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perty, or such delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be gealed 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 there with, 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 judgment, 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. 0. 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. A 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.

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


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 iustalments :

" 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, that the amount to be levied should be satisfied, in the first instance, out of the personal property, and, in default of a sufficiency thereof, then out of the real property of the judgment debtor against whom it is issued, such real property being bound from the time of docketing of the judgment. The execution under subdivision 4 of the same section, is, in substance, of the same nature, so far as regards the amount of damages or value, as the case may be, claimable thereunder, such amount being, to all intents and purposes, a money payment, and treated as such.

The mode of carrying out any execution, whether against personal or real property, is the same as under the old practice, with no substantial variation. To enter into details on the subject would, accordingly, be foreign to the plan of the present work. The statutory provisions will be found in articles II. and III. of title V. chap. VI. part III. of the Revised Statutes, 2 R. S. 365 to 377 inclusive, in which the course of proceeding, the mode in which, first the personal, and then the real estate of the judgment debtor are to be advertised and sold, the certificates to be issued to the purchasers of the latter, and the powers of redemption given, first to the owners, and then to creditors or other persons interested in the property dealt with, and the remedies in case of a failure of title, are successively provided for in detail ; and the whole of these two articles, as well as the books of the old practice, must be most carefully consulted on the subject.

In the recent case of Miller v. Lewis, 4 Comst. 554, it was held that an agreement, on sufficient consideration, enlarging the time within which the judgment debtor may redeem or extinguish the lien acquired by the sale of real property under an execution, is a valid agreement, and will bind third parties, and, in particular, subsequent judgment creditors.

In Hall v. Fisher, 9 Barb. S. C. R. 17, it was held that a payment in current bank bills, accepted by the sheriff without objection, was a good payment for the purpose of redeeming real estate sold on execution ; and also that, although it is not the sheriff's duty to calculate the amount due, still, if he or his authorized agent voluntarily does so, and in consequence of an error on his part, accepts a less sum than that actually due, the redemption will nevertheless be complete, on payment and acceptance by him of the amount of his calculation, though less than the amount actually due. A court of equity will interfere

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