103 
EXECUTION.. 
estate of an executor, recovers in debt, and before execu¬ 
tion the executor comes of age, he (hall have a fcire facias 
on this judgment; for carrying on the fuit in right of the 
executor, made the executor privy thereto, i Roi. Abr. 
£88-9. If a man has judgment for the arrears of rent, and 
dies, his executor fliall fue out execution, and not the 
heir ; for by the recovery it becomes a chattel veiled, to 
which the executor is inti'tled. 1 Rcl. Abr. 8S0. 
1 here can be no execution taken out again!! a member 
of parliament during privilege of parliament : alfo no 
capias can iffue againft a peer ; for even in the cafe of a 
private perfon at .common-law, the body was not liable 
to creditors ; and the ftatute of Edw. III. which fubjefits 
■the body, does not extend to peers, becaufe their perfons 
are ^ acrec ^ : tl le law alfo fuppofes, that perfons thus dif- 
tinguilhed by the king, have wherewithal otherwife to 
fatisfy their creditors. 6 Co. 52. 
If a perfon lias a bill of fale of any goods, in nature of 
a fecurity for money, he (hall be preferred for his debt 
to one who hath obtained a judgment againfl: the debtor 
before tliofe goods are fold; for till execution lodged in 
the fheriff’s hands, a man is owner of his goods, and may 
difpofe of them as he thinks fit, and they are not bound 
by the judgment. Preced. Chan. 286. B ut where a man 
generally keeps poffefiion of goods after fale, it will make 
the fame void againfl others, by the fiatute of fraudulent 
conveyances. And where on an execution, or bond and 
judgment, the owner of the goods by agreement was to 
have the poffefiion of them upon certain terms; afterwards 
another got judgment againfl the fame perfon, and took 
thole goods in execution: it was adjudged they were lia¬ 
ble, and that the firft execution was by fraud, and void 
againfl: any fubfequent creditor ; becaufe there was no 
-Change of the poffefiion, and fo no alteration of property. 
Where two writs of fieri facias againfl the fame defend¬ 
ant are delivered to the flieriff on different days, and no 
fale is afitually made of the defendant’s goods, the firft 
execution muff have the priority, even though the feizure 
was firft made under the fubfequent execution. 1 Term 
Rep. in). But where the flieriff has given a bill of fale to 
the perfon claiming under the fecond execution, this en¬ 
titles the latter to fecure his debt, and the flieriff is liable 
to the plaintiff who delivered the firft writ. The ftatute 
8 Anne, c. 14, direfits, that where there is an execution 
againfl: goods or chattels, of a tenant for life, or years, 
the plaintiff before removal of the goods by the execution 
is to pay the landlord the rent of the land, &c. fo as there 
be not above a year due ; and if more be due, paying a 
■year’s rent, the plaintiff may proceed in his execution, 
and the lheriff fhall levy the rent paid, as well as the exe¬ 
cution money. But a ground-landlord cannot come in 
for a year’s rent in the cafe of an execution againfl an un- 
-dcr-leflee ; for the ftatute only extends to the immediate 
landlord. Str. 787. And the landlord muff give the fhe- 
rift notice, or he is not bound. iWilf. 140. 
The king, by his prerogative, may have execution of 
the body, lands, or goods, of his debtor, at his elefition. 
2 Inf. 19. If the king’s debt be prior on record, it binds 
the lands of the debtor, into whofe hands foever they 
come, becaufe it is in the nature of an original charge 
upon the land itfelf, and therefore muft fubjefit every 
body that claims under it ; but if the lands were aliened 
in whole, or in part, as by granting a jointure before the 
debt contrafited, fuch alienee claims prior to the charge, 
and in fuch cafe the land is not fubjedt. 2 Roll. Abr. 156-7. 
Execution for the king’s debt, or prerogative execution, 
is always preferred before any other executions. And if 
a defendant is taken by capias adfatisfaciendum, and before 
the return thereof a prerogative writ fifties from the ex¬ 
chequer for the debt of the king, teffed a day before he 
was taken, here he fliall be held in execution for the 
king’s debt, and that of the fubjefit. Dyer, 197. 
An execution may be fet alide for irregularity, by fuptr- 
fcdtas\ and the party have reftitution, &c, Cartheiu, 460. 
It hath been refolved, that a writ of .error is a fupeifedeas 
from the time of the allowance ; though if a writ of exe¬ 
cution be executed before the writ of error is allowed, it 
may be returned afterwards. 1 Salk. 321. No writ of exe¬ 
cution fliall be ftayed by any writ of error or fuperfedcas, 
after verdidt and judgment, in any afition upon the cafe 
for payment of money, covenant, detinue, trefpafs, &c. 
until recognizance be entered into as direfited by 3 Jac. I. 
c. 8. Judgment was had againfl a perfon at Briftol, and 
his goods attached there ; and the court of king’s-bench 
being moved to flay the execution until a writ of error 
brought fiiould be determined, they granted a habeas corpus, 
but nothing to flay the execution. 1 Bulf. 268. A defend¬ 
ant cannot plead to any writ of execution, but if lie hath 
any matter after judgment to difeharge him of the exe¬ 
cution, he is to have audita querela. Co. Lit. 290. Or move 
the court for relief, which is now the uftial method. If 
hufband and wife are taken in execution for the debt of 
the wife, the wife fliall be difeharged ; for the hufband 
being in execution, the wife fliall not be fo alfo, and 
becaufe the wife hath nothing liable to the execution. 
1 Leo. 51. 
Execution of Criminals, muft in all cafes, as well 
capital as otherwife, be performed by the fheriff, or his 
deputy; whofe warrant for fo doing - was anciently by pre¬ 
cept under the hand and feal of the judge, as is (till prac- 
tifed in the court of the lord high fteward upon the exe¬ 
cution of .a peer. 2 Hale, 409. Though in the court of 
the peers in parliament it is done by writ from the king ; 
afterwards it was eltabliflied, that in cafe of life the 
judges may command execution to be done without any- 
writ. Finch, 47S. And now the ufage is for the judge to 
fign the calendar, a lift of all the priftmers’ names, with 
the feparate judgments in the margin, which is left with 
the flieriff: the flieriff 011 receipt of this warrant is to do 
execution within a convenient time, which in the country 
is left at large : in London, the recorder, after reporting 
to the king in perfon the cafe of the feveral prifoners, and 
receiving his royal pleafure that the law muft take its 
courfe, fifties his warrant to the ftieriffs direfiting them to 
do execution at the day and place afligned. 
It is held by Coke (3 Inf. 52), and Hale (2 H.P.C. 272, 
412), that even the king cannot change the punifliment 
of the law by altering hanging into beheading; though 
when beheading is part of the fentence, the king may re¬ 
mit the reft. And notwitliftanding fome examples to the 
contrary, Coke maintains that judicandum ef legibus, von 
exemplis. But others have thought, and more juftly, that 
this prerogative being founded in mercy, and immemo- 
rially exercifed by the crown, is part of the common-law. 
19 Ryvi. Feed. 284. For hitherto, in every inftance all thefe 
exchanges have been for more merciful kinds of death ; 
and how far this may alfo fall within the king’s power of 
granting conditional pardons, (viz. by remitting a feverer 
kind of death on condition that thfe criminal fubniits to a 
milder,) is a matter that may bear confideration. There 
are ancient precedents wherein men condemned to be 
hanged for felony, have been beheaded by force of a 
fpecial warrant from the king. BraEt. 104. 
If a perfon, when attainted, (lands mute to a demand 
why execution fliall not go again!! him, the ordinary exe¬ 
cution fliall be awarded. 2 Hawk. P. C. In cafe a man 
condemned to die, come to life again after he is hanged, 
as the judgment is not executed till he is dead, he muft 
be hung again. Finch, 389. 4 Comm. 406. And fo was the 
law of old ; for if a criminal thus efcaped and fled to 
fanfituary he was not permitted to abjure the realm. The 
body of a traitor or felon is forfeited to the king by the 
execution ; and lie may difpofe of it as he pleafes. By 
flat. 25 Geo. II. perfons convifited of murder are to be 
executed the day next but one after the fentence, unlefs 
that happens to be Sunday ; for which reafon murderers 
are generally tried on a Friday to afford them a merciful 
.refpite of one day more to prepare for eternity : their bo¬ 
dies then to be delivered to furgeons to be anatomifed. 
The judge may flay ,the fentence, and appoint the body 
to 
