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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 to be sold.

An execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate property, and not otherwise.

a. An execution which directs the seizure of real property, in a county in which the judgment has not been docketed, is irregular; but such an execution against personal property only is regular, and the court will permit an execution to be amended by striking out the direction to seize real property (Stephens v. Browning, 1 Code Rep. 123), or the court may order a new transcript to be filed and the judgment docketed nunc pro tunc (Roth v. Schloss, 6 Barb. 308).

b. The fact that the judgment creditor has property in the county where the judgment is entered, does not effect the right of the judgment creditor to issue execution against his property in another county (Brush v. Lee, 36 N. Y. 49).

c. Execution against married woman.—On judgment for plaintiff in an action for a tort against husband and wife, execution may be issued against the property of both, and if returned unsatisfied, an execution against the persons of both may issue (Marsh v. Potter, 30 Barb. 506; and see Solomon v. Waas, 2 Hilton, 181; Charles v. Lowenstein, 26 How. 29). See Laws 1860, ch. 90, 1862, ch. 172.

d. A judgment for costs against a married woman may be collected by execution against her separate property (Moncrief v. Ward, 25 How. 94; 16 Abb. 354, note). The provision that the execution against a married woman shall direct the levy and collection out of her separate estate is directory merely (Thompson v. Sargent, 15 Abb. 452). The execution against the property of a married woman should direct that it be levied of her separate property (Baldwin v. Kimmel, 16 Abb. 354).

See Rule 73.

§ 288. (Am'd 1849, 1862, 1870.) Execution against the person, in what cases, and when.

If the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179.

If any defendant be in actual custody under an order of arrest,

and the plaintiff shall neglect to enter judgment in the action, within one month after it is in his power to do so, or shall neglect to issue execution against the person of such defendant within three months after the entry of judgment, such defendant may, on his motion, be discharged from custody by the court in which such action shall have been commenced, unless good cause to the contrary be shown; and, after being so discharged, such defendant shall not be arrested upon any execution issued in such action.

a. Execution against the person of defendant, when it may issue. No execution against the person of a defendant can issue, in any case, until after an execution against the property is returned unsatisfied, and, where no order of arrest has been obtained in the action before judgment; no execution can issue against the person, unless the statement of facts constituting the cause of action contained in the complaint, shows a liability to arrest, and the cause of action and cause of arrest are identical (Wood v. Henry, 40 N. Y. 124). A complaint alleging the contracting of a debt in a fiduciary capacity (id.), or the withholding possession of real estate (ejectment) (Merritt v. Carpenter, 33 How. 428), do not show a liability to arrest; but a complaint showing a negligent or willful injury to personal property (Keeler v. Clark, 18 Abb. 154; Niver v. Niver, 19 Abb. 14; 29 How. 6), or wrongful conversion of personal property, does show a liability to arrest, and in such a case, after an execution against property returned unsatisfied, an execution may issue against the person, although no order of arrest was obtained before judgment (Richtmeyer v. Remsen, 38 N. Y. 206; Wesson v. Chamberlin, 3 N. Y. 331); otherwise in an action of claim and delivery (Purchase v. Bellows, 14 Abb. 357; 23 How. 421; 16 Abb. 105); and in an action to set aside a conveyance as fraudulent against creditors (Fassett v. Tallmadge, 14 Abb. 188; 23 How. 244).

b. Where an order of arrest has been obtained before judgment and continues in force, then, upon the return of an execution against the property unsatisfied, an execution against the person issues of course (but see Crowell v. Brown, 17 How. 68; Bridgewater Paint Co. v. Messmore, 15 How. 12; Moore v. Culvert, 9 How. 474). The right to issue it need not appear upon the judgment-roll (Lovee v. Carpenter, 3 Abb. N. S. 309; Corwin v. Freeland, 6 N. Y. 560; Smith v. Knapp, 30 N. Y. 581).

c. W nere an order of arrest has been obtained before judgment and is subsequently vacated, then the right to execution against the person is the same as if no order of arrest had been obtained, and in such a case the defendant is not liable to an execution against his person because the jury have found that he committed a fraud in contracting the debt (Stelle v. Palmer, 11 Abb. 62; see Meech v. Loomis, 23 How. 484; 28 How. 209; 14 Abb. 428). The release of a defendant from arrest by consent of plaintiff's attorney does not, per se, operate as a discharge of the order of arrest. And on a judgment against him in the action, the defendant may be arrested on final process (Meech v. Loomis, 28 How. 209; 23 How. 484; 14 Abb. 428).

d. Execution against person of married woman.—An execution may issue against the person of a married woman. Where in an action for an assault against a feme sole, she married after judgment against her, on return of an execution against her property unsatisfied, an execution was issued against her person: on motion before Hon. C. P. Daly, first judge of the New York Common Pleas, he, on careful review of the authorities, held, (1.) that the execution was properly issued without making the husband a party (Cooper v. Hunchin, 4 East, 521). (2.) That it was in the discretion of the court to discharge or refuse to discharge a married woman out of custody. (3.) That the court would order the discharge only in those cases where it ap

peared that the married woman had no separate estate. In that case it appearing the defendant had a separate estate, the judge refused to order her discharge (Wilson v. Sulzer, MS. see 3 Maule & S. 557; Pitts v. Miller, 2 Stra. 1167; 1237; Twiggs v. Twiggs, 2 M. & Ry. 126 n.; Benyon v. Jones, 15 M. & W. 566; Com'wealth v. Badlen, 9 Pick. 362; McKinstry v. Davis, 3 Cow. 339; Chalk. Deacon, 6 Moore, 128; Metcalf v. Boote, 6 D. & R. 46; Thorp v. Argles, 1 D. & L. 831; Evans v. Chester, 6 Dowl. 140; Edwards v. Martin, 2 L. M. & P. 669; Hollingdale v. Lloyd, 1 Horn & Hurl. 119; Sparkes v. Bell, 8 B. & C. 1; Larkin v. Marshall, 4 Ex. 804). Held that a married woman plaintiff, who has a judgment against her for costs, is not subject to an execution against her person for such costs (Hey v. Star, 42 Barb. 435).

a. Execution against the person of plaintiff.-A plaintiff who fails in an action in tort, in which the defendant was liable to arrest, is liable to an execution against his person, although the defendant was not in fact arrested, and no order has been ma le for the defendant's arrest, or for an execution against his person (Kloppenburgh v. Neefus, 4 Sand. 655; Corwin v. Freeland, 6 N. Y. 560). A defendant who recovers a judgment for costs, in an action to recover the possession of specific personal property, in which no order for his arrest has been made, cannot issue execution against the person of the plaintiff upon such judgment (Purchase v. Bellows, 19 Abb. 306). And so of a defendant who recovers judgment in an action of ejectment (Merritt v. Carpenter, 2 Keyes, 462; 3 Keyes, 142).

b. Return of execution against property.-To justify the issuing an execution against the person, it is not necessary that sixty days should intervene between the issuing of the execution against property and the execution against the person. It is enough that the first has been actually returned by the sheriff, when he has acted bona fide (Fake v. Edgerton, 3 Abb. 229; 5 Duer, 681). Nor is it necessary that the execution against the property should be issued to the sheriff of the county where the plaintiff resides (b.) The issuing an execution against the person before the return of an execution against the property, is an irregularity merely, and does not make the execution against the person void (Renick v. Orser, 4 Bosw. 384). A return may be made nunc pro tunc (Hall v. Ayer, 9 Abb. 220: 19 How. 91).

c. Execution against the person on justice's judgment.-An execution against the person may issue out of the common pleas on a judgment of the marine court, after a transcript of such judgment has been filed with the county clerk (Ginochio v. Figari, 2 Abb. 185; 4 E. D. Smith, 227; Hall v. McMahon, 10 Abb. 319; Whiting v. Putnam, 16 Abb. 332). The marine court of the city of New York cannot issue an execution against the person (The People v. Smith, 9 How. 464).

d. To justify the arrest of a defendant on an execution issued upon a judgment obtained in a district court in the city of New York, the justice must state in the judgment, and enter in his docket, that the defendant is subject to arrest and imprisonment (Carpenter v. Willett, 1 Keyes, 510).

e. Effect of arrest on the judgment.-The effect of taking the body of a party in execution, is, as a general rule, a satisfaction of the judgment (1 Cow. 56; 9 Wend. 241; 11 b. 41; 5 ib. 58-240). But if the party die in execution, or is rescued, or improperly discharged, a new execution may issue (Wesson v. Chamberlain, 3 N. Y. 331).

f. Discharge from arrest on execution.-A defendant arrested on an execution against the person, may be discharged by paying the amount of the levy to the sheriff or the plaintiff's attorney. But the sheriff cannot discharge the party arrested on his giving security (6 Cow. 465; 1 ib. 46; 5 Wend. 207; 9 Johns. 263). And the attorney has no power to give a discharge except on an actual payment (8 Johns. 361; 6 ib. 51; 21 Wend. 362; 7 Cow. 739). It is no ground for discharging one of several defendants from an arrest on execution, that at the time the execution was delivered to the sheriff, instructions were given him not to arrest the other defendants, and that the

sheriff has acted on such instructions (Fake v. Edgerton, 3 Abb. 229; 5 Duer, 681).

a. The taking in execution the body of a county treasurer at the suit of the State, does not affect the action at the suit of the county (Supervisors of Livingston v. White, 30 Barb. 72).

b. A voluntary discharge of the party arrested, is a discharge of the judg ment (5 Johns. 364; 8 Cow. 171; 3 Wend. 184). If a party is discharged on the ground of irregularity in the execution, a new execution may issue on the judgment (5 Wend. 90; 3 Adol. & El. N. S. 1; Ginochio v. Figari, 2 Abb. 185; 4 E. D. Smith, 227). See Charging in execution, infra.

c. Where an execution against the person is improperly issued, the remedy, it would seem, is on a motion to set aside the execution, but semble, a party arrested under such an execution may be discharged on habeas corpus (see The People v. Willett, 26 Barb. 78; 6 Abb. 37; 10 How. 210; Wiles v. Brown, 3 Barb. 37).

d. Jail liberties.-If the defendant do not discharge the execution, he may be admitted to the liberties of the jail, on executing a bond to the sheriff (2 R. S. 433; 19 Johns, 233; 7 ib. 168; 6 ib. 121; 15 ib. 256; 12 ib. 88). The liberties of the city of New York are "all the city and county of New York" (Laws 1846, ch. 32). In other counties (with some exceptions) the liberties are designated by the county courts of each county, and are not to exceed 500 acres in extent (Laws 1851, ch. 21), Erie (Laws 1861, p. 61), Rensselaer (Laws 1830, ch. 252), Onondaga (Laws 1851, ch. 202), Schenectady (Laws 1830, ch. 244), Alleghany (Laws 1831, ch. 217), Dutchess (Laws 1861, ch. 130), of Kings include towns of Flatbush and Brooklyn, excluding so much as was formerly Bushwick and Williamsburgh (Laws 1831, ch. 217; Chamberlain v. Campbell, 39 Barb. 640).

e. The provisions of 2 Rev. Stat. 31, § 1, providing for the discharge of an imprisoned debtor, held to apply as well to debtors on the limits as to those in close custody (Coman v. Storm, 26 How. 84).

f. Defendants against whom judgment is obtained on any bond given under the act to suppress intemperance, or for any penalty incurred under that act, are not entitled to jail liberties (Laws of 1857, vol. 2, p. 416, § 32).

g. The court cannot order the sheriff to accept bail for the jail liberties (Sartes v. Merceques, 9 How. 188). If the sheriff improperly refuse bail the remedy is by action (id.) Assignment of bond for jail liberties after death of sheriff (Ridgway v. Barnard, 28 Barb. 613).

h. Charging in execution.—When a defendant, against whom an order of arrest has been obtained, is, at the time judgment is rendered, in custody of the sheriff, the plaintiff must charge him in execution within three months from the last day of the term next following that at which judgment is obtained. If the defendant is surrendered in discharge of his bail, he must be charged in execution within three months after his surrender, and in all cases, as it would seem, within three months from the return unsatisfied of an execution against the property of the defendant. A neglect to charge the defendant in execution entitles him to apply for a supersedeas to be discharged from custody (2 R. S. 556, §§ 36, 37; see Smith v. Knapp, 30 N. Y. 581 ; Eagleston v. Son, 5 Rob. 640; Skinner v. Noyes, 7 Rob. 228; Roswog v. Seymour, 7 Rob. 427; Desisles v. Cline, 4 Rob. 645; Haviland v. Kane, 1 Abb. N. S. 409). After a judgment debtor has "remained charged in execution thirty days from the date of his imprisonment," the judgment creditor may by a written notice require the sheriff to discharge him; and thereupon the sheriff may discharge him. He cannot be again arrested on the same judgment; but the judgment creditor "may have the same civil remedies to enforce payment of the judg ment upon which such execution was issued, and as if such execution had not been issued" (Laws 1857, ch. 427).

i. A motion for a supersedeas cannot be granted on the ground that plaintiff has neglected for three months to charge defendant in execution, unless the bail have been exonerated. When the moving papers on such a motion do

not show that the bail have been exonerated, plaintiff's allegations that he had no notice of the surrender is in effect a denial that the bail have been exonerated (Hills v. Lewis, 13 Abb. 101, note).

a. The time for charging in execution is to be computed from the date of actual entry of judgment, not from the date when the plaintiff might have entered it (Lippman v. Petersberger, 9 Abb. 209; 18 How. 270). The mere acceptance of an offer to allow judgment, is not obtaining judgment within the meaning of the statute (id.)

b. A defendant under arrest, prejudiced by plaintiff, delaying to enter judgment and charge in execution should move to compel same (2 Abb. N. S. 295).

c. An order of supersedeas is appealable to the general term (2 Abb. 20). d. Escape.-After voluntary escape from custody or execution, the party cannot be retaken (Lansing v. Fleet, 2 Johns. Cas. 3). But by voluntarily returning, he may, by renewal of process, be retained in custody (Thompson v. Lockwood, 15 Johns. 556; Littlefield v. Brown, 1 Wend. 398). After a negligent escape the party may be recaptured out of the State (see Lockwood v. Mercereau, 6 Abb. 206).

e. Where a prisoner, who has given bonds for the limits, and is arrested by authority of law within the limits and carried beyond the limits against his consent, and he returns to the limits as soon as practicable, such going beyond the limits is not an escape for which the sheriff is liable (Wickelhauser v. Willett, 12 Abb. 319; see, contra, Brown v. Tracy, 9 How. 93; and see Dexter v. Adams, 2 Denio, 646; and 4 How. 367).

f. The insolvency of the debtor is no bar to an action against the sheriff for an escape, founded on 2 Rev. Stat. 437, § 63 (Barnes v. Willett, 11 Abb. 225; 12 Abb. 448; and see Smith v. Knapp, 30 N. Y. 581; Carpenter v. Willett, 31 N. Y. 90; Metcalf v. Stryker, 31 N. Y. 255; French v. Willett, 10 Bosw. 566; Wilckens v. Willett, 1 Keyes, 521).

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$289. (Am'd 1849.) Form of the execution.

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 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

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