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a.

“The Supreme Court, the Court of Chancery, the Superior Court of the city of New York and the several Mayors' Courts in this state, shall respectively have and possess the same jurisdiction and power concerning the dockets of their judgments kept by the several county clerks, which the supreme court possesses concerning the docket of its judgment in the offices of the clerks of the said supreme court; and may in the same cases direct the amending and correcting of such dockets, and the docketing of judgment nunc pro tunc, with said county clerks; and the several courts of common pleas of each of the counties in this State, shall possess the like juris. diction and power respecting the dockets of their judgments with the clerks of other counties.” Laws of 1844, p. 92, s. 7.

TITLE IX.

Of the execution of the judgment in Civil Actions.

CHAPTER 1. The execution.

II. Proceedings supplementary to the execution.

CHAPTER I.

The E.cecution.*

Section 283. Execution within five years, of course, as prescribed by this title. 284. After five years, to be issued only by leave of court. Leave how

obtained. Execution on judgment of justices' or other inferior

courts when docketed, how issued. 285, Other judgments, how enforced. 286. The different kinds of execution. 287. To what counties execution may be issued. 288. Execution against the person, in what cases, and when. 289. Form of the execution. 290. To be returnable in sixty days. 291. Existing laws relating to execution continued, until otherwise pro

vided.

of

$ 283. [238.] (Amended 1849.) Execution within five years, course, as prescribed by this title. Writs of execution for the enforcement of judgments as now

* b. The code, in my judgment, does not materially change the law as it previously existed on the subject of executions, except that it prescribes a formula for the writ; the different kinds and primary object remain as heretofore. Per Hubbard, J., in Gridley v. McCumber, 3 Code Rep., 211.

c. The execution must follow the judgment, and be warranted by it. Corwin v. Freeland, 6 Pr. R., 241.

used, are modified in conformity to this title, and the party in whose favor judgment has been heretofore or shall hereafter be given, may at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title.

a. This section is substituted for section 238 in the code of 1848, the language of which differs from this, and was held not to be applicable, except by consent, to judginents rendered before the code took effoct. Merritt v, Wing, 2 Code Rep., 20, 4 Pr. R., 14.

b. This and the next section, however, are held to apply as well as to judgments rendered before the code took effect, as to those rendered in actions commenced un. der the code. Catskill Bank v. Sandford, 2 Code Rep., 58; 4 Pr. R., 101; Swift v. De Witt, 1 Code Rep., 25; 3 Pr. R., 280; Clark v. Hutchinson, 1 Code Rep., 127.

c. This section not only enlarges the time within which an execution may be issued without leave of the court, from two to five years, but takes away the 30 days' suspension of the right to issue it, and now, in all cases, executions may be issued immediately on perfecting judgment, and at any time within five years thereafter. Per Gridley, J., in Swift v. De Witt, supra.

d. After five years no execution can be issued without leave of the court upon motion, except by consent of the defendant, in which case execution may issue without any order from the court. Hulbert v. Fuller, 3 Code Rep., 55; Currie v. Noyes, I Code Rep., N. S., 198.

e. Where an execution has been issued under the old law, upon a judgment docketed under the law (prior to the passage of the code], aud returned unsatisfied, an alias or pluries execution may issue as heretofore, without an order of the court, though more than five years may have elapsed since the entry of judgment. Pierce v. Crane, 3 Code Rep., 21; 4 Pr. R., 257.

f. But where a creditor's suit was instituted before the passage of the code of 1848, and a receiver appointed, and an assignment made to such receiver, and the plaintiff, after the code went into effect, issued and levied an alias fieri facias on property covered by such receivership, the court set aside such levy unless the plaintiff waived his receivership, and dismissed his creditor's suit. Gouverneur v. Warner, 2 Sand., 624.

g. The fact that an execution was issued within five years after the entry of judgment, does not justify the issuing of an execution in the nature of an alias aster the expiration of five years, without the leave of the court first obtained. Currie v. Noyes, 1 Code Rep., N. S., 198.

h. Where an execution issued against the property of two joint debtors has been levied on 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.

Execution against property of a deceased judgment debtor. ¿ Where a sole defendant dies after judgment and before execution, no execution can issue within one year after. But where the judgment is against several defendants, the death of one dues not stay execution against the surviving defendants. 19 Wend., 644.

j. By laws of 1850, cap. 295, p. 639, it is enacted, that "notwithstanding the death of a party after judgment, execution thereon, against any property, lands, tenements, real estate, or chattels real, upon which such judgment shall be a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution cannot be issued within a year after the death of the defendant, nor in any case unless upon permission granted by the surrogate of the county, who has jurisdiction to grant adminis. tration or letters testamentary on the estate of the deceased judgment debtor, which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid ;" and the act applies to all judgments, whether rendered before or after its passage (April 10, 1850).

Execution in favor of a deceased judgment creditor. a. Where it appeared that a transcript of a judgment was filed in April, 1844, and that in January, 1850, an execution on such judgment was issued by order of the court; and it further appeared, that at the time of making such order the plaintiff had been dead upwards of three years; and it did not appear that the parties who procured the order to issue the execution were the legal representatives of the de. ceased ; at a general term of the supreme court,-Willard, Hand, Cady, and Allen, JJ.-Hand, J., in delivering the decision, said he was inclined to think the execution a nullity; and he added, “ Under our former system, an execution could have been actually issued after the death of the judgment debtor, if it were tested before. Center v. Billinghurst, 1 Cow., 33; Hay v. Fowler, 1 Pr. R., 127.) But it was irregular if tested after his death. (Heafy v. Parris, 6 T. R., 367"; Bragner v. Langmead, 7 ib., 20; Stymets v. Brooks, 10 Wend., 21; Nicholls v. Chapman, 9 ib., 452; 2 Saund. R., 60., 1 and 6; 1 Tidd, 1029; 1 Burr. (Pr., 282.) My first impressions were that this was voidable, and not void. (Patrick v. Johnson, 3 Lev., 403 ; Blanchney v. Bent 4 Q. B. R., 707.). Generally, this court will not interfere with matters of practice and discretion of an inferior court. But in this case non constat, but the (parties who issued this execution) were merely strangers, intermeddling with the property and concerns of others, and taking the property (of the judgment debtor), and appropriating it to their own use without right or authority, under a misuse of the forms of law, in the name of a deceased person. There is nothing in the code to warrant the proceeding. Even if a suit or suggestion upon the record was unnecessary, at least the personal representatives (of the deceased judgment creditor) should apply for the execution. No one authorized to receive the debt and acknowledge satisfaction, appears in this case.” Billinger v. Ford, 14 Barb. 250.

b. An execution cannot issue on a judgment after the death of the judgment creditor. The remedy to enforce the judgment is an action by the executor of the judgment creditor-praying a judgment that he be at liberty to issue execution on the judgment in the name of such executor to be levied of any lands which the defendant held when the judgment was docketed. Thurston v. King, I Abbott, 127.

c. After the death of a judgment creditor his executors moved, on notice to the judgment debtor, for leave to issue execution on the judgment; the motion was denied— Jay v. Martine, 2 Duer, 654 ; and per Bosworth, J.

;

• Sections 283, 284, I understand to be applicable to those judgments only to which the parties are all lis. ing-In all such cases, an execution will be allowed to be issued on motion. An execution cannot issue in favor of or against a dead man. It cannot issue in favor of the representatives of a deceased plaintiff until there is a judgment to authorize and support it. Their title to the judgment, and to enforce it

, is to be established not by motion, but by an action under ch. 2, tit. 13, of the code, s. 428. * * An assignee of a judgment, if the plaintiffbe dead, can undoubtedly now maintain an action to obtain judgment, that he have execution of the original judgment. (Cameron v. McKay, 6 Pr. R., 372.)16.

Execution against Executors. d. 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 section 289 is imperative that the execution shall require the officer to satisfy the judgment out of the property which, according to the judge ment, 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 judgment,” 2 R. S. 88, s. 32. This provision of the revised statutes is still operative. (Code, s. 471.) Olmstead v. Vrea urg, 10 Pr. R., 217.

a. The judgment record should be actually filed before execution can issue. 5 Wend. 109; 20 Johns. R., 307; 2 R. S., 284 (360), s. 11; but it may be ordered to be filed nunc pro tunc. 3 Cow., 39 22 Wend., 566.

b. On receipt of the writ the sheriff is required to endorse thereon the year, month, day, and hour when he received it. 2 R. S., 288 (364), s. 10.

$ 284. [239.] (Amended 1849, 1851.) After five years, to be issued only by leave of court. Leave, how obtained.

After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due.

When the judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New York to the court of common pleas of that city and county.

The amendments of 1851 are in italic,

c. These provisions (sections 281, 284) are new. Per Mason, J., in Pierce v. Crane, 4 Pr. R., 257; 3 Code Rep., 21. They are clearly for the benefit of the defendant alone ; and if he sees fit to waive them, he may do so. Per Shankland, J., in Hulbert v. Fuller, 3 Code Rep., 55; and therefore if the defendant consent thereto, an execution may issue after the lapse of five years from the entry of judgment. Ib.

d. On a motion under this section for leave to issue execution, if the judgment debtor denies that any thing is due upon the judgment (or that less is due than is claimed by the judgment creditor), the court before granting the motion will refer the matter to a referee to report what, if any thing, is due upon the judgment. Catskill Bank 1. Sandford, 2 Code Rep., 58; 4 Pr. R., 101; and if it is considered a proper case for granting the motion, the court will direct that on filing the report of the referee with the county clerk, the judgment creditor be at liberty to issue execution for the amount reported due. Ib.

e. When the satisfaction of a judgment was produced by the sale upon the execution of real estate supposed to belong to the judgment debtor, and it was afterwards discovered that he had no title, and that none was obtained by the purchaser, an order

of the supreme court vacating the satisfaction and authorizing a new execution was affirmed. Suydam v. Holden, Court of Appeals, October, 1853.

See note to section 283.

§ 285. [240.] (Amended 1849.) Other judgments how enforced.

Where a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby or by law to obey the same, and his obedience thereto enforced. If he refuse, he may be punished by the court as for a contempt.

a. Where the plaintiff brought his action to compel the defendant to make or acknowledge satisfaction of a mortgage, and the defendant served notice that judgment might be entered as prayed for in the complaint, which was accordingly done-held on motion by the plaintiff for an order to compel the defendant to execute such så. tisfaction that such a motion was unnecessary; the judgment (if correctly entered) contained the proper order, and the mode of enforcing it was by proceeding under s. 255. The defendant should be served personally with a copy of the judgment. A tran. script served on the defendant's attorney, with a personal demand upon the defendant, was insufficient. Fero v. Van Evra, 9 Pr. R., 148.

$ 286. [241.] (Amended 1849.) The different kinds of execution.

There shall be three kinds of execution; one against the property of the judgment debtor; another against his person; and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be sealed nor subscribed, except as prescribed in section 289.

b. A ca. sa. is an execution within the meaning of the act of 1842, am ending the revised statutes so as to require executions to be issued within 30 days after the lime when, by law, such executions should be issued, and the 222d section of the act concerning courts held by justices of the peace. Fox v. Ames, 6 Barb. 256.

§ 287. [242.] (Amended 1851, 1852.) To what countics execution may be issued.

When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where the judgment is docketed. When it requires the delivery of real or personal property, it must be issued to the

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