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TITLE XI.

OF THE EXECUTION OF THE JUDGMENT IN CIVIL CASES.

Chapter I. The execution.

Chapter II. Defendant's claim for betterments under execution for possession of land.

Chapter III. Proceedings supplementary to execution.

Chapter IV. Proceedings to lay off exemptions under execution.

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255.—Execution issued within three years, of course.

Writs of execution for the enforcement of judgments as now used are modified in conformity to this title, and the party in whose favor judgment has been heretofore or shall hereafter be given, and in case of his death his personal representatives duly appointed, may at any time within three years after the entry of judgment, proceed to enforce the same, as is prescribed by this title.

The provisions of this title shall apply to existing judg ments except in the cases provided for, by the ordinance of the Convention of this State entitled "An Ordinance respecting the Jurisdiction of the Courts of this State," ratified fourteenth of March, 1868, which shall be governed by the existing law.

Ross v. Alexander, 65-576; Aycock v. Harrison, 71-432.

? 256.-After three years, to be issued only by leave of court-leave how obtained.

After the lapse of three years from the entry of judg ment, 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. But the leave shall not be necessary when execution has been issued on the judgment within the three years next preceding the suing for execution, and returned unsatisfied in whole or in part.

See § 14, ante, and cases there cited.

After a judgment fixing an executor with assets, and a return of nulla bona on an execution issued thereon, the proper mode to subject such executor personally, is by motion on notice and not by a civil action. McDowell v. Asbury, 66-444.

The Supreme Court has no power to compel a defendant, by attachment, to apply money, he is said to possess to the payment of a judgment for costs recovered against him by the plaintiff in the court. The provisions, in regard to supplemental proceedings, (§ 264 to § 274) are only applicable to the Superior Courts. Phillips v. Trezevant, 70-176.

When a party dies after judgment, the action abates, just as it would before judgment. In such case, notice of a motion to revive, must be served on his personal representative. Aycock v. Isler, 71— 432. This case was in regard to an action in which judgment was had in 1861. Under § 64 of the Code, an action is only abated by order of the court. See Moore v. N. C. R. R. Co., 74-528, and other cases cited under § 64, ante.

A judgment, given by a justice of the peace in one county, cannot be docketed in another without having been first docketed in the county, where it was rendered. McAden v. Banister, 63-478.

Quare. Whether a lien created by a levy prior to the docketing of a judgment, is continued by virtue of such docketing without following it with a venditioni exponas; or whether the issuing of an execution on such docketed judgment waives the lien created by the levy before docketing? Baldwin v. York, 71-463.

The clerk of the Superior Court is the proper person to hear an application to issue an execution upon a judgment of more than three years' standing, and not the judge. The execution, in such case, must be made returnable to the next term. McKeithan v. McNeill,

74-663.

2257.-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 contempt.

258.-The different kinds of execution.

There shall be three kinds of execution; one against the

976 property of the judgment debtor; another against his per

son; 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, and shall be subscribed by the clerk, and when they are to run out of his county, sealed with the seal of his court.

259-To what counties execution may be issued-execution against a married woman.

When the execution is against the property of the judg ment 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 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 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 to be sold.

An execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her, from her separate property, and not otherwise.

¿ 259.a-Execution under the Act of 1871'-72, Chapter 74, Section 1.

The judgments of the several courts in this State, shall be docketed as now provided by law; but the executions

provided in this chapter, and all writs of venditioni exponas, and other process for the enforcement of such judg inents, shall issue, under seal of the court, only from the court in which the judgment for the enforcement of such execution, other final process, or any of them, may issue, was rendered; and such executions or other final process against the property of the defendant or defendants, or any one or more of them, may be issued to any county, in which such last mentioned judgment may be docketed; and such executions or other final process, may issue to two or more counties at the same time, as now provided by law, and executions against the person or persons of the defendant or defendants, or any of them, may issue to any one or more counties in the State; and the returns of all such executions, or other final process, shall be made to the court of the county from which the same is issued.

259.6-Return under Act of 1871-72, Chapter 74, Section 2.

When any such execution shall be returned, as herein provided, the return of the sheriff or other officer shall be noted by the clerk on the execution docket; and when the same shall be returned satisfied, or partially satisfied, it shall be the duty of the clerk of the court to which the same is returned, to send a copy of such last mentioned return, under his hand, to the clerk of the Superior Court of each county, in which such judgment is docketed, whose duty it shall be to note such copy in his execution docket, opposite said judment, and file said copy with the transcript of the docket of said judgment in his office.

259.c-Executions issued before the Act of 1871–72, Chapter 74, valid.

In all cases where such executions have been, or are now issued, either from the court of the county in which such judgments were rendered, or from the court of the county in which such judgment was docketed, other than that in which such judgment was rendered, or from both of such last mentioned courts, whether, at the same time or otherwise, all sales of property, and all other things made and done, and all liabilities and penalties incurred by sheriffs, or other officers or persons, under and in pursuance of such last mentioned executions, shall be valid and binding upon all such sheriffs, other officers or persons, to all intents and purposes, and to the same extent as if such executions or other processes for the enforcement of said judgments had

issued in all respects regularly: Provided, nevertheless, that such executions or other process, were and are, in other respects than those herein specified, regular and valid.

{ 259.d-Amercement of sheriff for failure to return. [Act of 1871-'72, Chapter 74, Section 4.]

In all cases where any sheriff, or other officer, shall be amerced for failure to make due return of any execution, or other writ of process, placed in his hands, or for any default whatsoever in office, and judgment nisi, or otherwise, for the penalty or forfeiture, in such case made and provided, shall be entered, it shall be sufficient to give such sheriff notice, according to law, under the hand of the clerk and seal of the court, where such judgment may be entered, of a motion for a judgment absolute, or for execution, as the case may be, and no other notice, summons or suit, shall be necessary to enforce the same; and such proceedings shall be deemed and held in aid of a suit or other proceedings already instituted in court.

{260.-Execution against the persons-in what cases.

If the action be one in which the defendant night have been arrested, as provided in section one hundred and fortynine (§ 149) and section one hundred and fifty-one (§ 151), an execution against the person of the judgment-debtor may be issued to any county within the State, after the return of an execution against his property, unsatisfied in whole or in part. But no execution shall issue against the person of a judgment-debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section one hundred and forty-nine (149).

Where a docketed judgment is relied on as authority for an arrest of the person by issue of execution thereunder, it is necessary that the affidavit and order of arrest, of the magistrate should be docketed with the judgment. McAden v. Banister, 63-478.

The clerk cannot hear parol evidence of an order of arrest, having been issued by a justice of the peace of another county. Ibid.

When there has been an order of arrest on the ground of concealment of property with intent to defraud his creditors, and the fraud is denied by the answer, and the following entry of judgment is made. "By consent judgment for the debt only; issue of frand not

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