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II. Proceedings supplementary to the execution.
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 other
wise provided. $ 283. [Sec. 238.] Writs of execution for the enforcewithin five years, of ment of judgments as now used, are modified in conformprescribed ity to this title, and the party in whose favor judgment has title. been heretofore or shall hereafter be given, may at any Amended time within five years after the entry of judgment, pro
ceed to enforce the same as prescribed by this title.
§ 284. [Sec. 239.] After the lapse of five years from the issued only entry of judgment, an execution can be issued only by leave of 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. Loave how Such leave shall not be given, unless it be established by the obtained.
oath of the party, or other satisfactory proof that the judg1849, 1861. ment or some part thereof remains unsatisfied and due.
When judgment shall have been rendered in a court of juson judg
lice of the peace, or in a justices or other inferior court in a justices' or other infea city, and docketed in the office of the clerk of the county, the how issued.
application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in
After five years to be
when dock eled, how issued.
the city and county of New-York, to the court of common pleas of that city and county.
Executions may be issued as soon as judgment is entered. De Witt ads. Swift and Waldon, 3 How. 280; the Catskill Bank agt. Sanford, 4 How. 101.
The last two sections apply to judgments obtained before as well as after the code took effect. The Catskill Bank agt. Sanford, 4 How. 101. Contra, Merrit vs, Wing et al., id. 14.
An execution may issue by consent at any time. Merrit vs. Wing et al. 4 How. 14.
Executions in certain cases may issue after five years without leave of the court. Pierce vs. Craine, et al., 4 How. 257.
Unless the judgment show an action in tort, a ca sa will not issue. Grid. ley agt. McCumber, 5 How. 414.
$ 285. [Sec. 240.] Where a judgment requires the pay- Other judg. ment of money or the delivery of real or personal property, enforced. 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.
§ 286. [Sec. 240.] There shall be three kinds of execu- The differtion; one against the property of the judgment debtor; execution. another against his person; and the third for the delivery Amended 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.
$287. [Sec. 242.] When the execution is against the pro- To what perty of the judgment debtor, it may be issued to the sherif of executions any county where the judgment is docketed. When it requires sued. the delivery of real or personal property it must be issued to Amended the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold, must [NOTES.]
ent kinds or
may be is.
Execution against the
be sold in the county where it lies, by the sheriff of the county or by a referee appointed by the court for that purpose, and thereupon the sheriff, or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged by the decree to be sold.
§ 288. [Sec. 243.) If the action be one in which the deperson, in fendant might have been arrested, as provided in section
179 and section 181, an execution against the person of the Amended judgment debtor may be issued to any county within the
jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part.
A ca sa may issue on a judgment recovered in an action for criminal conversation with the plaintiff's wife. Delamater vs. Russell, 4 How. 234; S. C. 2 Code Rep. 147.
So too on an action for seduction. Taylor vs. North, 3 Code Rep. 9.
So too for breach of duty as a common carrier. Burkle vs. Ellis, 4 How. 288.
§ 289. [Sec. 244.] The execution must be directed to the
sheriff, or coroner, when the sheriff is a party or interested, , Amended subscribed by the party issuing it, or his attorney, and must
intelligibly refer to the judgment, 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
Form of the execution.
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.
As to requisites of execution; see Park agt. Church and Atwell, 5 How. 381.
§ 290. [Sec. 245.] The execution shall be returnable to be rewithin sixty days after its receipt by the officer to the clerk sixty days. with whom the record of judgment is filed.
Execution may be returned in less than sixty days. Livingston and Mitchell agt. Cleveland, 5 How. 396; Engle vs. Bonneau, 2 Sand. 679.
Previous to 1850, the sheriff was required to make an actual return to the proper office. Jenkins agt. McGill, 4 How. 205.
See Session Laws of 1850, chap. 225.
§ 291. [Sec. 246.) Until otherwise provided by the legis- Existing lature, the existing provisions of law not in conflict with this ting to exechapter, relating to executions, and their incidents, the property til other
tinued, unliable to sale on execution, the sale and redemption thereof, the vided powers and rights of officers, their duties thereon, and the pro- 1849, 1851.
ceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter.
To render sureties in an appeal bond liable, execution must be issued against the appellant within thirty days after the rendition of the judgment in the appellate court. Fox vs. Ames and Baker, 6 Barb. 256. Session Laws 1842, p. 21, chap. 38.
When exocution returned un
Proceedings supplementary to the execution.
property allowed. Also when judgment debtor refuses to
ing to examine judgment debtor. 293. Any debtor may pay execution against his creditor. 294. Examination of debtors of judgment debtor or of those
having property belonging to him. 295. Witness required to testify. 296. Compelling party or witnesses to attend. Examinations
when to be on oath. 297. Judge may order property to be applied on execution. 298. Judge may appoint receiver, and prohibit transfer, &c., of
denial of indebtedness to judgment debtor.
302. Disobedience of order, how punished.
§ 292. [Sec. 247.) When an execution against property of satisfied, the judgment debtor, or of any one of the several debtors in the order for discovery, same judgment, issued to the sheriff of the county where he allowed. resides, or if he do not reside in the state, to the sheriff of the Amended, county where a judgment roll, or a transcript of a justice's judg