and no one, so far as I have ever been able to learn, either on the bench or at the bar, ever questioned the soundness of this law.
This practice, however, did not originate here. It was imported from the mother country, and we received it as part of our law.
You will find in some of the earlier reports that this thing was done, or attempted to be done, in Great Britain. Able counsel however there, brought the question before the court in three or four instances, and so far as I am able to find the courts have denied the power. It must, however, at some time have been the traditional law of the mother country, or able couusel would not have so advised, and our ancestors would not have received it without a whisper of doubt.
2. The rule of practice in early days was that everything movable might be attached.
The sheriff had the power to take the last pig, the last cow, the fire-shovel and tongs and other articles of value, and the cases are legion in which all this has been done.
There was to this rule, however, two well-settled exceptions, and they were both in favor of the gentler sex.
A sheriff had no right to take a woman's clothes, &c., from her person. This exemption was characterized by the phrase, "nobody can touch a smock," and out of this came a phrase which was commonly on the lips of snowy-haired men fifty years ago, " it's safe in a smock ;" and " it is good, if it is smock money," What they ment by it was, the money, trinkets, pins and small wares which the women used to hide away in their clothes to keep them away from the sheriff and not be seized by him.
The second was that no sheriff could take away a bed with a woman on it. No man had any right to a bed, neither had a woman unless she was on it.
It used to be a pastime among the old settlers to tell the shrewd ways re- sorted to by sheriff's to get round these exemptions. One story told everywhere was that a sheriff went to a house and seized everything else, but the wife had been recently confined and was on the bed with her child. He could not
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