require the officer 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.

4. If it be for the delivery of the possession of real or personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the officer to satisfy any costs, damages, or rents and profits recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judg ment was recovered to be specified therein; if a delivery thereof cannot be had; and if sufficient personal property cannot be found, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter, and shall in that respect be deemed an execution against property.

a. Form of execution.-An execution must truly describe the party whose property is to be levied upon (Farnham v. Hildreth, 32 Barb. 277). It need not state any time or place for its return (Fake v. Edgerton, 3 Abb. 229; 5 Duer, 681). It is sufficient if it substantially follow the terms of the statute, and any defect in its form may be amended (Pierce v. Crane, 4 How. 257; Park v. Church, 5 How. 381). An irregularity in an execution which would be amendable, can only be taken advantage of by the execution debtor (Berry v. Riley, 2 Barb. 307; Grosvenor v. Hunt, 11 How. 355; Oakley v. Becker, 2 Cow. 454; Abels v. Westervelt, 15 Abb. 230). An execution on a judgment, by confession, will not be set aside at the instance of creditors because it was issued before the maturity of the note; nor is it a substantial defect in the execution that it describes the judgment to have been obtained in an action (Healey v. Preston, 14 How. 20; and see Oakley v. Becker, 2 Cow. 454). As to the form of an execution to collect an installment due on a judgment by confession, see § 384.

b. Where the execution recited that the judgment-roll was filed, instead of reciting, as the fact was, that a transcript of the judgment was so filed,—held that the execution might be amended to conform to the fact (Abels v. Westervelt, 15 Abb. 230).

c. A judgment issued out of the supreme court, upon a judgment recovered in a court of common pleas, is absolutely void (Clarke v. Miller, 18 Barb. 269) d. Execution against executors or administrators.-Executions against executor or administrator should not issue until his account has been rendered and settled, or unless by order of surrogate. And if issued after the settlement of account, then only for the proportion of assets applicable to judgment (2 R. S. 88, § 32; 2 Abb. 437; 11 How. 126; 10 How. 217; 23 Wend. 478; 12 Wend. 543; 9 Wend. 448, 487; 2 Bradford Sur. R. 24). A surrogate may, in his discretion, order an execution to issue, and no appeal lies from his decision (Mount v. Mitchell, 31 N. Y. 356)

e. An execution against property, on a judgment against executors, must direct the sheriff to collect the judgment out of the personal estate of the testator, naming him, in the hands of the defendants as his executors. It is not enough, in such a case, that in the execution the defendants are described as executors, because this alone will not prevent the sheriff levying on the individual property of the executors. The second subdivision of § 289 is imperative that the execution shall require the officer to satisfy the judgment out of the property which, according to the judgment, is liable for its payment.

If, at the time of issuing the execution, the defendant's accounts have been "rendered and settled," it is unnecessary to procure an order of the surrogate granting leave to issue the execution. But the execution can issue, only for the sum that shall have appeared, on the settlement of such accounts, to have been "a just proportion of the assets applicable to the judgments" (2 R. S. 88, $32). This provision of the revised statutes is still operative (Code, § 471; Olmstead v. Vredenburgh, 10 How. 217), and extends to debts contracted after the decease of the testator or intestate (Cowles v. Thompson, 5 Bradford Sur. R. 490).

See note to § 283.

a. Execution against the person.-It is not necessary (although it is better so to do) to state, in an execution against the person, the nature of the action (Fullerton v. Fitzgerald, 10 How. 37; 18 Barb. 441). Nor is it necessary to recite the facts which authorize the arrest (Hutchinson v. Brand, 9 N. Y. 208).

b. Execution against joint debtors.-Where the execution is issued in an action against two joint debtors, and in which only one of the defendants has been served with process, the execution may be in form against both the defendants, but should be indorsed with a direction to the sheriff, not to levy on the sole property of the defendant not served (2 R. S. 377, § 3). c. 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 making a levy upon the sole property of the other defendant (Mc Chain v. McKeon, 2 Duer, 645). An execution against joint debtors has priority over an attachment against one of the debtors, though the attachment is also for a joint debt (Abels v. Westervelt, 15 Abb. 230).

§ 290. (Am'd 1849.)

When returnable.

The execution shall be returnable within sixty days after its receipt by the officer, to the clerk with whom the record of judgment is filed

d. Return.-It is not necessary that an execution should remain in the hands of the officer sixty days. The return cannot be sooner compelled; but the officer may return it sooner (Morange v. Edwards, 1 E. D. Smith, 415; Spencer v. Cuyler, 17 How. 157; 9 Abb. 383). A sheriff is bound by law to return an execution according to the requisition of the statute, at his peril. If he neglects it, he renders himself liable to an attachment or an action, at the election of the party aggrieved; and in all cases the onus is on the sheriff to excuse the default (Wilson v. Wright, 9 How. 460). The omission of the sheriff to file his return does not affect the rights of the judgment creditor (Winebrenner v. Johnson, 7 Abb. N. S. 202).

e. It is the duty of a sheriff to return process to the proper office, either personally, by deputy or by mail. Or it may, at the request of the attorney of the execution creditor, be returned to such attorney. If the process be returned by mail, the sheriff must prepay the postage on the letter inclosing such process (Jenkins v. McGill, 5 How. 205; Laws 1850, ch. 225, § 3).

ƒ. Where a sheriff neglects to collect and return an execution within the time prescribed by law, he is liable to the plaintiff in the judgment, for the damages sustained by his neglect, unless he can show that the defendant in the execution had no property out of which the debt could be collected (Bowman v. Cornell, 39 Barb. 69; Humphrey v. Hathorn, 28 Barb. 278). In such an action the amount of the judgment and interest (Paige v. Willett, 5 Trans. App. 27) is the measure of damages; unless the defendant can show the judgment debtor had not sufficient goods to satisfy the execution, or some evidence in mitigation (Brookfield v. Remsen, 4 Trans. App. 278). The right of action having accrued is not divested by an appeal from the judgment (id.; The

People v. Lott, 21 Barb. 131). The attorney for the execution creditor may extend the time for the sheriff to collect the execution; such extension is a justification of the sheriff (see Пlumphrey v. Hathorn, 28 Barb. 278); and further, as to liability of sheriff for not returning execution, see Sweezy v. Lott, 21 N. Y. 481).

a. Executions on judgments of a district court of New York city, or the Marine court, where a transcript has been filed in New York, should be retuinable to the clerk of New York common pleas.

b. A judgment against a sheriff for not returning an execution is not a satisfaction of the judgment on which such execution issued (Baker v. Martin, 3 Barb. 634).

c. The omission of the sheriff to indorse upon the execution the proper return before it is filed, is amendable nunc pro tunc after the filing, but the sheriff must pay the costs of the motion to amend (Hill v. Ayer, 19 How. 91; 9 Abb. 220).

d. The supreme court has power to authorize a sheriff to withdraw from the files an execution, and to cancel a return of nulla bona made thereon (Barher v. Binninger, 14 N. Y. 270; Flanagan v. Tinen, 53 Barb. 587; Kingston B'k v. Eltinge, 40 N. Y. 401).

See Rule 8.

$291. (Am'd 1849, 1851.)

Existing laws continued.

Until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, 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.

e. Indorsement of execution.—On receipt of the execution the sheriff is required to indorse thereon the year, month, day, and hour when he received it (2 R. S. 364, § 10).

f. Sheriff bound to enforce execution.-Where the execution is regular on its face, and there is no defect of jurisdiction, neither irregularity nor error in issuing the execution will justify the sheriff in neglecting or refusing to execute it (French v. Willett, 4 Bosw. 649), otherwise if the execution is void (id.; Carpenter v. Willett, 1 Keyes, 510). But the sheriff may require indemnity before levying on property not in the possession of the execution debtor (Chamberlain v. Beller, 18 N. Y. 115), even after levy and sale (Westervelt v. Frost, 1 Abb. 74). A sheriff acts officially in selling the property of a stranger, as the property of the defendant in the execution. He may take an indemnity from the plaintiff for such an act, but cannot give an indemnity to the bidders at the sale. A sheriff, while in the discharge of his official duty, cannot divest himself of his official character (Ball v. Pratt, 36 Barb. 402). On being indemnified, he is bound to keep possession of the property, although a sheriff's jury may have found the title in a third person (The People v. Schuyler, 5 Barb. 166).

g. When execution may be levied.-The execution cannot be levied on a Sunday (1 R. S. 675, § 69); nor after the execution has been sixty days in the hands of the sheriff (Kingston B'k v. Eltinge, 40 N. Y. 391).

h. Instructions to sheriff. The party in whose favor process issues may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him (Root v. Wagner, 30 N. Y. 9; see Averill v. Williams, 4 Denio, 295).

¿. What attorney may issue execution.—An execution may be

issued by an attorney other than the one by whom the judgment was recovered (Cook v. Dickerson, 1 Duer, 679; 18 Abb. 336).

a. Priority of executions.-Where several executions are issued against the same defendant, that which has been first delivered to the sheriff must be first executed, and shall have preference, notwithstanding a former levy under another execution; but if a levy and sale shall have been made under such other execution, before an actual levy under the execution first delivered, the latter will lose its priority (Peck v. Tiffany, 2 N. Y. 451; see Kingston B'k v. Eltinge, 40 N. Y. 391).

b. Where there are two executions in the sheriff's hands, a sale on the junior one is valid, but the proceeds must in the first place be applied to the senior execution (Rowe v. Richardson, 5 Barb. 385).

c. Bankruptcy.—The lien of a levy on execution is not removed by the subsequent bankruptcy of the execution debtor (Re Bernstein, 34 How. 289).

d. Dormant execution.-The mere acquiescence of an execution creditor, in the delay of a sheriff in selling under an execution, where the creditor does not direct such delay, does not render the execution dormant as to subsequent ones; but delays directed by the creditor render the execution dormant as to subsequent purchasers and mortgagees, as well as executions (Thompson v. Van Vechten, 5 Abb. 459). If a judgment creditor, after execution issued, instructs the sheriff to levy, merely for the purpose of securing a preference and to leave the debtor in possession of the property seized, such execution becomes dormant (Dunderdale v. Sauvestre, 13 Abb. 116). A sheriff holding several executions against the same debtor, received at different times, cannot be required to treat those first received as dormant, merely because the plaintiff therein gave to the sheriff a written consent that he might adjourn a sale under them for forty-seven days after their return-day, there being no agreement giving to the debtor a delay, or the use or benefit of the property in the meantime (Paton v. Westervelt, 2 Duer, 362).

e. A sale made ostensibly under dormant executions, while another execution is in the hands of the sheriff, is valid to vest a title in the purchaser (Richards v. Allen, 3 E. D. Smith, 399). The plaintiff in the other execution may have the proceeds of the sale applied to his execution (id.; Kingston B'k v. Eltinge, 40 N. Y. 391).

f. The doctrine of dormant executions does not apply to real estate (Muir v. Leitch, 7 Barb. 341; Talbert v. Melton, 9 Sme. & M. 9).

g. Death or removal of sheriff.-If the sheriff die, or be removed from office before the execution is satisfied, his under-sheriff is required to proceed thereon, in the same manner as the sheriff might have done (2 R. S. 374, §§ 65, 66, 67; 10 Wend. 562).

h. Sheriffs' fees and poundage.-The only law regulating sheriffs' fees in civil actions is contained in the revised statutes (2 R. S. 645, § 38; Benedict v. Warriner, 14 How. 568). The sheriff may levy his fees and poundage for collecting, on $250 or less, 2 cents and five mills per dollar; and for every dollar above $250, 1 cent and 23 mills per dollar. For advertising sale, $2; and if the execution be stayed or settled after sale advertised, and before sale, $1; mileage, 6 cents per mile, for going only, to be computed from the court-house of the county. On a levy being actually made, the sheriff's right to poundage attaches on the whole amount directed to be levied; and he is not deprived of his right by the judgment being satisfied without sale, nor by any arrangement between the parties, nor by the property levied on being encumbered beyond its value (1 How. 151; 17 Wend. 14; 1 Caines' R. 192; 5 T. R. 470; 4 M. & S. 256; 1 Code Rep. N. S. 226). But the sheriff cannot, after the judgment is satisfied, sell the property of the judgment debtor to collect his fees; he must look to the judgment creditor (4 Wend. 474; Craft v. Merrill, 14 N. Y. 456; Carpenter v. Stillwell, 11 N. Y. 61; Baker v. Martin, 3 Barb. 364; Bank of Whitehall v. Weed, 8 How. 104). Where necessary, a new execution may be ordered for the sheriff's benefit (19 Wend. 79).

a. A sheriff has no right to employ an auctioneer to sell property. Nor can he charge as a disbursement for a watchman taking care of the property (Lord v. Richmond, 38 How. 173).

b. An agreement by a sheriff to accept less than his fees is not binding on him (Van Nest v. Lott, 16 Abb. 130).

c. The attorney in the action is liable to the sheriff for his fees (Birkbeck v. Stafford, 23 How. 236; 14 Abb. 285).

d. Attaching sheriff for not paying over money.—The court will not attach a sheriff for not paying over moneys, where a third party makes a claim on the money (9 How. 460; and see 1 Denio, 641; 1 How. 220).

e. Official bond of sheriff and deputy.—Liability of sureties on official bond of sheriff (The People v. Schuyler, 5 Barb. 166); and of deputy sheriff (Rowe v. Richardson, 5 Barb. 385; see 18 Abb. 103; 42 Barb. 281; 28 How. 1).

f. When execution becomes a lien on personal property.— Goods and chattels are bound, from the time of the delivery of the execution to the sheriff, to be executed, except in the hands of bona fide purchasers, without notice (11 Wend. 548; 8 Johns. 446; 12 b. 320; 16 b. 287; 5 Denio, 198; 8 Barb. 333; Stoughtenburg v. Vandenburg, 7 How. 229; see Williams v. Shelly, 37 N. Y. 375; 4 Trans. App. 314; Elias v. Farley, 3 Keyes, 398; and the lien of the execution attaches to all goods acquired by the execution debtor, within the jurisdiction, during the life of the execution (Roth v. Wells, 29 N. Y. 472).

g. With that qualification, a regular sale by the sheriff transfers to the purchaser the title of the judgment debtor as it existed on the day of the delivery of the writ (Thompson v. Van Vechten, 5 Abb. 458; and see Fuller v. Allen, 7 id. 12; 16 How. 247). A chattel mortgage, not filed until after the delivery of an execution to the sheriff, is void as against the latter, although filed before a levy has been made (Hale v. Sweet, 40 N. Y. 95).

h. What personal property may be levied on.-All the personal property of the judgment debtor, except such as is exempt by special provision of law (see post, p. 456 b), and except choses in action (Ransom v. Miner, 1 Code Rep. N. S. 98), growing trees, fruit, and grass (Bank of Lansingburg v. Crary, 1 Barb. 542). In the property liable to execution is included trade fixtures (10 Barb. 157, 596), and the interest of the judgment debtor in goods pledged (6 Hill, 485), or mortgaged (Hull v. Carnley, 17 N. Y. 202; Saul v. Kruger, 9 How. 569; Hall v. Sampson, 19 How. 48). But after the debt secured by a chattel mortgage has become due, and a forfeiture has occurred by reason of the nonpayment, the title of the mortgage is absolute, and the mortgagor has no interest in the mortgaged property, which is liable to be sold on execution against him. And this, notwithstanding the property is suffered to remain in the possession of the mortgagor after forfeiture (Champlin v. Johnson, 39 Barb. 606; Farmer's B'k of Wash. Co. v. Cowan, 2 Keyes, 217). A sheriff levying upon the interest of a defendant in execution, upon property legally held by a third party in virtue of an existing lien, cannot remove the property from the possession of such third party (Truslow v. Putnam, 1 Keyes, 568; and see Brownell v. Carnley, 3 Duer, 14; Stief v. Hart, 1 N. Y. 20; Tifft v. Barton, 4 Denio, 171; Goulet v. Asseler, 22 N. Y. 225).

i. It seems that a mortgagee of chattels may maintain an action for the damage to his reversionary interest, caused by a sale of the mortgaged property in parcels under an execution against the mortgagor while he was in possession (Manning v. Monaghan, 23 N. Y. 539).

j. Chattels given to a married woman, remaining in a house occupied by the husband and wife together, are to be deemed in the possession of the wife, and are not liable to execution against the husband (Allen v. Cowan, 23 N. Y. 502).

k. Bills or other evidences of debt issued by any moneyed corporation, or