
    Margaret Flanagan vs. Bridget Tinen and Timothy Tinen, her husband.
    For an assault and battery committed by the wife alone, both the husband and wife are liable; and judgment being rendered against both, the execu- ' tion must follow it, and direct the collection of damages and costs out of the property of both.
    Such judgment becomes a lien on the real estate of which the husband is owner, at the time of the rendition thereof, and on such as he may thereafter acquire. His death will not impair such lien, nor the right of the plaintiff to enforce it against the land.
    If the husband has real estate, and an execution issued during his lifetime is returned by the sheriff nidia, lona, the court will cancel such return, and take the execution off the files and return it to the sheriff, to the end that he may proceed and sell the real estate by virtue of it.
    Where a Ji. fa. has been issued within five years from the recovery of a judgment, and returned wholly unsatisfied, no leave from the court is necessary to the issuing of a second execution.
    The case of Allen v. Clarks, (11 How. Pr. Rep. 213,) in which it is intimated that in no case can an execution issue, after the death of the defendant therein, without leave of the court, disapproved.
    MOTION for leave to issue execution. The action was brought, in October, 1864, to recover damages for an alleged assault and battery, committed by the defendant, Bridget Tinen. Issue was joined, and a trial had in March, 1866, and a verdict rendered in favor of the plaintiff .for $50 damages, for which sum, with costs, judgment was entered on the 1st day of March, 1866. On the same day a fi.fa. was issued on said judgment, to the sheriff of Jefferson county, which, on the 7th of January, 1867, was returned wholly unsatisfied. On the 13th day of June, 1866, Timothy Tinen, one of the defendants, and the husband of the said Bridget, died, leaving him surviving the said Bridget and four children his heirs at law, all of them under fourteen years of age. On the 15th of November, 1867, the said Bridget was, by the surrogate of Jefferson county, appointed administratrix of her deceased husband. There was no personal property belonging either to said Bridget or the estate, but the intestate died seised of real estate, in said county, of sufficient value to pay said judgment. On the 20th of November, 1867, a petition was presented by the plaintiff to the surrogate of Jefferson county for leave to issue execution on said judgment, the prayer of which was granted.
    The plaintiff now moved for leave to issue execution, on the ground that when the defendants, in a judgment, or one of them, has died, the consent of the court in which the judgment was recovered, as well as that of the surrogate, to the issuing of an execution, is necessary.
    
      Moore & McCartin, for the plaintiff.
   Mullin, J.

The injury for which the action was brought was done by the wife alone ; and for that injury both the husband and wife were liable. (1 Chitty’s Pl. 82.) The judgment being against both, the execution must follow it, and direct the collection of damages and costs out of the property of both.

The judgment became a lien on the real estate of which the husband was owner at the time of the rendition thereof, and on such as he thereafter acquired. The execution having issued during his life, it was competent for the sheriff to have seized and sold the real estate, and out of the avails to have paid the judgment. Why it was returned nulla bona, in January, 1867, when there was real estate out of which satisfaction might have been obtained, is not disclosed. Had the sheriff performed his duty, this application would not have been necessary.

The proper relief, under the circumstances, would be to cancel the return of nulla bona, take the fi. fa. off the files, and return it to the sheriff, to the end that he might proceed and sell the real estate by virtue of it.

The death of Timothy did not impair the lien of the judgment, nor the right of the plaintiff to enforce it against the land hound by its lien. The title, therefore, passed to the heirs charged with the lien.

But if the question is now to be considered as if no fi. fa. had issued during the life of the judgment debtor, then it can only issue at the end of a year from the death and by permission of the surrogate. (2 R. S. 2d ed. 368, § 27. 3 id. 5th ed. 642, § 30.)

Permission from the court in which the judgment was recovered, to issue execution, is only necessary after the expiration of five years from the recovery of the judgment, and then only in the event that an execution has not been issued within five years. (3 R. S. 5th ed. 642, § 1. Code, §§ 283, 284.)

By the last clause of the first paragraph of section 284, it is declared that leave to issue execution shall not be necessary when an execution has been issued within the five years and returned unsatisfied, in whole or in part.

In this case the fi. fa. was issued within five years, and has been returned wholly unsatisfied; therefore, by the very terms of the section under consideration, leave from this court is not necessary.

I have been referred to the case of Alden v. Clarke, (11 How. 213,) in which the general term of the fourth district intimated that in no case could an execution issue after the death of the defendant therein, without leave of the court. The remarks of the learned judge who delivered the opinion of the court, in that case, as to the necessity of leave within five years from the entry of judgment, were not called for by the case before him ; and it seems to me quite clear that, as the law then stood, execution might issue, by leave of the surrogate, after a year, without leave from the court in which the judgment was recovered. Chapter 295 of the Laws of 1850 was then in force.

But, however this may be, the clause of section 284 of the Code, cited supra, was not then enacted. Since its enactment, there cannot, it seems, he any necessity for leave from the court, in a case like this.

[Jefferson Special Term,

October 19, 1868.

The motion is therefore denied.

Mullin, Justice.]  