Center v. Billinghurst
New York Supreme Court
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.
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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. 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 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…
1Opinion of the Court
Curia.
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.) (a) 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.) (b) This execution is irregular, as being tested after *35the plaintiff’s death. (Heapy v. Parris, 6 T. R. 368.) But…
2Cases cited1 opinion
- Vrooman v. PhelpsNew York Supreme Court · 1807
3Cited by3 opinions
- Wood v. . MorehouseNew York Court of Appeals · 1871
- Gerry v. PostNew York Supreme Court · 1855
- Morgan v. TaylorSupreme Court of New Jersey · 1876