764

SATISFACTION OF PART OF PLAINTIFF'S CLAIM.

In what Cases it should be ordered.

within the body of a county; and a vessel or its cargo may be derelict, and a salvage service may be rendered and a lien therefor acquired there, as well as upon the high seas. It is sufficient, if it be within the bounds of admiralty jurisdiction. Ct. of Appeals, 1853, Baker v. Hoag, 7 N. Y. (3 Seld.), 555.

2. That whether the thing is or not a legal derelict, only affects the question of the rate of salvage in the particular case.

Ib.

3. Recapturing a vessel, which had been taken by a friendly power, raises no claim for salvage, for such a retaking is unlawful. [1 Cranch, 28.] Supreme Ct., 1806, Peck v. Randall, 1 Johns., 165.

4. When there is no express agreement, the circumstances of each case must govern in determining whether the services rendered are to be compensated on a quantum meruit, or as salvage. Where the vessel in peril was grounded in a river, but not derelict, and plaintiff was employed with others, and it did not appear that his compensation was dependent upon success;-Held, that the plaintiff was not entitled to recover a salvage compensation. N. Y. Superior Ct., 1850, Sturgis v. Law, 3 Sandf., 451.

As to jurisdiction of cases of salvage, see SUPERIOR COURT of N. Y.; SUPREME COURT.

sion, the court will order it to be deposited in court, or paid to such third party. [Code of 1851, § 244, subd. 5.] N. Y. Superior Ct., 1851, Burhans v. Casey, 4 Sandf., 706.

4. Where a surviving partner, sued by the administrator of the deceased partner for an account, admits a balance in his hands due to such partner's estate, but makes claims against the decedent, and against the partnership, he may be ordered, under § 244 of the Code, to pay over such balance, less the contested claims against the decedent, on the administrator giving security to pay the decedent's proportion of the claims against the estate, and of the costs and expenses. N. Y. Superior Ct., 1851, Roberts v. Law, 4 Sandf., 642.

5. Part of claim. The power of the court to order satisfaction of that part of the plaintiff's claim admitted by the answer to be just, is not confined to cases in which one or more of several distinct items claimed is admitted, but such an order may be made where a part of a sum claimed is admitted to be due. N. Y. Com. Pl., Sp. T., 1855, Quintard v. Secor, 3 E. D. Smith, 614; S. C., 1 Abbotts' Pr., 393 ; but see Russell v. Meacham, 16 How. Pr., 193.

6. When a fund in litigation has been brought into court, and the answer of defendant admits a part of it to be due to the plaintiff, but disputes his claim to the residue-the

SATISFACTION OF PART OF PLAIN- court may order the sum admitted to be due

TIFF'S CLAIM.

1. "When the answer of the defendant, expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it en

forces a judgment or provisional remedy."* Code of Pro., § 244, last paragraph.

2. Before this provision was enacted plaintiff was allowed judgment, on motion under $ 246, for the part not denied. Supreme Ct., Sp. T., 1850, Tracy v. Humphrey, 5 How. Pr., 155; S. C., 3 Code R., 190.

3. Payment to third party. Where it appears by the pleadings that the plaintiff deposited money with the defendant to pay for him to a third party (the defendant being surety for the payment thereof to such third party), which money is in defendant's posses

* The words in italics were inserted by the amendment of 1857, subsequently to many former decisions stated in the text.

to be paid over to the plaintiff without preju dice to his further claims. N. Y. Com. Pl., 1855, Merritt v. Thompson, 3 E. D. Smith, 599; S. C., 1 Abbotts' Pr., 223; 10 How. Pr., 428.

7. Previous offers by the defendant to pay that sum to the plaintiff in full satisfaction of his claims, form no reason why such an order should be refused. Ib. N. Y. Superior Ct., 1855, Dusenberry v. Woodward, 1 Abbotts Pr. 448; qualifying Smith v. Olssen, 4 Sandf., 711.

8. Previous offer. Present inability. The court will not order satisfaction of a part of the plaintiff's claim admitted by the answer,

where the answer shows the defendant has

frequently offered to pay the sum admitted, but the plaintiff has refused to receive it, and it does not appear that defendant is now able to pay it. Supreme Ct., Sp. T., 1855, St. John v. Thorne, 2 Abbotts' Pr., 166.

9. Where defendant by answer admits a part of plaintiff's claim to be just, an order

SATISFACTION OF PART OF PLAINTIFF'S CLAIM.

In what Cases ordered; and how enforced.

765

requiring him to satisfy such part, will be the Code, directing the defendant to satisfy made in the Common Pleas, notwithstanding the residue of plaintiff's claim. N. Y. Com. that the defendant has made an offer in writ- Pl., 1858, Baker v. Nussbaum, 1 Hilt., 549. ing to allow the plaintiff to take judgment for 15. One of several claims. In an action the sum admitted to be due; and such an or- upon several separate causes of action, arisder will be enforced by attachment, if neces-ing on contract, if to one of them defendant sary. N. Y. Com. Pl., 1855, Myers v. Trimble, interposes no defence, an order requiring him 3 E. D. Smith, 607; S. C., 1 Abbotts' Pr., 220, 399; Sp. T., Quintard v. Secor, 3 E. D. Smith, 614; S. C., 1 Abbotts' Pr., 393.

10. What is an admission. An answer denying plaintiff's claim, and averring that he is not entitled to more than a sum named, less than that in the complaint, is not such an admission that the court will order payment. N. Y. Superior Ct., 1851, Dolan v. Petty, 4 Sandf., 673.

to pay the amount of that cause of action, to be enforced by execution, should be granted. Supreme Ct., Sp. T., 1858, Russell v. Meacham, 16 How. Pr., 193.

16. Enforcing. The court have the power to enforce the order by imprisonment; though they should not do so where the debtor is unable to pay. N. Y. Com. Pl., 1855, Myers v. Trimble, 3 E. D. Smith, 607; S. C., 1 Abbotts' Pr., 220, 399; Sp. T., Quintard v. Secor, 3 E. D. Smith, 614; S. C., 1 Abbotts' Pr., 393.

Nor except to enforce payment of moneys held in a fiduciary capacity. N. Y. Superior Ct., 1855, Dusenberry v. Woodward, 1 Abbotts' Pr., 443; disapproving Myers v. Trimble, and Merritt v. Thompson, supra.

11. Payment should not be ordered (under section 244, subd. 5), unless the answer contains a plain, explicit, and full admission that a definite sum is due to the plaintiff. This provision of the Code is regarded as going no further than the rule which prevailed in the Court of Chancery, under which it was settled 17. The plaintiff sued the buyer of goods that an application to order the payment of for damages, charging him with a conversion money into court, or to a party before final of them, in having sold them as his own, when decree, must be founded upon a full and ex- he had not complied with the conditions of plicit admission by the defendant of the sum the sale. Defendant denied the conversion, due. Such order will not be made, therefore, but admitted his indebtedness. Held, that an when, to ascertain whether a specific sum is order under § 244, requiring payment of the due, a critical examination of the pleadings or indebtedness, should not be allowed. It would of books and accounts is necessary. N. Y. authorize defendant's imprisonment. Supreme Superior Ct., 1853, Coursen v. Hamlin, 2 Duer, Ct. (1855 ?), Slawson v. Conkey, 10 How. Pr., 518; but see the section as amended, supra, 1. | 57; reversing, it seems, Slauson v. Conkey, 1 12. A concession in the answer that not Abbotts' Pr., 228. more than a certain sum was due, is a sufficient admission of that sum as a part of plaintiff's claim. N. Y. Com. Pl., Sp. T., 1855, Quintard v. Secor, 3 E. D. Smith, 614; S. C., 1 Abbotts' Pr., 393.

18. Satisfaction of a part of plaintiff's claim, admitted by the defendant's answer to be just, should not be ordered, where the claim is one on which the defendant is exempted from imprisonment by the Non-imprisonment Act of 13. It is not enough to authorize an order 1831; for in such case the order ought not to under the last clause of section 244 of the be enforced, as a provisional remedy, by atCode, that the defendants admit that they tachment for contempt. Supreme Ct., Chamhold a part of the fund which the plaintiff bers, 1855, Lane v. Losee, 11 How. Pr., 360; seeks to recover, if they do not admit the S. C., 2 Abbotts' Pr., 129. Approved, Gen. plaintiff's right to the fund. Supreme Ct., T., 1857, Duncan v. Ainslie, 26 Barb., 199; Sp. T., 1856, Bender . Sherwood, 15 How. and see Russell v. Meacham, 16 How. Pr., Pr., 258. 193.

14. In an action upon a draft, the answer 19. Judgment. Under the Code, § 244, last alleged that it was given for the price of goods clause, as amended, 1857,-allowing the order sold by the plaintiff, and averred a breach of to be enforced as a provisional remedy, or as a warranty, and claimed to recoup damages judgment,—the court may direct judgment to therefor to a part of the amount. Held, a be given for the plaintiff for the amount of the proper case for an order, under section 244 of claim admitted to be just, without prejudice to

his right to proceed in the suit for the balance claimed by him. Supreme Ct., 1857, Duncan v. Ainslie, 26 Barb., 199.

SATURDAY.

1. Persons keeping it religiously, exempt from jury and militia duty thereon. Laws of 1847, 451, ch. 349, § 1.

Scire Facias.

3. If after a judgment in favor of husband and wife, on a bond to them jointly for their support, the husband dies, the interest survives to the wife, and on her subsequent death, her executors may bring a scire facias on the judgment. Supreme Ct., 1813, Schoonmaker v. Elmendorf, 10 Johns., 49.

4. Wherever there is a change of parties, by marriage, bankruptcy, or death, whereby other parties become interested in the execution of the judgment, a scire facias is necessary to make such new person a party to the judgment. [Tidd's Pr., 1021.] Supreme Ct., 1820, Johnson v. Parmely, 17 Johns., 271.

2. Judgment. Under the Laws of 1839, 335, ch. 367,t-which provided that no process, judgment, &c., served or executed on Saturday, by or upon a person keeping that day religiously, should be valid,-service of process on another day returnable on that day, and judgment by default on that day, are not prohibited. Rendering a judgment is not serv-execution for subsequent arrears. Supreme ing or executing. Supreme Ct., 1845, Maxson v. Annas, 1 Den., 204.

3. Maliciously causing process to be served on such persons on that day, or returnable on that day, or procuring adjournment of suit against such person to such day, a misdemeanor. Laws of 1847, 451, ch. 349, §§ 2, 3.

SAVINGS-BANKS.
BANKING, 11-35, 133-139.

SCIRE FACIAS.

1. How far a new proceeding. Although for some purposes a scire facias is considered and treated as an action, still, if the object of the proceeding is to revive a judgment, it is a proceeding in the original action, and is but a continuation thereof. [1 T. R., 388; 2 Chitt. Archb., 598; Grah. Pr., 649.] Chancery, 1835, Dickey v. Craig, 5 Paige, 283. Compare infra, 12, 41.

5. In debt on a bond conditioned for payment in instalments, after judgment it is not necessary to have a scire facias to warrant an

Ct., 1830, Wood v. Wood, 3 Wend., 454. Followed, 1848, Harmon v. Dedrick, 3 Barb., 192. 6. The provision of 2 Rev. Stat., 2 ed., 308, §§ 2, 3,—that writs of scire facias shall be issued to continue a suit by or against the . representatives of either party who shall have died in the progress of the suit,-is a mere declaration that such writs may issue, as theretofore they had done; and adds nothing to the law. Supreme Ct., 1838, Webber v. Underhill, 19 Wend., 447.

7. When issued. Under 2 Rev. Stat., 477, $2,-which requires that a scire facias to revive a judgment against the personal representatives of the defendant, must be issued "within a year after the cause for issuing it shall arise," the cause is the death of the defendant, but the year does not begin to run until the personal representative qualifies. Supreme Ct., 1840, Clark v. Sexton, 23 Wend, 477.

8. In ejectment, if after judgment for the plaintiffs, one of them dies, habere facias may issue, without any scire facias; but it must 2. Forfeiture of franchise. Scire facias, be in their joint names. [1 Archb., 374; 2 nstituted by government, is the proper rem- Saund., 72, K., n. 3; 1 Ld. Raym., 244.] Suedy against a corporation for a misuser or non-preme Ct., 1840, Howell v. Eldridge, 21 Wend., user of its privileges, which works a forfeit- 678. ure. [5 Tyng, 230.] Chancery, 1821, Slee v. Bloom, 5 Johns. Ch., 366.

* But see the general militia act of 1862, Laws of 1862, 881, ch. 477, which enumerates exceptions not including this (§ 1), and repeals all inconsistent acts ($819).

+ Repealed, 1847, 451, ch. 849.

Reversed on the merits, 19 Johns., 456.

9. Stating judgment. A scire facias in the usual form, setting out that execution yet remains to be made, is sufficient, without showing in terms that the judgment is unsatisfied. Supreme Ct., 1841, Murphy «. Cochran, 1 Hill, 339.

10. Assignment. A scire facias by an assignee in his own name must set forth the

Pleading.

Parties.

Scire Facias on Judgment.

land a party to the proceeding; and all the terre-tenants must be parties, that they may be made jointly contributory to the satisfaction and payment of the judgment. [2 Saund., 51;

assignment, with the circumstances of time and place; but need not aver notice of it to defendant. Reciting the assignment as under the assignor's hand and seal, sufficiently shows that it was made upon a valuable considera- T. Raym., 26; 1 Salk., 320.] Supreme Ct., tion. Supreme Ct., 1841, Murphy v. Cochran, 1 Hill, 339.

11. Justice's judgment. The provision of 2 Rev. Stat., 177, 2 ed., § 129,-giving a scire facias on justice's judgments docketed,-does not apply to a judgment rendered before the enactment. Supreme Ct., 1842, Johnson v. Burrell, 2 Hill, 238.

1822, Morton v. Croghan, 20 Johns., 106.

18. The plaintiff cannot enter a nolle prosequi as to those who have appeared and pleaded, and take judgment against such as have made default. Such nolle prosequi is a discontinuance of the whole proceeding, and upon it the plaintiff must pay costs. 1b.

19. After the death of the testator, a judg12. A scire facias is a suit or action with- ment against him was revived by scire facias; in the meaning of the act (2 Rev. Stat., 2 ed., execution was issued, and the premises sold 274, § 5)-providing that the assignee, for by the sheriff, who executed a deed therefor, value, of a chose in action, if the assignor be and the defendants were in possession under dead and there be no executors or administra- that title. But the only parties on whom the tors, or if they have no interest, &c., or refuse, scire facias was served were two surviving &c., may sue and recover in his own name. life-tenants. Held, that the judgment, execuSupreme Ct., 1841, Murphy v. Cochran, 1 tion, and sale had no effect upon the estates Hill, 339. in remainder. Under 2 Rev. Stat., 577, § 5, execution cannot be had upon the lands of a deceased judgment-debtor, without scire facias, to which all persons having an interest, and intended to be affected thereby, must be made parties by service of the writ upon them. Ct. of Appeals, 1858, Campbell v. Rawdon, 18 N. Y. (4 Smith), 412; and see a previous decision in S. C., 19 Barb., 494.

13. The assignee of an executor cannot proceed in his own name on notes payable to the decedent and assigned by the executor, unless the executor be dead, &c. Supreme Ct., 1842, Seeley v. Seeley, 2 Hill, 496.

14. Title. In scire facias on the death of the plaintiff after issue, to prevent an abatement, and substitute those who have succeeded to his title, the parties bringing it must show that they have succeeded to such claim of title as he had; but need not show that he had title. Supreme Ct., 1845, Boynton v. Hoyt, 1 Den., 53.

15. Parties. Where a judgment is revived by scire facias against the original defendant,

20. Old judgment. A scire facias issued to revive a judgment of more than ten years' standing, without a previous affidavit that the judgment is unsatisfied, is irregular and should be quashed. Supreme Ct., 1812, Lansing v. Lyons, 9 Johns., 84.

21. Where a judgment is above ten, and it is not necessary to make the terre-tenants under twenty years' standing, the plaintiff may parties; but only where the original defend-apply to the court for leave to issue a scire ants are dead. [Tidd's Pr., 1021; 2 Saund., 7, facias, supported by an affidavit of its being n. 4.] Supreme Ct., 1814, Jackson v. Shaffer, 11 Johns., 513.

16. That to revive a judgment against a devisor, a scire facias against his heirs, when they took nothing by descent, is useless. Ct. of Errors, 1816, Jackson v. Delancy, 13 Johns., 536; affirming S. C., 11 Id., 365; and see Jackson v. Robins, 16 Id., 537; affirming S. C., 15 Id., 169.

17. Where a judgment-creditor proceeds to enforce his lien on the realty of the deceased defendant, and it becomes necessary for that purpose to revive the judgment, he must make every person having a fee in the

unpaid and unsatisfied. [2 Salk., 598.] If of more than twenty years' standing, there must be a service of a notice of the motion, &c., or a rule to show cause; and the court have a discretion to grant or refuse a scire facias. Supreme Ct., 1819, Bank of N. Y. v. Eden, 17 Johns., 105.

22. Second writ. There must be fifteen days between teste of first and return of second scire facias. Supreme Ct., 1798, Woodman v. Little, Col. & C. Cas., 60.

23. Notice of entry of rule to appear need not be served. Supreme Ct., 1803, Neilson v. Cox, 1 Cai., 121.

31. Defences. In scire facias against devisees and ter-tenants, an objection that the 37. In scire facias to revive a judgment, heirs were not warned, or that they were not a plea by the terre-tenant that the plaintiff such ter-tenants as ought to have been sum-issued a fi. fa. upon the judgment, and that in moned, must be taken by plea in abatement, virtue thereof the sheriff caused to be levied and not by motion. [2 Saund., 9.] Supreme "the damages, &c., on the goods and chattels, Ct., 1808, Whitney v. Camp, 3 Johns., 86; 1823, Camming v. Eden, 1 Cow., 70.