Watson v. Fuller

6 Johns. 283 | N.Y. Sup. Ct. | 1810

Lead Opinion

Kent, Ch. J.

This is a motion to set aside the execut tion, on the ground of its being satisfied. There is no doubt but that the nominal amount of the judgment arid execution has been paid. The plaintiff contends for the right to collect interest, under the Ji. fa. accruing since the completion of the judgment. But this can only be done, when the debt carries interest, and is covered by a penalty, and the judgment is rendered for the penalty. It is an abuse of the process of the court, to make use of the execution to enforce the payment of interest accruing subsequent to the judgment. . This is acting without authority. The execution must follow the judgment, and can only be commensurate with it, To levy interest, in ,th.e. gi.ven. case, is to levy.more under the judgment than it-authorizes. “ Upon a judgment at law,” as Lord Loughborough admitted, (2 Vezey, jun. 162.) “ no interest subs.eq.uent.to’the judgment can be received. You may bring a fresh action for it, as a new cause of suit; but *285you cannot levy for it, nor charge the land under the elegit, with the intermediate interest from the date of the judgment.” And in another case, Lord Hardwicke said, that M at law, where there is no penalty, no interest is given; where there is a penalty, you may levy the whole. If you bring an action of debt, interest may be recovered by that new action.” (2 Vez. jun. 167.) The practice contended for by the plaintiff, if there be any such, must have grown up within a few years, for I believe there is no trace of it in the English books, and I never heard of it until now. The strong objection to the practice is, that it is allowing the party to carve for himself, and to collect, under the coercion of process, more than was authorized, or intended by the judgment of the court. It is liable, to infinite abuse. The party may demand compound interest; or he may include other debts under the execution, and equally call that equity. But though a demand be ever so just, a party ought not to be permitted to coerce payment , without the sanction of judicial authority. There is one plain principle which governs this case, and that is, that the party must not mask and collect, under an execution, any more than was awarded by the judgment; and interest subequent to the judgment was not awarded by the court. The case of Lansing v. Rattoone, (ante, 43.) decided at the last term, contains the same principle. The motion ought, therefore, to be granted.

Thompson, J. Spencer, J, and Yates, J. concurred..





Dissenting Opinion

Van Néss, J.

dissentéd. He said, that where a judgment is reduced by partial payments, and the plaintiff orders less than the face of the judgment to be collected, he may well collect the intérest; the judgment, in such a case, being to be considered ill the nature of a penalty.

Rule granted.