[59 a] 3 Leo. 53. Post. 66.Assets, Br.1. 2 Cr. 338. Post. 60. 5 Co. 86. b. For if an executor release a debt, or discharge one in execution, it shall be accounted in law assets as received. Again, it is no satisfaction clearly, as to bar me to seek satisfaction against another liable to the same debt or damages. And therefore, 29 H. 8. Brooke, Execution 132. 4 H. 7. 21. 20 H. 6. 11. 33 H. 6. 47. 14 H. 4. 19. and Blomfield's case principally, Co. lib. 5. fol. 86. B. and Jones and Williams' case cited there, are all clear law, and yet make nothing to the case in question. Nor 4 E. 4. 38. 5 E. 4. 4. being all to one effect. Again, I am of opinion, that if two be bound jointly 2 Cr. 338, 339, and severally to me, and I sue them jointly, I may have a capias against them both, and the death or escape of the one shall not discharge the other. 532, 694. 1 Cr. 75. Several kinds of executions gation, as a ca pias against But I cannot have a capias against the one, and another upon one obli- kind of execution against the other, because though they be two several persons, yet they make but one debtor, another, where when I sue them jointly; but if I sue them severally, I may sever them in their kinds of execution; for though the obligation be but one, yet the originals, the suits, pleadings, judgments, and executions are so divers, as if they were upon several obligations. But yet so as if 246. B. Yel. 67. once a very satisfaction be had of one, or against the sheriff upon an escape of one, the rest may be relieved upon an audita querela. they are not Cr. 339. N. B. 5 Co. 87. a. 2 Cro. 74. 136. 2 Cro. 143. adj. Accord. 7 H. 6. 7. a. Plo. 441. a. 1 Cr. 240. 1 Roll. 903. Mo. 857. 3 Cr. 850. Mo. 858. 1 Cr. 255. 1 Reason. But now singly out of the very point, I hold that a capias ad satisfaciend. is against that party as not only an execution, but a full satisfaction by force and act, and judgment of law; so as against him he can have no other, nor against his heir or executor, for these make but one person in law. For where the law gives three or four kinds of executions, not all together, but by way of choice, whereof the capias ad satisfaciend. is one; and when the body is taken, it is a full execution, and cannot be for part, (as a 5 Rep. 86. b. fieri fac. may be,) it is an election of itself of that kind of utra. 87. a. execution, and so a renouncing of the rest, as well as an elegit, though it use not the very word, &c. For if the defendant had lands and goods, when the plaintiff took the body, he made a plain preferment of that execution [59 b] before the other. And if they came after, he prevented his choice by haste, which expedition alone is a great advantage in execution. And it is especially to be noted, that the debtor hath not the choice to put the creditor upon the execution; for then it had some color of reason; but the choice is taken by the creditor. 1 Ro. 901. Mo. If the party in execution escape of his own wrong, yet [60] the plaintiff cannot have against him any other kind of 2 Reason. execution, nor against his executors; whereof the reason 57. Cr.Car. 255. is, because, that when he hath begun, and chosen the body, he can never resort to any other execution against the self same party; but the reason is not because he hath an action against the sheriff; for so he hath in the former case of several executions against several debtors by one Cr. Car. 75. obligation, as well after as before the escape. (6.) (6) The law, in these particulars, is since altered. By stat. 21 Jac. I c. 24, it is entacted 'That the party or parties at whose suit, or to whom any person shall stand charged in execution for any debt or damage recovered, his or their executors or administrators, may, after the death of the person so charged and dying in execution, lawfully sue forth, and have a new execution against the lands and tenements, goods and chattels, or any of them, of the person so deceased, in such manner and form, to all intents and purposes, as he or they or any of them might have had, by the laws and statutes of this realm, if such person so deceased had never been taken or charged in execution.' And by stat. 8 and 9. W. III. c. 26, it is enacted that if any prisoner who is or shall be committed in execution to any or either of the said respective prisons, shall escape from thence by any ways or means howsoever, the creditor or creditors at whose suit such prisoner was charged in execution, at the time of his escape, shall or may retake such prisoner by any new capias, or sue forth any other kind of execution on the judgment, as if the body of the prisoner had never been taken in execution." With respect to the plaintiff's remedy, there is no distinction between an escape by the prisoner in his own wrong and an escape by the permission of the sheriff; or in other words, between a negligent and a voluntary escape; but with respect to the duties and liabilities of the sheriff there is a distinction. If a sheriff voluntarily suffer a prisoner to go at large, he cannot retake him again, even on fresh pursuit; and if he does, the prisoner may have an action of trespass against him for the unlawful imprisonment. 5. T. R. 25, Atkinson v. Jameson. 2. Wils. 294, Ravenscroft v. Eyles. 1. Saund. 35. n. (1.) 4 Mass. 395, Commonwealth v. Drew. 10. Mass. 59, Appleby v. Clark. 11 Mass. 14, Brown v. Getchell. But in the case of a negligent escape, the sheriff may retake the prisoner on fresh pursuit; and if he retake him before action brought for the escape, he will be excused, but not if action be brought before the retaking. And if the sheriff do not make fresh pursuit, or do not retake the prisoner before action brought, though he will in such case be liable to the plain Ant. 59. [60 a] 1 Cr. 240. Ant. 57. 5 Co. 86. b. Ant. 2. 5 Co. 92. b. And therefore, if he take one in execution, who escapes, he hath choice to take another, or to get satisfaction from the sheriff upon the escape. But now as to the party himself, though he make an 5 Co. 87. N. B. escape, (which is his own wilful wrong,) yet the plaintiff' can have no other execution against him. 240. B. And if he saith tiff, yet he may retake the prisoner and keep him in custody until he makes an agreement with him; or he may have an action on the case for the wrongful escape. 3 Co. 52, Rigeway's case. See also 1 Saund. 35. n. (1.) 14 Mass. 14. 10 Mass. 59. And in Massachusetts, by stat. 1784 c. 41, if the prisoner shall, within three months after such escape, be recovered and returned back to prison again, the sheriff is liable to nothing further than the costs of any action which may have been commenced against him for the escape. Brown v. Getchell, 11 Mass. 15. After a voluntary escape, a voluntary return of the prisoner into custody will not prevent the liability of the sheriff; and after such return the sheriff cannot lawfully detain the prisoner, without a new authority, express or implied, from the plaintiff. 2 Johns. Ca. 9, Lansing v. Fleet. If the sheriff, after a voluntary escape, arrests the prisoner again on the same execution without a new authority from the plaintiff, and takes from him a bond for the jail liberties, jointly and severally with another person as surety, such bond is void for duress, not only as to the prisoner but also as to the surety. 15 Johns. 256, Thompson v. Lockwood. But see Brown v. Getchell, 11 Mass. 11. If a prisoner be permitted to go out of prison with the consent of the plaintiff, neither the sheriff nor the plaintiff can afterwards retake him by virtue of the same or another execution issued upon the same judgment, for he is thereby discharged from the judgment. Therefore if debt or scire facias be afterwards brought upon the judgment, or if it be pleaded as a subsisting debt, the defendant may plead that he was discharged out of custody by the plaintiff's consent. Or if he be afterwards taken on execution, the court will, on motion, set aside the execution and discharge him out of custody. 1 Saund. 35. a. n. (1.) 1 Show. 177, Buxton v. Home. 2 Mod. 136, Bassett v. Salter; though it be upon an agreement to pay certain sums at stipulated times, 4 Bur. 2482, Vigers v. Aldrich; or upon giving fresh security to satisfy the judgment and that security is afterwards defeated on account of mere informality; 1 T. R. 557, Jaques v. Withy. And if the plaintiff discharge one of several defendants, taken on a joint ca. sa. he cannot afterwards retake him or take any of the others. 6 T. R. 525, Clark v. Clement. If a bond be given to the plaintiff with a condition to render in execution one who was thereupon discharged, the condition is void. 1 Bos. and Pul. 242, Da Costa v. Davis. So where a plaintiff agreed with a defendant who was in custody of the sheriff on a ca. sa. that he might go beyond the liberties of the jail for his convenience, on the defendants covenanting that he would continue in custody of the sheriff and not go beyond the bounds prescribed by the plaintiff; and that if he did go further the plaintiff might retake him on the ca. sa. or issue another ca. sa. and commit him again until the debt and costs were paid; and the defendant having violated the agreement by going beyond the prescribed bounds, the plaintiff issued another ca. sa. on which the defendant was again taken by the sheriff; it was held that the agreement amounted to a permission to the defendcnt to go at large; that he was not liable to be retaken, but was entitled to his discharge and might maintain an action for false imprisonment upon his recaption. 5 Johns. 364, Yates v. Van Renssalaer. But if a prisoner in execution procures he hath remedy against the sheriff, yet that may fail, either by death, or disability of the sheriff. And by the same reason that there is difference between the same party and another, in case of escape, I hold it much more reasonable in the case of death. 41 Ass. Pl. 15. One in execution for debt escaped, and the sheriff died, whereupon the plaintiff prayed a new capias against the prisoner, and had it in that case of mischief; but other executions I hold he could not have had in that case. [60 b] Post. 202. When the party taken in execution makes a wilful 3 Co. 52. b. escape, and that against the keeper's will, yet the plaintiff can take no other execution; this cannot be in the his liberation upon an agreement to surrender himself again into custody upon certain conditions, and afterwards does voluntarily surrender himself and return into custody pursuant to such agreement, he may then be lawfully detained in prison and will not be discharged on audita querela. 14 Mass. 443, Little v. The N. P. Bank. But the plaintiff's consent, in order to discharge the judgment, must be previous to the escape, and a subsequent assent by him is no bar to a scire facias, or an action of debt upon the judgment. 16 Johns. 181, Sweet v. Palmer. 1 Salk. 271, Scott v. Peacock. So the attorney of the plaintiff on record has no power to discharge a defendant from custody on execution without payment of the debt; his general authority as attorney ceases with the judgment, or at least with the issuing of the execution within the year. 8 Johns. 361, Jackson v. Bartlett. But in Massachusetts it is said that the plaintiff's attorney on record has authority to discharge an execution. 13. Mass. 32, Langdon v. Potter; but not upon receiving a less sum than the amount of the judgment. 1 Pick. 350, Lewis v. Gamage. See also 4 Barn. & Cres. 271, Crozer v. Pilling & al. And now in Massachusetts, by stat. 1819 c. 94, it is provided that the creditior may, at any time, discharge his debtor from prison, and such discharge shall not operate to release the debtor from the debt and costs on which he was committed, but such debt and costs &c. shall be and remain a legal claim against the goods and estate of the debtor, his body being forever thereafter exempted from arrest therefor. A prisoner, in Massachusetts, committed in execution may be taken from the jail, and even from the jail liberties, at the discretion of the magistrates, for the purpose of having the poor debtor's oath administered to him by them, and he thereby commits no escape. 14 Mass. 388, Com. v. Alden. But where a debtor procured a discharge from an execution on which he stood imprisoned, upon payment of part of the sum due, but fraudulently concealed the facts that he had previously committed an escape, and that his father, from whom property had descended to him, had died, it was held that the discharge was void, and that the bond given for the liberty of the jail yard was forfeited. 1 Pick. 347, Lewis v. Gamage. See also 16 Johns. 181, Sweet v. Palmer. And formerly, if a prisoner was admitted to the jail liberties upon giving bond, by accident or mistake, in a penal sum less than double the amount on which he was imprisoned, the sheriff could not thereby protect himself against an action by the creditor for an escape, although the bond was approved by two justices according to st. 1784 c. 41. 15 Mass. 276, Clapp v. Hayward. But this is now remedied by stat. 1819 c. 24. [60 c] 5 Co. 87. b. 3 Reason. Plo. 440. a. 5 Co. 12. b. b. favor of the prisoner, for he is the only wrongdoer both to the parties and to the law, and is the cause why that execution is defrauded, and so gives cause of another. There is no cause to impute any fault to the plaintiff, why he may not now take a new execution, since by the defendant's fraud he could not reap the benefit of this. Likewise there is no cause to quit the offender, and to lay the charge upon the sheriff, who consented not to the escape, whom the plaintiff would free by taking another execution against the party himself. Therefore there can be no other reason of that position, but that the capias executed, and the body taken, stops, as against him, all other executions but itself and the consequence of it, which is the action of debt, or action upon the case upon the escape. Now in the principal case, all these considerations move mainly, and are, without exception, more clear and just to quit the defendant, being in no fault, and to satisfy the plaintiff by his own choice, whereof he hath had full effect directly, that is, his body. It is a prerogative to the king, to have execution of body, lands, and goods, not communicated to the subject, but in case of stat. Merchant and Staple, and recognizance 5 Co. 86. b. 87. of that nature, which is by the statute law. And therefore the case put in Blomfield's case, that where the party was taken in execution upon a statute, and died, and yet execution was had against goods and lands after, is nothing in this case, for they were all due at the first, and therefore might be taken at once or severally. But if this opinion should hold, a man, beginning with a capias, may be sure upon death to end with a fieri fac. or elegit. 4 Reason. Statutum est omnibus semel mori. And if so many be bound, and all taken in execution, upon the death of every one a new execution may be against the executor; which is absurd and full of mischief. When the plaintiff took him in execution, as he chose that his best remedy, so he could not but foresee that he might die under his hand, so it was his folly to choose that kind of execution, which was executio caduca. |