5 Wend. 287 | N.Y. Sup. Ct. | 1830
By the Court,
it is argued for the defendants that as the only object of the recognizance was to obtain a delay of execution, and as that object was not at
It was supposed by the counsel for the plaintiff that the execution might have been superseded. The recognizance could not, I apprehend, prevent execution, unless it had been entered into within four days after judgment. Had the plaintiff issued his execution within four days after judgment was completed, it might have been superseded by bail being put -in within the four days, though after exection issued; but in this case more than four days had elapsed before execution was issued, and the recognizance being entered into after execution issued, could not lay the foundation for a supersedeas ; and being a valid obligation at common law, may be enforced. So a bond with a similar condition would be valid.
The plea states that on the day when the recognizance was entered into, the plaintiff issued a ca. sa. against Thorne, upon which he was arrested and imprisoned, and continued so to be imprisoned when this suit was commenced. The. imprisonment of the person is, while it continues, a satisfaction of the debt; it is in contemplation of law a payment. While the debtor is kept in prison, no execution can be taken against his property; nor can the creditor take any other step to compel payment from his imprisoned debtor. He could not, therefore, prosecute upon the recognizance of bail in an ordinary case; but this is a case of surety, not bail. The engagement in the recognizance was in the alternative that Thorne should prosecute his writ of error with effect, and in case of his failing to do so, then to pay the
I am of opinion that the plaintiff is entitled to judgment upon the demurrer.