Pettengill v. Mather — 16 Abb. Pr. 399

Majority

p. 399

PETTENGILL a. MATHER.

Supreme Court, First District ; General Term,

Nov., 1863.

Headnote

Imprisoned Judgment-debtor.—Satisfaction-piece.—Tender of Expenses.

The imprisonment of a judgment-debtor under an execution against the person, and his release by consent of the plaintiff, do not operate as a satisfaction of the judgment.

A judgment-debtor demanding a satisfaction-piece, is bound to offer the instrument to be executed to the creditor, and to offer to pay. the expenses of its execution.^[1]

p. 400

Appeal from an order denying a motion to compel a judgment-creditor to execute a satisfaction-piece.

In March, 1861, Samuel M. Pettengill recovered judgment against Robert E. Mather, for $1,536.08. Subsequently the plaintiff obtained an order for leave to issue an execution against the person of the defendant, which was affirmed by the general term. (12 Ante, 436.) Execution was accordingly issued, and the defendant gave bail for the jail limits. In March, 1862, the plaintiff consented, in writing, that the sheriff should release the defendant from imprisonment. In June, 1863, the defendant’s attorney demanded of the plaintiff a satisfaction of the judgment; but made no offer to pay the expense of such satisfaction. The plaintiff declined to give a satisfaction of the judgment. The judgment had never been paid, unless the imprisonment and release constituted payment.

p. 401

Defendant’s motion, that plaintiff be required to satisfy the judgment was denied by Mr. Justice Barnard, and the present appeal was taken.

Cornelius Fiske, for the appellant,

cited 7 Cow., 276 ; 8 Id., 173; 3 Wend., 186 ; 5 Johns., 364 ; 20 How. Pr., 336 ; 3 Paige, 365; 9 Cow., 138 ; 20 Johns., 294 .

Amos G. Hull, for the respondent.

I. The moving papers are defective in not showing that defendant offered to pay the expense of .the satisfaction. The payment of the fees by the defendant, is a condition precedent to the acknowledgment of the satisfaction. (2 Rev. Stat., 362; Briggs a. Thompson, 20 Johns., 294 .)

II. The case is within the provisions of the Laws of 1857 (ch. 427).

III. It is respectfully submitted, whether it is an absolute satisfaction of the judgment any longer than while the arrest continues. (Sunderland a. Loden, 5 Wend., 58 , 90; Wakeman a. Lyon, 9 Id., 241; 3 Cow., 331 ; 3 Paige, 365.)

The order appealed from should be affirmed; The defendant is entitled to the benefit of the discharge only as a defence to future legal proceedings against him. He was also bound, if entitled to a satisfaction, to prepare it and attend the plaintiff with it, and offer to pay the expense of its execution. The authorities cited, do not bear out the defendant’s proposition. In most of the cases cited, the judgments sought to be satisfied of record, have been paid.

Order affirmed with costs.

Footnotes

* Present, Sutherland, P. J., Leonard and Barnard, JX