Majority
p. 475William Koenig, Appellant, v. Adam Steckel et al., Respondents. (Argued September 30, 1874; decided October 6, 1874.)
Headnote
The arrest and imprisonment of a judgment debtor upon an execution against his body is in law a satisfaction of the judgment so long as the imprisonment continues, and during that period no action can be maintained by the judgment creditor against one standing as surety for the debtor or to enforce collateral securities held for the payment of the ■ judgment.Plaintiff commenced an action against B., in a District Court of the city of New York. B. made application to have the cause removed to the Court of Common Pleas giving the bond required by the statute (chap. 344, Laws of 1857), conditioned for the payment of any judgment recovered against him. Plaintiff recovered judgment. In an action against the sureties upon the bond, defendants showed that B. was taken in execution upon the judgment. Seld, that while B.’s imprisonment continued the bond could not be enforced either against him or his sureties; that as it did not appear that he had been discharged the presumption was his imprisonment did continue; and that the plaintiff could not maintain his action.
Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of defendants entered upon the decision of the court upon trial without a jury.
This action was brought upon a joint and several bond executed by defendants and-one Sebastian Banzer, upon the removal of an action brought by plaintiff against said Banzer from the Fourth District Court of the city of New York to the Court of Common Fleas, under the provisions of the act of 1857, in reference to the District Courts of the city of New York. (Chap. 344, Laws of 1857.) The bond was conditioned that the obligors 'would pay to plaintiff the amount of any judgment he might recover against defendant in the Common Pleas. Plaintiff recovered a judgment, and, as the evidence of the defendants showed, after the return of an execution thereon against the property of Banzer unsatisfied,
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an execution against his body was issued, upon which he was arrested and imprisoned.
George Carpenter for the appellant.
The plea of imprisonment is a defence strictly personal to the principal debtor. (Chapman v. Hall, 11 Wend., 41 ; Sunderland v. Loder, 5 id., 58 ; Cooper v. Bigelow, 1 Cow., 56 ; Wakeman v. Lyon, 9 Wend., 241 .) The bond being joint and several plaintiff had the right to sue such of the obligors as he chose. (Code, § 120; Brainard v. Jones, 11 How., 569 ; 38 Barb., 623 .)
Samuel Hirsch for the respondents.,
The arrest of Banzer was, while it continued, a satisfaction of the judgment, and no action could be maintained against a surety or upon collateral securities. (Wickman v. Lyon, 9 Wend., 24 ; Cooper v. Bigelow, 1 Cow., 56 ; Jackson v.Benedict, 13 J. R., 533; Chapman v. Hall, 11 Wend., 41 .) If Banzer was discharged with plaintiff’s consent the judgment is discharged. ( 2 J. Ch., 430 ; 16 J. R., 183; Power v. Wilson, 7 Cow., 274 ; 6 J. R., 51; Lathrop v. Briggs, 8 Cow., 171 ; Ransom v. Keyes, 9 id., 128; Poucher ,v. Hatley, 3 Wend., 184 .)
The taking of the body of Banzer in the execution was in law a satisfaction of the judgment so long as the imprisonment continued. The judgment was not thereby absolutely extinguished, but the imprisonment barred the creditor from all other remedy for the collection of the debt while the debtor was in custody. The statute in certain cases, after the imprisonment is at an end, revives the remedy of the creditor against the property of the judgment debtor, but while it continues no other or different satisfaction can he obtained. The imprisonment suspends the lien of the judgment upon the real estate of the defendant, and the- plaintiff meanwhile can neither bring an action on the judgment nor enforce collateral securities for its payment. The same consequences follow for the time being as from an actual satisfaction. In this case the bond, given by the
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defendants was conditioned to pay the judgment which might be recovered in the action against Banzer. The defendants stood in the position of sureties for the payment of the debt, and if it could not be enforced against the principal, it cannot be against the defendants. It was shown on the trial that Banzer was taken in execution upon the judgment, , and as it did not appear that he had been discharged from imprisonment, the presumption is that it continued to the time of the commencement of the action. The authorities are decisive against the right of the plaintiff to maintain this action. (Jackson v. Benedict, 13 J. R., 533; Cooper v. Bigalow, 1 Cow., 56 ; Sunderland v. Loder, 5 Wend., 58 ; Wakeman v. Lyon, 9 id., 241; Thompson v. Parish, 94 Eng. C. L., 683.)
The judgment should be affirmed.
All concur.
Judgment affirmed.