When property is sold under execution, the proceeds are applied to the satisfaction of the judgment and the costs and charges of the proceedings; and the surplus, if there be any, is paid to the defendant in execution.
4. Execution against personal property. When the property consists of goods and chat tels, in which are included terms for years, the writ used is the feri facial. If, after levying on the goods, etc. under a fieri facias, they remain unsold for want of buyers, etc., a sup plemental writ may issue, which is called the venditioni exponas. At common law, goods and chattels might also be taken in execution under a levari facia s ; though now perhaps the most frequent use of this writ is in executions against real property.
When the property consisted of Moses in action, whether debts due the defendant or any other sort of credit or interest belonging to him, it could not be taken in execution at common law; but now, under statutory pro visions in many of the states, such property may be reached by a process in the nature of an attachment, called an attachment execu tion or execution attachment. See ATTACH MENT.
Execution against real estate. Where lands are absolutely liable for the payment of debts, and can be sold in execution, the process is by fieri facias and venditioni exponas. In Pennsylvania the land cannot be sold in exe cution unless the sheriff's jury, under the fieri facias, find that the profits will not pay the debt in seven years. And, in general, lands are pot subject to sale under execution, but, after a levy has been made under the fieri facias, are appraised by the sheriff's jury, and delivered to the plaintiff at the yaluation until the debt is paid out of the profits. In England, only half the land can be thus taken, and the writ, though in form a fteri facias, is called an elegit (q. v.). If the sheriff delay to deliver lands thus appraised into the plaintiff's possession, he may be con strained by a writ called the liberan facias.
There are in England writs of execution against land which are not in general use here. The extent, or extendi facias (q. v.), is the usual process for the king's debt. The levari facias (q. v.) is also used for the king's debt, and for the subject on a recognizance or statute staple or merchant (q. v.), and on a judgment in scire facias, in which latter case it is also generally employed in this country.
5. Execution against the person. This is effected by the writ of capias ad satisjacien dum, under which the sheriff arrests the de. fendant and imprisons him till he satisfies the judgment or is discharged by process of law. See INSOLVENCY. This execution is not final, the impriscnment not being absolute; whence it has been called an execution quousque. 6 Coke, 87.
Besides the ordinary judgment for the pay ment of a sum certain, there are specific judgments, to do some particular thing. To this the execution must correspond : on a judgment for plaintiff in a real action, the writ is a habere facias scisinam ; in ejectment it is a habere facia., possessionem ; for the de fendant in replevin, as has already been men tioned, the writ is de retorno habendo.
Still another sort of judgment is that in rem, confined to a particular thing : such are judgments upon mechanics' liens and muni cipal claims, and, in the peculiar practice of Pennsylvania, on scire facias upon a mort gage. In such cases the execution is a writ of levari facias. A confession of judgment upon warrant of attorney, with a restriction of the lien to a particular tract, is an analo gous instance ; but in such case there is no peculiar form of execution ; though if the plaintiff should, in violation of his agreement, attempt to levy on other land than that to which his judgment is confined, the court on motion would set aside the execution.