Reynolds v. Church — 3 Cai. 274

Majority

p. 274

Reynolds against Church and Douglas.

NEW-YORK,

Nov. 1805.

Headnote

S. P. .Especially if such defendant obtain his discharge from execution under the insolvent act, liis proceeding under that law being- a confirmation of the execution.

THIS case differed from the antecedent in one point only ; which was, that the plaintiff, instead of being discharged from execution by the defendants, duly obtained, after a three month’s confinement, his liberation under the 4th and 5th sections of the “ act for the relief of debtors “ with respect to the imprisonment of their persons.”— The judge, on this account, directed a nonsuit.

Van Vechten in support of it,

contended, that the plaintiff, after treating the execution as good and valid, was estopped from saying the reverse. Besides, in consequence of the proceedings under the statute, he was forever discharged from the judgment, which circumstance would distinguish this from the preceding case.

Foote contra

insisted the execution was void ab initio, and could not be made good by any subsequent acts of the plaintiff himself.

Per curiam;, delivered by

There can be no grounds for the application, to set aside the nonsuit in this case, for the reasons urged in the preceding cause. — ■ But in addition thereto, the execution being deemed voidable, the defendant must be considered as having waived the error, and affirmed the execution, by availing himself of his imprisonment under it, for the purpose of obtaining the benefit of the act for the relief of debtors with respect to the imprisonment of their persons.