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mere formal defects. The omission of the words, " or be discharged,” in the process, was decided to be a defect of this nature, and an amendment was ordered accordingly in Hutchinson v. Brand, 6 How. 73.
The form of an execution under subdivision 4 of section 289, will be found in the Appendix. As yet no particular question seems to have arisen as to this form of process, there being no reported decisions upon the subject.
The foregoing considerations have more peculiar reserence to the proper form of execution in particular cases, the following are applicable to the subject in general, though more specially to executions against property.
If an execution conform in substance to all the requisitions of sec. 289, any merely technical informalities will be disregarded, and, at all events, are amendable.—Pierce v. Craine, 4 How. 257; 3 C. R. 21; Park v. Church, 5 How. 381; 1 C. R. (N. S.) 47. In the latter case, a liberal interpretation was given to a stipulation which had been made on the original confession of judgment, that execution should not be issued, unless, upon an actual examination of the defendant's books, the plaintiff had good "reason to deem himself insecure;" and an execution, though issued without such actual examination, was sustained, it having been shown that the plaintiff had good reason for so deeming, in consequence of other circumstances.
The suffering an execution issued against real estate to lie dormant in the sheriff's hands, does not destroy the plaintiff's Jien on that estate. That lien never becomes dormant, until the expiration of the ten years' statutory limitation.-Muir v. Leitch, 7 Barb. S. C. R. 341.
In Chapman v. Fuller, 7 Barb. S. C. R. 70, it was decided that an execution may be renewed on the last day, so as to retain the lien under it, (the property being on hand for want of buyers,) without any return being made.
On an execution against property, an unrealized chose in action cannot be levied upon and sold.— Ransom v. Miner, 3 Sandf. S. C. R. 692; I C. R. (N. S.) 98.
In a case where process in the nature of an execution against property had been issued for the collection of an amount of costs due under an order, it was held that no previous demand of the amount was necessary, and that such costs are not collected under the Code, but under the acts of 1840, p. 333, sec. 15, and 1847, p. 491, chap. 390, sec. 3, under which no such demand is necessary.—Lucas V. Johnson, 6 How. 121; Mitchell v. Westervelt, 6 How. 265, affirmed 6 How. 311; see, also, subsequently, under the head of costs.
In Ellice v. Van Rensselaer, 6 How. 116, it was held that interest on tax warrants, under the act to equalize taxation, cannot be collected; but that, where several tax warrants were in the sheriff's hands, some prior and some subsequent to an execution lodged with him, the principal due on all such warrants was to be paid before the execution; the sale, in that case, having taken place under the former, and there being other property on which the judgment was a lien, but which, at the plaintiff's request, the sheriff had not advertised.
If the judgment debtor can show any fraud or collusion, in omitting to levy on property, or otherwise, the court will take care it is not effectuated, and will interfere for that purpose.Engle v. Bonneau, 2 Sandf. S. C. R. 679.
A mere notice by the execution debtor of an appeal, and of an undertaking staying proceedings, was held in Clark v. Carnley, 3 C. R. 136, not to be a sufficient justification to the sheriff for a refusal to levy, the undertaking in that case not having been sufficient in the first instance. The sheriff ought, it seems, to have required from the defendant "a certificate of the clerk of the filing of the undertaking, with a copy of that document. If such papers were regular on their face, they would probably furnish the sheriff with sufficient excuse for staying proceedings."
The course to be pursued against the sheriff, in the event of any neglect in the performance of his duties, is prescribed by Rule 6 of the supreme court; under which the plaintiff is entitled to serve on him a notice to do the act required within ten days, or show cause, at a special term, to be designated in said notice, why an attachment should not issue against him ; on the return of which order, unless cause be shown, that attachment may issue, in the ordinary form of process for contempt.
In the event of the escape of a party arrested, the remedy against the sheriff is by an action for such escape, under the provisions of the Revised Statutes, cited at the end of the chapter: nor will such action be discharged by the subsequent death of the escaped prisoner, whilst at large, although his voluntary return before suit brought, will be a discharge.Tanner v. Hallenbeck, 4 How. 297.
In such an action, the sheriff cannot avail himself of any defect or irregularity in the process, rendering it simply voidable. Unless the process is actually void, he is bound to retain the prisoner, and is responsible if he allow him to go at large.Hutchinson v. Brand, 6 How. 73. In such an action he is liable for the whole judgment, and for costs, but not for interest on the former.
In the event of the sheriff's disqualification, the coroner is the proper officer for the execution of process, and it must be addressed accordingly.
The sheriff's fees on execution will be found in sec. 54 of title III. chap, X. part III. of the Revised Statutes. See, also, c. 225 of the Laws of 1850. His poundage does not, however, accrue until actual levy; and therefore a stay of proceedings and subsequent discharge of the action after the executions are placed in his hands, but before such levy, will defeat his claim in this respect.-People v. Adams, 1 C. R. (N. S.) 226.
In case of the death of a judgment debtor, the plaintiff's remedy, by execution, is not gone. It is, however, positively suspended until the expiration of one year from the death of the defendant; and, even after that, it can only issue upon permission given by the surrogate who has jurisdiction to grant administration to the deceased. Laws of 1850, c. 295. And such act is declared to be not merely prospective, but also retrospective in its effect. The judgment creditor, under such circumstances, retains, however, under the provisions of the revised statutes, his precedence over such creditors of the deceased as have not taken the precaution of proceeding against him in his lifetime, and who cannot afterwards, by any proceedings against the the executors, gain priorities as between each other, or over a previous judgment against the testator or intestate.
Where the lien of the judgment creditor has ceased by lapse of time, the court will order a perpetual stay of execution, as against bonâ fide purchasers, unless the judgment creditor can satisfy the court, by positive evidence, that their purchases are not of that nature.-- Wilson v. Smith, 2 C. R. 18.
Executions, of whatever nature, are, under sec. 290, returnable within sixty days after their receipt by the sheriff or coroner, to the clerk with whom the record of judgment is entered, and the sheriff is bound to pay the postage on that return, being allowed a special fee for that purpose. It may, however, be returned at an earlier period, at the option of the officer. See cases to that effect cited in the ensuing chapter.
The remedy of the defendant in respect of any irregularities, either in the original issuing of the execution or in the proceedings under it, is by motion to the court on the usual notice. A payment of the debt and costs, of course discharges it, but subject to the payment of poundage and fees, if a levy has actually been made. The proper course on a payment of this description will be, to obtain a direction from the plaintiff's attorney to the sheriff to withdraw the execution. If refused, or if, from any other reason, that course be unadvisable, proceedings will be stayed at once, on an application to the court, grounded on proof of payment.
In Bush v. Pettibone, 4 Comst. 300, 1 C. R. (N. S.) 264, it was held that, under the common law, a defendant could not be discharged from imprisonment in a civil suit, on the ground that he was insane at the time of the arrest, or became so afterwards ; but that relief might be extended in such a case, under the act in relation to the State Lunatic Asylum, passed April 7, 1842. The sending of the prisoner to that asylum is, however, a condition precedent to such relief; and, an unconditional discharge having been granted in that case, it was held that such discharge was void, and that the sheriff was not at liberty to obey it; and a verdict against the latter for an escape, under these circumstances, was accordingly sustained.
The sheriff is bound to hand over to the plaintiff the amount made by him on the levy, retaining his fees, and to return the process to the court, as above directed. If he neglect his duty in the former respect, he and his sureties are liable to be proceeded against, under the provisions of title V. of chap. VIII. part III. of the Revised Statutes, on leave of the supreme court for that purpose, as thereby prescribed. The general statutory provisions in respect to this officer, and the coroner, where he acts in his stead, and as to their powers, duties, and liabilities, will be found in title VI. of chap. VII. part III. of the Revised Statutes. They are in no respect changed by the Code, but remain as they were under the old practice. It has been shown, by several of the cases cited in the course of the chapter, that an execution is amendable in respect of formal defects, on application to the court for that purpose, under the powers conferred by section 174.
If money have been collected, or property delivered over under an execution, and such execution be set aside, or the judgment whereon it was issued be reversed, restitution may be enforced, and process of the above nature made use of for carrying into effect the order of the court for that purpose. A special direction of this nature is inserted in sec. 135, in relation to judgments grounded on service by publication, and subsequently reversed, but, with this important reservation, that “ the title to property sold under such a judgment to a purchaser in good faith, shall not be thereby affected;" and, in other cases, the court will probably be disposed to extend similar protection to purchasers under a proceeding set aside after the expiration of any lengthened period, in cases where the good faith of the purchases made by them is either admitted or unquestioned.
Executions on justices' judgments remain to be shortly alluded to. Strange to say, the powers of these courts are far more stringent and extensive, in relation to remedies against the person, than those of the tribunals of superior jurisdiction. The legality of some of the forms occasionally used, and particularly of that in which an execution is awarded against the property, and, in default of a sufficient levy, a direction to arrest the debtor is inserted, simultaneously and under the same process, seems open to question ; but this work does not profess to enter upon this branch of jurisdiction.
OF PROCEEDINGS SUPPLEMENTARY TO EXECUTION.
The remedies provided by the Code in this respect, are numerous and important. In strictness, perhaps they ought to be classified under the head of special proceedings, according to the principle laid down in the cases of Davis v. Turner, 4 How.