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cient cannot be found, then out of the real property belonging to him on the day when the judgment was docketted in the county ;
2. If it be against the person of the judgment debtor, it shall require the sheriff 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;
3. If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same (particularly describing it) to the party entitled thereto.
$ 245. The sheriff shall, in all cases return the execution within sixty days after its receipt to the clerk with whom the record of judgment is filed.
§ 246. Until otherwise provided by the legislature, the existing provisions of law relating to executions, and their inciden's, including the sale and redemption of property, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties and the liability of their sureties, shall apply to the executions prescribed by this chapter.
PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.
SECTION 247. If execution be returned unsatisfied, an order for discovery of property
The provisions of this chapter, are designed to furnish a cheaper and easier method of discovering the concealed property of a judgment debtor, and of applying it, including outstanding claims in his favor, or things in action to the satisfaction of the judgment. It is a substitute for the existing remedy by creditors bill.
The great expense and formality attending this mode of enforcing payment of a judgment, has been one of the worst evils of our judiciary system. We entertain not the slightest doubt, that in practice this will be found much more easy and expeditious, and much less expensive than the present system.
The sereral sections require no explanation.
§ 247. When an execution against property of the judgment debtor, issued to the sheriff of the county where he resides, or if he reside out of the state, to the sheriff of the county where the record of judgment is filed, shall be returned unsatisfied in whole or in part, the judgment creditor may obtain an order from a judge of the court or a county judge of the county to which the execution was issued, requiring the judgment debtor to appear and make discovery on oath, concerning his property,
before such judge at a time and place specified in the order.
§ 248. After the issuing of execution against property, any person indebted to the judgment debtor, may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge therefor.
§ 249. Upon an affidavit, that any person has property of the judgment debtor, or is indebted to him, the judge may by an order require such person to appear at a specified time and place, and be examined, concerning the
$ 250. Witnesses may be required to appear and testify concerning any such matter, in the same manner as upon the trial of an issue.
$ 251. If the party or witness reside in the county where the order is made, he shall be required to attend before the judge; if in any other county, before a referee, as provided in section 255. In such case the examination shall be taken by the referee, and certified to the judge.
252. The judge may order any property of the judgment debtor, in the hands either of himself or of any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment.
$ 253. The judge may also by order appoint a receiver of the property of the judgment debtor in the same manner, and with the like authority, as if the appointment were made by the court, according to section 200. The judge may also, by order, forbid a transfer of the property of the judgment debtor.
$ 254. If it appear that a person so brought before the judge, claims an interest in the property of the judgment debtor, adverse to him, such interest shall be recoverable only in an action by the receiver; but the judge may by order, forbid a transfer of such interest, till a sufficient opportunity be given to the receiver to commence the action.
§ 255. The judge may, in his discretion, order a reference to a referee agreed upon or appointed as prescribed in sections 228 and 229, to report the evidence or the facts.
$ 256. The judge may allow to any party or witness so examined, his traveling expenses, and a fixed sum in addition, not exceeding
dollars as costs.
§ 257. If any party or witness disobey an order of the judge, duly served, such party or witness may be punished by the judge, as for a contempt.
Of the Costs in civil Actions.
SECTION 258. Fee bill abolished. Specific allowances given, termed costs.
259. When allowed of course to plaintiff.
On this subject we have proposed radical changes. We propose to abolish the fee bill altogether, cut off at once this prolific source of complaint and abuses, and place the law on its proper footing, of indemnity to the party, whom an unjust adversary has forced into litigation.
seem, at present, to be fixed with a view to the three following principles : first, that the state should prescribe the compensation which a lawyer may receive for his services; second, that this compensation should be proportioned to the number and length of proceedings in a cause ; and, third, that the whole of it should be assessed upon the losing party. The two first we conceive to be unsound.
We cannot perceive the right of the state, to interfere between citizens, and fix the compensation which one of them shall re_ ceive from the other, for his skill or labor. Government is instituted for the preservation of order, and the protection of rights. It is not its province, to make bargains for the people or to regulate prices. This it assumes to do, in respect to the