People v. Guild

4 Denio 551

Opinion

By the Court, Beardsley, J.

The acts of 1837 and 1844, which have been referred to, authorize certain decrees of surrogates to be docketed, by which they become liens on real estate, and executions may be issued thereon. It is also provided that “ if such execution be issued and returned unsatisfied, the surrogate shall, on application, assign the bond given by such executor, administrator or guardian, to the person in whose favor such decree is made, for the purpose of being prosecuted.” (Laws of 1837, p. 535, § 65.) This mode of obtaining redress is in addition to that provided by the revised statutes, (2 R. S. 72, § 19,) and not a substitute for it. The latter has not been expressly repealed, and unless the incongruity is manifest and unavoidable, the provision cannot be regarded as repealed by implication. (McCartee v. The Orphan Asylum Society, 9 Cowen, 438, 506; Bowen v. Lease, 5 Hill, 221.) The several provisions referred to are not inconsistent with each other, and suit may now be brought on the bond as is authorized by the revised statutes, (§ 19, supra,) without the "eturn of an execution as required by the sixty-fifth section of the act of 1837. I think this declaration is good, and judgment should be for the plaintiffs.

Judgment for the plaintiffs.