Gonnigal v. Smith

6 Johns. 106

• Court: New York Supreme Court
• Decided: May 15, 1810
• Status: Published

Opinion

Per Curiam.

The fi.fa. may be issued, at any time, by the express words of the act, without a sci. fa. This seems to be the better opinion, notwithstanding the dictum of Mr. J. Buller to the contrary, in a like case. (1 Term Rep. 82.) The words of the act are,, (Laws, vol. 1. 294.) “ that notwithstanding the discharge of the prisoner, &c. the judgment shall remain in force,, and execution may, at any time, be taken out thereon, against the lands,” &c. These words ought to receive a literal interpretation, for the case is not within the reason of the law, requiring a revival of the judgment, because here the presumption, that the judgment is satisfied, is repelled by the record, which shows a ca. sa. duly issued and served, and the defendant discharged from it, by a statute made particularly for his ease and benefit. And if the delay and notice of a sci. fa. were requisite, a defendant might easily place his newly acquired goods and chattels beyond the reach of the process. Again, if the plaintiff has taken out an execution within the year, and it has been returned, he may always take out another execution, at any distance of time, though it be an execution of a different kind, without a sci. fa. by only using the formality of continuing it down on the roll,. (Stra. 100. 2 Wils. 82.) This mode would remove all doubt in the present case, by conforming the practice under it to the established precedents..

2. The change of the attorney to a set. fa. sued out upon a judgment, does not require a rule and notice, because the sci.fa. is a new action, and requires a new warrant of attorney. (2 Ld. Raym. 1048. 1252. 7 Term Rep. 337.)

Rule accordingly.