Farmers' & Mechanics' National Bank v. Crane

15 Abb. Pr. 434

• Court: New York Supreme Court
• Decided: November 15, 1873
• Status: Published

Opinion

Fancher, J.

It is a well settled principle of practice that an execution, being founded on the judgment, must in all respects follow it, and be warranted by it. It has been held that it must be in the name of all the plaintiffs against air the defendants (6 T. R., 525; Gra. Pr., 357 ; 2 Stra., 1218), and that it must strictly pursue the judgment (Gra. Pr., 411).

The case cited from Term reports is authority for holding that if a separate execution against the body of the defendant is issued upon a joint judgment against two defendants, the execution will be set aside, and the defendant arrested under it will be discharged.

If the plaintiffs wish to exonerate one of several defendants from arrest on an execution, they can not do so by an irregular execution, but must indorse upon it a direction to the sheriff (5 Duer, 682).

As to the amendment suggested, I do not think it can properly be made on this motion.

If the plaintiffs desire to amend, they should move for that purpose, on a notice to the defendants, who perhaps may wish to be heard on the effect of the former arrest of the defendant, the discharge of one of them, and the subsequent arrest of the other on a several execution.

The motion should be granted.