the legal estate, and thus the statute is said to execute the use.

Executio est finis et fructus legis. Co. Litt. 289. (Execution is the end and fruit of the law.)

Executio juris non habet injuriam. 2 Rol. Rep. 301. (The execution of law does not any injury.)

Executio est executio juris secundum judicium. 3 Inst. 212. (Execution is the execution of the law according to the judgment.)

EXECUTION, the last stage of a suit giving possession of anything recovered at law or in equity, and also the final sentence inflicted upon criminals. It is styled final process.

At common law, writs of execution are judicial processes, issuing out of the court where the record or other proceeding is, upon which they are grounded; and therefore, when the record or transcript of the proceedings is removed into any of the courts at Westminster from a county palatine, or from an inferior court under 19 Geo. III. c. 70, s. 4, or 33 Geo. III. c. 68, s. 1, or from an inferior court under 1 & 2 Vict. c. 110, s. 21, the execution is issued out of the superior court.-4 & 5 Wm. IV. c. 62, s. 31; 6 & 7 Wm. IV. 106, s. 11. A writ of execution may be sued out at any time within six years after judgment actually signed by the master, in cases where a revivor or scire facias is not required, or where execution is not stayed by error, injunction, agreement, or the like. It is in force for one year. In promises, covenant, case, trespass, and replevin, the writ of execution for the plaintiff is for damages, and costs; in debt, for the debt, damages and costs; in detinue for the goods or their value, with damages and costs. For the defendant in all cases, except replevin, the execution is for the costs only, but in replevin it is for a return of the goods also. The ordinary writs of execution are capias ad satisfaciendum; fieri facias; elegit; levari facias; habere facias possessionem; de retorno habendo, and capias in withernam.

The writ of execution must strictly pursue the judgment in the amount, in the number and names of the parties, and in the subject-matter. It is tested on the day on which it is issued, and is made returnable immediately on the execution thereof. By 29 Car. II. c. 3, s. 16, "no writ of fieri facias, or other writ of execution, shall bind the property of the goods of the party against whom such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff, undersheriff, or coroners to be executed; and for the better manifestation of the said time, the sheriff, undersheriff, and coroners, their deputies and agents, shall upon the receipt of any such writ (without fee for doing the same), indorse upon the back thereof the day of the month or year whereon he or they received the same." If two writs of execution against the same person are delivered to the sheriff, he must execute that first which was first delivered to him, even where both were delivered upon the same day; and he must set about executing the writ within a reasonable time after he receives it for execution; and if he omit doing so, and any damage arise to the party from his negligence, an action on the case may be sup

open any outer door of the party's dwellinghouse, in order to enforce a writ of execution; unless in the case of a writ of seisin, or habere facias possessionem. Writs of execution are seldom returned in practice, except the elegit and inquisition. Either party may, however, rule the sheriff to return the writ, even after he goes out of office, provided it be within six lunar months after the expiration of his term of office. If execution be sued out against two or more persons, and the whole amount be levied upon one, in actions ex contractu (unless upon a contract made with the defendants as partners in trade), the party upon whom the whole is levied may maintain an action against the others, and oblige them to contribute their respective shares; but in most cases in actions ex delicto he cannot thus compel a contribution, and he is, in general, altogether without remedy. An irregular execution will be set aside on motion, and usually with costs. The 7 & 8 Vict. c. 96, s. 57, abolished arrest for debts under 201.-1 Chit. Arch. Prac. | by Pren. 559.

In Chancery, for the purpose of enforcing compliance with a decree or order, the court not only commits the parties neglecting to comply therewith, but also sequesters their personal estate, and by a writ of assistance will order the delivery up of the estate itself, and may likewise compel a conveyance of lands; besides which where money or costs are ordered to be paid the party may issue a fieri facias or an elegit for the purpose of enforcing payment.-13th Order, 26th August, 1841; 10th Order, 11th April, 1842; 1 & 2 Vict. c. 110, s. 20; and the Orders, 10th May, 1839, in pursuance thereof.

The execution of a criminal is a species of justifiable homicide, provided it be in strict conformity with his sentence. It must be performed by the legal officer-the sheriff or his deputy.-4 Bl. Com. c. xxxii.

By 6 & 7 Wm. IV. c. 30, execution is not to be carried into effect until some days after conviction. See 7 Wm. IV. and 1 Vict. c. 77.

Among the Romans the execution of offenders was delayed, by decree of the senate, for ten days. Potest enim pana dilata exigi, non potest exacta revocari.-Senec. De vita et spiritu hominis laturam sententiam diu multumque cunctari oportere, nec præcipiti studio, ubi irrevocabile sit factum, agitari.-Amm. Marcell. But this humane sentiment was anticipated by the Grecian legislator : νόμος άλλος περὶ θανάτου, μὴ μíar μóvov qué par zpívɛiv áñλa ñoñλas.—Plat. Ap. Socr.

EXECUTION OF DECREE. Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of the court upon a bill filed for that purpose. This happens generally in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. Such a bill may also be brought to carry into execution the judgment of an inferior Court of Equity, if the jurisdiction of that court is not equal to the purpose; as in the case of a decree

in Wales, which the defendant has avoided by fleeing into England.

This species of bill is, generally, partly an original bill and partly a bill in the nature of an original bill, though not strictly original.Story's Eq. Plead. 342.

EXECUTION OF DEEDS, the signing, sealing and delivery of them by the parties, as their own acts and deeds, in the presence of witnesses. See DEED. As to compulsory executions, the 1 Wm. IV. c. 36, s. 15, rule 15, enacts, that when any person shall have been directed by any decree or order in chancery, to execute any deed or other instrument, or make a surrender or transfer, and shall have refused or neglected to execute, make, or transfer the same, and shall have been committed to prison under process for such contempt, or being confined in prison for any other cause, shall have been charged with or detained under process for such contempt, and shall remain in such prison, the court may, upon motion or petition, and upon affidavit that such person has, after the expiration of two calendar months from the time of his being committed under, or charged with or detained under such process, again refused to execute such deed or instrument, or make such surrender or transfer, order or appoint one of the chief clerks, or if the act is to be done out of London, then, if necessary, one of the commissioners for taking affidavits to execute such deed or other instruments, or to make such surrender or transfer, for and in the name of such person, and the execution of the said deed or other instrument, and the surrender or transfer made by the said chief clerk, &c., shall, in all respects, have the same force and validity as if the same had been executed or made by the party himself; and within ten days after the execution or making of any such deed or other instrument, or surrender, or transfer, notice thereof shall be given by the adverse solicitor to the party in whose name the same is executed or made, and such party, as soon as the deed or other instrument, or surrender, or transfer, shall be executed or made, shall be considered as having cleared his contempt, except as far as regards the payment of the costs of the contempt, and shall be entitled to be discharged therefrom, under any of the provisions of this act applicable to his case; and the court shall make such order as shall be just, touching the payment of the costs of or attending any such deed, surrender, instrument, or

transfer.

As to execution by an attorney. It may be observed that a purchaser may insist upon the vendor's personal execution, and cannot be compelled to accept the conveyance executed under a power of attorney, unless an actual necessity appear for it; or he may be bound by condition or stipulation so to accept it. When, however, a conveyance is so executed, the attorney should enter into a declaration of trust that he will stand possessed of the purchase-money in trust for the purchaser, until it appear by satisfactory evidence that the vendor was alive at the time of such execution, or if he shall be dead, until the estate is duly conveyed to the purchaser.

The attorney to execute the deed must be ap

pointed by a sealed writing. An appointee cannot generally delegate this act, nor can a party whose authority is strictly personal, as that of consent or discretion.

The attorney should sign the deed in the name of his appointor (Wilks v. Back, 2 East. 142 (1802) and 3 Pres. Abr. 68) thus: “A. B. (principal), by C. D. his attorney, duly authorized in that behalf by a letter of attorney, bearing date the-day of." It should also be delivered in the name and as the act of the principal, and the receipt-clause should be signed in a similar manner.

This letter or power of attorney, being a muniment of title, should accompany the deed, of which it authorizes the execution, or be cove nanted to be produced if it relate to other property, and an attested copy of it furnished.

EXECUTION OF WILLS. A will must be in writing (except in the case of soldiers and sailors in active service) and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses must attest and subscribe the will in the presence of the testator, and also in the presence of each other, though this is not essentially requisite; but no form of attestation is necessary, although it is prudent in practice to embody in an attestation-clause all the statutory requirements. Appointments by will are to be executed like other wills, and will be valid, although other required solemnities are not observed. (7 Wm. IV. and 1 Vict. c. 26, ss. 9, 10, 11, 12.) Every will, so far only as regards the position of the signature of the testator, or of the person signing for him, is valid, if such signature be so placed at, or after, or following, or under, or beside, or opposite to, the end of the will, that it is apparent on the face of the will that the testator intended to give effect, by such his signature, to the writing signed as his will. No such will is to be affected by the circumstance that the signature may not follow or be immediately after the foot or end of the will; or by the circumstance that a blank space may intervene between the concluding word of the will and the signature; or by the circumstance that the signature may be placed among the words of the testimonium clause, or of the clause of attestation, either with or without a blank space intervening, or may follow, or be after, or under. or beside, the names, or one of the names, of the subscribing witnesses; or by the circumstance that the signature may be on a side, or page, or other portion of the paper or papers containing the will, whereon no clause, or paragraph, or disposing part of the will may be written above the signature; or by the circumstance that there may appear to be sufficient space on or at the bottom of the preceding side, or page, or other portion of the same paper on which the will is written, to contain the signature; and the enumeration of the above circumstances is not to restrict the generality of the enactment. But no signature is to be operative to give effect to any disposition or direction which is underneath, or which follows it; nor to give effect to

from the will; and for the same reason it has been held, that he may release a debt or assign a term for years before probate. Also, he may collect and secure assets, receive debts, and give

EXECUTION, writ of. This process, the service of which was a preliminary step to enforcing obedience to a decree or order in Chancery, is abolished.-10th Ord. 26th August, 1841, amended by Orders, 11th April, 1842.

EXECUTIONE FACIENDA, a writ commanding execution of a judgment.-Obsolete. EXECUTIONE FACIENDA IN WITHERNAMIUM, a writ that lay for taking cattle of one who has conveyed the cattle of another out of the county, so that the sheriff cannot replevy them.-Reg. Orig. 82.

EXECUTIONE JUDICII, a writ directed to the judge of an inferior court to do execution upon a judgment therein, or to return some reasonable cause wherefore he delays the execution. -F. N. B. 20.

EXECUTIONER, he that inflicts capital punishment; he that puts to death according to the sentence of the law.

EXECUTIVE, that branch of the government which performs the functions of state. It differs from legislative and judicial, thus: the body that deliberates and enacts laws is legislative: the body that judges and applies the laws in particular cases is judicial; and the body that carries the laws into effect, or superintends the enforcement of them, is executive, which power, in all monarchies, is vested in the sovereign. [By the Constitution of the United States, the executive power is vested in the President.Kent's Com.

EXECUTOR (fr. exécuteur, Fr.), a person appointed by the testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease.

The leading duties and responsibilities of an executor may be thus classed:

(1.) He will not be allowed, as against creditors, funeral expenses exceeding 201. if the testator died insolvent; and if he neglected to secure the property, and loss ensue, he will be personally liable for a devastavit.

(2.) Before probate of the will, an executor may effectually do most acts that he could enforce afterwards, because by the very appointment the testator has evinced personal confidence in his nominee, and, therefore, the interest of an executor arises not from the probate, but

bills or notes for payment, give notices of dishonor, or take proceedings in bankruptcy; so he might issue a writ of summons at common law. He might also file a bill in equity, but he must obtain probate before the hearing, though strictly, an executor should not file a bill until he has obtained probate. He may be sued before probate, if he have acted. It is said that an expected administrator, before obtaining letters of administration, can do no act whatever; but it has been considered that he might file a bill in Chancery, although he may not be able to commence an action at law, and he may collect, secure, and ascertain the value of the property, so as to enable him to make affidavit that it does not exceed a certain value, as required by the statute.

(3.) Instead of an inventory and valuation of the testator's personal property on stamped paper, it is now usual, in order to be safe, to have an accurate inventory made by any competent person, distinguishing such debts due to the estate as are sperate or good from those which are doubtful or desperate, and then obtain the written consent of all persons interested in the assets, or at least of the legatees or residuary legatee, which saves the expenses of a valuation. It is a usual and proper precaution, in cases of the least doubt, shortly after the funeral, to publish an advertisement in the principal newspapers for debtors to pay their debts, and for claimants to send in the particulars of their claims to a named person; and this is essential before the speedy payment of simple contract creditors, and still more before the payment of legacies; for if, without such advertisement, and without suit, an executor or administrator should hastily pay a simple contract creditor, and afterwards specialty debts should appear, he may be liable to the consequences of a misapplication of assets and devastavit.

(4.) Probate should be obtained within six calendar months after death of testator, and if delayed after that time, a penalty of 1007., and 10l. per cent. on the property would be incurred. If there be a suit or dispute relative to the will or administration, the probate or letters of administration should be obtained within two calendar months after it has been ended. 55 Geo. III. c. 184, s. 37. The probate should be obtained to the extent of the sum really expected to be received. An administrator, after obtaining letters of administration, stands in most respects in the same situation as an executor, and the cases relating to one in general equally apply to the other.

(5.) It is the duty of the executor or administrator to collect and speedily reduce into money the personal assets, when not otherwise directed, especially if they be of a perishable nature. If executors be directed by the will to carry on the testator's business or trade, they should do so under the protection of the Court of Chancery. The 3 & 4 Wm. IV. c. 42, s. 2, enables executors or administrators to recover for any

injuries to the real or personal estate of the deceased, committed within six months before his death. And actions against executors or administrators may be supported for any wrong committed by the deceased to the real or personal property of another provided they be brought within six months after the death of the deceased. Sec. 31 subjects executors or administrators personally to costs, when nonsuited or having a verdict against them, like other plaintiffs, unless the court or judge otherwise order. But he will be allowed such costs out of the assets, unless he have been guilty of misconduct or fraud. If an executor be hastily pressed by one or more creditors, in case of any reasonable doubt, he should either act with the concurrence of the legatees and next of kin, or file a bill, or get a friendly creditor to file a bill, compelling all the creditors to come in and receive payment under a decree of a court of equity. Submissions to arbitration should restrict the arbitrator from awarding against the executor personally, and should be made with the consent of creditors, legatees, and next of kin.

(6.) As an executor or administrator cannot sue himself, the law allows him, when he has been legally invested with his representative character, to retain out of any assets that may have come to his hands, to the extent of all funeral and testamentary expenses and debts legally paid by him out of his own pocket, and also any debt, due to himself, before he pays any other creditor, in equal degree, and he may retain his own debt, notwithstanding a decree has been made in a suit by other creditors for administration of assets equally, and notwithstanding assets, out of which he seeks to retain his debt, came to his hands after decree, and even if the debt be barred by the Statute of Limitations. Where there are joint executors or joint administrators, they must, inter se, retain their debts ratably, and in proportion to the assets.

(7.) It has long been settled that, amongst creditors in equal degree, an executor may even after action commenced by an adverse creditor, and at any time before judgment therein, confess a judgment, and give a preference to any other favored creditor in the same or a higher degree, thereby postponing the party first suing; and unless assets should afterwards come to hand sufficient to pay both, the first suitor will be totally deprived of the benefit of his prior action, and this, although it be done for the express purpose of depriving the plaintiff of the debt. But a Court of Equity will to a certain extent, by a decree, but not before, control and prevent the preference, upon bill filed by any creditor, on behalf of himself and all other creditors, against the executor or administrator, requiring him to account and distribute equally, upon which a proper division and distribution will be decreed, and this is considered in the nature of a judgment in favor of all the creditors.

(8.) In general, legacies ought not to be paid within a year after the death of the testator, and not even then without an indemnity, if there be the least reason to apprehend that there are debts

or claims outstanding. This year is allowed for the payment of legacies in analogy to the Statute of Distributions, which enacts, "that no distribution of the goods of any person dying intestate be made till after one year after the intestate's death;" and in order that the executor may have full opportunity to obtain information of the state of the property, and within that period, an executor cannot be compelled to pay a legacy, even in a case where the testator directed it to be discharged within six months after his death. An executor cannot give himself or any other legatee (except in the case of specific legacies) any preference over other legatees, as he may in the case of debts, nor can he retain so as to pay himself; and in case of insufficiency of assets to pay the whole, all general legatees are to abate alike and in proportion to the amount of their respective legacies; and a legatee will be compelled to refund when the estate proves insufficient, whether security has been given by him for such purpose or not.

(9.) An executor is not entitled to any remuneration for his own personal trouble or loss of time, unless it be expressed in the will; on which account it was that the law formerly gave to the executor the whole undisposed-of residue, unless, by some expression, to be collected from the will, as by a bequest to the executer for his trouble, a contrary intention was to be collected. But now the next of kin, and not the executor, is entitled to the unbequeathed residue.-11 Geo. IV. and 1 Wm. IV. c. 40, ss. 1, 2.

(10.) All the executors should join in suing as well in equity as at law, otherwise the defendant may plead in abatement or defeat the proceeding, unless those who have not proved have formally renounced. Consult Toller, Wentworth, or Williams on Executors and Administrators.

The 22 & 23 Vict. c. 38, has enacted as follows:

Where an executor or administrator, liable as such to the rents, covenants, or agreements contained in any lease or agreement for a lease granted or assigned to the testator or intestate, whose estate is being administered, shall have satisfied all such liabilities under the said lease or agreement for a lease, as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease or agreement for a lease to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased, to and amongst the parties entitled thereto respectively, without appropriating any part, or any further part (as the case may be), of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where neces