CARTER against LOOMIS

CARTER against LOOMIS. Supreme Court, First District; At Chambers, March, 1867. Arrest.—Discharge from Imprisonment. i If a defendant arrested in a civil action is prejudiced by the delay of the plaintiffs to enter judgment, and charge him in execution, he should move . to compel them to do so, and cannot charge the plaintiffs with laches unless he has so moved. Where, however, the plaintiffs have been guilty of gross negligence in this respect, they may be required to stipulate to waive any objections to his ' taking the benefit of the fourteen day act, and the defendant be allowed to be discharged under that act on. giving the usual notice. Motion for discharge from imprisonment. This action was brought by Oliver S. Carter and Henry E. Hawley against Theodore H. Loomis, to recover the amount of moneys alleged to have been embezzled by the defendant from the plaintiffs. The plaintiffs procured an order of arrest against the defendant upon which he was imprisoned. The plaintiffs, after the arrest, and after default on the part of the defendant, delayed for some time to enter up judgment. The defendant now moved to be discharged from imprisonment, on the ground that the process for his arrest had been abused by the delay to enter judgment, leaving him in prison, meanwhile, or if such relief should be denied, that the day of the entry of judgment should be fixed, nunc pro tunc, at the earliest day at which the judgment might have been entered, so that the whole time during which he might have been charged in execution upon the judgment, should be counted in the three months required by law for the prisoner to be charged in. execution before taking benefit of the fourteen day act, allowing a discharge from imprisonment in certain cases. John L. Graham, for the motion. Joseph H. Choate, opposed. [MAJORITY — Ingraham, J.] Ingraham, J. The defendant might at any time have compelled the plaintiffs to charge him in execution after judgment. Hot having done so, he cannot charge the plaintiffs with laches for his delay. He is entitled, however, to an order requiring them to charge him in execution within sixty-five days after notice of the order. This proceeding is regulated by statute, and the defendant is required to act before he is entitled to relief, unless the plaintiffs also are in fault. Here the plaintiffs have been guilty of gross negligence, for which they are not entitled to any favor. After defendant is charged in execution he may take the fourteen day act and be discharged. I think the defendant should be allowed to do this at once. If the plaintiffs stipulate to waive any objections to the debtor taking the fourteen day act for want of being charged in execution, and the debtor gives fourteen days’ notice and makes an assignment, as provided under that proceeding, he may be discharged. If plaintiff does not so stipulate, in five days the defendant may be discharged from imprisonment under the order of arrest.