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; notwithstanding 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 1849, both as a matter of interest, and also in relation to cases which may have arisen pending the operation of that measure. 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 Hullut 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

perty, 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.

In addition to the above, a fourth description of remedy, of an analogous nature, is pointed out by the previous sec. (285). In cases where the judgment requires the performance of any act, not involving the payment of money, or the delivery of real or personal property, "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."

This proceeding is one of general application, particularly in cases of an equitable description. The application for enforcement of such a judgment, by process of contempt, is one entirely governed by the old practice, and in no wise varied by the Code. Of course, proof of due service of the certified copy of the judgment, as here prescribed, and of the refusal or omission of the party to comply therewith, must, in all cases, be adduced as the ground-work of such application.

The form of proceeding under decrees of this nature, by which real estate is directed to be sold, is thus prescribed in the latter clause of sec. 287, by the last amendments :

"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 by the decree to be sold." The last clause of the sentence is somewhat singularly expressed, but its meaning is obvious.

The forms of execution to be issued in different cases, are thus specifically prescribed by sec. 289, such process being returnable in all cases within sixty days, as hereinafter mentioned:

§ 289. The execution must be directed to the sheriff, or coroner, when the sheriff is a party or interested, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judg ment, 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 other time thereafter.

2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, 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.

The more convenient method of dealing with the different questions arising out of these provisions, will be to take each of the various species of execution here enumerated, in their order as they occur. The formal conditions, incident to the validity of every execution, of whatever nature, are clearly indicated in the first clause of the sentence, as above cited.

The first species of execution to be considered, is that against the property of the judgment debtor. A necessary preliminary, however, to this proceeding, and likewise to that for enforcing the delivery of the possession of real or personal property, is the docketing of the judgment in the county or counties in which such property is situate. This preliminary is necessary to the validity of the proceeding, in all cases.

Notwithstanding the positive nature of the provision in sec. 287, that the execution against the property of the judgment debtor, may be issued to the sheriff of any county in which the judgment

is docketed," it was nevertheless held, in Stephens v. Browning, 1 C. R. 123, 7 L. O. 61, that, where an execution had been issued against the property of the defendant, into a county in which the judgment had not been docketed, such execution, though confessedly void as to real estate, would, nevertheless, be good as to personal property in such county, and an amendment was there ordered accordingly. This doctrine cannot be relied on, and the argumente converso from the provisions above cited, seems to have been totally lost sight of. The precaution, too, of previously docketing the judgment, is so simple and easy, that it would be an unjustifiable want of caution to neglect it in any instance. justice's judgment, when duly docketed in the county court, is placed on the same footing as that of a court of record, with reference to ulterior proceedings.-Conway v. Hitchins, 9 Barb. S. C. R. 378.

A

The form of the ordinary execution against property, will be found in the Appendix; and care must be especially taken, that every blank is duly filled in, and every requisition of sec. 289 duly complied with. It need not be signed by the clerk, or be under the seal of the court; the only necessary condition is, that it should be signed by the party issuing it, or his attorney, which latter must be strictly complied with. When prepared, it should be folded up, endorsed with the name of the cause, and a special direction subjoined, addressed to the sheriff of the county into which it is issued, directing him as follows:-" Levy, as within directed, the sum of $, (the amount of debt and costs,) besides your fees."

A distinction must be made, however, in cases of a judgment entered up against joint debtors, but where the whole of the defendants have not been served.-See last chapter in relation to this proceeding. The execution, in these cases, must be issued in compliance with the directions contained in sec. 3 and 4 of art. I. title VI. chap. VI. part III. of the Revised Statutes, 2 R. S. 377. Such execution is to be issued in form against all the defendants, whether served or not, but the attorney issuing it, must endorse thereon the names of the defendants who have not been served, and must direct that execution is not to be served on the person, or levied on the property of any such defendant. The endorsement on the ordinary execution against property, should therefore, in such a case, be made as follows:-Levy as within directed, the sum of

besides your fees, (as in the last,) adding, "but not on the

sole property of the defendant A B, who was not served with the process by which this action was commenced."

Another special form of execution against property, or rather of the endorsement thereon, is prescribed by sec. 384 as follows, in cases where judgment has been entered by confession, to secure the payment of future instalments:

"When the debt for which the judgment is recovered is not all due, or is payable in instalments, and the instalments are not all due, the execution may issue upon such judgment for the collection of such instalments as have become due, and shall be in the usual form, but shall have endorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated with interest thereon, and the costs of said judgment.

And it is further provided that, notwithstanding such execution, the judgment shall remain as a security for future instalments, and that execution may, from time to time, be issued in like manner, for the collection of the latter.

The endorsement in this case may be as follows:-Levy, &c., "being the amount now due on the judgment within mentioned, with interest thereon, and the costs of such judgment, the same being in respect of an instalment which has become due thereon."

The execution, prepared and endorsed as above, must then be lodged in the sheriff's office, whereon the duty of the plaintiff's attorney is, in strictness, complete. Where such office is in a distant county, the usual course is to forward it by post, and, if the judgment has not been already docketed, to enclose a transcript for that purpose, with instructions to the sheriff to file it in the county clerk's office, and to charge the payment in the account with his fees. It is obvious that, in case any information is possessed by the plaintiff, in relation to the property seizable under such execution, such information should be communicated to the sheriff at the time the process is lodged, by letter or otherwise.

In Dresser v. Ainsworth, 9 Barb. S. C. R. 619, the proper form and requisites essential to a valid levy by the sheriff, will be found fully considered; and, it was held that an informal one, though void as regarded the interests of third parties, and, in particular, as regarded that of a subsequent purchaser of property irregularly levied upon, would, nevertheless, stand good, as against the judgment debtor himself.

The form of execution against property requires, as will be seen,