of a sum of money, the order does not take effect, until the person so desiguated executes and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, no less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is d emed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly.

§ 1363. Time of receipt to be indorsed on execution. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour, and minute, when he received it.

§ 1364. The different kinds of execution. There are four kinds of execution, as follows:

1. Against property.

2. Against the person.

3. For the delivery of the possession of real property, with or without damages for withholding the same.

4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof.

An execution is the process of the court, from which it is issued.

§ 1365. To what counties executions may issue. An execution against property can be issued only to a county, in the clerk's office of which the judgment is docketed. An execution against the person may be issued to any county. An execution for the delivery of the possession of real property. must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties.

§ 1366. General requisites of executions. An execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if it was rendered in the supreme court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Except as otherwise prescribed in the next section, it must be made returnable to the clerk, with whom the judgment-roll is filed.

1367. Id.; when issued on filing transcript from justice's court, etc. Where an execution is issued out of a court, other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk, with whom the transcript is filed, and the time of filing; and it must be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specification, respecting the filing of the judgment-roll.

§ 1368. Requisites of execution for the collection of money. An execution, issued upon a judgment for a sum of money, or directing the payment of a sum of money, must specify, in the body thereof, the sum

recovered, or directed to be paid, and the sum actually due when it is issued. It may specify a day, from which interest upon the sum due is to be computed; in which case, the sheriff must collect interest accordingly, until the sum is paid. If all the parties, against whom the judgment is rendered, are not judgment debtors, the execution must show who is the judgment debtor.

§ 1369. Id.; against property. An execution against property must, if the judgment-roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county, It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter.

§ 1370. Id.; where a warrant of attachment has been levied by sheriff. Where a warrant of attachment, issued in the action, has been levied by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows:

1. Where the judgment debtor is a non-resident, or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and the judgment debtor has not appeared in the action; out of the personal property attached, and, if that is insufficient, out of the real property attached.

2. In any other case, out of the personal property attached; and if that is insufficient, out of the other personal property of the judgment debtor; if both are insufficient, out of the real property attached; and if that is insufficient, out of the real property, belonging to him at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter.

§ 1371. Id.; against executor, etc. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee, must substantially require the sheriff to satisfy the judgment, out of that property.

§ 1372. Id.; against the person. An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged according to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued.

§ 1373. Id.; for delivery of property. How money, recovered by same judgment may be collected. An execution for the delivery of the possession of real property, or a chattel, must particularly describe the property, and designate the party to whom the judgment awards the possession thereof; and it must substantially require the sheriff to deliver the possession of the property within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires.

§ 1374. Separate executions, where separate sums awarded Where a judgment awards different sums of money, to or against different parties, a separate execution may be issued, to collect each sum so awarded; subject to the power of the court, to control the enforcement of the executions, upon motion, where the collection of one execution will, wholly or partly, satisfy another.

§ 1375. Execution of course, within five years. Except as otherwise 'specially prescribed by law, the party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment.

§ 1376. Execution after death of party. Where the party recovering a final judgment has died, execution may be issued at any time, within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giving twenty days' notice to the occupants of the lands so recovered and to the grantees or devisees of said deceased, or, if he died intestate, to the heirs-at-law of said deceased; said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court. [A'MD CHS. 416 OF 1877; 515 of 1885; 682 OF 1887.]

§ 1377. When execution may be issued after five years. [AMENDEL BY CH. 542 OF 1879.] After the lapse of five years from the entry of a finai judgment, execution can be issued thereupon, in one of the following cases only:

1. Where an execution was issued thereupon within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted.

2. Where an order is made by the court, granting leave to issue the execution.

§ 1378. Id.; leave how obtained. Notice of an application for an order granting leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasonable diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

§ 1379. No execution against decedent, except, etc. An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections.

1380. Leave to issue execution when judgment debtor dead. After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the

execution is to be issued, and a decree to the same effect is procured from a surrogate's court of this state, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate and letters of administration upon his estate have not been granted within three years after his death by the surrogate's court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate's court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it ap pears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid. Provided, however, that such judgment lien, existing at the decedent's death, upon the decedent's real property, or some portion thereof, may be enforced and payment thereof obtained during the said three years after granting of letters testamentary, or letters of administration, by the proceeding provided and prescribed by title five of chapter eighteen of this act. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced, as aforesaid, and shall indorse ou said execution the words "issued under section thirteen hundred and eighty of the Code of Civil Procedure," whereupon said sheriff shall inforce said execution as therein directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and redemption thereof shall apply thereto. [AM'D BY CH. 734 OF 1894. Took effect May 21, 1894.]

§ 1381. Leave to issue execution. Leave to issue an execution as prescribed in the last section, must be procured as follows:

1. Notice of the application to the court from which the execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given; untii provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon proof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied.

2. For the purpose of procuring a decree from the surrogate's court granting leave to issue the execution, the judgment creditor must present to that court a written petition, duly verified, setting forth the facts, and praying for such a decree; and that the persons specified in the first sub

§§ 1385-1388.

EXECUTION; EXEMPT PROPERTY.

Tit. 2, Ch. 13 division of this section, may be cited to show cause why it should not be granted. Upon the presentation of such a petition the surrogate must issue a citation accordingly, which said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein mentioned, and, if the general rules of practice of the Supreme Court do not provide for a mode of giving such notice, such citation must be served in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon his return thereof, he must make such a decree in the premises as justice requires. [AM'D CH. 82 OF 1889.]

§ 1382. Time of stay by order, etc., not reckoned under this title. The time during which the person, entitled to enforce a judgment, is stayed from enforcing it, by the provision of a statute, or by an injunction or other order, or in consequence of an appeal, is not a part of the time, limited by this title, for issuing an execution thereupon, or for making an application for leave to issue such an execution.

§ 1383. Execution against surviving judgment debtors. The last six sections do not affect the right of a judgment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execution must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judg ment debtor, and requiring the sheriff not to collect the execution, out of any property which belonged to him.

§ 1384. Sale on execution, etc., when and how conducted. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. The sheriff to whom an execution is issued shall at any time before the sale of the personal property levied on by him, on the written request of any person who is a creditor of the person against whom the writ was issued under which the sheriff levied upon the property, exhibit to such creditor the personal property so levied upon under said writ and permit an inspection thereof by such creditor or his agent. [AM'D BY CH. 739 OF 1894. Took effect May 21, 1894.]

$1385. Penalty for taking down or defacing notice of sale. A person who, before the time fixed for the sale in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor and the same sum to the judg ment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture, or the execution was previously satisfied.

1386. Validity of sale, when not affected by sheriff's default, etc. An omis sion by the sheriff to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not effect the validity of a sale, made by virtue of an execution, to a purchaser in good faith, without notice of the omission or offence.

§ 1387. Purchases on such sales, by certain officers, prohibited. The sheriff, to whom an execution is directed, or the under-sheriff or deputysheriff, holding an execution, and conducting a sale of property by virtue thereof, shall not, directly or indirectly, purchase any of the property at the sale. A purchase made by him, or to his use, is void.

§ 1388. When execution to be enforced by under-sheriff. Where the sheriff, to whom an execution is delivered, dies, is removed from office, or becomes otherwise disqualified to act, before the execution is returned, his under-sheriff must proceed upon the execution, as the sheriff might have done. If there is no under-sheriff, the court, from which the execution issued, may designate a person to proceed thereupon; who may complete the same, as an under-sheriff might have done. The person so designated must give such security as the court directs. He is deemed an officer; and is subject to the same obligations and liabilities, and has the same power and authority in relation to the object of his appointment, as a sheriff, and is entitled to fees accordingly. But this section does not apply in a case where special provision is otherwise made by law, for the enforcement of an execution after the death, removal from office, or other disqualification of the sheriff, or under-sheriff.

* So in the original.