CRIMES; ELECTROCUTION ; GARROTE.; GUILLO TINE ; HANDING.
In Practice. Putting the sentence of the law In force. 3 Bla. Com. 412. The act of carrying into effect the final judgment or de cree of a court.
The writ which directs and authorizes the officer to carry into effect such judgment.
Final execution, is one which authorizes the money due on a judgment to be made out of' the property of the defendant.
Execution quousque is such as tends to an end, but is not absolutely final : as, for example, a capia* ad satisfaciendum., by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied of his debt,,etc., the impris onment not being absolute, but until he shall satisfy the same. 6 Co. 87.
Execution, in civil actions, is the mode of obtaining the debt or damages or other thing recovered by the judgment ; and it is either for the plaintiff or defendant. For the plaintiff upon a judgment in debt, the execution is for the debt and damages ; or in assunapsit, covenant, . case, replevin,, or trespass, for the damages' and costs; or in detinue, for the goods, or their value, with damages and cost's. For the defendant upon a judgment in replevin, the execution at com mon law is for a return of the goods, to which damages are superadded by the stat utes 7 Hen. VIII. c. 4, § 3, and 21 Hen. VIII. c. 19, § 3 ; and in other actions upon a judg ment of non pros., non suit, or verdict, the execution is for the costs only ; Tidd, Pr. 993.
After final judgment signed, and even be fore it is entered of record, the plaintiff may, in general, at any time within a year and a day, and whilst the parties to the judgment continue the same, take out exe cution ; provided there be no writ of error depending or agreement. to the contrary, or, where this is allowed, security entered for stay of execution. But after a year and a, day from the time of signing judgment the plaintiff cannot regularly take out execu tion without reviving the judgment by seine facies, unless a Nil facies, or capias ad sat isfaciendum, etc.. was previously sued out, returned, and filed, or he was hindered from ailing it by a writ of error ; and if a writ of error be brought, it is, generally speaking, a supergedeas of execution from the time of its allowance ; provided bail, when necessary, be put in and perfected, in due time. See Tidd, Pr. 994 ; Elliott v. May
field. 3 Ala. 223.
Writs of execution are judicial writs issu ing out of the court where the record is upon which they are grounded. Hence, when the record has been removed to a higher court by writ of error or certiorari, or on appeal, either the execution must issue out of that court, or else the record must be re turned to the inferior court by a remittitur (q. v.) for the purpose of taking out execu tion in the court below. The former is the practice in England; the latter, in some of the United States.
The object of execution in personal ac tions is effected in one or more of the three following ways. 1. By the seizure and sale of personal property of the defendant. 2. By the seizure of his real property, and either selling it or detaining it until the is sues and profits are sufficient to satisfy the judgment. 3. By seizing his person and holding hifn in custody until he pays the judgment or is judicially declared insolvent.
These proceedings, though taken at the instance and under the direction of the par ty for whom judgment is given, are con sidered the act of the law itself, and are in all cases performed by the authorized min ister of the law. The party or his attorney obtains, from the office of the court where the record is, a writ, based upon and reciting the judgment, and directed to the sheriff (or, where he is interested or otherwise dis qualified, to the coroner) of the county, commanding him, in the name of the sov ereign or of the state, that of the goods and chattels or of the lands and tenements of the defendant in his bailiwick he cause to be made or levied the sum recovered, or that he seize the person of the defendant, as the case may be, and have the same be fore the court at the return day of the writ. This writ is delivered by the party to the officer to whom it is directed, who thence forth becomes responsible for his perform ance of its mandate, and in case of omission, mistake, or misconduct is liable in damages to the person injured, whether he be the plaintiff, the defendant, or a stranger to the writ.