Executors of Schoonmaker v. Elmendorf

A bond was fl'd'his* wife) f0°rntheU-maiii- and several held' mi= be. brought on it, by the hus¡ m|nt vour of the husband and. bind dbfd.and ®™ardsthe wite died, rtlcI > tii^t the executors of the brilgT Where a piea bailment*and bll.it may be “°°^ and if a dea “pilathejudgment will be final.

THE writ of scire facias, in this cause, stated that Thomas Schoonmaker and Wyntje Schoonmaker, the testatrix, recovered judgment against the defendants, in this court, in August term, 1805, for 2,500 dollars debt, and 74 dollars and 14 cents damages and costs; and that afterwards Thomas died, and the testatrix survived him; that afterwards, on the 23d of July, 1811, the testatrix died, having first made her will, and thereby appointed the plaintiffs her executors, &c.; that the judgment was recovered . on an obligation, dated the 5th of September, 1797, executed by Dervitt, in his lifetime, and the defendants, for the payment of 2,500 dollars, conditioned that the obligors should, during the natural lives of T. and W. Schoonmaker, provide them with competent and suffi- • i x,.. nr- ■, cient support and maintenance, &c. fit and convenient for such aged persons, or should pay to them yearly, during their natural lives, the sum of 65 dollars and 50 cents, and after the death of e either of them, the sum of 32 dollars and 50 cents, to the survivor,1 yearly, for life; that the suit on which the judgment was obtained, was commenced in November term, 1803, for a breach of the condition of the bond; that the plaintiffs suggested other breaches of the condition, during the lives of T. and W. Schoonmaker, and since the death of W. Schoonmakerthe scire facias was for the defendants to show cause why execution should not issue on the judgment for the damages sustained by such further breaches. Scire feci having been returned, the defendants prayed judgment of the writ, because, before the issuing ‘out of the writ of scire facias, and before the judgment, and before the giving the bond, W. Schoonmaker, the testatrix, was a feme covert, the wife of T. Schoonmaker, and so remained covert, until her death, with a verification, &c. Wherefore they pray judgment, if the plaintiffs ought to have and maintain their said action, &c. To this plea the. plaintiffs demurred; 1. Because the fact of coverture was immaterial, as the judgment was recovered by T. and W. Schoonmaker jointly, and W. Schoonmaker survived her husband, T. Schoonmaker;. 2. Because the plea commences with pray5Bg judgment of the writ, and concludes with praying judgment of the action, &c. The defendant joined in the demurrer.