perfecting an appeal from an order, taken as therein prescribed; to staying the execution of the order appealed from; to hearing the appeal; and to the entry and enforcement of the order made upon the appeal, apply, where an appeal is taken, as prescribed in this title, except as otherwise specially prescribed by law $1361. This title does not confer the right to appeal from an order in a case, where it is specially prescribed by law, that the order cannot be reviewed. The proceedings upon an appeal, taken as prescribed in this title, are governed by the provisions of this act, and of the general rules of practice, relating to an appeal in action, except as otherwise specially prescribed by law. CHAPTER XIII. EXECUTIONS. TITLE I.-FORMS OF EXECUTION; TIME AND MANNER OF ISSUING AN EXECUTION; GENERAL DUTIES AND LIABILITIES OF OFFICERS. TITLE II-EXECUTION AGAINST PROPERTY. TITLE III.-EXECUTION AGAINST THE PERSON. TITLE I. Forms of execution; time and manner of issuing an execution; general duties and liabilities of officers. 1375. Execution of course, within five years. 1376. Execution, after death of judgment creditor. 1377. When execution may be issued 1378. Id.; leave, how obtained. 1380. Leave required to issue execn- 1381. Leave, how obtained. 1382. Time of stay by order, etc., not 1384. Sale on execution, etc.; when 1386. Validity of sale, when not affected by sheriff's default, etc. 1387. Purchases on such sale, by certain officers, prohibited. 1388. When execution to be enforced by under-sheriff. § 1362. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in section one hundred and seventy-three of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly. § 1363. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour and minute, when he received it. § 1364. There are four kinds of execution, as follows: 1. Against property. 2. Against the person. 3. For the delivery of the possession of real property, with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof. An execution is the process of the court, from which it is issued. 1365. An execution against property can be issued only to a county in the clerk's office of which the judgment is docketed. An execution against the person may be issued to any county. An execution for the delivery of the possession of real property, must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties. It § 1366. An execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if it was rendered in the supreme court, the county in which the judgment-roll is filed. must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Except as otherwise prescribed in the next section, it must be made returnable to the clerk, with whom the judgmentroll is filed. 1367. Where an execution is issued out of a court, other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk, with whom the transcript is filed, and the time of filing; and it must be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specification, respecting the filing of the judgment-roll. § 1368. An execution, issued upon a judgment for a sum of money, or directing the payment of a sum of money, must specify, in the body thereof, the sum recovered, or directed to be paid, and the sum actually due when it is issued. It may specify a day, from which interest upon the sum due is to be computed; in which case, the sheriff must collect interest accordingly, until the sum is paid. If all the parties, against whom the judgment is rendered, are not judgment debtors, the execution must show who is the judgment debtor. § 1369. An execution against property must, if the judgment-roll is not filed in the clerk's office of the county to which it is issued, specify the time when the judgment was docketed in that county. It must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. § 1370. Where a warrant of attachment, issued in the action, has been levied, by the sheriff, the execution must substantially require the sheriff to satisfy the judgment, as follows: 1. Where the judgment debtor is a non-resident, or a foreign corporation, and the summons was served upon him or it, without the State, or otherwise than personally, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and the judgment debtor has not appeared in the action; out of the personal property attached, and, if that is insufficient, out of the real property attached. 2. In any other case, out of the personal property attached; and, if that is insufficient, out of the other personal property of the judgment debtor; if both are insufficient, out of the real property attached; and, if that is insufficient, out of the real property, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. § 1371. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee, must substantially require the sheriff to satisfy the judgment, out of that property. § 1372. An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judginent, or is discharged according to law. Except where it may be issued, without the previous issuing and return of .an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued. § 1373. An execution for the delivery of the possession of real property, or a chattel, must particularly describe the property, and designate the party to whom the judgment awards the possession thereof; and it must Substantially require the sheriff, to deliver the possession of the property, within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires. § 1374. Where a judgment awards different sums of money, to or against different parties, a separate execution may be issued, to collect each sum so awarded; subject to the power of the court, to control the enforcement of the executions, upon motion, where the collection of one execution will, wholly or partly, satisfy another. § 1375. Except as otherwise specially prescribed by law, the party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment. § 1376. [am'd 1877, 1885, 1887.] Where the party recovering a final judgment has died, executi n may be issued at any time, within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and residence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giving twenty days' notice to the occupants of the lands so recovered and to the grantees or devisees of said deceased, or, if he died intestate, to the heirs-at-law of said deceased; said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court. § 1377. After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only: 1. [am'd 1879.] Where an execution was issued thereupon, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted. 2. Where an order is made by the court, granting leave to issue the execu tion. 1378. Notice of an application for an order, granting leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasonable diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. 1379. An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judg ment, except as prescribed in the next two sections. 1380. [am'd 1885.] After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution, against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order, granting leave to issue it, is procured from the court, from which the execution is to be issued, and a decree, to the same effect, is procured from a surrogate's court of the State, which has dulygranted letters testamentary or letters of administration, upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent; and for that purpose such a lien, existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate, and letters of admin. istration upon his estate have not been granted within three years after his death, by the surrogate court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three vears and six months as aforesaid. § 1381. [am'd 1889 ] Leave to issue an execution as prescribed in the last section, must be procured as follows: 1. Notice of the application to the court from which the execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given; until provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon proof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. 2. For the purpose of procuring a decree from the surrogate's court granting leave to issue the execution, the judgment creditor must present to that court a written petition, duly verified, setting forth the facts, and praying for such a decree; and that the persons specified in the first subdivision of this section, may be cited to show cause why it should not be granted. Upon the presentation of such a petition the surrogate must issue a citation accordingly, which said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein mentioned, and, if the general ruls of practice of the Supreme Court do not provide for a mode of giving such notice, such citation must be served in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon his return thereof, he must make such a decree in the premises as justice requires. § 1382. The time during which the person, entitled to enforce a judg ment, is stayed from enforcing it, by the provision of a statute, or by an injunction or other order, or in consequence of an appeal, is not a part of the time, limited, by this title, for issuing an execution thereupon, or for making an application for leave to issue such an execution. § 1383. The last six sections do not affect the right of a judgment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execution must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor, and requiring the sheriff not to collect the execution, out of any property which belonged to him. § 1384. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in morning and sunset. 1385. A person who, before the time fixed for the sale, in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor, and the same sum to the judgment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture, or the execution was previously satisfied. 1386. An omission by the sheriff to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not effect [affect] the validity of a sale, made by virtue of an execution, to a purchaser in good faith, without notice of the omission or offence. 1387. The sheriff, to whom an execution is directed. or the under. |