(D) To what time an erecution relates.

(D 1.) As to land. p. 236.

(D 2.) As to goods. p. 237.

(E) By whom it shall be sued. p. 239. (F) Against whom. p. 239.

(G) By whom it shall be done.

p. 240.

(H) When erecution may be after a former execution. p. 240.

(I) By what court erecution shall be granted. p. 243. (I 2.) By an inferior court. p. 244.

(I 3.) How it shall be awarded. p. 244.

(I 4.) Scire facias quare executionem non, &c. p. 245.

(A) Erecution in actions real.
(A 1.) By entry.

Execution is (a) finis et effectus legis. (b)

After judgment (c) in a real action, if the estate continues in the possession of the tenant against whom the recovery was, the demandant may enter, when the writ shews the certainty of the thing recovered, before seisin delivered upon an habere facias seisinam. Co. L. 34. b.

And he may enter within or after the year after judgment. 1 Rol. 885.1. 10.

So, if a recovery be of a rent, common, &c. in certainty, the demandant, after judgment, may distrain before seisin by an habere facias seisinam. Co. L. 34. b.

(a) 1. Execution is the obtaining actual possession of a thing recovered by judgment of law; and is called the life of the law, and therefore is, in all cases, to be favoured. Co. Litt. 154. a. Carter, 194.-2. It differs from an action, which continues only till judgment is given; and therefore a release of all actions is regularly no bar of an execution. Co. Litt. 289. 2 Rol. Abr. 404.

(b) Co. Litt. 289. 5 Co. 87.

(c) 1. To warrant exccution, judgment must have been signed, though it need not have been entered. Gilb. C. P. 24. Law of Executions, 45.-2. And, unless in certain cases, leave of the court need not be obtained.-3. Which cases are, where a verdict has been taken against one underwriter, and the rest have entered into the consolidation rule, and agree to be bound by it. Tidd, 981. 4. Where there is a writ of error coram nobis. Say, Rep. 166. Barnes, 201. 2 Blk. 1067.-5. Where in ejectment, the landlord is admitted to defend on the tenant's non-appearance, and judgment is thereupon signed against the casual ejector, with a stay of execution till further order, the lessor of the plaintiff having succeeded, must apply to the court for leave to take out execution. Tidd, 981.-6. And in such case if a writ of error be brought by the landlord, it may be shewn for cause, and will be a sufficient reason, against taking out execution. 2 Str. 1241.-7. But if the landlord omit the opportunity of shewing it for cause, the execution is regular and cannot be set aside. 2 Burr. 757.-8. These seem to be the only cases in which leave must be obtained; not therefore the case in which judgment is entered up for the sum awarded, under a reference at nisi prius, 1 East, 401. 1 B. & P. 97. 480. 3 B. & P. 244. Sed vide 1 Salk. 84. Barnes, 58.

So

So, if the tenant dies before execution, the demandant may enter upon his heir. 1 Rol. 884. l. 47.

So, though there are several descents. 1 Rol. 884. 1. 52. Vide post, (A 5.)

So, if before execution a stranger enters and dies seised, the demandant may enter within a year after judgment. 1 Rol. 885. 1. 2.

So, if judgment be against tenant in tail, the demandant may enter upon the issue in tail. 1 Rol. 884. l. 50. Vide post, (A 2.)

So, if a writ of error be brought against the heir, and judgment reversed, the demandant in error may enter upon him, though he be in by descent. 1 Rol. 884. 1. 42.

But the demandant cannot enter upon a stranger after the year 1 Rol. 885. l. 12.

Or, after a descent cast. 1 Rol. 885. 1. 15.

(A 2.) By habere facias seisinam.

An habere facias seisinam is a judicial writ issuing out of the record of the judgment, and directed to the sheriff of the county where the land lies, commanding him quod habere faciat to the demandant seisinam suam de messuagio, &c.

In a real action, after judgment quod recuperet seisinam, the demandant may take out execution by habere facias seisinam at any time within a year and a day after judgment,

And where the certainty does not appear by writ, he cannot enter; but shall have an habere facias seisinam: as, in dower. Co. L. 34. b. So, though the delivery of seisin by the sheriff does not reduce it to a certainty: as, if in dower, a woman recovers the third part of а moiety. Co. L. 34. b.

If the tenant dies after judgment; execution may be sued against his heir.

So, against the issue in tail, where the recovery is upon a real title. So, where a recovery is against tenant in tail by common recovery; for the issue shall have the recompence in value. Co. L. 361. b. R. Dy. 376. b. R. 1 Co. 94. b. 106. a. Vide Estates, (B 27.)

But if a recovery be against tenant in tail upon a false title, who dies before execution; in scire facias against the issue in tail, he may avoid it. Co. L. 361. b.

(A 3.) How it shall be done.

If the writ be, that the sheriff habere faciat seisinam of several messuages in the possession of the same person, it is sufficient that he does execution in one in the name of all, without going to each particular. R. 1 Rol. 886. l. 32.

If a recovery be of a rent, common, &c. it is sufficient, that the sheriff, upon the land, delivers seisin of the rent, common, &c. by parol; for thereby the demandant is in actual possession. 1 Rol. 886. 1. 52.

So, if the sheriff offers to deliver seisin, and shews the parcels in which, it is sufficient, though the demandant refuses it; for his entry afterwards is congeable. Semb. Dy. 278. b.

But where the houses, &c. recovered are in the possession of several, it is not sufficient to deliver seisin of one in the name of all; bu the ought to go to each, particularly. R. 1, Rol. 886. 1. 40.

If a writ be for seisin in twenty acres, he ought to deliver the acres,

as computed by the country; not twenty measured according to the statute. R. 1 Rol. 886. l. 50.

If the demandant has once had execution, he cannot afterwards have execution again. Vide post, (A 6.)

And therefore, where the sheriff had returned upon an habere facias seisinam, execution done, an alias habere facias seisinam never was seen. Dy. 278. b.

And if execution be done, the court will compel the sheriff to return the writ. R. 1 Rol. 77. (d)

So, if a fee be executed by the ancestor, it never shall be executed again by the heir. 1 Rol. 886. l. 18.

Or, if a fee tail, it shall not be executed again by the issue in tail. 1 Rol. 886. 1. 20.

So, if husband and wife be tenants for life, remainder to them in tail, the husband dies, and the wife has execution; the issue shall not have execution again; though he claims as heir to both: for he claims the same estate. 1 Rol. 886. L. 15. Vide post, (A 5.)

(A 4.) By scire facias.

If the demandant sues execution after a year after judgment, he must have a scire facias. 2 Inst. 469. Vide post, (I 4.)-Pleader, (3 L.

1.2.)

(A 5.) By habere facias possessionem.

If there be judgment in ejectment, &c. where only a term for years is recovered; execution shall be by an habere facias possessionem. (e)

(d) 1. All writs of execution, which are to be executed by the sole authority of the sheriff, such as a capias ad satisfaciendum, habere facias seisinam or possessionem, fieri facias, liberate, &c. are good when duly executed, though never returned by the sheriff, for the plaintiff has the effect of his suit, and there is nothing farther to be done on his part; and hence it is said that an execution executed is the end of the law. 5 Rep. 90. 4 Rep. 67.-2. Though if the party apprehends himself injured by an erroneous writ of execution, he may apply to the sheriff to return it, and if he refuses, an action on the case lies against him. Keb. 551. 5. But in the case of an elegit, although it be a judicial writ, yet the sheriff must return it; for this is not to be executed by his sole authority, but by an inquest taken by him, according to the statute of Westminster, 2.; and therefore he must return the writ, that it may appear that he has pursued the directions of the statute. 5 Rep. 20. a. 4 Rep. 74. 2 Înst. 396. Cro. Jac. 569. Cro. Eliz. 584.-4. Upon which distinction it has been held, that a capias ad satisfaciendum may be taken out, returnable the term next but one after the teste; for in this case the intervening term makes no discontinuance, it not being necessary, as in case of a capias in mesne process, that the defendant should have a day in court; for his cause is at an end, and he must be in prison, whether the writ be returned or not, whereas on a capias in mesne process, the party may be at great prejudice, by reason of the imprisonment in the meantime. 2 Salk 700. Ld. Raymd. 775. 7 Mod. 29. — 5. So if a fieri facias issues to the sheriff of S. returnable on a common return day, and he at the day returns nulla bona, a fieri facias testatum may issue the day following to the sheriff of Kent, and execution by him shall be good; for though on mesne process there can be no testatum till the quarto die post, yet it is otherwise in writs of execution, for on these the party has no day in court. T. Jones, 200. 3 Bac. Abr. 377.378. (e) 1. A judgment in ejectment for the plaintiff shews that the defendant has no property in the premises, but that they belong to the plaintiff. The writ of habere facias therefore is not to divest the defendant of his property, as a writ of fi. fa. is, but to take from him that which belongs to another, and which he is unjustly withholding. 3 M. & S. 557.-2. The legal relation to the teste of the writ is to be supported in maintenance of the habere facias possessionem, on judgment in ejectment. 4 Burr. 1970.-3. If the lessor take more than he has recovered in the action, the courts will interfere in a summary way, and compel him to make restitution. 3 Wils. 49.

It may be sued after a year after judgment in ejectment, quoad the land, without a scire facias. R. 1 Sid. 351. R. cont. Sal. 258. 600. Vide post, (I 4.)

If the defendant dies before execution, it may be done against his heir; for, in ejectment, the ejector by intendment is a disseisor. R. 1 Rol. 887. 1. 10. Vide ante, (A 1.)

So it may be sued at any time before the term expires. Semb. Skin, 427. If the plaintiff in ejectment declares for forty acres and recovers only thirty, the sheriff may deliver to him in possession of two or three acres in the name of all, without setting them out by metes and bounds, though the plaintiff recovered only part, of what he supposed in the possession of the tenant. R. 1 Rol. 886. 1. 45. Vide ante, (A 3.)

The sheriff upon an habere facias seisinam, or possessionem, may break open a house to deliver seisin or possession of it to the demandant, or plaintiff. R. 5 Co. 91. b.

May remove all persons in the house. R. 1 Leo. 145.

And ought so to do. 1 Leo. 145.

If an habere facias possessionem be executed, and before the return and filing, the defendant re-enters, a new habere facias possessionem shall issue. 2 Brownl. 253. 145. R. 1 Rol. 353.

Mod. Ca. 27.

R. 1 Sal. 321.

Semb. 1 Leo.

If he re-enters after the writ executed, returned and filed, an attachment upon an affidavit, shall go against him. 2 Brownl. 253. Dub. if the execution was complete. Mod. Ca. 27. 1 Sal. 321.

But till possession completely given, and the bailiffs withdrawn, the execution is not complete; and upon disturbance, an attachment goes. Mo. Ca. 27. 1 Sal. 321. 1 Leo. 145.

(A 6.) Execution upon a fine, and common recovery.

A fine sur conuzance de droit come ceo, &c. is executed, and needs not any execution. 1 Rol. 885. l. 20. 887. 1. 15. Vide Fine, (E 9.) (E 15.) -Pleader, (3 A 7.)

All other fines are executory, and must be executed. Vide Fine, (E 10. &c.)

So a fine come ceo, &c. to A. in tail, remainder over, may be afterwards executed, as to the remainder. 1 Rol. 887. 1. 20. Dy. 69.

So, if a fine be executed as to a particular estate, it may afterwards be executed as to the remainder. 1 Rol. 885. 1. 40.

Though the remainder be to

1 Rol. 886. 1. 5.

him who has the particular estate.

Yet, if a fine be executed, there shall not be another execution: and therefore, if a fine be to A., remainder to his right heirs; this is executed for the whole, and his son shall not have execution after his death. 1 Rol. 885. 1. 32. Vide ante, (A 3.)

If it be to A. for life, remainder to B. in tail, remainder to A. in fee, and A. surrenders to B. who dies without issue, and then A. enters; his heir shall not have execution for the remainder in fee; for it was executed. 1 Rol. 885. l. 35.

If a remainder be limited by fine to husband and wife, and the heirs of their bodies, and one dies, then the particular estate determines, and the survivor enters; the issue shall not have execution afterwards, though he claims as of both bodies. 1 Rol. 885. 1. 25.

If, to husband and wife, and the heirs of the husband, who survives; his heir shall not have execution. 1 Rol. 885. 1. 50.

If a fine be executed by entry or scire facias, the execution extends only to the estate in possession; and not to the remainder.

Though the last remainder be to him who has the possession: as, if a fine be to A. in tail, remainder over to others for life, remainder to A. in fee, and the remainders for life cease, whereby A. has the tail and the fee together; if he sues execution, he can sue it only for the tail. 1 Rol. 886. 1. 25.

But, if the fine or estate be avoided before execution, it shall never be executed; as, if tenant in tail takes a fine of A. and thereby renders to B. for life, in tail, or in fee, and dies before proclamations passed, or entry of the conusee; whereupon the issue enters; the conusee shall not have a scire facias against the issue to execute the fine, though the proclamations afterwards pass. Pl. Com. 437. b.

(B) Execution for the king.

(B 1.) By capias pro fine, or capias utlagatum.

When judgment is given that the plaintiff or defendant capiatur, &c. a capias pro fine lies for the fine due to the king. Vide Information, (D 7.) Vide post, (B 2.)

For capias utlagatum. Vide Utlagary. Vide post, (B 2.)

(B 2.) When any in execution for the king shall also be so for

the party.

If a man be taken by a capias pro fine within a year, and a capias lies in the same action for the plaintiff, the party taken upon the capias pro fine shall be also in execution for the plaintiff, if he pleases, without his prayer. 5 Co. 88. b. 1 Rol. 895. 1. 50. Bridg. 7. 14 H.

7.15.

So, if a capias does not lie for the plaintiff in the same action, but only a fieri facias, &c. yet upon his prayer, the party taken upon the capias pro fine shall remain in execution for the plaintiff. 5 Co. 88. b. Bridg. 7.

So, if he be not taken upon a capias pro fine, till after the year when the plaintiff is put to a scire facias.. 5 Co. 88. b.

And in such case he shall be in execution for the plaintiff, before that he be for the king. 2 Rol. 158. 1. 7.

And though the fine, and process thereon be pardoned. 1 Leo. 51. Bridg. 7.

But where the party is not taken upon a capias pro fine within the year, or a capias does not lie in the same action for the plaintiff; the party shall not be in execution for him, without prayer. 5 Co. 88. b.

Or, if one only be taken, where the judgment was joint against many. 1 Rol. 896. I. 2.

So, if taken upon a capias pro fine, where the plaintiff takes execution by elegit. 1 Leo. 51.

So, if the defendant be taken upon a capias utlagatum, after judgment, within the year; he shall be in execution for the plaintiff, if he will, without prayer. R. 5 Co. 88. a. Mo. 566, Yel. 20. 1 Rol.

895. 1. 20. Bridg. 7.

Though