Wood's v. Colwell

Per Curiam. It seems to us that the writ of erfor in the same court (coram nobis or vbbis) was a very proper way of having the fact of the defendant’s death put upon the record and established. [96] This fact thus becomes an element in the case before us, and the judgment founded on it may be reviewed by us. If thé new fact had raised only a question of discretion in the court below, of course we could not review the decision of it, in this way: 7 Peters’ R. 147. We have then the question, may a venditioni exponas issue after the defendant’s death, without a scire facias against his executor, if theJj. fa. and levy were in his lifetime? We think not. Such is the obvious reading of the Act of 1834, relating to executors and administrators, § 33, and such we think has been the general practice under it; and we think it better to follow the obvious meaning of the law, rather than one which is less obvious, and which may possibly be obtained by a very nice analysis of the law, and comparison of it with the antecedent practice. We think that the plaintiff cannot have his venditioni exponas without a previous sci. fa. against the executor, and therefore we must reverse the judgment on the writ of error coram nobis. Judgment on the writ of error in the District Court to the venditioni exponas reversed, and judgment thereon in favor of the plaintiff in error, S. R. Wood’s executor, and record remitted for further proceedings according to law.