Page:The American Cyclopædia (1879) Volume VII.djvu/34

 26 EXECUTION persons who have the control of the institu- tion. In respect to lay officers, as they are called in distinction from ecclesiastical and eleemosynary, the mode of proceeding is by quo warranto or mandamus. The former was strictly a proceeding in behalf of the crown against any one who had intruded into an office, but is now allowed by statute in Eng- land (9 Anne, c. 20) to determine disputes be- tween private parties claiming an office ad- versely to each other. The proceeding in that case, although in form in behalf of the crown, yet is stated to be on the relation of the per- son prosecuting, and upon judgment in his fa- vor execution issues to remove the intruder. Mandamus is a remedy where there is a re- fusal to admit the claimant to an office, or where he has been wrongfully removed. If the claim be established, a peremptory man- damus issues, directed to the defendant, com- manding him to admit or restore the claimant, who is in this case, as well as in the proceeding by quo warranto, called the relator. This is, however, not strictly an execution, as if not obeyed it must be enforced by another process called an attachment. In other actions, where the subject is an injury to real estate, usually the remedy is a recovery of damages ; but in some instances specific relief is given, as in an action for a nuisance there may be a judg- ment that it be abated, and the execution in such case follows the judgment. So in some personal actions, formerly, there might be judgment for the delivery of the specific thing, as in detinue, which was brought to recover possession of chattels, and the judgment was enforced by an execution called a distringas, which commanded the sheriff to make distress of any goods of the defendant until he com- plied with the judgment ; but if he still re- fused, there could only be an assessment of the value of the thing recovered, and a sale of de- fendant's property to pay the same. In the action of replevin, which was originally limited to the recovery of property which had been wrongfully distrained for rent, the writ by which the action was commenced directed the sheriff to replevy, that is, take the property in question, and deliver it to the plaintiff upon pledges to prosecute. If the defendant suc- ceed in the action, the judgment is that he have return of the property, or if he elects, he may have an assessment of the value, and re- cover that amount as damages. In the former case the execution is for redelivery of the property, in the latter merely for the damages. Before proceeding to the consideration of other actions, it will be proper to state the modifications which have been made in the United States in respect to those already no- ticed. All the common-law real actions are generally abolished except ejectment, which, in a simplified form, is used for the trial of title to land in all cases. Quare impedit is not retained, nor is there any action for the re- covery of an office except the proceedings by quo warranto or mandamus. The action of detinue has been generally abolished, and the action of replevin has been extended to all cases of the wrongful taking or wrongful de- tention of personal property. In the latter ac- tion the plaintiff, instead of an actual replevy of the goods, may arrest the defendant and compel him to give bail, and the final judgment in such case will be for damages ; and so the defendant, if he succeeds in a case where the goods have been replevied, may take judgment for the value, the execution being in either of these cases merely for damages. We now come to the ordinary actions in which there is judgment for a money demand. At common law there are three forms of execution upon such a judgment : 1, a fieri facias, so called from the terms of the writ by which the sheriff is commanded that of the goods and chattels of defendant he cause to be made the amount of the debt or damages recovered ; 2, elegit, which is a writ given by an ancient statute (13 Edward I., c. 18), whereby, if the plaintiff elected, possession of the goods and chattels of defendant was delivered to plaintiff under an appraisement of the value thereof, which to that extent was to be a satisfaction of the judgment; but if not sufficient, then possession of one half of the freehold lands of defendant was also to be delivered until from the rents and profits thereof the judgment should be paid ; 3, a capias ad satisfaciendum, which is a writ directed to the sheriff com- manding him to take the body of the de- fendant, and keep the same until satisfaction of the debt. The course of proceeding upon this writ was to imprison the defendant in the debtors' jail, of which the sheriff had in law the charge. (See DEBTOR AND CREDITOR.) Having traced the origin of the terms applied to executions, we shall limit ourselves to a brief explanation of the legal incidents as now prescribed by statute in the United States. The two forms of execution are the fieri facias and the capias ad satisfaciendum, which have been already explained, and which are desig- nated by the abbreviated terms^. fa. and ca. sa. TliQfi.fa. is a writ directed to the sheriff by which he is commanded to maKe the amount of the judgment by sale of the defen- dant's goods and chattels, or if these should not be sufficient, then of the lands of which he was seized on the day when the judgment was docketed. An exemption is made of certain property from levy under execution, viz. ; household furniture, necessary provisions and fuel for the use of the family for a specified time, stock in trade, necessary wearing ap- parel, bedding, &c., tools and implements to an amount named, a family Bible, family pic- tures, school books, the family library, &c., and in addition, a lot and building occupied as a residence by the debtor, being a householder and having a family, to a value named, which in most states is $1,500 or upward. (See FIERI FACIAS.) The ca. sa. is the old form of