execution


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Execution

The carrying out of some act or course of conduct to its completion. In Criminal Law, the carrying out of a death sentence.

The process whereby an official, usually a sheriff, is directed by an appropriate judicial writ to seize and sell as much of a debtor's nonexempt property as is necessary to satisfy a court's monetary judgment.

With respect to contracts, the performance of all acts necessary to render a contract complete as an instrument, which conveys the concept that nothing remains to be done to make a complete and effective contract.

With regard to seizures of property, executions are authorized in any action or proceeding in which a monetary judgment is recoverable and in any other action or proceeding when authorized by statute. For example, the victim of a motor vehicle accident may institute a civil lawsuit seeking damages from another party. If the plaintiff wins the lawsuit and is awarded money from the defendant as a part of the verdict, the court may authorize an execution process to pay the debt to the plaintiff.

Ordinarily, execution is achieved through a legal device known as a writ of execution. The writ serves as proof of the property owed by the defendant, who is called the Judgment Debtor, to the plaintiff, or Judgment Creditor. The writ of execution commands an officer of the court, usually a sheriff, to take the property of the debtor to satisfy the debt. Ordinarily, a writ of execution cannot be issued until after an appropriate court issues a judgment or decree determining the rights and liabilities of the parties involved.

Any type of Personal Property is subject to seizure under an execution, provided existing laws do not prescribe specific exemptions. Such property may include jewelry, money, and stocks. In most states, real property, including land, is also subject to execution. Intellectual Property, which includes Patents, copyrights, and Trademarks, is generally immune to execution.An execution on a judgment is typically issued by the clerk of the court in which the judgment was rendered. The clerk cannot issue an execution unless directed to do so by the judgment creditor or the judgment creditor's attorney. The time within which an execution must issue varies from one jurisdiction to another. The writ must be delivered to the sheriff or his or her deputy before it can properly be said that the writ has been issued.

The levy of the execution is the act by which the officer of the court appropriates the judgment debtor's property to satisfy the command of the writ. The levy must be made by an officer duly qualified to act under the terms of the writ. In most states, the judgment debtor has the right to select and indicate to the officer the property upon which the levy is to be made.

An execution creates a lien that gives the judgment creditor qualified control of the judgment debtor's property. In most jurisdictions, an execution lien binds all property, personal or real, that is subject to levy. It is sometimes called a general lien because it attaches to all the defendant's property.

After the sheriff has levied, it is her or his duty to sell the property seized. An execution sale is a sale of property by a sheriff as an officer acting under the writ of execution. An execution sale should be conducted so as to promote competition and obtain the best price. If necessary, the sheriff can employ an auctioneer as an agent to sell the property, in order to procure the most favorable price and to collect the proceeds.

Body Executions

Execution against a person is by writ of capias ad satisfaciendum (Latin for "to take the body to court to pay the debt"). Under this writ, the sheriff arrests and imprisons the defendant until the defendant satisfies the judgment or is discharged from doing so. Such an execution is not intended as punishment for failure to pay the judgment. It is permitted for the purpose of compelling the debtor to reveal property fraudulently withheld from his or her creditor and from which the judgment can be satisfied.

In most jurisdictions, defendants in lawsuits based on contracts are not subject to body executions unless they have committed Fraud. Under the statutes in some jurisdictions, imprisonment for debt has been abolished entirely.

Statutes providing for the issuance of body executions to enforce judgments handed down in civil suits ordinarily do not conflict with provisions against imprisonment for debt. Among the civil, or tort, actions in which the writ is generally allowed are those involving fraud or deceit, and those for neglect or misconduct in office or professional employment. A body execution is also generally proper in actions to recover for injuries to person or reputation, including Libel and Slander, and in actions to recover for Malicious Prosecution.

Further readings

Gridley, Doreen J. 1995. "The Immunity of Intangible Assets from a Writ of Execution." Indiana Law Review 28.

Cross-references

Capital Punishment.

execution

n. 1) the act of getting an officer of the court to take possession of the property of a losing party in a lawsuit (judgment debtor) on behalf of the winner (judgment creditor), sell it and use the proceeds to pay the judgment. The procedure is to take the judgment to the clerk of the court and have a writ of execution issued which is taken to the sheriff (or marshal, constable or other authorized official) with instructions on what property to execute upon. In the case of real property the official must first levy (place a lien on the title), and then execute upon it (seize it.) However, the judgment debtor (loser in the lawsuit) may pay the judgment and costs before sale to redeem real estate. This is one of the creditor's rights. 2) carrying out a death sentence. (See: writ of execution, death penalty)

execution

completion or satisfaction.
1 the signing of a deed or will or other written instrument with the intent that it should be legally valid and effective.
2 the carrying out of a court order such as a sentence of death.
3 performance of a contract.

EXECUTION, contracts. The accomplishment of a thing; as the execution of a bond and warrant of attorney, which is the signing, sealing, and delivery of the same.

EXECUTION, crim. law. The putting a convict to death, agreeably to law, in pursuance of his sentence.

EXECUTION, practice. The act of carrying into effect the final judgment of a court, or other jurisdiction. The writ which authorizes the officer so to carry into effect such judgment is also called an execution.
     2. A distinction has been made between an execution which is used to make the money due on a judgment out of the property of the defendant, and which is called a final execution; and one which tends to an end but is not absolutely final, as a capias ad satisfaciendum, by virtue of which the body of the defendant is taken, to the intent that the plaintiff shall be satisfied his debt, &c., the imprisonment not being absolute, but until he shall satisfy the same; this is called an execution quousque. 6 Co. 87.
     3. Executions are either to recover specific things, or money. 1. Of the first class are the writs of habere facias seisinam.; (q.v.) habere facias possessionem; (q.v.) retorno habendo; (q.v.) distringas. (q.v.) 2. Executions for the recovery of money are those which issue against the body of the defendant, as the capias ad satisfaciendum, (q.v.); an attachment, (q.v.); those which issue against his goods and chattels; namely, the fieri facias, (q.v.); the, venditioni exponas, (q.v.); those which issue against his lands, the levari facias; (q.v.) the liberari facias; the elegit. (q.v.) Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h.t.; Com. Dig. h.t.; the various Digests, h.t.; Tidd's Pr. Index, h.t.; 3 Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave to amend an execution so as to make it conformable to the judgment on which it was issued. 1 Serg. & R. 98. A writ of error lies on an award of execution. 5 Rep. 32, a; 1 Rawle, Rep. 47, 48; Writ of Execution;

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