Executors of Schoonmaker v. Elmendorf, 10 Johns. 49

Executors of Schoonmaker v. Elmendorf

10 Johns. 49 | N.Y. Sup. Ct. | 1813

Per Curiam.

The bond was given to the husband imd wife *51jointly, for their maintenance, during their joint and separate lives. The wife was properly a party to the bond, for she had a distinct interest, and one which was intended to survive to her,. if she survived her husband. There can be no doubt that the bond so taken was valid, and that the husband and wife might join'in a suit upon it. (Stra. 230. Cro. Jac. 77.) The original suit and judgment being in favour of them jointly, the interest in the judgment survived, of course, to her, as the survivor; and the scire facias was well brought by her executors. The scire facias states every fact requisite to show that the plaintiffs were entitled to execution upon the judgment, and the defendants were warned to show cause why execution should not be had. • There is no error, at least in substance, in the scire facias; and as the plea concludes in bar, though it begins in abatement; it is to be taken as a plea in bar. (1 Ld. Raym. 593.) It rests wholly on the fact that the bond was taken to the husband and wife, during coverture; and this, as has already been observed, is not a well founded objection, for the joint interest of the' wife appears upon the face of the condition of the bond; and that this would be sufficient to support a joint obligation to the husband and wife and a judgment thereon, seemed to be admitted in the case of Bidgood v. Way and Wife. (2 Bl. Rep. 1236.)

Judgment for the plaintiffs.