107 
EXECUTION. 
writ, no other procefs can be fried out againft his lands 
or goods. Only by ftatute 21 Jac. I. c. 24, if the defen¬ 
dant dies while charged in execution upon this writ, the 
plaintiff may after his death file out a new execution 
againft his lands, goods, or chattels. 
The fecond fpecies of execution is againft the goods and 
chattels of the defendant; and is called a writ of Fieri 
Facias ; from the words in it where the fherift is com¬ 
manded that he caufe to be made of the goods and chat¬ 
tels of the defendant, the fum or debt recovered. This 
lies as well againft privileged perfons, peers, &c. as other 
common perfons : and againft executors or adminiftrators 
with regard to the goods of the deceafed. The fherift 
may not break open any outer doors to execute either this 
writ or the writ of capias ad fatisfaciendum ; but muff enter 
peaceably ; and may then break open any inner door be¬ 
longing to the defendant in order to take the goods. 
Palm. 54. And the fheriff may fell the goods and chat¬ 
tels of tlie defendant, even an eftate for years which is a 
chattel real, (8 Rep. 171,) til! he has raifed enough to 
latisfy the judgment and colts: fir ft paying the landlord 
of the premifes upon which the goods are found, the ar¬ 
rears of rent then due, not exceeding one year’s rent in the 
whole. S' Anne c. 14. 
A third fpecies of execution is by writ of Levari facias ; 
which affedts a man’s goods and the profits of his lands by 
commanding the fherift' to levy the plaintiff’s debt on the 
lands and goods of the defendant ; whereby the fheriff 
may feize all his goods, and receive the rents and profits 
of his lands, till fatisfadtion be made to the plaintiff. 
Finch L. 471. Little ufe is now made of this writ; the 
remedy by elegit which takes poffefiiion of the lands them- 
felves, being much more effectual. But a fpecies of this 
levari facias may be confidered a writ of execution proper 
roeccleflaftics: which is given when the fherift'upon a com¬ 
mon writ of execution fued, returns that the defendant is 
a beneficed clerk, having no lay fee. In this cafe a writ 
gees to the bifliop of the diocefe, in the nature of a levari 
or fieri facias to levy the debt and damages de bonis eccle- 
Jiajlicis , which are not to be touched by lay hands: and 
thereupon the bifliop fends out a fequeftration of the pro¬ 
fits of the clerk’s benefice, diredted to the churchwardens 
to colledf the fame, and pay them to the plaintiff till the 
full ftim be raifed. 2 Injl. 472. Jink. 207. 
The fourth fpecies of execution is by the w-rit of elegit, 
which is a judicial writ given by flat. Will. II. 13 Edw. I. 
c. 18, either upon judgment for a debt or damages; or 
upon the forfeiture of a recognizance taken in the king’s 
court. By ,the common law, a man could only have 
fatisfadtion of goods, chattels, and the prefent profits of 
lands, by the two writs of execution Lift mentioned, but 
not the poffeffion of the lands themfelves; which was a 
natural confequence of the feodal principles prohibiting 
alienation of lands. But by this writ of elegit, the aefen- 
" dant’s goods and chattels are not fold, but only appraifed; 
and aM of them, except oxen and hearts of the plough, are 
delivered to the plaintiff, at fuch reafonable appraifement 
and price, in part of fatisfadtion of his debt. If the goods 
are not fufficient, then the moiety or one half of his free¬ 
hold lands, which he had at tire time of the judgment 
given, whether held in his own name, or any other in 
trurt for him, are alfo to be delivered to the plaintiff: 
to hold till out of the rents and profits thereof the debt 
be levied, or till the defendant’s intereft be expired ; as 
till the death of tire defendant, if lie be tenant for life, 
or in tail. 29 Car. II. c. 3. It is upon feodal principles 
alfo, that copyhold lands are not liable to be taken in exe¬ 
cution upon a judgment. 1 Ro. Ab. 888. But in cafe of a 
debt to the king, if appears by Magna Charta, c. 8, that 
it was allowed by the common law for him to take pof- 
fefiion of the lands till the debt was paid. This execu¬ 
tion or feizing of lands by elegit is of fo high a nature, that 
after it the body of the defendant cannot be taken ; but 
if execution can only be had of the goods becaufe there 
are no lands, and fuch goods are not fufficient to pay the 
debt, a capias ad fatisfacieftdum may then be had after the 
elegit ; for fuch elegit is in this cafe no more in effedt than 
a fieri facias. Hob. 58. Thus it appeals that body and 
goods may be taken in execution ; or land and goods'; 
but not body and land too, upon any judgment between 
fuhjedt-and fubjedt, in the courfe of the common law. 
The fifth fpecies of execution arifes upon forpe profe- 
cutions given by ftatute; as in the cafe of recognizances 
or debt's acknowledged on ftatute merchant, or ftatute 
ftaple ; (purfuant to flat. 13 Edw. I. de mercatoribus-, 27 
Edw. III. c. 9. ;) upon forfeiture of thefe the body,lands, 
and goods, may all be taken at once in execution to com¬ 
pel the payment of the debt. The procefs hereon is 
ufually called an extent or extendi facias ; becaufe the 
fheriff is to caufe the lands, &c. to be appraifed to their 
full extended value, before he delivers them to the plain¬ 
tiff, that it may be certainly known how foon the debt 
will be fatisfied. F. N. B. 131. 
By flat. 33 Hen. VIII. c. 39, all obligations made to 
the king fhall have the fame force, and of confequence 
tlie fame remedy to recover them, as a ftatute ftaple : 
though indeed before this ftatute, tlie king was entitled 
to foe out execution againft the body, lands, and goods, 
of his accountant or debtor. The flat. 25 Geo. III. c. 
35, enables tlie court of exchequer on application by the 
attorney-general, by motion, to order the eftate of any 
debtor to the king, and of the heirs and alligns of fuch 
debtor, in any lands extended, to be fold as the court 
fhall diredt; the conveyance to be made by tlie remem¬ 
brancer of tlie court, by bargain and fale, to be inrolled 
in that court. 
If a perfon have judgment given againft him for debt 
or damages, or be bound in a recognizance, and dieth, and 
his heir be within age, no execution fhall be fued of the 
lands during the minority ; and againft an heir within 
age, no execution fhall be lued upon a ftatute merchant 
or ftaple, &c. 1 Inf. 290. No execution for damages 
only, recovered in a real adtion, fhall be had by capias ad, 
fatisfacienduni : but where a man hath judgment to recover 
lands and damages, he may have execution of both toge¬ 
ther. 8 Rep. 141. Nothing can be taken in execution 
that cannot be fold, as deeds, writings, &'C. Bank-notes, 
&c. cannot be taken in execution ; as they remain, in 
fome meafure, chofes in adtion. Hardw. 53. If there are 
chattels fufficient, the fherift' ought not to take the lands; 
nor may things fixed to the freehold, goods bought 
bond fide, goods pawned, &c. to be taken in execution. 
8 Rep. 143. The fheriff cannot take tlie goods of a ftran- 
ger, for he is to take the goods of the party only at his 
peril. And if a bailiff on a fieri facias againft the goods of 
A. take tliofe of B. an adtion of trefpafs lies againft tlie 
fherift'. If on execution againft one of two partners, the 
partnerfhip effedts be taken and fold, the court will order 
the fheriff to pay over to the other a (hare of the produce 
proportioned to his fhare in the partnerfhip effects, to be 
afeertained by the mailer. Doug. 650. Eddie v DavidJ'on. 
If the plaintiff cannot find fufficient effedfs to fatisfy his 
judgment, the court will order tlie fheriff to retain for his 
ufe money which he has levied in an adtion at the fuit of 
the defendant. Doug. 231. 
No perfon is intitled to. or can fue out execution, who 
is not privy to the judgment, or intitled to the thing re¬ 
covered, as heir, executor, or admimftraior, to him who 
has judgment. 1 Rol. Abr. 889. If one have judgment to 
recover lands, and die before execution, his heir fhall have 
it; and where tenant in tail recovers and dies before the 
execution without ilfue, he in remainder may fue out exe¬ 
cution : an heir is to have execution for lands, and the 
executor or adminiflrator for damages. Co. Lilt.. 251. 
Tlie executors of executors may fue out execution of a 
judgment ; but an adminiflrator getting judgment in be¬ 
half of the intellate, and then dying, neither his execu¬ 
tor or adminiflrator fhall take out the execution, but the 
adminiftrator de bonis non adminiftratis of tlie firft intellate. 
17 Car. II. c. 8 . But if an adminiflrator, durante minori 
state 
