Home >> Cyclopedia Of Knowledge >> England And to Germanic Confederation >> Execution

Execution

sheriff, chattel, judgment, possession and writ

EXECUTION is the effect given to the judgments and other proceedings analogous to judgments of courts of law in civil suits. This term denotes the process by which a party is put into the possession of that to which the judgment of a competent court declares him to be entitled.

As a judgment of a court of common law ascertains that the party is entitled to the possession of some object of a real or personal nature ; or to recover dam ages in respect of property withheld or injuries done, so the execution founded upon such judgment will be framed with a view to putting the party in whose favour the judgment is given either in the possession of the thing in dispute, or to enable him to obtain pecuniary com pensation.

For this purpose a written command issues in the name of the king or other lord of the court, to an officer of the court. When the judgment is in one of the king's superior courts at Westminster, the officer of the court for this purpose is the sheriff of the county in which the property is situated, or, in the case of pecuniary compensation, the sheriff of the county in which the party from whom such compensation is due is supposed is reside ; which, until the contrary is shown, is taken to be the county in which the litigation was carried on.

When lands or other corporeal ditaments are recovered, the process of execution varies according to the nature of the interest recovered. If a right to a freehold interest has been established, the writ commands the sheriff to give the coverer seisin of the lands, &c., and is called Habere facias seisinam. If a chattel interest in land is recovered, the writ does not affect to authorize the sheriff to intermeddle with the freehold, and directs that officer merely to give ion of the land, &c. This is called

possession facias possessionem.

A judgment in the action of Detinue establishes the right of the recov erer to the possession of a specific personal chattel, and the writ of execution called a Di9• tringas ad deliberandum issues, which re quires the sheriff to coerce the defendant by his distringas (distress) to restore the specific chattel or its value.

A judgment for the defendant in Replevin establishes his right to the pos session of the personal chattel which formed the subject of the litigation. In the ordinary case of an action of replevin after a distress, the right of the defend ant in respect of the chattel distrained is merely to hold it as a security for the payment of the debt or duty, the pay ment or performance of which is sought to be enforced by the coercion of a dis tress. The writ of execution requires the sheriff to cause the chattel to be re. stored to the possession of the defendant. This is called a writ De retomo habendo, and in case the sheriff is unable to find the chattel, further process issues com manding him to take other chattels of the plaintiff as a substitute for that which is withheld, by a writ called a Capias in withernam.

The most ordinary cases of execution are those in which pecuniary compensa tion is to be obtained, but in these cases the sheriff is not authorize d directly to take money from the party by whom it is to be paid. Formerly the only mode of