
    Executors of Schoonmaker against Elmendorf and another, Survivors of Dewitt.
    ALBANY,
    Jan. 1813.
    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.
    
    
      P. W. Radcliff, in support of the demurrer.
    The suit was originally well brought in the name of the husband and wife,, she having a meritorious cause of action.
    
    If the defendant meant to avail himself of the objection as to.a part of the plaintiffs’ demand accruing during the life of the husband, he ought to have pleaded the coverture in abatement to that, and in bar as to the residue accruing since the death of the husband.
    
    The plea begins in abatement, though it concludes in bar, and is, in truth, a.plea in abatement. The matter on which the defendant relies in his plea, existed antecedent to the judgment, and if pleadable at all, might have been pleaded before; and it is a settled rule that nothing can be pleaded to a scire facias on a judgment but what has accrued since the judgment.
    As the plaintiffs have demurred in bar, and the demurrer concludes in bar, the judgment, in this case, must be final.
    
    
      Sudam, contra.
    The plaintiffs, as executors, have issued a scire facias, and assigned breaches; but they ought first to have issued a scire facias to revive the judgment in their favour, as the executors of the surviving obligee. The plaintiffs proceed under the statute, and they must be held strictly to its provisions. Before they .proceed for damages, they must first show their right as executors, which can only be done by a scire facias in their favour. . This objection is fatal to the suit. The plaintiffs should have prayed to have the judgment revived in their favour' as executors; but they pray only for an execution for the damages.
    
      Radcliff, in reply,
    said, the defendants ought to have pleaded in abatement that the plaintiffs were not executors; and not having done so, they admit them to be executors, and cannot now raise this objection.
    
      
      
        Chit. on Plead. 19, 20. 2 Bl. Rep. 1236. Selw. N. P. 24. 308, 309.
    
    
      
      
        Chit, on Plead. 443, 444.
    
    
      
      
        Chit. on Plead. 457. Bac. Abr. Abatement, P. Com. Dig. Abatement, l. 15.
    
   Per Curiam.

The bond was given to the husband imd wife jointly, for their maintenance, during their joint and separate lives. The wife was properly a party to the bond, for she had a distinct interest, and one which was intended to survive to her,. if she survived her husband. There can be no doubt that the bond so taken was valid, and that the husband and wife might join'in a suit upon it. (Stra. 230. Cro. Jac. 77.) The original suit and judgment being in favour of them jointly, the interest in the judgment survived, of course, to her, as the survivor; and the scire facias was well brought by her executors. The scire facias states every fact requisite to show that the plaintiffs were entitled to execution upon the judgment, and the defendants were warned to show cause why execution should not be had. • There is no error, at least in substance, in the scire facias; and as the plea concludes in bar, though it begins in abatement; it is to be taken as a plea in bar. (1 Ld. Raym. 593.) It rests wholly on the fact that the bond was taken to the husband and wife, during coverture; and this, as has already been observed, is not a well founded objection, for the joint interest of the' wife appears upon the face of the condition of the bond; and that this would be sufficient to support a joint obligation to the husband and wife and a judgment thereon, seemed to be admitted in the case of Bidgood v. Way and Wife. (2 Bl. Rep. 1236.)

Judgment for the plaintiffs.  