In Chancery.-Wheeler v. Heermans and Haight. by the party in his books in the regular | stand them, especially connecting them and ordinary course of his business. with the unsettled account in Tucker's books with E. Tucker and Dyer there is reason to believe or suspect at least that there was a balance in favor of Tucker and Dyer which ought to have been applied to the indemnity of Storer. If therefore I could see any legal ground on which the claim could be supported, I would refer it back to the commissioner for further ex But it is further contended by the creditor, that, as the demand is uncertain, the statute will not begin to run against it, until the amount is ascertained, and that when it is, and not before, it may be entered on the account as a debit. This in a certain sense is undoubtedly true. Where A has a claim against B of an uncertain amount, and they come to a settlement and deter-planation. But in every view which I can mine the amount by mutual consent, the limitation will not begin to run but from the time of settlement, though the claim and right of action may have originated some years before. But this is because the settlement and acknowledgement of the debt amounts to a new promise, and the debt in relation to the statute is considered as having its commencement at that time. If Storer and Tucker had made such a settlement, even after six years had elapsed, this would never have taken the demand out of the statute for here take of the case on the facts that are undisputed, it seems to me that the statute is a conclusive bar, and the court cannot bind and establish rules of law to meet the equity of particular cases. In Chancery. Before the Honorable LEWIS H. SANDFORD, would have been a new promise. It HIRAM WHEELER V. WILLIAM S. Heer might then have been entered on his ac MANS AND NICHOLAS N. HAIGHT. count and escaped the limitation. But no SAME V. SAME.-Poughkeepsie, July 29, such settlement and acknowledgement of debt has ever been made. 1846. This claim had its origin, it is admitted, IN a judgment creditors bill, to reach things in ac as far back at least as 1825. Before that time Storer had paid the execution and Tucker had sold the property. At that time Storer could have enforced his right, by an action of account or of assumpsit at common law, or at least by a bill in equity, and the limitation began to run from the time that the right of action accrued. Now it will not be contended, where there is an open and mutual running account, that a party, who has slept on a demand for more than six years without entering it on his account, can save it from the statute by entering it on his current account after the period of limitation has completely elapsed. Such a construction of the statute would open a door to unlimited confusion and fraud. Besides it is clearly inadmissible on the plainest legal principles, because the statute bar is complete and perfect before the entry, and such an entry on the books of the party cannot restore life to a claim already dead. I should have been well satisfied if I could have found my way on firm and safe grounds to another conclusion, for from the admissions of the parties as I under tion, on the return of an execution unsatisfied, if the judgment were recovered in the court of Com→ mon Pleas, the bill must allege; either that the debtor resided at the time the execution issued, in the county in which the judgment was recov vered; or, that the judgment had been docketed and an execution issued in some other county where the defendant was residing; or it must be shown that for some other cause, the remedy at law was exhausted by issuing an execution in the county where the judgment was recovered. An allegation in the bill that defendant resides in a place, has reference to the time of filing the bill, and not to the time of issuing execution. This was a creditor's suit on a judgment recovered against both defendants in the court of Common Pleas of the county of Dutchess, to which county an execution against their property had been issued and returned unsatisfied. The only statement in the bill relative to the residence of the defendants, was that they reside in the county of Dutchess. The defendants demurred separately to the bill for want of equity. W. Wilkinson, for the complainant. In Chancery-Wheeler v. Heermans and Haight. C. W. Swift. for the defendant Haight. | cessity of showing in these credior's THE ASSISTANT VICE CHANCELLOR.The allegation in the bill that the defendants reside in the county of Dutchess, applies to the time of filing the bill. It is not an allegation that they resided in that county when the execution was issued. The defendants insist, that the bill, by reason of this omission, fails to show that the complainant has exhausted his remedy at law That it is not sufficient to set forth a judgment in the Dutchess Common Pleas, and an execution to that county, unless it appears that the defendants resided in Dutchess county; or that for some reason the issuing of an execution to the county where they did reside, would have been fruitless. suits, the return of an execution issued to the county where the defendant resided. The same principle which in the instance of judgments in the Supreme Court or decrees in Chancery, required that theexecution should go to the county of the defendant's residence, is now applicable o judgments of the Common Pleas and Superior Court. There is no longer any obstacle in the way of sending executionson the latter, to any county in the state.* I think therefore that the bill in tis case does not show the complainant's medy at law to have been exhausted, so as to entitle him to maintain his suit in this court. This view is sustained by the Chancellor's decision in Coe v. Whitlock May 7. On the other hand, the complainant re- 1844, 4 Barbour's Decisions of Ch. 19.lies on the case of Leggett v. Hopkins, 7 He there held in a bill founded patly upon Paige 149, where the Chancellor decided a judgment for $33, recovered before a in 1838, that on a judgment in the New-justice, that itwas not sufficient tcset forth York Superior Court, a creditor's bill the return of an execution issued by the might be filed after the return of an exe- justice, which goes against personal procution issued to the county of New-York perty only. That the bill ought to state unsatisfied, without regard to the place of the filing of a transcript of thejudgment the debtor's residence. in the county clerk's office and he issuing and return of an execution thereon. The ground of that decision was, that as no execution could be issued on such a judgment to any other county, the creditor had done all he could to enforce his legal remedy. In Reed v. Wheaton, 7 Paige 663, the Chancellor held, that where the creditor's bill was founded upon a judgment in the Supreme Court or a decree in Chancery, so that an execution on the same might issue to any county, the bill must show affirmatively, that the complainant has exhausted his remedy, by issuing an execution to the county in which the debtor resided; or it must state some good legal excuse for issuing it elsewhere, as the nonresidence of the debtor, or the like.And The Merchants and Mechanic's Bank v. Griffith, 10 Paige 519, is to the same effect. Since the act of 1840 went into operation, the plaintiff on recovering a judgment in the Common Pleas, may issue an execution into any county in the state, on docketing in the clerk's office of such county a transcript of his judgment. As a general proposition, a man's personal property is presumed to be at the place of his residence. Hence the ne If the justice's judgment had been less than $25, then inasmuch as it could not be docketed against land, the authority of Leggett v. Hopkins would have applied, and the justice's execution would have sufficed.t The docketing of a judgnent in the Supreme Court, is not necessary except to create a priority of lien, and land may be sold on an execution out of that court, without such docketing. So on a judgment of the Common Pleas, an execution to the county n which it is recovered may be issued, and land sold upon the same without locketing the execution might be issued from the court of Com*If the act of 1840 had simply enacted, that an mon Pleas to any county in the state, no one would have questioned the necessity ofsending an execu tion to the county where the ddendants reside, in sion that the judgment must be first docketed in a order to exhaust the remedy a law. The provi foreign county, before sendingan execution there, imposes an additional formalit, without affecting the principle involved. lor's judgment in Coney v. Cornelius, May 25th To the same effect in prináple is the Chancel1846.-6 Barbour's Decisions 2, and 4 N. Y. Legal Observer 258. Decisions in N. Y. Common Pleas.-Ontario Common Pleas-Bush v. Hewett. judgment. In each case the execution must of course direct the Sheriff to levy on real estate. An ex parte order of a judge allowing an execution to be issued, where an attorney is employed for the other party is ir regular. Idem. On this point, the demurrers to the bill are wel taken; but as the omission is evidently mere slip in framing the bill, the complanant must have leave to amend on A party who improperly obtains an orpaymer of costs, and without prejudice der from a judge ex parte, must pay costs to his njunction. And the defendants on a motion to vacate. costs when taxed, are to be set off against the complainant's judgment which is ad mitted to be due by the demurrers. The court my direct this in its discretion, although he costs are due to the defendants equally. ONTARIO. BUSH V. HEWETT. Idem. Demurers allowed, with costs. Leave An admission of a party as to the law is not evito ameni, &c. In the Common Pleas. [NEW-YORK.] Before the Honorable M ULSHOEFFER, First Decision during July Term, 1846. IN an action on Marine Court judgment, it is not necessary for the plaintiff in his declaration to aver facts, showing jurisdiction over the parties to the judgment. Fisher v. Buylandth. The defendant must plead such defence. Idem. dence, which a justice is bound to receive on a trial of facts. A justice of the peace may renew an execution at any time during his continuance in office. It is not necessary that such renewal should be made within two years, the time limited for the issue of an original execution. Where an execution is renewed, upon which there are at the time of renewal endorsements of partial payment, a renewal signed by the justice must be taken in connection with such endorsement, and in such a case, held that the renewal was a substantial compliance with the statutes directing the renewal, shall be for the balance due. When a judgment is rendered on a trial in a justice's court in favor of the defendant, he is entitled to a judgment for the costs. THIS is an action, quare clausum freget et de bonis asputatis. The plaintiff's declaration contained an account to wit, for en tering the plaintiff's close, and carrying away one waggon. The defendant plead the general issue, and a justification of the taking under an execution against the Nul tiel record is not a good plea in an plaintiff, the defendant then acting as a action on sucl a judgment. Idem. In an action for freight, the consignee is not liable, ifhe assigns the bill of lading before the arrival of the vessel and does not receive the goods. In such case, the assignee who receives the goods is liable. Burton v. Strachan & Scott. Where a judgment is entered by order of the court as security merely, the plaintiff must move fo leave to issue execution before doing so, on notice to the other party. Dows v. Parker. constable. On the trial in the court below, the plaintiff proved that the wagon was taken from his premises by the defendant in error, and the value of the property. The defendant then offered in evidence, an execution issued by one Johnson, a justice of the peace, against plaintiff, for $11 05, in favor of one Hayward, which was admitted to have been issued by the justice. Its admission in evidence was objected to, on the ground, that it was first issued on 2nd May, 1842. Renewed, 2nd May, 1844. Renewed again, 21st August, 1844, and again, September, 24th, 1844, and again, August, 18th, 1845. There was attached to the execution, a paper, with an Ontario Common Pleas.-Bush v. Hewett. endorsement as follows, viz. :- Received on the attached execution, $2 50, April 23d, 1845. Also," By virtue of the attached execution, I have levied and taken into my custody, one iron ex buggy waggon, unfinished, August 22nd, 1845. Wm. P. Hewett." Also," Received on the attached execution, my damages in full, September 25th, 1845. S. W. Gregory." The last renewal by the justice, was subsequent to the endorsement of $2 50, and was as follows :-" The within execution renewed, August, 18th, 1845. B. Johnson, J. P." The signature of Johnson and of the persons making the endorsement were duly proved. The plaintiff offered to prove, that the defendant had admitted that the execution was invalid, which offer was overruled by the justice. Judgment was rendered for costs against the plaintiff below, who sued out a certiorari. E. G. Latham, for plaintiff in error. E. FITCH SMITH, First Judge. In the view which we take of this case it is only necessary that we should notice four points raised by the plaintiff in error— that the justice improperly admitted in evidence the execution under which the defendant justified. 1st-Because the justice under the statute had no authority to renew the execu tion after the expiration of two years from the rendition of the judgment. 2nd-That the process was void, as the renewal was for the full amount of the execution and not for the sum actually due. These objections present two points in this cause and will be considered in the order presented. The first of these objections involve the construction of the statute which provides: If any execution be not satisfied, it may from time to time be renewed by the justice issuing the same, by an endorsement thereon, to that effect, signed by him, and dated when the same shall be made. 2d. R. S. 2d. ed. 180, §142. And also the section of the statute which provides, that executions may be issued at any time within two years from the rendition of the judgment. 2 R. S. 2d ed. 180, §143. The language of renewals, is, "from time to time." We cannot from this language, perceive why such execution may not be thus renewed, at any time while the justice remains in office. An original execution must be issued within the two 1st-It is said the justice erred in rejec-years. The statute has also provided, if tion of the admissions of the defendant that shall be returned unsatisfied, in that the execution was invalid. The offer whole, or in part, a further execution was not to prove that the defendant ad- may issue. The legislature seem to have mitted the existence of facts which would adopted the principle which prevails in render the process void but, admissions reference to executions arising out of of the law, or in other words an admission courts of record. In the latter case, an of what the defendant understood to be execution may issue within two years afthe law in this respect. The answer to ter filing the record. If the execution is the point is, that in such cases, facts, and not issued within that time, the plaintiff is not the law applicable to the case, are driven to a scire facias. 2d R. S. 363, properly the subject matter of evidence, §1, 576 §81. If however an execution be and the justice very properly rejected actually issued within the two years, a this admission of the law as understood by new execution may be issued at any time the defendant. Facts admitted are al- afterwards, without a scire facias, upon ways competent evidence against the par- entering the previous execution upon the ty making such admissions. The law plicable to such facts when established, is to be applied by the court, according as the law is, and not according to the parties understanding of it, unless that understanding coincides with the law. Hence the parties understanding of the law was wholly irrelevant to the issue of fact before the justice. ap It is alleged as another ground of error roll. 5 Cow. R. 446, SJ. R. 106, 9 J. R. 391. 2d Sergt. Teaule 142. 1 Cow. R. 36. The reason upon which the statute of limitation of two years is founded is, that if an execution has not been issued within that time, the presumption of law is, that the plaintiff has had satisfaction, and released his execution, and hence a scire facias is necessary to enable the defendant Ontario Common Pleas.-Bush v. Hewett. expiration of two years, and that this objection is not well taken. to show such matter in bar. But when an execution is issued within that time, no such presumption arises, nay more, it is The next objection is, that the execu repelled by the facts stated in the return. tion was renewed for the whole amount, In analogy to the rule above stated, the when it should have been for the sum aclegislature have provided in reference to tually due. The statute under which justices' judgments, that an original ex- this objection arises, provides" If any ecution must issue within two years, or part of such execution has been satisfied, the party is driven to a new action upon the endorsement for the renewal shall exthe judgment, or to scire facias, provided press the sum due on the execution. 2d a transcript is filed under the statute.- R. S., 2nd ed., p. 180, §142. The objecBut when an original execution is issued tion in this case grows out of the fact of a within two years, then provision is made partial payment of $2 50 on the execution. for two cases. The one where an execu- There was attached to the execution a retion has been issued and actually returned ceipt as follows:-" Received on the atunsatisfied, in whole, or in part. The tached execution, two dollars and fifty other where the process still remains in the cents, April 23d, 1845." In the absence hands of the officers unexecuted, in whole of all proof to the contrary, the presumpor in part. In the former case a further tion is, that the endorsement was made, execution may issue. In the latter case, and attached at the time it bears date, and the old execution may be renewed. In that it was presented to the justice with neither of these two cases is there any the execution, at the time of the renewal. good reason why the statute of limitations The endorsement must therefore be should be applied, for in either case, the taken in connection with the renewal.presumption upon which the statute is Both taken together, in effect, render the founded is repelled. The language from renewal one for the balance remaining "time to time" does not impart any such due; as much so, as if the justice had gone limitation. But it is urged that a renewal into an actual computation of the is a new issue and therefore must be done amount, and stated the balance specifiwithin the two years. Such is not our un- cally, as the two in connection afforded to derstanding of this provision. The re- the officer the means of ascertaining the newal is a mere revival of an old execu-true sum due on the execution; and the tion, giving it a renewal vitality during maxim applies "Id certum est, quod cer the time its existence is perpetuated from tum reddi potest." The paper attached to the date as the renewal. It is not a new the execution on which the endorsement execution, but an old one, renewed, rein- was made, is all the evidence in the cause stated into life and vigor. It has always of a partial payment. Hence unless we been so regarded. In Barleydt v. Volt, 12 presume it was attached at the time it Wend. R. 346, Nelson Ch. J. says, "The bears date, and at the time of the renewal Revised Statutes provides that an execu- presented with the execution to the justion not satisfied may from time to time tice, there was no evidence before the jus be renewed; without this provision, a new tice of such partial payment, and the reexecution must issue." He evidently did newal for the whole sum was proper.— not regard this as a new execution. So too But we place our decision on the ground, in Preston v. Leavitt, 6 Wend R. 664. that the endorsement of the renewal, and The same distinction is recognised by the receipt of part payment, must be taken Sutherland, Justice, who says "the renew-together, and when so taken, it is in legal al does not per se constitute a new execution. It is what the statute calls it, a renewal of an original execution. The justification if it were pleaded, would be under the original execution, and the endorsement, or renewal, would be stated merely to show that it had been revived, or its legal existence prolonged." We are of the opinion therefore, that a justice may renew an execution, after the effect a renewal for the actual balance due, sufficient at least to protect the officer. There is no pretence in this case, that any attempt has been made to collect any greater sums than was actually due after deducting the payment. The object of the statute was to guard the debtor against a double payment. This object has been fully attained under this renewal. The justice had jurisdiction |