EXCRETIN. 



EXECUTOR. 



low 



themselves to bring the refractory to submission, namely, by excluding 

 them from the rites of the Church, and warning other Christians from 

 their company. A Christian thus shut out from the fellowship of his 

 brethren could not do otherwise than submit. 



This censure, although instituted by the primitive church as the 

 means of preserving its purity, and of enforcing obedience to its just 

 laws, was afterwards used for the promotion of ecclesiastical power, 

 and was converted into an engine of the greatest oppression in those 

 countries which were most subject to ecclesiastical rule. (Robertson's 

 ' History. of Charles V.,' vol. ii.) 



In England excommunication became at a very early period the 

 instrument of punishment of the bishops, and others possessing eccle- 

 siastical jurisdiction. It was divided into the greater and the less 

 excommunication. The latter only removed the person from a par- 

 ticipation in the sacraments ; the other was called anathema, and not 

 only removed the party from the sacraments, but from the Church and 

 all communication with the faithful, and even deprived him of 

 Christian burial. Subjects were absolved from their allegiance to an 

 excommunicated prince : indeed, they were forbidden to obey him. 

 Gregory V. was the first prelate who ventured to excommunicate a 

 reigning prince, in the case of Robert, king of France, in 998 John 

 and Henry VIII. are well-known instances in English history. The 

 latest instance of all was Napoleon I., in 1809, by Pius VII. 



The greater excommunication was hurled against diviners, heretics, 

 their receivers and comforters ; simoniacs ; violators and plunderers of 

 churches ; those who spoiled clerks going to Rome ; the plunderers of 

 the property of a bishop which ought to go to his successor ; those who 

 gave aid, favour, or counsel to excommunicated persons ; and those who 

 laid violent hands on clerks or religious persons, or commanded 

 others to do so. Those punished with the less excommunication were 

 persons committing any mortal sin, as sacrilegious persons ; those who 

 received a church from lay hands; notorious offenders; those who 

 talked with, saluted, or sat at the same table with, or gave anything in 

 charity to persons excommunicated by the greater excommunication, 

 unless they were familiars or domestics. 



Excommunication was also pronounced for other matters which 

 belong to ecclesiastical jurisdiction, as adultery, incontinence, forni- 

 cation, Ac., or for contempt of any ecclesiastical order or sentence. 

 The sentence was preceded by three monitions at due intervals, or one 

 peremptory, containing the legal space of time, with a proper regard to 

 the quality of the person and the nature of the offence. But, as Black - 

 tone remarks, " heavy as the penalty of excommunication is, considered 

 in a serious light, there are, notwithstanding, many obstinate or profli- 

 gate men, who would despise the brutum fulmen of mere ecclesiastical 

 censures, especially when pronounced by a petty surrogate in the 

 country, for railing or contumelious words, for non-payment of fees or 

 costs or other trivial causes. The common law, therefore, compassion- 

 ately steps in to the aid of the ecclesiastical jurisdiction, and kindly 

 lends a supporting hand to an otherwise tottering authority." This 

 was effected by the writ " de excommunicate capiendo ; " but before it 

 could be granted the contumacy and contempt of the party were to be 

 certified by the bishop to the Court of Chancery by letters under his 

 xeal ; and by 5 Eliz. c. 23, the writ was made returnable into the King's 

 Bench. The cause of excommunication was also to be stated in the 

 writ, in order that the court might judge as to the justice of the case. 

 The sentence of excommunication might be revoked by the judge who 

 passed the sentence, or upon appeal the party might be absolved. 

 Absolution generally belonged to the same person who passed the 

 sentence, unless in some particular cases, which were referred to the 

 pope or a bishop. (Reeves' ' Hist, of English Law ; ' Sullivan's 

 Lectures.') 



By a sentence of excommunication, both greater and less, those 

 denounce* 1 were excluded from the right of Christian burial, from 

 bringing or maintaining actions, from becoming attornies or jurymen, 

 and were rendered incapable of becoming witnesses in any cause. But 

 since the 53rd Oeo. III. c. 127, excommunication cannot now be pro- 

 nounced in England, except in certain cases (as spiritual censures for 

 offmir of ecclesiastical cognizance) ; and by that statute, " no person 

 who shall be pronounced or declared excommunicate shall incur any 

 civil penalty or incapacity, in consequence of such excommunication, 

 save such imprisonment, not exceeding six months, as the court pro- 

 nouncing or declaring such person excommunicate shall direct." The 

 proceedings in those cases, in which excommunication may still be 

 pronounced, are the same, as to the issuing and return of the writ, as 

 they were before the Act of 53 George III. By the same Act, when 

 any person shall refuse to appear when cited by an ecclesiastical court, 

 or shall refuse to obey the lawful order or decree of such court, no 

 sentence of excommunication (except in the cases above alluded to) 

 Khali l>e pronounced ; but a writ " de contumace capiendo " shall issue, 

 which in effect is the same as the old writ " de excommunicate 

 capiendo" was. The various difficulties which formerly existed in 

 M of law with respect to excommunication are thus obviated. 



(BUck..t.. Cnmm., Mr. Keir'a ed., vol. iii., p. 107.) 



KXCRETIN, a substance discovered by Dr. Marcet in the excretions 

 from the human bowels. 



EXCRETION. [SrcBmox.] 



KXCRETOLIC ACID. 'An olive-coloured fatty acid, found in 

 human excrement. Its composition is not known. 



EXECUTION is the effect given to the judgment and other pro- 

 ceedings analogous to judgments of courts of law and in civil suits. 

 This term denotes the process by which a party is put into the actual 

 possession of that to which by the proceedings of a court he appears to 

 be legally entitled. 



As a judgment of a court of common law ascertains that the party 

 is entitled to the possession of some subject of a real or personal 

 nature ; or to recover damages in respect of property withheld or 

 injuries done, so the execution founded upon such judgment will be 

 framed with a view to putting the party in whose favour the judgment 

 is given either in the actual possession of the thing in dispute, or to 

 enable him to obtain pecuniary compensation. 



For this purpose a written command issues in the name of the king 

 or other lord or owner of the court, to an officer of the court : when 

 the judgment is in one of the king's superior courts at Westminster, 

 the officer of the court for this purpose is the sheriff of the county in 

 which the property is situate, or, in the case of pecuniary compensation, 

 the sheriff of the county in which the party from whom such com- 

 pensation is due is supposed to be. 



Where lands or other corporeal hereditaments are recovered, the 

 process of execution is called habere facies possessionem. [HABERE 

 FACIAS POSSESSIONEM.] 



A judgment in the action of detinue [DETINUE] establishes the 

 right of the recoveror to the possession of a specific personal chattel, 

 and the writ of execution called a distringas issues, requiring the 

 sheriff to coerce the defendant by his distringas (distress) to restore the 

 specific chattel, or at the option of the plaintiff that he cause to be 

 made of the defendants' goods the assessed value of such chattel. The 

 plaintiff is in either case entitled to recover his damages, costs, and 

 interest in the action. 



A judgment for the defendant in replevin [REPLEVIN] establishes 

 his right to the possession of the personal chattel which formed the 

 subject of the litigation. In the ordinary case of an action of replevin 

 after a distress, the right of the defendant in respect of the chattel 

 distrained is merely to hold it as a security for the payment of the 

 debt or duty, the payment or performance of which is sought to be 

 enforced by the coercion of a distress. [DISTRESS.] The writ of 

 execution requires the sheriff to cause the chatffil to be restored to 

 the possession of the defendant. This is called a writ de retorno 

 habendo, and in case the sheriff is unable to find the chattel, further 

 process issues commanding him to take other chattels of the plaintiff 

 as a substitute for that which is withheld, by a writ called a capias in 

 withernam. 



The most ordinary cases of execution are those in which pecuniary 

 compensation is to be obtained, but in these cases the sheriff is not 

 authorised directly to take money from the party by whom it is to be 

 paid. Formerly the only mode of obtaining this compensation was by 

 process of distringas or distress. But execution of judgments or other 

 records establishing pecuniary claims may now be had by a writ of 

 fieri facias [FIERI FACIAS] affecting the personal property ; by writ of 

 elegit [ELEOIT], affecting both real and personal property ; and by capias 

 ad satisfaciendum [CAPIAS], by which compliance with the pecuniary 

 demand is enforced by detention of the person of the defaulter in 

 prison until the claim be satisfied, or the adverse party consents to hits 

 discharge, or until he be discharged by process of law under the 

 Bankrupt or Insolvent Acts. 



A subject is not entitled to pursue all these remedies at once ; but 

 in the case of the crown, the right to obtain satisfaction from the 

 goods, lands, and person of its debtor may be enforced simultaneously, 

 by writ of capias, and extendi facias, or extent. [EXTENT.] 



Execution is the term applied to denote the giving effect to the 

 sentence of a court of justice. In this sense it is most commonly 

 used with reference to the execution of sentence of death. [SHERIFF.] 



EXECUTOR. An executor is he to whom another man commite 

 by will the execution of that his last will and testament. He answers 

 in some degree to the hrtrei dalgnatus, or tcstamentarius, in the civil 

 law, as to the debts, goods, and chattels of his testator ; but the origin 

 of executors seems to be properly traceable to a constitution of Manuel 

 Comnenus (**pi StotKijTwv TUV Sic&riKuv). All persons who are capable 

 of making [a will, and some others besides, as married women and 

 infants, are capable of being made executors; but infants are by 

 statute rendered incapable of acting in the execution of the will uutil 

 they attain the age of twenty-one. 



An executor can derive his office from a testamentary appointment 

 alone, though it is not necessary that he should be appointed by 

 express terms ; any words of the testator indicating an intention to 

 make the appointment are sufficient : in this case he is usually called 

 " executor according to the tenor." If no executor is appointed by the 

 will, administration is granted out of the Court of Probate, with the 

 will annexed, in which case the administrator is bound to obey the 

 directions given by the will. An executor may renounce probate ; 

 but having once acted, he cannot divest himself of the office or its 

 liabilities ; nor can an administrator who has accepted the office, get rid 

 of his responsibility. 



An executor may do many acts in execution of the will, even before 

 probate, as paying and receiving debts, &c., but he cannot, before 

 probate, sustain actions or suits. An administrator can do nothing 

 till the letters of administration are issued ; for the former derives his 



