excommunicato capiendo,' or for seizing the excommuni- | establishes his right to the possession of the personal chattel cate. But before the writ for taking the excommunicated which formed the subject of the litigation. In the ordinary person could be granted the contumacy and contempt of case of an action of replevin after a distress, the right of the the party were to be certified by the bishop to the court of defendant in respect of the chattel distrained is merely to Chancery by letters under his seal; and by 5 Eliz. c. 23, the hold it as a security for the payment of the debt or duty, writ was made returnable into the King's Bench. By the the payment or performance of which is sought to be enstatute just cited the cause of excommunication was to be forced by the coercion of a distress. [DISTRESS.] The writ stated in the writ, in order that the court might judge as to of execution requires the sheriff to cause the chattel to be the justice of the case. The sentence of excommunication restored to the possession of the defendant. This is called might be revoked by the judge who passed the sentence, or a writ de retorno habendo, and in case the sheriff is unable upon appeal the party might be absolved. Absolution gene- to find the chattel, further process issues commanding him rally belonged to the same person who passed the sentence, to take other chattels of the plaintiff as a substitute for that unless in some particular cases, which were referred to the which is withheld, by a writ called a capias in withernam. pope or a bishop. (Reeves' Hist. of English Law; Sul- The most ordinary cases of execution are those in which livan's Lectures.) pecuniary compensation is to be obtained, but in these cases the sheriff is not authorized directly to take money from the party by whom it is to be paid. Formerly the only mode of obtaining this compensation was by process of distringas or distress. And this is still the case in inferior courts; but in the superior courts execution of judgments or other records establishing pecuniary claims may be had by a writ of fieri facias [FIERI FACIAS] affecting the personal property; by writ of elegit [ELEGIT], affecting both real and personal property; and by capias ad satisfaciendum [CAPIAS], by which compliance with the pecuniary demand is enforced by detention of the person of the defaulter in prison until the claim be satisfied, or the adverse party consents to his discharge.

By a sentence of excommunication, both greater and less, those denounced were excluded from the right of Christian burial, from bringing or maintaining actions, from becoming attornies or jurymen, and were rendered incapable of becoming witnesses in any cause. But since the 53rd Geo. III. c. 127, excommunication cannot now be pronounced in England, except in certain cases (as spiritual censures for offences of ecclesiastical cognizance); and by the 3rd section of that statute no person who shall be pronounced or declared excommunicate (pursuant to the second clause of this statute) shall incur any civil penalty or incapacity, in consequence of such excommunication, save such imprisonment, not exceeding six months, as the court pronouncing or declaring such person excommunicate shall direct.' The proceedings in those cases, in which excommunication may still be pronounced, are the same, as to the issuing and return of the writ, as they were before the act of 53 George III. By the same act (53 George III. c. 127), in all cases cognizable by the laws of England in ecclesiastical courts, when any person shall refuse to appear when cited by such court, or shall refuse to obey the lawful order or decree of such court, no sentence of excommunication, except in the cases above alluded to, shall be pronounced; but a writ'de contumace capiendo' shall issue, which in effect is the same as the old writ de excommunicato capiendo' was. Thus the various difficulties are now obviated which formerly existed in courts of law with respect to excommunication.

6

EXECUTION is the effect given to the judgments and other proceedings analogous to judgments of courts of law and in civil suits. This term denotes the process by which a party is put into the actual possession of that to which by the proceedings of a court he appears to be legally entitled. As a judgment of a court of common law ascertains that the party is entitled to the possession of some subject of a real or personal nature; or to recover damages in respect of property withheld or injuries done, so the execution founded upon such judgment will be framed with a view to putting the party in whose favour the judgment is given either in the actual possession of the thing in dispute, or to enable him to obtain pecuniary compensation.

A subject is not entitled to pursue all these remedies at once; but in the case of the crown, the right to obtain satisfaction from the goods, lands, and person of its debtor may be enforced simultaneously, by writ of capias, and extendi facias, or extent. [EXTENT.]

EXECUTION is also the term applied to denote the giving effect to the sentence of a court of criminal jurisdiction. In this sense it is most commonly used with reference to the execution of sentence of death. [SHERIFF.]

EXECUTOR. An executor is he to whom another man commits by will the execution of that his last will and testament. He answers in some degree to the hæres designatus, or testamentarius, in the civil law, as to the debts, goods, and chattels of his testator; but the origin of executors seems to be properly traceable to a constitution of Manuel Comnenus (Tepi dioiηTwv tāv dia‡nк@v). All persons who are capable of making a will, and some others besides, as married women and infants, are capable of being made executors; but infants are by statute rendered incapable of acting in the execution of the will until they attain the age of twenty-one.

An executor can derive his office from a testamentary appointment alone, though it is not necessary that he should be appointed by express terms; any words of the testator indicating an intention to make the appointment are sufficient: in this case he is usually called executor according to the tenor.' If no executor is appointed by the will, administration is granted by the ordinary, with the will anthe directions given by the will. An executor may renounce probate; but having once acted, he cannot divest himself of the office or its liabilities; nor can an administrator who has accepted the office, get rid of his responsibility.

For this purpose a written command issues in the name | of the king or other lord or owner of the court, to annexed, in which case the administrator is bound to obey officer of the court: when the judgment is in one of the king's superior courts at Westminster, the officer of the court for this purpose is the sheriff of the county in which the property is situate, or, in the case of pecuniary compensation, the sheriff of the county in which the party from whom such compensation is due is supposed to reside; which, until the contrary is shown, is taken to be the county in which the litigation was carried on.

An executor may do many acts in execution of the will, even before probate, as paying and receiving debts, &c., but he cannot, before probate, sustain actions or suits. An administrator can do nothing till the letters of adminisWhere lands or other corporeal hereditaments are re-tration are issued; for the former derives his power from covered, the process of execution varies according to the the will, and not from the probate: the latter owes his nature of the interest recovered. If a right to a freehold entirely to the appointment of the ordinary. If an executor interest has been established, the writ commands the die before probate, administration must be taken out to his sheriff to give the recoverer seisin of the lands, &c., and is testator, with the will annexed; but if an executor, having called habere facias seisinam. [HABERE FACIAS SEI- proved the will, die, his executor will be the executor and SINAM.] If a chattel interest only is recovered, the writ representative of the first testator, unless, before proving the does not affect to authorize the sheriff to intermeddle with will of the second testator, he expressly renounces the exethe freehold, and directs that officer merely to give posses- cution of the will of the first. If the executor dies insion of the land, &c. This is called an habere facias posses- testate, his administrator is not the representative of the sionem. [HABERE FACIAS POSSESSIONEM.] testator, but an administrator de bonis non of the testator must be appointed by the ordinary. If there are several executors, the office survives, and is transmitted ultimately to the executor of the surviving executor, unless he dies intestate. Executors have a joint and entire interest in the effects of their testator; any one of them is capable of acting by himself; and the receipt of a debt, or the transfer of property by one, is as valid as if it had been done by all.

A judgment in the action of detinue [DETINUE] establishes the right of the recoverer to the possession of a specific personal chattel, and the writ of execution called a distringas ad deliberandum issues, requiring the sheriff to coerce the defendant by his distringas (distress) to restore the specific chattel or its value.

A judgment for the defendant in replevin [REPLEVIN]

If a stranger takes upon himself to act as executor without any authority, as by intermeddling with the goods of the deceased, he is called an executor de son tort (of his own wrong), and is liable to all the trouble of an executor without any of the advantages attached to the office. He is chargeable with the debts of the deceased, so far as assets come to his hands; and is liable not only to an action by the rightful executor or administrator, but also to be sued as executor of the deceased by his creditors and legatees. The only advantage which an executor derives from his office is the right to retain any debt due to him from the testator, as against creditors of equal degree, and this privitege is allowed him, because he cannot take any legal steps to recover payment. This, though practically a privilege, is in reality only a provision of the law that he shall not be prejudiced by his appointment; otherwise as a man cannot sue himself, all the other creditors would, by instituting a suit against the executor, gain priority over him in respect

of their debts.

The duties of executors and administrators are in general the same, the only essential difference between them being, as before mentioned, the mode of their appointment. Their duties are to bury the deceased, to prove his will in the proper Ecclesiastical Court, to collect and get in his goods and chattels, to pay his debts in the order appointed by law, and also his legacies, if he has bequeathed any, and to dispose of the residue of his goods and chattels in the manner by the will directed, or according to the statutes for the distribution of the effects of intestates, if there should be a total or partial intestacy. Executors and administrators are liable to an action at law, and also to a suit in equity, for the payment of the debts and liabilities of their testator or intestate; and to a suit in equity and the Ecclesiastical Court for the legacies bequeathed by him, and the due administration of his estate: but no action at law lies for a legacy, at least not until after the executor has assented to it, as it is called, that is, has acknowledged the sufficiency of the assets after providing for the payment of the debts. [LEGACY.]

It appears to have been a subject of much controversy whether the probate of wills was originally a matter of exclusive ecclesiastical jurisdiction, but whatever may have been the case in earlier times, it is certain that at this day the Ecclesiastical Courts are the only courts in which, except by special prescription, the validity of wills of personalty can be established or disputed. If all the goods of the deceased lie in the diocese or jurisdiction within which he died, the probate is made before the bishop or ordinary of that diocese or jurisdiction; but if he had bona notabilia (that is, goods and chattels to the amount of 57.) within some other diocese or jurisdiction than that in which he died, then the will must be proved before the archbishop or metropolitan of the province by special prerogative; and if there be bona notabilia in different provinces, there must be two prerogative probates. A will should be proved within six months after the death of the testator, or within two months after the termination of any dispute respecting the probate. (See 55 Geo. III. c. 184, sec. 57.)

Executors and administrators are treated by the courts of equity as trustees for the creditors, legatees, and next of kin of their testators or intestates. They are bound to administer the assets according to their duo order of priority and to pay the debts of the deceased in like manner; and though the ecclesiastical courts will entertain suits for the payment of debts or legacies and the due administration of the assets, yet, where there is any trust to be executed, or any charge on real estate to be established, a court of equity will interfere by injunction or prohibition; for the constitution of the ecclesiastical courts is not adapted to the administration of trusts, and over real estate they have no jurisdiction. The probate is exclusive evidence of a will of personalty; but courts of equity assume the jurisdiction of construing the will in order to enforce the performance of the trusts by the executor: hence they are sometimes styled courts of construction, in contradistinction to the ecclesiastical courts, which, although they also are courts of construction, are the only courts of probate. Formerly, the personal estates only of persons deceased were liable for the payment of their simple contract debts; but now, since the statute 3 and 4 Wm. IV. c. 104, real estates are liable for the payment of debts of that nature; and it may be broadly stated that all the real and personal estates of the deceased are assets for the pay

ment of his debts. The personal estate is liable in the first instance, unless the testator direct otherwise. Estates descended are applied before estates devised; and in other respects the estates of the deceased are administered in the order laid down by the courts.

The debts are also payable in a certain prescribed order. 1. The funeral expenses, the expenses of probate, and the costs of a suit for the administration of the estates, if any be instituted. 2. Debts due to the crown on record or specialty, 3. Certain debts, which by statute are to be preferred to others, as poor-rates, by stat. 17 Geo. II. c. 38, &c. 4. Debts of record, as judgments, statutes, and recognizances. 5. Specialty debts, i. e., debts due on bonds or instruments under seal. 6. Simple contract debts, as upon bills of exchange and ordinary verbal engagements. It seems that in this class debts due to the crown and the wages of domestic servants are entitled to priority. A mortgage made by the testator must, if there be no specified direction in his will, be paid out of the personal assets, if there be sufficient to pay the other creditors and legatees; it is, in fact, considered as the personal debt of the testator: though, if he did not create the mortgage himself, but took the estate subject to the mortgage by purchase, inheritance, or devise, the debt, not being his personal engagement, must be borne by the estate itself. The executor must pay the debts in the order mentioned; for if he apply the assets in payment of those of a lower degree, he will be personally answerable, to the extent of the assets misapplied, to the creditor of the higher degree. He may, however, pay a debt of an inferior degree before one of a superior, provided he has no notice of the latter and a reasonable time has elapsed after the testator's death; except in the case of debts of record due to the crown, of which the executor is bound to take notice. An executor or administrator may also retain his own debt as against creditors of an equal degree; and he may pay any one or more debts to creditors of equal degree, although thereby he may exhaust the assets, unless a suit or action be commenced against him; and even in that case ho may, by confessing a judgment, enable a creditor to obtain priority. But notwithstanding an action or suit be commenced, he may pay a creditor of a higher degree than the one proceeding against him; save only where the suit is for a general administration of the estate, when the executor should not make any farther payments.

The debts being all paid, the next duty of an executor or administrator is to pay the legacies, and distribute the personal estate to the next of kin of the testator if there be any overplus; but where the testator has made a residuary legatee, he is entitled to the surplus. If the assets are not sufficient for the payment of the legacies, the executor must pay to each legatee an equal proportion of his legacy, unless the testator has directed the order of payment, in which case the legacies must be paid in full in the prescribed order, and the whole loss must fall upon the last in order. Specific legatees, i. e. persons to whom a specific fund or article of property is given by the will, are not liable to abatement of their legacies, but receive the fund or article whether the assets are or are not sufficient to pay the other legatees; though if the fund is changed, or the article sold, or from any other cause is not in existence at the death of the testator, the legacy fails, or in technical language, is said to be adeemed. Executors and administrators cannot be compelled to pay legacies or distribute the personal estate before the expiration of a year after the decease of the testator; and not even then, if notice has been acquired or there is reasonable ground to suspect the existence of debts and liabilities. Indeed, unless the assets are of ample amount, the executor or administrator should not pay within the year, even though the testator has directed it to be done; for it has been held that such a payment affords no defence against a creditor, and the testator or intestate may be bound by covenants upon which subsequent liabilities may accrue; or he may have been a trustee, and some maladministration of the trust estate may be discovered after the lapse of many years. In these and many other cases, executors and administrators should not part with the assets until all chance of liability is at an end, or security be given by the parties receiving them to refund in case of need. This last course will sometimes be directed by a court of equity in a suit for a legacy; for though au executor or administrator may recover from the legatees or next of kin to whom he has handed over the assets in

case of subsequently-discovered debts of the deceased, it is | obvious that this is a very insufficient and uncertain security, Where a legatee is an infant, or the testator has directed his executors to invest any portion of his estate in the funds, or has provided for some future payment to be made, or from any other cause, an investment by the executors becomes necessary, they are, in the absence of any express direction to the contrary, bound to make such investment in the Three per Cent. Consols, that fund being considered by the Court of Chancery as the most desirable for the purpose of investment. The rule is inflexible, and an executor who should disregard it would run great risk of having to pay the costs of a suit to compel him to place the money in that fund, and to make good any loss which might occur through the change of securities.

Full information upon these subjects will be found in the works of Williams, and Toller On Executors,' and Wentworth On Administrators.'

EXE'DRA (¿édpa), a name given to certain open recesses in the buildings of the antients. There were numerous exedræ in the baths. Vitruvius says the spacious exedræ of the Greek palæstra were furnished with seats. The exedra were placed in the three porticos of the palestra. (Vitruvius, v. c. 9.) Sometimes in houses a covered hall, and of a square form, was called exedra. (Vitruvius, vi. cap. 5.) In the disposition of the Greek house the exedræ were placed looking to the west. (Vitruv. vi. cap. x.)

EXERCISE. [ANALEPTICS.]

Monk. The only other antient building of any importance at Exeter is the cathedral. It is uncertain when the present edifice was begun, but probably it was soon after the see of Devon was transferred to Exeter from Crediton, which was its locality till the year 1049. At all events it was considerably altered and enlarged by Warlewast, third bishop of Exeter, who was a Norman, and came over with the Conqueror. It then assumed its present cruciform shape, but underwent numberless alterations and additions during the thirteenth and fourteenth centuries. It now consists of a nave, 76 feet in width and 175 in length, with aisles on each side; two short transepts, formed by two Norman towers 130 feet in height; a choir of the same width as the nave, and 128 feet in length; ten chapels or oratories, and a chapter-house. The whole building from east to west (including St. Mary's Chapel) is 408 feet in length. The western front is highly decorated with a profusion of niches and elegantly carved figures, and presents one of the richest façades of any building in Europe. The towers are highly interesting to the antiquary as specimens of Norman architecture. The interior is also exceedingly fine; the vaulted roof of the nave is supported by clustered columns, surmounted by fine pointed arches; as is also that of the choir, which is separated from the nave by a screen of exquisite workmanship. The chapter-house is a beautiful edifice, with a handsome oak roof: it was used as a stable by Cromwell and his soldiers, but has since been thoroughly repaired, as other parts of the building also have lately been. In the north aisle are the splendid monuments of Sir Richard and Bishop Stapleton. The organ, with the exception of the one at Haerlem, is perhaps the largest in Europe: the large pipes are nearly twenty-three feet in height, and four feet in circumference. (For a further account of this truly magnificent building we must refer the reader to Risdon; Oliver; Britton's Cathedral Antiquities, &c. &c.)

EXETER, a city and a county of itself, locally in the hundred of Wonford, in the southern division of the county of Devon, of which it is the chief town; 44 miles northeast from Plymouth, and 174 west by south from London. Exeter is supposed to have been a settlement of the Britons before the Roman invasion. It was then called Caer-Isc' and 'Caer Rydh,' the former derived from its situation on the Ex or Isc, the latter from the red soil on which the castle is built. By the Romans it was called The city was antiently held in demesne by the crown; its Isca Dumnoniorum, to distinguish it from the Isca Silurum earliest charter was granted by Henry I., and confirmed by in Wales. From the number of coins, small bronze statues Henry II. and Richard I. The governing charter was (evidently Penates), tesselated pavements, and other Roman granted by George III. in 1770. The corporation hold a antiquities discovered near the walls and in the neighbour-court of quarter-sessions, and the assizes are held by the hood of the city, it must have been a Roman station of some judges of the western circuit twice a year for the county of importance. It is uncertain how long Exeter retained its the city at the guildhall, and twice a year for the county at appellation of Isca Dumnoniorum, but in the reign of Al- the session-house. There is also a county court, and a court fred it had acquired that of Exan-Cestre (castle on the Ex), of requests for the recovery of debts under 40s., the former whence its present name. held every Tuesday, the latter once a fortnight. Petty sessions are held before the magistrates of the county every Friday at the session-house; and some magistrate of the city sits every day at the guildhall. Under the Municipal Act, Exeter is divided into six wards, with twelve aldermen and thirty-six councillors.

In the reign of King Stephen, Baldwin Rivers, earl of Devon, fortified Exeter on behalf of the Empress Maude, and did not yield till reduced by famine after a long siege. It was besieged in the 12th year of the reign of Henry VII. by Perkin Warbeck, and again by the rabble of Devonshire and Cornwall in 1549.

The city of Exeter was formerly surrounded by walls and strongly fortified. Leland, in speaking of it, says, The toune is a good mile and more in cumpace, and is right strongly waullid and maintained. Ther be diverse fare towers in the toune waul bytwixt the south and west gate. There be four gates in the toune, by names of Est, West, North, and South. The Est and the West Gates be now the fairest, and of one fascion of building: the South Gate hath been the strongest.' Situated on a high eminence, on the north side of the town, are the ruins of the castle, called Rougemont.' When this castle was first erected is unknown; but it was either rebuilt or much repaired by William the Conqueror, who bestowed it on Baldwin de Briono, husband of Albrina his niece, in the possession of whose descendants it remained till the 14th year of the reign of Henry III., who then took it into his own hands. It was completely dismantled during the civil war, and as never since been rebuilt. In the area of the castle-yard a session-house has lately been erected, which is a neat-looking building, faced with Portland stone, and contains, in addition to two good-sized courts, a grand-jury room, magistrates' room, &c. In front is a fine open space, where county, election, and other meetings are held. To the north of the castle is a delightful walk, shaded by fine old elm trees, called Northernay. Nearly in the centre of Exeter is the guildhall, where the assizes for the city (which is a county of itself) are held, as well as the sessions, elections, and other business relative to the city alone. The building contains several valuable portraits, amongst others, those of Henrietta Maria, Charles the First's queen, of her daughter Henrietta duchess of Orleans, and of General |

Exeter has returned two members to parliament ever since the reign of Edward I. At the first election after the passing of the Reform Act, there were 2952 registered voters. The population of the city and borough is 28,242, of whom 15,559 are females. There are not many manufactories, and the population is chiefly employed in handicraft and the retail trade.

The city of Exeter comprises the parishes of Allhallows, Allhallows on the Walls (the church of which has been demolished), St. Edmund, St. George, St. John, St. Kerrian, St. Lawrence, St. Martin, St. Mary Arches, St. Mary Major, St. Mary Steps, St. Olave, St. Pancras, St. Paul, St. Petrock, St. Sidwell, St. Stephen, and the Holy Trinity, and the parochial chapelries of St. David and St. Sidwell, and the extra-parochial precincts of the Cathedral Close and Bedford Chapel, all in the archdeaconry and diocese of Exeter. There are besides these several other chapels, as well as places of worship for Baptists, Quakers, Independents, Wesleyan and other Methodists, Unitarians, Catholics and Jews.

The town is pleasantly situated on a steep acclivity on the river Ex, over which a handsome stone bridge was erected in the year 1778, at an expense of about 20,000l., a little above the site of an antient bridge originally built in 1250. The streets, with the exception of the High Street and Fore Street, are generally narrow, but there are some handsome squares and terraces in Northernay, Southernay, &c., which contain many well-built houses. The town is lighted with gas, and well supplied with water by waterworks erected in 1794. The subscription ball-room is one of the finest country ball-rooms in England; it measures eighty feet by forty, and is very handsomely fitted up. There