waste on the property by order granted with or without notice, on the application of the purchaser or the judgment creditor. But it is not waste for the person in possession of the property at the time of sale, or entitled to possession afterwards during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry, or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repair of fences, or for fuel in his family, while he occupies the property. 2 R. S., 336, §§ 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.

§ 851. If the purchaser of real property sold on execution, or his successor in interest, be evicted therefrom in consequence of irregularity in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid with interest from the judgment creditor. Such judgment creditor, if the recovery was in consequence of the irregularity, shall thereupon be entitled to a new execution on the judgment, for the price paid on the sale with interest; and for that purpose the judgment shall be deemed valid against the judgment debtor, his personal representatives, heirs, or devisees, but not against a purchaser in good faith, or an incumbrancer, whose title or incumbrance shall have accrued before a levy on such new execution.

2 R. S., 375, § 68, 69, 70, 71, 72, 73, 74.

§ 852. When property, liable to an execution against several persons, is sold thereon, and more than a due proportion of the judgment is levied upon the property of one of them, or one of them pays without a sale more than his proportion, he may compel contribution from the others. And when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such cases the person so paying, or contributing, is entitled to the benefit of the judgment to enforce contribution or repayment, if within ten days after his payment he file with the clerk of the court, where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon the filing of such notice, the clerk must make an entry thereof in the margin of the docket.

2 R. S., 375, § 70, extended.

It will be observed, that the provisions of this chapter extend the execution, so as in all cases to reach the property which can be reached by attachment. In a case where an attachment has been issued, the execution is as extensive in its operation as the attachment, and there seems no good reason for making one execution against property less extensive than another.

CHAPTER II.

PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.

SECTION 853. When execution returned unsatisfied, order for discovery of property allowed.

854. When judgment debtor refuses to apply property to satisfy judg

ment.

855. Manner of proceeding to examine judgment debtor.

856. Any debtor may pay execution against his creditor.

857. Examination of debtors of judgment debtor or of those having property belonging to him.

858. Witness required to testify.

859. Compelling party or witnesses to attend. Examinations when to be on oath.

860. Judge may order property to be applied on execution.

861. Judge may appoint receiver, and prohibit transfer, &c. of property. 862. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor.

863. Reference by judge.

864. Costs of proceeding.

865. Disobedience of order, how punished.

§ 853. When an execution against property of the judgmeut debtor, or of any one of several debtors, in the same judgment, issued to the sheriff of the county where he resides, or if he do not reside in this state, to the sheriff of the county where the judgment roll, or a transcript of a justice's judgment, is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, requiring such judgment debtor to appear and answer, concerning his property, before such judge, or a referee appointed by a judge of the court, at a time and place specified in the order.

Amended Code, § 292.

§ 854. After the issuing of an execution against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, that any judgment debtor has property, which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same; and such proceedings may thereupon be had, for the application of the property of the judgment debtor towards the satisfaction of the judgment, as are provided, upon the return of an execution.

Amended Code, § 292.

§ 855. Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the judge may, upon proof by affidavit or otherwise, to his satisfaction that there is danger of the debtor's leaving the state, or concealing himself, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and ordered to enter into an undertaking with one or more sureties, that he will attend from time to time before the judge or referee, as he shall direct, during the pendency of the proceeding, and until the final determination thereof, and will not in the meantime dispose of any portion of his property, not exempt from execution. In default of entering into

such undertaking, he may be committed to prison, by warrant of the judge.

Amended Code, § 292.

§856. 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 may be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid.

Amended Code, § 293.

§ 857. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit, or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the judge may by an order require such person or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. The judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.

Amended Code, § 294.