Legal Opinion

Ireland v. Litchfield

The Superior Court of New York City

Decided November 30, 1861PublishedCited by 2 opinions

The plaintiff, in his complaint, alleges that Edward Cook, in his life time, and on the 13th day of January, 1859, recpyered a judgment in this court agajngt gaid Litchfield, for $2,374.52 ; the docketing of it and filing a transcript thereof; the issuing of an execution and its return unsatisfied, in Cook’s life time; the subsequent death of Cook, leaving a last will and testament, which has been duly proved, &c.; that the plaintiff is his sole acting executor ; that more…

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The plaintiff, in his complaint, alleges that Edward Cook, in his life time, and on the 13th day of January, 1859, recpyered a judgment in this court agajngt gaid Litchfield, for $2,374.52 ; the docketing of it and filing a transcript thereof; the issuing of an execution and its return unsatisfied, in Cook’s life time; the subsequent death of Cook, leaving a last will and testament, which has been duly proved, &c.; that the plaintiff is his sole acting executor ; that more than a year has elapsed since Cook’s death; that the whole amount of the judgment is' unpaid, and prays “ judgment that…

1Opinion of the Court

By the court, Bosworth, Ch. Justice.

By the laws in force when the Code took effect, if a plaintiff died after final judgment in his favor, but before execution issued, no execution could be issued on the judgment until it had been revived by scire facias at the suit of his personal representatives. (2 Saunders, p. 6, note 1, and id., p. 72, m; 72, n, and 72, o ; Gra. Pr., 806 ; Troup agt. Wood, 4 John. Ch. R., 247-249; Baldwin agt. Hale, 17 John. R., 271; Murphy agt. Cochran, 1 Hill, 339 ; and 2 R. S., 576, §§ 2 and 3 ; id., 386, § 2.)

*180Section 428 of the Code abolishes “ the writ of scire…

2Cases cited1 opinion

  1. Jay v. MartineThe Superior Court of New York City · 1853

3Cited by2 opinions

  1. O'Connor v. SuchThe Superior Court of New York City · 1862
  2. In re the Assignment of StockbridgeNew York Court of Common Pleas · 1879

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