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No complaint is necessary in these cases, the summons itself giving all the information which the defendant requires.

From this point, the proceeding substantially assumes the shape of an ordinary action. The form of defence to be made, is thus laid down by sec. 379:

§ 379. Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and, in addition thereto, if he be proceeded against according to section 375, he may make the same defence, which he might have originally made to the action, except the statute of limitations.

The former half of this section seems more peculiarly applicable to the case of a deceased judgment debtor, in which the heirs, &c., or the representatives, are, of course, concluded by the recovery against their deceased testate or intestator, and cannot reopen the matter, though at liberty to impeach the judgment itself, or to assert any subsequent defence. The latter moiety applies to the case of a joint debtor, to whom any defence whatever is open, with the one single exception already noticed. Answer is, as above prescribed, the only form in which such defence can be put in; demurrer is inapplicable in this stage of the proceedings. That answer must, of course, be framed as an answer to the summons, but, in all other respects, the usual forms may be followed.

The subsequent pleadings in the suit thus instituted, and the course of trial, and subsequent thereto, are thus provided for by sec. 380.

§ 380. The party issuing the summons, may demur or reply to the answer, and the party summoned may demur to the reply, and the issues may be tried and judgment may be given, in the same manner as in an action, and enforced by execution; or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary.

And the pleadings are subjected to the same rules as those in an ordinary action, by sec. 381, as follows:

§ 381. The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action.

It will be observed that the issue to be joined in the action, arises upon the answer and reply, or demurrer to the latter, as the case may be; and, if any affirmative allegations be requisite on the part of the plaintiff, (see Oakley v. Aspinwall, above cited,) it

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.

BOOK X.

OF EXECUTION AND ITS INCIDENTS.

CHAPTER I.

OF 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. Mc Cumber, 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; except 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 judgment, 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 Catskill 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 sec

tion 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 question 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 saving clause as to proceedings theretofore 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. Sandford, 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

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