Loomis v. Storrs

Hosmer, Ch. J. It is necessary for the plaintiff to establish the principle, that a creditor, having levied an execution on the body of his debtor, may, at his own option, discharge the body, and relevy on estate. In support of such principle, the law affords no countenance. From the 28 of Car. II. it has been well established, if the body of a debtor has been taken in execution, and he is discharged from custody, by the direction of the creditor, that the judgment is satisfied. 2 Bac. Abr. 719. (Gwil. ed.) Basset v. Salter, 2 Mod. Rep. 136. Vigers v. Aldrich, 4 Burr. 2482. Jacques v. Withy, 1 Term Rep. 557. Clark v. Clement & al. 6 Term Rep. 525. Tanner v. Hague, 7 Term Rep. 420. Blackburn v. Stupart, 2 East 243. The cases proceed on the ground, that the plaintiff has received a satisfaction in law, by having his debtor once in custody on execution. This principle must be received with a qualification arising from the form of our execution; that is, that property tendered by the debtor, immediately after the levy of the execution upon the body, or perhaps within a reasonable time afterwards, the officer is bound to receive. Hall v. Hall, 1 Root 120. Allen v. Gleason, 4 Day 376. That the creditor may cause his execution to be levied on the body of his debtor, and at his pleasure, relinquish the [442] levy, and commence a new levy on properly, has the countenance of no adjudged case, and would be pregnant with the most manifest inconvenience. If one levy may thus be abandoned, why may not a second or a third, until the mischiefs of such a practice would become intolerable? And if this doctrine be correct, the judgment is not satisfied, by the first levy, but on the relinquishment of the body, an action of debt may be sustained. In Leavenworth v. Baldwin, 2 Day 317. after the levy of an execution on real estate, which was appraised, but not set off, the taking of the body of the debtor, by the same execution, was adjudged to be a trespass. The cases cited by the plaintiff have no bearing on the point of controversy. Luddington v. Peck, 2 Conn. Rep. 700. merely establishes this proposition; that trespass will not lie for an act done under process, valid on the face of it, and regularly issued, by a court of competent jurisdiction. The question in that case, related to the validity of the process; in this, the process is admitted to have been valid, but the judgment was satisfied, by the arrest of the debtor’s body. The plaintiff, by the levy of his execution on the defendant’s land, acquired no title; and, of consequence, the judgment below was correct. The other Judges were of the same opinion. New trial not to be granted.