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docketed with the clerk of the county where it was rendered, and in any other county, upon filing with the clerk thereof a transcript of the original "docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered. But whenever an appeal from any judgment shall be pending and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of said judgment, that the same is "secured on appeal;" and thereupon, it shall cease during the pendency of the appeal to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith.

The amendment is in italic, and is substituted for the words "from the time of docketing the judgment therein."

It would seem that this section applies to judgments in the United States Courts. Tarpley v. Hamer, 9 Sme. & M., 310.

A judgment roll delivered to the clerk to be filed before the hour of nine o'clock in the morning, will be considered as filed at the hour of nine. No preference can be gained by taking a judgment roll to the clerk's office before that hour. 10 Wend., 573.

The perfecting an appeal, and giving security to stay proceedings on the judgment, does not prevent the respondent from filing transcripts of the judgment appealed from. Bulkley v. Keteltas, 1 Code Rep., N. S., 119.

In Fitch v. Livingston, 4 Sand. S. C. R., 712, it was held by the superior court, at general term, March 6, 1852, that an order denying a motion to enter on the docket of a judgment from which an appeal has been brought, the words "secured by appeal," is not an appealable order.

It was also held, that this section does not apply to judgments docketed before July 10, 1851 (the day the code of 1851 took effect.) The decision of the court was announced by Bosworth, J., and he said, "The 282d section does not, in its terms, unequivocally apply to judgments rendered and docketed before it took effect, which was on the 10th of July, 1851. I do not think we should find, from the language of this section, that the legislature intended it should operate upon judgments previously docketed, to divest liens which were perfect and absolute before the section, as amended, took effect. Quackenbush v. Danks, 1 Denio, 128, S. C.; 3 ib., 594. McCracken v. Hayward, 2 How. U. S. Rep., 608." All the justices of the court concurred in this decision.

In a subsequent case, Reynolds and another v. Davis and another, decided by Bosworth, J., July 17, 1852 (not reported), it appeared that the action was commenced before the code took effect (July 1, 1848), that judgment was obtained, March 18, 1852, as of December, 1851, and a transcript filed, March 20, 1852, that defendants had appealed to the court of appeals and given security. The appellant moved to have the words "secured by appeal," entered on the docket of the judg

ment from which the appeal was brought. Bosworth, J., granted the motion, and said, "It is quite obvious the legislature intended that the amendment to section 282 should be applicable to judgments thereafter rendered in suits then pending, as well in those commenced before as subsequent to July 1, 1848. The view thus taken does not conflict with the decision of this court in Fitch v. Livingston, 4 Sand. S. C. R., 712. In the latter case the judgment had been rendered, a transcript of it filed, the judgment docketed, and thus a lien upon the lands of the debtor acquired and perfected, before s. 282, as amended in 1851, took effect. Granting the motion in that case would have given to the statute a retrospective effect, by which a perfected security would have been destroyed. Construing it as prospectively applicable to all judgments subsequently rendered, does not impair any pre-existing security, nor infringe vested rights. Such a construction accords with the reason of the statute, and with the obvious meaning of its terms."

A judgment does not lose its lien upon real estate, by the suffering an execution issued thereon to lie dormant in the sheriff's hands. Muir v. Leitch, 7 Barb. S. C. R., 341. No indulgence or negligence of the sheriff in selling, without any act of the plaintiff, will render an execution dormant as to subsequent purchasers. Talbert v. Melton, 9 Sme. & M., 9. But where the lien of a judgment had ceased by lapse of time, the court will interfere in a summary way in behalf of bona fide purchasers, and order a perpetual stay of execution, unless the judgment creditor shall satisfy the court, that there is probable cause for alleging that the purchase was not bona fide. The mere allegation of the creditor that he thinks he can prove that they are bona fide purchasers, is not enough. Wilson v. Smith, 2 Code Rep., 18.

By laws of 1846, p. 134, c. 122, the clerk of the county of New York, may make copies of the dockets or transcripts of judgments, which copies are to have the force of originals.

By laws of 1844, p 508, c. 324, s. 4, the clerk of the city and county of New York, may charge six cents for filing a transcript and docketing judgment, where such judgment shall be recovered in the superior court of the city of New York, or in the court of common pleas for the city and county of New York, or either of the counties of Westchester, Rockland, King's, Queen's, or Richmond, and the like sum for filing a transcript and docketing a judgment of the supreme court, in all cases where the attorney for the party in whose favor such judgment shall be recovered, shall reside in either of the counties of New York, King's, Queen's, Richmond, Rockland, or Westchester.

The liens of judgment creditors, if the land be sold on a prior judgment, are transferred to the surplus, which must be applied to them in their order of priority. Averill v. Loucks, 6 Barb. S. C. R., 470.

TITLE IX.

Of the execution of the judgment in Civil Actions.

CHAPTER I. The execution.

II. Proceedings supplementary to the execution.

SECTION 283. 284.

CHAPTER I.

The Execution.*

Execution within five years, of course, as prescribed by this title. After five years, to be issued only by leave of court. Leave how obtained. Execution on judgment of justices' or other inferior courts when docketed, how issued.

285. Other judgments, how enforced.

286. The different kinds of execution.

287. To what counties execution may be issued.

288. Execution against the person, in what cases, and when.

289. Form of the execution.

290. To be returnable in sixty days.

291. Existing laws relating to execution continued, until otherwise provided.

§ 283. [238.] (Amended 1849.) Execution within five years, of course, as prescribed by this title.-Writs of execution for the enforcement of judgments as now used, are modified in conformity to this title, and the party in whose favor judgment has been heretofore or shall hereafter be given, may at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title.

This section is substituted for section 238 in the code of 1848, the language of which differs from this, and was held not to be applicable, except by consent, to judg ments rendered before the code took effect. Merritt v. Wing, 2 Code Rep., 20; 4 Pr. R., 14.

This and the next section, however, are held to apply as well as to judgments rendered before the code took effect, as to those rendered in actious commenced under the code. Catskill Bank v, Sandford, 2 Code Rep., 58; 4 Pr. R., 101; Swift v. De Witt, 1 Code Rep., 25; 3 Pr. R., 280; Clark v. Hutchinson, 1 Code Rep., 127.

This section not only enlarges the time within which an execution may be issued

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 object remain as heretofore. Per Hubbard, J., in Gridley v. McCumber, 3 Code Rep, 211.

The execution must follow the judgment, and be warranted by it. Corwin v. Freeland, 6 Pr. R., 241.

without leave of the court, from two to five years, but takes away the 30 days' suspension of the right to issue it, and now, in all cases, executions may be issued immediately on perfecting judgment, and at any time within five years thereafter. Per Gridley, J., in Swift v. De Witt, supra.

After five years no execution can be issued, without leave of the court upon motion, except by consent of the defendant, in which case execution may issue without any order from the court. Hulbert v. Fuller, 3 Code Rep., 55. Currie v. Noyes, 1 Code Rep., N. S., 198.

Where an exec tion has been issued under the old law, upon a judgment docketed under the law [prior to the passage of the code], and returned unsatisfied, an alias or pluries execution may issue as heretofore, without an order of the court, though more than five years may have elapsed since the entry of judgment. Pierce v. Crane, 3 Code Rep., 21; 4 Pr. R., 257.

But where a creditor's suit was instituted before the passage of the code of 1848, and a receiver appointed, and an assignment made to such receiver, and the plaintiff after the code went into effect, issued and levied an alias fieri facias on property covered by such receivership, the court set aside such levy unless the plaintiff waived his receivership, and dismissed his creditor's suit. Gouverneur v. Warner, 2 Sand. S. C. R., 624.

The fact that an execution was issued within five years after the entry of judgment, does not justify the issuing of an execution in the nature of an alias after the expiration of five years, without the leave of the court first obtained. Currie v. Noyes, 1 Code Rep, N. S., 198.

The judgment record should be actually filed before execution can issue. 5 Wend., 109; 20 Johns. R., 307; 2 R. S., 284 [360], s. 11; but it may be ordered to be filed nunc pro tunc. 3 Cow., 39; 22 Wend, 566.

Ou receipt of the writ the sheriff is required to endorse thereon the year, month, day, and hour when he received it. 2 R. S., 288 [364], s. 10.

§ 284. [239.] (Amended 1849, 1851.) After five years, to be issued only by leave of court. Leave, how obtained. After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or nonresident, or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due.

When the judgment shall have been rendered in a court of justice of the peace, or in a justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New-York to the court of common pleas of that city and county.

The amendments of 1851 are in italic.

These provisions (sections 281, 284) are new. Per Mason, J., in Pierce v. Crane, 4 Pr. R., 257; 3 Code Rep., 21. They are clearly for the benefit of the defendant alone; and if he sees fit to waive them, he may do so. Per Shankland, J., in Hul

bert v. Fuller, 3 Code Rep., 55, and therefore if the defendant consent thereto, an execution may issue after the lapse of five years from the entry of judgment. Ib.

On a motion under this section for leave to issue execution, if the judgment debtor denies that any thing is due upon the judgment (or that less is due than is claimed by the judgment creditor), the court before granting the motion will refer the matter to a referee to report what, if any thing, is due upon the judgment. Catskill Bank v. Sandford, 2 Code Rep., 58; 4 Pr. R., 101; and if it is considered a proper case for granting the motion, the court will direct that on filing the report of the referee with the county clerk, the judgment creditor be at liberty to issue execution for the amount reported to be due. Ib.

See note to section 283.

§ 285. [240.] (Amended 1849.) Other judgments how enforced. Where a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this title. Where it requires the performance of any other act, 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.

§ 286. [241.] (Amended 1849.) The different kinds of execution. 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 property, 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.

A ca. sa. is an execution within the meaning of the act of 1842 amending the revised statutes so as to require executions to be issued within 30 days after the time when, by law, such executions should be issued, and the 222d section of the act concerning courts held by justices of the peace. Fox v. Ames, 6 Barb. S. C. R., 256.

$287. [242.] (Amended 1851, 1852.) To what counties execution may be issued.--When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where the judgment is docketed. When it requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the

same time to different counties.

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

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