Opinion
June Term, 1820.
1. When a defendant in execution once obtains his liberty by the assent of the plaintiff he cannot be retaken, and if he be one of several defendants in the same suit, the plaintiff can neither retake him nor take any of the other defendants.
2. And hence it is held, that if there be judgment against two, and the plaintiff take one in execution, and discharge him, the bail of both is exonerated.
THIS was a scire facias, from WILKES, against Simonton, as bail for one Patterson, against whom, jointly with one Moody, the plaintiff obtained judgment in debt for $490. The writ set forth the judgment and ca. sa., and that Moody was arrested thereupon; and the return, that the other defendant, Patterson, could not be found, and that the defendant was bail for both of the original defendants. Pleas: (1) Nul tiel record; (2) a special plea that upon the ca. sa. against Moody and Patterson, the former was duly arrested and in execution until (52) the plaintiff discharged him from execution and set him at liberty. The plaintiff took issue on the first plea and demurred to the second, in which the defendant joined. It came on for argument before Mangum, J., who sustained the demurrer and gave judgment for the plaintiff, and the defendant appealed.
A. Henderson and Wilson submitted the case without argument.
After stating the case, he said the demurrer admits that Moody was taken in execution, and discharged by the plaintiff; and the question presented is whether that operates a discharge of the bail.
The position is well established by authority that if a plaintiff once take a defendant in execution, and consent to his discharge, he cannot afterwards sue out any execution on that judgment. 4 Bur., 2482; 1 Term, 557; 2 East., 244. There is but one case where a debtor in execution, who obtains his liberty, may afterwards be taken again for the same debt, and that is when he has escaped; and the reason for that is because he is not legally out of custody. But where a prisoner obtains his discharge with the consent of the plaintiff, he cannot be retaken, it being considered that the plaintiff has obtained a satisfaction in law by having his debtor once in execution. 7 Term, 421. This is uniformly the rule where there is but one defendant; and it is equally well settled that if the plaintiff discharge one of several defendants taken on a joint ca. sa., he cannot afterwards retake such defendant or take any of the others. 6 Term, 525. Where, indeed, the discharge is without the consent of the plaintiff, as by an insolvent law, a different rule prevails. 5 East., 147. (53) The defendant in this case can only be proceeded against according to the rules laid down relative to bail, who is not chargeable until an execution be first returned that the principal is not to be found in his proper county; nor can sci. fa. issue until such execution shall have been so returned. Therefore, the judgment on the demurrer must be reversed. And the whole Court gave judgment for the defendant.
Cited: Ferrall v. Brickell, 27 N.C. 70; Jackson v. Hampton, 28 N.C. 35; s. c., 32 N.C. 589; Hawkins v. Hall, 38 N.C. 384; S. v. Cooley, 80 N.C. 399.