Graham v. Pierson — 6 Hill & Den. 247

Majority

p. 247

Graham and others vs. Pierson, sheriff &c.

Headnote

Where a judgment for costs was recovered by a sheriff, in an action on the case against him for not returning an execution, and the plaintiff afterwards petitioned for and obtained a discharge under the bankrupt act; held, that the judgment was a debt provable under the act, and was therefore reached by the discharge.

Held further, that in such case the court would, on motion of the plaintiff, order a perpetual stay of execution upon the judgment.

The plaintiffs sued Pierson as sheriff of Erie county, in an action on the case for not returning an execution. The plea was not guilty. The defendant succeeded in the suit, and recovered costs against the plaintiffs, which were taxed at $256,51. Judgment was perfected on the 20th of October, 1841. In February following, the plaintiff Graham became a petitioner under the bankrupt law, and in June, 1842, he obtained a certificate of discharge from all his debts provable under the act and owing by him at the time of presenting the petition. The defendant afterwards issued a ca. sa. on the judgment to the sheriff of New-York, where Graham resides.

S. Sherwood moved for a perpetual stay of proceedings on the judgment and execution, so far as relates to the plaintiff Graham.

M. T. Reynolds, contra.

If the plaintiffs had succeeded in the suit, a bankrupt’s discharge would not have aided the de

p. 248

fendant, because he was sued for an alleged “ defalcation as a public officer.” (Bankrupt act, § 1.) As the plaintiffs have failed, the discharge of Graham should not protect him against the payment of costs.

The judgment which the defendant recovered against Graham for costs, was a debt provable under the bankrupt act, and is consequently reached by the discharge.^[1] If the defendant chooses to bring a suit on the judgment, Graham can then plead his certificate. But so far as relates to the execution now in the sheriff’s hands, or any other execution to be issued on the judgment, Graham has no means of availing himself of the discharge except by motion. He is therefore entitled to a perpetual stay of execution,^[2]

Ordered accordingly.

(a) (a) See Crouch v. Gridley, (post, p. 250;) and Thompson v. Hewitt, (id. p. 254.;

(b) (b) i) See Noble v. Johnson, ( 9 Johns. Rep. 259 ;) Baker r. Taylor (1 Cowen, 165;) Palmer v. Hutchins, (id. 42 ;) Field v. Howland, ( 17 Johns. 85 ;) Cole v. Stafford, ( 1 Cain. Rep. 259 ;) Russell v. Packard, ( 9 Wend. 431 ;) Zee v. Phillips, (ante,p. 246;) Crouch v. Gridley, (post, p. 250;) Thompson v. Hewitt, (id.p. 254.)