Dormire v. Cogly

Blackford, J. Dormiré, Ward, and Rose, the plaintiffs in error, moved the Circuit Court at the September term, 1842, to set aside a fieri facias which had been issued against them in favour of Cogly. The motion was founded on an affidavit of Dormiré, stating that on the 13th of September, 1841, Cogly obtained judgment by confession against Dormiré and Ward for 302 dollars and 56 cents in debt, and 3 dollars and 50 cents in damages, with costs; that Rose entered himself replevin-bail therein for the payment of the judgment within six months; that Cogly or his attorney indorsed on the record that specie or its equivalent was required, and refused to receive paper bankable in the state bank; -that the legislature, by an act of the 29th of January, 1842, gave an additional stay of execution for one year, where the plaintiff demanded specie and refused such paper as aforesaid; that the defendants to avail themselves of the benefit of said act, procured Rose to acknowledge himself, on the 29th of MarJk, 1842, on the judgment aforesaid, willing to continue bail therein for one year, specie being required; that in April, 1842, Cogly struck from the record his demand requiring specie or its equivalent, and on the 17th of April following took out the execution in question. To the motion founded on this affidavit the parties appeared, the motion was overruled, and judgment rendered in favour of Cogly for costs. Writ of error by Dormiré, Ward, and Rose. J. B. Sleith and C. H. Test, for the plaintiffs. J. S. Newman, for the defendant. Plea ¡n t)ar 0f the writ of error, that on the 25th of May, 1842, at, &c., Dormiré, one of the plaintiffs in error, exhibited his petition in, &c., for the benefit of the bankrupt law; that in July, 1842, it was decreed that he was a bankrupt; and that on the 21st of November following, he was discharged from his previously contracted debts. Demurrer to the plea and joinder. We think the plea is bad for this reason if no other, that the judgment removed by the writ of error was rendered after Dormiré was declared a bankrupt. There is no error in the refusal of the Court to set aside the execution. Cogly, by the laws in force previously to the act of 1842, had a right to take out the execution at the time it issued; and said act, giving a further stay of execution, could not affect that right. Bronson v. Kinzie, 1 Howard, 311. — M‘Cracken v. Hayward, 2 id. 608. — Gantly’s Lessee v. Ewing, 3 id. 707. Per Curiam. The judgment is affirmed with costs.