Cary v. Clark

Decided January 7, 1839

New York Court of Chancery · decided 1839-01-07

Judgment creditor’s bill; which showed that the judgment was docketed- on the thirty-first day of July in the year one thousand eight hundred and thirty-five, but execution not issued until the twenty-fourth day of October, one thousand eight hundred and thirty-eight. Motion to dissolve the injunction on tbe ground that it did not appear the judgment had been revived bJ scire facias..

Decided 1839-01-07

The Vice-Chancellor :

¶1I must adhere to the - opinion I have_before expressed that this court will intend the execution was regularly issued, although more than two years have elapsed from the time of rendering the judgment. If the issuing of the execution were not authorized or regular, the defendant should apply to the court of law to set it aside. Until the contrary is shown, and while the execution is suffered to remain as one duly issued and returned, this court will presume it was preceded by a scire facias to warrant it. It is not necessary to state the revival by scire facias in the bill to give this court jurisdiction. Enough appears without such a statement.

¶2Motion denied ; with costs to be taxed.