Carter v. Loomis

2 Abb. Pr. 295

• Court: New York Supreme Court
• Decided: March 15, 1867
• Status: Published

Opinion

Ingraham, J.

The defendant might at any time have compelled the plaintiffs to charge him in execution after judgment. Hot having done so, he cannot charge the plaintiffs with laches for his delay.

He is entitled, however, to an order requiring them to charge him in execution within sixty-five days after notice of the order. This proceeding is regulated by statute, and the defendant is required to act before he is entitled to relief, unless the plaintiffs also are in fault.

Here the plaintiffs have been guilty of gross negligence, for which they are not entitled to any favor. After defendant is charged in execution he may take the fourteen day act and be discharged. I think the defendant should be allowed to do this at once. If the plaintiffs stipulate to waive any objections to the debtor taking the fourteen day act for want of being charged in execution, and the debtor gives fourteen days’ notice and makes an assignment, as provided under that proceeding, he may be discharged. If plaintiff does not so stipulate, in five days the defendant may be discharged from imprisonment under the order of arrest.