People ex rel. Fogalsonger v. Judges of the Court of Common Pleas
New York Supreme Court
A mandamus, tested May 9th, 1821, was directed to the defendants, reciting that an execution had issued out of the Common Pleas of Niagara, (now Erie,) on a judgment . -»-» 1 , t • . a against Pierce, Raymond and femith, administrators, , „ , To this the defendants returned a judgment before them in 1816, in favor of the relator, against the defendants belew, Pierce, &c. as administrators of C. Smith, rendered on a C0gn0Vi¿ actionem, in 1816; a fi.fa. for a balance due on…
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A mandamus, tested May 9th, 1821, was directed to the defendants, reciting that an execution had issued out of the Common Pleas of Niagara, (now Erie,) on a judgment . -»-» 1 , t • . a against Pierce, Raymond and femith, administrators, , „ , To this the defendants returned a judgment before them in 1816, in favor of the relator, against the defendants belew, Pierce, &c. as administrators of C. Smith, rendered on a C0gn0Vi¿ actionem, in 1816; a fi.fa. for a balance due on that judgment of $ 100, tested August 28th, 1819, returnable the third Tuesday of November (then) next, de bonis…
1Opinion of the Court
Curia, per
Savage, Ch. J.
In considering this question, it is proper to look into the form of the judgment against an executor. This should be according to his liability. So far as this arises from pleading, I take the rule to be as follows : If he plead ne unques executor, or a release to himself, and the issue be found against him, the judgment is, that execution issue in the first instance, de bonis testatoris si, et si non, de bonis propriis, for both debt and costs; and the reason is that he pleaded a plea which he knew to be false; and thus, unnecessarily delayed the plaintiff. The rule…
2Cited by2 opinions
- Mills v. ThursbyNew York Supreme Court · 1856
- Carver v. WellsSupreme Court of Rhode Island · 1892