Center v. Billinghurst

1 Cow. 33

• Court: New York Supreme Court
• Decided: May 15, 1823
• Status: Published

Opinion

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.

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.”

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.”

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