Bryan v. Simonton.

Tayiok, Chief-Justice, delivered the opinion of the Court: 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, lie cannot afterwards sue out any execution on that judgment. * There is but one case where a debtor in execution, who obtains his liberty, may after-wards be taken again for the same debt; and that is, when he has escaped ; and the reason of that is, because he is not legally out of custody. But where a prisoner obtains his discharge with tiie consent of the Plaintiff, he cannot be re-taken, if being considered that the Plaintiff has obtained a satisfaction in Jaw, by having bis debtor once in execution. † 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 re-take such Defendant, or take any of the others. ‡ Where, indeed, the discharge- is without the consent of the Plaintiff, as by an insolvent law, a different rule prevails. § The Defen *53 dant, 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 5 nor can a sd. 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. Footnotes [*] 4 Bur. Rep. 2482. 1 T. R. 557. 2 East. Rep. 244. [†] 7 T. R. 421. [‡] 6 T. R. 525. [§] 5 East. Rep. 147.