Cooper v. Bigalow

1 Cow. 56

Opinion

Caria.

The bodies of the defendants, Bigalow Searls, being in execution, this is, in judgment of law, a satisfaction of the debt, We find this principle perfectly well settled, so much so, that a commission of bankruptcy cannot issue, upon the proof of a debt for which the bankrupt is in execution. (Burnaby's case, Str. 653.) It is no answer to say that the plaintiff may hereafter be entitled to a new execution, by the death of the defendants. At common law, this could not be done. (Foster v. Jackson, Hob. 52.)(a) But the statute makes it an exception. And the case mentioned of a discharge under the insolvent act, is also by statute. We, therefore, deny the motion.

Motion denied.

Footnotes

(a)

In this case, (p. 59,) the Court hold “ that a capias ad satisfaciendum, as against the party, is not only an execution, but a full satisfaction, by force and act, and j udgment of law.” In Horn v. Horn, (Ambl. 79,) Ld. Hardwicke says, “ Where there is an equitable demand, and the party is taken in execution on a decree, this Court (Chancery) will issue all its process against his lands and effects; and the body being detained is not, in this Court, a satisfaction ; the reason is, because he is detained for the contempt. Hut at laui, the detaining the body is a satisfaction, and you cannot afterwards take the goods. And so note the difference between common law, and equity