Wood v. Wood — 3 Wend. 454

Majority

p. 454

D. Wood vs. T. M. Wood.

Headnote

In an action conditionedfor thepaymentof ter “judgment, it is not neces. scire facias to Tcutbiiforsub" sequent ar. ce uticmmayTe -sued out with. out a scire fa. cias, but it seems it would he well to specify in the direction, particularly, the arrears claimed.

Execution for annuity secured by bond. A judgment was entered in this case at the last May term for $1000, the penalty of a bond, and $55,89, the costs of suit. The bond bears date 22d June, 1816, and is conditioned for the payment 0f $80 annually to the plaintiff during her natural life. On the 15th May, the attorney for the plaintiff issued a testatum fier^ fac^as to the sheriff of the county of Onondaga, in the usual form, and by an lndorsement on the execution, directed the sheriff to collect $325,33, but to allow on account 0f the same a certain payment made by the defendant. On

p. 455

the 3d August, the sheriff returned that he had made the money directed to be levied. On the 29th October, the attorney for the plaintiff issued an alias testatum fieri facias on the above judgment, and by an indorsement on the execution; directed the sheriff to collect S80 and the interest thereon from the 22d June, 1829, besides his fees. It appeared that the sum directed to be levied on the first execution was for the balance of the annuities which had accrued up to and including the annuity due in June, 1828, and the costs of the suit; and that the amount directed to be levied by the second execution was for the annuity due in June, 1829.

The defendant moved to set aside the execution for irregularity, insisting that the execution should have been an execution pro residuum.

T. M. Wood, defendant in pro per.

S. L. Edwards, for plaintiff.

By the Court,

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 par

p. 456

ticularly 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.