1911 Encyclopædia Britannica/Execution

EXECUTION (from Lat. ex-sequor, exsecutus, follow or carry out), the carrying into effect of anything, whether a rite, a piece of music, an office, &c. ; and so sometimes involving a notion of skill in the performance. Technically, the word is used in law in the execution of a deed (its formal signing and sealing), an execution (see below) by the sheriff’s officers under a “writ of execution” (the enforcement of a judgment on a debtor’s goods); and execution of death has been shortened to the one word to denote Capital Punishment (q.v.).

Civil Execution may be defined as the process by which the judgments or orders of courts of law are made effectual. In Roman law the earliest mode of execution was the seizure, legalized by the actio per manus injectionem, of the debtor as a slave of the creditor. During the later Republic, imprisonment took the place of slavery. Under the régime of the actio per manus injectionem, the debtor might dispute the debt—the issue being raised by his finding a substitute (vindex) to conduct the case for him. By the time of Gaius (iv. 25) the actio per manus injectionem had been superseded by the actio judicati, the object of which was to enable the creditor to take payment of the debt or compel the debtor to find security (pignus in causa judicati captum: Cautio judicatum solvi), and in A.D. 320 Constantine abolished imprisonment for debt, unless the debtor were contumacious. The time allowed for payment of a judgment debt was by the XII. Tables 30 days; it was afterwards extended to two months, and ultimately, by Justinian, to four months. The next stage in the Roman law of execution was the recognition of bankruptcy either against the will of the bankrupt (missio in bona) or on the application of the bankrupt (cessio bonorum; and see Bankruptcy). Lastly, in the time of Antoninus Pius, judgment debts were directly enforced by the seizure and sale of the debtor’s property. Slaves, oxen and implements of husbandry were privileged; and movable property was to be exhausted before recourse was had to land (see Hunter, Roman Law, 4th ed. pp. 1029 et seq., Sohm, Inst. Rom. Law, 2nd ed. pp. 302–305).

Great Britain.—The English law of execution is very complicated, and only a statement of the principal processes can here be attempted.

High Court.—Fieri Facias. A judgment for the recovery of money or costs is enforced, as a rule, by writ of fieri facias addressed to the sheriff, and directing him to cause to be made (fieri facias) of the goods and chattels of the debtor a levy of a sum sufficient to satisfy the judgment and costs, which carry interest at 4% per annum. The seizure effected by the sheriff or his officer, under this writ, of the property of the debtor, is what is popularly known as “the putting-in” of an execution. The seizure should be carried out with all possible despatch. The sheriff or his officer must not break open the debtor’s house in effecting a seizure, for “a man’s house is his castle” (Semayne’s Case [1604], 5 Coke Rep. 91); but this principle applies only to a dwelling-house, and a barn or outhouse unconnected with the dwelling-house may be broken into. The sheriff on receipt of the writ endorses on it the day, hour, month and year when he received it; and the writ binds the debtor’s goods as at the date of its delivery, except as regards goods sold before seizure in market overt, or purchased for value, without notice before actual seizure (Sale of Goods Act 1893, s. 26, which supersedes s. 16 of the Statute of Frauds and s. 1 of the Mercantile Law Amendment Act 1856). This rule is limited to goods, and does not apply to the money or bank notes of the debtor which are not bound by the writ till seized under it (Johnson v. Pickering, Oct. 14, 1907, C.A.). The mere seizure of the goods, however, although, subject to such exceptions as those just stated, it binds the interest of the debtor, and gives the sheriff such an interest in the goods as will enable him to sue for the recovery of their possession, does not pass the property in the goods to the sheriff. The goods are in the custody of the law. But the property remains in the debtor who may get rid of the execution on payment of the claim and fees of the sheriff [as to which see Sheriffs Act 1887, s. 20, and order of 21st of August 1888, Annual Practice (1908), vol. ii. p. 278]. The wearing apparel, bedding, tools, &c. , of the debtor to the value of £5 are protected. Competing claims as to the ownership of the goods seized are brought before the courts by the procedure of “interpleader.” After seizure, the sheriff must retain possession, and, in default of payment by the execution debtor, proceed to sell. Where the judgment debt, including legal expenses, exceeds £20, the sale must be by public auction, unless the Court otherwise orders, and must be publicly advertised. The proceeds of sale, after deduction of the sheriff’s fees and expenses, become the property of the execution creditor to the extent of his claim. The Bankruptcy Act 1890 (53 & 54 Vict. c. 71, s. 11 [2]) requires the sheriff in case of sale under a judgment for a sum exceeding £20 to hold the proceeds for 14 days in case notice of bankruptcy proceedings should be served upon him (see Bankruptcy). The form of the writ of fieri facias requires the sheriff to make a return to the writ. In practice this is seldom done unless the execution has been ineffective or there has been delay in the execution of the writ; but the judgment creditor may obtain an order calling on the sheriff to make a return. A sheriff or his officer, who is guilty of extortion in the execution of the writ, is liable to committal for contempt, and to forfeit £200 and pay all damages suffered by the person aggrieved (Sheriffs Act 1887 [50 & 51 Vict. c. 55], s. 29 [2]), besides being civilly liable to such person. Imprisonment for debt in execution of civil judgments is now abolished except in cases of default in the nature of contempt, unsatisfied judgments for penalties, defaults by persons in a fiduciary character, and defaults by judgment debtors (Debtors Act 1869 [32 & 33 Vict. c. 62]; Bankruptcy Act 1883 [46 & 47 Vict. c. 52], ss. 53, 103). Imprisonment for debt has been abolished within similar limits in Scotland (Debtors [Scotland] Act 1880 [43 & 44 Vict. c. 34] and Ireland, Debtors [Ireland] Act 1872, 35 & 36 Vict. c. 57). There may still be imprisonment in England, under the writ—rarely used in practice—ne exeat regno, which issues to prevent a debtor from leaving the kingdom.

Writ of Elegit.—The writ of elegit is a process enabling the creditor to satisfy his judgment debt out of the lands of the debtor. It derives its name from the election of the creditor in favour of this mode of recovery. It is founded on the Statute of Westminster (1285, 13 Ed. I. c. 18), under which the sheriff was required to deliver to the creditor all the chattels (except oxen and beasts of the plough) and half the lands of the debtor until the debt was satisfied. By the Judgments Act 1838 the remedy was extended to all the debtor’s lands, and by the Bankruptcy Act 1883 the writ no longer extends to the debtor’s goods. The writ is enforceable against legal interests whether in possession or remainder (Hood-Barrs v. Cathcart, 1895, 2 Ch. 411), but not against equitable interests in land (Earl of Jersey v. Uxbridge Rural Sanitary Authority, 1891, 3 Ch. 183). When the debtor’s interest is equitable, recourse is had to equitable execution by the appointment of a receiver or to bankruptcy proceedings.

The writ is directed to the sheriff, who, after marking on it the date of its receipt, at once in pursuance of its directions holds an inquiry with a jury as to the nature and value of the interest of the debtor in the lands extended under the writ, and delivers to the creditor at a reasonable price and extent in accordance with the writ, the lands of which the debtor was possessed in the bailiwick. When the sheriff has returned and filed a record (in the central office of the High Court) of the writ and the execution thereof, the execution creditor becomes “tenant to the elegit.” Where the land is freehold the creditor acquires only a chattel interest in it; where the land is leasehold he acquires the whole of the debtor’s interest (Johns v. Pink, 1900, 1 Ch. 296). The creditor is entitled to hold the land till his debt is satisfied, or enough to satisfy it is tendered to him, and under the Judgments Act 1864 the creditor may obtain an order for sale. Until the land is delivered on execution and the writs which have effected the delivery are registered in the Land Registry, the judgment does not create any charge on the land so as to fetter the debtor’s power of dealing with it. Land Charges Registration Acts 1888 and 1900. (See R.S.C., O. xliii.)

Writs of Possession and Delivery.—Judgments for the recovery or for the delivery of the possession of land are enforceable by writ of possession. The recovery of specific chattels is obtained by writ of delivery (R.S.C., O. xlvii., xlviii.).

Writ of Sequestration.—Where a judgment directing the payment of money into court, or the performance by the defendant of any act within a limited time, has not been complied with, or where a corporation has wilfully disobeyed a judgment, a writ of sequestration is issued, to not less than four sequestrators, ordering them to enter upon the real estate of the party in default, and “sequester” the rents and profits until the judgment has been obeyed (R.S.C., O. xliii. r. 6).

Equitable Execution.—Where a judgment creditor is otherwise unable to reach the property of his debtor he may obtain equitable execution, usually by the appointment of a receiver, who collects the rents and profits of the debtor’s land for the benefit of the creditor (R.S.C., O. l. rr. 15a-22). But receivers may be appointed of interests in personal property belonging to the debtor by virtue of the Judicature Act 1873, s. 25 (8).

Attachment.—A judgment creditor may “attach” debts due by third parties to his debtor by what are known as garnishee proceedings. Stock and shares belonging to a judgment debtor may be charged by a charging order, so as, in the first instance, to prevent transfer of the stock or payment of the dividends, and ultimately to enable the judgment creditor to realise his charge. A writ of attachment of the person of a defaulting debtor or party may be obtained in a variety of cases akin to contempt (e.g. against a person failing to comply with an order to answer interrogatories, or against a solicitor not entering an appearance in an action, in breach of his written undertaking to do so), and in the cases where imprisonment for debt is still preserved by the Debtors Act 1869 (R.S.C., O. xliv.). Contempt of Court (q.v.) in its ordinary forms is also punishable by summary committal.

County Courts.—In the county courts the chief modes of execution are “warrant of execution in the nature of a writ of fieri facias”; garnishee proceedings; equitable execution; warrants of possession and delivery, corresponding to the writs of possession and delivery above mentioned; committal, where a judgment debtor has, or, since the date of the judgment has had, means to pay his debt; and attachment of the person for contempt of court. If the judgment debtor assaults the bailiff or his officer or rescues the goods, he is liable to a fine not exceeding £5.

Scotland.—The principal modes of execution or “diligence” in Scots law are (i.) Arrestment and furthcoming, which corresponds to the English garnishee proceedings; (ii.) arrestment jurisdictionis fundandae causa, i.e. the seizure of movables within the jurisdiction to found jurisdiction against their owner, being a foreigner; this precedure, which is not, however, strictly a “diligence,” as it does not bind the goods, is analogous to the French saisie-arrêt, and to the obsolete practice in the mayor’s court of London known as “foreign attachment” (see Glyn and Jackson, Mayor’s Court Practice, 2nd ed., vii. 260); (iii.) arrestment under meditatione fugae warrant, corresponding to the old English writ of ne exeat regno, and applicable in the case of a debtor who intends to leave Scotland to evade an action; (iv.) arrestment on dependence, i.e. of funds in security; (v.) poinding, i.e. valuation and sale of the debtor’s goods; (vi.) sequestration, e.g. of tenant’s effects under a landlord’s hypothec for rent; (vii.) action of adjudication, by which a debtor’s “heritable” (i.e. real) estate is transferred to his judgment creditor in satisfaction of his debt or security therefor. In Scots law “multiplepoinding” is the equivalent of “interpleader.”

Ireland.—The law of execution in Ireland (see R.S.C., 1905, Orders xli.-xlviii.) is practically the same as in England.

British Possessions.—The Judicature Acts of most of the Colonies have also adopted English Law. Parts of the French Code de procédure civile are still in force in Mauritius. But its provisions have been modified by local enactment (No. 19 of 1868) as regards realty, and the rules of the Supreme Court 1903 have introduced the English forms of writs. Quebec and St Lucia, where French law formerly prevailed, have now their own codes of Civil Procedure. The law of execution under the Quebec Code resembles the French, that under the St Lucia Code the English system. In British Guiana and Ceylon, in which Roman Dutch law in one form or another prevailed, the English law of execution has now in substance been adopted (British Guiana Rules of Court, 1900, Order xxxvi.)., Ceylon (Code of Civil Procedure, No. 2 of 1889); the modes of execution in the South African Colonies are also the subject of local enactment, largely influenced by English law (cf. the Sheriffs’ Ordinance, 1902, No. 9 of 1902), (Orange River Colony) and (Proclamation 17 of 1902), Transvaal (Nathan, Common Law of South Africa, vol. iv. p. 2206); and generally, Van Zyl, Judicial Practice of South Africa, pp. 198 et seq.

United States.—Execution in the United States is founded upon English law, which it closely resembles. Substantially the same forms of execution are in force. The provisions of the Statute of Frauds making the lien of execution attach only on delivery to the sheriff were generally adopted in America, and are still law in many of the states. The law as to the rights and duties of sheriffs is substantially the same as in England. The “homestead laws” (q.v.) which are in force in nearly all the American States exempt a certain amount or value of real estate occupied by a debtor as his homestead from a forced sale for the payment of his debts. This homestead legislation has been copied in some British colonies, e.g. Western Australia (No. 37 of 1898, Pt. viii.), Quebec (Rev. Stats., ss. 1743–1748), Manitoba (Rev. Stats., 1902, c. 58, s. 29, c. 21, s. 9), Ontario (Rev. Stats., 1897, c. 29), British Columbia (Rev. Stats., 1897, c. 93), New South Wales (Crown Lands Act 1895, Pt. iii.), New Zealand (Family Homes Protection Act 1895, No. 20 of 1895).

France.—Provisional execution (saisie-arrêt) with a view to obtain security has been already mentioned. Execution against personalty (saisie-exécution) is preceded by a commandement or summons, personally served upon, or left at the domicile of the debtor calling on him to pay. The necessary bedding of debtors and of their children residing with them, and the clothes worn by them, cannot be seized in execution under any circumstances. Objects declared by law to be immovable by destination (immeubles par destination), such as beasts of burden and agricultural implements, books relating to the debtor’s profession, to the value of 300 francs, workmen’s tools, military equipments, provisions and certain cattle cannot be seized, even for a debt due to Government, unless in respect of provisions furnished to the debtor, or amounts due to the manufacturers or vendors of protected articles or to parties who advanced moneys to purchase, manufacture or repair them. Growing fruits cannot be seized except during the six weeks preceding the ordinary period when they become ripe. Execution against immovable property (la saisie immobilière) is preceded also by a summons to pay, and execution cannot issue until the expiry of 30 days after service of such summons (see further Code Proc. Civ., Arts. 673-689). Imprisonment for debt was abolished in all civil and commercial matters by the law of 22nd of July 1867, which extends to foreigners. It still subsists in favour of the State for non-payment of fines, &c. The French system is in substance in force in Belgium (Code Civ. Proc., Arts. 51 et seq.), the Netherlands (Code Civ. Proc., Arts. 430 et seq.), Italy (Code Civ. Proc., Arts. 553 et seq., 659 et seq.), and Spain.

Germany.—Under the German Code of Civil Procedure (Arts. 796 et seq.), both the goods and (if the goods do not offer adequate security) the person of the debtor may be seized (the process is called arrest) as a guarantee of payment. The debtor’s goods cannot be sold except in pursuance of a judgment notified to the debtor either before or within a prescribed period after the execution (Art. 809 [3], and law of 30th of April 1886). Imprisonment for debt in civil and commercial matters has been abolished or limited on the lines of the French law of 1867 in many countries (e.g. Italy, law of the 6th of December 1877; Belgium, law of the 27th of July 1871; Greece, law of the 9th of March 1900; Russia, decree of the 7th of March 1879).

Authorities.—Anderson, Execution (London, 1889); Annual Practice (London, 1908); Johnston Edwards, Execution (London, 1888); Mather, Sheriff Law (London, 1903). As to Scots law, Mackay, Manual of Practice (Edinburgh, 1893). As to American law, Bingham, Judgments and Executions (Philadelphia, 1836); A. C. Freeman, Law of Execution, Civil Cases (3rd ed., San Francisco, 1900); H. M. Herman, Law of Executions (New York, 1875); American Notes to tit. “Execution,” in Ruling Cases (London and Boston, 1897); Bouvier, Law Dict., ed. Rawle (1897), s.v. “Execution.”