Morgan v. Chester

Hosmer, Ch. J. It is unquestionably clear, that the plaintiff might have instituted a suit, either against the sheriff, or his deputy, for the default complained of; and that nothing short of satisfaction made by one, would annihilate the remedy against the other. Although the causes of action are not precisely identical; yet the sheriff is subjected equally with his deputy to a responsibility for his official neglect or misconduct. The relation between them, in point of effect, produces the same consequences, as that between joint and several promisers, or joint trespassers: the judgment recovered against one, does not extinguish the right of action against [389] the rest; but this consequence merely results, from satisfaction made to the creditor. Sheldon v. Kibbe, 3 Conn. Rep. 214. The taking out execution, and levying it on the body of Bissell, was no satisfaction of the plaintiff’s demand; but merely a gage for his debt, or a security for the original cause of action, until it should become productive. Blumfield's case, 5 Co. Rep. 87. Drake v. Mitchell & al. 3 East 251. 258. Macdonald v. Bovington, 4 Term Rep. 825. Sheehy v. Mandeville & al. 6 Cranch 265. The principle of transit in rem judicatam, has relation only to the positive cause of action, on which judgment is rendered; and operates as a change of remedy; but it is still merely a security, and effectuates no extinguishment of any collateral concurrent remedy, which the party may have. Drake v. Mitchell & al. Sheldon v. Kibbe, ubi sup. Notwithstanding the imprisonment of Bissell, until payment or a discharge of the execution, the cause of action against the sheriff, exists unimpaired; and his liability to suit is the same, as if no action had been instituted. The other Judges were of the same opinion. Plea insufficient.