Farmers' & Mechanics' National Bank v. Crane — 15 Abb. Pr. 434

Majority

p. 434

THE FARMERS’ AND MECHANICS’ NATIONAL BANK against CRANE.

New York Supreme Court, First District;

Special Term, November, 1873.

Headnote

Execution.—Amendment.

Execution must in all respects follow the judgment, be warranted by it, and strictly pursue it.

If the judgment be against two, execution against the person of one alone can not be issued, even after the other has been discharged. An exoneration of one must be by indorsing a direction to the sheriff.

The plaintiffs, the Farmers’ and Mechanics’National Bank of Philadelphia, sued Walworth D. Crane and Joseph C. Danckelman, copartners, to recover the amount of an over-draft; and in the comulaint alleged

p. 435

fraud. Judgment was obtained against both defendants. Separate executions were issued against the person of each defendant. The plaintiffs neglected to charge the defendant, Danckelman, in execution, and he was discharged by an order of supersedeas. The defendant, Crane, now moved to have the execution against him set aside.

Bushnell & Albright, attorneys for defendant Crane, and Samuel Jones, of counsel,

Cited 6 T. R., 525 ; Gra. Pr., 357; 2 Stra., 1218 ; Gra. Pr., 411 ; 5 Duer, 682 .

Sanford, Woodruff & Robinson, attorneys for plaintiffs, and Edmund R. Robinson, of counsel,

Cited Fake v. Edgerton, 5 Duer, 681 , and asked to be allowed to amend execution by indorsement directing the sheriff to apprehend one defendant only.

It is a well settled principle of practice that an execution, being founded on the judgment, must in all respects follow it, and be warranted by it. It has been held that it must be in the name of all the plaintiffs against air the defendants (6 T. R., 525; Gra. Pr., 357 ; 2 Stra., 1218), and that it must strictly pursue the judgment (Gra. Pr., 411).

The case cited from Term reports is authority for holding that if a separate execution against the body of the defendant is issued upon a joint judgment against two defendants, the execution will be set aside, and the defendant arrested under it will be discharged.

If the plaintiffs wish to exonerate one of several defendants from arrest on an execution, they can not do so by an irregular execution, but must indorse upon it a direction to the sheriff ( 5 Duer, 682 ).

As to the amendment suggested, I do not think it can properly be made on this motion.

p. 436

If the plaintiffs desire to amend, they should move for that purpose, on a notice to the defendants, who perhaps may wish to be heard on the effect of the former arrest of the defendant, the discharge of one of them, and the subsequent arrest of the other on a several execution.

The motion should be granted.