Day v. Rice

By the Court,

The second execution was regularly tested of a time when all the defendants were alive; and the plaintiffs did not seek to reach the property of Woolsey, but of the surviving defendants. There can be no doubt that this proceeding was regular at the common law; and I think the statute only applies to the case of a sole defendant, who dies after judgment, and before execution, or where the plaintiff attempts to take the property of a deceased defendant. See Nichols v. Chapman, 9 Wend. 452, Stymets v. Brooks, 10 Wend. 206.

Motion denied.