to found jurisdiction against their owner, being a foreigner; this
precedure, which is not, however, strictly a “diligence,” as it does
not bind the goods, is analogous to the French saisie-arrêt, and
to the obsolete practice in the mayor’s court of London known as
“foreign attachment” (see Glyn and Jackson, Mayor’s Court
Practice, 2nd ed., vii. 260); (iii.) arrestment under meditatione fugae
warrant, corresponding to the old English writ of ne exeat regno,
and applicable in the case of a debtor who intends to leave Scotland
to evade an action; (iv.) arrestment on dependence, i.e. of funds in
security; (v.) poinding, i.e. valuation and sale of the debtor’s
goods; (vi.) sequestration, e.g. of tenant’s effects under a landlord’s
hypothec for rent; (vii.) action of adjudication, by which a debtor’s
“heritable” (i.e. real) estate is transferred to his judgment creditor
in satisfaction of his debt or security therefor. In Scots law
“multiplepoinding” is the equivalent of “interpleader.”
Ireland.—The law of execution in Ireland (see R.S.C., 1905, Orders xli.-xlviii.) is practically the same as in England.
British Possessions.—The Judicature Acts of most of the Colonies have also adopted English Law. Parts of the French Code de procédure civile are still in force in Mauritius. But its provisions have been modified by local enactment (No. 19 of 1868) as regards realty, and the rules of the Supreme Court 1903 have introduced the English forms of writs. Quebec and St Lucia, where French law formerly prevailed, have now their own codes of Civil Procedure. The law of execution under the Quebec Code resembles the French, that under the St Lucia Code the English system. In British Guiana and Ceylon, in which Roman Dutch law in one form or another prevailed, the English law of execution has now in substance been adopted (British Guiana Rules of Court, 1900, Order xxxvi.)., Ceylon (Code of Civil Procedure, No. 2 of 1889); the modes of execution in the South African Colonies are also the subject of local enactment, largely influenced by English law (cf. the Sheriffs’ Ordinance, 1902, No. 9 of 1902), (Orange River Colony) and (Proclamation 17 of 1902), Transvaal (Nathan, Common Law of South Africa, vol. iv. p. 2206); and generally, Van Zyl, Judicial Practice of South Africa, pp. 198 et seq.
United States.—Execution in the United States is founded upon English law, which it closely resembles. Substantially the same forms of execution are in force. The provisions of the Statute of Frauds making the lien of execution attach only on delivery to the sheriff were generally adopted in America, and are still law in many of the states. The law as to the rights and duties of sheriffs is substantially the same as in England. The “homestead laws” (q.v.) which are in force in nearly all the American States exempt a certain amount or value of real estate occupied by a debtor as his homestead from a forced sale for the payment of his debts. This homestead legislation has been copied in some British colonies, e.g. Western Australia (No. 37 of 1898, Pt. viii.), Quebec (Rev. Stats., ss. 1743–1748), Manitoba (Rev. Stats., 1902, c. 58, s. 29, c. 21, s. 9), Ontario (Rev. Stats., 1897, c. 29), British Columbia (Rev. Stats., 1897, c. 93), New South Wales (Crown Lands Act 1895, Pt. iii.), New Zealand (Family Homes Protection Act 1895, No. 20 of 1895).
France.—Provisional execution (saisie-arrêt) with a view to obtain security has been already mentioned. Execution against personalty (saisie-exécution) is preceded by a commandement or summons, personally served upon, or left at the domicile of the debtor calling on him to pay. The necessary bedding of debtors and of their children residing with them, and the clothes worn by them, cannot be seized in execution under any circumstances. Objects declared by law to be immovable by destination (immeubles par destination), such as beasts of burden and agricultural implements, books relating to the debtor’s profession, to the value of 300 francs, workmen’s tools, military equipments, provisions and certain cattle cannot be seized, even for a debt due to Government, unless in respect of provisions furnished to the debtor, or amounts due to the manufacturers or vendors of protected articles or to parties who advanced moneys to purchase, manufacture or repair them. Growing fruits cannot be seized except during the six weeks preceding the ordinary period when they become ripe. Execution against immovable property (la saisie immobilière) is preceded also by a summons to pay, and execution cannot issue until the expiry of 30 days after service of such summons (see further Code Proc. Civ., Arts. 673-689). Imprisonment for debt was abolished in all civil and commercial matters by the law of 22nd of July 1867, which extends to foreigners. It still subsists in favour of the State for non-payment of fines, &c. The French system is in substance in force in Belgium (Code Civ. Proc., Arts. 51 et seq.), the Netherlands (Code Civ. Proc., Arts. 430 et seq.), Italy (Code Civ. Proc., Arts. 553 et seq., 659 et seq.), and Spain.
Germany.—Under the German Code of Civil Procedure (Arts. 796 et seq.), both the goods and (if the goods do not offer adequate security) the person of the debtor may be seized (the process is called arrest) as a guarantee of payment. The debtor’s goods cannot be sold except in pursuance of a judgment notified to the debtor either before or within a prescribed period after the execution (Art. 809 [3], and law of 30th of April 1886). Imprisonment for debt in civil and commercial matters has been abolished or limited on the lines of the French law of 1867 in many countries (e.g. Italy, law of the 6th of December 1877; Belgium, law of the 27th of July 1871; Greece, law of the 9th of March 1900; Russia, decree of the 7th of March 1879).
Authorities.—Anderson, Execution (London, 1889); Annual Practice (London, 1908); Johnston Edwards, Execution (London, 1888); Mather, Sheriff Law (London, 1903). As to Scots law, Mackay, Manual of Practice (Edinburgh, 1893). As to American law, Bingham, Judgments and Executions (Philadelphia, 1836); A. C. Freeman, Law of Execution, Civil Cases (3rd ed., San Francisco, 1900); H. M. Herman, Law of Executions (New York, 1875); American Notes to tit. “Execution,” in Ruling Cases (London and Boston, 1897); Bouvier, Law Dict., ed. Rawle (1897), s.v. “Execution.”
EXECUTORS AND ADMINISTRATORS, in English law, those
persons upon whom the property of a deceased person both real
and personal devolves according as he has or has not left a will.
Executors differ from administrators both in the mode of their
creation and in the date at which their estate vests. An executor
can only be appointed by the will of his testator; such appointment
may be express or implied, and in the latter case he is said
to be an executor “according to the tenor.” The estate of an
executor vests in him from the date of the testator’s death. An
administrator on the other hand is appointed by the probate
division of the High Court, and his estate does not vest till such
appointment, the title to the property being vested till then in
the judge of the probate division. As to whom the court will
appoint administrators and the various kinds of administrators
see under Administration. Apart from these two points the
rights and liabilities of executors and administrators are the
same, and they may be indifferently referred to as the representative
of the deceased. As to their appointment before the
establishment of the court of probate see articles Will and
Intestacy. Before the Land Transfer Act 1897, the real estate
of the deceased did not devolve upon the representative but
vested directly in the devisee or heir-at-law, but by that act
it was provided that the personal representative should be also
the real representative, and therefore it may now be said broadly
that the representative takes the whole estate of the deceased.
There are, however, a few minor exceptions to this rule, of which
the most important are lands held in joint tenancy and copyhold
lands. As the representative stands in the shoes of the deceased
he is entitled to sue upon any contract or for any debt which the
deceased might have sued in his lifetime.
The duties of a representative are as follows: 1. To bury the deceased in a manner suitable to the estate he leaves behind him; and the expenses of such funeral take precedence of any duty or debt whatever; but extravagant expenses will not be allowed. No rule can be laid down as to what is a reasonable allowance for this purpose, as it is impossible to know at the time of the funeral what the estate of the deceased may amount to. The broad rule is that the representative must allow such sum as seems reasonable, having regard to all the circumstances of the case and the conditions in life of the deceased, remembering that if he should exceed this he will be personally liable for such excess in the event of the estate proving insolvent.
2. He must obtain probate or letters of administration to the deceased within six months of the death, or, if such grant be disputed, within two months of the determination of such suit. The penalty for not doing so is fixed by the Stamp Act 1815, § 37, at £100, and an additional stamp duty at the rate of 10%. As to the formalities of Probate see that article.
3. Strictly speaking, he must compile an inventory of all the estate of the deceased, whether in possession or outstanding, and he is to deliver it to the court on oath. He is to collect all the goods so inventoried and to commence actions to get in all those outstanding, and he is responsible to creditors for the whole of such estate, whether in possession or in action. This duty is thrown upon the representative by an act of 1529, but it is not the modern practice to exhibit such inventory unless he be cited for it in the spiritual court at the instance of a party interested. It is, however, necessary to file an affidavit setting out the value of the estate of the deceased upon applying for a grant of probate or letters of administration.
4. The representative must pay the debts of the deceased according to their priority. Next to the legitimate funeral expenses come the costs of proving and administering the estate; in the event, however, of the funeral and testamentary expenses being charged by the will upon any particular fund, they will be primarily payable out of that fund. The representative must be careful to pay the debts according to the rules of priority, otherwise he will become personally liable to the creditors of one degree if he has exhausted the estate in paying creditors of a lesser degree. First of all, a solicitor has a lien for his costs upon any fund or duty which he has recovered for the deceased; next in order come debts due to the crown by record or speciality; then debts given a priority by statute, as, for example, by the Poor Relief Act 1743, money due by an overseer of the poor to his parish. Next, debts of record, i.e.
