Wood v. Wood

3 Wend. 454

• Court: New York Supreme Court
• Decided: January 15, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The question here, if any,

is not whether the execution should have been for the residue, but whether the plaintiff had a right to sue out an execution for subsequent arrears, without proceeding by scire facias. In England a bond conditioned for the payment of an annuity, is holden to be within the statute, requiring a suggestion of breaches on the record. (2 Burr. 820. 5 T. R. 538. 8 T. R. 126.) Our statute, however, excludes bonds conditioned for the payment of money, and a scire facias therefore is not necessary. An execution may be sued out for arrears accruing subsequent to the judgment without a scire facias, at any time within a year after they are incurred, or even afterwards, if a writ of execution has been previously sued out and properly continued down, in conformity to the practice of the English courts, as it existed previous to the time when it was holden that a bond, conditioned for the payment of an annuity, was within the statute, 8 and 9 William 3, c. 11, § 8. (2 Black. R. 843. 1 H. Black. 297.) It would be well, however, when an execution issues for subsequent arrears, that the direction to the sheriff should specify particularly the arrears claimed, as for instance, “levy $80, the annuity 4ue on the 22d June, 1829, according to the condition of the bond declared on in this cause.” The motion in this case is denied with costs.