Commentaries on the Laws of England, Book III: On Private Wrongs by Sir William Blackstone

Author:Sir William Blackstone [Blackstone, Sir William]
Language: eng
Format: epub
Tags: Politikwissenschaft
Publisher: Jazzybee Verlag
Published: 2017-07-26T22:00:00+00:00

CHAPTER XXVI.: OF EXECUTION.

If the regular judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered.

If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession, Ref 1770 of a chattel interest. Ref 1771 These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ. Upon a presentation to a benefice recovered in a quare impedit, or assize of darrein presentment, the execution is by a writ de clerico admittendo; directed, not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. Ref 1772

In other actions, where the judgment is that something in special be done or rendered by the defendant, then, in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff according to the nature of the case. As, upon an assize of nuisance, or quod permittat prosternere, where one part of the judgment is quod nocumentum amoveatur, a writ goes to the sheriff to abate it at the charge of the party, which likewise issues even in case of an indictment. Ref 1773 Ref 1774 Upon a replevin, the writ of execution is the writ de retorno habendo: Ref 1775 and, if the distress be eloigned, the defendant shall have a capias in withernam; Ref 1776 but on the plaintiff’s tendering the damages and submitting to a fine, the process in withernam shall be stayed. Ref 1777 In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels: Ref 1778 or else a scire facias against any third person in whose hands they may happen to be, to show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.