(D. Mn.)
EXCRETION(Lat.ex, out of,cernere,cretum, to separate), in plant and animal physiology, the separation from an organ of some substance, also the substance separated. The term usually refers to the separation of waste or harmful products, as distinguished from “secretion,” which refers to products that play a useful or necessary part in the functions of the organism.
EXECUTION(from Lat.ex-sequor,exsecutus, follow or carry out), the carrying into effect of anything, whether a rite, a piece of music, an office, &c. ; and so sometimes involving a notion of skill in the performance. Technically, the word is used in law in theexecutionof a deed (its formal signing and sealing), anexecution(see below) by the sheriff’s officers under a “writ of execution” (the enforcement of a judgment on a debtor’s goods); andexecution of deathhas been shortened to the one word to denoteCapital Punishment(q.v.).
Civil Executionmay be defined as the process by which thejudgments or orders of courts of law are made effectual. In Roman law the earliest mode of execution was the seizure, legalized by theactio per manus injectionem, of the debtor as a slave of the creditor. During the later Republic, imprisonment took the place of slavery. Under the régime of theactio per manus injectionem, the debtor might dispute the debt—the issue being raised by his finding a substitute (vindex) to conduct the case for him. By the time of Gaius (iv. 25) theactio per manus injectionemhad been superseded by theactio judicati, the object of which was to enable the creditor to take payment of the debt or compel the debtor to find security (pignus in causa judicati captum: Cautio judicatum solvi), and inA.D.320 Constantine abolished imprisonment for debt, unless the debtor were contumacious. The time allowed for payment of a judgment debt was by the XII. Tables 30 days; it was afterwards extended to two months, and ultimately, by Justinian, to four months. The next stage in the Roman law of execution was the recognition of bankruptcy either against the will of the bankrupt (missio in bona) or on the application of the bankrupt (cessio bonorum; and seeBankruptcy). Lastly, in the time of Antoninus Pius, judgment debts were directly enforced by the seizure and sale of the debtor’s property. Slaves, oxen and implements of husbandry were privileged; and movable property was to be exhausted before recourse was had to land (see Hunter,Roman Law, 4th ed. pp. 1029 et seq., Sohm,Inst. Rom. Law, 2nd ed. pp. 302-305).
Great Britain.—The English law of execution is very complicated, and only a statement of the principal processes can here be attempted.High Court.—Fieri Facias.A judgment for the recovery of money or costs is enforced, as a rule, by writ offieri faciasaddressed to the sheriff, and directing him to cause to be made (fieri facias) of the goods and chattels of the debtor a levy of a sum sufficient to satisfy the judgment and costs, which carry interest at 4% per annum. The seizure effected by the sheriff or his officer, under this writ, of the property of the debtor, is what is popularly known as “the putting-in” of an execution. The seizure should be carried out with all possible despatch. The sheriff or his officer must not break open the debtor’s house in effecting a seizure, for “a man’s house is his castle” (Semayne’s Case[1604], 5 Coke Rep. 91); but this principle applies only to a dwelling-house, and a barn or outhouse unconnected with the dwelling-house may be broken into. The sheriff on receipt of the writ endorses on it the day, hour, month and year when he received it; and the writ binds the debtor’s goods as at the date of its delivery, except as regards goods sold before seizure in market overt, or purchased for value, without notice before actual seizure (Sale of Goods Act 1893, s. 26, which supersedes s. 16 of the Statute of Frauds and s. 1 of the Mercantile Law Amendment Act 1856). This rule is limited to goods, and does not apply to the money or bank notes of the debtor which are not bound by the writ till seized under it (Johnsonv.Pickering, Oct. 14, 1907, C.A.). The mere seizure of the goods, however, although, subject to such exceptions as those just stated, it binds the interest of the debtor, and gives the sheriff such an interest in the goods as will enable him to sue for the recovery of their possession, does not pass the property in the goods to the sheriff. The goods are in the custody of the law. But the property remains in the debtor who may get rid of the execution on payment of the claim and fees of the sheriff [as to which see Sheriffs Act 1887, s. 20, and order of 21st of August 1888,Annual Practice(1908), vol. ii. p. 278]. The wearing apparel, bedding, tools, &c. , of the debtor to the value of £5 are protected. Competing claims as to the ownership of the goods seized are brought before the courts by the procedure of “interpleader.” After seizure, the sheriff must retain possession, and, in default of payment by the execution debtor, proceed to sell. Where the judgment debt, including legal expenses, exceeds £20, the sale must be by public auction, unless the Court otherwise orders, and must be publicly advertised. The proceeds of sale, after deduction of the sheriff’s fees and expenses, become the property of the execution creditor to the extent of his claim. The Bankruptcy Act 1890 (53 & 54 Vict. c. 71, s. 11 [2]) requires the sheriff in case of sale under a judgment for a sum exceeding £20 to hold the proceeds for 14 days in case notice of bankruptcy proceedings should be served upon him (seeBankruptcy). The form of the writ offieri faciasrequires the sheriff to make a return to the writ. In practice this is seldom done unless the execution has been ineffective or there has been delay in the execution of the writ; but the judgment creditor may obtain an order calling on the sheriff to make a return. A sheriff or his officer, who is guilty of extortion in the execution of the writ, is liable to committal for contempt, and to forfeit £200 and pay all damages suffered by the person aggrieved (Sheriffs Act 1887 [50 & 51 Vict. c. 55], s. 29 [2]), besides being civilly liable to such person. Imprisonment for debt in execution of civil judgments is now abolished except in cases of default in the nature of contempt, unsatisfied judgments for penalties, defaults by persons in a fiduciary character, and defaults by judgment debtors (Debtors Act 1869 [32 & 33 Vict. c. 62]; Bankruptcy Act 1883 [46 & 47 Vict. c. 52], ss. 53, 103). Imprisonment for debt has been abolished within similar limits in Scotland (Debtors [Scotland] Act 1880 [43 & 44 Vict. c. 34] and Ireland, Debtors [Ireland] Act 1872, 35 & 36 Vict. c. 57). There may still be imprisonment in England, under the writ—rarely used in practice—ne exeat regno, which issues to prevent a debtor from leaving thekingdom.Writ of Elegit.—The writ ofelegitis a process enabling the creditor to satisfy his judgment debt out of the lands of the debtor. It derives its name from the election of the creditor in favour of this mode of recovery. It is founded on the Statute of Westminster (1285, 13 Ed. I. c. 18), under which the sheriff was required to deliver to the creditor all the chattels (except oxen and beasts of the plough) andhalfthe lands of the debtor until the debt was satisfied. By the Judgments Act 1838 the remedy was extended toallthe debtor’s lands, and by the Bankruptcy Act 1883 the writ no longer extends to the debtor’s goods. The writ is enforceable against legal interests whether in possession or remainder (Hood-Barrsv.Cathcart, 1895, 2 Ch. 411), but not against equitable interests in land (Earl of Jerseyv.Uxbridge Rural Sanitary Authority, 1891, 3 Ch. 183). When the debtor’s interest is equitable, recourse is had to equitable execution by the appointment of a receiver or to bankruptcy proceedings.The writ is directed to the sheriff, who, after marking on it the date of its receipt, at once in pursuance of its directions holds an inquiry with a jury as to the nature and value of the interest of the debtor in the lands extended under the writ, and delivers to the creditor at a reasonable price and extent in accordance with the writ, the lands of which the debtor was possessed in the bailiwick. When the sheriff has returned and filed a record (in the central office of the High Court) of the writ and the execution thereof, the execution creditor becomes “tenant to the elegit.” Where the land is freehold the creditor acquires only a chattel interest in it; where the land is leasehold he acquires the whole of the debtor’s interest (Johnsv.Pink, 1900, 1 Ch. 296). The creditor is entitled to hold the land till his debt is satisfied, or enough to satisfy it is tendered to him, and under the Judgments Act 1864 the creditor may obtain an order for sale. Until the land is delivered on execution and the writs which have effected the delivery are registered in the Land Registry, the judgment does not create any charge on the land so as to fetter the debtor’s power of dealing with it. Land Charges Registration Acts 1888 and 1900. (See R.S.C., O. xliii.)Writs of Possession and Delivery.—Judgments for the recovery or for the delivery of the possession of land are enforceable by writ of possession. The recovery of specific chattels is obtained by writ of delivery (R.S.C., O. xlvii., xlviii.).Writ of Sequestration.—Where a judgment directing the payment of money into court, or the performance by the defendant of any act within a limited time, has not been complied with, or where a corporation has wilfully disobeyed a judgment, a writ of sequestration is issued, to not less than four sequestrators, ordering them to enter upon the real estate of the party in default, and “sequester” the rents and profits until the judgment has been obeyed (R.S.C., O. xliii. r. 6).Equitable Execution.—Where a judgment creditor is otherwise unable to reach the property of his debtor he may obtain equitable execution, usually by the appointment of a receiver, who collects the rents and profits of the debtor’s land for the benefit of the creditor (R.S.C., O. l. rr. 15a-22). But receivers may be appointed of interests in personal property belonging to the debtor by virtue of the Judicature Act 1873, s. 25 (8).Attachment.—A judgment creditor may “attach” debts due by third parties to his debtor by what are known as garnishee proceedings. Stock and shares belonging to a judgment debtor may be charged by a charging order, so as, in the first instance, to prevent transfer of the stock or payment of the dividends, and ultimately to enable the judgment creditor to realise his charge. A writ of attachment of the person of a defaulting debtor or party may be obtained in a variety of cases akin to contempt (e.g.against a person failing to comply with an order to answer interrogatories, or against a solicitor not entering an appearance in an action, in breach of his written undertaking to do so), and in the cases where imprisonment for debt is still preserved by the Debtors Act 1869 (R.S.C., O. xliv.).Contempt of Court(q.v.) in its ordinary forms is also punishable by summary committal.County Courts.—In the county courts the chief modes of execution are “warrant of execution in the nature of a writ offieri facias”; garnishee proceedings; equitable execution; warrants of possession and delivery, corresponding to the writs of possession and delivery above mentioned; committal, where a judgment debtor has, or, since the date of the judgment has had, means to pay his debt; and attachment of the person for contempt of court. If the judgment debtor assaults the bailiff or his officer or rescues the goods, he is liable to a fine not exceeding £5.Scotland.—The principal modes of execution or “diligence” in Scots law are (i.) Arrestment and furthcoming, which corresponds to the English garnishee proceedings; (ii.) arrestmentjurisdictionis fundandae causa,i.e.the seizure of movables within the jurisdictionto 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 Frenchsaisie-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 undermeditatione fugaewarrant, corresponding to the old English writ ofne 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 FrenchCode de procédure civileare 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 acommandementor 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 CivilProcedure(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 calledarrest) 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 totit.“Execution,” inRuling Cases(London and Boston, 1897); Bouvier,Law Dict., ed. Rawle (1897),s.v.“Execution.”
Great Britain.—The English law of execution is very complicated, and only a statement of the principal processes can here be attempted.
High Court.—Fieri Facias.A judgment for the recovery of money or costs is enforced, as a rule, by writ offieri faciasaddressed to the sheriff, and directing him to cause to be made (fieri facias) of the goods and chattels of the debtor a levy of a sum sufficient to satisfy the judgment and costs, which carry interest at 4% per annum. The seizure effected by the sheriff or his officer, under this writ, of the property of the debtor, is what is popularly known as “the putting-in” of an execution. The seizure should be carried out with all possible despatch. The sheriff or his officer must not break open the debtor’s house in effecting a seizure, for “a man’s house is his castle” (Semayne’s Case[1604], 5 Coke Rep. 91); but this principle applies only to a dwelling-house, and a barn or outhouse unconnected with the dwelling-house may be broken into. The sheriff on receipt of the writ endorses on it the day, hour, month and year when he received it; and the writ binds the debtor’s goods as at the date of its delivery, except as regards goods sold before seizure in market overt, or purchased for value, without notice before actual seizure (Sale of Goods Act 1893, s. 26, which supersedes s. 16 of the Statute of Frauds and s. 1 of the Mercantile Law Amendment Act 1856). This rule is limited to goods, and does not apply to the money or bank notes of the debtor which are not bound by the writ till seized under it (Johnsonv.Pickering, Oct. 14, 1907, C.A.). The mere seizure of the goods, however, although, subject to such exceptions as those just stated, it binds the interest of the debtor, and gives the sheriff such an interest in the goods as will enable him to sue for the recovery of their possession, does not pass the property in the goods to the sheriff. The goods are in the custody of the law. But the property remains in the debtor who may get rid of the execution on payment of the claim and fees of the sheriff [as to which see Sheriffs Act 1887, s. 20, and order of 21st of August 1888,Annual Practice(1908), vol. ii. p. 278]. The wearing apparel, bedding, tools, &c. , of the debtor to the value of £5 are protected. Competing claims as to the ownership of the goods seized are brought before the courts by the procedure of “interpleader.” After seizure, the sheriff must retain possession, and, in default of payment by the execution debtor, proceed to sell. Where the judgment debt, including legal expenses, exceeds £20, the sale must be by public auction, unless the Court otherwise orders, and must be publicly advertised. The proceeds of sale, after deduction of the sheriff’s fees and expenses, become the property of the execution creditor to the extent of his claim. The Bankruptcy Act 1890 (53 & 54 Vict. c. 71, s. 11 [2]) requires the sheriff in case of sale under a judgment for a sum exceeding £20 to hold the proceeds for 14 days in case notice of bankruptcy proceedings should be served upon him (seeBankruptcy). The form of the writ offieri faciasrequires the sheriff to make a return to the writ. In practice this is seldom done unless the execution has been ineffective or there has been delay in the execution of the writ; but the judgment creditor may obtain an order calling on the sheriff to make a return. A sheriff or his officer, who is guilty of extortion in the execution of the writ, is liable to committal for contempt, and to forfeit £200 and pay all damages suffered by the person aggrieved (Sheriffs Act 1887 [50 & 51 Vict. c. 55], s. 29 [2]), besides being civilly liable to such person. Imprisonment for debt in execution of civil judgments is now abolished except in cases of default in the nature of contempt, unsatisfied judgments for penalties, defaults by persons in a fiduciary character, and defaults by judgment debtors (Debtors Act 1869 [32 & 33 Vict. c. 62]; Bankruptcy Act 1883 [46 & 47 Vict. c. 52], ss. 53, 103). Imprisonment for debt has been abolished within similar limits in Scotland (Debtors [Scotland] Act 1880 [43 & 44 Vict. c. 34] and Ireland, Debtors [Ireland] Act 1872, 35 & 36 Vict. c. 57). There may still be imprisonment in England, under the writ—rarely used in practice—ne exeat regno, which issues to prevent a debtor from leaving thekingdom.
Writ of Elegit.—The writ ofelegitis a process enabling the creditor to satisfy his judgment debt out of the lands of the debtor. It derives its name from the election of the creditor in favour of this mode of recovery. It is founded on the Statute of Westminster (1285, 13 Ed. I. c. 18), under which the sheriff was required to deliver to the creditor all the chattels (except oxen and beasts of the plough) andhalfthe lands of the debtor until the debt was satisfied. By the Judgments Act 1838 the remedy was extended toallthe debtor’s lands, and by the Bankruptcy Act 1883 the writ no longer extends to the debtor’s goods. The writ is enforceable against legal interests whether in possession or remainder (Hood-Barrsv.Cathcart, 1895, 2 Ch. 411), but not against equitable interests in land (Earl of Jerseyv.Uxbridge Rural Sanitary Authority, 1891, 3 Ch. 183). When the debtor’s interest is equitable, recourse is had to equitable execution by the appointment of a receiver or to bankruptcy proceedings.
The writ is directed to the sheriff, who, after marking on it the date of its receipt, at once in pursuance of its directions holds an inquiry with a jury as to the nature and value of the interest of the debtor in the lands extended under the writ, and delivers to the creditor at a reasonable price and extent in accordance with the writ, the lands of which the debtor was possessed in the bailiwick. When the sheriff has returned and filed a record (in the central office of the High Court) of the writ and the execution thereof, the execution creditor becomes “tenant to the elegit.” Where the land is freehold the creditor acquires only a chattel interest in it; where the land is leasehold he acquires the whole of the debtor’s interest (Johnsv.Pink, 1900, 1 Ch. 296). The creditor is entitled to hold the land till his debt is satisfied, or enough to satisfy it is tendered to him, and under the Judgments Act 1864 the creditor may obtain an order for sale. Until the land is delivered on execution and the writs which have effected the delivery are registered in the Land Registry, the judgment does not create any charge on the land so as to fetter the debtor’s power of dealing with it. Land Charges Registration Acts 1888 and 1900. (See R.S.C., O. xliii.)
Writs of Possession and Delivery.—Judgments for the recovery or for the delivery of the possession of land are enforceable by writ of possession. The recovery of specific chattels is obtained by writ of delivery (R.S.C., O. xlvii., xlviii.).
Writ of Sequestration.—Where a judgment directing the payment of money into court, or the performance by the defendant of any act within a limited time, has not been complied with, or where a corporation has wilfully disobeyed a judgment, a writ of sequestration is issued, to not less than four sequestrators, ordering them to enter upon the real estate of the party in default, and “sequester” the rents and profits until the judgment has been obeyed (R.S.C., O. xliii. r. 6).
Equitable Execution.—Where a judgment creditor is otherwise unable to reach the property of his debtor he may obtain equitable execution, usually by the appointment of a receiver, who collects the rents and profits of the debtor’s land for the benefit of the creditor (R.S.C., O. l. rr. 15a-22). But receivers may be appointed of interests in personal property belonging to the debtor by virtue of the Judicature Act 1873, s. 25 (8).
Attachment.—A judgment creditor may “attach” debts due by third parties to his debtor by what are known as garnishee proceedings. Stock and shares belonging to a judgment debtor may be charged by a charging order, so as, in the first instance, to prevent transfer of the stock or payment of the dividends, and ultimately to enable the judgment creditor to realise his charge. A writ of attachment of the person of a defaulting debtor or party may be obtained in a variety of cases akin to contempt (e.g.against a person failing to comply with an order to answer interrogatories, or against a solicitor not entering an appearance in an action, in breach of his written undertaking to do so), and in the cases where imprisonment for debt is still preserved by the Debtors Act 1869 (R.S.C., O. xliv.).Contempt of Court(q.v.) in its ordinary forms is also punishable by summary committal.
County Courts.—In the county courts the chief modes of execution are “warrant of execution in the nature of a writ offieri facias”; garnishee proceedings; equitable execution; warrants of possession and delivery, corresponding to the writs of possession and delivery above mentioned; committal, where a judgment debtor has, or, since the date of the judgment has had, means to pay his debt; and attachment of the person for contempt of court. If the judgment debtor assaults the bailiff or his officer or rescues the goods, he is liable to a fine not exceeding £5.
Scotland.—The principal modes of execution or “diligence” in Scots law are (i.) Arrestment and furthcoming, which corresponds to the English garnishee proceedings; (ii.) arrestmentjurisdictionis fundandae causa,i.e.the seizure of movables within the jurisdictionto 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 Frenchsaisie-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 undermeditatione fugaewarrant, corresponding to the old English writ ofne 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 FrenchCode de procédure civileare 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 acommandementor 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 CivilProcedure(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 calledarrest) 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 totit.“Execution,” inRuling 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 underAdministration. 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 articlesWillandIntestacy. 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 ofProbatesee 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.judgment recovered against the deceased in any court of record; all such debts are equal among themselves, but a judgment creditor who has sued out execution is preferred to one who has not; another class of debts of record are statutes merchant and staple, or recognizances in the nature of statute staple,i.e.bonds of record acknowledged before the lord mayor of London or the mayor of the staple. Last in the order of debts come specialty and simple contract debts, which by Hinde Palmer’s Act (the Executors Act 1869) are of equal degree, though as between specialty debts bonds given for value rank before voluntary bonds unless assigned for value, and as between simple contract debts those due to the crown have priority. Though the creditors can if necessary take all the estate of the deceased to satisfy their claims, yet as between the various classes of assets the representative must pay the debts out of assets in the following order: (i.) General personal estate not specifically bequeathed nor exempted from payment of debts; (ii.) real estate appropriated to debts; (iii.) real estate descended; (iv.) real estate devised charged with payment of debts; (v.) general pecuniary legaciespro rata; (vi.) specific legacies and devises; (vii.) real estate over which a general power of appointment has been exercised by will; (viii.) the widow’s paraphernalia.5. The debts of the deceased being satisfied, the representative must next proceed to satisfy the legacies and devises left by the testator. In order to enable him to do this with safety to himself, it is provided that he cannot be compelled to divide the estate among the legatees or next of kin until twelve months from the death of the deceased (this is commonly known as “the executor’s year”), though if there is no doubt as to the solvency of the estate he may do so at once. As a further protection the representative may give notice by advertisement for creditors to send in their claims against the estate, and on expiration of the notices he may proceed to divide the estate, though even then the creditor may follow the assets to the person who has received them and recover for his debt. As between legatees the following priorities must be observed: (1) Specific legatees and devisees, (2) demonstrative legatees, and (3) general legatees; and as to this last class the testator can give priority to one over another. If there are not sufficient assets to pay the general legatees they must abate rateably. Legacies were not payable out of the real estate prior to the Land Transfer Act 1897, unless the testator charged the realty with them. Even then unless the testator exonerates his personalty from payment of the legacies the personalty will be the first fund chargeable. It has been suggested that the effect of the act is to make the realty chargeablepro ratawith the personalty, but this is doubtful.6. The residue, after all legacies and devises are satisfied, must, if there be a will, be paid to the residuary legatee therein named, and if there be no will the real estate will go to the heir (seeInheritance) and the personalty to the next of kin (seeIntestacy). It was held at one time that in default of a residuary legatee the residue fell to the executor himself, but now nothing less than the expressed intention of the testator can give it to him.The liabilities of the representative may be shortly stated. He is liable in his representative capacity in all cases where the deceased would be liable were he alive. To this general rule there are some exceptions. The representative cannot be sued for breach of a contract for personal services which can be performed only in the lifetime of the person contracting, nor again can he be sued in a case where unliquidated damages only could have been recovered against the deceased. He is liable in his personal capacity in the following cases: if he contracts to pay a debt due by the deceased, or if having admitted that he had assets in his hands sufficient to pay a debt or legacy he has misapplied such assets so that he cannot satisfy them; or lastly, if by mismanaging the estate and effects of the deceased he has made himself liable for adevastavit. Shortly stated, a representative is bound to exercise the ordinary care of a business man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own negligence, or by the negligence of a co-representative which his act or neglect has rendered possible. Though the general rule ofdelegatus non potest delegariholds good of a representative, yet in certain cases he may “rely upon skilled persons in matters in which he cannot be expected to be experienced,”e.g.he must employ solicitors to conduct a lawsuit.The privileges of the representative are these: he may prefer one creditor to another of equal degree; he may retain a debt owing to him from the deceased as against other creditors of equal degree (seeRetainer); he may reimburse himself out of the estate all expenses incurred in the execution of his trust.An executorde son tortis one who, without any title to do so, wrongfully intermeddles with the assets of the deceased, dealing with them in such a way as to hold himself out as executor. In such a case he is subject to all the liabilities of an executor, and can claim none of the privileges. He may be treated by the creditor as the executor, and, if he is really assuming to act as executor, creditors and legatees will get a good title from him, but he is liable to be sued by the rightful representative for damages for interfering with the property of the deceased.Scotland.—Executor in Scots law is a more extensive term than in English. He is either nominative or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, not from the former. By the common law doctrine of passive representation the heir or executor was liable to be sued for implement of the deceased’s obligations. The Roman principle ofbeneficium inventariiwas first introduced by an act of 1695. As the law at present stands, the heir or executor is liable only to the value of the succession, except where there has been vitious intromission in movables, and ingestio pro haerede(behaviour as heir) and other cases in heritables. The present inventory duty on succession to movables and heritables depends on the Finance Acts 1894-1909 (seeEstate Duty). In England the executor is bound to pay the debts of the deceased in a certain order, but in Scotland they all rankpari passuexcept privileged debts (seePrivilege).Authorities.—R.L. Vaughan Williams,The Law of Executors and Administrators; W.G. Walker,Compendium on the Law of Executors and Administrators; James Schouler,Law of Executors and Administrators(3rd ed., Boston, 1901).
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 ofProbatesee 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.judgment recovered against the deceased in any court of record; all such debts are equal among themselves, but a judgment creditor who has sued out execution is preferred to one who has not; another class of debts of record are statutes merchant and staple, or recognizances in the nature of statute staple,i.e.bonds of record acknowledged before the lord mayor of London or the mayor of the staple. Last in the order of debts come specialty and simple contract debts, which by Hinde Palmer’s Act (the Executors Act 1869) are of equal degree, though as between specialty debts bonds given for value rank before voluntary bonds unless assigned for value, and as between simple contract debts those due to the crown have priority. Though the creditors can if necessary take all the estate of the deceased to satisfy their claims, yet as between the various classes of assets the representative must pay the debts out of assets in the following order: (i.) General personal estate not specifically bequeathed nor exempted from payment of debts; (ii.) real estate appropriated to debts; (iii.) real estate descended; (iv.) real estate devised charged with payment of debts; (v.) general pecuniary legaciespro rata; (vi.) specific legacies and devises; (vii.) real estate over which a general power of appointment has been exercised by will; (viii.) the widow’s paraphernalia.
5. The debts of the deceased being satisfied, the representative must next proceed to satisfy the legacies and devises left by the testator. In order to enable him to do this with safety to himself, it is provided that he cannot be compelled to divide the estate among the legatees or next of kin until twelve months from the death of the deceased (this is commonly known as “the executor’s year”), though if there is no doubt as to the solvency of the estate he may do so at once. As a further protection the representative may give notice by advertisement for creditors to send in their claims against the estate, and on expiration of the notices he may proceed to divide the estate, though even then the creditor may follow the assets to the person who has received them and recover for his debt. As between legatees the following priorities must be observed: (1) Specific legatees and devisees, (2) demonstrative legatees, and (3) general legatees; and as to this last class the testator can give priority to one over another. If there are not sufficient assets to pay the general legatees they must abate rateably. Legacies were not payable out of the real estate prior to the Land Transfer Act 1897, unless the testator charged the realty with them. Even then unless the testator exonerates his personalty from payment of the legacies the personalty will be the first fund chargeable. It has been suggested that the effect of the act is to make the realty chargeablepro ratawith the personalty, but this is doubtful.
6. The residue, after all legacies and devises are satisfied, must, if there be a will, be paid to the residuary legatee therein named, and if there be no will the real estate will go to the heir (seeInheritance) and the personalty to the next of kin (seeIntestacy). It was held at one time that in default of a residuary legatee the residue fell to the executor himself, but now nothing less than the expressed intention of the testator can give it to him.
The liabilities of the representative may be shortly stated. He is liable in his representative capacity in all cases where the deceased would be liable were he alive. To this general rule there are some exceptions. The representative cannot be sued for breach of a contract for personal services which can be performed only in the lifetime of the person contracting, nor again can he be sued in a case where unliquidated damages only could have been recovered against the deceased. He is liable in his personal capacity in the following cases: if he contracts to pay a debt due by the deceased, or if having admitted that he had assets in his hands sufficient to pay a debt or legacy he has misapplied such assets so that he cannot satisfy them; or lastly, if by mismanaging the estate and effects of the deceased he has made himself liable for adevastavit. Shortly stated, a representative is bound to exercise the ordinary care of a business man in administering the estate of the deceased, and he will be liable for the loss to the estate caused by his own negligence, or by the negligence of a co-representative which his act or neglect has rendered possible. Though the general rule ofdelegatus non potest delegariholds good of a representative, yet in certain cases he may “rely upon skilled persons in matters in which he cannot be expected to be experienced,”e.g.he must employ solicitors to conduct a lawsuit.
The privileges of the representative are these: he may prefer one creditor to another of equal degree; he may retain a debt owing to him from the deceased as against other creditors of equal degree (seeRetainer); he may reimburse himself out of the estate all expenses incurred in the execution of his trust.
An executorde son tortis one who, without any title to do so, wrongfully intermeddles with the assets of the deceased, dealing with them in such a way as to hold himself out as executor. In such a case he is subject to all the liabilities of an executor, and can claim none of the privileges. He may be treated by the creditor as the executor, and, if he is really assuming to act as executor, creditors and legatees will get a good title from him, but he is liable to be sued by the rightful representative for damages for interfering with the property of the deceased.
Scotland.—Executor in Scots law is a more extensive term than in English. He is either nominative or dative, the latter appointed by the court and corresponding in most respects to the English administrator. Caution is required from the latter, not from the former. By the common law doctrine of passive representation the heir or executor was liable to be sued for implement of the deceased’s obligations. The Roman principle ofbeneficium inventariiwas first introduced by an act of 1695. As the law at present stands, the heir or executor is liable only to the value of the succession, except where there has been vitious intromission in movables, and ingestio pro haerede(behaviour as heir) and other cases in heritables. The present inventory duty on succession to movables and heritables depends on the Finance Acts 1894-1909 (seeEstate Duty). In England the executor is bound to pay the debts of the deceased in a certain order, but in Scotland they all rankpari passuexcept privileged debts (seePrivilege).
Authorities.—R.L. Vaughan Williams,The Law of Executors and Administrators; W.G. Walker,Compendium on the Law of Executors and Administrators; James Schouler,Law of Executors and Administrators(3rd ed., Boston, 1901).
EXEDRA,orExhedra(from Gr.ἐξ, out, andἕδρα, a seat), an architectural term originally applied to a seat or recess out of doors, intended for conversation. Such recesses were generally semicircular, as in the important example built by Herodes Atticus at Olympia. In the great Roman thermae (baths) they were of large size, and like apses were covered with a hemispherical vault. An example of these exists at Pompeii in the Street of the Tombs. From Vitruvius we learn that they were often covered over, and they are described by him (v. 11) as places leading out of porticoes, where philosophers and rhetoricians could debate or harangue.
EXELMANS, RENÉ JOSEPH ISIDORE,Count(1775-1852), marshal of France, was born at Bar-le-Duc on the 13th of November 1775. He volunteered into the 3rd battalion of the Meuse in 1791, became a lieutenant in 1797, and in 1798 was aide-de-camp to General Éblé, and in the following year to General Broussier. In his first campaign in Italy he greatly distinguished himself; and in April 1799 he was rewarded for his services by the grade of captain of dragoons. In the same year he took part with honour in the conquest of Naples and was again promoted, and in 1801 he became aide-de-camp to General Murat. He accompanied Murat in the Austrian, Prussian and Polish campaigns of 1805, 1806 and 1807. At the passage of the Danube, and in the action of Wertingen, he specially distinguished himself; he was made colonel for the valour which he displayed at Austerlitz, and general of brigade for his conduct at Eylau in 1807. In 1808 he accompanied Murat to Spain, but was there made prisoner and conveyed to England. On regaining his liberty in 1811 he went to Naples, where King Joachim Murat appointed him grand-master of horse. Exelmans, however, rejoined the French army on the eve of the Russian campaign, and on the field of Borodino won the rank of general of division. In the retreat from Moscow his steadfast courage was conspicuously manifested on several occasions. In 1813 he was made, for services in the campaign of Saxony and Silesia, grand-officer of the Legion of Honour, and in 1814 he reaped additional glory by his intrepidity and skill in the campaign of France. When the Bourbons were restored, Exelmans retained his position in the army. In January 1815 he was tried on an accusation of having treasonable relations with Murat, but was acquitted. Napoleon on his return from Elba made Exelmans a peer of France and placed him in command of the II. cavalry corps, which he commanded in the Waterloo campaign, the battle of Ligny and Grouchy’s march on Wavre. In the closing operations round Paris Exelmans won great distinction. After the second Restoration he denounced, in the House of Peers, the execution of Marshal Ney as an “abominable assassination”; thereafter he lived in exile in Belgium and Nassau for some years, till 1819, when he was recalled to France. In 1828 he was appointed inspector-general of cavalry; and after the July revolution of 1830 he received from Louis Philippe the grand cross of the Legion of Honour, and was reinstated as a peer of France. At the revolution of 1848 Exelmans was one of the adherents of Louis Napoleon; and in 1851 he was, in recognition of his long and brilliant military career, raised to the dignity of a marshal of France. His death, which took place on the 10th of July 1852, was the result of a fall from his horse.
EXEQUATUR,the letter patent, issued by a foreign office and signed by a sovereign, which guarantees to a foreign consul the rights and privileges of his office, and ensures his recognition in the state in which he is appointed to exercise them. If a consul is not appointed by commission he receives no exequatur; and a notice in theGazettein this case has to suffice. The exequatur may be withdrawn, but in practice, where a consul is obnoxious, an opportunity is afforded to his government to recall him.
EXETER, EARL, MARQUESS AND DUKE OF.These English titles have been borne at different times by members of the families of Holand or Holland, Beaufort, Courtenay and Cecil. The earls of Devon of the family of de Redvers were sometimes called earls of Exeter; but the 1st duke of Exeter was John (c.1355-1400), a younger son of Thomas Holand, earl of Kent (d. 1360). John’s mother, Joan (d. 1385), a descendant of Edward I., married for her third husband Edward the Black Prince, by whom she was the mother of Richard II., and her son John was thus the king’s half-brother, a relationship to which he owed his high station at the English court. He married Elizabeth (d. 1426), a daughter of John of Gaunt, duke of Lancaster, and was constantly in Richard’s train until 1385, when his murder of Ralph Stafford disturbed these friendly relations. John then went to Spain as constable of the English army under John of Gaunt; but after his return to England in 1387 he was created earl of Huntingdon, was made admiral of the fleet and chamberlain of England, and was again high in the king’s favour. He was Richard’s chief helper in the proceedings against the lords appellant in 1397, was created duke of Exeter in September of this year, and went with the king to Ireland in 1399. After the accession of his brother-in-law, Henry IV., Holand was tried for his share in the events of 1397, and was reduced to his earlier rank of earl of Huntingdon. He was soon plotting against Henry’s life, and after the projected rising in 1400 had failed he was captured and was probably beheaded at Pleshey in Essex on the 16th of January 1400.1He was afterwards attainted and his titles and lands were forfeited.
In 1416Thomas Beaufort, earl of Dorset, was created duke of Exeter; but this dignity was only granted for his life, and consequently it expired on his death in 1426.
In 1416John(1395-1447), son of John Holand, the former duke of Exeter, was allowed to take his father’s earldom of Huntingdon. This nobleman rendered great assistance to Henry V. in his conquest of France, fighting both on sea and on land. He was marshal of England, admiral of England and governor of Aquitaine under Henry VI.; was one of the king’s representatives at the conference of Arras in 1435; and in 1443 was created duke of Exeter. When he died on the 5th of August 1447 his titles passed to his sonHenry(1430-1473), who, although married to Anne (d. 1476), daughter of Richard, duke of York, fought for Henry VI. during the Wars of the Roses. After having been imprisoned by York at Pontefract, he was present at the battle of Towton, sailed with Henry’s queen, Margaret of Anjou, to Flanders in 1463, and was wounded at Barnet in 1471. In 1461 he had been attainted and his dukedom declared forfeited, and he died without sons, probably in 1473.
Coming to the family of Courtenay the title of marquess of Exeter was borne byHenry Courtenay(c.1496-1538), earl of Devon, who was made a marquess in 1525. A grandson of Edward IV., Courtenay was a prominent figure at the court of Henry VIII. until Thomas Cromwell rose to power, when his high birth, his great wealth and his independent position made him an object of suspicion. Some slight discontent in the west of England gave the occasion for his arrest, and he was tried and beheaded on the 9th of December 1538. A few days later he was declared a traitor and his titles were forfeited; although his only son,Edward(c.1526-1556), who was restored to the earldom of Devon in 1553 and was a suitor for the hand of Queen Mary, is sometimes called marquess of Exeter.
The title of earl of Exeter was first bestowed upon the Cecils (seeCecil:Family) in 1605 whenThomas, 2nd Lord Burghley (1542-1623), the eldest son of William Cecil, Lord Burghley, was made earl of Exeter by James I. Thomas had been a member of parliament during the reign of Queen Elizabeth, who knighted him in 1575, and had fought under the earl of Leicester in the Netherlands. After his father’s death in 1598 he became president of the Council of the North and was made a knight of the Garter. He died on the 7th or 8th of February 1623. His direct descendants continued to bear the title of earl of Exeter, and in 1801Henry(1754-1804), the 10th earl, was advanced to the dignity of marquess of Exeter, the present marquess being his lineal descendant. It may be noted that the 1st marquess is Tennyson’s “lord of Burghley.”
See G.E. C(okayne),Complete Peerage(1887-1898).
See G.E. C(okayne),Complete Peerage(1887-1898).
1There is some difference of opinion about the place and manner of the earl’s death, and this question has an important bearing upon the privilege of trial by peers of the realm. See L.W. Vernon-Harcourt,His Grace the Steward and Trial of Peers(1907).
1There is some difference of opinion about the place and manner of the earl’s death, and this question has an important bearing upon the privilege of trial by peers of the realm. See L.W. Vernon-Harcourt,His Grace the Steward and Trial of Peers(1907).
EXETER,a city and county of a city, municipal, county and parliamentary borough, and the county town of Devonshire, England, 172 m. W.S.W. of London, on the London & South Western and the Great Western railways. Pop. (1901) 47,185. The ancient city occupies a broad ridge of land, which rises steeply from the left bank of the Exe. At the head of the ridge is the castle, on the site of a great British earthwork. The High Street and its continuation, called Fore Street, are narrow, but very picturesque, with many houses of the 16th and 17th centuries. There is a maze of lesser streets within the ancient walls, the line of which may be traced. All the gates have disappeared. The suburbs, which have greatly extended since the beginning of the 19th century, contain many good streets, terraces and detached villas. The surrounding country is rich, fertile and of great beauty. Extensive views are commanded in the direction of Haldon, a stretch of high moorland which may be regarded as an outlier of Dartmoor. The lofty mound of the castle is laid out as a promenade, with fine trees and broad walks.
The cathedral, although not one of the largest in England, is unsurpassed in the beauty of its architecture and the richness of its details. With the exception of the Norman transeptal towers, the general character is Decorated, ranging from about 1280 to 1369. Transeptal towers occur elsewhere in England only in the collegiate church of Ottery St Mary, in Devonshire, for which Exeter cathedral served as a model. The west front is of later date than the rest (probably 1369-1394), and the porch is wholly covered with statues. Within, the most noteworthy features are the long unbroken roof, extending throughout nave and choir, with no central tower or lantern; the beautiful sculpture of bosses and corbels; the minstrel’s gallery, projecting from the north triforium of the nave; and the remarkable manner in which the several parts of the church are made to correspond. The window tracery is much varied; but each window answers to that on the opposite side of nave or choir; pier answers to pier, aisle to aisle, and chapel to chapel, while the transeptal towers complete the balance of parts. A complete restoration under Sir G.G. Scott was carried out between 1870 and 1877. The modern stall work, the reredos, the choir pavement of tiles, rich marbles and porphyries, the stained glass and the sculptured pulpits in choir and nave are meritorious. The episcopal throne, a sheaf of tabernacle work in wood, was erected by Bishop Stapeldon about 1320, and in the north transept is an ancient clock. The most interesting monuments are those of bishops of the 12th and 13th centuries, in the choir and lady chapel. Some important MSS., including the famous book of Saxon poetry given by Leofric to his cathedral, are preserved in the chapter-house. The united sees of Devonshire and Cornwall were fixed at Exeter from the installation there of Leofric (1050) by the Confessor, until the re-erection of the Cornish see in 1876. The bishop’s palace embodies Early English portions. The diocese covers the greater part of Devonshire, with a very small part of Dorsetshire.
The guildhall in the High Street is a picturesque Elizabethan building, which contains some interesting portraits; among them being one of General Monk, who was a native of Devon,and another of Henrietta, duchess of Orleans, given by her brother Charles II. Both are by Sir Peter Lely. The assize hall and sessions house dates from 1774. The Albert Memorial Museum contains a school of art, an excellent free library, a reading-room, and a museum of natural history and antiquities. There is a good collection of local birds, and some remarkable pottery and bronze relics extracted from barrows near Honiton or found in various parts of Devonshire. Of the castle, called Rougemont, the chief architectural remnant is a portion of a gateway tower which may be late Norman. Traces are also seen of the surrounding earthworks, which may have belonged to the original British stronghold. Beneath the castle wall is the pleasant promenade of Northernhay. The churches of Exeter are of little importance, being mostly small, and closely beset with buildings, but the modern church of St Michael (1860) deserves notice. The Devon and Exeter Institution, founded in 1813, contains a large and valuable library, and among educational establishments may be noticed the technical and university extension college, the diocesan training college and school; and the grammar school, which was founded under a scheme of Walter de Stapeldon, bishop of Exeter and founder of Exeter College, Oxford, in 1332, and refounded in 1629, but occupies modern buildings (1886) outside the city. It is endowed with a large number of leaving exhibitions, and about 150 boys are educated. There are two market-houses in the city, many hospitals and many charitable institutions, including the picturesque hospital or almshouse of William Wynard, recorder of Exeter (1439).
Exeter is one of the principal railway centres in the south-west, and it also has some shipping trade, communicating with the sea by way of the Exeter ship-canal, originally cut in the reign of Elizabeth (1564), and enlarged in 1675 and 1827. This canal is an interesting work, being the first canal carried out in the United Kingdom for the purpose of enabling sea-going vessels to pass to an inland port. The river Exe was very early utilized by small craft trading to Exeter, parliament having granted powers for the improvement of the navigation by the construction of a canal 3 m. long from Exeter to the river; at a later date this canal was extended lower down to the tidal estuary of the Exe. Previous to the year 1820 it was only available for vessels of a draft not exceeding 9 ft., but by deepening it, raising the banks, and constructing new locks, vessels drawing 14 ft. of water were enabled to pass up to a basin and wharves at Exeter. These works were carried out under the advice of Thomas Telford. A floating basin is accessible to vessels of 350 tons. Larger vessels lie at Topsham, at the junction of the canal with the estuary of the Exe; while at the mouth of the estuary is the port of Exmouth. Imports are miscellaneous, while paper, grain, cider and other goods are exported. Brewing, paper-making and iron-founding are carried on, and the city is an important centre of agricultural trade. The parliamentary borough returns one member. The city is governed by a mayor, 14 aldermen and 42 councillors. Area, 3158 acres. The eastern suburb of Heavitree, where is the Exeter city asylum, is an urban district with a population (1901) of 7529.
Exeter was the Romano-British country town ofIsca Damnoniorum—the most westerly town in the south-west of Roman Britain. Mosaic pavements, potsherds, coins and other relics have been found, and probably traces of the Roman walls survive here and there in the medieval walls. It is said to be theCaer Isceof the Britons, and its importance as a British stronghold is shown by the great earthwork which the Britons threw up to defend it, on the site of which the castle was afterwards built, and by the number of roads which branch from it. Exeter is famous for the number of sieges which it sustained as the chief town in the south-west of England. In 1001 it was unsuccessfully besieged by the Danes, but in the following year was given by King Æthelred to Queen Emma, who appointed as reeve, Hugh, a Frenchman, owing to whose treachery it was taken and destroyed by Sweyn in 1003. By 1050, however, it had recovered, and was chosen by Leofric as the new seat of the bishops of Devon. In 1068, after a siege of eighteen days, Exeter surrendered to the Conqueror, who threw up a castle which was called Rougemont, from the colour of the rock on which it stood. Again in 1137 the town was held for Matilda by Baldwin de Redvers for three months and surrendered, at last, owing to lack of water. Three times subsequently Exeter held out successfully for the king—in 1467 against the Yorkists, in 1497 against Perkin Warbeck, and in 1549 against the men of Cornwall and Devon, who rose in defence of the old religion. During the civil wars the city declared for parliament, but was in 1643 taken by the royalists, who held it until 1646. The only other historical event of importance is the entry of William, prince of Orange, in 1688, shortly after his arrival in England. Exeter was evidently a borough by prescription some time before the Conquest, since the burgesses are mentioned in the Domesday Survey. Its first charter granted by Henry I. gave the burgesses all the free customs which the citizens of London enjoyed, and was confirmed and enlarged by most of the succeeding kings. By 1227 government by a reeve had given place to that by a mayor and four bailiffs, which continued until the Municipal Reform Act of 1835. Numerous trade gilds were incorporated in Exeter, one of the first being the tailors’ gild, incorporated in 1466. This by 1482 had become so powerful that it interfered with the government of the town, and was dissolved on the petition of the burgesses. Another powerful gild was that of the merchant adventurers, incorporated in 1559, which is said to have dictated laws to which the mayor and bailiffs submitted. From 1295 to 1885 Exeter was represented in parliament by two members, but in the latter year the number of representatives was reduced to one. Exeter was formerly noted for the manufacture of woollen goods, introduced in Elizabeth’s reign, and the value of its exports at one time exceeded half a million sterling yearly. The trade declined partly owing to the stringent laws of the trade gilds, and by the beginning of the 19th century had entirely disappeared, although at the time of its greatest prosperity it had been surpassed in value and importance only by that of Leeds.