Mayor v. Evertson

1 Cow. 36

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

Opinion

The judgment was for the penalty of a bond, payable by instalments. Execution had been issued, and returned satisfied, for all the instalments, except the last, before that fell ¿ue. More than a year after the last instalment became due, another execution was issued, which it was now moved, on behalf of the defendants, to set aside; and the question was, whether it could issue without scire facias ; and Tidd, (New-York ed. of 1807, pages 1004, 1008, and 1011) was cited for the defendants, to shew that it could not. But Say-age, Ch. J. was of opinion, that the execution, which had been issued and returned,

(a) might be continued down upon the roll for the balance due, (b) and that a scire facias was therefore unnecessary. (Gonnigal v. Smith & others, 6 John. Rep. 106. Jackson v. Stiles, 9 id. 391.) Suther1 . . land and Woodworth, Js. gave no opinion.

Motion denied.

By the English practice, the execution must be returned in order to warrant the continuances. (2 Wils. 82. 2 Serg. & Rawle’s Rep. 156.) But fey the practice of this Court, no return is necessary. (Jackson v. Stiles, 9 John. Rep. 391.) And the same practice prevails in the Supreme Court of Pennsylvania. (Lewis v. Smith, 2 Serg, & Rawle’s Rep. 142.)

“ If apart of the money only be levied, the plaintiff may have a. ft. fa. for the residue, and the first writ must be returned before the second can fee taken out, for that must fee grounded on the first writ, and recite thgi all the money was not levied thereon.” (Tidd, 934.)