sheriff has acted on such instructions (Fake v. Edgerton, 3 Abb. 229; 5 Duer, 681).

a. The taking in execution the body of a county treasurer at the suit of the State, does not affect the action at the suit of the county (Supervisors of Livingston v. White, 30 Barb. 72).

b. A voluntary discharge of the party arrested, is a discharge of the judg ment (5 Johns. 364; 8 Cow. 171; 3 Wend. 184). If a party is discharged on the ground of irregularity in the execution, a new execution may issue on the judgment (5 Wend. 90; 3 Adol. & El. N. S. 1; Ginochio v. Figari, 2 Abb. 185; 4 E. D. Smith, 227). See Charging in execution, infra.

c. Where an execution against the person is improperly issued, the remedy, it would seem, is on a motion to set aside the execution, but semble, a party arrested under such an execution may be discharged on habeas corpus (see The People v. Willett, 26 Barb. 78; 6 Abb. 37; 10 How. 210; Wiles v. Brown, 3 Barb. 37).

d. Jail liberties.-If the defendant do not discharge the execution, he may be admitted to the liberties of the jail, on executing a bond to the sheriff (2 R. S. 433; 19 Johns, 233; 7 ib. 168; 6 ib. 121; 15 ib. 256; 12 ib. 88). The liberties of the city of New York are "all the city and county of New York" (Laws 1846, ch. 32). In other counties (with some exceptions) the liberties are designated by the county courts of each county, and are not to exceed 500 acres in extent (Laws 1851, ch. 21), Erie (Laws 1861, p. 61), Rensselaer (Laws 1830, ch. 252), Onondaga (Laws 1851, ch. 202), Schenectady (Laws 1830, ch. 244), Alleghany (Laws 1831, ch. 217), Dutchess (Laws 1861, ch. 130), of Kings include towns of Flatbush and Brooklyn, excluding so much as was formerly Bushwick and Williamsburgh (Laws 1831, ch. 217; Chamberlain v. Campbell, 39 Barb. 640).

e. The provisions of 2 Rev. Stat. 31, § 1, providing for the discharge of an imprisoned debtor, held to apply as well to debtors on the limits as to those in close custody (Coman v. Storm, 26 How. 84).

f. Defendants against whom judgment is obtained on any bond given under the act to suppress intemperance, or for any penalty incurred under that act, are not entitled to jail liberties (Laws of 1857, vol. 2, p 416, § 32).

g. The court cannot order the sheriff to accept bail for the jail liberties (Sartes v. Merceques, 9 How. 188). If the sheriff improperly refuse bail the remedy is by action (id.) Assignment of bond for jail liberties after death of sheriff (Ridgway v. Barnard, 28 Barb. 613).

h. Charging in execution.-When a defendant, against whom an order of arrest has been obtained, is, at the time judgment is rendered, in custody of the sheriff, the plaintiff must charge him in execution within three months from the last day of the term next following that at which judgment is obtained. If the defendant is surrendered in discharge of his bail, he must be charged in execution within three months after his surrender, and in all cases, as it would seem, within three months from the return unsatisfied of an execution against the property of the defendant. A neglect to charge the defendant in execution entitles him to apply for a supersedeas to be discharged from custody (2 R. S. 556, §§ 36, 37; see Smith v. Knapp, 30 N. Y. 581; Eagleston v. Son, 5 Rob. 640; Skinner v. Noyes, 7 Rob. 228; Roswog v. Seymour, 7 Rob. 427; Desisles v. Cline, 4 Rob. 645; Haviland v. Kane, 1 Abb. N. S. 409). After a judgment debtor has "remained charged in execution thirty days from the date of his imprisonment," the judgment creditor may by a written notice require the sheriff to discharge him; and thereupon the sheriff may discharge him. He cannot be again arrested on the same judgment; but the judgment creditor "may have the same civil remedies to enforce payment of the judg ment upon which such execution was issued, and as if such execution had not been issued" (Laws 1857, ch. 427).

i. A motion for a supersedeas cannot be granted on the ground that plaintiff has neglected for three months to charge defendant in execution, unless the bail have been exonerated. When the moving papers on such a motion do

not show that the bail have been exonerated, plaintiff's allegations that he had no notice of the surrender is in effect a denial that the bail have been exonerated (Hills v. Lewis, 13 Abb. 101, note).

a. The time for charging in execution is to be computed from the date of actual entry of judgment, not from the date when the plaintiff might have entered it (Lippman v. Petersberger, 9 Abb. 209; 18 How. 270). The mere acceptance of an offer to allow judgment, is not obtaining judgment within the meaning of the statute (id.)

b. A defendant under arrest, prejudiced by plaintiff, delaying to enter judgment and charge in execution should move to compel same (2 Abb. N. S. 295).

c. An order of supersedeas is appealable to the general term (2 Abb. 20). d. Escape.-After voluntary escape from custody or execution, the party cannot be retaken (Lansing v. Fleet, 2 Johns. Cas. 3). But by voluntarily returning, he may, by renewal of process, be retained in custody (Thompson v. Lockwood, 15 Johns. 556; Littlefield v. Brown, 1 Wend. 398). After a negligent escape the party may be recaptured out of the State (see Lockwood v. Mercereau, 6 Abb. 206).

e. Where a prisoner, who has given bonds for the limits, and is arrested by authority of law within the limits and carried beyond the limits against his consent, and he returns to the limits as soon as practicable, such going beyond the limits is not an escape for which the sheriff is liable (Wickelhauser v. Willett, 12 Abb 319; see, contra, Brown v. Tracy, 9 How. 93; and see Dexter V. Adams, 2 Denio, 646; and 4 How. 367).

f. The insolvency of the debtor is no bar to an action against the sheriff for an escape, founded on 2 Rev. Stat. 437, § 63 (Barnes v. Willett, 11 Abb. 225; 12 Abb. 448; and see Smith v. Knapp, 30 N. Y. 581; Carpenter v. Willett, 31 N. Y. 90; Metcalf v. Stryker, 31 N. Y. 255; French v. Willett, 10 Bosw. 566 ; Wilckens v. Willett, 1 Keyes, 521).

$289. (Am'd 1849.) Form of the execution.

The execution must be directed to the sheriff, or coroner when the sheriff is a party, or interested, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judg ment, stating the court, the county where the judgment-roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the officer substantially as follows:

1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and, if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter.

2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the officer to satisfy the judgment out of such property.

3. If it be against the person of the judgment debtor, it shall

require the officer to arrest such debtor, and commit him to the jail of the county, until he shall pay the judgment or be discharged according to law.

4. If it be for the delivery of the possession of real or personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the officer to satisfy any costs, damages, or rents and profits recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein; if a delivery thereof cannot be had; and if sufficient personal property cannot be found, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter, and shall in that respect be deemed an execution against property.

a. Form of execution.-An execution must truly describe the party whose property is to be levied upon (Farnham v. Hildreth, 32 Barb. 277). It need not state any time or place for its return (Fake v. Edgerton, 3 Abb. 229; 5 Duer, 681). It is sufficient if it substantially follow the terms of the statute, and any defect in its form may be amended (Pierce v. Crane, 4 How. 257; Park v. Church, 5 How. 381). An irregularity in an execution which would be amendable, can only be taken advantage of by the execution debtor (Berry v. Riley, Barb. 307; Grosvenor v. Hunt, 11 How. 355; Oakley v. Becker, 2 Cow. 454; Abels v. Westervelt, 15 Abb. 230). An execution on a judgment, by confession, will not be set aside at the instance of creditors because it was issued before the maturity of the note; nor is it a substantial defect in the execution that it describes the judgment to have been obtained in an action (Healey v. Preston, 14 How. 20; and see Oakley v. Becker, 2 Cow. 454). As to the form of an execution to collect an installment due on a judgment by confession, see § 384.

b. Where the execution recited that the judgment-roll was filed, instead of reciting, as the fact was, that a transcript of the judgment was so filed,—held that the execution might be amended to conform to the fact (Abels v. Westervelt, 15 Abb. 230).

c. A judgment issued out of the supreme court, upon a judgment recovered in a court of common pleas, is absolutely void (Clarke v. Miller, 18 Barb. 269) d. Execution against executors or administrators.-Executions against executor or administrator should not issue until his account has been rendered and settled, or unless by order of surrogate. And if issued after the settlement of account, then only for the proportion of assets applicable to judgment (2 R. S. 88, § 32; 2 Abb. 437: 11 How. 126; 10 How. 217; 23 Wend. 478; 12 Wend. 543; 9 Wend. 448, 487; 2 Bradford Sur. R. 24). A surrogate may, in his discretion, order an execution to issue, and no appeal lies from his decision (Mount v. Mitchell, 31 N. Y. 356)

e. An execution against property, on a judgment against executors, must direct the sheriff to collect the judgment out of the personal estate of the testator, naming him, in the hands of the defendants as his executors. It is not enough, in such a case, that in the execution the defendants are described as executors, because this alone will not prevent the sheriff levying on the individual property of the executors. The second subdivision of § 289 is imperative that the execution shall require the officer to satisfy the judgment out of the property which, according to the judgment, is liable for its payment.

If, at the time of issuing the execution, the defendant's accounts have been "rendered and settled," it is unnecessary to procure an order of the surrogate granting leave to issue the execution. But the execution can issue, only for the sum that shall have appeared, on the settlement of such accounts, to have been " a just proportion of the assets applicable to the judgments" (2 R. S. 88, $32). This provision of the revised statutes is still operative (Code, § 471; Olmstead v. Vredenburgh, 10 How. 217), and extends to debts contracted after the decease of the testator or intestate (Cowles v. Thompson, 5 Bradford Sur. R. 490).

See note to § 283.

ɑ. Execution against the person. It is not necessary (although it is better so to do) to state, in an execution against the person, the nature of the action (Fullerton v. Fitzgerald, 10 How. 37; 18 Barb. 441). Nor is it necessary to recite the facts which authorize the arrest (Hutchinson v. Brand, 9 N. Y. 208).

b. Execution against joint debtors.-Where the execution is issued in an action against two joint debtors, and in which only one of the defend ants has been served with process, the execution may be in form against both the defendants, but should be indorsed with a direction to the sheriff, not to levy on the sole property of the defendant not served (2 R. S. 377, § 3). e. Where an execution issued against two joint debtors has been levied upon the property of one of them, the plaintiff will not be allowed to countermand it and issue a new execution for the purpose of making a levy upon the sole property of the other defendant (McChain v. McKeon, 2 Duer, 645). An execution against joint debtors has priority over an attachment against one of the debtors, though the attachment is also for a joint debt (Abels v. Westervelt, 15 Abb. 230).

The execution shall be returnable within sixty days after its receipt by the officer, to the clerk with whom the record of judgment is filed

d. Return.-It is not necessary that an execution should remain in the hands of the officer sixty days. The return cannot be sooner compelled; but the officer may return it sooner (Morange v. Edwards, 1 E. D. Smith, 415; Spencer v. Cuyler, 17 How. 157; 9 Abb. 383). A sheriff is bound by law to return an execution according to the requisition of the statute, at his peril. If he neglects it, he renders himself liable to an attachment or an action, at the election of the party aggrieved; and in all cases the onus is on the sheriff to excuse the default (Wilson v. Wright, 9 How. 460). The omission of the sheriff to file his return does not affect the rights of the judgment creditor (Winebrenner v. Johnson, 7 Abb. N. S. 202).

e. It is the duty of a sheriff to return process to the proper office, either personally, by deputy or by mail. Or it may, at the request of the attorney of the execution creditor, be returned to such attorney. If the process be returned by mail, the sheriff must prepay the postage on the letter inclosing such process (Jenkins v. McGill, 5 How. 205; Laws 1850, ch. 225, § 3).

f. Where a sheriff neglects to collect and return an execution within the time prescribed by law, he is liable to the plaintiff in the judgment, for the damages sustained by his neglect, unless he can show that the defendant in the execution had no property out of which the debt could be collected (Bowman v. Cornell, 39 Barb. 69; Humphrey v. Hathorn, 28 Barb. 278). In such an action the amount of the judgment and interest (Paige v. Willett, 5 Trans. App. 27) is the measure of damages; unless the defendant can show the judgment debtor had not sufficient goods to satisfy the execution, or some evidence in mitigation (Brookfield v. Remsen, 4 Trans. App. 278). The right of action having accrued is not divested by an appeal from the judgment (id.; The

People v. Lott, 21 Barb. 131). The attorney for the execution creditor may extend the time for the sheriff to collect the execution; such extension is a justification of the sheriff (see Humphrey v. Hathorn, 28 Barb. 278); and further, as to liability of sheriff for not returning execution, see Sweezy v. Lott, 21 N. Y. 481).

a. Executions on judgments of a district court of New York city, or the Marine court, where a transcript has been filed in New York, should be returnable to the clerk of New York common pleas.

b. A judgment against a sheriff for not returning an execution is not a satisfaction of the judgment on which such execution issued (Baker v. Martin, 3 Barb. 634).

c. The omission of the sheriff to indorse upon the execution the proper return before it is filed, is amendable nunc pro tunc after the filing, but the sheriff must pay the costs of the motion to amend (Hill v. Ayer, 19 How. 91; 9 Abb. 220).

d. The supreme court has power to authorize a sheriff to withdraw from the files an execution, and to cancel a return of nulla bona made thereon (Barker v. Binninger, 14 N. Y. 270; Flanagan v. Tinen, 53 Barb. 587; Kingston B'k v. Eltinge, 40 N. Y. 401).

See Rule 8.

291. (Am'd 1849, 1851.) Existing laws continued.

Until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter.

e. Indorsement of execution.-On receipt of the execution the sheriff is required to indorse thereon the year, month, day, and hour when he received it (2 R. S. 364, § 10).

ƒ. Sheriff bound to enforce execution.-Where the execution is regular on its face, and there is no defect of jurisdiction, neither irregularity nor error in issuing the execution will justify the sheriff in neglecting or refusing to execute it (French v. Willett, 4 Bosw. 649), otherwise if the execution is void (id.; Carpenter v. Willett, 1 Keyes, 510). But the sheriff may require indemnity before levying on property not in the possession of the execution debtor (Chamberlain v. Beller, 18 N. Y. 115), even after levy and sale (Wester velt v. Frost, 1 Abb. 74). A sheriff acts officially in selling the property of a stranger, as the property of the defendant in the execution. He may take an indemnity from the plaintiff for such an act, but cannot give an indemnity to the bidders at the sale. A sheriff, while in the discharge of his official duty, cannot divest himself of his official character (Ball v. Pratt, 36 Barb. 402). On being indemnified, he is bound to keep possession of the property, although a sheriff's jury may have found the title in a third person (The People v. Schuyler, 5 Barb. 166).

g. When execution may be levied.—The execution cannot be levied on a Sunday (1 R. S. 675, § 69) ; nor after the execution has been sixty days in the hands of the sheriff (Kingston B'k v. Eltinge, 40 N. Y. 391).

h. Instructions to sheriff. The party in whose favor process issues may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him (Root v. Wagner, 30 N. Y. 9; see Averill v. Williams, 4 Denio, 295).

¿. What attorney may issue execution.-An execution may be