
    William J. Prusia, as Overseer of the Town of Gaines, Resp’t, v. George Brown, App’lt. Same, Resp’t, v. George Brown and Richard Reed, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    1. Discharge of civil prisoner—Effect on surety’s liability—Code Civ. Pro, §§ 2,200, 2,212 and 2,213.
    On the appeal of an action by the defendant therein the usual undertaking was made in his behalf by the defendant herein. After the judgment in that action was affirmed, execution against the property of the judgment debtor was issued and returned unsatisfied, and execution against his person was issued, upon which he was arrested and imprisoned. Afterwards in proceedings instituted for that purpose, he made an assigmnent of his property and was duly discharged from such imprisonment, under Code Civ. Pro., §§ 2,200-2,212. In an action against the surety on said undertaking, he claimed that the imprisonment was a satisfaction of the judgment. Held, That the processes of execution, both against the property and person of the judgment debtor were not in any sense an act of relinquishment of any right to the debtor. That when.the debtor had obtained his discharge, the process had failed to procure the satisfaction of the debt, and the creditor then had the same remedies against his property for the sums due upon the judgment, which he had before the last execution was issued (Code Civ. Pro., 2,213.) That the suspension of remedy against the surety upon the undertaking was then also removed. That the arrest and imprisonment of the judgment debtor were no defense for defendant.
    2. Same—Imprisonment—Effect of—Code Civ. Pro , 2,213.
    The taking of a judgment debtor into custody on final process issued upon a judgment is a satisfaction of the judgment, except so far as qualified by Code Civ. Pro., § 2,213. All proceedings upon the judgment and its liens are suspended during the continuance of the imprisonment.
    3. Same—When remedy restored against judgment debtor.
    No discharge of an imprisoned debtor other than in the manner provided by statute will remove the suspension or restore the remedy.
    Appeals from judgments upon decisions of the court on trials without jury at Orleans circuit.
    The action number one is upon an undertaking made by the defendant on appeal taken from a justice’s court to the Orleans county court, in an action of this plaintiff against one Guenther, where the judgment was affirmed.
    The action number two was brought upon an undertaking made by the defendants on appeal to this court from a judgment of the Orleans county court in an action of the plaintiff against Guenther.
    The plaintiff recovered in both actions and the defendants appeal.
    
      John J. Sawyer, for app’lts; John Ounneen, for resp’t.
   Bradley, J.

On the appeals taken by the defendant Guenther in the two actions of the plaintiff against him the usual undertakings were made in his behalf by the defendants in these actions respectively. And after the judgments in those original actions were affirmed and judgments of affirmance entered, executions against the property of Guenther were issued to and returned by the sheriff of Orleans county unsatisfied. Thereupon executions against his person were issued, upon which he was arrested and imprisoned in the jail of the county. After-wards, in proceedings instituted for that purpose pursuant to the statute, he made assignment of his property and was duly discharged from such imprisonment Code Civ. Pro., §§ 2200, 2212. And after such discharge these actions were brought upon the undertakings.

It is contended by the defendants’ counsel that by reason of such imprisonment of Guenther, in execution, the defendants, as his sureties, were discharged from liability upon their undertakings, because such imprisonment was a satisfaction of the judgments during the time of its continuance. The taking of a judgment debtor in custody on final process issued upon it was at common law a satisfaction of the judgment, and such is the effect now except so far as it is qualified by the statute. Code Civ. Pro., § 2213. And ah proceedings upon the judgment and its lien are suspended during the continuance of the imprisonment. Sunderland v. Loder, 5 Wend., 58; Jackson v. Benedict, 13 Johns., 533. Within that time the surety for the debtor in the action in which the judgment was rendered and the execution upon it issued, by which he was taken into custody, has a defense to any action that may be brought against him as such surety. Koenig v. Steckel, 58 N. Y., 475.

The remedy of the creditor against the surety was complete when the executions against property were returned unsatisfied. The defendants therefore insist that the plaintiff had only one or two remedies; either to proceed by action against the sureties upon the undertaking, or by execution against the person of the judgment debtor, and having taken the former cannot avail himself of the latter. Because by imprisoning such debtor the plaintiff has suspended or defeated the defendants’ right of subrogation for their protection as sureties.

It is true that a creditor cannot make any alteration with the principal of the stipulations of his contract without discharging the surety, and cannot relinquish any security for the debt to the principal without like effect, unless it is with the consent of the surety, because they result' in the suspension and impairment of his right of subrogation, but here although such may have been the effect upon the surety, the creditor has done neither. He has simply pursued the legal remedies against the principal which the law furnishes, and that he might do so we think was within the contemplation of the defendants when they assumed the relation which the execution of the undertakings gave them to the parties, and to the proceedings provided for by the statute People v. Vilas, 36 N. Y., 459, 461-2. The processes of the execution both against property and person of the judgment debtor were not in any sense an act of relinquishment of any right to the debtor, but were used as the enforcement of the legal remedies against him, with a view of obtaining satisfaction of the debt. And when the latter obtained his discharge the process had failed to produce that result, and the creditor then had the same remedies against his property for sums due upon the judgments which he had before the last executions were issued. Code, § 2,213. And we think the suspension of remedy against the defendants upon the undertakings was then also removed. In Stewart v. McGuin (1 Cow , 99), a recovery against a surety for a defendant in a suit in justices court was had and supported after the defendant was discharged from imprisonment on execution. That case arose under 1 R. L. 388, § 4, and the discharge was obtained pursuant to section 12, of the same act. The principle applicable was the same there as here, except so far as the requirement and fact of assignment now and not then existing may distinguish the cases. It is not seen how that could make any difference, as it is made for the benefit of the creditor, and therefore cannot prejudice the rights of the sureties. A voluntary assignment to secure the debt, made to the creditor or a trustee for his benefit by a debtor, is not any prejudice to the surety of the latter, and affords him no right other than that of subrogation. And the fact that the debtor had been discharged from imprisonment is recognized as the reason and support for the decision in Stewart’s case. By the court in Sunderland v. Lockwood, 5 Wendell, 59. In Koenig v. Steckel supra, the recovery against sureties was denied upon the ground that their principal was then in custody on execution, during which time remedy was suspended. No discharge of an imprisoned debtor other than in the manner provided by the statute, will remove the suspension or restore remedy. Poucher v. Holley, 3 Wendell, 184; Kasson v. People, 44 Barb, 347. If these views are correct, the arrest and imprisonment of the judgment debtor upon the executions is no defense for the defendants.

And we fail to see in the record any force in the objection for the purposes of the action against Brown and Eeed in respect to the omission of the notice of appeal to the general term in the judgment roll, or in the excluded offer of evidence in respect to the time when the amount of costs of the appeal was actually inserted in the judgment.

This clerical omission was unimportant, assuming as we must for aught that appears, that they had been in due time taxed. None of the exceptions seem well taken.

The judgments should be affirmed.

Smith, P. J., and Haight, J., concur.  