Center v. Billinghurst

1 Cow. 33 | N.Y. Sup. Ct. | 1823

Curia.

As between the parties, the execution has relation to its test. (Tidd, 915.) The statute (Sess. 36, ch. 50, s. 6, 1 R. L. 501,) was intended for the benefit of purchasers, and does not alter the common law, as to the party, or his personal representatives. (Horton v. Ruesby, Comb. 33.) ^(a) Accordingly, an execution, tested before the party’s death, is regular, though it issue afterwards; and this rule extends to both parties. (Cleve v. Veer, Cro. Car. 459. Croke arguendo.) ^(b) This execution is irregular, as being tested after the plaintiff’s death. (Heapy v. Parris, 6 T. R. 368.) But we think it maybe amended. Here are no equitable circumstances, precluding an amendment. The failure of ti-tie would have been no defence to the action on the bond ;^(c) and if otherwise, it is too loosely made out to be noticed here. And the rule to amend is granted, on payment of costs.

Rule accordingly.

(a) In this case, “ Sir G. Treby, (ut amicus curial) said he was present at the making of the said statute,” (the 29 Car. 2, c. 3, s. 16, from which ours is copied,) “ and that was the intention of the parliament.”

(b) He says, “ It is the common course, if a capias ad satisfaciendum, or a fieri facias upon a j udgment, issueth, the Sheriff shall execute it, although the party who sued it died before the return of the writ; and although the death be before or after the execution, if it be after the test of the writ, it js well enough.”

(c) Vrooman v. Phelps, 2 John. Rep. 177. Dorlan v. Sammis, id. 179, ¡nnote. Valkenburgh v. Rouk, 12 John, Rep. 337.