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Center v. Billinghurst

1 Cow. 33 Court N.Y. Sup. Ct. English

Contents

Majority

p. 33
Center against Billinghurst.

Headnote

t_ A“ execa-»ter the plain.tll^’a. but may be amended. It mr-y be issued after hisdeatfe,.
if tested before. As between the parlies, &c. it relates to the lest; though otherwise, es to purchasers. The failure of consideration is no defence to an action on a specialty.
H. B. DavIs, for the defendant, moved to set aside the execution, which was tested the 11 th of August last. The plaintiff died the 14th of the same month, of which the defendant was Informed, for the first time, on the 1 st day of Feh- , , , ruary last.
p. 34
The judgment was recovered upon a bond, for the cousideration money of land, purchased of the plaintiff by the defendant, the title to which had failed, as he had lately hear<l. and believed.
Davis, insisted that where the plaintiff dies before execution, it cannot issue until scire facias, and judgment in favour of his representative. Here, the execution not only issues, hut is tested after the plaintiff’s death. And, to shew that this was irregular, he referred to Tidd, 915, 916, and cases there cited, and 6 T. R. 368. And though this test is in term, it shall not relate to the first day thereof, so as to overreach the plaintiff’s death. The term shall not be esteemed one day for the purposes of a test. (1 JVils. Rep. 42.)
E. Williams, contra,
moved to amend, by altering the lest to some day in term, previous to the Mth of August.
Davis, said this could not be done. That this case differed materially from the one mentioned in the books, of an execution tested before, though issued after the death of a defendant. For here, the authority of the attorney, who issues the execution, is revoked by the plaintiff’s death.

As between the parties, the execution has relation to its test. (Tidd, 915.) The statute (Sess. 36, ch. 50, s. 6, 1 R. L. 501,) was intended for the benefit of purchasers, and does not alter the common law, as to the party, or his personal representatives. (Horton v. Ruesby, Comb. 33.)[1] Accordingly, an execution, tested before the party’s death, is regular, though it issue afterwards; and this rule extends to both parties. (Cleve v. Veer, Cro. Car. 459. Croke arguendo.)[2] This execution is irregular, as being tested after

(a) (a) In this case, “ Sir G. Treby, (ut amicus curial) said he was present at the making of the said statute,” (the 29 Car. 2, c. 3, s. 16, from which ours is copied,) “ and that was the intention of the parliament.”

(b) (b) He says, “ It is the common course, if a capias ad satisfaciendum, or a fieri facias upon a j udgment, issueth, the Sheriff shall execute it, although the party who sued it died before the return of the writ; and although the death be before or after the execution, if it be after the test of the writ, it js well enough.”

p. 35
the plaintiff’s death. (Heapy v. Parris, 6 T. R. 368.) But we think it maybe amended. Here are no equitable circumstances, precluding an amendment. The failure of ti-tie would have been no defence to the action on the bond ;[3] and if otherwise, it is too loosely made out to be noticed here. And the rule to amend is granted, on payment of costs.

Rule accordingly.

(c) (c) Vrooman v. Phelps, 2 John. Rep. 177 . Dorlan v. Sammis, id. 179 , ¡nnote. Valkenburgh v. Rouk, 12 John, Rep. 337 .