Vide 2 R. S., 88,

on an order of the surrogate who appointed him. section 32. See, as to the form and manner of such an application to the surrogate, by a creditor, who shall have obtained judgment against an executor or administrator, after a trial at law upon the merits, 2 R. S., 116, sections 19, 21. See likewise, as to a similar application, for leave to issue an alias execution, under these circumstances, for further assets, quando acciderint, 2 R. S., 117, section 22.

In Alden vs. Clark, 11 How., 209, it was considered that not merely was the surrogate's permission necessary under the act of 1850, in order to the issuing of execution against the estate of a deceased defendant, but that the leave of the court must also be applied for in all cases, whether five years have or have not elapsed. It is also held that notice. of such application, must be given to all parties interested in the estate of the deceased.

This proceeding seems more peculiarly applicable, to cases where there is no representative of the estate of the deceased judgment-debtor. Where his will has been proved, or administration taken out, the proper course will be to summon the representatives or parties interested, to show cause why the judgment should not be enforced against the estate of the deceased debtor in their hands, under the special power given for that purpose in section 376. See, as to this proceeding and its incidents, Mills vs. Thursby (No. 10), 12 How., 385; 2 Abb., 432. On the judgment obtained on this proceeding, execution issues by leave of the surrogate, in the ordinary course.

When an account has been rendered and settled by an executor or administrator, it is no longer necessary to obtain the surrogate's permission previous to issuing execution; but such execution can only issue for a just proportion of the assets appearing to be applicable. If for more, it will be irregular. Olmstead vs. Vredenburgh, 10 How., 215. See, as to refusal on the part of a surrogate to decree payment of a judgment-debt out of the assets of a deceased party, in anticipation of the usual period of settlement, Claim of Mills vs. Estate of Thursby, 11 How., 126.

(d.) LEAVE TO ISSUE UNDER CODE.

An application for this purpose will be necessary, where execution is sought to be issued, after the lapse of five years from the entry of judgment. Section 284.

The only exception to the general rule is that, when execution has been issued on the judgment within five years, and returned unsatisfied in whole or in part, leave is unnecessary. This provision was first inserted on the amendment of 1858, and seems clearly to embrace all

cases of execution against the person, to which such a previous execution and return is a prerequisite.

That amendment carries out the views previously enounced in McSmith vs. Van Dusen, 9 How., 245; Pierce vs. Crane, 4 How., 257; 3 C. R., 21; and Kress vs. Ellis, 14 How., 392. The contrary was held before the amendment, in Currie vs. Noyes, 1 C. R. (N. S.), 198; Redmond vs. Wheeler, 2 Abb., 117; Swift vs. Flanagan, 12 How., 438; Sacia vs. Nestle, 13 How., 572.

The last class of cases decides, that the former writ of scire facias under these circumstances is wholly abolished, and a fresh action under the Code substituted in its place. See also Catskill Bank vs. Sanford, 4 How., 101; 2 C. R., 58; Same case, 4 How., 101; Jones vs. Lawlin, 1 Sandf., 722; 1 C. R., 94. See likewise, as to execution after the decease of the plaintiff, Thurston vs. King, 1 Abb., 126; Jay vs. Martine, 2 Duer, 654; Cameron vs. Young, 6 How., 372; Wheeler vs. Dakin, 12 How., 537; Ireland vs. Litchfield, 22 How., 178; and Frink vs. Morrison, 13 Abb., 80, above noticed.

The same class of cases decides that the abolition of the former writ of scire facias was retrospective, as regarded actions commenced before the passage of the Code; and overrules the following, maintaining the contrary, and that, in that class of actions, the former writ was still available. Anon., 1 C. R., 118; Clark vs. Hutchinson, 1 C. R., 127; 7 L. O., 91; Merritt vs. Wing, 4 How., 14; 2 C. R., 20; Pierce vs. Crane, 4 How., 257; 3 C. R., 21.

The application must be made to the court by which the judgment has been rendered, if a court of record; if not, to the county court of the county, and, in New York, to the Court of Common Pleas.

Personal notice must be given to the adverse party, unless he be absent, or non-resident, or cannot be found. Under these latter circumstances, service may be made by publication, or in such manner as the court may direct.

It is clear that, when this is the case, a preliminary application should be made to the court, or to a judge, asking directions as to the mode and duration of publication, or other form of service. The ordinary service by publication, under section 135, is clearly confined to cases of sumThe statute of 1853 is only partially applicable, and that statute requires an application to be made.

mons.

The motion must be brought on, on the usual notice, unless otherwise prescribed, or on order to show cause, which may embody every direc tion as to substituted service. And an affidavit should, in all cases, be made, that the judgment, or some part thereof, remains unsatisfied and due, specifying particulars, if there has been any partial satisfaction. If the defendant appears, the motion will come on with the usual in

cidents of a hearing. If he makes default, the order may be taken on the usual proof of service. But the official certificate of the sheriff of another state will not be sufficient. His affidavit must be procured. See Thurston vs. King, 1 Abb., 126.

An order of this description cannot be obtained, after abatement of the suit by the death of the plaintiff. See Bellinger vs. Ford, and Thurston vs. King, supra.

It cannot be obtained until the five years have elapsed. If moved for previously for another purpose, as where a previous execution was set aside as being void, it will have no prospective effect, in justifying an issuing after the period has elapsed. Field vs. Paulding, 1 Hilt., 187; 3 Abb., 139.

And, if issued after the five years without leave, the execution will be bad. See Currie vs. Noyes, 1 C. R. (N. S.), 198; Redmond vs. Wheeler, 2 Abb., 117; Swift vs. Flanagan, 12 How., 438; Sacia vs. Nestle, 13 How., 572. These four cases are partially overruled, in relation to the effect of a previous execution, by the amendment of the section in 1858, but, on the general principle, their authority is not shaken. See also Alden vs. Clark, 11 How., 209.

But the omission to obtain such leave, does not render the execution. absolutely void, but only voidable. Bellinger vs. Ford, 21 Barb., 311; Bank of Genesee vs. Spencer, 18 N. Y., 150. See also, Bacon vs.

Cropsy, 3 Seld., 195. See, however, as to a justice's judgment, Bates vs. James, 3 Duer, 45. Consent to the execution being issued, will also waive this irregularity. Hulbert vs. Fuller, 3 C. R., 55. See also Merritt vs. Wing, 4 How., 14; 2 C. R., 20.

If too long delayed, the application may be refused, as after a delay of more than twenty years, creating the presumption of payment. See Kennedy vs. Mills, 4 Abb., 132. See likewise, generally, Sacia vs. Nestle, 13 How., 572.

On the motion being brought on, the defendant may show any matter, tending to defeat or diminish the demand of the plaintiff; and, if he contests the existence or amount of the debt, a reference may be directed. Catskill Bank vs. Sanford, 4 How., 101; Kennedy vs. Mills, 4 Abb., 132.

He cannot, however, go behind the record, and question the regularity of the judgment. If he seeks to do so, he must make an independent application. The only inquiry is, whether that judgment, or any part of it, has been satisfied. Lee vs. Watkins, 13 How., 178; 3 Abb., 243. Nor can the operation of the execution, as against intermediate grantees of the debtor, be inquired into. See Small vs. Wheaton, 4 E. D. Smith, 427; 2 Abb., 316.

Where a valid set-off was alleged by the defendant, to an amount suffi

cient to extinguish the plaintiff's claim, the motion was denied, and the latter left to his remedy by action. Betts vs. Garr, 1 Hilt., 411.

Where the defendant's discharge as an insolvent debtor had been set aside, liberty was granted to issue execution. Small vs. Wheaton, supra. See also Browne vs. Bradley, 5 Abb., 141. But such a discharge cannot be collaterally impeached by affidavit, to sustain an execution already issued in disregard of it. The court will leave the parties to their direct remedy. See Dresser vs. Shufeld, 7 How., 85. Leave to issue a fresh execution will be proper, where a prior satisfaction of the judgment has been vacated. Suydam vs. Holden, Seld. Notes, 7th of October 1853, p. 16. See also, Field vs. Paulding, 1 Hilt., 187; 3 Abb., 139.

(e.) GENERAL OBSERVATIONS.

It is, on many accounts, essential that, in all cases, execution should be issued at once, and as speedily as possible; and this, even when it is clearly improbable that any thing can be immediately realized.

In the first place, until the issuing and return of such an execution, supplementary proceedings, with a view to the discovery of the debtor's property, cannot be maintained; and it is most expedient, that a basis should, at once, be laid for the adoption of those remedies, without technical delays, at any future period, when they may appear to be practically available.

In the second place, it is equally essential, with a view to form the basis for proceedings in the nature of a creditor's bill, should property be thereafter discovered.

And, in the third place, if issued and returned within five years, it relieves the party from the necessity of an application to the court, before issuing an alias execution, against subsequently acquired or discovered property.

Where execution against the person is admissible, it is equally important, as that description of process cannot be issued, until after the previous issuing and return of one against property. Besides which, any undue delay may form ground for a supersedeas. See below, under that head.

An unreasonable delay in issuing execution on a judgment, the collectibility of which had been guaranteed, was held to discharge the guarantor, in Mains vs. Haight, 14 Barb., 76.

On the other hand, an execution cannot be issued prematurely, as for an expected deficiency on the sale of mortgaged premises, before that deficiency has been duly ascertained. Cobb vs. Thornton, 8 How., 66. Where execution is an admissible remedy, and the debt is collectable under it, a surrogate's court cannot enforce payment of the same debt,

by the extraordinary process of attachment. In re Latson, 1 Duer, 696. See also Doran vs. Dempsey, 1 Bradf., 490, there cited.

§ 279. Form and General Incidents.

Whatever may be its nature, every execution possesses certain incidents in common, which it will be as well to notice preliminarily, as likewise the mode of direction applicable to each.

(a.) DOCKETING OF JUDGMENT.

That this is a necessary preliminary in all cases, is clear, from section 287; and the dicta in Stephens vs. Browning, 1 C. R., 123; 7 L. O., 61, and Stoutenburgh vs. Vandenburgh, 7 How., 229, to the effect that an execution, though confessedly void as to real, may be enforceable as against personal property, in a county where the judgment has not been docketed, cannot safely be relied on; see likewise De Agreda vs. Man tel, 1 Abb., 130 (135); and the actual decision in Stoutenburgh vs. Van denburgh, is in fact authority to the same effect.

Execution cannot be issued upon a judgment which, at the time, stands satisfied of record. If the satisfaction be voidable for any cause, it must be first vacated. Ackerman vs. Ackerman, 14 Abb., 229.

(b.) FORM OF WRIT.

Execution, of whatever nature, is process of the court, and must be issued in the name of the people, and tested, pro forma, in the name of a justice of the tribunal out of which it is issued. It must be issued by the same court by which the judgment was rendered. If erroneously issued out of another, the defect will be fatal. It will not merely be voidable, but void. Clarke vs. Miller, 18 Barb., 269.

It need not be under the seal of the court, but must be subscribed by the party issuing it, or by his attorney.

When execution is issued on the judgment of a court of record, no other subscription than the above is necessary. When, however, it issues upon a judgment originally rendered in a justice's court, or other similar tribunal, which has become a judgment of the county court, by being docketed under the power conferred by section 63, it must, in that case, be issued and subscribed by the clerk of the county. It should be prepared accordingly and presented to him for that purpose, and his signature obtained.

The execution must, in all cases, be directed to the sheriff of the county, into which it is issued, or to the sheriff of each such county, where more than one execution is issued at the same time. This course is expressly sanctioned by section 287. Each execution in such cases is