Masters v. Edwards

1 Cai. Cas. 515 | N.Y. Sup. Ct. | 1804

Per Curiam.

In Brantingham's .Case we certainly did depart from the English practice. "We there allowed, on a rule to show cause, the being charged in execu[*517] tian subsequent *to notice of the application, to be shown as a reason for denying the supersedeas. The court proceeded there on the idea, that the statute gave the plaintiff a right of election to have execution against the body, or the goods; and that he was not obliged to manifest this election till called on.^[1] The present case is not of that description; that statute was only to prevent double executions. The plaintiff has elected to relinquish the person of his debtor, who, having been once actually superseded, must continue so, and the plaintiff shall never have liberty again to resort to his first judgment. Let the defendant, therefore, be discharged, but without costs.

Motion granted, without costs.

[1] See Manhattan Co. v. Smith ante, p. 67,