United States v. Hanford & Ely

19 Johns. 173

• Court: New York Supreme Court
• Decided: August 15, 1821
• Status: Published

Opinion

Per Curiam.

The plaintiffs may amend their writs. Where the execution is delayed for a year, at fh’e request, and for the benefit, of the defendant, the reason of the rule requiring a scire facias does not apply. In Mitchell v. Cue, (2 Burr. 660.) the court of K. B. said, that the rule as to reviving a judgment above a year old, was to, prevent surprise on the defendant $ and that where he himself had, by injunction, and other methods, tried to delay the plaintiff he ought not to be allowed to take advantage of it, to the prejudice of the plaintiff. Here the circumstances are equally strong for creating an exception to the rule. The executions had been delayed, from time to time, at the urgent and repeated request of the defendants, down to. the time, when they were delivered to the sheriff. There was no reason or necessity, under these circumstances, for issuing a scire facias.

Mqtion denied»