Jackson ex. dem. Spencer v. Benedict , 13 Johns. 533 ( 1816 )

Per Curiam.

Both parties claim title to the premises in question, under judgments against Gilbert Benedict, in whom the title is admitted to have been duly vested, The judgment under Which the lessor of the pláintiíí claims was first dpcké.ted 5 pnd, admitting that, in ordinary cases- between judgment eredi.tOrs, this would give it priority*' yet, under the circurnslanceS of this case, it must ,be postponed, and preference given to -thé second judgment. On the first-judgment, which was -obtained in this court, a ca:ia. was issuedpand the defendant, Gilbert Benedict, was arrested and imprisoned thereon. Whilst he was so imprisoned* a fi. fa. was issued on; the second judgment, which was obtained in the Onondaga common pleas ; and the premises in question levied upon and sold, and a deed given by the sheriff to Isaac Howell, under whom the defendant claims: Gilbert Benedict, having been discharged from imprisonment, under the act relative to the,imprisonment of the person, a fi, fa. was taken out on the first judgment, and the premises again sold by the sheriff, and purchased by the lessor of the plaintiff. From these facts, it appears that the plaintiff, in whose favour the first judgment was obtained, had made his election as to his execution; and having taken the body of the defendant, he could not afterwards have recourse to his property, except in the special cases provided for by the statute, as where the defendant dies in prison, or where he is discharged under the statute, as was the case here. But these are contingencies which may never occur, and it would be extremely unjust to continue the lien on the property after the body has been taken in execution. It would, in effect, be giving to a ca. sa. an operation upon the land, as well as the body of the defendant. Taking the body in execution is a discharge of the judgment, except where otherwise provided by statute, and the imprisonment of the person must be a suspension of the lien. The defendant in such case would have a right to sell his property, either real or personal; and the execution, allowed by the statute to be taken out, after the discharge, against his property, cannot claim priority to any lien created, or right acquired, by others, during the imprisonment of the defendant, Judgment of nonsuit must, accordingly, be entered, pursuant to the stipulation in the case.

Judgment of nonsuit: