Desisles v. Cline — 27 N.Y. Super. Ct. 645

Majority

p. 645

Rosalie V. Desisles, plaintiff vs. Samuel Cline, defendant.

Headnote

1. After the issuing and return of one execution against the person of a defendant, the plaintiff’s ignorance of the fact that the defendant has been surrendered by his bail is “ good cause ” within the meaning of the statute (2 M. S. 556, § 36,) against the discharge of the defendant from custody on account of the plaintiff’s neglect to charge him in execution within three months after such surrender.'

2. Yet in such a case, the defendant being entitled to put himself in a condition

p. 646

to get the benefit of various statutes relieving imprisoned parties, a supersedeas will he conditionally allowed unless the plaintiff issue an execution against his person within a specified time.

(Before Bobeetsox, Ch. J. at special term,

November, 1865.)

The present was a motion for a supersedeas, for the failure of the plaintiff to charge a defendant in execution against his person in proper time. Upon the order of arrest in the action the defendant gave hail; an execution against his person, which was issued after the return of an execution against his property unsatisfied, was returned in April, 1865, not found. Upon the commencement of an action against his bail, an order was made in this month, upon an application in August last, exonerating them upon the payment of the costs of the motion and of the action up to the time of his surrender to the sheriff, and directing the discontinuance of such action upon payment of such costs. All of such costs were not paid until the 15th of November, instant. In July last, the defendant was surrendered by his bail and gave new bail for the jail limits, and no execution has since issued against his person.

A. J. Heath, for the plaintiff.

J. M. Smith, for the defendant.

The Revised Statutes provide (vol. 2, p. 556, § 86,) that where any defendant shall be in custody upon a surrender in discharge of his bail,' made after judgment against him, and such bail shall be thereupon exonerated, the plaintiff shall charge such defendant in execution within three months after such surrender. This is a re-enactment of a prior provision in the Revised Laws of 1813, ( p. 353, § 12.) The succeeding section of the Revised Statutes (§ 37) provides that in case of neglect so to charge in execution, the defendant may be discharged from custody “ unless good cause to the contrary be shown.” This last clause is an addition to the provision of 1813, which was peremptory in terms. Tet

p. 647

even under- that, it was held, that the issuing of a ca. sa. before the hearing of the application was an answer to it, and. the ground upon which such decisions were placed was, that the object of the statute was to compel the plaintiff to elect whether he would look to the body or the goods of the defendant, and having made his election, the right to a supersedeas was gone. And in one case it was held that mailing a ca. sa. to a sheriff the same morning was sufficient.

In this case I will not undertake to decide either whether the statute was intended to apply to cases of a surrender after an execution against the person had once been issued and returned not found, or whether the terms “ such surrender ” in the statute, did not mean a surrender rendered complete by the exoneration of the bail, without which to require such exoneration would be either superfluous or unfair, as it might not take place until three months after the surrender. But the issuing of the execution and the ignorance by the plaintiff of the surrender seem to be £i good cause,” within the meaning of the statute. As the defendant is, however, entitled to put himself in a position to get the benefit of various acts relieving imprisoned parties, the plaintiff must issue execution against his person in ten days after notice of the order to be entered, or the supersedeas must be allowed. Eo costs are allowed to either party.