Legal Terms: Letter E

 
 
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ENTRY, WRIT OF

An ancient form of action at common law for the recovery of the possession of land wrongfully withheld from the claimant. Ti belonged to the class of possessory, as distinguished from droitural, remedies, in the latter of which the right (droit) or title to the land was tried, and in the former the mere right of possession.

 But the feudal origin and character of our land law made title or ownership of real property depend in most instances on the possession of the land, and accordingly the possessory remedies came gradually to supersede those which were based upon a direct and exclusive assertion of ownership. There were many of these possessory remedies appropriate to various circumstances (of which the assize of novel disseisin and the assize of mort d'ancestor were in most general use); but the one which was available in all cases of wrongful ouster or dispossession, whether otherwise provided for or not, was the writ of entry.

The efficacy of this proceeding was due to the fact that it gave effect to the right of entry, by the exercise of which one who was entitled to a freehold estate was enabled by the mere act of taking possession to reinvest himself with his rights therein. In the course of time the proceeding by writ of entry became as intricate and complicated as the earlier remedies which it had displaced, and it was gradually abandoned in favor of the more summary action of ejectment. After having long fallen into disuse, the writ of entry was, along with the other ancient possessory remedies, abolished by act of Parliament, in 3 and 4 Will. IV., c. 27, sec. 36. It survives in several of the United States, however, in a simplified form, and usually for special purposes only__as, in some of the New England States, as a means of enforcing a mortgage.

EQUITABLE ASSETS

Property of a debtor or decedent which cannot be reached by legal process, but which will be applied by equity to the payment of debts. Originally, only property held by the debtor or his personal representative by a legal title was applicable to this purpose, and in the earliest period of our legal history the rights of creditors were confined to the personal property so held. Subsequently a testator might, by charging his real estate with the payment of his debts, or by directing his executor to sell his lands for that purpose, render such property liable in equity to the claims of his creditors. This did not have the effect of merging them in his
general assets and of subjecting them to legal process; but it made them equitable assets, subject to the order of the Court of Chancery. This distinction has now been swept away in England and in the United States by statute.

The expression 'equitable assets' is now applied to any equitable property rights of a debtor which can be reached by creditors only by a proceeding in equity. Most equitable interests though there are some important exceptions have been subjected by statute to the claims of creditors; but it is manifest that such an interest as the rights of a beneficiary of a trust, for example cannot be reached by the ordinary legal process of an execution or attachment. The creditor has resort, therefore, to a proceeding in equity known as 'creditor's bill.' In a few jurisdictions a statutory process has been devised for enforcing creditors' rights against
either or both forms of property without distinction.

EXAMINATION

In judicial proceedings, the process by which the testimony of witnesses is elicited and sifted. It is ordinarily conducted by the counsel for the parties, although the trial judge has the right to ask questions of a witness at any time. The first examination on behalf of the party calling the witness is known as the direct examination, that on behalf of the opposite party as the cross-examination, and any further questioning by the first party is called re-direct examination. As a rule, the party calling a witness has no right to ask leading questions, that is, questions which suggest to the witness the answers which are desired by the examiner. It is the duty of the court to see that witnesses receive decent and respectful treatment from counsel. Consult: Ballantine, Experiences of a Barrister's Life (New York, 1883).

EXCEPTION

In law: (a) A taking out or excluding something from the operation or effect of an instrument, statement, or the like. (b) An Objection legally taken to testimony or other material matter in a legal proceeding. (c) The clause, writing, or statement by which either of these objects is accomplished; also the thing excepted or excepted to. When applied to a clause in a deed it means a provision that exempts something from the grant; as where the deed conveys a certain farm with the exception of a described piece of land or a designated building or tree. An exception in a statute exempts a person or thing from the operation of the enactment; and it is
a rule of pleading in a criminal prosecution or in a civil suit for penalties under such a statute, that the indictment or complaint must negative the exception; that is, deny that the defendant or the alleged criminal act comes within the exception. In admiralty and equity practice, the term is applied to the proper method of bringing before the court an objection to the regularity or sufficiency of a pleading or proceeding. In this sense, an exception partakes of the nature of a pleading, performing the function of a special demurrer at common law.

The term is employed most frequently, however, in common-law actions to describe the formal signification of a party's objection to an adverse ruling of the court upon some point of law. It must be taken at the time of the ruling, or within a prescribed period thereafter, and should be entered upon the court's record, so that a proper bill of exceptions may be prepared for a review of the case by an appellate court.

EXECUTION

The enforcement, by the duly constituted authorities, of a final judgment, order, or decree of a court of justice. In strictness, the term has reference only to the enforcement of the process of the common-law courts, whether in civil or in criminal cases, and is not applicable to the procedure for carrying into effect the decrees of the equity courts. This is due to the radical difference in the jurisdiction exercised by the two classes of tribunals. A judgment in a court of law is merely an adjudication of the rights of the contending parties, declaring that one is or is not entitled to specific property or to a sum of money. In itself considered
it has no further force, and is ineffectual until enforced by distinct process, and this is furnished by the writ of execution, addressed to the administrative officers of the county, and by the proceedings taken thereunder. A court of equity, on the other hand, acts in
personam; that is, its decree is directed to the person against whom the proceeding is brought and binds him directly without further process. The machinery of the court is sufficient to enforce its decrees without calling upon the administrative officers of the county or the State to carry them into effect. However, in those cases in which the decree in equity directs the delivery of specific property or the payment of a sum of money, the process of execution is coming to be employed for carrying it into effect.

Execution on civil process is generally accomplished by the seizure of the judgment debtor's property or person. In England, the subject is now regulated almost entirely by the rules of the Supreme Court. These declare that the term 'writ of execution' shall include the common-law writs of fieri facias, capias, elegit, sequestration, and attachment; and they provide for the form as well as for the manner of issuing and enforcing each of these writs.

In this country, the form of executions and the method of issuing and enforcing them are quite various. The statutes and court rules of each State must be consulted for the procedure therein, and the Federal Statutes and court rules for the procedure in Federal jurisdictions. In general terms it may be said that, a final judgment having been rendered the attorney for the judgment creditor is authorized to issue a writ of execution to the sheriff, marshal, or similar administrative officer, commanding him to seize and sell property of the judgment debtor sufficient to pay the judgment with interest as well as the officer's fees and expenses. In certain cases, usually those where the judgment debtor has been guilty of some fraud or violence or other misconduct, an execution may be issued against his body, commanding the officer to seize and imprison him until the judgment is paid. This is commonly known as a 'body execution.' Certain property of the judgment debtor is exempted by statute from execution. This includes, as a rule, a small amount of household furniture, of food and fuel for his family, of wearing apparel, of books, tools, and implements of trade, and the like. Here, again, the statutes applicable to a particular case must be consulted. CONSULT: Edwards, Law of Executions (London, 1888); Freeman, Treatise on the Law of Executions in Civil Cases (3d ed., San Francisco, 1900).

Execution in criminal cases is the enforcement of a sentence or judgment duly pronounced by a court. If the judgment is for other than capital punishment, a certified copy of its entry upon the minutes of the court is generally required to be furnished to the officer whose duty it is to enforce it, and no other warrant or evidence of authority is necessary to justify its execution. If the criminal is sentenced to the punishment of death, a warrant, signed by the judge presiding at the trial, is ordinarily delivered to the sheriff or similar officer, appointing the time and describing the manner of the execution. Formerly, criminal sentences were executed publicly, and often were revolting exhibitions of cruelty. The modern tendency throughout Christendom has been to abolish the publicity and to minimize the cruelty of criminal executions.

EXEMPTION

The legal right to be excused from rendering certain services to the State, or to receive or retain certain property free from the claims of others. It is secured by a variety of statutes (popularly called exemption laws). Some of these designate the persons or classes who are not liable to jury duty or to military service. Others specify the portion of a decedent's estate which is to be set apart for the use and benefit of the widow and children, and which they are allowed to retain even in preference to the creditors of the deceased. Still others describe the property of a tenant which is free from distress for rent, or the property which is free
from taxation, or from seizure under execution, or which may be retained by a bankrupt free from liability for his debts.

These statutes differ greatly in detail, but all have the common object of saving the family of a debtor from penury. The articles most generally exempted are necessary household furniture, tools used in a trade, a team, certain domestic animals, and a limited quantity of food supplies for the debtor's family. In some of our States the tendency is to increase exemptions unduly; but in all the courts are agreed that the policy of exemption is humane and wise, and that they should be very liberally construed. Some of the exemption laws protect a debtor and his family against an improvident attempt on his part to waive the benefit of the Statute. For
the particular exemption laws of any State, consult the statutes of that State, or Hubbel, Legal Directory for Lawyers and Business Men (New York, annually).

EX PARTE

From or on behalf of a designated party. The term is frequently used in the title of a legal proceeding. For example, if Shand is adjudged bankrupt the title of the bankruptcy proceedings is In re Shand; and if a creditor named Corbett makes an application in the cause for an order or determination in his behalf, his proceeding is entitled, Ex parte Corbett in re Shand. So if Smith applies for leave to sue an official bond, or for some particular writ, this preliminary proceeding is entitled Ex parte Smith. The term is also used to describe the application or proceeding itself. Statements made in a judicial proceeding under such circumstances that the
opposite party has no opportunity to challenge their accuracy are often spoken of as ex parte.

 

Website: The History Box.com
Article Name: Legal Terms: Letter E
Researcher/Transcriber Miriam Medina

Source:

BIBLIOGRAPHY: From my Collection of Books: The New International Encyclopedia; 1902-1905 Dodd, Mead and Company-New York Total of 21 Volumes
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