Trescott v. Lewis

11 La. Ann. 184

• Court: Supreme Court of Louisiana
• Decided: March 15, 1856
• Status: Published

Opinion

Sfofford, J.

The defendant, Lewis, appealed from a judgment overruling his motion to quash the execution issued in this case.

His ground of complaint is, that the execution issued upon the original judgment, and not upon a twelvemonths’ bond, which he had given at a sale of his property under a previous execution upon the same judgment, but which is long past due.

Wherein does it concern him whether the presentyi.jfe. issued upon the judg-merit or the bond 1 He is the principal debtor in both, and he does not pretend by his pleadings that he has ever paid the debt, or that it has been extinguislied in any mode known to the law, or that he has any possible defence against it.

He concedes — what is perfectly settled — that a twelvemonths’ bond, taken under execution upon a judgment, does not operate a satisfaction or a novation of the judgment.

If he has a technical defence to the bond which is not a defence to the judgment, it is a very good reason why his creditor should take out execution upon the latter; if he has no defence to the bond, it is frivolous for him to complain that the fi. fa. should have issued upon it rather than upon the judgment, which has never been satisfied, and against which ¡he pretends to no equitable defence.

J udgment affirmed.