Visger v. Ward

1 Wend. 551 | N.Y. Sup. Ct. | 1828

By the Court,

Sutherland, J,

The case of Wickham v. Miller, (12 Johns. R. 320,) decides that a justice may renew an execution, without a return of nulla bona having been actually endorsed upon it; the fact may be made to appear to the justice in some other way ; and the endorsement of a renewal is conclusive evidence against the constable, of such representation having been made.

The execution in this case, however, was twice renewed. The first renewal was between three and four months after its delivery to the constable, and the second renewal was more than three months after the first. These renewals were both with the consent of the plaintiff; and the question is, whether they kept the execution alive, so that it could be enforced against the person of the defendant, no property having been found. It is contended, on the part of the defendant, that the execution not having been renewed within the 30 days, ceased to be a process which could be enforced ; that its force was spent, and that a new execution should have been issued, instead of renewing the old. I perceive no objection to the renewal of an execution after the return day has elapsed. The statute, (Statutes, vol. 6, c. 286,) provides that it may be renewed from time to lime, clearly intending that it might be kept alive as long as the plaintiff supposed there was any probability of finding any property to satisfy it; and it must be entirely indifferent to the defendant, whether his property or his person is taken upon a renewed or original execution.

It was not necessary that the constable should have the execution in his pocket at the time of the arrest of the defend» ant. He had it under his control.

New trial denied.