Preston v. Leavitt

6 Wend. 663 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The only question in this case is, whether a renewal of an execution is valid, so as to protect an officer and those who act in his aid in enforcing it, when such renewal is not signed by the justice. The original execution is admitted to have been duly signed, and to have been regular and valid in all respects. It is also ad-m¡necj; that on the 23d day of July, 1837, the justice, by whom the execution was issued, endorsed upon it these words; “ This execution renewed July 23d, 1827, fees, TW.” The justice himself testified that at the request of the plaintiffs in the execution, and in their presence, and the presence of Leavitt, the constable, (one of the defendants,) he endorsed the said renewal thereon, and that he then delivered the same to the constable. The single and only objection to the justification was, that the name of the justice was not subscribed to this renewal.

The jirst section of the $50 act of 1824, page 280, directs that every justice of the peace shall sign all process to be issued by him. The fourteenth section, in relation to executions, provides that if sufficient goods and chattels cannot be found to satisfy such execution as may have been issued, the party recovering the judgment may from time to lime procure the justice to renew such execution, &c. The form ■ of the renewal is not prescribed. It is not said that it shall be signed by the justice, or even that it shall be in writing. Upon general principles, probably it must be in writing; but I am aware of no general principle which requires the formal subscription of the name of the justice to his renewal, in bis own hand writing. The renewal does not, per se, constitute a new execution. It is what the statute calls it—a renewal of the original execution. The justification, if it were pleaded, would be under the original execution, and the endorsement or renewal would be stated merely to shew that it had been revived, or its legal existence prolonged. Any memorandum, in the hand writing of the justice, upon any part of the execution, which clearly indicates his intention to extend or prolong its operation, appears to me to be sufficient. It is analogous to the alteration of the teste or return of the process of courts of record. In cases in'which such alteration is allowable, the legal operation of the writis extended without being re-sealed or re-signed by the clerk. The original seal gives effect to the altered writ. In this, as in all other cases in relation to the proceedings of inferior magistrates, when they keep within their acknowledged jurisdiction, their acts are to be liberally construed, and. not to be subjected to the test of strict technical rules,

I do not think it necessary to resort to the cases or the analogies which the counsel on both sides have, with great industry, learning, and ingenuity, collected and brought to bear upon this case. The authorities are none of them precisely in point; nor are the analogies very striking. I prefer putting my opinion upon the single ground, that as the legislature have authorized justices of the peace to renew their executions, without prescribing the manner in which it shall be done, the form of the act is not material; that any memorandum in the hand writing of the justice, upon any part of the execution, which clearly indicates his intention to renew it, accompanied by a re-delivery of the execution to the constable, is sufficient, although his name be not subscribed to the memorandum'. The addition or omission of the name is, under such circumstances, a mere matter of form, and does not change, in any respect, the substantial character of the act. The evidence of the intention of the magistrate to renew the execution is of the same character, and as satisfactory without as with his signature.

I am of opinion, therefore, that the learned judge erred in excluding the evidence offered, and that a new trial ought to be granted ; costs to abide the event