58 N.Y. 475 | NY | 1874
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 be 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 *477 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.
