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would seem that the only manner in which such allegations can be introduced, will be in reply to the defendant's denial of liability in the answer, if made. In such a case, a demurrer to the reply will, if possible, be clearly prudent, on the part of the defendants.
Although not expressly prescribed, judgment by default may, doubtless, be entered in the usual manner, if the defendant fail to answer the summons; and the same general rules in relation to time to plead, service by mail, admission of allegations by nondenial, &c., &c., will unquestionably be applicable, precisely as in an ordinary action. The attachment referred to in sec. 380 must, of course, be issued in the usual manner. If applied for before judgment, the defendant's liability must be independently shown on the affidavits. See Oakley v. Aspinwall, above referred to. The rules there laid down cannot, however, be applicable to the case of an attachment obtained after judgment entered up against the defendant, in his several capacity, as above provided. A separate judgment against him will, of course, when entered, be conclusive evidence of his liability.
The sections above cited, make no direct provision in relation to the appeal from a judgment obtained as above, but there can be no doubt that such an appeal, if taken, would be sustainable.
The same provisions are, also, entirely silent in relation to the costs of such a proceeding. From the passages cited at the beginning of this chapter, it appears to have been the intention of the commissioners that none should be allowed, and such might possibly be the construction placed upon these provisions, when taken in connexion with sec. 304 ; on the ground that a proceeding of this nature amounts, in substance, to a second action brought against the parties for the same cause, and, in respect of which, disbursements only are allowable under that section. The point is, however, by no means free from doubt, and must remain so until settled by express decision. It might, possibly, be contended that such costs rest in the diecretion of the court, (sec. 306,) the proceeding being substantially an action, and being tried and judgment given thereon, in the same manner.
Special provisions are made by C. 257, of the laws of 1838, amended by C. 348 of 1845, in relation to compromises or compositions by partners and joint debtors, which enactments must be carefully consulted, and the forms therein prescribed strictly observed, in arrangements of that nature.
OF EXECUTION AND ITS INCIDENTS.
TOF THE FORM AND MANNER OF EXECUTION.
This proceeding retains, under the Code, the same general characteristics which distinguished it under the former practice; and the previous statutory provisions on the subject are, by sec. 291, expressly saved, in all cases where they are not inconsistent with the recent enactments. The latter are rather amendments of, than substitutes for the former. In Gridley v. McCumber, 5 How. 414, 3 C. R. 211, this view is laid down by Hubbard, J., as follows:
“ The Code, in my judgment, does not materially change the law, as it previously existed, on the subject of executions ; escept that it prescribes a formula for the writ; the different kinds, and primary objects, remain as heretofore.”
Some alterations of importance have, however, been affected, which will be treated of in due order.
The first question that arises, is with regard to the time at which execution may be issued, as of course, and without a special application to the court. By sec. 283 of the Code, additional facilities of the most important nature are given in this respect. Under the law, as it stood formerly, process of this nature could not be so issued, after the lapse of two years after the entry of judgment, nor could it be issued at all, until after thirty days from the date of such entry. Under the present system, the period for issuing executions, as of course, is extended from two to five years from such date ; and it may, in all cases, be issued immediately on the entry of judgment, without waiting for any period whatsoever.
After the lapse of five years however, execution is, under the present law, no longer issuable as of course. The leave of the court must then be obtained under the provisions of sec. 284.V. Currie v. Noyes, 1 C. R. (N. S.) 198. This leave must be applied for on motion, with personal notice to the adverse party, if he can be found ; and the application must be supported by affidavit of the plaintiff, or other satisfactory proof that the judg. ment, or some part thereof, remains unsatisfied. Should the defendant appear and deny that there is anything due, a reference will be directed.-- Catskill Bank v. Sandford, 4 How. 101. If the judgment debtor be absent, or non-resident, or cannot be found to make service of the notice upon him, such service may be then made by publication, or otherwise as the court may direct. This last provision is one of the amendments of 1851. The exact form of such service, whether by publication or otherwise, remains still to be settled ; and the decisions at present reported, contain no indications as to the exact conditions which may be imposed. Those conditions evidently rest in the discretion of the judge, according to the circumstances of each particular case. It is probable, however, that, as a general rule, the ordinary course on service of a summons by publication may be adopted, though perhaps with some modification. The application for leave of this description, in respect of a justice's judgment docketed in the county clerk's office, must, under the same section, be made to the county court of the county where such judgment was rendered ; and, therefore,in New York, to the court of common pleas.
The provision for re-issuing execution on an old judgment, by leave of the court thus obtained, is evidently in substitution for the old writ of scire facias, expressly abolished by sec. 428, except as to proceedings theretofore commenced, or judgments rendered or rights acquired thereunder, which are expressly saved by that provision.
Considerable discussion arose, however, as to whether, under the measures of 1849, the provision of that section were or were not retrospective, as regarded suits commenced before, and pending at the time of the passage of the original code.
In The Cutskill Bank v. Sandford, 4 How. 100, 2 C. R. 58, it was held in an action commenced before the passage of the Code, that a sci fa could not be issued after such passage, that writ being abolished by sec. 428: the saving clause in that section relating only, as the learned judge held, to proceedings commenced before its abolition.
On another occasion, it was also held by another learned judge, in the same cause, 4 How. 101, that the sections in ques. tion are applicable as well to judgments entered before the Code took effect, as to judgments rendered in the actions brought under it. The case of Jones v. Lawlin, 1 C. R. 94, decided with reference to supplementary proceedings under an execution, is not applicable to the point at issue, inasmuch as the provisions on that head are expressly made retrospective as to suits pending at the passage of the Code, by subdivision 2 of sec. 2 of the Supplementary Act.
The reasoning in the above two cases, seems, however, scarcely sound, upon a more minute examination. In the first place, the words “judgment rendered or right acquired," in the sav. ing clause as to proceedingstheretofore commenced, with respect to the writ of scire facias, appears to have been overlooked ; whilst, in the second, the wording of sec. 8, which limits the operation of the Code to actions commenced after the 1st of July, 1848, except when otherwise provided therein; and the fact that secs. 283 and 284 are not amongst the number of those made applicable to then pending suits by the 2d section of the supplementary measure, appears to have been equally lost sight of.
Those cases may, in fact, be considered as having been overruled, by the following series of decisions to the contrary effect:
The writ of sci. fa. was expressly declared to be the proper remedy, and that the sections in question did not apply, in ac tions pending at the passage of the Code, by the anonymous case, 1 C. R. 118.
An execution, issued before the thirty days allowed to the defendant by the old practice, was set aside, because, the action having been commenced before the Code, its provisions did not apply in Clark v. Hutchinson, 1 C. R. 127; 7 L. O. 91. It is, however, well settled, that in actions commenced under the Code itself, whether original or amended, the plaintiff need not wait the thirty days, but may issue execution immediately.Swift v. De Witt, 3 How. 280 ; 1 C. R. 25; 6 L. O. 314. See, also, The Catskill Bank v. Sundford, 4 How. 101, above cited.
By Merritt v. Wing, 4 How. 14,2 C. R. 20, it is further distinctly laid down, that, in all suits or actions pending when the Code took effect, the time of issuing executions therein must be governed by the laws then in force; and an execution, issued in an old suit within the thirty days, was there also decided to be irregular.
And lastly, in Pierce v. Craine, 4 How. 257, 3 C. R. 21, the principle was carried still further, and it was held that where an execution had been originally issued in an old suit, a “pluries” execution might issue, as under the old practice, without the order of the court; not withstanding that more than five years had elapsed since the original entry of the judgment, which, under sec. 284, would be a bar to the issuing such execution without leave.
This last case, however, may be considered as reversed by that of Currie v. Nayes, 1 C. R. (N. S.) 198, affirmed at general term, to directly the contrary effect.
The plaintiff on a judgment, who had filed a creditor's bill and obtained a receiver of the defendant's property, was not, however, permitted to levy an alias execution on personal property covered by such receivership.- Gouverneur v. Warner, 2 Sandf. S. C. R. 624.
The above decisions have been cited in reference to the Code of 1819, both as a matter of interest, and also in relation to cases which may have arisen pending the operation of that
As regards future proceedings, however, in any case, whatever the date of its original commencement, the new practice would now seem to be applicable in all instances, under sec. 459, as now amended, by which the provisions of the Code in general are made to apply “to future proceedings in actions or suits heretofore commenced and now pending," without any reservation or restriction whatever.
Any irregularity in the issuing of an execution will, however, be waived under any circumstances, if the defendant consents to its being issued. See Merritt v. Wing, before cited. Such consent was held to render valid an execution issued after the lapse of five years, though without leave of the court, under section 284, in Hulbut v Fuller, 3 C. R. 35.
The different kinds of execution issuable under the Code are thus prescribed by section 286 :-
$ 286. 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 pro