advantage which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression. Sir Edward Coke and Sir Matthew Hale say, that even the king cannot change the punishment of the law, by altering the hanging or burning into beheading; though, when beheading is part of the sentence, the king may remit the rest. But others have thought, and more justly, that this prerogative, being founded on mercy, and immemorially exercised by the crown, is part of the common law. For hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and, how far this may also fall within the king's power of granting conditional pardons, viz. by remitting a severe kind of death, on condition that the criminal submits to a milder, is a matter that may bear consideration. When lord Stafford was executed for the popish plot in the reign of king Charles II., the then sheriffs of London having received the king's writ for be heading him, petitioned the house of lords for an order how the said judgment should be executed; for he, being prosecuted by impeachment, they entertained a notion, which is said to have been countenanced by lord Russel, that the king could not pardon any part of the sentence. The lords resolved, that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified to the house of commons, by one of the members, that they were not satisfied as to the power of the said writ. The house took two days to consider of it, and then sullenly resolved, that the house was content that the sheriff do execute lord Stafford by severing his head from his body. It is farther related, that when afterwards the same lord Russel was condemned for high treason, upon indictment, the king, while he remitted the ignominious part of the sentence, observed, that his lordship would now find that he was possessed of the prerogative, which in the case of lord Stafford he had denied him.' One can hardly determine which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign. If the criminal be not thoroughly killed, but revives, the sheriff must hang him again, for the former hanging was no execution of the sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer.

EXECUTION, military, includes every kind of punishment inflicted on the army by the sentence of a court-martial; such as tying up to three halberts, and receiving a number of lashes with a whip, composed of nine whip-cord lashes, and each lash of nine knots, from the drummer; or running the gantelope through the parade at

guard-mounting, drawn up in two lines for that purpose; when the provost marches through with twigs or switches, and every soldier takes as many as there are prisoners to be punished; the prisoner then marches through the two lines, and each soldier gives him a hard stroke, the major riding up and down to see that the men lay on properly. When a soldier is to be punished with death, a detachment of about 200 men from the regiment to which he belongs, form the parade, when a file of grenadiers shoot the prisoner to death. Every nation has different modes of punishment. The cat with nine tails is to punish foot soldiers; dragoons and cavalry men are generally picketed.

EXECUTIONS, in civil actions or where money only is recovered, as a debt or damages, are of five sorts. 1. Against the body of the defendant. 2. Against his goods and chattels. 3. Against his goods and the profits of his lands. 4. Against his goods and the possession of his lands. 5 Against all three, his body, lands, and goods.

1 The first of these species of execution is by writ of capias ad satisfaciendum (shortly called a ca. sa.) to take and imprison the body of the debtor till satisfaction be made for the debt, costs, and damages. Sir E. Coke gives a singular instance where a defendant in 14 Edw. III. was discharged from a capias because he was of so advanced an age that he could not undergo the pain of imprisonment. 1 Inst. 289. This writ is an execution of the highest nature, inasmuch as it deprives a man of his liberty till he makes the satisfaction awarded; and, therefore, when a man is once taken in execution upon this writ, no other process can be sued out against his lands or goods. Only by stat. 21 Jac. I. c. 24, if the defendant dies while charged in execution upon this writ, the plaintiff may, after his death, sue out a new execution against his lands, goods, or chattels. If a ca. sa. is sued out, and a non est inventus is returned thereon, the plaintiff may sue out a process against the bail, if any were given; who stipulated in this triple alternative, that the defendant shall, if condemned in the suit, satisfy the plaintiff his debt and costs, or surrender himself a prisoner; or that they will pay it for him as therefore the two former branches of the alternative are neither of them complied with, the latter must immediately take place. Lutw. 1269, 1273. In order to which a writ of scire facias may be sued out against the bail, commanding them to show cause why the plaintiff should not have execution against them for his debt and damages; and on such writ, if they show no sufficient cause, or the defendant does not surrender himself on the day of the return, or of showing cause, the plaintiff may have judgment against the bail, and take out a writ of ca. sa, or other process of execution against them.

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2. The next species of execution is against the goods and chattels of the defendant, and is called a writ of fieri facias, from the words in it where the sheriff is commanded that he cause to be made of the goods and chattels of the defendant, the sum or debt recovered. This lies as well against privileged persons, peers, &c., as

other common persons; and against executors or administrators, with regard to the goods of the deceased. The sheriff may not break open any outer doors to execute either this writ or the writ of ca. sa. but must enter peaceably; and may then break open any inner door belonging to the defendant, in order to take the goods. 5 Rep. 92. Palm. 54. See post, III. 3. And the sheriff may sell the goods and chattels of the defendant, even an estate for years, which is a chattel real (8 Rep. 171), till he has raised enough to satisfy the judgment and costs; first paying the landlord of the premises upon which the goods are found, the arrears of rent then due, not exceeding one year's rent in the whole. Stat. 8 Ann. c. 14. If part only of the debt be levied on a fieri facias, the plaintiff may have a ca. sa. for the residue. 1 Ro. Ab. 904. Cro. Eliz. 344.

3. A third species of execution is by writ of levari facias; which affects a man's goods, and the profits of his lands, by commanding the sheriff to levy the plaintiff's debt on the lands and goods of the defendant; whereby the sheriff may seize all his goods, and receive the rents and profits of his lands, till satisfaction be made to the plaintiff. Finch, L. 471. Little use is now made of this writ; the remedy by elegit, which takes possession of the lands themselves, being much more effectual. But, as a species of this levari facias may be considered a writ of execution proper only to ecclesiastics, which is given when the sheriff, upon a common writ of execution sued, returns that the defendant is a beneficed clerk, having no lay fee. In this case a writ goes to the bishop of the diocese, in the nature of a levari or fieri facias, to levy the debt and damages de bonis ecclesiasticis, which are not to be touched by lay hands: and thereupon the bishop sends out a sequestration of the profits of the clerk's benefice, directed to the church wardens to collect the same, and pay them to the plaintiff till the full sum be raised. Reg. Orig. 300. Burn E. L. 329. 2 Inst. 472. Jenk.

207.

4. The fourth species of execution is by the writ of elegit, which is a judicial writ given by stat. Will. II. 13, Edw. I. c. 18, either upon judgment for a debt or damages, or upon the forfeiture of a recognisance taken in the king's court. By the common law, a man could only have satisfaction of goods, chattels, and the present profits of lands, by the two writs of execution last-mentioned (2 and 3); but not the possession of the lands themselves, which was a natural consequence of the feudal principles prohibiting alienation of lands. See TENURE. By this writ of elegit the defendant's goods and chattels are not sold, but only appraised; and all of them, except oxen and beasts of the plough, are delivered to the plaintiff at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety, or one half of his freehold lands, which he had at the time of the judgment given, whether held in his own name or any other in trust for him, are also to be delivered to the plaintiff: to hold till out of the rents and profits thereof the debt be levied, or till the de

fendant's interes: be expired; as till the death of the defendant, if he be tenant for life, or in tail. This execution, or seizing of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken: but if execution can only be had of the goods because there are no lands, and such goods are not sufficient to pay the debt, a ca. sa. may then be had after the elegit; for such elegit is in this case no more in effect than a fieri facias. Hob. 58.

5. Thus it appears that body and goods may be taken in execution; or land and goods; but not body and lands too upon any judgment between subject and subject, in the course of the common law ; but, upon some prosecutions given by statute; as in the case of recognisances or debts acknowledged on statute merchant, or statute staple (see stat. 13 Edw. I. de mercatoribus; 27 Edw. III. c. 9.) upon forfeiture of these the body, lands, and goods may all be taken at once in execution to compel the payment of the debt. The process hereon is usually called an extent or extendi facias; because the sheriff is to cause the lands, &c., to be appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied. F. N. B. 131.

By stat. 33 Hen. VIII. c. 39, all obligations made to the king shall have the same force, and of consequence the same remedy to recover them, as a statute-staple; though, indeed, before this statute, the king was entitled to sue out execution against the body, lands, and goods of his accountant or debtor. 3 Rep. 12. And his debt shall, in suing out execution, be preferred to that of every other creditor who hath not ob tained judgment before the king commenced his suit. Stat. 33 Hen. VIII. c. 39, sec. 74. The king's judgment also affects lands which the king's debtor hath at or after the time of contracting his debt, or which any of his officers mentioned in stat. 13 Eliz. c. 4, hath at or after the time of his entering on the office: so that if such officer of the crown aliens for a valuable consideration, the land shall be liable to the king's debt, even in the hands of a bonâ fide purchaser: though the debt due to the king was contracted by the vendor many years after the alienation. 10 Rep. 55, 6, 8 Rep. 171. And see stat. 25 Geo. III. c. 35, which enables the Court of Exchequer, on application by the attorney general by motion, to order the estate of any debtor to the king, and of the heirs and assigns of such debtor, in any lands extended, to be sold as the court shall direct; the conveyance to be made by the remembrancer of the court, by bargain and sale, to be inrolled in that

court.

Judgments between subject and subject related, even at common law, no farther back than the first day of the term in which they were recovered, in respect of the lands of the debtor; and did not bind his goods and chattels but from the date of the writ of execution: and now by the statute of frauds, 29 Car. II., c. 3, the judgment shall not bind the land in the hands of a bona fide purchaser, but only from the day of actually signing the same, which is directed by the statute to be punctually entered on the re

cord: nor shall the writ of execution bind the goods in the hands of a stranger or a purchaser, (Skin. 257) but only from the actual delivery of the writ to the sheriff or other officer, who is, therefore, ordered to indorse on the back of it the day of his receiving the same.

EXECUTIVE POWER. The supreme executive power of these kingdoms is vested by our laws in the king or queen for the time being, who has a right to a negative in parliament, i. e. to refuse assent to any bill offered. See ENGLAND. EXECUTOR, in English law, is one appointed by a man's last will and testament to perform or execute the contents thereof after his decease; and to have the disposing of all the testator's substance, according to the tenor of the will. Under the term WILL we shall have to consider the legal form and character of that important instrument. In this place we propose only to point out who may be executors, the nature of the appointment, the interest vested in them, and the general duties of their office.

1. No person can act as executor under the age of seventeen years; till which time administration must be granted to some other durante minore ætate. And if the right of administration devolves on an infant, administration durante minore ætate is to be granted till he arrives at twenty-one. But such administrator is but a curator for the infant, and has no interest or benefit in the testator's or intestate's estate, but in right of the infant. If an infant and one of full age, are made executors, he who is of full age may take out administration durante minori ætate of the infant, and may declare as executor or administrator durante minori ætate: and there is no absurdity in this case, that there should be an executor and administrator to the same party. In like manner as it may be granted durante absentiâ pendente lite; when the executor is out of the realm; or 1 Lutw. 342; or when a suit is commenced in the Ecclesiastical court, touching the validity of the will. 2. P. Wms. 589, 590.

2. The appointment of an executor is essential to the making of a will: Went. c. 1. Plowd. 281; and it may be performed either by express words, or such as strongly imply the same: but if the testator makes an incomplete will, without naming any executors; or, if he names incapable persons; or if the executors named refuse to act, see 9 Rep. 37. Went. Off. Ex. 38; in any of these cases administration must be granted cum testamento annexo to some other persons; 1 Rol. Ab. 907; Comb. 20; and then the duty of the administrator, as also when he is constituted only durante minore ætate, &c., is very little different from that of an executor. A man may also appoint two or more persons to be joint executors, and they are accounted in law but as one person. See post. v. 3. 5.-Such joint executors shall not be charged by the acts of their companions; any further than for effects actually come to their hands. Moor. 620. Cro. Eliz. 318. 2 Leon. 209. But if two or more executors join in a receipt (in writing) and one of them only actually receives the money, each is liable for the whole as to creditors at law, but not as to legatees, or next of kin. 1 Sulk. 318. If joint executors, by agreement among themselves, agree that each

shall intermeddle with a certain part of the testator's estate, yet each shall be chargeable for the whole (to creditors) by agreeing to the other's receipts. Hard. 314.

3. The interest vested in the executor, by the will of the deceased, may be continued and kept alive by the will of the same executor; so that the executor of A's executor is to all intents and purposes the executor and representative of A himself; see 25 Ed. III. st. 5. c. 5. 1 Leon. 275, But the executor of A's administrator, or the administrator of A's executor, is not the representative of A. For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he hath equal confidence: but the administrator of A is merely the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased has reposed no trust at all; and therefore, on the death of that officer, it results back to the ordinary to appoint another. And, with regard to the administrator of A's executor, he has clearly no privity or relation to A; being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore in both these cases, and whenever the course of the representation from executor to executor is interrupted by any one administration, it is necessary for the ordinary to commit administration afresh, of the goods of the deceased, not administered by the former executor or administrator. And this administrator, de bonis non, is the only legal representative of the deceased in matters of personal property. But he may, as well as an original administrator, have only a limited or special administration committed to his care, viz. of certain specific effects, such as a term of years and the like; the rest being committed to others. 1 Roll. Abr. 908. Godolph. p. 2. c. 30. Salk. 36. 1 New. Abr. 385.

If an executor dies before probate, such an executor's executor cannot prove the will, because he is not named therein, and no one can prove a will but he who is named executor in it: but if the first executor had proved the will, then his executor might have been executor to the first testator, there requiring no new probate. 1 Salk, 299. Though an executor of an executor may thus be executor to the first testator, yet he may take upon him the executorship of his own testator, and refuse to intermeddle with the estate of the other; and if the first executor refuses (as if he dies before probate) his executor shall not administer to the first testator.

4. The duty and office of executors and administrators in general are very much the same; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and secondly, that an executor may do many acts before he proves the will Wentw. ch. 3. but an administrator may do nothing till letters of administration are issued; for the former derives his power from the will, and not from the probate; the latter owes his entirely to the appointment of the ordinary. Com. 51.

If a stranger takes upon him to act as executor, without any just authority (as by intermeddling with the goods of the deceased, 5 Rep. 33, 34. and many other transactions, Wentw. ch. 14. Stat. 43. Eliz. c. 8), he is called in law an executor of his own wrong (de son tort,) and is liable to all the trouble of an executorship, without any of the profits or advantages; but merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse, of the deceased will not amount to such an intermeddling, as will charge a man as executor of his own wrong. Dyer, 166. When there is a rightful executor, and a stranger possesses himself of the testator's goods, without doing any further act as executor, he is not an executor de son tort, but a tresspasser, Dyer, 105. Rol. Abr. 918. See 5 Rep. 82. An executor of his own wrong may be sued as executor; and he shall be sued for legacies as well as a rightful executor. Noy, 13. Though an executor de son tort cannot maintain any suit or action, because he cannot produce any will to justify it, yet he will be severely punished for a false plea; for in such case the execution shall be awarded for the whole debt, though he meddled with a thing of very small value. Noy, 69. What acts make a person liable as executor de son tort, is a question of law; the jury are to say whether the acts be sufficiently proved.

i. The executor or administrator must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed, previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased; and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased.

ii. The executor or administrator durante minore ætate, or durante absentiâ, or cum testamento annexo, must prove the will of the deceased; which is done either in a common form, which is only upon his own oath before the ordinary, or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed. Godolph. p. 1. c. 20. § 4. When the will is so proved, the original must be deposited in the register of the ordinary: and a copy thereof, in parchment, is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him; all which together is usually styled the probate. By stat. 37 Geo. III. c. 90, the executor must take probate within six months on penalty of £80.

iii. An executor may refuse an executorship; but the refusal ought to be before the ordinary. If an executor be summoned to accept or refuse the executorship, and he doth not appear on the summons, and prove the will, the court may grant administration, &c., which shall be good in law till such executor hath proved the will; but no man can be compelled to take on him the executorship, unless he hath intermeddled with the state. 1 Leon 154. Cro. Eliz. 858. Where there are several executors, and they all refuse, none of them shall administer afterwards; but if there is a refusal by one, and the other proves

the will, the refusing executor may administer when he will during the life of his co-executor. 1 Rep. 28. If there is but one executor, and he administer, he cannot refuse afterwards; and if once he refuse, he cannot administer afterwards: thus, when a testator being possessed of lands, &c., for a term of years, and devised the same to the chief justice Catline, and made him executor, and died; afterwards the executor wrote a letter to the judge of the prerogative court, intimating that he could not attend the executorship, and desiring him to grant administration to the next of kin to the deceased, which was done accordingly; and after this the executor entered on the lands, and granted the term to another; it was adjudged void, because the letter which he wrote was a sufficient refusal; and he may not, after refusal, take upon him the executorship. Moor, 272.

As the testator has thought the executor appointed a proper person to be entrusted with his affairs, the ordinary cannot adjudge him disable or incapax; but a mandamus shall issue from B.R. for the ordinary to grant probate of the will, and admit the executor, if he refuse him: neither can the ordinary insist upon security from the executor, as the testator has thought him able and qualified. 1 Salk. 299. And although an executor becomes bankrupt, yet it is said the ordinary cannot grant administration to another; but if an executor become non compos, the spiritual court may commit administration for this natural disability.

iv. The executor or administrator is to make an inventory of all the goods and chattels, whether in possession or action of the deceased, which he is to deliver in to the ordinary upon oath, if thereunto lawfully required. Stat. 21 H. 8. c. 5. By stat. 1 Jac. II. c. 17 § 6, no administrator shall be cited into court to render an account of the personal estate of his intestate, otherwise than by an inventory thereof, unless at the instance of some person in behalf of a minor, or having a demand out of such estate as a creditor, or next of kin; nor shall be compellable to account before any ordinary or judge empowered by the act of 22 & 23 Car. II. cap. 10, otherwise than as aforesaid. See 9 Rep. 30. 2 Inst. 600. Raym. 407.

v. He is to collect all the goods and chattels so inventoried; and to that end he has very large powers and interests conferred on him by law, being the representative of the deceased; Co. Lit. 209; and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, a sale or release by one of them shall be good against all the rest, Dyer 23. Cro. Eliz. 347. Sid. 33. Brownl. 183, unless such release be obtained by fraud.

If goods of the testator are kept from the executor, he may sue for them in the spiritual court, or at common law; and if one seized of a messuage in fee, &c., has goods in the house, and makes a will and executors, and dies, the execu tors may enter into the house, and carry away the goods. Lit. 60. An executor may, in convenient time after the testator's death, enter into a house descended to the heir, for removing and