Crouse v. Paddock

15 N.Y. Sup. Ct. 630

• Court: New York Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

MulliN, P. J.:

The plaintiff brought an action in the Supreme Court against George F. Paddock and Merritt Andrus, and obtained an order of arrest on which they were arrested, and they were discharged from the arrest on giving the undertaking upon which this action is brought: that the said Paddock and Andrus should, at all times, render themselves amenable to the process of the court during the pendency of the action, and to such as might be issued to enforce the judgment therein.

Judgment was recovered in the action against Paddock and Andrus, and an execution thereon issued to the sheriff of Jefferson county, who returned the same unsatisfied.

Thereafter an execution was issued against the bodies of Paddock and Andrus, on which Andrus was arrested and imprisoned; but as to Paddock, the ea. sa. was returned non est inventus.

Thereupon the plaintiffs brought an action against the defend-ants, as sureties in the undertaking given to release Paddock and' Andrus from imprisonment.

Paddock put in an answer alleging, amongst other things, in bar ' of the action as to him, the arrest and imprisonment of Andrus on the ea. sa.

The judge at the Circuit held that the arrest and imprisonment of Andrus did not preclude the plaintiffs from proceeding against Paddock to enforce the debt, and ordered judgment for the plaintiff against the defendant.

It is well settled that the imprisonment of a sole defendant is a satisfaction of the debt while it continues. (Sunderland v. Loder, 5 Wend., 59 ; Chapman v. Hatt, 11 id., 41.)

But I find no case in which it has been held that the imprisonment of one operates as a satisfaction to his co-defendant. The cases cited by appellant’s counsel do not support the proposition.

The case of Penn v. Remsen is decisive of the question. (24 How., 503.)

The judgment must be affirmed.

Present — MulliN, P. J., Smith and Talcott, JJ.

Judgment affirmed.