Cooper v. Bigalow

1 Cow. 56 | N.Y. Sup. Ct. | 1823

Caria.

The bodies of the defendants, Bigalow Searls, being in execution, this is, in judgment of law, a satisfaction of the debt, We find this principle perfectly well settled, so much so, that a commission of bankruptcy cannot issue, upon the proof of a debt for which the bankrupt is in execution. (Burnaby's case, Str. 653.) It is no answer to say that the plaintiff may hereafter be entitled to a new execution, by the death of the defendants. At common law, this could not be done. (Foster v. Jackson, Hob. 52.)^(a) But the statute makes it an exception. And the case mentioned of a discharge under the insolvent act, is also by statute. We, therefore, deny the motion.

Motion denied.

(a) In this case, (p. 59,) the Court hold “ that a capias ad satisfaciendum, as against the party, is not only an execution, but a full satisfaction, by force and act, and j udgment of law.” In Horn v. Horn, (Ambl. 79,) Ld. Hardwicke says, “ Where there is an equitable demand, and the party is taken in execution on a decree, this Court (Chancery) will issue all its process against his lands and effects; and the body being detained is not, in this Court, a satisfaction ; the reason is, because he is detained for the contempt. Hut at laui, the detaining the body is a satisfaction, and you cannot afterwards take the goods. And so note the difference between common law, and equity