Cumpston v. Field
New York Supreme Court
Demurrer to replication. The declaration was on a scire facias quare executionem non on a judgment obtained by the intestate against the defendants for 11843,54 in assumpsit, The defendants pleaded, that in the life time of the intestate a writ of fieri facias was issued upon the judgment obtained against them, directed and delivered to the sheriff of Onondaga, who, by virtue of the same, levied upon the property of the defendants to a large amount, to wit, to the amount of…
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Demurrer to replication. The declaration was on a scire facias quare executionem non on a judgment obtained by the intestate against the defendants for 11843,54 in assumpsit, The defendants pleaded, that in the life time of the intestate a writ of fieri facias was issued upon the judgment obtained against them, directed and delivered to the sheriff of Onondaga, who, by virtue of the same, levied upon the property of the defendants to a large amount, to wit, to the amount of $5000, and subsequently sold the same to the full amount due on the execution; and averred that the sheriff had not made…
1Opinion of the Court
By the Court,
Marcy, J.
The plea is perhaps liable to the objection of duplicity ; but this objection can be taken advantage of only by special demurrer. (1 Saund. 337, n. 3. 1 Chit. Pl. 513.) The plaintiff has seen fit to waive this advantage and to reply. To his replication there is a demurrer upon the ground that it does not traverse all the mate*383rial facts contained in the plea. It is contended that the plaintiff cannot have execution until the former execution is returned. If this be so the demurrer is well taken. A seizure and sale under the execution, issued in the life time of the…
2Cited by1 opinion
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