Morris v. Walsh , 14 Abb. Pr. 387 ( 1862 )

By the Court.^*—Bosworth, Ch. J.

It is sufficient, in answer i to the first objection taken by the appellant, to say, that the fact that the defendant was in prison when the written release was presented to him to be executed, did not absolve him from the duty imposed by the judgment, nor affect the plaintiff’s power or right to use the usual remedies to enforce the judgment. An imprisoned debtor, especially when imprisoned by virtue of proceedings against him in a civil suit, is equally subject to be sued and prosecuted to judgment, and to be proceeded against in all the modes prescribed by law to enforce civil remedies, as if he were at large. That no persons were present to witness the execution of the release, or take his acknowledgment of it, did not make it any the less his duty to execute it. If the release was not sealed when presented to him, non constat that it would not have been, had he not refused to sign it, or to impress his own seal upon it as part of the act of executing it. It does not appear that he expressed a wish to consult his counsel, or suggested that it was of any consequence that he should do so; nor is any objection now made that the release was not in proper form.

As to the second objection, it appears by the papers that a copy of the judgment was served on the defendant personally on the 11th of June, 1862, and a written demand was also then served, requiring him to execute forthwith a release in such form as shall be approved by one of the justices of the court. On the 5th of August, 1862, such a release was presented to him for execution, and he refused to sign it. The only objection that can be made to this part of the proceedings is, that the demand in writing was made nearly two months before the release was presented. ■ We do not see any ground for complaint that the written demand had been served before the release was presented, instead of being served at the same time.

To the third objection it is enough to say, that the fact the plaintiff had not done enough, at the time of defendant’s conviction of a contempt in not surrendering possession of the premises, to procure his conviction for refusing to execute a release, did not disable the plaintiff from subsequently doing such further acts as would warrant the conviction of the defendant, on being proceeded against after the further acts had been done, or exempt the defendant from liability to be convicted on proof thereof in the manner prescribed by law. Hone of the objections made to the order appealed from being tenable, it should be affirmed. Ordered accordingly.

* Present, Bosworth, Ch. J., Barbour, Robertson, Monell, White, and Moncrief. JJ.