Against Property;-Issuing. thirty days after the entry of the judgment, cution returnable in twenty days must be the first day is to be excluded and the last in- denied. Supreme Ct., 1845, Jordan v. Posey, cluded. Supreme Ct., 1842, Commercial Bank 1 How. Pr., 123. of Oswego v. Ives, 2 Hill, 355. 78. The delay of thirty days must be allowed after all judgments, whether entered in vacation or in term, and the execution must be made returnable in sixty days. Supreme Ct., 1842, Stone v. Green, 3 Hill, 469. 79. A fi. fa. cannot issue on a judgment on a scire facias quare executionem non, until thirty days after the entry of the judgment. [2 Rev. Stat., 3 ed., 463, § 13.] Supreme Ct., 1846, Van Valkenburgh v. Harris, 3 Den., 162. 80. An execution will be set aside with costs if, without consent, it is issued within thirty days after judgment. Supreme Ct., 1845, Finch . Graves, 1 How. Pr., 198. 81. That an execution issued within the thirty days is only voidable at the instance of the defendant, and the irregularity is no defence to an action against the sheriff for a false return. Bacon v. Cropsey, 7 N. Y. (3 Seld.), 195. 87. When issuable. Under the Code of Procedure execution may be issued immediately on perfecting judgment, and at any time within five years thereafter. Supreme Ct., 1848, Swift v. De Witt, 1 Code R., 25; S. C., 6 N. Y. Leg. Obs., 314; 3 How. Pr., 280. 88. This cannot be done in actions commenced before the Code took effect. Supreme Ct., Sp. T., 1848, Clark v. Hutchinson, 1 Code R., 127; S. C., 7 N. Y. Leg. Obs., 91; Merrit v. Wing, 2 Code R., 20; S. C., 4 How. Pr., 14. Compare Catskill Bank v. Sanford, 4 How. Pr., 101. 89. On the consent of defendant an execution may issue, after the lapse of five years from the rendition of the judgment, and without any previous order of the court. Supreme Ct., Sp. T., 1850, Hulbut v. Fuller, 3 Code R., 55. 90. After lapse of five years. By the true construction of section 284 of the Code,providing that after the lapse of five years 82. Consent or waiver. The provision of from entry of judgment, except on leave,—no the statute restraining the issue of execution execution can be issued, without leave of for thirty days after judgment, is for the ben-court, after the expiration of five years from efit of the defendant in the execution, and he may waive the irregularity of issuing it within the thirty days. Supreme Ct., 1842, Kimball v. Munger, 2 Hill, 364; Sp. T., 1848, Berry v. Riley, 2 Barb., 307. 83. Where the judgment is against two, and one consents, without collusion, to the issue within the thirty days, the execution is regular against both. Supreme Ct., 1842, Anon., 2 Hill, 378. 84. A release of errors in a warrant of attorney does not authorize the issuing of an execution within thirty days, nor release errors in the issuing. Supreme Ct., 1845, Bell v. Bell, 1 How. Pr., 71. the entry of judgment, whether execution has been issued within that period or not.* Supreme Ct., Sp. T., 1851, Currie v. Noyes, 1 Code R., N. S., 198. N. Y. Superior Ct., Chambers, 1855, Redmond v. Wheeler, 2 Abbotts' Pr., 117. Supreme Ct., Sp. T., 1855, Swift v. Flanagan, 12 How. Pr., 438; 1856, Sacia v. Nestle, 13 Id., 572. To similar effect, Swift v. De Witt, 1 Code R., 25; S. C., 6 N. Y. Leg. Obs., 314; 3 How. Pr., 280. To the contrary are Pierce v. Craine, Supreme Ct. (Sp. T., 1849 ?), 4 How. Pr., 257; 1854, McSmith v. Van Deusen, 9 Id., 245; 1857 Kress v. Ellis, 14 Id., 392. 91. It seems, that, irrespective of the provisions of the Code, as a general rule, no par 85. Where defendant directed as to the payment of the money to be collected on the ex-ty, after a lapse of over ten years from the ecution,-Held, a waiver of the irregularity, in issuing it in less than thirty days. Ib. 86. The warrant of attorney on which judgment was entered, contained a stipulation, signed by defendant, that execution might issue immediately, and be made returnable forthwith. issuing of a previous execution, should be allowed to issue a second execution without leave of the court, obtained on notice to the adverse party, and upon affidavit that the * By the amendment of 1858, it is provided that the leave shall not be necessary when execution has Held, that motions of the defendant and his been issued on the judgment within the five years, junior judgment creditors to vacate an exe-and returned unsatisfied in whole or in part. Against Property;-Issuing. judgment remains unsatisfied. Sacia v. Nestle, 13 How. Pr., 572. 92. The court should not grant leave (under section 284 of the Code) to issue execution on a judgment after the lapse of five years from its rendition, where it appears that the judgment-debtor holds a judgment against the party making the application greater in amount than that on which the application is based. In such a case the party should be left to an action upon his judgment, that the debtor may avail himself of his equitable set-off. N. Y. Com. Pl., 1857, Betts v. Garr, 1 Hilt., 411. 23 98. Upon an application for leave to issue execution under section 284 of the Code, the court cannot go behind the judgment, or inquire into its validity. Supreme Ct., Sp. T., 1856, Lee v. Watkins, 3 Abbotts' Pr., 243; S. C., 13 How. Pr., 178. 99. Thus the judgment-debtor cannot be heard to show that no summons was ever served upon him in the action in which judgment was rendered. Ib. 100. Officer's indorsement. Though by 2 Rev. Stat., 288, § 10, the officer is bound to indorse the hour of the day when he receives any execution, it may be delivered to him with 93. A plaintiff may have leave to issue ex-instructions to indorse it as received at a later ecution on a judgment five years old and up-date. Supreme Ct., 1840, Walters v. Sykes, 22 wards, which remains unpaid, notwithstand- Wend., 566. ing that he has brought an action upon it, and has recovered a new judgment therein. N. Y. Com. Pl., 1855, Small v. Wheaton, 2 Abbotts' Pr., 316; S. C., 4 E. D. Smith, 427. 94. Where, after recovery of judgment, the defendant obtained a discharge in insolvency which was subsequently adjudged void, Held, on motion, after the lapse of five years from its recovery, that the plaintiff should have leave to issue execution on the judgIb. ment. 95. Judgment was entered, execution was issued, real estate sold, and satisfaction of the execution acknowledged; after which it was discovered that the execution was void. The plaintiff, then, three years after judgment, applied for leave to issue a new execution, which was granted. Five years later he issued execution. Held, on motion to set aside the last execution, that it was irregular. The leave granted was not such leave as is contemplated by section 284 of the Code. N. Y. Com. Pl., 1856, Field . Paulding, 1 Hilt., 187; S. C., 3 Abbotts' Pr., 139. 96. Leave to issue execution may be granted after expiration of twenty years, but cannot be granted unless there is proof of payment or written acknowledgment within that time. N. Y. Com. Pl., Sp. T., 1857, Kennedy . Mills, 4 Abbotts' Pr., 132. 101. Special directions. The attorney for the party in whose favor process issues, may but give such directions to the sheriff as will not only excuse him from his general duty, bind him. The attorney may make him, pro tanto, a special agent, by restricting his general power in any way which shall not amount to an abuse of the process, although he cannot enlarge the power. Ib. 102. Notice of property. Plaintiff's attorney, on issuing execution, is not bound to give notice to the sheriff that defendant resides and has property within the county. And though the giving of such notice would have enabled the sheriff to collect the amount of the judgment, the omission to do so forms no excuse for the sheriff's negligence in not colSupreme Ct., 1844, Tomlinson v. lecting it. Rowe, Hill & D. Supp., 410. Where a judg 103. Promise not to issue. ment was confessed for a litigated demand, on plaintiff's promise to stipulate not to issue execution for three years, an execution issued forth with was set aside. Supreme Ct., Sp. T., 1854, Merritt v. Baker, 11 How. Pr., 456. 104. Second execution. After an execu tion issued and sale had, a second execution cannot be issued till the first is returned. Supreme Ct., 1811, Cairns v. Smith, 8 Johns., 337; S. P., Cutler v. Colver, 3 Cow., 30. 105. Execution against property cannot be 97. An application for leave to issue ex-issued pending execution against person. 2 Rev. ecution, for the purpose of removing the bar Stat., 364, §§ 6–8; and see Ïd., 368, § 28. of section 284, should not be made until the expiration of five years from the entry of judgment. N. Y. Com. Pl., 1856, Field v. Paulding, 1 Hilt., 187; S. C., 8 Abbotts' Pr., 139. 106. After levy upon an execution, another cannot issue to the same county, until the first has been returned. Supreme Ct., 1826, Dorland v. Dorland, 5 Cow., 417; 1829, Cumpston Against Property;-What may be Levied on or Sold;-Personal Property. . Field, 3 Wend., 882; 1843, Ledyard v. Buckle, 5 Hill, 571. 107. Collection. If a plaintiff issues an execution, and directs an amount less than the whole sum to which he is entitled, to be levied, he cannot subsequently issue another execution for the balance. So held, where the first execution was collected. Supreme Ct., 1829, People v. Onondaga C. P., 3 Wend., 331. But leave may be given, by way of amendment. Supreme Ct., 1828, People v. Chautauque C. P., 1 Wend., 78. 108. If, after collecting the judgment by levy and sale, a third person recovers judgment against the plaintiff for selling property not belonging to the defendant, plaintiff may issue a new execution, of course. Supreme Ct., 1837, Richardson v. McDougall, 19 Wend., 80. 109. Where, after an execution was return ed satisfied by levy and sale, a stranger proved to be owner of the goods, and had judgment against the plaintiff and sheriff, the court allowed the return to be cancelled, and a new execution to issue. Supreme Ct., 1826, Adams v. Smith, 5 Cow., 280. 110. The recovery of a second judgment is no bar to the issuing of an execution upon the first, to obtain satisfaction of the debt. [9 Wend., 53; 11 Johns., 513; 7 Paige, 85.] Chancery, 1850, Howard v. Sheldon, 11 Paige, 558. 111. Creditor's suit. After a judgmentcreditor has filed a creditor's bill, and obtained an assignment of defendant's property to a receiver, he cannot be permitted to levy an alias execution on personal property covered by such receivership. N. Y. Superior Ct., 1848, Gouverneur v. Warner, 2 Sandf., 624. 113. An execution irregularly issued is a nullity, as respects the party issuing it; though it is otherwise of erroneous process. [3 Wils., 345.] Supreme Ct., 1808, Read v. Markle, 3 Johns., 523; and see Woodcock v. Bennet, 1 Cow., 711. As to when execution against the Person may issue, see infra, II. 3. What may be Levied on or Sold. 114. After-acquired goods. The sheriff cannot levy on goods acquired by the defendant after the return-day. Supreme Ct., 1804, Devoe v. Elliot, 2 Cai., 243. 115. Goods already levied on. The sheriff cannot take property which has been first levied on under a justice's execution, though such levy was subsequent to the delivery to him of the execution which he holds. Supreme Ct., 1825, Marsh v. Lawrence, 4 Cow., 461. 116. Growing crops. Wheat growing on the ground is a chattel, and as such subject to be taken on execution. [1 Salk., 368; 1 Bos. & P., 397; 6 East, 604, n.; Rob. on F., 126.] Supreme Ct., 1807, Whipple v. Foot, 2 Johns., 418; and see Stewart v. Doughty, 9 Id., 108. To the same effect, Shepard v. Philbrick, 2 Den., 174. 117. Growing crops upon leased land may be levied upon and sold under an execution against the lessee. The purchaser succeeds to all the interest of the original lessee in the crop sown. Supreme Ct., 1812, Stewart v. Doughty, 9 Johns., 108. 118. The act of the tenant in abandoning the premises,-Held, not to preclude the purchaser's right. Ib. 119. Natural products of the earth, which grow without cultivation,-e. g., grass,-cannot be levied upon by execution, before severance, though by the parol authority of the de Lansingburgh v. Crary, 1 Barb., 542. 112. Joint-debtors. Where an execution issued against two joint-debtors has been levied upon the property of one of them, the plaintiff will not be allowed to countermand it, and issue a new execution for the purpose of fendant. Supreme Ct., Sp. T., 1847, Bank of making a levy upon the sole property of the other defendant, especially if it appears that the first execution was withdrawn at the request of the debtor upon whose property it was levied, and with the express purpose of screening him from the payment of any part of the debt, and collecting the whole from the property of his co-defendant. N. Y. Superior Ct., Sp. T., 1853, McChain v. Duffy, 2 Duer, 645. 120. Stock. Bank or library shares cannot be seized and sold under execution. Supreme Ct., 1812, Denton v. Livingston, 9 Johns., 96. 121. Money. Bank-bills are money, and, like every thing of a tangible nature, except mere choses in action, and articles expressly exempted by the statute, may be taken and sold on execution. [1 Cranch, 133.] Su Against Property;-What may be Levied on or Sold;-Personal Property. preme Ct., 1815, Handy v. Dobbin, 12 Johns., 220; Holmes v. Nuncaster, Id., 395; and see Williams. Rogers, 5 Id., 163; S. P., 2 Rev. Stat., 366, § 18, 19. 122. Money raised on execution. A levy on money collected by, and in the hands of, an officer, or money paid into court, is not a levy on the money of the party for whom it is collected or paid; for, until paid over, the money does not specifically belong to him. Supreme Ct., 1826, Dubois v. Dubois, 6 Cow., 494. tion. [2 Pick., 512.] Supreme Ct., 1842, Strong v. Taylor, 2 Hill, 326. To the same effect, Ct. of Appeals, 1857, Herring v. Hoppock, 15 N. Y. (1 Smith), 409; affirming S. C., 3 Duer, 20; 12 N. Y. Leg. Obs., 167. 130. Transfer to creditor. A debtor having conveyed personal property to one of his creditors in satisfaction of a debt, it cannot be seized by execution, at the suit of a creditor of the former, on the mere ground that such debt was infected with usury. [2 Hill, 522; 2 Seld., 347.] N. Y. Superior Ct., 1857, Mills v. Carnly, 1 Bosw., 159. 131. Chattels mortgaged. The interest of a mortgagor of personal property who has no right of possession for a definite period reserved to him in and by the mortgage, is a right of redemption merely, and is not subject to levy and sale on execution. Ct. of Appeals, 1848, Mattison v. Baucus, 1 N. Y. (1 Comst.), 295; and see 2 Rev. Stat., 366, § 20. 123. Where a sheriff receives money in payment of an execution at the suit of A. against B., he cannot levy on the money so in his hands under an execution against A. [1 Cranch, 117; 17 Pick., 462; 4 Vt., 513; 4 Bibb, 311; 1 Murphy, 47; 3 Scam., 451.] Supreme Ct., 1857, Muscott v. Woolworth, 14 How. Pr., 477; reversing S. C., 13 Id., 336. To the same effect, Dubois v. Dubois, 6 Cow., 494; and see Betts v. Hoyt, 19 Barb., 412; and compare Wheeler v. Smith, 11 Id., 345. 124. Surplus moneys. After sale of de-seized, and the interest of the mortgagor fendant's goods on process against him, the surplus in the officer's hands remaining after satisfying such process, is money which belongs to him, and may be levied on under subsequent executions against him. [2 Rev. Stat., 366, § 19.] Supreme Ct., 1851, Wheeler e. Smith, 11 Barb., 345. 132. Chattels which are mortgaged may be therein sold on an execution against the mort- 125. A chose in action-e. g., a promis-542.] Ct. of Appeals, 1854, Hull v. Carnley, sory note is not the subject of levy. [9 11 N. Y. (1 Kern.), 501; S. C., 1 Abbotts' Pr., Johns., 100.] Supreme Ct., 1823, Ingalls v. 158; reversing S. C., 2 Duer, 99. Lord, 1 Cow., 240. 126. Things in action cannot be taken under an execution; and the Code has not changed the law in this respect. N. Y. Superior Ct., 1851, Ransom v. Miner, 3 Sandf., 692. 127. The lessee of chattels for a term, has an interest which is the subject of a sale on execution. [7T. R., 11; 4 Id., 489; 8 Co., 191.] Supreme Ct., 1824, Van Antwerp v. Newman, 2 Cow., 543; 1830, Otis v. Wood, 3 Wend., 498. 128. A fraudulent purchaser of goods acquires no title as against the vendor, and has no interest which can be seized on execution. [3 Johns., 238; 15 Id., 150; 15 Mass., 156; 1 Barn. & Cress., 514; 8 Com. Law, 146; 8 Cow., 238.] Supreme Ct., 1835, Root v. French, 18 Wend., 570. 133. The interest of a mortgagor of chattels who has a right of possession, may be taken in execution, and the purchaser thereunder acquires his right to redeem. Supreme Ct., Sp. T., 1847, Bank of Lansingburgh v. Crary, 1 Barb., 542. 134. If after default in a chattel mortgage it is foreclosed, and the property passes into the possession of the mortgagee before levy, the officer becomes a trespasser, if he sells the property and delivers possession to a third person. N. Y. Com. Pl., 1856, Gelhaar v. Ross, 1 Hilt., 117. 135. It seems, that under a bill of sale in the nature of a mortgage, the debtor, if his possession is liable to be defeated at any time, has only an equity, which cannot be sold on execu129. Conditional purchase. Where the tion. Marsh v. Lawrence, 4 Cowo., 461. defendant acquires possession of chattels un- 136. Chattels pledged. Under the proder a conditional sale, he has no interest sub-visions of 2 Rev. Stat., 2 ed., 290, § 20, the ject to levy, until performance of the condi- sheriff may seize pledged goods, and should Against Property;-What may be Levied on or Sold;-Real Property. sell them in the same manner as any other tion. Ct. of Appeals, 1848, Burkle v. Luce, 1 goods. If they are not redeemable presently, N. Y. (1 Comst.), 163. To similar effect is a or not forthwith redeemed, he should deliver previous decision, S. C., 6 Hill, 558. them to the pledgee, to whom the purchaser must look for them.* Supreme Ct., 1844, Bakewell . Ellsworth, 6 Hill, 484; and see Wheeler v. McFarland, 10 Wend., 318. Consult, also, as to who has the Leviable interest in chattels, CHATTELS; CHATTEL MORTGAGE, and titles there referred to. B. Real Property. 137. The interest of bailees or pledgees for security, in goods in their possession, may be. 143. Possession. The defendant's being taken and sold on execution against them. in possession of land is sufficient to warrant The purchaser obtains their right and interest a sale; for actual possession is prima-facie in the goods pledged. Possession, coupled with an interest, renders the property liable. N. Y. Superior Ct., 1854, Saul v. Kruger, 9 How. Pr, 569; S. C., 2 Liv. Law Mag., 561. 138. Wife's estate. In absence of any evidence that the wife has a separate estate, chattels purchased by her, on her personal credit, and in the possession of her husband, are liable to be sold on execution against him. [7 How. Pr., 105.] Supreme Ct., 1858, Glann . Younglove, 27 Barb., 480; and see Bass v. Bean, 16 How. Pr., 93. 139. Joint-debtors. The court will not look into the state of the accounts between the joint-defendants. The plaintiff has a right to direct a levy upon the joint or several property of the defendants, or any of them. Supreme Ct., 1840, Godfrey v. Gibbons, 22 Wend., 569. 140. Cattle and tools. The act concerning distresses (Sess. 11, ch. 36; same stat., 1 Rev. L., 1813, 434, § 3)—providing that cattle and tools cannot be distrained for any cause if there are other chattels sufficient-does not apply to the case of a levy on personal property by an officer, by warrant, in nature of an execution. Supreme Ct., 1809, Rogers v. Brewster, 5 Johns., 125. evidence of a legal title [3 Cai., 188]; but where the defendant, before the judgment was recovered, on which the sale was had, had abandoned possession, and executed a deed to one who, after the sale, took possession;Held, that these facts did not make out a legal or equitable seizin in the defendant which could pass by the sale. Supreme Ct., 1825, Jackson v. Town, 4 Cow., 599. Followed, 1828, Hagaman v. Jackson, 1 Wend., 502. 144. The mere fact that the debtor not in possession of the land sold, but being a mere claimant, some time after the sale, recovered the possession by ejectment, and entered, does not establish such seizin. Supreme Ct., 1828, Hagaman v. Jackson, 1 Wend., 502. 145. Possession of land, under a contract for the purchase of it, is real estate within 1 Rev. L., 500; and a judgment against the vendor is a lien upon it, and it may be sold upon execution. [So held, on review of 1 Johns. Ch., 52; 17 Johns., 351; 18 Id., 94.] Supreme Ct., 1828, Jackson v. Parker, 9 Cow., 73. 146. The bare possession of land is an interest which may be sold on execution, unless held under a contract for the purchase 141. Replevin. If, after levy, the goods are of the land. And even if there be a contract, replevied by a third person, they cannot, pend- but no right of possession in defendant under ing the first execution, be levied upon again un-it, a parol license from the vendor cannot help der a second execution as the defendant's prop- him. Chancery, 1832, Talbot v. Chamberlin, 3 erty, though he has been permitted to possess Paige, 219. Supreme Ct., 1849, Kellogg v. them. Supreme Ct., 1841, Acker v. White, 25 Kellogg, 6 Barb., 116. Wend., 614. 142. If a sheriff levies upon goods under an execution, and a third person brings replevin for and takes them, and dies pending the action, the action abates, and the sheriff may retake the goods and sell them on the execu A similar decision was affirmed by an equally divided court. Ct. of Appeals, 1847, Stief v. Hart, 1 N. Y. (1 Comet.), 20. 147. An equity of redemption is real estate, and, under the statute, may be sold on execution against a mortgagor in possession. Ct. of Errors, 1804, Waters v. Stewart, 1 Cai. Cas., 47; and see Jackson v. Willard, 4 Johns., 41. 148. Mortgagee's interest. Lands mortgaged cannot be sold on an execution against the mortgagee, before a foreclosure of the equity of redemption, though the debt be due, |