Kasson v. People ex rel. Rease

44 Barb. 347 | N.Y. Sup. Ct. | 1864

By the Court, Welles, J.

The two judgments in favor of Bightenburgh, one of which was against Alfred J. Gilbert, and the other against the relator, Peter Bease, were for one and the same trespass, and Bightenburgh had his election to prosecute both in one action, or to sue them separately; and in the latter case, provided he recovered, he had the further election de melioribus damnis. He elected to sue them separately, and recovered in both actions. • He also elected • to sue out execution upon the judgment against Gilbert, upon which the latter was commited to jail on the 25th of June, 1861. On the 29th of the same month Julius H. Gilbert, who had become the assignee of both judgments, gave a written direction to the sheriff to discharge Alfred J. Gilbert from custody, in consideration of an agreement at the same time entered into by the latter to pay the judgment against him, and that his discharge from imprisonment should not affect the form or validity of the judgment, or prejudice the right of said Julius to enforce or collect-the same by execution or otherwise.

It can not be doubted that this imprisonment of Gilbert and discharge therefrom by the assignee and owner of the judgments, operated to satisfy and discharge the one upon which the former was charged in execution. (Lathrop v. Briggs, 8 Cowen, 171. Powers v. Wilson, 7 id. 274, and authorities there cited.) If the assignee of the judgments, had any remedy left against A. J. Gilbert, it was under the agreement of 29th June, 1861.

If the judgment had been in one action against the defendants in both actions, for the same trespass, and one only had been charged in execution and afterwards discharged therefrom, by order of the plaintiff therein, or his assignee, the effect would have been the same. The judgment would in that case have been discharged, and no remedy could after-wards have been had, upon it. (Chapman v. Hatt and others, 11 Wend. 41. Bingham on Judg. and Ex. 206. Clark v. Clement and English, 6 T. R. 525.) That here were two actions; and a recovery in each, for the same trespass, does not vary the principle. The discharge by the plaintiff of the defendant from imprisonment on an execution issued against him, discharges the judgment against the defendant in the other judgment.. The plaintiff in the judgments was entitled to but one satisfaction for the injury he had sustained by the trespass committed by the defendants in the two judgments, and that he has had, by the imprisonment of Gilbert, and discharging him therefrom. It is quite true that originally he had the right to imprison the relator as well as Gilbert, to satisfy his damages, but having chosen to charge the former in execution,-and to discharge him from imprisonment, his remedy on both judgments was gone. It was equivalent in the eye of the law, to payment by Gilbert of the judgment against him. And in a similar case it was held by the court, in Livingston v. Bishop, (1 John. 289,) that the defendants in the other judgment were discharged, upon payment of the costs of the judgment in the action against them for the same trespass. In the present case the costs in the judgment against the relator were paid before his commitment to prison.

[Monroe General Term, March 7, 1864.

For these reasons it seems to me that the order of the county judge discharging the relator from imprisonment should be affirmed, with costs of the proceedings in this court to be paid by the plaintiff in error to the attorney of the relator, and that the relator have execution therefor.

Ordered accordingly.

JS. 'Darwin Smith, Welles and James 0. Smith, Justices,